author: JAMES, J.,

text:
    Arthur MOORE a/k/a Artha Moore, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00494-COA.
    Court of Appeals of Mississippi.
    Oct. 1, 2013.
    Rehearing Denied Feb. 11, 2014.

      J. David Wynne, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Following a jury trial, Arthur Moore was convicted of capital murder in the Circuit Court of Holmes County. On appeal, Moore challenges the weight and sufficiency of the evidence, arguing the State failed to prove beyond a reasonable doubt that he did not act in self-defense. Finding both issues are procedurally barred, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Moore and Felicia Butler were involved in a tumultuous relationship. The couple, along with their two young children, lived together in a mobile home in Pickens, Mississippi. On the morning of February 12, 2011, Inez Porter, a mutual friend of Moore and Felicia, wanted Moore to drive her to a tattoo parlor. Moore drove Inez to the parlor, and then dropped Porter off at his home to visit Felicia. Moore then left to get a haircut. Shortly after Moore left, he received a call from Felicia. Felicia asked Moore to bring the car home so that she could drive to Vaughan, Mississippi, to speak with the father of her child from a previous relationship. Moore refused and ended the call. Felicia immediately called Moore again, this time to tell Moore that he needed to come home because the children needed food. Moore then left and headed home. As Moore entered the driveway of his home, Felicia walked outside and demanded that Moore give her the car and his gun so that she could drive to Vaughan and confront her child’s father. After Moore refused, he and Felicia became involved in a physical altercation. The altercation grew violent, at which point Felicia hit Moore in the head with a brick.

¶ 3. After several minutes of fighting, Moore got in his car and drove away, leaving Felicia in the front yard of the home. While driving, Moore called Felicia’s brother, Anthony Butler. Moore told Butler, “Go and get your sister before I kill her.” Shortly thereafter, Moore spotted Butler driving in the opposite direction. Butler’s cousin, Anthony Morton, was riding on the passenger’s side of Butler’s vehicle. Moore stopped Butler, and again told him, “Go and get your sister before I kill her.” Butler stated he had nothing to do with Moore and Felicia’s altercation. Butler drove away and headed to Moore’s house to pick up Felicia. Moore followed. Upon their arrival, Moore got out of his truck and immediately began arguing with Felicia. During the argument, Butler got out of his car and stood by the door on the driver’s side. Butler told Felicia to go in the house and get her baby so they could leave. While Moore and Felicia continued arguing, Butler reached into his car to get a cigarette. At that point, Moore walked back to his own vehicle and retrieved a 30-caliber rifle. Moore pointed the rifle at Butler and told Butler to “stop reaching.” Butler raised both of his hands and said he did not have anything. Before Butler could get into his vehicle and leave, Moore fired his rifle at Butler, striking Butler in the right side of his chest. At that point, Felicia, Porter, and Morton ran to the next-door neighbor’s house for safety. Morton testified that as they were running, Moore continued to fire his rifle at them and demanded that they leave his property. Butler died at the scene.

¶ 4. On April 21, 2011, Moore was indicted for capital murder and four counts of aggravated assault. A trial was held on February 13, 2012. Moore was found guilty of murder but was acquitted on all four counts of aggravated assault. Moore was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. Without ever having filed a motion for a new trial or a motion for a judgment notwithstanding the verdict, Moore filed the present appeal.

DISCUSSION

I. Sufficiency of the Evidence

¶ 5. Moore claims the evidence was insufficient to support his conviction of capital murder because the State failed to prove beyond a reasonable doubt that he did not shoot Butler in self-defense. Moore’s challenge to the sufficiency of the evidence is procedurally barred. The general rule for preserving a challenge to the sufficiency of the evidence for appeal is, if the trial court denies a motion for a directed verdict made by the defendant at the close of the State’s case-in-chief, and the defendant proceeds to introduce evidence on his own behalf, the motion for a directed verdict must be renewed at the close of all evidence. Page v. State, 990 So.2d 760, 762 (¶ 9) (Miss.2008) (citing Wright v. State, 540 So.2d 1, 3 (Miss.1989)). Failure to do so constitutes a waiver of any challenge on appeal to the sufficiency of the evidence. Carey v. State, 80 So.3d 131, 134-35 (¶ 10) (Miss.Ct.App.2012) (citing Robinson v. State, 749 So.2d 1054, 1058-59 (¶ 13) (Miss.1999)).

¶ 6. At the conclusion of the State’s casein-chief, Moore moved for a directed verdict on counts II, III, IV, and V, which were the four counts of aggravated assault. Moore argued the State lacked proof that he attempted to cause serious bodily injury to Felicia, Morton, Porter, and his four-year-old daughter at the time of the shooting. After a lengthy exchange between the trial court, the State, and Moore’s attorney, the court granted the motion for count II; the charge of aggravated assault against his four-year-old daughter. As for the remaining three counts of aggravated assault, the motion was denied. Moore did not renew his motion at the close of all evidence. However, Moore’s failure to do so is inconsequential to the present issue, because he never moved for a directed verdict on the capital-murder charge. In fact, he never challenged the sufficiency of the evidence regarding the capital murder charge at any time during trial or prior to the present appeal. Therefore, the issue of the sufficiency of the evidence regarding Moore’s conviction of capital murder is not properly before this Court.

