author: IRVING, P.J.,

text:
    Troy M. PITTMAN a/k/a Sonny a/k/a Troy Myre Pittman, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CA-01277-COA.
    Court of Appeals of Mississippi.
    April 2, 2013.
    Rehearing Denied Sept. 10, 2013.

      Jeffery M. Navarro, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. For the second time, the Alcorn County Circuit Court summarily denied as time-barred Troy M. Pittman’s motion for post-conviction collateral relief (PCR). Pittman has appealed, alleging that the circuit court erred by denying his PCR motion without an evidentiary hearing. Finding no error, we affirm.

FACTS

¶2. An Alcorn County Circuit Court jury convicted Pittman of three counts of sexual battery and two counts of statutory rape. Pittman appealed, and this Court upheld each of the sexual-battery convictions and reversed and rendered the statutory-rape convictions. Pittman v. State, 836 So.2d 779, 788 (¶ 44) (Miss.Ct.App.2002) (Pittman I). The Mississippi Supreme Court denied certiorari on January 30, 2003. Id. at 779.

¶ 3. On July 5, 2007, Pittman filed a PCR motion, seeking to overturn his seven-year-old conviction of the three counts of sexual battery. The circuit court denied the motion as time-barred. Pittman appealed, and this Court reversed, finding that Pittman’s motion was not time-barred. Pittman v. State, 20 So.3d 51, 52 (¶ 1) (Miss.Ct.App.2009) (Pittman II).

¶ 4. In his PCR motion, Pittman alleged that he had acquired newly discovered evidence and that he had received ineffective assistance of counsel during his trial. In order to fully understand Pittman’s argument regarding the alleged newly discovered evidence, we recite pertinent facts from our previous opinion, affirming his prior convictions:

Shortly after the birth of them daughter in 1985, Troy Pittman, Jr. and his first wife divorced. He remarried in 1988. Between 1985 and 1990, Pittman had little contact with his daughter. After 1990, Pittman was allowed some visitation. In 1995, Pittman’s ten-year[-]old daughter accused him of molestation. An investigation occurred but no charges were filed. Thereafter, Pittman was required to have a person aged fourteen years or older with him at all times when he was with his daughter. Pittman and his first wife would exchange custody of the child at the sheriffs department.
In mid-July 1998, the now-thirteen[-]year-old girl began a three week-long visit with Pittman and his second wife. Two days after being returned to her mother on August 5, the child complained of a sore throat and was taken to the doctor. Over the next week, the young girl developed flu-like symptoms and complained of pain in her bottom. On August 13, the child was returned to the doctor. The doctor noticed lesions on her perineum and an anal tear. The doctor swabbed the lesions and sent the sample to be tested at a lab.
On August 14, the girl returned to Pittman’s house for weekend visitation. On August 17, the doctor informed the girl’s mother that the child had tested positive for herpes simplex II or genital herpes. The mother demanded that the girl tell her who could have given her a sexually transmitted disease. At first reluctant, the child finally informed her mother that Pittman had molested and attempted to have sexual intercourse with her during the three-week visitation and during the immediate past weekend visitation.

Pittman I, 836 So.2d at 782 (¶¶ 2-4).

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. Appellate courts will not reverse a trial court’s denial of a PCR motion unless the trial court’s factual findings are clearly erroneous. Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008). A PCR motion that “meets basic requirements is sufficient to mandate an evidentiary hearing unless it appears beyond a doubt that the petitioner can prove no set of facts in support of his claim which would entitle him to relief.” Frierson v. State, 812 So.2d 1090, 1092 (¶ 5) (Miss.Ct.App.2001) (quoting Marshall v. State, 680 So.2d 794, 794 (Miss.1996)).

I. Denial of PCR Motion

a. Newly Discovered Evidence

¶ 7. Pittman’s first assertion in his PCR motion is that he possesses newly discovered evidence that entitles him to a new trial. A defendant is entitled to a new trial on the ground of newly discovered evidence where: (1) such evidence will probably change the outcome if a new trial is granted; (2) the evidence has been discovered since trial and could not have been discovered before trial by the exercise of due diligence; (3) the evidence is material to the issue; and (4) the evidence is not merely cumulative or impeaching. Meeks v. State, 781 So.2d 109, 112-13 (¶ 8) (Miss.2001). The defendant must satisfy all four elements before a reversal can be granted. Johnson v. State, 39 So.3d 963, 966 (¶ 11) (Miss.Ct.App.2010).

¶ 8. Pittman argues that there is newly discovered evidence regarding the allegation that he infected his daughter (the victim) with herpes. He claims that this evidence proves that it was impossible for him to pass herpes to the victim, that the herpes tests were unreliable, and that the victim could have gotten herpes from someone else.

¶ 9. First, Pittman asserts that since the State did not prove that he had intercourse with the victim, it is impossible for him to have given the victim herpes. He claims that there hád to have been an exchange of bodily fluids in order for him to have transmitted herpes to the victim. Since the State failed to prove the penetration element of the statutory-rape charges, Pittman concludes that there was no way he could have passed herpes to the victim.

¶ 10. We point out that Pittman’s allegation of newly discovered evidence is without foundation. During his criminal trial, the State presented evidence that tended to indicate that he had infected his daughter with Herpes Simplex II or Genital Herpes. In his PCR motion, he simply makes a new argument as to why he believes the evidence presented at trial by the State was insufficient to sustain his convictions.

¶ 11. Next, in support of his assertion that the herpes tests were unreliable, Pittman submitted the affidavit of Dr. Kevin Hayes that stated the State used unreliable and outdated tests that are not accepted in the medical community to determine that Pittman had infected Pittman’s daughter with genital herpes. According to Dr. Hayes, the two tests that the State offered against Pittman were unreliable in that the tests, performed by SmithKline Beecham Clinical Laboratories and MRL Reference Laboratory, respectively, could not distinguish between the Herpes Simplex Viruses Type I and Type II and that the State should have used a different test — the Reflex Test. Notably, Dr. Hayes did not state that the Reflex Test was unavailable at the time of Pittman’s conviction. Even evidence that is considered quite powerful might not mandate a new trial if such evidence could have been discovered through due diligence by the time of the original trial. Hunt v. State, 877 So.2d 503, 513 (¶53) (Miss.Ct.App.2004). Pittman knew that the State intended to present evidence against him at trial regarding the transmission of herpes from him to the victim. There is no indication that it was not possible for Pittman to present evidence of the impossibility of him passing herpes to the victim at trial, so we can only conclude that it could have been discovered through due diligence. See id. at 513-14 (¶ 58).

¶ 12. An evidentiary hearing or reopening of a case will not be ordered every time there are contradictory testimonies. Meeks, 781 So.2d at 114 (¶ 13). The trial court has discretion in determining whether to grant an evidentiary hearing or reopen a case. Id. at (¶ 14). It is unclear whether Pittman is attempting to prove that he could have contracted herpes from the victim or prove that the tests admitted during trial do not always accurately differentiate between Herpes Simplex Virus Type I and Type II. Either way, he has failed to demonstrate that medical information regarding the alleged unreliability of the tests used against him at trial was not available at that time. While Dr. Hayes’s affidavit conflicts with Dr. William T. Jones’s trial testimony— that the herpes tests were rehable and adequate — the evidence that Pittman proposes to introduce as newly discovered evidence is merely impeachment evidence. Dr. Hayes did not testify at trial, and Pittman has failed to explain why this evidence could not have been discovered before the original trial through the exercise of due diligence. Indeed, he presented this evidence in his post-trial motion.

