text:
    Spencer O’Brian LAWRENCE a/k/a Spencer Lawrence a/k/a Spencer O. Lawrence, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01887-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.
    Rehearing Denied Aug. 27, 2013.
    Certiorari Denied Oct. 24, 2013.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. Spencer Lawrence was convicted in the Jackson County Circuit Court of capital murder for the death of Jermaine Kelly. He was sentenced to life imprisonment ■without the possibility of parole. On appeal, Lawrence raises the following issues: (1) whether the trial court should have suppressed evidence gathered from Lawrence’s cell phone and Lawrence’s statements made to one of the police officers; (2) whether Lawrence’s rifle and photographs of the rifle were more prejudicial than probative; (3) whether Lawrence was denied a fair trial based on comments made in the State’s closing argument; and (4) whether the verdict is contrary to the weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. On October 4, 2009, Kelly was at his father’s house in Moss Point, Mississippi, with his cousin, Donta Davenport. Kelly was supposed to pick up his father from the hospital the following day. During the early morning hours of October 5, 2009, two armed men entered the home, and Kelly was shot seven times in the chest. Kelly died immediately. Officers arrived around 5:45 a.m. to discover Kelly’s body in a room that had been ransacked. The officers also found a cell phone in the backyard.

¶3. Davenport testified that he fell asleep on the couch and was awakened by two men kicking in the back door. He saw two men enter the home, one with a handgun and the other with an SKS or AK-47 “assault rifle.” Both men demanded money from Davenport and Kelly. Davenport complied, handing the men all of his money. He then ran out of the house as the two men assaulted Kelly. Davenport testified that, as he was running out of the house, he heard several gunshots. Davenport ran towards Magnolia Street and was chased by a dark-colored sports utility vehicle (SUV). He escaped and talked to the police later that day. Davenport stated that the man holding the rifle was taller than the man holding the handgun.

¶ 4. Agent Louie Miller of the Pascagou-la Police Department was called in to assist in the homicide investigation. Agent Miller obtained a search warrant for the cell phone found in the backyard and traced it to Jermaine Sims. Agent Miller also discovered that Sims owned a dark-colored SUV. Lawrence and Myron Johnson became suspects when an inmate from the Perry County jail contacted the FBI regarding a conversation he recently had with Lawrence. During his interview, the inmate provided specific details of the crime, including who was involved and what each person took from the scene. The inmate stated that Lawrence admitted to shooting Kelly with a rifle.

¶ 5. Agent Miller informed the George County Sheriffs Department to be on the lookout for a dark SUV. On November 25, 2009, Lawrence was arrested without a warrant in George County. He was driving a dark-colored Jeep Cherokee. At the time of his arrest, Lawrence was out on bond on charges of kidnaping and armed robbery. Lawrence was subsequently held in George County on a contempt-of-court warrant. The police seized Lawrence’s cell phone and found that the phone number was one of the phone numbers listed in Sims’s cell-phone records from the night of the homicide. Through additional search warrants, Agent Miller obtained phone records for Lawrence and Johnson. The records obtained from Lawrence’s phone contained a photo of an AK-47. Further investigation revealed that the photo of the gun was taken in Lawrence’s bedroom. The gun was later brought to the police by Lawrence’s mother.

¶ 6. Agent Miller interviewed Lawrence on three different occasions: on the day of the arrest, on November 30, 2009, and on December 2, 2009. Lawrence was Miran-dized each time he was questioned. On the day of his arrest, Lawrence denied being involved in the crime. He later changed his story to say that he was with Sims and Johnson the night Kelly was shot. However, Lawrence stated that he remained in the car during the incident. His testimony at trial was the same as his interview. He denied any participation in the robbery and the shooting of Kelly.

¶ 7. At trial, the State called Martin Joe, who testified to Lawrence’s involvement in the murder of Kelly. Joe, an inmate incarcerated in George County, had been placed in a cell with Lawrence in January 2010. Joe stated that Lawrence told him that, on the night of Kelly’s murder, he, Sims, and Johnson were going to Moss Point to rob Kelly.

¶ 8. The State also called Johnson, who testified to the following: on the night of the shooting, he rode with Sims and Lawrence from Mobile, Alabama, to Moss Point to buy marijuana. On their way to Moss Point, the men picked up Johnson’s cousin, James Johnson. Johnson testified that Sims and Lawrence went into the house first, and when he entered he saw Lawrence pointing a long gun at Kelly. Johnson also stated that, after he saw the guns, he rushed back to the SUV, and his cousin jumped into the front seat to drive. As they were trying to leave, Lawrence and Sims jumped into the vehicle. From there, the four men went to James Johnson’s house, dropped James off, and then drove back to Mobile. Johnson stated that, at some point during the night, he and Sims both lost their cell phones. Johnson also testified that after he was arrested, he was incarcerated in the same detention center as Lawrence, and during that time, Lawrence admitted to shooting Kelly.

¶ 9. At the close of trial, the jury returned a verdict finding Lawrence guilty of capital murder. Lawrence was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections without the possibility of parole.

DISCUSSION

1. Motion to Suppress

A. Invalid Stop

¶ 10. Lawrence argues for the first time on appeal that the stop was invalid. The trial court denied Lawrence’s motion to suppress, and that motion never challenged the stop of the vehicle, but, rather, the validity of his arrest. “An objection at trial on one or more specific grounds constitutes a waiver of all other grounds.” Spicer v. State, 921 So.2d 292, 305 (¶ 22) (Miss.2006) (citing Doss v. State, 709 So.2d 369, 379 (Miss.1996)). Therefore, Lawrence is proeedurally barred from raising this issue on appeal.

¶ 11. Notwithstanding the procedural bar, Lawrence’s argument is without merit. “Police officers may detain a person for a brief, investigatory stop consistent with the Fourth Amendment when the officers have ‘reasonable suspicion, grounded in specific and articulable facts’ that allows the officers to conclude the suspect is wanted in connection with criminal behavior.” Eaddy v. State, 63 So.3d 1209, 1213 (¶ 14) (Miss.2011) (quoting Walker v. State, 881 So.2d 820, 826 (¶ 10) (Miss.2004)). Grounds for reasonable suspicion to make an investigatory stop generally come from an officer’s observation or an informant’s tip. Id. at (¶ 15). “An informant’s tip may provide reasonable suspicion if accompanied by some indication of reliability,” including an “officer’s independent investigation of the informant’s information.” Id. (citation omitted); see also McClellan v. State, 34 So.3d 548, 552 (¶¶ 9-10) (Miss.2010) (finding a valid investigatory stop where officers made the stop after obtaining “somewhat vague” information from an informant). In determining whether there is reasonable suspicion or probable cause for an investigatory stop, our review is de novo. Eaddy, 63 So.3d at 1212 (¶ 11).

¶ 12. Lawrence first' became a suspect after an inmate from the Perry County jail contacted the FBI. The inmate gave Agent Miller a description of the crime based on his conversation with Lawrence. The inmate was able to specify the amount of money and drugs stolen during the robbery. Agent Miller stated that he and his officers found the inmate’s testimony to be credible and reliable based on its' consistency with the evidence. Based on this information, the officers were looking for a black vehicle that belonged to Sims.

¶ 13. Officer Robert Lambeth of the Moss Point Police Department testified that on November 25, 2009, he received a phone call from an officer in George County about a vehicle matching Sims’s dark SUV. He went to George County and saw that- Lawrence was in possession of Sims’s SUV. After Lawrence was arrested, the vehicle was inventoried, and a search warrant was obtained for the vehicle and Lawrence’s cell-phone records. Whether reasonable suspicion exists is a matter judged from the totality of the circumstances. Alabama v. White, 496 U.S. 325, 328-29, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). We conclude that, based on the totality of the circumstances, the officers had reasonable suspicion to stop Lawrence. Therefore, his argument that the stop was invalid is without merit.

B. Delay of Appearance

¶ 14. Lawrence was arrested on November 25, 2009. He did not have an appearance until five days later. Lawrence argues that the confession obtained during the interim was a result of his delayed hearing, which is cause for reversible error. We disagree.

¶ 15. Uniform Rule of Circuit and County Court Practice 6.03 states that “[ejvery person in custody shall be taken, without unnecessary delay and within 48 hours of arrest, before a judicial officer or other person authorized by statute for an initial appearance.” Our supreme court has stated, however, that “[a] violation of Rule 6.03 alone will not result in the suppression of evidence or reversible error where the defendant was informed of his rights and made a knowing and voluntary waiver.” Jones v. State, 841 So.2d 115, 132 (¶ 47) (Miss.2003). The record reveals that Lawrence was Mirandized before each interview and was aware of his rights. Therefore, we find this issue to be without merit.

2. Rifle and Photographs

¶ 16. Lawrence argues that the evidence of the rifle and the pictures of the rifle were more prejudicial than probative. The admission of relevant evidence is left largely to the discretion of the trial judge. Ferguson v. State, 95 So.3d 1279, 1281 (¶ 10) (Miss.Ct.App.2012) (citation omitted). Mississippi Rule of Evidence 401 defines “relevant evidence” as “evidence having any tendency to make the existence of fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

¶ 17. Lawrence points to the fact that the firearm expert was unable to say whether the projectiles and cases from the crime scene were fired from the rifle given to the police by Lawrence’s mother. However, the expert also testified that the cases and shells were of the same class as Lawrence’s rifle. The photograph of the rifle and the actual rifle matched the description of the murder weapon. Further, the evidence showed that the picture of the rifle was taken in Lawrence’s bedroom before the shooting. The rifle went missing after the shooting, and Lawrence’s mother later handed it over to the police. There is no question that the admission of this evidence made it more probable that Lawrence committed the crime. Therefore, we find that the judge was within his discretion to allow the rifle and photographs into evidence.

3. State’s Closing Argument

¶ 18. At the close of the trial, the prosecutor referenced the fact that he made a “deal” with Johnson in order to obtain his testimony. He then stated that the jury should not remedy his “deal” with Johnson by letting “the killer go free.” The defense objected to the prosecutor’s statements, and the prosecutor withdrew his comments and rephrased. There were no other objections.