II. Weight of the Evidence

¶ 7. Next Moore claims that the jury verdict was against the overwhelming weight of the evidence. Moore is procedurally barred from raising this issue on appeal. The record shows that Moore never filed a motion for a new trial. “[I]f an appellant raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for a new trial.” Carey v. State, 80 So.3d 131, 136 (¶ 15) (Miss.Ct.App.2012) (quoting Page v. State, 64 So.3d 482, 489 (¶ 29) (Miss.2011)). Because Moore failed to preserve his challenge to the weight of the evidence, the issue is not properly before this Court. “[A] party seeking reversal of the judgment of a trial court must present this Court with a record adequate to show that an error of reversible proportions had been committed and that the point has been procedurally preserved.” Nelson v. State, 919 So.2d 124, 126 (¶ 6) (Miss.Ct.App.2005) (quoting Hansen v. State, 592 So.2d 114, 127 (Miss.1991)). Furthermore “[t]his Court cannot consider matters not included in the record.” Page, 990 So.2d at 762 (¶ 11) (citing Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973)).

¶ 8. Procedural bars notwithstanding, we find Moore’s challenges to the weight and sufficiency of the evidence are without merit. For both challenges, Moore claims the State failed to prove beyond a reasonable doubt that he did not act in self-defense. Felicia, Porter, and Morton, all eyewitnesses to the shooting, testified that Butler was unarmed at the time Moore shot him. Each eyewitness stated that moments before Butler was killed, he raised his hands over his head and pleaded, “I don’t have nothing.” Felicia also testified that Butler did not have a weapon in his vehicle at the time of the shooting. The record shows that Moore was the only person with a firearm at the scene of the shooting. Furthermore, Porter and Morton testified that immediately after Butler was shot, Moore proceeded to fire his rifle at them as they were running to the next-door neighbor’s house for safety. Any rational juror could have found beyond a reasonable doubt that Moore did not shoot Butler in self-defense. We find the evidence was sufficient to support Moore’s conviction of capital murder. And no injustice will result in allowing the jury verdict to stand.

¶ 9. Finding both issues to be procedurally barred and without merit, we affirm Moore’s conviction of capital murder.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY.

      . The record indicates that Felicia had planned to confront the child's father about withholding money from her.

      . Moore was charged with aggravated assault against Felicia, Porter, Morton, and Moore’s four-year-old daughter who was standing outside during the shooting.

      . The jury ultimately found Moore not guilty on the remaining counts of aggravated assault.


source: Caselaw Access Project

author: IRVING, P. J.,

license: Public Domain

text:
    Willie CURRY a/k/a Willie E. Curry a/k/a Willie Earl Curry a/k/a Willie L. Curry, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01124-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.
    Rehearing Denied Feb. 11, 2014.

      John Keith Perry Jr., Walls, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   IRVING, P. J.,

for the Court:

¶ 1. A Madison County grand jury indicted Willie Curry for attempt to exploit a vulnerable adult, conspiracy to exploit a vulnerable adult, and possession of hydro-codone. After the indictment, the Madison County Circuit Court granted the State’s motion to amend the indictment to charge Curry as a violent habitual offender. Following a trial, the jury convicted Curry of attempt to exploit a vulnerable adult, conspiracy to exploit a vulnerable adult, and possession of hydrocodone with acetaminophen. The circuit court sentenced him as a nonviolent habitual offender to a total of fifteen years in the custody of the Mississippi Department of Corrections and to one year in the custody of the Madison County Sheriff. From the denial of Curry’s post-trial motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, he instituted this appeal and argues that the circuit court erred in sentencing him under an indictment that was different from the original indictment.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The State’s initial motion to amend the indictment listed three convictions to support indicting Curry as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2007): two aggravated-assault convictions, each carrying three-year sentences that ran concurrently with each other, and a forgery conviction carrying an eighteen-month sentence. The circuit court granted the State’s motion to amend the indictment. After Curry’s conviction but before his sentencing, the State filed a second motion to amend the indictment, seeking to replace the forgery conviction in the amended indictment with a grand-theft-auto conviction. The State had discovered that Curry had served only eight months for the forgery conviction, thereby making it ineligible to serve as a predicate conviction for sentencing Curry as a violent habitual offender under section 99-19-83. The circuit court denied the motion and sentenced Curry as a nonviolent habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), reasoning that the indictment, as it read after the initial amendment with the two aggravated-assault convictions and the forgery conviction, could properly stand under section 99-19-81.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶5. A circuit court’s decision to permit the State to amend an indictment to reflect a defendant’s habitual-offender status “is an issue of law and enjoys a relatively broad standard of review.” Jackson v. State, 943 So.2d 746, 749 (¶ 11) (Miss.Ct.App.2006) (citation and internal quotation marks omitted). Despite the court’s denial of the State’s second motion to amend the indictment and the court’s refusal to sentence Curry as a violent habitual offender under section 99-19-83, Curry, nevertheless, argues that the circuit court granted the State’s motion and erred in doing so. Curry contends that the court erred because the indictment under which he was sentenced was different from the indictment presented against him at' trial, and as a result, he suffered prejudice because he “had to defend [himself at sentencing] against a charge that was not presented to him.” More specifically, Curry complains that there was a lack of notice regarding the felony convictions supporting his habitual-offender status.