¶ 13. Lastly, Pittman seeks to prove, via affidavits from nonmedical persons, that the victim could have contracted herpes from another source. Affidavits that assert that the victim may have been exposed to herpes by someone other than Pittman before any alleged incident with him do not constitute newly discovered evidence that would require a new trial. We agree with the trial court that the affidavits are objectionable hearsay and merely serve as impeachment evidence as to the herpes transmission. As is the case with the affidavit from Dr. Hayes, Pittman has not explained why it was not possible for this evidence to have been discovered before trial. After all, he also presented this evidence in his post-trial motion. This issue is without merit.

b. Ineffective Assistance of Counsel

¶ 14. When a defendant claims that he received ineffective assistance of counsel, he has the burden of proving that, under the totality of the circumstances, his counsel’s performance was deficient, and as a result, he was deprived of a fair trial. Bell v. State, 879 So.2d 423, 430 (¶ 8) (Miss.2004). The analysis begins with the rebut-table presumption that counsel’s conduct fell “within the wide range of reasonable professional assistance.” Id. at 431 (¶ 9). This presumption may be rebutted if the defendant can show that, but for counsel’s errors, the outcome of the proceeding would have been different. Id. at (¶ 10). Decisions that fall within the realm of trial strategy do not amount to ineffective assistance of counsel. Porter v. State, 963 So.2d 1225, 1230 (¶ 18) (Miss.Ct.App.2007). Counsel’s decisions whether or not to file motions, call certain witnesses, ask certain questions, and make certain objections fall within the definition of trial strategy. Lawrence v. State, 780 So.2d 652, 659 (¶ 28) (Miss.Ct.App.2001).

¶ 15. Pittman claims that his trial counsel was ineffective by: (1) failing to develop an alibi defense and present alibi witnesses who were present and able to testify, (2) conducting a limited cross-examination of the victim and failing to call the alleged victim’s treating medical providers as witnesses, (3) failing to call the victim’s mother as an adverse witness, (4) failing to pursue a Mississippi Rule of Evidence 412(b)(2)(C) motion, (5) failing to engage a defense expert witness on the subject of herpes, (6) failing to introduce evidence of past litigation between Pittman and the victim’s mother concerning false sexual allegations, (7) permitting evidence of Pittman’s blood-test/herpes-test results obtained in violation of his constitutional rights, (8) failing to introduce evidence that Pittman tested negative for all sexually transmitted diseases, and (9) failing to explore any and all defenses available to Pittman concerning the allegation that he gave the victim herpes. Additionally, Pittman claims that his trial counsel was ineffective because counsel placed his own pecuniary interest ahead of his duty to Pittman.

¶ 16. Pittman’s first five grounds clearly concern trial strategy that is within counsel’s discretion. The trial court concluded that the choices Pittman’s counsel made regarding failure to call alibi witnesses; limiting his cross-examination of the victim; failing to call other witnesses, including the victim’s mother and treating physicians; and failing to file a Rule 412(b)(2)(C) motion were not unreasonable and were sound trial strategy that could only help Pittman. We agree.

¶ 17. Moreover, Pittman never specifically established in his motion how any of the choices his counsel made regarding the first five grounds of his claim for ineffective assistance of counsel denied him a fair trial. Therefore, he has failed to carry his burden of proof. As indicated in his brief, he merely hopes that all of his claims will have a cumulative effect in showing that counsel was ineffective and that this led to an unfair trial.

¶ 18. Pittman also alleges that his counsel was ineffective by failing to introduce evidence of past litigation between him and the victim’s mother concerning a previous molestation allegation. Although charges were never filed, there is no indication that the victim’s prior allegations of sexual abuse were false. Pittman attempts to establish a malicious motive for the victim and his ex-wife by arguing that the victim’s previous allegations should have been introduced as evidence. However, Pittman failed to demonstrate that counsel’s failure to introduce evidence that the past litigation had a prejudicial effect or that the evidence, if presented, would have shown that the victim and his ex-wife had intentionally made a false allegation.

¶ 19. Grounds seven through nine concern the herpes tests administered to Pittman and his assertion that his counsel should have explored available defenses concerning the allegation that Pittman gave the victim herpes. We have concluded that Pittman’s alleged newly discovered evidence does not meet the test for newly discovered evidence and that, at best, it is only impeachment evidence. Further, even if counsel had presented the testimony of Dr. Hayes, Pittman has not shown that the outcome of his criminal trial would have been different, as the State presented credible evidence that the tests were reliable. Therefore, Pittman has failed to show that he was denied a fair trial.

¶ 20. Lastly, Pittman argues that his trial counsel’s attempt to advance his own pecuniary interests prevented him from zealously representing Pittman. Pittman claims that because defense counsel requested $3,000 to hire a private investigator, defense counsel was acting in his own pecuniary interest. Further, Pittman asserts that counsel’s performance at trial was merely perfunctory. However, Pittman fails to show how his counsel’s hiring an investigator benefitted counsel’s pecuniary interest more than it benefitted Pittman’s defense. Pittman merely makes a conclusory statement without showing that the request for $3,000 amounted to deficient performance or prejudiced his case. Therefore, Pittman failed to carry his burden of proof. This issue is without merit.

II. Evidentiary Hearing

¶ 21. “This Court has consistently held that there is no automatic right to an evidentiary hearing under the Mississippi Uniform Post-Conviction Collateral Relief Act” when a defendant has filed a PCR motion. Porter, 963 So.2d at 1228 (¶ 9). The trial court has discretion in determining whether to grant the PCR movant an evidentiary hearing, but the evidence in question must contest material facts in order for the defendant to be entitled to a hearing. Meeks, 781 So.2d at 114 (¶ 14).

¶ 22. Here, Pittman argues that the evidence he presented in his PCR motion to support his claims of newly discovered evidence and ineffective assistance of counsel justifies an evidentiary hearing. He further contends that there are several contested issues of material fact that should have been explored through an evi-dentiary hearing. Pittman’s alleged newly discovered evidence aims to refute the allegation that he infected the victim with herpes. However, the outcome of the case does not turn on whether Pittman infected the victim with herpes. Whether or not Pittman gave the victim herpes is not a material fact, and even if the evidence disproves that Pittman infected the victim with herpes, it will not exculpate him from the sexual-battery charges.

¶ 23. As to Pittman’s claim that he should have received an evidentiary hearing because his counsel was ineffective, we have already determined that there is no merit to the claim that his counsel was ineffective. Therefore, it follows that Pittman’s claim that he should have received an evidentiary hearing regarding his counsel’s actions is likewise without merit. Having found no merit to any of the issues raised, we affirm the judgment of the circuit court.

¶ 24. THE JUDGMENT OF THE AL-CORN COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Inasmuch as Pittman’s conviction had been affirmed on direct appeal, he was required to obtain permission from the Mississippi Supreme Court before filing a PCR motion, which he did.


source: Caselaw Access Project

author: IRVING, P.J., MAXWELL, J.,

license: Public Domain

text:
    Roland DeWayne PALMER, Appellant v. Ceicle Glynn Spiers Prince PALMER, Appellee.
    No. 2011-CA-01199-COA.
    Court of Appeals of Mississippi.
    May 7, 2013.
    Rehearing Denied Sept. 10, 2013.

      Renee M. Porter, Amy Stanflll Smith, attorneys for appellant.
    Clement S. Benvenutti, Louis, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. Roland DeWayne Palmer and Cei-cle Glynn Spiers Prince Palmer agreed to a divorce on the ground of irreconcilable differences and submitted the issues of equitable distribution and alimony to the Hancock County Chancery Court for a determination. The chancery court initially rendered a judgment that was challenged by Ceicle’s motion for reconsideration. Ultimately, the chancery court valued the marital estate at $161,395 and divided it equally between the parties. Roland appeals and argues that the home is not marital property, but if it is, the court erred in finding that Ceicle is entitled to a fifty percent interest in the home. Roland further argues that if Ceicle is awarded a fifty percent interest in the home, equity requires that he should also be awarded alimony from Ceicle.

¶ 2. We find that the chancellor’s decision was manifestly and clearly erroneous, as there is a lack of substantial evidence to support his decision to award Ceicle a fifty percent interest in the marital estate. Therefore, we reverse the judgment of the chancery court and remand this case for further proceedings.