¶ 19. In Ford v. State, 975 So.2d 859, 868 (¶ 33) (Miss.2008), our supreme court stated that while the statement “guilty people flee” may be improper in a closing argument, the defendant’s objection was sustained, and there was no request for a cautionary instruction. The court held that “where an objection is sustained, and no request is made that the jury be told to disregard the objectionable matter, there is no error.” Id. (citations omitted). The court, therefore, concluded that because the defendant had not asked the judge to admonish the jury, she was barred from raising the argument on appeal. Id.

¶ 20. In this case, the defense did not state a specific ground for objection at trial, did not pursue the objection to obtain a ruling from the trial court, and did not object after the prosecutor rephrased his statements. Therefore, we find this issue to be barred on appeal.

¶ 21. Notwithstanding the procedural bar, there was no error. Juries are presumed to follow the instructions of the trial court. Grayson v. State, 879 So.2d 1008, 1020 (¶ 32) (Miss.2004) (citation omitted). Here, the jury was properly instructed that closing arguments of counsel are not considered evidence. Therefore, this issue is without merit.

4.Weight of Evidence

¶ 22. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss.2005) (citation omitted).

¶23. Several witnesses testified to Lawrence’s involvement in the shooting of Kelly. On the day of his arrest, Lawrence was driving the SUV that had been used during the commission of the crime. The evidence showed that Lawrence was in possession of a rifle before the shooting that matched the murder weapon. Viewed in the light most favorable to the verdict, we cannot say that the evidence weighs heavily against the jury’s decision to find Lawrence guilty of capital murder. Therefore, we find this argument without merit.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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

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


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Shassidy Gail AYDELOTT and Christopher Adam Aydelott, Appellants v. Dorothy QUARTARO and Jack Quartaro, Appellees.
    No. 2011-CA-01880-COA.
    Court of Appeals of Mississippi.
    June 4, 2013.
    Rehearing Denied Oct. 22, 2013.

      Richard Shane McLaughlin, Nicole H. McLaughlin, Tupelo, attorneys for appellants.
    William C. Stennett, attorney for appel-lees.
    Before LEE, C.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. The right to grandparent visitation is purely statutory and may only be considered if the grandparent meets certain statutory criteria. The criteria in Mississippi’s grandparent-visitation statute are important. By placing limitations on who may petition for visitation, the criteria keep a grandparent’s statutory right to visitation from impermissibly encroaching on the parents’ rights to rear their children as they see fit.

¶ 2. Because we find Dorothy and Jack Quartaro failed to show they met the statutory criterion of the establishment of a viable relationship with their two granddaughters, we reverse the award of statutory grandparent visitation. But we affirm the denial of the granddaughters’ parents’ request for attorney’s fees, as the parents failed to show financial hardship would otherwise result.

Factual Background

¶ 3. Dorothy and Jack Quartaro are the parents of Shassidy Aydelott. Shassidy is married to Adam Aydelott. The Aydelotts have one daughter, Ryver, who was two at the time of the visitation hearing. Shassi-dy also has another daughter, Acelynn Sa-lazer, who was five at the time of the hearing. (Acelynn’s father, Chris Salazar, while named as a defendant in the visitation matter and served with process, did not participate and has not joined this appeal.)

¶ 4. To say the Quartaros and the Ayde-lotts do not have a good relationship is an understatement. According to the chancellor, he had “never seen so much hatred and animosity manifested.” According to Shassidy, her relationship with her mother had always been contentious — but things took a turn for the worse when her parents were divorcing and her mother accused her of taking her father’s side. (The Quartaros, whose marriage was annulled based on Jack’s bigamy, later reconciled and remarried.) But according to Dorothy, it was Adam’s joining the family that caused the rift — especially when Dorothy alerted law-enforcement officials that Adam had received stolen property.

¶ 5. Though they disagree why, neither side disputes that in 2009 the Aydelotts and Quartaros stopped speaking. And the Aydelotts cut off the Quartaros’ access to Aeelynn and only allowed the Quartaros to see Ryver one or two times right after she was born. So in September 2010, the Quar-taros petitioned to establish grandparent-visitation rights with Aeelynn and Ryver under Mississippi Code Annotated section 93-16-3 (Supp.2012). While the petition was pending, the Aydelotts decided to move from their manufactured home, located on the Quartaro’s property just fifty yards from the Quartaros’ house, into an apartment thirty-five miles away.

¶ 6. Prior to the visitation hearing, the Aydelotts petitioned for attorney’s fees under Mississippi Code Annotated section 93-16-3(4), which directs chancellors to award the parents’ attorney’s fees upon motion and prior to a visitation hearing “except in cases in which the court finds that no financial hardship will be imposed upon the parents.” Finding no such hardship would be imposed on the Aydelotts, the chancellor denied their motion.

¶ 7. After a hearing, the chancellor applied the factors from Martin v. Coop, 693 So.2d 912, 916 (Miss.1997), and determined it was in the best interest for the Quarta-ros to be awarded visitation with Aeelynn and Ryver. The chancellor then found there was “a viable relationship established to the extent that the grandparents could[.]” The chancellor awarded the Quartaros a day visit once a month for the first six months, then, after that, an overnight visit once a month.

¶ 8. The Aydelotts appeal both the grant of grandparent visitation and the denial of attorney’s fees.

Discussion

I. Grandparent Visitation

A. Purely Statutory Right

¶ 9. There is no common-law right to grandparent visitation. T.T.W. v. C.C., 839 So.2d 501, 504 (¶ 7) (Miss.2003). The right is purely statutory and may only be considered if the statutory criteria are met. Woodell v. Parker, 860 So.2d 781, 785-86 (¶ 15) (Miss.2003); In re Adoption of a Minor, 558 So.2d 854, 856 (Miss.1990). Mississippi Code Annotated section 93-16-3 permits grandparents to petition for visitation in two circumstances. The first circumstance, which is not relevant here, is when a grandparent can show his or her own child has not been awarded custody of the grandchild, has had parental rights terminated, or has died. Miss.Code Ann. § 93-16-3(1). The second circumstance is when a grandparent has shown (1) that a “viable relationship” with his or her grandchild has been established, (2) that visitation with the grandchild has been unreasonably denied by the grandchild’s parent, and (3) that visitation is in the best interest of the grandchild. Miss.Code Ann. § 93-16-3(2).

¶ 10. For the Quartaros to have the statutory right to petition for visitation, they first had to show they “had established a viable relationship” with each granddaughter. Miss.Code Ann. § 93-16-3(2)(a). Section 93-16-3(3) explains that a “viable relationship” is a relationship in which a grandparent has:

(1) “voluntarily and in good faith supported the child financially in whole or in part for a period of not less than six (6) months before filing any petition for visitation rights with the child,”
(2) “had frequent visitation including occasional overnight visitation with said child for a period of not less than one (1) year, or”
(3) “cared for [the grandchild] over a significant period of time during the • time the parent has been in jail or on military duty that necessitates the absence of the parent from the home.”

The Quartaros next had to show that “the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child[.]” Miss.Code Ann. § 93-16-3(2)(a).

¶ 11. Only by the Quartaros’ establishment of a viable relationship and unreasonable denial of visitation could the Quarta-ros reach the “polestar consideration” for statutory grandparent visitation — whether “visitation rights of the grandparent with the child would be in the best interests of the child.” Miss.Code Ann. § 93-16-3(2)(b); see T.T.W., 839 So.2d at 504 (¶ 10) (“The best interests of the child must be the polestar consideration in awarding grandparent visitation.”); see also Hillman v. Vance, 910 So.2d 43, 47 (¶ 11) (Miss.Ct.App.2005) (holding that, because chancellor found denial of visitation was reasonable, he could have disposed of the issue without conducting best-interest analysis under Martin). In Martin v. Coop, the Mississippi Supreme Court set forth ten factors for chancellors to use when determining a child’s best interest in the context of grandparent visitation. Martin, 693 So.2d at 916.

B. Constitutionality

¶ 12. Both the narrowing criteria of section 93-16-3 and the Martin factors keep Mississippi’s grandparent-visitation statute from running afoul of the constitutional rights of parents to rear their children as they see fit. Zeman v. Stanford, 789 So.2d 798, 803 (¶ 18) (Miss.2001). Since the United States Supreme Court’s decision Troxel v. Granville, 530 U.S. 57, 66-67, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)—which struck down the state of Washington’s third-party child-visitation statute because it interfered with parents’ fundamental right to care, custody, and control of their children — Mississippi’s grandparent-visitation statute has been often challenged as violating that same fundamental right. E.g., Smith v. Wilson, 90 So.3d 51, 58-59 (¶¶ 22-24) (Miss.2012); Woodell, 860 So.2d at 785 (¶¶ 12-13); Stacy v. Ross, 798 So.2d 1275, 1279 (¶¶ 15-17) (Miss.2001); Zeman, 789 So.2d at 802-03 (¶¶ 16-19). In all those cases, our supreme court has upheld Mississippi’s statute as constitutional because, “[ujnlike the statute in Troxel, Mississippi’s grandparent-visitation statute is narrow, allowing grandparents (not any person) to seek visitation only under certain circumstances.” Smith, 90 So.3d at 58 (¶ 22) (emphasis added).

¶ 13. Indeed, in Troxel, “the [United States] Supreme Court distinguished Mississippi as being among those states which expressly provide limitations [.]” Stacy, 798 So.2d at 1279 (¶ 17) (emphasis added) (citing Troxel, 530 U.S. at 71, 120 S.Ct. 2054). And it is these “limitations imposed by this Court in its interpretation of [section] 93-16-3 [that] clearly result in the ‘narrower reading’ that was lacking in Troxel.” Zeman, 789 So.2d at 803 (¶ 18). Thus, it is important for a grandparent to show he or she meets the “certain circumstances” of section 93-16-3(2), not only to establish his or her statutory right to visitation, but also to ensure that the parents’ constitutional right “to care, custody, and control of their children” is not being violated. Stacy, 798 So.2d at 1279 (¶ 17) (citing Troxel, 530 U.S. at 65, 120 S.Ct. 2054).