¶ 6. Rule 7.09 of the Uniform Rules of Circuit and County Court governs amendments to indictments and states:

All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.

Here, the State’s motions to amend the indictment sought violent-habitual-offender status under section 99-19-83, which states that

[e]very person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended!,] nor shall such person be eligible for parole or probation.

(Emphasis added).

¶ 7. Apparently, Curry is mistaken with respect to what occurred at his sentencing hearing. It is true that after Curry’s conviction and prior to his sentencing, the State sought to amend the indictment. However, the State was seeking to substitute a different felony conviction for one of the felonies contained in the indictment that had been amended approximately ten days prior to trial, charging Curry as a violent habitual offender. As stated, the circuit court denied the State’s motion as to this second attempt to amend the indictment. Nevertheless, Curry remained indicted as a habitual offender, but since he had not served one year in prison for one of the felony-convictions contained in the indictment, he could not be sentenced as a violent habitual offender. He, however, could be sentenced as a nonviolent habitual offender, which is how he was sentenced.

¶ 8. Curry was served with a copy of the State’s pretrial motion to amend the indictment, which resulted in his indicted status being changed from non-habitual offender to habitual offender. Consequently, that amendment was proper because Curry had adequate notice and was not unfairly surprised by the State’s use of his prior convictions. Thus, the circuit court properly sentenced Curry as a nonviolent habitual offender under section 99-19-81.

¶ 9. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ATTEMPT TO EXPLOIT A VULNERABLE ADULT, AND SENTENCE OF TEN YEARS; COUNT II, CONSPIRACY TO EXPLOIT A VULNERABLE ADULT, AND SENTENCE OF FIVE YEARS, BOTH SENTENCES AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION; COUNT III, POSSESSION OF HYDRO-CODONE WITH ACETAMINOPHEN, AND SENTENCE OF ONE YEAR IN THE CUSTODY OF THE MADISON COUNTY SHERIFF; WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I AND THE SENTENCE IN COUNT III TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . On the day of Curry's conviction, at the request of the State, the circuit court entered two orders amending the indictment to correct scrivener's errors. One order corrected the name of the city in which the crime in count one took place, and the other order replaced "Hydrocodone” with "Hydrocodone with Acetaminophen" in count three.

      . Because the two aggravated-assault convictions arose out of the same incident and resulted in sentences that ran concurrently with each other, the convictions were treated as one single conviction for the purpose of Curry’s habitual-offender status.

      . The transcript clearly reflects that the circuit court denied the State’s second motion to amend the indictment, which was filed after the State discovered that Curry had served less than eight months for the forgery conviction.


author: ISHEE, J.,

text:
    Charles Richard FERGUSON a/k/a Charles R. Ferguson, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CA-01121-COA.
    Court of Appeals of Mississippi.
    Oct. 29, 2013.
    Rehearing Denied Feb. 11, 2014.

      Kevin Dale Camp, Jackson, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Charles Ferguson appeals the denial of his petition for post-conviction relief (PCR) by the Jackson County Circuit Court. On appeal, he contends that his guilty plea was unconstitutional because he was not advised of the elements of the crime to which he pled guilty. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. Ferguson was indicted for two counts of child exploitation in violation of Mississippi Code Annotated section 97-5-33(5) (Supp.2012) and one count of possession of a weapon by a convicted felon in violation of Mississippi Code Annotated section 97-37-5(1) (Supp.2012).

¶ 3. Following his indictment, Ferguson agreed to plead guilty to the two counts of exploitation of a child, and the State agreed to drop the third charge. Ferguson’s guilty plea was accepted. The circuit court sentenced Ferguson on each count to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with eight and one-half years to serve and six and one-half years suspended, and with the sentences to run concurrently with each other, and six and one-half years of post-release supervision. Ferguson was ordered to pay a $25,000 fine on each charge, with $20,000 suspended. He was also ordered to register as a sex offender. Additional facts, as necessary, will be related in our analysis and discussion of the issue.

STANDARD OF REVIEW

¶ 4. “When reviewing a circuit court’s decision to deny a PCR motion, this Court will not disturb the circuit court’s factual findings unless they are found to be clearly erroneous.” Cane v. State, 109 So.3d 568, 570 (¶ 6) (Miss.Ct.App.2012) (quoting Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). “Questions of law receive a de novo analysis.” Id.

DISCUSSION

¶ 5. Ferguson asserts that neither the circuit court nor his defense attorney informed him of the elements of the crime to which he was pleading guilty prior to the court accepting and entering his guüty plea.

¶ 6. It is difficult to understand what more the circuit court or the attorney could have done to establish that Ferguson was informed of the elements of the charged crime. The indictment clearly set forth the facts of the case, and Ferguson admitted in open court that he was guilty of possessing pictures he had downloaded from a computer and a videotape of children participating in sexually explicit activities. The prosecutor stated in open court that Ferguson was charged with possession of the photographs and videotape. Ferguson also stated that he understood the charges against him.

¶ 7. In Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that “[i]t was error, plain on the face of the record, for the trial judge to accept [the] petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” Also, “an accused [must] have knowledge of the critical elements of the charge” prior to the circuit court’s acceptance of a valid guilty plea. Gilliard v. State, 462 So.2d 710, 712 (Miss.1985) (citing Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976)).