FACTS

¶ 3. Prior to his marriage to Ceicle, Roland was married to Ella Ray Lee. Ella’s brother gave her one acre of land, on which Ella and Roland built a home in 1995. The home was in Ella’s name only when she died in 1998. However, Ella and Roland’s children deeded the land and the home to Roland after Ella’s death. There was no outstanding indebtedness on the home. On November 25, 1999, Roland married Ceicle, and she moved into the home. At the time of the marriage, Roland was not working; however, Ceicle was employed at the Grand Casino in Gulf-port, Mississippi. Roland had retired earlier in 1999 after undergoing cancer surgery and his second open-heart surgery.

¶ 4. Roland paid the taxes, insurance, and utilities on the home. Ceicle bought groceries for the household, paid the phone bill, and contributed to some of the utilities. Ceicle also paid $2,000 for carpeting the living-room floor and tiling the kitchen floor. Due to damage to the home during Hurricane Katrina, Roland received approximately $27,000 in insurance proceeds. The parties separated in October 2008 and were divorced on December 2, 2010. At the time of their separation, the parties had approximately $20,000 in cash, which included a portion of the insurance proceeds.

¶ 5. As of the date of trial, Roland’s only income was $570 per month in Social Security benefits. Ceicle earned approximately $675 a month working as a babysitter. She also received approximately $608 a month in Social Security benefits. Additionally, Ceicle had a retirement account, which increased during the marriage, and was worth approximately $17,000. Prior to Hurricane Katrina, Ceicle was employed at a casino, making $24,000 per year. She admitted that she could have returned to that job, but declined to do so. When the Palmers separated, they divided the cash equally and the remainder of their personal property.

¶ 6. The chancellor granted the Palmers a divorce and made the following findings: (1) the Palmers’ home, valued at $95,000, was marital property subject to equitable distribution; (2) Ceicle was entitled to a fifteen percent equitable interest in the home; (3) both parties will retain the items of personal property currently in their possession; (4) Ceicle’s retirement account, valued at $17,000, was marital property and will be divided equally; (5) in satisfaction of Ceicle’s fifteen percent interest in the marital home, Roland will pay her $1,000, and she should retain the entire retirement account; and (6) Ceicle will be awarded $5,000 in lump-sum alimony. In response to a motion to reconsider, filed by Ceicle, the chancery court issued an amended judgment, finding the value of the marital estate to be $161,395 and awarding Ceicle half that amount, including a judgment hen against the marital home for $31,502.50. The court ordered Roland to pay the $31,502.50 within ninety days, and if he failed to do so, granted Ceicle the right to seek a partition of the marital home. The chancellor eliminated the $5,000 lump-sum-alimony award contained in his initial judgment.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

I. Equitable Interest in Marital Home

¶ 8. “The equitable distribution of marital assets is committed to the discretion of the chancellor, whose findings will not be disturbed unless the chancellor was manifestly wrong, clearly erroneous[,] or [applied] an erroneous legal standard.” Jones v. Jones, 995 So.2d 706, 712 (¶ 19) (Miss.2008) (quoting Arthur v. Arthur, 691 So.2d 997, 1008 (Miss.1997)). The Mississippi Supreme Court has held that “[property brought into the marriage by one partner and used by the family becomes a marital asset.” Boutwell v. Boutwell, 829 So.2d 1216, 1221 (¶ 19) (Miss.2002) (citing Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994)). “Assets which are classified as non-marital ... may be converted into marital assets if they are ... utilized for domestic purposes, absent an agreement to the contrary.” Id. at (¶ 20) (citations omitted).

¶ 9. We agree with the chancellor’s finding that the home is marital property. Although the home was clearly Roland’s separate property prior to his marriage to Ceicle, the parties lived in the home as a married couple. As such, the home was converted into a marital asset.

¶ 10. We have held that “[e]qui-table distribution does not mean equal distribution,” and there is no requirement that each spouse must receive half of an interest in the property. Jenkins v. Jenkins, 67 So.3d 5, 11 (¶ 13) (Miss.Ct.App.2011) (quoting Seymour v. Seymour, 960 So.2d 513, 519 (¶ 15) (Miss.Ct.App.2006)). “[E]quitable distribution [is] a fair division of marital property based on the facts of each case.” Seymour, 960 So.2d at 519 (¶ 15). We point out that the chancellor did not specifically award Ceicle a fifty percent interest in the marital home. Rather, he awarded her a fifty percent interest in the marital estate. However, the effect of awarding her fifty percent of the marital estate was to award her a fifty percent interest in the marital home. In reaching his decision, the chancellor noted that there was no evidence that the home had appreciated in value during the course of the marriage and that Ceicle’s only financial contribution to the home was $2,000 for putting in some carpet and tiling the kitchen floor. At one point, the chancellor stated that there was no evidence that the carpet and tile had resulted in an appreciation in the value of the home. However, the chancellor later said that Ceicle had made $2,000 worth of improvements.

¶ 11. We acknowledge the clarity in our law — that equitable distribution is committed to the sound discretion of the chancellor. However, we, as an appellate court, have oversight responsibility, and if we could never reverse a chancellor’s decision regarding equitable distribution, our oversight responsibility would be reduced to the ministerial act of simply rubber-stamping a chancellor’s decision. While Ceicle did pay $2,000 for new flooring, it is difficult to conclude that her meager financial contribution, along with her domestic contributions to the relationship, warrants a fifty percent interest in the marital home. The house was already paid for before Ceicle and Roland married. The record reflects that Roland also made domestic contributions to the relationship in addition to providing the home, without any compensation or contribution from Ceicle. The record also reflects that Roland has no money from any source other than his meager Social Security check. He would be forced to sell the home in order to pay Ceicle the $31,502.50 that the chancellor awarded her. At that point, he would be homeless or would have to incur additional expenses for lodging. Even the chancellor recognized this fact, as he specifically found:

If this court were to direct that Roland Palmer sell the marital home, he would net some cash, but would be forced to either rent or buy and would rapidly deplete any funds realized from the sale of the home. Based upon his current income, he would be unable to afford to either rent or buy.

Nevertheless, despite this finding by the chancellor, he ordered Roland to pay Cei-cle $81,502.50 within ninety days or risk having the home sold.

¶ 12. We also note that at the time of trial, Ceicle was sixty-five years of age and in reasonably good health. Roland was seventy-five years old and in poor health. On the facts of this case, we are constrained to find that awarding Ceicle a fifty percent interest in the marital estate is both manifestly wrong and clearly erroneous. Accordingly, we find that the chancellor erred in his distribution of the marital estate and remand the issue of equitable distribution for reconsideration.

¶ 13. The dissent apparently misreads the focus of our finding that the chancellor erred in dividing the marital estate, as the dissent states, in paragraph 21, that “Mississippi law does not require a spouse to have made a direct economic contribution to an asset to be awarded an interest.” Nothing in our opinion suggests that our law requires such. We do not find error with the chancellor’s judgment because it awarded Ceicle what is tantamount to a fifty percent interest in an asset that she made no contribution to acquiring. We have discussed the facts surrounding the acquisition of the marital home because those facts are relevant to the greater issue of whether there is substantial evidence to support the chancellor’s finding that a fifty-fifty division of the marital estate is equitable. It is only one piece of the overall equation, but an important piece because the marital home constitutes more than fifty percent of the total value of the marital estate. To be clear, our decision rests upon a consideration of the totality of the factual circumstances, including Roland’s health versus Ceicle’s, Roland’s post-divorce financial situation, and especially the chancellor’s finding and recognition that:

If this court were to direct that Roland Palmer sell the marital home, he would net some cash, but would be forced to either rent or buy and would rapidly deplete any funds realized from the sale of the home. Based upon his current income, he would be unable to afford to either rent or buy.

Despite this finding, the chancellor, in effect, concluded that it was equitable to thrust Roland into the very situation that he specifically found was inequitable and which would leave Roland in dire straits.

