text:
    Christopher A. BRANDON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01761-COA.
    Court of Appeals of Mississippi.
    Feb. 5, 2013.

      Robert W. Davis Jr., Tupelo, Valena Elizabeth Beety, attorneys for appellant.

      Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   MAXWELL, J.,

for the Court:

¶ 1. Christopher Brandon challenges his conviction for the depraved-heart murder of a one-year-old boy. The young child, Xavier Staples, was in the sole care of Brandon when he was fatally injured. He died after the blood vessels between his brain and skull and behind his eyes were violently broken. While Brandon claimed Xavier had fallen off the bed and hit his head on a plastic toy, Xavier’s two treating physicians and the pathologist who performed the autopsy testified that Xavier’s injuries were too severe to have been caused by a short fall. They believed the immense force required to cause such extreme injuries was generated by Xavier having been severely shaken.

¶ 2. On appeal, Brandon insists his conviction should be reversed and rendered in his favor or a new trial should be granted because the trial judge denied him a publicly funded expert to challenge the State’s expert testimony. But we find any fault concerning Brandon’s failure to obtain state-funded expert testimony can be traced to his trial counsel’s actions and inactions, not the circuit judge’s denial of his last-minute request. And the proper context for considering potential prejudice from his attorney’s handling of the expert request is through his ineffective-assistance-of-counsel claim. However, because this issue is not fully developed in the record, we must deny relief on direct appeal, preserving Brandon’s right to raise this argument in a motion for post-conviction relief (PCR).

¶ B. Finding the trial judge did not abuse his discretion and the jury’s verdict is supported by the sufficiency and weight of the evidence, we affirm the judgment of conviction and sentence.

Background Facts

¶ 4. Just after midnight, on June 10, 2007, paramedics and law enforcement officers responded to a 911 call from Brandon, who reported that his girlfriend’s fifteen-month-old son, Xavier, had fallen off the bed and was unresponsive. Brandon had been watching Xavier while his girlfriend was away from their home. According to Brandon, he put Xavier in bed and went to the bathroom to turn on the shower. Brandon claimed he then heard a loud thud. When he returned to the bedroom to check on Xavier, Xavier was on the floor beside the bed, crying and gasping for breath. Brandon maintains that he picked the child up and tried to console him, but Xavier’s eyes rolled back in his head. Brandon explained that he took Xavier to the bathroom and ran cold water on his face in attempts to revive him. When this did not work, Brandon called 911.

¶ 5. But according to Xavier’s treating physicians, the child’s extensive head injuries indicated much greater force than a fall from the bed. Emergency-medicine physician Dr. Russell Knight treated Xavier when he arrived at the North Mississippi Medical Center. Dr. Knight testified that Xavier, who was not breathing and had no pulse, was bleeding inside his skull and behind his retina. Dr. Knight believed Xavier’s injuries required tremendous force — akin to a car wreck or a fall from a two-story building, not a fall from a two-and-a-half-feet-high bed. In his opinion, the injuries were consistent with shaken-baby syndrome (SBS). Because Xavier’s injuries did not square with Brandon’s story that Xavier had fallen from a bed, Dr. Knight contacted social services.

¶ 6. North Mississippi Medical Center did not have a pediatric-intensive-care unit, so Xavier was airlifted to Le Bonheur Children’s Hospital in Memphis, Tennessee. Pediatric-intensive-care physician Dr. Mark Bugnitz treated Xavier when he arrived at Le Bonheur. Dr. Bugnitz testified that, upon arrival, Xavier’s heart, lungs, and brain were not functioning. Xavier was taken off life support and was declared brain dead. Like Dr. Knight, Dr. Bugnitz observed that Xavier had bleeding inside the skull and behind the retina. Dr. Bugnitz testified that it requires an “immense amount of force” to tear the veins inside the skull and that it was “impossible” for Xavier’s injuries to have been caused by falling from a bed and hitting a plastic toy. Instead, in his opinion, Xavier had experienced “abusive head trauma,” what experts now call SBS, likely caused by “severe shaking.” Because Xavier’s purported fall from a bed “was totally inconsistent with the injuries [Xavier] had,” Dr. Bugnitz also alerted social services.