¶ 8. Th[is] Court has followed a rule that “the failure of the trial court to advise the defendant of the elements of the charge may be harmless error if it can be shown that prior to the plea the defendant had been advised through other sources of the critical elements of the crime with which he is charged.”

Jones v. State, 936 So.2d 993, 998 (¶ 18) (Miss.Ct.App.2006) (quoting Carter v. State, 775 So.2d 91, 97 (¶25) (Miss.1999)). If the appellant’s guilty plea clearly indicates that the accused understands the charges to which he is pleading guilty, that is sufficient. Gaskin v. State, 618 So.2d 103, 106 (Miss.1993).

¶ 9. Mississippi Code Annotated 97-5-33(5) states: “No person shall, by any means including computer, possess any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct.” This statute was read in open court to Ferguson as the charge against him. He acknowledged having committed the crime on the record. We find that the circuit court judge and Ferguson’s attorney did not fail to advise Ferguson of the critical elements' of the crimes to which he pled guilty. During the plea colloquy, Ferguson was instructed on the elements and he admitted to his possession of the photographs and videotape. There is no merit to his assignment of error. We therefore affirm.

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

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


author: MAXWELL, J.,

text:
    Gene GALES a/k/a Gene Gales, Jr. a/k/a Gene E. Gales, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00865-COA.
    Court of Appeals of Mississippi.
    Nov. 26, 2013.
    Rehearing Denied Feb. 4, 2014.
    Office of State Public Defender by George T. Holmes, Craig Thomas Rose, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. There are three essential elements that must be alleged in an indictment charging a defendant with burglary of a nondwelling — (1) the defendant unlawfully broke and entered into a building, (2) where anything of value is kept for use, (3) with the intent to commit some specific crime once inside. But here, Gene Gales was convicted of nondwelling burglary-based on an indictment that charged only one of the three mandated elements — that he broke and entered an unoccupied dwelling.

¶2. Because the Mississippi Supreme Court has emphasized that “[a]n indictment which fails to allege all essential elements of a crime runs afoul of our constitutions and is void[,]” we must reverse Gales’s conviction and sentence. We also dismiss the indictment.

Discussion

¶ 3. Gales was charged with burglary of a nondwelling after a witness saw him in the yard of a vacant house at 1203 Edwards Street in Hattiesburg, Mississippi, possessing mattresses that had been removed from the house. Gales claimed the mattresses were his, but when the witness called the police, Gales fled. An officer found him hiding in a nearby backyard of an abandoned residence. By this time, Gales had removed the shirt the eyewitness described him wearing and had discarded a backpack containing a flashlight. After his arrest, Gales claimed to police that he was told he could haul off the mattresses, but he decided not to do so after noticing their poor condition.

¶4. The State initially charged Gales with burglary of a dwelling, as a habitual offender under section 99-19-83. But because the house was boarded up and had been vacant for some time, the State recognized the charge did not fit the indicted crime. So it later moved to amend the indictment to burglary of a nondwelling, and also sought to swap habitual-offender provisions to charge Gales under the lesser enhancement found in section 99-19-81. Gales did not object to the amendments, which the court granted.

¶ 5. Gales proceeded to trial, where a jury convicted him of nondwelling burglary. He was sentenced as a habitual offender to seven years’ imprisonment under Mississippi Code Annotated section 99-19-81. He now appeals.

¶ 6. On appeal, Gales filed a separate pro se brief, arguing the indictment was defective for failing to charge the essential elements of burglary of a nondwelling under 99-17-33, an argument he had also furthered in a pro se pretrial motion. After review, we agree the indictment was defective and that reversal is the proper recourse.

Nondwelling Burglary

¶ 7. The State was successful in having Gales’s indictment amended from burglary of a dwelling to nondwelling burglary. But the indictment’s charging language remained the same.

¶ 8. The pertinent part of the indictment alleged: “Gales ... did unlawfully, willingly, feloniously, and burglariously, break and enter an unoccupied dwelling house ..., contrary to the form in such cases made and provided, and against the peace and dignity of the State of Mississippi.” Comparing the charging language of the indictment against the alleged crime’s statutory elements, we note the State left out two essential elements.

¶ 9. To properly charge nondwell-ing burglary, the State must allege — (1) breaking and entering a building; (2) where something of value is kept for use, sale, deposit, or transportation; and (3) the intent to commit a specific crime therein. Miss.Code Ann. § 97-17-83. But here, only the first element is cited. There is no mention of any valuable kept in the house, nor does the indictment cite the particular crime Gales allegedly intended to commit.

¶ 10. The state and federal bill of rights guard the constitutional right to notice of criminal charges. Thomas, 126 So.3d at 880 at (¶ 7); U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation....”); Miss. Const. art. 3, § 26 (“In all criminal prosecutions the accused shall have a right ... to demand the nature and cause of the accusation....”). And “[a]ll the authorities are to the effect that an indictment, to be sufficient upon which a conviction may stand, must set forth the constituent elements of a criminal offense.” Id. (quoting Burchfield v. State, 277 So.2d 623, 625 (Miss.1973)). The supreme court has repeatedly held that indictments based on statutory offenses are void if they do not charge all essential elements of the statutory crime. Spears v. State, 253 Miss. 108, 116, 175 So.2d 158, 161-62 (1965) (citing May v. State, 209 Miss. 579, 47 So.2d 887 (1950); Kelly v. State, 204 Miss. 79, 36 So.2d 925 (1948); Rogers v. State, 198 Miss. 495, 22 So.2d 550 (1945); Crosby v. State, 191 Miss. 173, 2 So.2d 813 (1941)). Here, the indictment fell well short of this minimal mark and is void.