II. Alimony

¶ 14. Equitable distribution and alimony go hand in hand in divorce proceedings. See Lauro v. Lauro, 847 So.2d 843, 849 (¶ 13) (Miss.2003). We have found that the chancellor erred in his distribution of the marital estate and are reversing and remanding for the chancellor to reconsider the distribution. Alimony is to be considered only after there has been an equitable distribution of the marital estate and one party has been left with a deficit. See Byrd v. Byrd, 100 So.3d 443, 447 (¶ 7) (Miss.2012). Therefore, on remand, the question of whether alimony should be awarded to either party should be reexamined in light of the equitable distribution.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND JAMES, JJ., CONCUR. MAXWELL, J„ DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON AND FAIR, JJ.

MAXWELL, J.,

dissenting:

¶ 16. While I share some of the majority’s concerns and may have handled the equitable distribution differently than the chancellor, I cannot find manifest error on the chancellor’s part necessary to justify reversal. Thus, based on our deferential standard of review, I dissent.

¶ 17. The chancellor applied the correct legal analysis in carrying out the equitable distribution. As required, he first identified the various assets that qualified as marital property. See Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994). These particular marital assets included $20,000 in insurance proceeds, $29,395 in personal property, and $17,000 in Ceicle’s retirement account. He also, as the majority points out, correctly identified the thirteen-year-old $95,000 home, in which Ceicle had lived with Roland for the entirety of their ten-year marriage, as marital property under the family-use doctrine. See Boutwell v. Boutwell, 829 So.2d 1216, 1221 (¶ 19) (Miss.2002). This amount, when added to the marital pot, increased the total value of the marital estate to $161,395.

¶ 18. The chancellor next applied the Ferguson factors to equitably divide the marital property, making on-the-record findings for each factor. See Johnson, 650 So.2d at 1287 (citing Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994)). And he supported his eventual decision to split the marital property 50/50 with substantial evidence.

¶ 19. Though Roland was initially awarded almost all of the equity in the home, the chancellor was obviously swayed by Ceicle’s arguments that she had made substantial contributions to the marital estate. So he granted Ceicle’s Rule 59 motion to alter or amend the judgment and entered a modified judgement. See M.R.C.P. 59. Ultimately, Ceicle received half of the marital estate, or $80,697.50, which when broken down equates to $10,000 cash from the insurance proceeds, $22,195 in personal property, the entire $17,000 retirement account, and $31,502.50 of the marital home’s equity. He ordered this amount to be paid in cash by Roland to Ceicle.

¶ 20. Divvying the estate equally, the chancellor awarded Roland the same amount, $80,697.50 — $10,000 cash from the insurance proceeds, $7,200 in personal property, and the remaining $63,497.50 in equity in the marital home. Roland also received possession and title of the home, and Ceicle was granted a lien on the home to secure her interest.

¶ 21. The majority chooses to disturb this decision primarily because Ceicle’s contribution “to the home” did not, in its eyes, equal her awarded interest. But Mississippi law does not require a spouse to have made a direct economic contribution to an asset to be awarded an interest. “[Sjpouses are not prohibited from receiving a portion of marital assets acquired solely by the other spouse’s financial contributions where the non-cash contributing spouse has made alternative contributions to the marriage.” Owen v. Owen, 928 So.2d 156, 164 (¶ 16) (Miss.2006) (citing Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994)). So awarding Ceicle an interest in a marital asset to which Roland solely contributed, does not itself, amount to legal error. While the majority spends most of its focus on the accumulation of one marital asset — the marital home — the chancellor considered contribution to all the marital assets. And in addition to Ceicle’s paying the utilities and making other “domestic contributions,” the chancellor found she also worked outside the home and accumulated “a not insubstantial retirement account.”

¶22. I certainly understand why the majority of this court prefers that the chancellor had stayed with his original decision to grant Roland almost all of the equity in the marital home. But a consistent application of our standard of review shows the chancellor made no manifestly wrong or clearly erroneous findings. Nor does it reveal an improper application of the law that would prompt this court to reverse a decision committed to the chancellor’s discretion. See Byrd v. Byrd, 100 So.3d 443, 447 (¶ 5) (Miss.2012); Johnson, 650 So.2d at 1285.

¶ 23. Simply put, the home was a marital asset. As such, the chancellor had authority and discretion to award Ceicle an interest in it based on his Ferguson findings and overall equitable division of the marital assets. Because I find the chancellor did not abuse his broad discretion, I would affirm.

CARLTON AND FAIR, JJ., JOIN THIS OPINION.

      . Fifteen percent of $95,000 equals $14,250, although the court erroneously calculated the amount to be $9,500.

      . Because $31,502.50 of Ceicle’s half of the marital estate was awarded as a lump-sum payment, the chancellor found the original award of $5,000 in lump-sum alimony was no longer necessary.

      . See Stewart v. Stewart, 864 So.2d 934, 938-39 (¶¶ 16-18) (Miss.2003) (holding that, because home purchased solely by husband was converted to marital property through family use, chancellor did not err in awarding wife portion of insurance proceeds paid when house burned down).


author: LEE, C.J.,

text:
    Brian Layne PEARSON, Appellant v. Tammy Elizabeth PEARSON, Appellee.
    No. 2009-CA-00885-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      Gerald C. Patch, Tara Lola Kellar, attorneys for appellant.
    Nancy E. Steen, Hattiesburg, Joseph Connley Stewart, Picayune, attorneys for appellee.
    Before LEE, C.J., BARNES and ISHEE, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Brian Layne Pearson and Tammy Elizabeth Pearson were married on October 13, 1984, and separated on January 7, 2003. At the time of the separation, their two children were twenty-two years old and fifteen years old.

¶ 2. Tammy filed a complaint for divorce, alleging habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Brian filed his answer/counter-eomplaint on the ground of adultery or, in the alternative, irreconcilable differences. On June 30, 2004, Tammy and Brian signed a consent to divorce on the ground of irreconcilable differences, and agreed to let the chancellor determine the value and division of the marital assets, alimony, and each party’s separate indebtedness, marital indebtedness, attorney’s fees, and court costs.

¶ 3. The final judgment of divorce was entered on August 18, 2004, and awarded Tammy rehabilitative alimony of $800 for thirty months, along with “33% of [Brian’s] pension for the years of [Brian’s] employment with Lockheed Martin up to March 8, 2003.” In the qualified domestic relations order (QDRO), the chancellor stated that Tammy’s interest should be valued as of March 8, 2003, to be paid to her on a ten-year “guaranteed payout.” Additionally, the chancellor stated, “[Brian] shall not be entitled to select a payment option in which [Tammy] will net less than $85,296.82 in total payable to [her]_”

¶4. On June 29, 2007, Brian moved for reconsideration of the QDRO, because the $85,296.82 award was “significantly more” than 33% of the March 8, 2003 value of Brian’s pension. Brian stated that the pension estimator that had been submitted to the chancellor was based on the January 31, 2012 value and not the March 8, 2003 value. Brian argued that as a result, the QDRO did not accurately reflect the chancellor’s intent. Brian reasserted this position in his motion for a pretrial conference on December 15, 2008. Brian attached a letter from Lockheed Martin, stating that Brian’s estimated accrued benefit as of March 8, 2003, was “$596.86 per month, payable in the form of a Ten Year Certain and For Life Annuity at the earliest retirement age under the [pension], age 55 (01/01/2012).”

¶ 5. After a hearing on April 28, 2009, the chancellor issued an order denying Brian’s motion to reconsider, stating:

The Court finds in reviewing a transcript of the Court’s Bench Ruling that, in making said determination, it used a computer printout (pension estimator) at the trial, Exhibit 21, and that [Brian] had the ability to get someone from Lockheed Martin who was an expert to explain what it meant and what was vested in [Brian’s] (pension) at the time of trial, but did not do so. To do so now would require the Court to reconsider its entire equitable distribution of the marital property and debts[,] which it will not now do.