C. The Quartaros’ Visitation Award

¶ 14. In this case, the “certain circumstance” the chancellor focused on was his finding that, based on the Martin factors, grandparent visitation would be in the best interest of Acelynn and Ryver. See Miss.Code Ann. § 93-16-3(2)(b). While the grandchildren’s best interest is the “polestar consideration,” it is not the only consideration.

¶ 15. The other two circumstances that had to be present to award statutory-grandparent visitation were (1) the Quar-taros’ establishment of a viable relationship with each granddaughter and (2) the Aydelotts’ unreasonable denial of grandparent visitation. Miss.Code Ann. § 93-16 — 3(2)(a). We find the chancellor’s findings on these criteria problematic for two reasons.

1. Rule 36 Admissions

¶ 16. First, the fact the Quartaros had not established a viable relationship had been “conclusively established” through the Quartaros’ responses to the Aydelotts’ requests for admissions made under Rule 36 of the Mississippi Rules of Civil Procedure. The Aydelotts had requested both Dorothy and Jack admit they “have not provided financial support for the minor children.” Both gave the same response and “admit[ted] the allegations contained in Request for Admission No. 12 due to the fact that [their] daughter throws the things away that the Plaintiff buys for the children.” The Quartaros were also asked to admit they “have not visited with the minor children in the last two years” and “have never had frequent visitation with the minor children which included overnight visits for a period of at least one year.” They also admitted they had never had frequent visitation, because Shassidy would not let them. Under Rule 36(b), “[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.” The Quar-taros never moved to have their admissions withdrawn or amended. So the fact they had never contributed financially to or had frequent visitation with their granddaughters — and thus had never established a viable relationship — had been conclusively established. See In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 433 (¶33) (Miss.2009); Boyd v. Boyd, 83 So.3d 409, 416 (¶ 21) (Miss.Ct.App.2011).

¶ 17. Further, “[a]ny admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence[.]” Gilcrease v. Gilcrease, 918 So.2d 854, 858 (¶ 5) (Miss.Ct.App.2005). Here, the chancellor seemingly ignored the admissions and permitted contradictory testimony that the Quartaros had contributed financially — by allowing Shassidy’s mobile home to be placed on their land — and had frequently visited Acelynn prior to the rift. This was clearly error. While Rule 36 gave the chancellor discretion to permit withdrawal or amendment of the admissions — and is silent about how and when the Quartaros could move for withdrawal or amendment — the fact remains that the Quartaros never moved for withdrawal or amendment, so the lack of financial contribution or frequent visitation were deemed admitted. See Boyd, 83 So.3d at 416-17 (¶¶ 21-22).

¶ 18. We acknowledge that, in the context of child custody, this court has viewed the error of failing to recognize an admitted matter as established and permitting contradictory evidence as merely procedural. Gilcrease, 918 So.2d at 859 (¶¶ 8-9). In Gilcrease, when a mother admitted, under Rule 36, that it was in her child’s best interest that custody be awarded to the father, this court found the chancellor’s refusal to deem the best-interest issue admitted was merely a procedural error “made with the proper result in mind.” Gilcrease, 918 So.2d at 859 (¶ 9). Because “[c]hild custody is a judicial determination” and not “merely [an] evidentiary matter,” this court held that it would not reverse based on the failure to recognize matters deemed admitted under Rule 36 “absent some other mistake in the chancellor’s substantive decision[-]making process.” Gilcrease, 918 So.2d at 859 (¶¶ 8-9).

¶ 19. Grandparent visitation is different than child custody, as there are other evidentiary considerations besides the child’s best interest that must be considered — namely, whether the grandparent has produced sufficient evidence to show he or she is authorized under the statute to be awarded visitation. Still, while “Rule 36 is to be applied as written, ... ‘it is not intended to be applied in Draconian fashion.’ ” Leverock, 23 So.3d at 432 (¶ 28) (quoting DeBlanc v. Stancil, 814 So.2d 796, 801-02 (¶ 26) (Miss.2002)). Mindful of this tenet, even if we deemed the chancellor’s failure to recognize the Quartaros’ admissions under Rule 36 as merely procedural, we still must reverse due to a second, substantive error — the chancellor’s finding that a viable relationship may be established based on the grandparents’ desire to establish a relationship with their grandchildren.

2. Interpretation of a ‘Viable Relationship

¶ 20. At trial, the Quartaros were given the opportunity to “interpret” their Rule 36 admissions — and to the extent they were not trying to contradict their admissions, we find nothing improper with allowing them to explain their responses. The Quartaros testified they would have established a viable relationship through financial contributions and frequent visitation with Acelynn and Ryver, had the Ay-delotts let them. The chancellor clearly relied on this testimony to find the Quarta-ros had established a viable relationship with both granddaughters “to the extent that they could.” In other words, it was not the establishment of a viable relationship but rather the desire to establish a viable relationship that weighed heavily in the chancellor’s finding the Quartaros were statutorily entitled to grandparent visitation. We find weighing the Quarta-ros’ wishes into whether there was a viable relationship was error.

¶ 21. The grandparent-visitation statute' is clearly limited to grandparents who can show they already had an established viable relationship, which was unreasonably cut-off by the parents. See Miss.Code Ann. § 93—16—3(2)—(3); see also T.T.W., 839 So.2d at 506 (¶15) (holding that a grandmother who, despite her attempts, had not seen her grandchild for three years was entitled to visitation because, prior to being cut off, she had established a viable relationship). We find that broadening the limiting criterion of a “viable relationship” to grandparents who wish they had a viable relationship would render the grandparent-visitation statute unconstitutional because it would permit any grandparent to petition for visitation — and not just those who meet the narrow circumstances under the statute. See Smith, 90 So.3d at 58 (¶ 22) (“Mississippi’s grandparent-visitation statute is narrow, allowing grandparents (not any person) to seek visitation only under certain circumstances.”). By limiting the right to petition to only those grandparents who were initially permitted by the parents of their grandchildren to establish a viable relationship but later were unreasonably cut off by those same parents, the statute properly acknowledges the constitutional rights of parents to rear their children as they see fit. Zeman, 789 So.2d at 803 (¶ 18) (citing Troxel, 530 U.S. at 67, 120 S.Ct. 2054). For example, in Stacy, the parents stipulated they had allowed a viable relationship to be established because they relied on the grandparents’ childcare and financial support of the grandchildren. Stacy, 798 So.2d at 1277 (¶ 6), 1280 (¶ 20). But the award of grandparent visitation was nonetheless reversed because there was no finding the parents, after their relationship with the grandparents had de-' teriorated, had unreasonably denied visitation. Id. at 1280 (¶ 28), 1282 (¶¶ 29-30).

¶ 22. Here, the chancellor never explicitly found the Aydelotts had unreasonably denied the Quartaros visitation — though such a finding can be inferred from the chancellor’s admonition of Shassidy for not letting the Quartaros see her children. From this admonition, it appears the chancellor thought the Quartaros had a right to have a relationship with their grandchildren simply because they were grandparents — and not because they met the criteria of section 98 — 16—8(2)(a). And he thought denial of visitation was unreasonable simply because grandchildren should have a relationship with their grandparents. But the question is not whether the parents denied visitation — it is whether such a denial was “unreasonable.” Hillman, 910 So.2d at 47 (¶¶ 11-12) (affirming denial of grandparent visitation because parent’s denial of visitation was reasonable under the circumstances).

¶ 28. “The determination whether parents are unreasonable in denying visitation in whole or part to grandparents is not a contest between equals. Parents with custody have a paramount right to control the environment, physical, social, and emotional, to which their children are exposed.” Stacy, 798 So.2d at 1280 (¶ 23) (citations omitted). In implicitly finding the Aydelotts unreasonably denied visitation, the chancellor failed to give deference to the Aydelotts’ paramount right to control their children’s environment and instead treated the parents and grandparents as equals.

¶ 24. “The constitutionality of any standard for awarding visitation ‘turns on the specific manner in which that standard is applied.’ Stacy, 798 So.2d at 1279 (¶ 18) (quoting Troxel, 530 U.S. at 73, 120 S.Ct. 2054). Because the chancellor did not give the grandparent-visitation statute the necessary “ ‘narrower reading that was lacking in Troxel,” we find his explicit finding of a viable relationship and implicit finding of unreasonable denial of visitation fail to pass constitutional muster. See Zeman, 789 So.2d at 803 (¶ 18).

¶25. We find the procedural error of not deeming the failure to establish a viable relationship as having been admitted, combined with the constitutional error of interpreting the grandparent-visitation statute too broadly, requires that we reverse the award of grandparent visitation. As in Stacy, “with an interest in judicial economy and conservation of the resources of the parties” — as well bringing finality to a highly contentious dispute — we render judgment in favor of the Aydelotts. See Stacy, 798 So.2d at 1282 (¶ 30).

II. Attorney’s Fees

¶ 26. We affirm, however, the denial of the Aydelotts’ request for attorney’s fees. Under the grandparent-visitation statute, “[t]he court shall on motion of the parent or parents direct the grandparents to pay reasonable attorney’s fees to the parent or parents in advance and prior to any hearing, except in cases in which the court finds that no financial hardship will be imposed upon the parents.” Miss.Code Ann. § 93-16-3(4). The question whether the Aydelotts were entitled to attorney’s fees or the no-financial-hardship exception applied is one “entrusted to the sound discretion of the [chancellor].” Zeman, 789 So.2d at 806 (¶ 30) (citations omitted).

¶ 27. Here, based on evidence the Ay-delotts’ combined income and expenses left sufficient disposable income for travel and entertainment and extra vehicles, the chancellor found no financial hardship would result from their having to pay their own attorney’s fees. We find no abuse of discretion in this finding. Further we note the fact that we are reversing the outcome at the chancery-court levél does not impact whether attorney’s fees should be awarded. Section 93-16-3(4) provides the court may direct the payment of attorney’s fees when financial hardship would arise “regardless of the outcome of the petition.”

¶ 28. THE JUDGMENT OF THE ITAWAMBA COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL SHALL BE DIVIDED EQUALLY BETWEEN THE APPELLANTS AND THE APPELLEES.