¶ 11. We therefore find the “failure to charge [Gales] with a crime cognizable under Mississippi law is a plain, constitutional error and requires dismissal of the indictment and reversal of the convietion[.]” Thomas, 126 So.3d at 880 (¶ 8). So we reverse his conviction and dismiss the indictment.

¶ 12. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS REVERSED, AND THE INDICTMENT IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . Miss.Code Ann. § 97-17-33 (Rev.2006).

      . Thomas v. State, 126 So.3d 877, at 880 (¶ 7) (Miss.2013); see also Burchfield v. State, 277 So.2d 623, 625 (Miss.1973); Spears v. State, 253 Miss. 108, 116, 175 So.2d 158, 161-62 (1965).

      . Miss.Code Ann. § 99-19-83 (Rev.2007) (mandating life sentence, without eligibility for parole, where defendant has been previously convicted of two or more felonies, one of which is a crime of violence).

      .Miss.Code Ann. § 99-19-81 (Rev.2007) (imposing mandatory sentence of maximum prescribed term without eligibility for parole where defendant has two or more prior felony convictions arising out of separate incidents).

      . Indeed, the indictment on its face, even before amendment, did not lay out a proper charge of the initial offense — burglary of a dwelling — since only a breaking and entering was charged and there was no mention of the specific crime Gales allegedly intended to commit once inside. See Murphy v. State, 566 So.2d 1201, 1204 (Miss.1990) (crime of burglary has two essential elements: (1) "the unlawful breaking and entering’’ and (2) "the intent to commit some crime once entry has been gained”). So had the structure been an inhabited dwelling, the indictment was still defective on its face.


author: GRIFFIS, P.J.,

text:
    Cynthia Ann FAULKNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-KA-00450-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2014.

      David Walker, attorney for appellant.

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

for the Court:

¶ 1. Cynthia Faulkner was convicted of driving under the influence (DUI) causing death, commonly referred to as DUI homicide, in violation of Mississippi Code Annotated section 63-11-30(5) (Rev.2013). She was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). In this appeal, Faulkner argues that the trial court erred when it denied her motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. We find no error and affirm.

FACTS

¶ 2. On May 19, 2011, at 1:30 p.m., a head-on automobile collision occurred in Batesville, Mississippi. Jerry Willard was driving a white Nissan Altima, and Faulkner was driving a Ford F-150 truck. Willard had two passengers in his car; his wife, Mary Ann, was in the front passenger seat, and his mother, Barbara Dover, was in the rear passenger seat. Dover died as a result of the accident, and Faulkner was taken to the hospital to be examined.

¶ 3. Just before the collision, Faulkner’s truck had almost run into other vehicles. Three witnesses testified to near collisions with Faulkner. Two of the three witnesses testified that Faulkner’s truck had swerved into their lane and nearly struck them head-on. One of these witnesses testified that the driver of the truck was a white female, and was “slumped over as if she was asleep or passed out.” The other witness testified that she stopped her vehicle and started blowing the horn, at which point Faulkner “went back into her own lane and got out of mine.” The third witness testified that he was traveling east on Highway 6 when a truck merged into his lane, scraped his truck, and then sideswiped the trailer he was pulling and knocked the tires off of the trailer.

¶ 4. Three Batesville police officers testified. Officer Michael Hardin testified that he was dispatched to the scene of the accident. He noticed that Faulkner seemed confused and did not understand what he was saying to her. He testified that her “eyes were glassy, [and she was] possibly under the influence.” Officer Daniel Chandler testified that Faulkner was “very calm” but was “confused about what was going on.” Officer Richard Sto-nestreet was asked to take a blood-test kit to the hospital for Faulkner to be tested. Officer Stonestreet witnessed the test being administered and then gave the blood sample to Officer Chandler. Officer Chandler delivered the blood sample to the crime laboratory.

¶ 5. Dr. Timothy Lamb, an emergency-room physician, treated Faulkner for lacerations to her forehead. Faulkner was asked about her medical history, and she identified five medications she was currently taking: Tylenol with codeine, Soma, Ultram, Ativan, and Prempro. According to Dr. Lamb, Tylenol with codeine is an opiate pain reliever, Soma is a muscle relaxer, Ultram is a nonnarcotic pain reliever, Ativan is an anti-anxiety drug, and Prempro is an estrogen replacement. Dr. Lamb also gave Faulkner a Glasgow coma test. Dr. Lamb testified that a Glasgow coma score is a score given to determine consciousness. Dr. Lamb gave Faulkner a score of 15, the best score possible. Dr. Lamb also conducted a urine drug screen report on Faulkner to determine whether there were drugs in her system. Faulkner tested positive for acetaminophen, benzo-diazepines, and opiates. Dr. Lamb testified that individuals who take these drugs can become confused and should not operate a vehicle. In fact, Dr. Lamb stated that he would not let someone leave the hospital and drive after taking any of these drugs, and that if they did, he would report that person to the authorities.

¶ 6. The Panola County coroner, Grace Grant-Gulledge, testified that Dover’s cause of death was “blunt trauma to the chest.” She also testified that Dover was likely wearing her seatbelt.