Brian filed his notice of appeal on June 1, 2009. He was laid off from Lockheed Martin on October 30, 2010, and, as a result, stopped contributing to his pension on that date.

STANDARD OF REVIEW

¶ 6. This Court only disturbs a chancellor’s findings if they are manifestly wrong or clearly erroneous or if the chancellor applied an incorrect legal standard. Stokes v. Campbell, 794 So.2d 1045, 1047-48 (¶ 9) (Miss.Ct.App.2001). “A chancellor’s conclusions of law are reviewed de novo.” Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 26) (Miss.2009).

DISCUSSION

¶ 7. The only issue on appeal is the value the chancellor used to determine Tammy’s 33% of Brian’s pension. Notification of the appeal was sent to Tammy’s attorney on June 1, 2009. However, Tammy did not file a brief in response. The Mississippi Supreme Court has stated:

Failure of an appellee to file a brief is tantamount to confession of error and will be accepted as such unless the reviewing court can say with confidence, after considering the record and brief of [the] appealing party, that there was no error. Where the appellant’s brief makes out an apparent case of error ..., we do not regard it as our obligation to look to the record to find a way to avoid the force of the appellant[’s] argument.

Dethlefs v. Beau Maison Dev. Corp., 458 So.2d 714, 717 (Miss.1984) (internal citations omitted). While automatic reversal is not required in cases where the appellee does not file a brief, “[t]he appellant’s argument should at least create enough doubt in the judiciousness of the trial court’s judgment that this Court cannot say with confidence that the case should be affirmed.” Selman v. Selvian, 722 So.2d 547, 551 (¶ 13) (Miss.1998) (internal quotation omitted).

¶ 8. Brian’s argument “create[s] enough doubt in the judiciousness of the [chancellor’s] judgment[.]” Id. The valuation the chancellor used was the January 31, 2012 value and not the March 8, 2003 value, which would have been consistent with the chancellor’s ruling in the final decree of divorce. Therefore, this case is reversed and remanded for a determination of the appropriate value of Brian’s pension as of March 8, 2003, which may or may not necessitate a reevaluation of the equitable distribution of marital assets and alimony by the chancellor.

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

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

      . The pension estimator was based on the month and year Brian planned to stop working, which was January 31, 2012.


author: CARLTON, J.,

text:
    David Keon BRAGGS a/k/a David Keen Braggs a/k/a David K. Braggs a/k/a David Braggs a/k/a David Keon Bragg a/k/a David K. Bragg, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01829-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      William R. Labarre, W. Daniel Hin-chcliff, George T. Holmes, Jackson, Virginia Lynn Watkins, attorneys for appellant.

      Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   CARLTON, J.,

for the Court:

¶ 1. David Keon Braggs appeals his conviction for armed robbery and sentence of twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). Finding no reversible error, we affirm Braggs’s conviction and sentence.

FACTS

¶ 2. On November 16, 2000, four individuals robbed the Trustmark National Bank in Jackson, Mississippi. Witnesses observed the men exit the bank carrying a bag and guns, and drive off in a vehicle. After a dye pack in the money bag exploded, the men abandoned their vehicle and ran. Officers from the Jackson Police Department apprehended three of the robbers — Willie Horton, Sam John Oliver, and William Arilester Tellis — as they fled. Police officers later arrested and questioned Braggs on November 20, 2000. Braggs admitted to being with the perpetrators prior to the robbery, but he claimed he did not want to participate in the robbery and left before the three robbed the bank. A Hinds County grand jury indicted Braggs, Horton, Oliver, and Tellis for armed robbery pursuant to Mississippi Code Annotated section 97-8-79 (Rev.2006). Horton, Oliver, and Tellis all pled guilty to armed robbery.

¶ 8. On November 15-17, 2004, a jury trial was held in the Hinds County Circuit Court. During the trial, the jury heard testimony from the following witnesses: Trustmark employees Charles Taylor, Mikki Smith, Theresa Havens, and Nicole Spires Brown; Norman McCarty and Traci Maloney, who were outside of the bank during the robbery; Wayne Humphreys, the corporate security officer for Trust-mark; Officer Ned Garner of the Jackson Police Department; Federal Bureau of Investigation (FBI) Agents Edward Parme-lee, Norman Comeaux, Patrick Henson, and Brendan Sheehan; and Horton, Braggs’s co-indictee.

¶ 4. The four Trustmark employees who were in the bank during the robbery testified for the State, giving their accounts of the robbery. None of the employees were able to identify Braggs as having been in the bank. They did, however, report seeing four robbers in the bank during the robbery. Photographs of the surveillance tape from the day of the robbery were also admitted into evidence. During Horton’s testimony, he stated that he did not want to testify against Braggs, and he invoked his Fifth Amendment rights upon being questioned by the prosecutors.

¶ 5. At the close of the State’s case, the defense moved for a directed verdict, which the trial court denied. The jury convicted Braggs of armed robbery, and the trial court sentenced Braggs to a term of twenty-five years in the custody of the MDOC. Braggs subsequently filed a motion for a new trial or a judgment notwithstanding the verdict (JNOV) on November 23, 2004, which the trial court denied. Braggs now appeals. He raises one assignment of error, claiming that his defense counsel at trial was ineffective, thereby resulting in an unfair trial.

STANDARD OF REVIEW

¶ 6. Denials of motions for a JNOV or a new trial involve two different standards of review. We review denials of motions for a new trial based on the weight of the evidence, while we review denials of motions for a JNOV based on the sufficiency of the evidence. Price v. State, 892 So.2d 294, 297 (¶ 10) (Miss.Ct.App.2004).

¶ 7. In our review of a denial of a motion for a new trial, we accept as true all evidence in favor of the State. Id. at (¶ 11). We will reverse the denial of a motion for a new trial only if the trial court abused its discretion. Id.

¶ 8. Alternatively, our review of whether the trial court erroneously denied a motion for a JNOV focuses on the sufficiency of the evidence presented at trial. On appellate review of the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Id. at (¶ 12). Additionally, the State “is given the benefit of all favorable inferences that may be reasonably drawn from the evidence, and all credible evidence consistent with the defendant’s guilt must be accepted as true.” Id.

¶ 9. Furthermore, although ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction relief proceedings, the supreme court has held that appellate courts “may address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record.” Archer v. State, 986 So.2d 951, 955 (¶¶ 15-16) (Miss.2008); see also M.R.A.P. 22. On direct appeal, this Court is limited to the trial court record in its review of the claim, and we recognize that “there may be instances in which insufficient evidence exists within the record to address the claim adequately.” Id. at (¶ 15). In such instances, “the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief.” Id.

DISCUSSION

¶ 10. On appeal, Braggs’s sole assignment of error alleges that his trial counsel was ineffective. Braggs asserts that due to the ineffectiveness of his counsel, he was denied of his right to a fair trial. In Ellis v. State, 952 So.2d 251, 258 (¶ 9) (Miss.Ct.App.2006), this Court recognized that “[t]he standard of review for ineffective assistance of counsel claims is the two-part test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 ... (1984), which requires a showing that (1) counsel’s performance was deficient and (2) that the deficiency prejudiced the defense.” Accordingly, Braggs must prove that his trial counsel “made errors so serious that [his counsel] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment ... [and] that counsel’s errors deprived him of a fair trial with reliable results.” Colenburg v. State, 735 So.2d 1099, 1103 (¶ 9) (Miss.Ct.App.1999).

¶ 11. We acknowledge that a presumption exists that an attorney’s performance falls within the wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic. Vielee v. State, 653 So.2d 920, 922 (Miss.1995). The Strickland, test is applied with deference to counsel’s performance, considering the totality of the circumstances to determine whether counsel’s actions were both deficient and prejudicial. Conner v. State, 684 So.2d 608, 610 (Miss.1996). The test is to be applied to the overall performance of the attorney. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Further, with respect to the overall performance of the attorney, we note that a “counsel’s choice[s] of whether or not to file certain motions, call certain witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy.” Scott v. State, 742 So.2d 1190, 1196 (¶ 14) (Miss.Ct.App.1999).