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


author: MAXWELL, J„ CARLTON, J.,

text:
    Joseph EDWARDS a/k/a Joey Edwards a/k/a Joey A. Edwards a/k/a Joseph A. Edwards, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KM-00386-COA.
    Court of Appeals of Mississippi.
    Oct. 22, 2013.

      Jim Waide, Rachel Pierce Waide, Tupe-lo, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J„

for the Court:

¶ 1. At the close of Joseph Edwards’s trial for simple assault on a law enforcement officer, the State — over Edwards’s objection — requested and was granted an instruction on misdemeanor resisting arrest as a lesser-included offense. Edwards was convicted of resisting arrest and, on appeal, argues the judge erred in giving what was actually a lesser-wow-included offense instruction — which the State is not entitled to request.

¶ 2. While this court and the supreme court have previously deemed resisting arrest a lesser-included offense of simple assault on a law enforcement officer, Edwards argues those cases were wrongly decided. He asks that we strictly compare the elements of the two statutory crimes without considering the particular facts of the charged assault. But the Mississippi Supreme Court instructs that we not consider the elements of the crimes in isolation but instead in the context of “the circumstances” under which they were allegedly committed.

¶ 3. Because the State offered proof Edwards swung wildly and struck an officer who was arresting him, the elements of resisting arrest were necessarily included in those of simple assault on a law enforcement officer. Under these circumstances, Edwards could not have committed assault without resisting arrest. So we find the trial judge did not abuse his discretion in giving the instruction. We also find no error in the trial judge admitting the recording of the 911 call that precipitated Edwards’s arrest. We affirm.

Background Facts

¶ 4. On March 22, 2010, Gina Edwards called 911 to report a violent domestic dispute with her estranged husband, Edwards. Two Tupelo Police Department officers responded and found Edwards on the next-door neighbor’s porch. One officer detained Edwards while the other, Officer Johnny Bruce, interviewed Gina. Gina was emotional as she described the struggle with Edwards and showed Officer Bruce the wrecked interior of her home.

¶ 5. When Officer Bruce told Edwards he was arresting him for domestic violence, a scuffle broke out between the two. Officer Bruce testified that Edwards began violently swinging, striking him in the face. At this point, Officer Bruce punched back, busting Edwards’s lip, which required medical attention. The officers arrested Edwards for domestic violence and simple assault on a law enforcement officer.

¶ 6. Gina ultimately dropped the domestic-violence charge. But the State indicted Edwards for simple assault on a law enforcement officer, a felony. See Miss.Code Ann. § 97 — 3—7(1 )(b) (Rev.2006). At the close of trial, the State requested and was granted an instruction on the lesser misdemeanor crime of resisting arrest. See Miss.Code Ann. § 97-9-73 (Rev.2006). And the jury found Edwards guilty of resisting arrest. The circuit judge sentenced Edwards to six months in the custody of the Lee County Sheriffs Department and imposed a $500 fine. However, the judge suspended the jail sentence on the condition Edwards be evaluated for and complete a mental-health treatment program.

¶ 7. Edwards timely appealed.

Discussion

I. Resisting-Arrest Instruction

¶ 8. The main focus of Edwards’s appeal is on the resisting-arrest instruction, given at the State’s request. As he sees it, resisting arrest is not a lesser-included offense of simple assault on a law enforcement officer. So he insists the court erred in granting the State a lesser-crime instruction. He asks that we reverse his conviction.

A. Lesser-included Offense

¶ 9. Under Mississippi law, the State or defendant may request and obtain a lesser-included offense instruction. Buchanan v. State, 84 So.Bd 812, 815 (¶ 8) (Miss.Ct.App.2011). The “principal requirement” for granting the instruction is that there is “evidence to support it.” Id. Here, Edwards does not argue the “principal requirement” of evidentiary support was not met. Instead, he suggests the instruction really charged a lesser-non-included offense — not a lesser-included offense. And since only the defendant, not the State, can obtain an instruction on a lesser-non-included offense, the judge erred in not sustaining his objection to this instruction.

¶ 10. To appreciate Edwards’s argument, the distinction needs to be made between lesser-included and lesser-non-included offenses. While both categories of offenses carry a lesser penalty than the offense for which the defendant was indicted, traditionally, with a lesser-included offense, all elements of the lesser crime are included in the greater crime’s elements. Under this elements-based test, the defendant “could not be guilty of the offense for which he is indicted without at the same time being guilty of the lesser[-]included offense.” Payton v. State, 642 So.2d 1328, 1334 (Miss.1994). Because the greater offense contains all elements of the lesser-included offense, an indictment for the greater offense implicitly includes a charge of the lesser-included offense, even though it is not listed as a separately charged crime. Thus, a defendant is on notice of the possibility of conviction of the lesser-included offense. See Miss.Code Ann. § 99-19-5 (Rev.2007) (expressly permitting the jury to find the defendant “guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment ... without any additional count in the indictment for that purpose”).

B. Lesser-Non-Included Offense

¶ 11. In contrast, a lesser-non-included offense (also called a “lesser-related offense” or simply a “lesser offense”) has elements not contained in the greater crime. This means the defendant could be guilty of the greater crime without having committed the lesser-non-included offense. Payton, 642 So.2d at 1334. Because the lesser offense is not necessarily included in the charged offense, a defendant is not on notice that he or she may be criminally liable for the lesser-non-included crime. Id.

¶ 12. There is also a procedural distinction between the two instructions. Either the defendant or the State is entitled to a lesser-included offense instruction, if evidence supports it. Buchanan, 84 So.3d at 815 (¶ 8). But the twist is that, while a defendant can request a lesser-non-included offense instruction, the State cannot.

¶ 13. This method of allowing defendants to pick any desired non-indicted, tangentially related lesser criminal charge is only recognized in a handful of states and “is neither grounded in [Mississippi’s] constitution nor its statutes or longstanding precedent.” Gebben v. State, 108 So.3d 956, 970 (¶ 42) (Miss.Ct.App.2012). Still, our state’s supreme court mandates giving criminal defendants lesser-non-included offense instructions, under circumstances where evidence supports them. E.g., Williams v. State, 53 So.3d 734 (Miss.2010) (reversing murder conviction because defendant was not granted instruction on the lesser-non-included offenses of assisting a suicide).

¶ 14. While the wisdom or folly in recognizing the mechanism of the lesser-non-included-offense instruction is not at issue before this court, questions of which category the resisting-arrest charge falls in are paramount to this appeal. Here, the State — which is never entitled to a lesser-non-included-offense instruction but may seek lesser-included-offense instructions — requested the resisting-arrest instruction.

¶ 15. Because of this posture, our decision whether to uphold or reverse the jury’s verdict hinges on the question — Is resisting arrest a lesser-included offense of the charged offense of simple assault on a law enforcement officer?

C. Resisting Arrest as a Lesser-included Offense of Simple Assault on a Law Enforcement Officer

¶ 16. There are both simple and complicated answers to this question, with the simple answer being: Yes. Both this court and the supreme court have held that resisting arrest is a lesser-included offense of simple assault on a law enforcement officer.

¶ 17. This court has twice stated that “if someone resists too strongly it becomes an assault, and therefore, resisting arrest is clearly a lesser-included[ ]offense of simple assault on an officer.” Barber v. State, 743 So.2d 1054, 1055 (¶4) (Miss.Ct.App. 1999) (emphasis added) (citing Murrell v. State, 655 So.2d 881, 886 (Miss.1995)) and Clayborne v. State, 739 So.2d 495, 496 (¶ 5) (Miss.Ct.App.1999) (emphasis added) (citing Murrell, 655 So.2d at 886).

¶ 18. And our supreme court has, in a plurality opinion, expressly “recognize[d] [resisting arrest] as a lesser-included offense of simple assault on a law enforcement officer.” Jones v. State, 798 So.2d 1241, 1253 (¶ 37) (Miss.2001) (plurality opinion) (citing Murrell, 655 So.2d at 886; Clayborne, 739 So.2d at 496 (¶ 5)). We acknowledge that, because Jones was a plurality opinion, it is not binding. Buffington v. State, 824 So.2d 576, 580 (¶ 15) (Miss.2002) (finding plurality opinions do not create binding precedent). Yet we still find it persuasive — particularly since none of the nine justices in Jones expressed any disagreement with the opinion that resisting arrest is a lesser-included offense of simple assault on an officer. Rather, the dissent’s specific reason for not joining the plurality was because the dissent found the defendant’s arrest was unlawful. Jones, 798 So.2d at 1258 (¶ 58) (Easley, J., dissenting).

¶ 19. But with that simple answer comes more complex explanations of (1) why this precedent applies to Edwards’s case, and (2) why we are unpersuaded we should break from this precedent to find resisting arrest is never a lesser-included offense of simple assault on a law enforcement officer.

1. Application of Precedent to State’s Request

¶20. Edwards argues that Clayborne, Barber, and Jones are inapplicable because in those eases it was the defendant, not the State, who requested the instruction. Edwards points out that, because a defendant is entitled to either a lesser-included or lesser-non-included-offense instruction, it did not really matter under which category of lesser offenses resisting arrest actually fell. And since the title or description of the requested instructions was immaterial in each of the cases, he reasons none of the cases really considered if the lesser charges were in fact properly categorized as “lesser-included offenses.”

¶ 21. We disagree and do not interpret Clayborne, Barber, and Jones as using the term “lesser-included offense” unintentionally. In fact, in Barber, three judges dissented because they viewed resisting arrest as a lesser-non-included offense and contended that a defendant, like the State, should not be granted an instruction on lesser-non-included offenses. See Barber, 743 So.2d at 1057-59 (¶¶ 10-19) (South-wick, P.J., dissenting). So the distinction between the two categories of offenses was raised and considered by this court. And a majority of this court adhered to the conclusion that resisting arrest fell into the category of “lesser-included [ joffense.” Barber, 743 So.2d at 1055 (¶ 4) (emphasis added).