¶ 7. Faulkner chose not to testify in her defense. The jury found Faulkner guilty of DUI homicide. It is from this judgment that Faulkner now appeals.

ANALYSIS

¶ 8. Faulkner raises one issue on appeal: whether the trial court erred in the denial of her motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. She claims that the jury verdict was against the sufficiency and weight of the evidence.

¶ 9. “Motions for a directed verdict and judgment notwithstanding the verdict challenge the legal sufficiency of the evidence, and the standard[s] of review for a directed verdict and judgment notwithstanding the verdict are identical.” Barfield v. State, 22 So.3d 1175, 1185 (¶ 34) (Miss.2009). “[T]he critical inquiry is whether 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....’” Id. Evidence that fails to meet this test is insufficient for conviction. Id. The sufficiency of the evidence is determined by examining whether “any rational trier of fact,” after “viewing the evidence in light most favorable to the prosecution,” could have “found the essential elements of the crime beyond a reasonable doubt.” Id. This Court accepts all evidence that is favorable to the State as true, which includes inferences reasonably drawn from the evidence in favor of the State. Id. at 1186 (¶ 34).

¶ 10. This Court reviews a trial court’s denial of a motion for a new trial based on an abuse-of-discretion standard. Butler v. State, 102 So.3d 260, 268 (¶ 23) (Miss.2012). Similar to the trial court’s standard, this Court has the authority to grant a new trial when the Court determines, in its discretion, that the verdict “is so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice.” Id. “If, upon evaluating the evidence in the light most favorable to the verdict, this Court finds itself in disagreement with the jury’s verdict, the proper remedy is to grant a new trial.” Patterson v. State, 37 So.3d 702, 704 (¶ 10) (Miss.Ct.App.2010).

¶ 11. Under Mississippi Code Annotated section 63-ll-30(l)(b) (Rev.2013), “[i]t is unlawful for any person to drive or otherwise operate a vehicle within this state who is ... under the influence of any ... substance which has impaired such person’s ability to operate a motor vehicle....” Section 63-11-30(5) provides:

Every person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another ... shall, upon conviction, be guilty of a separate felony for each such death ... and shall be committed to the custody of the State Department of Corrections for a period of time of not less than five (5) years and not to exceed twenty-five (25) years for each such death ....

¶ 12. Here, Faulkner was indicted because she did wilfully, unlawfully, and feloniously operate a motor vehicle under the influence of a substance that had impaired her ability to operate a motor vehicle, and did thereby, in a negligent manner, cause the death of Dover, a human being, in direct violation of section 63 — 11— 30(5). As a result, the State was required to prove beyond a reasonable doubt both elements of the statute: that Faulkner operated a vehicle under the influence, and that she caused the death of another in a negligent manner.

¶ 13. The evidence presented — both the urinalysis reports and witnesses’ interactions with Faulkner — established that Faulkner was under the influence. The urinalysis, completed in the hospital, showed that Faulkner tested positive for Ativan and opiates. While an assessment was not completed that would show the exact amount of these substances in Faulkner’s system, the urinalysis did show the presence of these substances. The evidence of Faulkner’s erratic and dangerous driving established that she was driving negligently and that such driving resulted in Dover’s death. Several witnesses testified that Faulkner seemed dazed and confused after the accident. The coroner determined the cause of death was blunt trauma to the chest, a result of the head-on collision. Other witnesses testified to seeing Faulkner moments before the collision, and stated that she was swerving in and out of lanes and even swiped the side of another’s trailer.

¶ 14. When we consider the trial court’s denial of the motion for a judgment notwithstanding the verdict, we find that the evidence shows beyond a reasonable doubt that Faulkner committed the act charged, and that she did so under such circumstances that every element of the offense existed. Accordingly, we find no error in the denial of the motion for a judgment notwithstanding the verdict. Further, when we consider the trial court’s denial of the motion for a new trial, we do not find that the verdict was so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Accordingly, we find no error in the denial of the motion for a new trial.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE CAUSING DEATH AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $500 FINE AND $200 TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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


text:
    Carol Lynn WARD, Appellant/Cross-Appellee v. Wilmer Keith WARD, Appellee/Cross-Appellant.
    No. 2012-CA-01468-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2014.

      Thomas Wright Teel, Biloxi, attorney for appellant.
    Dean Holleman, Haley Lynn Zelenka, attorneys for appellee.
    Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Lynn and Keith Ward agreed to a divorce on the ground of irreconcilable differences. They submitted to the chancellor the issues of spousal support, child support, division of assets, and attorney’s fees. Lynn now appeals the chancellor’s awards, and Keith cross-appeals. We find no error and affirm.

FACTS

¶ 2. Lynn and Keith were married on September 30, 1995, in Harrison County, Mississippi. At the time of the marriage, they lived in Long Beach, Mississippi. They moved to Anchorage, Alaska, in 1996, and then to Gulfport, Mississippi, in July 1999. During their marriage, Keith was employed with Federal Express as a pilot. He had served with the United States Air Force from April 1988 to June 2008. Lynn was a homemaker. In 1999, their first child, Logan, was born, and in 2001, their second child, Jackson, was born. In 2009, Jackson was diagnosed with type 1 diabetes.