¶ 12. Braggs claims his trial counsel seemed determined to ensure that the three co-indictees identified Braggs and implicated him in their crime. Braggs refers specifically to the following statement of his trial counsel during voir dire: “If there was not one shred of evidence that David Braggs participated in the crime charged except evidence from the co-defendants, how many of you could consider the source and give him a fair trial?”

¶ 13. Braggs also submits that the State’s case lacked any substantive evidence that he was an actual participant in the robbery. Braggs admits that he told Agent Comeaux that he had been with the perpetrators prior to the robbery. Braggs, however, claims that he told Agent Comeaux that he abandoned the plot and demanded to be released from the vehicle before anything happened.

¶ 14. Braggs also claims that his trial counsel opened the door for the State to ask Agent Parmelee about statements made by the co-indictees to FBI agents regarding Braggs’s involvement in the robbery. Braggs specifically refers to the cross-examination of Agent Parmelee, wherein his defense counsel asked the agent whether he possessed “any information that might link ... Braggs to anything regarding this crime.” Agent Par-melee responded, “Other than the items of evidence that were collected, which we’ve been over, it’s my understanding there were statements by the co-defendants and other things.” Braggs asserts that his defense counsel’s question opened the door for the State to inquire further into statements made by the co-indictees, which incriminated Braggs.

¶ 15. The State argues that Braggs failed to show that his counsel was ineffective or that his trial was unfair. The State submits that Braggs’s guilty verdict resulted not from ineffective counsel, but rather from substantial credible evidence supporting Braggs’s guilty verdict. The State cites to McClain v. State, 625 So.2d 774, 778 (Miss.1993), in support of its argument that sufficient testimony and evidence in support of Braggs’s conviction exists, even when excluding the disputed information elicited on cross-examination by Braggs’s defense counsel.

1116. We now turn to a review of the evidence in the record. Bank employees Taylor and Brown testified to seeing four men rob the bank on November 16, 2000. Agent Comeaux testified that he could identify Braggs’s face from photograph nine of the photographs from the surveillance tapes made on the day of the robbery. This particular photograph captured a man’s face, and Agent Comeaux identified the man in the picture as Braggs. The man in photograph nine wore a New York Yankees cap. The witnesses outside of the bank, McCarty and Maloney, testified that they saw four men exiting the bank with a bag and guns, and these witnesses observed a New York Yankees cap left behind in the bank parking lot when the four men abandoned their car. Horton, one of the co-conspirators, testified that he had received no promises of reward or leniency. Additionally, before Horton invoked his Fifth Amendment right to remain silent, he testified that Braggs remained a friend and that they had been friends since childhood; identified Braggs in the courtroom; and admitted to previously telling investigators that Braggs had participated in the robbery. The record shows that Horton refused to inculpate Braggs at trial or identify Braggs as a participant in the robbery.

1117. The record shows the defense raised no motion for a mistrial when Horton invoked his right to remain silent on direct examination after he was asked to identify Braggs as one of the robbers. Instead, the defense proceeded to cross-examine Horton. Then, the State rested. The defense moved for a directed verdict, arguing that the State had failed in meeting its burden to provide “hard evidence” incriminating Braggs, and that the State had failed to produce any testimony that could establish Braggs’s presence at this bank robbery. The record reflects that rather than raising an objection or a motion for a mistrial, the defense instead used Horton’s refusal to answer questions regarding Braggs’s participation in, or presence at, the bank robbery to its strategic advantage by moving for a directed verdict on the basis of a failure of proof by the State. The trial court denied the defense’s motion for a directed verdict and its subsequent post-trial motion for a JNOV. On appeal, the defense again raises its challenge to the sufficiency of the evidence — asserting a failure-of-proof argument — in support of Braggs’s assignment of error claiming ineffective assistance of counsel.

¶ 18. The face of the record fails to support Braggs’s claim of ineffective assistance of counsel. See Archer, 986 So.2d at 955 (¶ 15). The record contains sufficient evidence supporting the jury’s verdict and Braggs’s conviction. Braggs has failed to show that his counsel performed deficiently. Therefore, Braggs’s argument fails to satisfy even the first prong of Strickland, which requires both a showing of deficient performance by counsel and resulting prejudice.

¶ 19. In Liddell v. State, 7 So.3d 217, 222-23 (¶ 14) (Miss.2009), cited by both parties in their briefs, the supreme court found no evidence of ineffective assistance of counsel where the defense counsel questioned a witness about previously buying drugs from Liddell, thus eliciting testimony that Liddell sold drugs. As previously acknowledged, whether the prongs of the Strickland test are met is determined by an examination of the totality of the circumstances. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Additionally, “if [we] can determine from the record that counsel was ineffective, then it should have been apparent to the presiding judge, who had the duty ... to declare a mistrial or order a new trial sua sponte.” Colenburg, 735 So.2d at 1102 (¶ 8).

¶20. In Houston v. State, 887 So.2d 808, 815 (¶ 34) (Miss.Ct.App.2004), we held that

[t]his Court is reluctant to define counsel’s trial strategy as ineffective assistance of counsel. On matters of trial strategy, this Court generally defers to the judgment of counsel. This Court often notes that complaints concerning counsel’s failure to file certain motions, call certain witnesses, ask certain questions, and make certain objections fall within the ambit of trial strategy.

(Internal citations omitted).

¶ 21. Accordingly, we find that Braggs’s assertion that he received ineffective assistance of counsel lacks merit. We affirm the trial court’s judgment of conviction and find no error in the trial court’s denial of Braggs’s motion for a JNOV or, in the alternative, a new trial.

¶ 22. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . Braggs filed a request for a writ of mandamus alleging that the trial judge, Bobby De-Laughter, never ruled on his motion for a JNOV or a new trial. On appeal, the Mississippi Supreme Court ultimately entered an order where it acknowledged Judge William Gowan’s order in response to the request for the writ, stating that Judge Gowan assumed Judge DeLaughter considered the motion and orally denied the motion before sentencing. The supreme court had held that Judge Gow-an's order should be treated as a denial of the motion for a JNOV or a new trial. The supreme court gave Braggs thirty days from the entry of its November 10, 2011 order to file his notice of appeal in the trial court.

      . Although Braggs raises this issue for the first time on appeal, we acknowledge that the supreme court has held "errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal.” Read v. State, 430 So.2d 832, 837 (Miss.1983) (citation omitted) (rejecting the State’s argument that an ineffective-assistance-of-counsel issue is procedurally barred “because it was not properly raised or preserved in the trial court,” explaining that the defendant "never had a meaningful opportunity to raise the issue in the court below”).

      . The defense counsel raised no motion for a mistrial, but instead cross-examined Horton, confirming that Horton understood his Fourth and Fifth Amendment rights. When asked to identify Braggs in a photo, he invoked his right to remain silent. Horton also refused to answer when asked whether Braggs got sprayed with the dye from the money bags, but continued to provide testimony about the other co-conspirators. Horton explained how Tellis jumped over the bank counter with the gun, and he also testified about their flight from the bank.