¶ 7. Pathologist Dr. Steven Hayne performed Xavier’s autopsy. He too found Xavier had fatal bleeding behind the retina and on the surface of the brain. Dr. Hayne determined that the cause of death was SBS. Dr. Hayne testified that SBS occurs when a child is shaken without impacting the child’s head on a hard surface. The shaking generates a force “equivalent to ... a motor vehicle crash,” causing the brain and skull to move in different rotations, tearing the blood vessels between them. He described SBS as a violent death, listing in his autopsy the manner of Xavier’s death as “homicide.” But on cross-examination, Dr. Hayne acknowledged disagreement among pathologists on whether SBS is a valid cause of death. He noted that some pathologists believed that other circumstances could cause the same types of injuries as SBS.

¶ 8. The jury found Brandon guilty of depraved-heart murder — which is the “killing of a human being without the authority of law ... done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without premeditated design to effect the death of any particular individual!.]” Miss.Code Ann. § 97-3-19(l)(b) (Rev.2006). Brandon was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. The trial judge denied Brandon’s post-trial motion for a judgment notwithstanding the verdict or, alternatively, a new trial. Brandon timely appealed.

Discussion

¶ 9. All of Brandon’s appellate issues relate to Brandon’s not having his own expert at trial. He argues the trial judge abused his discretion by: (1) denying his pretrial motion for a state-funded expert, (2) not sua sponte appointing Brandon a state-funded expert during trial or declaring a mistrial, and (3) not granting his post-trial motion for a new trial or a judgment notwithstanding the verdict.

¶ 10. We certainly do not turn a blind eye to Brandon’s claim that not having his own medical expert disadvantaged his defense. But we cannot find the lack of an expert was due to the trial judge’s misapplication of the law or abuse of his discretion. Brandon had not been declared indigent — a prerequisite to a state-funded expert. Further, Brandon’s counsel failed to show a concrete need for a state-funded expert. It appears Brandon’s failure to secure a state-funded expert possibly rests on his counsel’s failure to push for Brandon’s indigent status and need for an expert, an issue we find more appropriate for a PCR motion, versus this direct appeal.

I. Denial of State-Funded Expert A. Pretrial Hearing

¶ 11. This case illustrates the problems that arise with last-minute requests on the heels of multiple continuances. Brandon’s trial had originally been set for February 2008 but was postponed until August 2009 because of Brandon’s seven motions for continuance. In the months leading to trial, the circuit judge became fully aware of the role expert testimony would play in Brandon’s trial. And during a hearing in May 2009, the trial judge pinned down both parties on the issue of expert witnesses. Before setting a trial date, the judge inquired about the availability of their experts, admonishing both sides to “make sure” their experts would be available for trial on August 4, 2009. Both sides were instructed to inform the court by May 18, 2009, if their experts had any conflicts with this trial date. At this same hearing, the judge also granted Brandon’s request to order the state crime lab to send its evidence “straight to [Brandon’s] pathologist.” But for some reason, Brandon’s counsel neglected to alert the judge that Brandon had not yet retained his own pathologist or other expert. Though Brandon’s counsel had filed a motion for expert funds in July 2008, she did not request the motion be heard until thirteen months later at an emergency telephonic hearing the Friday before trial was scheduled to begin on Monday.

¶ 12. At this hearing, the trial judge applied the correct legal test for state-funded experts — indigence, as well as a showing of concrete need — when denying Brandon’s motion. See Howell v. State, 989 So.2d 372, 389-90 (¶¶57, 60) (Miss.2008).

1. Indigence

¶ 13. “Whether [Brandon] was entitled to expert funds was contingent on whether [Brandon] was indigent.” Id. at 389 (¶ 57); see also McFadden v. State, 929 So.2d 365, 368 (1111) (Miss.Ct.App.2006) (discussing “[a]n indigent’s right to an expert witness paid at the public’s expense” (emphasis added)). The trial judge found Brandon was not indigent. And the record shows Brandon’s privately retained counsel never attempted to have him declared a pauper. We note that having private counsel does not in itself prohibit a defendant from being declared indigent. See Howell, 989 So.2d at 389-90 (¶¶ 57-60) (recognizing defendant’s declared indigent status was not altered by fact he had privately retained counsel serving pro bono). But there is an important distinction between Howell and this case. Here, unlike Howell, Brandon had not been declared indigent.