2. Adherence to Precedent

¶ 22. The other reason Edwards argues Clayborne, Barber, and Jones did not consider the distinction between lesser-included and lesser-non-included offenses is that, by his estimate, resisting arrest cannot be a lesser-included offense. Edwards reaches his conclusion by strictly applying the “elements test.”

¶ 23. The elements test is traditionally viewed as the test for determining whether one offense is a lesser-included offense of another. E.g., Green v. State, 884 So.2d 733, 737 (¶ 11) (Miss.2004) (citing Sanders v. State, 479 So.2d 1097, 1108 (Miss.1985)). Under the elements test, for a lesser-included-offense instruction to be given, “the more serious offense must include all the elements of the lesser offense [so] that it is impossible to commit the greater offense without at the same time committing the lesser[-]included offense.” Sanders, 479 So.2d at 1108. There must also “be some evidence to support the lesser[-]included offense.” Id.

¶24. Simple assault on a law enforcement officer is comprised of two elements: (1) the defendant purposefully or recklessly caused bodily injury to a police officer, and (2) the officer was acting within the scope and duty of his office. Miss.Code Ann. § 97-3-7(l)(a)-(b). The elements of resisting arrest are: (1) the resisting or obstructing by force, threats, violence, or any other means (2) an officer’s attempt at a lawful arrest. Miss.Code Ann. § 97-9-73.

¶ 25. Edwards compares the elements of the two statutory crimes, concluding it is possible to commit simple assault on a police officer without resisting arrest. While Edwards is -correct in this notion, this court is quite mindful that it has previously taken the exact strict elements approach Edwards now suggests, only to be reversed on certiorari review by the supreme court. Friley v. State, 879 So.2d 1031 (Miss.2004), reversing Friley v. State, 856 So.2d 654 (Miss.Ct.App.2003).

¶ 26. In Friley, this court strictly confined our lesser-included-offense analysis to the elements of the greater and lesser crime in a sexual-battery case. Friley, 856 So.2d at 655-56 (¶¶ 4-8). We pointed out there was an obvious element of the lesser crime, molestation — that the defendant’s touching be done with the intent and purpose to “gratify his or her lust” — that was not required of the greater offense, sexual battery. So we concluded based solely on the elements that child molestation was not a lesser-included offense of sexual battery.

¶ 27. However, the supreme court disagreed and reversed this court’s judgment. Friley, 879 So.2d at 1034-35 (¶¶ 12-17). Rather than strictly applying the elements test, the supreme court found “molestation may be a lesser included offense of some types of sexual battery.” Id. at 1034 (¶ 12) (emphasis added). While the supreme court did cite the elements test, its differing conclusion was drawn in part by “a reasonable inference from the circumstances.” Id. at 1035 (¶ 16). Though there had previously not been any recognized “circumstance” based consideration under the traditional elements test, the supreme court in Friley found that “under these particular circumstances, molestation is a lesser-included offense of sexual battery[.]” Id. at (¶ 17) (emphasis added).

¶28. Thus, according to Friley, the elements test is not merely a strict comparison of the statutory crimes, without any consideration of the facts supporting the charged crime. As Professor Michael Hoffheimer put it in his law-review article entitled Lesser Included Offenses in Mississippi, “Friley provides strong authority that the supreme court will not limit itself to the elements test.” Michael H. Hoffheimer, Lesser Included Offenses in Mississippi, 74 Miss. L.J. 135, 174 (2004) (emphasis added).

¶ 29. So based on Friley, it appears we are to consider the elements of the crimes “under the circumstances” in which these crimes were allegedly committed. Indeed, that is what we did in Davis v. State, 933 So.2d 304, 306 (¶ 7) (Miss.Ct.App.2005). In that case, the defendant, who had been charged with simple assault on a law enforcement officer, was denied his request for an instruction on resisting arrest as a lesser-included offense. In affirming the denial of the instruction, we did not find that resisting arrest is never a lesser-included offense of simple assault on a law enforcement officer because it was possible to commit simple assault of a law enforcement officer without committing resisting arrest. Instead, we looked at the circumstances of the assault and found that “[r]esisting arrest is considered a lesser-included offense of simple assault when the defendant is being arrested when the incident occurs.” Id. And because the defendant in Davis was not being arrested at the time the altercation occurred, he was not entitled to an instruction on resisting arrest as a lesser-included offense. Id.

S. Edwards’s Case

¶ 30. After applying the elements test here, taking into consideration the “circumstances” of Edwards’s' alleged assault of the arresting officer, we find, consistent with Clayborne and Barber, that resisting arrest is á lesser-included offense of simple assault on a law enforcement officer. To reach an opposite result would require we overrule this court’s and the supreme court’s precedent and ignore Fri-ley.

¶ 31. Here, the State, in attempting to prove assault, introduced evidence that Edwards began swinging at Officer Bruce while Edwards was being arrested. Under these circumstances, it would have been impossible for Edwards to have committed simple assault on a law enforcement officer without committing the crime of resisting arrest — the only difference between the two crimes being whether Edwards’s physical resistance rose to the level of purposeful or reckless bodily injury of the officer.

¶ 32. Because resisting arrest was a lesser-included offense of the charged crime, the trial judge was authorized to grant the State’s request for a resisting— arrest instruction, since the evidence supported it. Thus, we find no error in the judge’s instruction on resisting arrest.

II. 911-Call Recording

¶ 33. Edwards also argues the trial judge erred in admitting, over his. objection, the recording of Gina’s 911 call. This is the call that led to the dispatch of police officers to Gina’s house. He claims the recording should have been excluded under Mississippi Rules of Evidence 404(b) and 403.

A. Rule 404(b)

¶ 34. In the 911 call, a distraught Gina related Edwards’s outburst of domestic violence. While'it is true Edwards was not on trial for domestic violence, he was on trial for assaulting a law enforcement officer during his arrest for domestic violence.

¶ 35. Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” But there is a recognized exception when the offense charged and the prior crime or bad act are so interrelated or form part of a series of occurrences. Jenkins v. State, 75 So.3d 49, 52 (¶ 9) (Miss.Ct.App,2011) (citing Underwood v. State, 708 So.2d 18, 32 (¶ 41) (Miss.1998)); see also M.R.E. 404(b) (“Evidence of other crimes, wrongs, or acts ... may, however, be admissible for other purposes.”). And here, Gina’s frantic 911 call, seeking immediate help for her safety, was part of the series of occurrences on March 22, 2010, culminating in Edwards’s arrest for domestic violence—the arrest during which the events giving rise to his indictment occurred.

¶ 36. When the charged crime and prior crime or bad act are so interwoven as to form a series of occurrences, the State may offer evidence of the prior bad act to tell the “complete story so as not to confuse the jury.” Id. at 52-53 (¶ 9) (quoting Ballenger v. State, 667 So.2d 1242, 1257 (Miss.1995)). ' “The rationale for admitting evidence of certain closely related acts is that the prosecution ‘has a legitimate interest in telling a rational and coherent story of what happened.’ ” Id. at 53 (¶ 9) (quoting Brown v. State, 483 So.2d 328, 330 (Miss.1986)).

¶ 37. For example,- in Jenkins, the defendant was convicted of cocaine possession after probation officers found drugs he had discarded while he was fleeing from officers who were trying to execute a warrant for his arrest. Id. at 51 (¶¶ 2-3). We found no error in the State offering evidence that “Jenkins had previously been convicted of a felony [and] had been placed on probation for that prior felony” or that “he had absconded from probation supervision.” Id. at 53 (¶ 10). There was no evidentiary foul because this evidence “shed light on the events that transpired on the day that Jenkins was arrested.” Id. The evidence helped the jury understand why officers recognized Jenkins, why they knew there was an outstanding warrant, why Jenkins ran, and why the officer pursued Jenkins and arrested him. Id. Without this evidence, “it would have appeared as though the probation officers had harassed Jenkins and then pursued and arrested him without probable cause.” Id. at (¶ 11).

¶ 38. We similarly find the 911 recording “shed light on the events that transpired on the day that [Edwards] was arrested.” Id. at 53 (¶ 10). In terms of “telling a rational and coherent story of what happened,” the recording described the physically dangerous and emotionally charged scene the officers knew they were walking into when they arrived at Gina’s house. The recording also explained why the officers had probable cause to detain Edwards when they arrived, and why his arrest for domestic violence a few minutes later was lawful. And like Jenkins, without the recording, there is some likelihood it may have appeared the officers were there harassing Edwards, instead of trying to remove him from the situation.

¶ 39. While Edwards argues the tape was inadmissible based on Eubanks v. State, 419 So.2d 1330 (Miss.1982), a case also involving a charge of simple assault on a police officer, the facts here are distinguishable. In Eubanks, the supreme court found it permissible to admit evidence that officers were executing an arrest warrant because it showed they were acting within the scope of their authority when the assault occurred. Id. at 1332. However, the supreme court held it was reversible error to introduce details of the prior incident for which the arrest warrant was issued because “[t]here was no connection between the facts surrounding that incident and the charge of simple assault[.]” Id. But here, there is a connection. Unlike Eubanks, the incident between Gina and Edwards did not occur weeks prior — it occurred immediately before police arrived and was the lone reason officers showed up, already alerted that Edwards potentially posed a threat to others.

¶ 40. We thus find admission of the 911 recording did not violate Rule 404(b), since the trial judge had discretion to allow the State to tell the “complete story” of Edwards’s arrest.

B. Rule 403

¶ 41. Edwards argues admission of the recording was still erroneous because the trial judge did not apply the Rule 403 balancing test. Under Rule 403, a trial judge should “exclude[evidence] if its probative value is substantially outweighed by the danger of unfair prejudice[.]” M.R.E. 403. And when evidence is deemed admissible over a Rule 404(b) objection, the Mississippi Supreme Court has held trial judges should then administer Rule 403’s balancing test to ensure no undue prejudice results. Hoops v. State, 681 So.2d 521, 530 (Miss.1996). But the supreme court has emphasized trial judges need not use the “magic words” about the probative value of the evidence outweighing any prejudicial effect. Pitchford v. State, 45 So.3d 216, 246 (¶ 128) (Miss.2010).