      . See Puckett v. State, 737 So.2d 322, 349 (¶ 81) (Miss.1999) (failure to assert contemporaneous or specific objection bars review); Williams v. State, 445 So.2d 798, 806 (Miss.1984) (specific ground or grounds for objection must be raised to the trial court “so that timely remedial action, if necessary and possible, can be provided”).


author: ROBERTS, J.,

text:
    Mark BALDWIN and Kay Baldwin, Appellants v. KELLY SERVICES, INC. and Brad Montgomery, Appellees.
    No. 2012-CA-00813-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      Paul E. Rogers, Jackson, attorney for appellants.
    Jason Hood Strong, attorney for appel-lees.
    Before GRIFFIS, P.J., ROBERTS, MAXWELL and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the Bolivar County Circuit Court’s grant of summary judgment in favor of Kelly Services Inc. (Kelly Services) and Brad Montgomery. Mark and Kay Baldwin executed their appeal on May 21, 2012. Finding no error, we affirm the circuit court’s decision granting Kelly Services and Montgomery’s motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Kelly Services is a nationwide employment agency and recruitment company that provides businesses with temporary workers or staff to meet a variety of needs. In this case, Montgomery, an employee of Kelly Services, was working at the Faurecia Automotive Seating Inc. (Faurecia) plant on October 17, 2007, pursuant to a contract between Kelly Services and Faurecia. Per Faurecia’s direction, Montgomery was operating a forklift, unloading and stacking the product. One load Montgomery had stacked became unstable and fell. It is unclear from the record as to whether the load fell directly on Mark Baldwin (Baldwin), a Faurecia employee, or whether the load hit other objects that then injured Baldwin. It is also unclear from the record what injuries Baldwin sustained.

¶ 3. Baldwin collected workers’ compensation benefits through his employer, Faurecia. He and his wife, Kay, then filed a complaint against Kelly Services and Montgomery on August 24, 2009. Baldwin claimed that Montgomery was negligent; therefore, Kelly Services was also liable under the doctrine of respondeat superior. Kay sued for loss of consortium due to Baldwin’s injuries. On October 20, 2010, Kelly Services and Montgomery filed a motion for summary judgment alleging that Baldwin’s exclusive remedy for the work-related injury was workers’ compensation. The circuit court granted summary judgment in favor of Montgomery and Kelly Services on May 3, 2012. In its order, the circuit court found that Montgomery was a borrowed servant at the time of the incident, leaving Baldwin the sole remedy of workers’ compensation. Kay’s loss-of-consortium claim was also denied due to the denial of Baldwin’s claims.

¶ 4. The Baldwins’ sole issue on appeal is whether the “circuit court erred in finding that there were no genuine issues of material fact as to whether or not [Montgomery] was a borrowed servant or dual employee of [Faurecia] at the time of the incident.

ANALYSIS

¶ 5. On appeal, a circuit court’s grant or denial of a motion for summary judgment is reviewed using the de novo standard. Liberty Mut. Ins. Co. v. Shoemake, 111 So.3d 1207, 1209 (¶ 7) (Miss.2013) (citing Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1205 (¶5) (Miss.1998)). Summary judgment properly may be granted where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c).

¶ 6. The Baldwins argue that there was a genuine issue of material fact as to whether Montgomery was a borrowed servant or a dual employee of Faurecia at the time of the incident. According to the Baldwins, no contract existed between Montgomery and Faurecia, and Faurecia merely instructed Montgomery on the work to be completed and did not exert control over Montgomery. Although the Baldwins recognize that Faurecia had the ability to inform Kelly Services that Montgomery was no longer needed or wanted at the plant, they submit that Kelly Services had sole control over hiring and firing Montgomery. Additionally, the Baldwins contend that Faurecia was not responsible for any of the disciplinary actions of Kelly Services’ employees, and it did not handle these employees’ pay roll. Ultimately, the Baldwins submit that the circuit court erred in finding that there was a genuine issue of material fact as to Montgomery’s employment status at the Faurecia plant, making the grant of summary judgment improper.

¶ 7. “The borrowed-servant doctrine is a common-law rule ‘that a servant, in general employment of one person, who is temporarily loaned to another person to do the latter’s work, becomes, for the time being, the servant of the borrower, although he remains in the general employment of the lender.’ ” Gorton v. Rance, 52 So.3d 351, 359 (¶26) (Miss.2011) (quoting Jones v. James Reeves Contractors, Inc., 701 So.2d 774, 778 (Miss.1997)). The Mississippi Supreme Court “has identified three criteria for determining whether one is a borrowed servant: ‘(1) whose work is being performed, (2) who controls or has the right to control the workman as to the work being performed, and (3) has the workman voluntarily accepted the special employment.’ ” Id. (internal citation omitted). After reviewing the record before us and applying the above criteria, we find that Montgomery was a borrowed servant; therefore, Baldwin’s exclusive remedy was through workers’ compensation benefits, which he did receive from his employer, Faurecia.

¶ 8. In regard to the first factor, Montgomery was certainly performing the work of Faurecia at the time of the incident. He was driving a Faurecia-owned forklift in a Faurecia facility, moving product a Faurecia supervisor had instructed him to move. The second factor, who has the control or the right to control the employee as to the work being performed, also supports the finding that Montgomery was a borrowed servant. According to Montgomery’s deposition, at the time of the incident, he had been working for Faurecia approximately forty hours a week for a year. He also explained that Faurecia employees trained him on how to operate a forklift, and instructed him on his duties on a daily basis. He further described that he understood the work he was performing to be for Faurecia and not Kelly Services. Judy Weatherspoon, Kelly Services’ on-site supervisor at the Faurecia plant, also provided a deposition, at which she described her duties as handling payroll, disciplinary actions involving violations of Kelly Services’ disciplinary rules, and “placing [Kelly Services’] employees where needed[.]” Weatherspoon stated that Kelly Services hired the employees and then would supply Faurecia with employees based on what type of employee was needed. She also stated that both Faurecia and Kelly Services could fire employees, but that Faurecia would just inform her that a certain employee was no longer wanted or needed to work. She also testified that Faurecia instructed Kelly Services’ employees on what jobs needed to be done, how to do the job, and what type of job to do, as well as supervised the execution of the job. According to Weath-erspoon, her daily duty was to make sure there were enough employees at the plant. Montgomery testified that Weatherspoon never came back to the work area and never instructed him on how to do the job. Lastly, Montgomery also clearly voluntarily accepted the special employment at Faurecia. As described above, he stated at his deposition that he was doing the work of Faurecia and not of Kelly Services. He knew that he was not performing the work of Kelly Services at a Kelly Services facility. All factors support a finding that Montgomery was a borrowed servant.

¶ 9. The supreme court has held “[s]um-mary judgment is appropriate where a temporary employment agency assigns an employee to another employer and the employee performs the normal work of the second employer and is controlled and supervised by that employer.” N. Elec. Co. v. Phillips, 660 So.2d 1278, 1282 (Miss.1995). The facts of the present case fit squarely within the supreme court’s holding in Phillips. Kelly Services, a temporary-employment agency, assigned Montgomery to work at Faurecia. Montgomery was under the control and supervision of Faurecia in his day-to-day activities at the plant. Our reading of the record indicates that the Kelly Services supervisor was at the plant to ensure there were sufficient employees and to send off its employees’ time cards at the end of the week, but the supervisor did not provide any further instruction to the employees. Thus, based on our analysis of the record, we find that the circuit court properly granted Montgomery and Kelly Services’ motion for summary judgment. We affirm.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


text:
    Otis ROSS a/k/a Otis Lee Ross Sr. a/k/a Othis Polk Ross Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-01151-COA.
    Court of Appeals of Mississippi.
    Sept. 10, 2013.

      George T. Holmes, Jackson, Eugene A. Perrier, Vicksburg, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

      Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A Warren County grand jury indicted Otis Lee Ross Sr., as a habitual offender, on one count of aggravated assault against Richard Bradford. Ross was convicted on this count by a jury in the Warren County Circuit Court. He was subsequently sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC), as a habitual offender. The circuit court denied Ross’s motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial. He did not timely file a notice of appeal; however, his later motion for an out-of-time appeal was granted. Aggrieved by his conviction, Ross executed the current appeal. Finding no error, we affirm Ross’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 14, 2007, Bradford and Ross were at an apartment complex on Bowmar Avenue in Warren County. The incidents occurring that day were disputed at trial. Bradford testified that he had given Ross five dollars to purchase some beer for him. And when Ross returned from the store with no beer, he denied that Bradford had given him any money. Disgruntled with Ross’s failure to bring beer or return his five dollars, Bradford followed Ross to the door of his apartment and again requested his money. According to Bradford, the two men exchanged words and Bradford shoved Ross before turning around and walking away from the door. Bradford testified that he then heard someone say to look out, and when he turned around, he saw Ross coming toward him with a butcher knife. The two men wrestled and Bradford received multiple stab wounds before the knife’s blade and handle broke. Bradford testified that when the knife broke, Ross ran back into his apartment.