¶ 3. In the spring of 2010, Keith filed for divorce. A trial was held in September 2010, and the chancellor issued his final judgment in January 2012. Keith filed a motion for reconsideration, and the chancellor issued a new judgment in August 2012. Both judgments are discussed in detail below.

A. January 2012 Judgment

¶ 4. The chancellor addressed property located in Kona, Hawaii. The chancellor found that the property was titled only in Keith’s name, although he had purchased it in 2004 with a friend. Keith stated at trial that he had paid $250,000 for the property and sold it for $145,000. His Rule 8.05 financial statement, filed in 2010, showed the property to have a mortgage of $192,000. Keith testified that Lynn knew of the Kona property, but Lynn denied any knowledge of this property. Keith admitted that Lynn found out about the property after she overheard him discuss the property while on the phone. The property also included a tax loss of $47,000. The chancellor found that the deficient balance on this property was Keith’s sole responsibility. The chancellor also found that because the debt on this property solely belonged to Keith, it was only fair that he should be able to claim the tax benefit of the loss exclusively.

¶ 5. The chancellor also addressed FNS LLC, a failed pizza restaurant that Keith had opened in Germantown, Tennessee, in 2006. Keith had borrowed $250,000, with a business partner, to finance this operation. He also borrowed another $150,000 from his mother, Lynn Bates (“Bates”). Lynn testified that she had no knowledge of these transactions. Keith admitted that Lynn did not know about FNS at the time of its formation. But Lynn admitted that she attended FNS’s grand opening. Keith argued that because Lynn attended the grand opening, she should be liable for one-half of FNS’s deficiency. Lynn claimed that FNS had a loss value for tax purposes of $384,894, which Keith was able to claim as an annual tax loss. On his statement of liabilities, Keith showed a debt of $160,000 to Bates. The chancellor found that FNS debt belonged exclusively to Keith, as did the claim of its tax loss.

¶ 6. The chancellor found that Keith had a 401 (k) with Vanguard valued at $350,000, a Fedex Corporation employee pension plan valued at $245,507.73, and a pilot’s pension plan valued at $157,591.21. Because these were accumulated after the marriage, the chancellor executed a qualified domestic-relations order on each fund, which conveyed to Lynn a one-half interest in each. Lynn was awarded one-half of 15/20ths of Keith’s military-retirement benefits.

¶ 7. Finally, the chancellor found both parties at fault for the dissolution of the marriage, and awarded Lynn alimony of $4,000 a month.

B. August 2012 Judgment

¶ 8. Based on Keith’s motion for reconsideration, the chancellor modified his original judgment. In this judgment, the chancellor found Lynn partially responsible for the debts incurred in the Kona property and the FNS investment. Because Lynn had little income at that time, the chancellor required that Lynn forfeit any interest in Keith’s 401 (k) and deferred-compensation plan due to her share in the investments debt. The chancellor found that Keith did not commit waste by investing in the Kona property and FNS, and that to force him to bear the responsibility solely would not be fair. Finally, the chancellor found Lynn responsible for the dissolution of the marriage, citing her alcohol abuse, and lessened her alimony award to $2,500.

¶ 9. Lynn now argues on appeal that the chancellor erred in its Ferguson and Armstrong analyses. Specifically, Lynn asserts that the chancellor did not correctly consider Keith’s waste of marital assets, and the chancellor incorrectly lowered Lynn’s periodic-alimony award. Keith cross-appeals, and argues that the chancellor erred in his calculation of Keith’s Air Force retirement.

STANDARD OF REVIEW

¶ 10. “This Court will not reverse a chancellor’s decision unless the chancellor’s findings are clearly erroneous [or] manifestly wrong, or the chancellor applied an incorrect legal standard.” Byrd v. Byrd, 100 So.3d 443, 447 (¶ 5) (Miss.2012) (citing Pearson v. Pearson, 761 So.2d 157, 162 (¶ 14) (Miss.2000)). “The chancellor’s ruling will be upheld if supported by substantial credible evidence.” Id. (citing Carrow v. Carrow, 642 So.2d 901, 904 (Miss.1994)). Additionally, “[c]hancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record.” Henderson v. Henderson, 757 So.2d 285, 289 (¶ 19) (Miss.2000) (citing Hammett v. Woods, 602 So.2d 825, 827 (Miss.1992)).

ANALYSIS

I.Equitable Division of Marital Property

¶ 11. Lynn argues that the chancellor erred when he divided the marital assets, because he did not allocate the waste of assets to Keith. Lynn contends that Keith is solely responsible for the waste of assets, because he made financial investments secretively and excluded her from financial decisions.

¶ 12. To support this contention, Lynn points to evidence that she never saw the Kona property and that her name was not on the title to the property. Additionally, she never knew of this property until she overheard Keith discuss the existence of the property while on the phone one day. Further, Lynn argues that because she had no knowledge that Keith was opening FNS, and because she was not listed as an owner or incorporator of it, FNS’s waste should be attributed to Keith.

¶ 13. Chancellors apply the Ferguson factors to marital property to make an equitable distribution of the property. Chancellors consider:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
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;
3. 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.

¶ 14. One factor a chancellor considers in dividing marital assets is the dissipation of assets. See Childs v. Childs, 806 So.2d 273, 275 (¶ 12) (Miss.Ct.App. 2000). Lynn asserts that Keith’s financial decisions amounted to great risk, and as such, a waste of assets. Thus, Lynn contends that the chancellor erred in not allocating these wastes to Keith.