1142. In finding the recording admissible, despite Edwards’s Rule 404(b) objection, the trial judge clearly weighed its probative value against its potential prejudice. See Jenkins, 75 So.3d at 55 (¶ 18). And his decision — that the probative value won out — was not an abuse of discretion. The recording had probative value — communicating to the jury Gina’s report of the violent situation, which is why police showed up to arrest Edwards. Further, Gina, who had already refused to press domestic-violence charges, also tried to “backpedal” at trial, changing her story about how Edwards had been acting when she called 911. So the tape was probative of what Gina had really told authorities that afternoon — information that formed the basis of probable cause needed to lawfully arrest Edwards without a warrant.

¶ 43. Because we find no abuse of discretion in the trial judge’s admission of the 911 recording, we affirm.

¶ 44. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT OF CONVICTION OF RESISTING ARREST AND SENTENCE OF SIX MONTHS IN THE CUSTODY OF THE LEE COUNTY SHERIFF’S DEPARTMENT, WITH THE SENTENCE SUSPENDED ON THE CONDITION THAT THE APPELLANT SUCCESSFULLY COMPLETE MENTAL-HEALTH TREATMENT, AND TO PAY A FINE OF $500 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

CARLTON, J.,

dissenting:

¶ 45. I respectfully dissent on due-process grounds. The State indicted Edwards in this case on a charge of simple assault on a law enforcement officer, and the majority affirms the judgment of the trial court wherein Edwards was convicted of resisting arrest, a nonindicted, lesser-related charge. I submit that the trial court erred as a matter of law by instructing the jury that it could consider a nonin-cluded, lesser-related offense at the request of the State.

¶ 46. The majority treats the resisting-arrest offense as a lesser-included offense of the principal indicted charge of simple assault on a law enforcement officer. I submit, however, that resisting arrest constitutes a lesser-related, but not a lesser-included, offense of that principal charge because resisting arrest requires proof of an element not contained in the indicted principal charge of simple assault on a law enforcement officer. I agree that the record contains evidence of the offense of resisting arrest, but the State failed to indict Edwards on that charge or on a principal charge containing that offense as a lesser-included offense. Therefore, the case law reflects that since evidence was presented on the lesser-related, but not included, charge of resisting arrest, then Edwards could request the lesser-related-offense instruction, thereby waiving his right to due-process notice of the offenses charged against him.

¶ 47. I respectfully dissent since it was the State in this case, not Edwards, that requested the lesser-nonincludéd offense instruction on resisting arrest, which was related but not included in the indicted offense of simple assault on a law enforcement officer. See Gause v. State, 65 So.3d 295, 301-02 (¶ 20) (Miss.2011) (defendant’s request for a lesser-nonincluded-offense instruction serves as a waiver of his right to notice of charges against him). The State may only request that instructions be given on the indicted offenses and any lesser-included offenses. Id. at 301 (¶ 19); see also Miss.Code Ann. § 99-19-5(1) (Rev. 2007) (providing for the instruction of the jury on lesser-included offenses); Williams v. State, 53 So.3d 734, 740-41 (¶ 32) (Miss.2010) (citing Brooks v. State, 18 So.3d 833, 839-40 (¶ 27) (Miss.2009), for the holding that a defendant is entitled to obtain an instruction on a lesser-noninclud-ed offense where the lesser-nonincluded offense arises from the same operative facts as the indicted charge and has an evidentiary basis).

¶ 48. The Mississippi Supreme Court provided in Williams, 53 So.3d at 740-41 (¶ 32), that a lesser-nonincluded offense was also referred to as “a lesser offense.” The Williams court further explained, citing Moore v. State, 799 So.2d 89, 91 (¶ 7) (Miss.2001), that “[i]f a lesser offense, as opposed to a lesser-included offense, arises from the same operative facts and has an evidentiary basis, ... the defendant is entitled to an instruction for the lesser charge....” Id. In addition, the Williams court clarified that the “defendant” possesses the right to request a lesser-offense instruction that arose from the common nucleus of operative facts, particularly where a great disparity exists in the respective sentences. Id. at (¶¶ 32-33). However, the court in Gause v. State, 65 So.3d 295, 301-02 (¶¶ 20-22) (Miss.2011), clearly held that the State possesses no similar right to request an instruction on a related but nonincluded offense and that giving such an instruction at the request of the State would be prohibited on due-process grounds.

¶ 49. Due process requires that a defendant be given notice prior to trial of the indicted charges against him. See Miss. Code Ann. § 99-19-5(1); URCCC 7.06; Gause, 65 So.3d at 301-02 (¶¶ 20-22). Such notice enables the defendant to prepare a defense as to those indicted charges and any lesser-included offenses. The notice provided by the indictment also protects the defendant against double jeopardy for the indicted charge and its lesser-included offenses. Under Mississippi precedent a criminal defendant may waive his due-process rights and request, a lesser-nonincluded-offense instruction if some evidence exists to support such a lesser-nonincluded-offense instruction^ Gause, 65 So.3d at 301-02 (¶¶ 20-22); Williams, 53 So.3d at 740-41 (¶¶ 32-33). However, the State may not waive the defendant’s due-process right to notice by obtaining a lesser-nonincluded instruction on a related offense that was not included in the notice provided by the indictment. See Miss. Code Ann. § 99-19-5(1) (indictment provides notice of indicted offenses and lesser-included offenses). The indictment provides the defendant notice of the charged offenses against him, informing him of the potential jeopardy he is to face at trial.

¶ 50. The majority relies on Buchanan v. State, 84 So.3d 812, 815 (¶ 8) (Miss.Ct.App.2011), to support its affirmance of Edwards’s conviction for resisting arrest even though Edwards was indicted for simple assault on a police officer. I respectfully submit that resisting arrest is not a lesser-included offense of simple assault on a police officer. The offenses addressed in Buchanan differ from the offenses in this case in that the offenses there constituted lesser-included offenses, and the lesser-included offenses contained no elements not in the greater offense. In Buchanan the defendant was indicted for the principal offense of aggravated assault on a peace officer. Id. at 818 (¶ 1). The Court found that simple assault on a peace officer and misdemeanor simple assault were lesser-included offenses of the greater principal charge of aggravated assault on a peace officer. Id. at 818-19 (¶¶ 15, 20). The lesser offenses in Buchanan contained no additional element not already present in the principal indicted charge and, therefore, constituted lesser-included offenses. Id. at 816-19 (¶¶ 10-11, 20). Such is not the case before us now because the lesser-nonincluded offense of resisting arrest contains additional elements distinct from the elements required to prove the principal indicted charge of simple assault on a law enforcement officer.

¶51. Resisting arrest fails to constitute a lesser-included offense of the indicted charge herein because resisting arrest requires proof of an additional element not included in the indicted offense. See Miss.Code Ann. § 97-9-73 (Rev.2006) (defining resisting arrest and its elements). In this case the facts reflect that after a law enforcement officer told Edwards that he was placing Edwards under arrest, Edwards engaged in a scuffle and swung and struck the officer in the face. Edwards was charged by law enforcement with both resisting arrest and simple assault on a law enforcement officer, but the State charged Edwards in the indictment with only simple assault on a law enforcement officer. The facts show evidence of both offenses arising out of this incident, but as discussed, resisting arrest requires an additional element not found in the assault charge set forth in the indictment. An offense is a lesser-included offense if an accused could not be guilty of the offense for which indicted without also being guilty of the lesser-included offense. See Payton v. State, 642 So.2d 1328, 1334 (Miss.1994); Barber v. State, 743 So.2d 1054, 1057 (¶11) (Miss.Ct.App.1999) (Southwick, P.J., dissenting). An accused could be guilty of simple assault on a law enforcement officer without being guilty of resisting arrest. In the cases where error occurred for failure to instruct on the lesser offense of resisting arrest, the defendant, not the State, requested the instruction, and the evidence in the case supported the instruction. In this case the evidence would have supported the instruction, but Edwards asserted no request for an instruction on the lesser-related offense of resisting arrest. The indictment failed to provide notice to Edwards of a prosecution on the charge of resisting arrest.

¶ 52. In summary, I respectfully dissent on due-process grounds because the State, not Edwards, requested the lesser-nonin-cluded-offense instruction of resisting arrest when the State indicted Edwards for the distinct offense of simple assault on a law enforcement officer. Due process entitled Edwards to pretrial notice of the charges against him, informing him of the potential jeopardy he faced, providing the ability to defend against those charges, and providing protection from double jeopardy. I would therefore reverse and remand for a new trial because Edwards’s substantial rights were prejudiced by the lack of pretrial notice of the charges to be tried against him.

      . A suicide incident in jail the night Edwards was arrested led the trial judge to determine Edwards’s sentence would be better served in a mental-health treatment program than in jail.

      . The dissent claims we rely on Buchanan "to support [our] affirmance of Edwards’s conviction for resisting arrest even though Edwards was indicted for simple assault of a police officer.” Dis. Op. at (¶ 50). But it is apparent that we merely cite Buchanan to describe the substantive and procedural distinctions between lesser-included and lesser-non-included offenses — not to support our disposition. Contrary to the dissent’s suggestion, our reason for affirming is based on this court’s and the supreme court’s precedent that resisting arrest is a lesser-included offense of simple assault on a law enforcement officer.

      . Many past and present members of this court have expressed various criticisms with instructing jurors on lesser-non-included offenses — a practice the United States Supreme Court has coined as " ‘not only unprecedented, but also unworkable' and has observed ... 'can hardly be said to be a reliable result,’ as it 'detracts from, rather than enhances, the rationality of the process[.]’ ” Gebben, 108 So.3d at 974-75 (¶ 52) (quoting Hopkins v. Reeves, 524 U.S. 88, 96-97, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998)).

      . See Jones v. State, 798 So.2d 1241, 1253-54 (¶¶ 36-41) (Miss.2001), McDonald v. State, 784 So.2d 261, 264 (¶ 11) (Miss.Ct.App.2001), and Clayborne v. State, 739 So.2d 495, 497 (¶ 8) (Miss.Ct.App.1999), for examples of cases finding error for the refusal of the defense’s request for an instruction on the offense of resisting arrest as a lesser offense. See also Gause v. State, 65 So.3d 295, 301 (¶¶ 17-19) (Miss.2011), and Payton v. State, 642 So.2d 1328, 1334 (Miss.1994), which address lesser-included offenses.