¶ 3. Ross testified as to a different series of events. According to Ross, he had never seen or met Bradford until that day, and he was not outside drinking beer with Bradford that day, as Bradford testified. Ross stated that he was asleep in the apartment and that a phone call between one and two in the afternoon woke him up from his sleep. He then testified that he went outside to tell his sister’s boyfriend that someone was on the way to pick them up and take them to the hospital to see his sister. After telling his sister’s boyfriend the information, Ross claimed that Bradford, a man he had never seen or met before, stood up and asked for the five dollars. After exchanging words, Ross attempted to go back inside the apartment when Bradford grabbed him by his shirt and threw him down by another apartment and near some vehicles. According to Ross, Bradford then pulled out a butcher knife, and Ross began wrestling with Bradford for control of the knife. Ross testified he was cut on the hand as a result of the scuffle, and that the injuries Bradford suffered occurred when Bradford fell on the knife during the scuffle. Ross was able to get back into his apartment, where he went to treat his hand injury.

¶ 4. After the altercation, a bloody Bradford approached a parked police car across the street from the apartment complex. After being asked by the police officer, Bradford was able to indicate which apartment the person who stabbed him went into. After repeatedly knocking on the apartment door, the police were eventually able to have Ross answer the door. They then immediately detained him and ultimately arrested him for aggravated assault. Bradford had received injuries to his eye, nose, arm, shoulder, and leg.

¶ 5. A grand jury indicted Ross on July 24, 2007, on one count of aggravated assault, as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Following a two-day trial, a jury convicted Ross of one count of aggravated assault in violation of Mississippi Code Annotated section 97-8-7(2) (Supp. 2012). Ross was sentenced to serve fifteen years as a habitual offender in the custody of the MDOC. On January 1, 2009, Ross filed a motion for a JNOV or, in the alternative, a motion for a new trial; the circuit court denied that motion. After failing to timely file a notice of appeal, Ross filed a motion for an out-of-time appeal. This motion was granted, and Ross filed the current appeal.

¶ 6. On appeal, Ross raises two issues:

I. The evidence was insufficient to support a conviction of aggravated assault.
II. The verdict [was] against the overwhelming weight of the evidence, which established] that Ross acted in necessary self-defense.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 7. “A motion for a JNOV challenges the sufficiency of the evidence.” Woods v. State, 19 So.3d 817, 819 (¶ 6) (Miss.Ct.App.2009) (citing Gary v. State, 11 So.3d 769, 771 (¶8) (Miss.Ct.App.2009)). In reviewing the denial of a motion for a JNOV, “this Court will consider the evidence in the light most favorable to the appellee[,] ... giving [the appellee] the benefit of all favorable inferencefs] that may be reasonably drawn from the evidence.” Id. (quoting Moore v. State, 873 So.2d 129, 132 (¶ 13) (Miss.App.Ct.2004)). And, “if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair[-]minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.” Id.

¶ 8. Ross argues on appeal that the State “failed to produce any corroborating testimony that Ross instigated the fight between himself and Bradford.” He submits that by the State’s failure to present any evidence, aside from the victim’s “uncorroborated” testimony, that Ross attempted to cause bodily harm to Bradford, it failed to prove a necessary element of the crime of aggravated assault. Lastly, he submits that Bradford’s testimony, without other corroborating testimony, was insufficient to rebut Ross’s claim of self-defense; therefore, the State did not meet its burden of proving Ross did not act in self-defense.

¶ 9. Ross was convicted of violating Mississippi Code Annotated section 97-3-7(2)(a), which provides that “[a] person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]” It is well settled that “the defendant is not required to prove that he acted in self-defense, and, if a reasonable doubt of his guilt arises from the evidence, including evidence of self-defense, he must be acquitted.” Steele v. State, 852 So.2d 78, 81 (¶ 17) (Miss.Ct.App.2003) (quoting Sloan v. State, 368 So.2d 228, 229 (Miss.1979)).

¶ 10. Reviewing the evidence in the light most favorable to the State, we find sufficient evidence exists for any reasonable trier of fact to have found beyond a reasonable doubt that Ross was guilty of aggravated assault. The jury was presented with conflicting testimony about the events that occurred. When there is conflicting testimony presented, “the jury determines the credibility of the witnesses and resolves conflicts in the evidence.” Carpenter v. State, 102 So.3d 290, 294 (¶ 10) (Miss.Ct.App.2012) (citing Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003)). To aid in resolving the conflicting testimony, there was also testimony from the nearby police officer that Bradford immediately approached his vehicle while covered in blood from five separate stab wounds, and that Bradford indicated the occupant in a particular apartment was the one who had just stabbed him. The sole occupant in that particular apartment at the time was found to be Ross. Additionally, the plausibility of Ross’s claim of self-defense is highly questionable. Ross suffered a minor cut on his hand as a result of the incident; however, Bradford, who Ross claims was the initial aggressor who had sole possession of the knife at all times, suffered five injuries. Based on the evidence presented, a reasonable jury could have found that the State proved the essential elements of the crime of aggravated assault, including that Ross was not acting in self-defense. Therefore, we find that this issue is without merit.

II. WEIGHT OF THE EVIDENCE

¶ 11. “A motion for a new trial challenges the weight of the evidence.” Beckum v. State, 917 So.2d 808, 812 (¶ 10) (Miss.Ct.App.2005) (citing Carr v. State, 774 So.2d 469 (¶ 15) (Miss.Ct.App.2000)). Our standard of review in challenges to the weight of the evidence requires us to review “the evidence in the light most favorable to the verdict,” and determine whether the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would bring about an unconscionable injustice.” Jones v. State, 95 So.3d 641, 647 (¶ 20) (Miss.2012) (citing Sanders v. State, 63 So.3d 497, 503 (¶ 18) (Miss.2011)). In reviewing the weight of the evidence supporting a verdict, this Court will not “pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Massey v. State, 992 So.2d 1161, 1163 (¶ 12) (Miss.2008) (citing Moore v. State, 933 So.2d 910, 922 (¶ 43) (Miss.2006)).

¶ 12. Ross argues that “the overwhelming weight of the evidence established that Bradford received his injuries due to Ross acting in necessary self-defense.” In support of this claim, he submits that the State failed to produce any physical evidence to dispute Ross’s theory that Bradford was the initial aggressor and suffered the stab wounds when he fell upon the knife during the scuffle. Ross additionally argues that Bradford’s testimony that he had consumed alcohol prior to the incident also supports his claim that the verdict was against the overwhelming weight of the evidence.

¶ 13. As was stated above, it is for the jury to determine the credibility of the witnesses. Based upon the verdict, the jury obviously rejected Ross’s theory that Bradford inadvertently stabbed himself five times during the scuffle. A review of the evidence in the light most favorable to the verdict supports the jury’s finding; therefore, this issue is also without merit.

¶ 14. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE, AS A HABITUAL OFFENDER, OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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

      . We note that Ross was sentenced as a habitual offender pursuant to section 99-19-81, mandating that he receive the maximum sentence authorized by statute. Ross did not receive the maximum sentence of twenty years for aggravated assault pursuant to section 97-3-7(2). However, the State filed no cross-appeal on this issue as permitted by Mississippi Code Annotated section 99-35-103(c) (Rev.2007).

      . There was testimony at trial that a young child was also in the apartment at the time of the incident; however, Ross was the sole adult in the apartment at the time.