¶ 15. In the August 2012 judgment, the chancellor found that neither party expended nor disposed of marital assets. The chancellor recognized that Lynn had reaped the benefit of one-half of a $54,000 tax refund based in part on the loss Keith incurred in FNS. Additionally, Lynn had left all financial decisions up to Keith. Thus, Lynn was partially responsible for the debts incurred in the Kona property and the FNS investment. Because Lynn had little income at that time, the chancellor required that Lynn forfeit any interest in Keith’s 401 (k) and deferred-compensation plan due to her share in the investments debt. The chancellor found that Keith did not commit waste by investing in the Kona property and FNS, and to force him to bear the responsibility solely would not be fair.

¶ 16. Here, the chancellor made an adequate application of the Ferguson factors. The chancellor discussed all eight factors addressed in Ferguson to determine that an amendment of the original order was necessary. In doing so, the chancellor included in his application of the Ferguson factors the possibility of past waste of marital assets. The chancellor found that neither party “expended or disposed of marital assets.”

¶ 17. Accordingly, we find that the chancellor’s August 2012 judgment is supported by substantial evidence and is not manifestly wrong or clearly erroneous. Thus, we find no error.

II. Periodic-Alimony Award

¶ 18. Lynn asserts that the chancellor erred when he lowered the periodic-alimony award from $4,000 to $2,500, because of the great disparity of assets and income between Lynn and Keith, the decrease in Lynn’s standard of living, and the failure to follow Mississippi case law in regard to spousal support.

¶ 19. In his January 2012 judgment, the chancellor granted Lynn periodic alimony of $4,000 per month. In August 2012, the chancellor issued a new judgment, and lowered the periodic-alimony payments to $2,500 per month.

¶ 20. In deciding whether alimony is appropriate, chancellors apply the Armstrong factors. This Court will not reverse the chancellor’s judgment if the chancellor applied the proper legal standard. Armstrong, 618 So.2d at 1280. The Armstrong factors are as follows:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Id.

¶ 21. Here, after he divided the marital property, the chancellor applied the Armstrong factors to determine whether alimony should be awarded. The chancellor applied each factor and made a thorough analysis of each factor. After the motion to reconsider was filed, in his August 2012 judgment the chancellor lowered the original alimony award from the January 2012 judgment. The biggest difference between the chancellor’s analysis in January 2012 judgment and the August 2012 judgment was the allocation of fault or misconduct. Initially, fault or misconduct was attributed to both parties; in the August 2012 judgment, the chancellor attributed fault or misconduct to Lynn’s alcohol abuse.

¶ 22. The chancellor was presented with evidence to substantiate his decision. We find that he applied the correct legal standard. Therefore, we find no error as to this issue.

III. Calculation of Keith’s Retirement Account

¶ 23. Keith argues that the chancellor erred in his calculation of Keith’s retirement from the Air Force. Keith asserts that Lynn is entitled to only one-half of the retirement obtained during the marriage. He contends that any retirement earned outside of the marriage is not attributable to the marriage and should not be included in the marital property.

¶ 24. Keith joined the Air Force in April 1988, and married Lynn in 1995. He left active duty for the reserves in September 1991, and left the reserves in June 2008. From 1988 to 1995, Keith accumulated 2,120 retirement points. From 1995 to 2008, Keith accumulated 1,197 retirement points, totaling 3,317 retirement points. This means that 1,197 retirement points, or 36.0868% of the total retirement points, are attributed to the duration of the marriage. Keith argues that Lynn is entitled to one-half of 36.0868%, or 18.0434%, of his retirement points.

¶ 25. The chancellor determined that the marital portion of Keith’s Air Force retirement was fifteen-twentieths (15/20ths), or 75%, attributing 37.5% of the retirement points to Lynn. While Lynn and Keith were married only thirteen of the twenty years Keith was in the Air Force, there were two extra years (from 2008 to 2010) after Keith left the Air Force before he filed for divorce. Keith asserts that Lynn should have received a lesser amount of his retirement than the chancellor awarded, because the majority of Keith’s retirement points were earned pri- or to 1995.

¶ 26. In making an equitable division of property, chancellors are not required to make an equal division. Cham- blee v. Chamblee, 687 So.2d 850, 863-64 (Miss.1994). Chancellors are to use fairness as the “prevailing guideline in marital division.” Ferguson, 639 So.2d at 929. In his August 2012 judgment, the chancellor found that “all of the properties, real and personal, which the parties own, whether titled jointly or in only [a] party’s name, are marital assets,” except “the military retirement which was accumulated prior to the marriage.” In looking at the retirement points accumulated during the marriage, we find that the chancellor had more than one option when he calculated an amount. Keith asks us to give Lynn less of his retirement, because he earned most of the retirement before he married her. However, the chancellor made his calculations by dividing the fifteen years of their marriage by the twenty years he served with the Air Force and dividing by one-half. We do not find that the chancellor made an error in these calculations.

¶ 27. Accordingly, we find that the chancellor did not err in his application of the Ferguson and Armstrong factors, nor did he err in his calculation of Keith’s Air Force retirement account.

¶ 28. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT/CROSS-APPEL-LEE.

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

      . UCCR8.05.

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

        . Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993).