      . See also URCCC 7.06 (providing that "[t]he indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation”).

      . See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ("The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”); Miss.Code Ann. § 99-19-5(1) (providing for the instruction of the jury on lesser-included offenses, the commission of which are "necessarily included in the offense with which [the defendant] is charged in the indictment, ... without any additional count in the indictment for that purpose”).

      . See Jones, 798 So.2d at 1253 (¶ 36), McDonald, 784 So.2d at 263-64 (¶ 7), and Clayborne, 739 So.2d at 496-97 (¶¶5-6, 8), for examples of cases where the defendant requested the resisting-arrest instruction.


text:
    Mohamad RAWAID d/b/a B.P. Quickmart, Appellant v. MURGUIA & ARIAS GROCERY, LLC d/b/a Liborio’s Market and May’s New Albany Rental, LLC, Appellees.
    No. 2012-CA-01867-COA.
    Court of Appeals of Mississippi.
    Oct. 22, 2013.

      Regan S. Russell, New Albany, attorney for appellant.
    Wallace Alfred Welshans III, Batesville, attorney for appellees.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Mohamad Rawaid, owner of BP Quickmart in New Albany, Mississippi, wants to shut down the Hispanic grocery store next door, which he claims is cutting into his beverage and tobacco sales. Both properties used to be part of the same parcel. And when the parcel split in two, Rawaid’s property became the beneficiary of a covenant restricting how the other property could be used — until 2019, no portion of the other property can be used to operate a “convenience-type food store” or sell gasoline.

¶ 2. Rawaid claims Murguia &. Arias Grocery, LLC (M & A Grocery) is violating that restrictive covenant by selling some of the same food and non-food items that he does. But the covenant does not restrict the operation of any “food,store” Or any food store selling some of the same items that a convenience store sells. It only restricts the operation of a food store of the “convenience type.”

¶ 3. The chancellor found M & A Grocery’s food store was not of the “convenience type” and, thus, did not violate the restrictive covenant. Not only does the store cater to a specific demographic (Hispanics), stock mainly items labeled in Spanish, and advertise as a “Mexican” store, it does- not have extended early-morning and late-night hours like a convenience store and is not designed for quick in-and-out purchases. Instead, like other grocery stores, it provides carts and baskets for its customers’ use in perusing and amassing items such as meat, sodas, household cleaners, even piatas, from its multiple aisles of shelves, freezers, and refrigerators.

¶ 4. As our law does not generally favor restrictive covenants, the chancellor rightly construed the phrase “convenience-type food store” to mean only food stores of the “convenience type” and no others. And the chancellor supported his finding — that M & A Grocery’s food store was not of the “convenience type” — with credible and substantial evidence from the record. Thus, we affirm the chancellor’s judgment denying Rawaid’s request for a permanent injunction against M & A Grocery.

Background

¶ 5. The New Albany properties on which BP Quickmart and M & A Grocery operate used to be part of the same piece of property, with the same owner, R.R. Morrison & Son, Inc. R.R. Morrison & Son split the property into separate parcels. When it sold one parcel to James May in 1992, it placed a restriction in the deed:

[N]o portion of the property shall be utilized for the operation of a convenience-type food store nor shall the retail sale, storage or distribution of motor fuels or petroleum fuel products be permitted on any portion of the above described lands for a period of twenty-five (25) years from [January 30,1992],

And when it sold another parcel to Lisa Carr 1994, it expressly stated Carr’s parcel would be the beneficiary of the restrictive covenant in the May deed.

¶ 6. Carr developed her property into BP Quickmart, a gas station / convenience store. When Carr sold the property to Rawaid in 2006, the deed expressly conveyed to Rawaid the rights and benefits created by the restrictive covenant in the May deed.

¶ 7. At the time Rawaid bought his property, May was operating a video-rental / gift store next door. But with the advent of online video rental and streaming came the extinction of the brick-and-mortar video store. And May closed his doors in 2009. May conveyed his property to May’s New Albany Rental, LLC, which in turn began leasing the old store’s space to various businesses. One of these businesses is M & A Grocery, which opened a “Mexican” grocery store in February 2012.

¶ 8. Three months later, Rawaid filed an action in Union County Chancery Court against May’s New Albany Rental and M & A Grocery. While he initially sought damages for breach of the restrictive covenant, he amended his complaint, seeking only a permanent injunction against the operation of M & A Grocery’s store. After a bench trial in October 2012, Chancellor Michael Malski denied Rawaid’s claim. In his final order, the chancellor found “[t]he dispositive issue centers on whether M & A Grocery is a convenience-type food store.” And he concluded it was not.

f 9. Rawaid timely appealed.

Discussion

I. Construction of Restrictive Covenants

¶ 10. Much of Rawaid’s appellate brief is dedicated to a discussion about the general principles of contract interpretation. He argues that the chancellor legally erred by not recognizing the phrase “convenience-type food store” is ambiguous and not applying the cannons of construction to resolve the ambiguity in his favor. And he asserts that this court should apply de novo review to correct the chancellor’s error.

¶ 11. But what Rawaid misses is that the contractual language he seeks to enforce is a restrictive covenant in a property deed. And our supreme court has made clear that restrictive covenants get their own set of construction rules. Stokes v. Bd. of Dirs. of La Cav Imp. Co., 654 So.2d 524, 527 (Miss.1995) (citing Kemp v. Lake Serene Prop. Owners Ass’n, 256 So.2d 924, 926 (Miss.1971)). Because the law generally disfavors restricting another’s property rights, restrictive covenants “are subject more or less to a strict construction.” Id. “[A]nd in the case of ambiguity, construction is most strongly against the person seeking the restriction and in favor of the person being restricted.” Id. (emphasis added).

¶ 12. The fundamental construction rule is that the intention of the parties, as shown by the language of the agreement, controls. Id. at 528 (citing A.A. Home Improvement Co. v. Hide-A-Way Lake, 393 So.2d 1333, 1336 (Miss. 1981)). The language of restrictive covenants is to be read “in its ordinary sense” and in the context of the entire document, in order to determine the covenant’s meaning, purpose, and intent. Id. at 527 (quoting City of Gulfport v. Wilson; 603 So.2d 295, 299 (Miss.1992)). And only when the intent to prohibit or restrict is expressed in clear and unambiguous language will the restriction be enforced. Id. (citing Andrews v. Lake Serene Prop. Owners Ass’n, 434 So.2d 1328, 1331 (Miss.1983)).

¶ 13. So under these principles, “convenience-type food store” is to be read in its ordinary sense. It is also to be strictly construed — meaning it is to be no more restrictive than what the language supports. And any ambiguity created by the phrase is to be construed against Ra-waid — the person seeking the restriction— and in favor of M & A Grocery — the party being restricted. This means that, for Ra-waid to succeed on appeal, the language of the restrictive covenant in the May deed must dearly and unambiguously express an intent to restrict or prohibit the type of store operated by M & A Grocery.

¶ 14. Further, this court’s review of a ruling regarding a restrictive covenant is limited to abuse of discretion. COR Devs., LLC v. Coll. Hill Heights Homeowners, LLC, 973 So.2d 273, 279 (¶ 12) (Miss.Ct.App.2008) (citation omitted); Sullivan v. Kolb, 742 So.2d 771, 775 (¶ 10) (Miss.Ct.App.1999). Rawaid is correct that even under this deferential standard, “we review all questions of law de novo.” COR Devs., 973 So.2d at 279 (¶ 12). But the only question of law is whether the phrase “convenience-type food store” is clear and unambiguous — and thus must be enforced as written — or is ambiguous— and thus must be construed in favor of M & A Grocery. Determining if M & A Grocery is “operating] a convenience-type food store” involves questions of fact. And we will only reverse the chancellor’s factual determinations if they were “manifestly wrong, clearly erroneous, or lacked the support of substantial, credible evidence.” Id.

II. Construction of “Convenience-Type Food Store”

¶ 15. With the above guiding principles and limited review in mind, we find no reversible error in the chancellor’s decision that M & A Grocery is not operating a “convenience-type food store.”

¶ 16. The chancellor read the phrase “convenience-type food store” in its ordinary sense — concluding the intent was to restrict the operation of other convenience stores. See Stokes, 654 So.2d at 527. While Rawaid argues the inclusion of the word “type” makes the phrase ambiguous, this argument actually hurts rather than helps him, as any ambiguity in the language of the restrictive covenant must be construed most strongly against him. See Kinchen v. Layton, 457 So.2d 343, 347 (Miss.1984) (finding restrictive-covenant phrase “temporary structure” to be ambiguous and construing ambiguity against party seeking to remove structure from neighbor’s property). And to the extent he argues the inclusion of the word “type” expands the category of food stores to be restricted, this interpretation is not supported by the language. Read in its ordinary sense, the phrase means exactly what it says — food stores of the same type as a convenience store.

¶ 17. Thus, the chancellor correctly focused on the characteristics of a convenience store that differentiate this type of store from other stores that sell food — a limited selection of items, mostly individually packaged; easy access to these items and the check-out counter; and early-morning and late-night hours. The chancellor found M & A Grocery lacked the defining characteristics of a convenience store. M & A Grocery sold bulk snacks and beverages, meats, frozen foods, household goods, and specialty items catering to Hispanics. M & A Grocery did not have early-morning or late-night hours. And it was not designed for quick in-and-out purchases. Instead, it had the defining characteristics of a “small grocery store,” providing baskets and carts, so that its customers could peruse its multiple aisles.

¶ 18. Rawaid argues that the purpose of the restrictive covenant was to prevent competition, and that M & A Grocery is cutting into his beer and tobacco sales. But “[w]hen determining the intent of the parties, ... ‘the fundamental rule is that the intention of the parties as shown by the agreement governs, being determined by fair interpretation of the entire text of the covenant.’ ” Stokes, 654 So.2d at 528 (quoting A.A. Home Improvement, 393 So.2d at 1336). What the language of the restriction in the.May deed shows is that the only items specifically restricted from being sold by the competition were motor fuels and petroleum products. The covenant did not restrict the sale of beer, tobacco, or any other items sold in a convenience store — it restricted the “operation of a convenience-type food store.” And selling some of the same items as a convenience store does not convert a business into a convenience store.

¶ 19. For example, when construing a restrictive covenant that prohibited the operation of a “liquor store,” the Texas Court of Civil Appeals found the fact that a convenience store sold beer and wine did not mean it was a “liquor store,” as that term is ordinarily understood. Wilson v. Golman, 563 S.W.2d 655, 656 (Tex.Civ.App.1978). And when construing a restrictive covenant that prohibited the operation of the same “type” of restaurant as a sit-down restaurant, which made its customers’ food to order, the Minnesota Supreme Court found that the fact that a McDonald’s offered some of the same menu items did not change the fact it was a fast-food restaurant. Snyder’s Drug Stores, Inc. v. Sheehy Props., Inc., 266 N.W.2d 882, 885-86 (Minn.1978).

¶ 20. Here, while the chancellor found M & A Grocery sold some of the same items as a convenience store — such as beer, tobacco, and snacks — this fact alone did not change the character of M <& A Grocery from a small specialty grocery store into a convenience store. Viewing the choice between BP Quickmart and M & A Grocery from the average consumer’s eyes, the chancellor found that “if [he] were driving by these two stores and wanted to buy convenience type items— chips, soft drinks, or gas — even though these items were available at M & A Grocery, [he] would surely go to BP Quick-mart. If [he] wanted to buy a piata, ... [he] would go to M & A Grocery.”

¶ 21. Thus, the chancellor concluded that M & A Grocery is not a convenience store, so it was not violating the restrictive covenant. As he supported this finding with substantial credible evidence, we find no abuse of discretion. We affirm the chancellor’s judgment denying Rawaid’s request for a permanent injunction against the operation of M & A Grocery.

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

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


author: MAIN, Justice.

text:
    Lowell S. FULLER et al. v. TOWN OF MAGNOLIA SPRINGS. Town of Magnolia Springs v. Lowell S. Fuller et al.
    1110295 and 1110332.
    Supreme Court of Alabama.
    March 1, 2013.
    As Modified on Denial of Rehearing April 19, 2013.
    Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellants/cross-ap-pellees Lowell S. Fuller et al.
    Samuel N. Crosby and J. Bradford Boyd Hicks of Stone, Granade & Crosby, P.C., Bay Minette, for appellee/cross-appellant Town of Magnolia Springs.
    Tracy L. Roberts, deputy gen. counsel, Alabama League of Municipalities, Montgomery, for amicus curiae Alabama League of Municipalities.
   MAIN, Justice.

Lowell S. Fuller and his wife, Deborah Kay Holcombe Fuller, and Ronald F. Turner and his wife, Sheila M. Turner, appeal from a judgment of the Baldwin Circuit Court finding that, although the Town of Magnolia Springs (hereinafter “the Town”) held no riparian rights in and to the Magnolia River (hereinafter “the River”), the Town was entitled to construct improvements on the shores of the River and extending into the River for a boat launch, a boat dock, and/or a pier to be used in connection with Rock Landing, a public landing on the River, and that Rock Street, a public street in the Town that adjoined the lands owned by the Fullers and the Turners and that terminated at Rock Landing, could be used for temporary parking “for the purpose of launching a boat, kayak, canoe or other float at Rock Landing.” The Town cross-appeals from that part of the judgment declaring that the Town was without authority to convert a portion of Rock Street from ■ a public street to a parking facility and recreational area.

On May 24, 2010, the Fullers and the Turners sought a declaration of the respective rights and obligations of the parties in and to Rock Street, including the existence of riparian rights to the portion of the River that might be associated with Rock Street and the right of the Town to convert the portion of Rock Street nearest the River from a public street into a park or recreational area. They also sought to enjoin the Town from making any improvements to Rock Landing, a public landing on the River at the terminus of Rock Street. The Town answered and raised affirmative defenses and asserted counterclaims. The counterclaims sought a judgment declaring that fee-simple ownership of Rock Street vested in the Town, that the prior vacation of public rights to that part of Rock Landing lying east of Rock Street, as shown on an 1895 plat captioned “Lyman’s Addition to Magnolia Springs” (hereinafter “the Plat”), is void, and that the current public use of Rock Street for access to the River and the potential public use of Rock Street as a recreational area are consistent with the Plat.

The trial court held a bench trial on March 7, 2011. The rights to Rock Street and Rock Landing are the subject of this case. The issues involve specifically Lot 28 and the west half of Lot 27, which are owned by the Turners, and Lot 29, which is owned by the Fullers, all of which are shown on the Plat and which lots adjoin Rock Street and/or Rock Landing. Rock Street, which is largely unimproved, and Rock Landing have, since the incorporation of the Town in 2006, been located within the municipal boundaries of the Town and are shown on the Plat.

The Fullers acquired title to their property, which adjoins Rock Street and Rock Landing, by deed dated May 28, 1996. The Turners acquired title to their property, which adjoins Rock Street and Rock Landing, by deed dated June 6, 1994. Both the Fullers and the Turners have resided on their property since 1996 and 1994, respectively. The Fullers and the Turners have fences along their boundaries with Rock Street, with gates connecting their driveways to the northern end of Rock Street.

After hearing the evidence and ordering the parties to submit posttrial briefs, the trial court on April 27, 2011, entered a final judgment (hereinafter “the April judgment”). In the April judgment, the trial court held that Rock Street was a publicly dedicated street for use by pedestrian and vehicular traffic and that the Town held no interest in the riparian rights to the River that might be associated with Rock Street or Rock Landing, and it enjoined the Town from constructing any improvements into or over the waters of the River. The trial court declared that Rock Street was to be used for pedestrian and vehicular traffic only and that it could not be converted by the Town from a public street to a parking or recreational facility or a park. The Town filed a motion to alter, amend, or vacate the judgment, pursuant to Rule 59(e), Ala. R. Civ. P.

On August 16, 2011, the trial court entered an amended final judgment (hereinafter “the August judgment”). In the August judgment, the court again held that the Town had no riparian rights to the River, but it held that the Town was nonetheless entitled to construct improvements for a boat launch, a boat dock, and/or a pier along the River to be used in connection with a public landing. The court also determined that, although Rock Street could not be converted to use for a parking or recreational facility or park, it could be used for “temporary parking for the purpose of launching a boat, kayak, canoe or other float at Rock Landing.” The Fullers and the Turners filed a motion to alter, amend, or vacate the August judgment, pursuant to Rule 59(e), Ala. R. Civ. P., which the trial court denied. The Fullers and the Turners filed a timely notice of appeal. The Town filed a cross-appeal.

I. Analysis

A. Appeal (case no. 1110295)

On appeal, the Fullers and the Turners argue that “[t]he remedy ordered by the trial court is inconsistent with ... the underlying factual findings and conclusions of law contained in the August Judgment.” Specifically, in their brief to this Court, the Fullers and the Turners contend that the remedy provided in the August judgment — “authorizing the Town to construct a boat launch, boat dock, and/or pier at the water’s edge of Rock Landing” and “permitting the Town to use Rock Street for ‘temporary parking for the purpose of launching a boat, kayak, canoe or other float at Rock Landing’ ” — is contrary to the findings of fact and conclusions of law in the August judgment, especially the holding that the Town possessed no riparian rights.

We agree that the trial court’s findings of fact and conclusions of law in the August judgment are contradictory to the remedy it fashioned. The trial court held that the. Town possessed no riparian rights, but it determined that the Town was entitled, among other things, to construct improvements for a boat launch, a boat dock, and/or a pier along the River at Rock Landing. The trial court’s conclusion of law that the Town possessed no riparian rights is inconsistent with the relief it ordered. We have not been asked to decide, and we express no opinion, on the trial court’s findings regarding riparian rights. Thus, because the conclusion of law in the trial court’s August judgment is incompatible with the relief ordered, we must reverse that judgment and remand the case for the trial court to revise either its conclusion of law or the relief ordered.

B. Cross-Appeal (case no. 1110332)

In its cross-appeal, the Town argues that the trial court erred “when it declared that parking is prohibited on Rock Street except parking for the temporary purpose of launching a vessel or float at Rock Landing” because “[a] municipality is vested with exclusive authority to regulate parking along its streets pursuant to Alabama Code, common law, and municipal police powers.” Because the issue of the regulation of parking along Rock Street directly relates to the issue raised on appeal, it too should be reconsidered by the trial court on remand.

II. Conclusion

For the foregoing reasons, we reverse the August judgment and remand this case for further proceedings consistent with this opinion.

1110295 — REVERSED AND REMANDED.

1110332 — REVERSED AND REMANDED.

MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, WISE, and BRYAN, JJ., concur.

      . The Plat, which is difficult to read, shows that it was signed by “R.F. Ezzezz,” the surveyor, and notarized by "R.T. Ervin,” a notary public, but it was not signed by Otis Lyman, the owner of the lands embraced by the Plat.

      . At trial, Philip Hahn, an owner of property adjacent to Rock Landing, filed a motion for leave to intervene, which the trial court granted. When the Town dismissed its counterclaim challenging the validity of a prior vacation of public rights to Rock Landing east of Rock Street, Hahn withdrew his motion to intervene.

      . In 1957, the public’s right to that part of Rock Landing lying to the west of Rock Street was vacated. In 1959, the public’s right to that part of Rock Landing lying to the east of Rock Street was vacated. In 1965, the public’s right to that part of Rock Street lying south of Oak Street was vacated. By order dated August 25, 1970, the' Baldwin Circuit Court declared the purported 1965 vacation of Rock Street void and declared the 1957 vacation of Rock Landing lying to the west of Rock Street to be valid. According to the record in this case, the 1959 vacation of the public’s right to Rock Landing east of Rock Street has never been challenged. The Town, however, challenged that vacation in a counterclaim but voluntarily dismissed that counterclaim at trial, as stated in note 2.