¶ 14. While during the eleventh-hour telephonic hearing, Brandon’s counsel asserted his indigence, citing difficulties in paying the expert’s retainer, she neither had Brandon submit an affidavit of his financial status nor appear at the hearing to testify about his financial condition. This lack of indigent status in itself was, under our supreme court’s precedent, a proper reason to deny state funds. See id.

2. Concrete Need

¶ 15. In addition to finding Brandon was not indigent, the trial judge found Brandon failed to show a concrete need why a state-funded expert must be provided. “An indigent’s right to an expert witness paid at the public’s expense is ‘conditioned upon a showing that such expenses are needed to prepare and present an adequate defense.’” McFadden, 929 So.2d at 368 (¶ 11) (quoting Ruffin v. State, 447 So.2d 113, 118 (Miss.1984)). “Concrete reasons for requiring an expert must be provided by the accused.” Green v. State, 631 So.2d 167, 171 (Miss.1994) (emphasis added) (citing Hansen v. State, 592 So.2d 114, 125 (Miss.1991)). The question of whether an expert is necessary “must be committed to the sound discretion of the court to which the request for expenses is directed.” Ruffin, 447 So.2d at 118 (citation omitted).

¶ 16. The reason given for defense counsel’s request for a state-funded expert was that she wanted to challenge Dr. Hayne’s autopsy. The trial judge considered the factors from Townsend v. State, 847 So.2d 825, 829 (¶ 13) (Miss.2003), and found Brandon’s counsel had access to Dr. Hayne’s reports and the opportunity to fully cross-examine him at trial. See McFadden, 929 So.2d at 368 (¶¶ 12-13) (affirming denial of indigent defendant’s request for state-funded expert in part because defense counsel had access to State’s expert, Dr. Hayne, prior to trial and opportunity to cross-examine Dr. Hayne at trial). Under these circumstances, we cannot find the trial judge abused his discretion by denying Brandon’s request for a state-funded expert.

B. During Trial

¶ 17. Neither can we find, as Brandon urges, that once the pathologist testified at trial, the judge should have sua sponte halted the trial in its tracks and appointed Brandon a rebuttal expert. Brandon relies on Harrison v. State, 635 So.2d 894 (Miss.1994), to argue it was fundamentally unfair to allow the trial to continue without appointing Brandon a competing expert. But in Harrison, a death-penalty ease, the issue was undisclosed expert testimony by the State’s expert, and the fundamental unfairness was the inability to meet this surprise testimony. Harrison, 635 So.2d at 896, 898-900, 906. Here, Dr. Hayne’s testimony came as no surprise. Brandon was provided Dr. Hayne’s expert reports ahead of trial and given an opportunity to cross-examine him, as well as Dr. Knight and Dr. Bugnitz. Thus, we find Harrison inapplicable.

II. Assistance of Counsel

A. Lack of Defense Expert Witness

¶ 18. Having found no abuse of discretion by the trial judge, we instead find Brandon’s lack of his own expert hinges on questions surrounding his counsel’s performance. Brandon, who is represented on appeal by different counsel than at trial, raises the issue of his trial counsel’s effectiveness in his direct appeal. But to the extent Brandon argues his counsel’s actions or inactions led to his lack of an expert, we find this issue is not “based on facts fully apparent from the record” and, thus, cannot be addressed on direct appeal. M.R.A.P. 22(b); see Aguilar v. State, 847 So.2d 871, 878 (¶17) (Miss.Ct.App.2002) (citation omitted) (noting that it is “unusual” to address an ineffective-assistance claim on direct appeal because “we are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim”).

¶ 19. To prevail on a claim of ineffective assistance of counsel, Brandon must establish: (1) his attorney’s performance was deficient, and (2) the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To qualify as deficient, an attorney’s performance must fail to meet ‘an objective standard of reasonableness.’ ” Cooper v. State, 76 So.3d 749, 753 (¶ 17) (Miss.Ct.App.2011) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). And “[f]or prejudice to exist, there must be a ‘reasonable probability that, but for counsel’s [deficiency], the result of the proceeding would have been different.’ ” Id. at 754 (¶ 17) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 20. The trial record contains some evidence supporting Brandon’s claim of deficiency, but the record is not adequate to evaluate whether the alleged deficiencies were prejudicial. The record is simply not developed enough to determine whether Brandon would have been able to produce expert testimony rebutting the State experts’ conclusion that Xavier died of SBS.

¶ 21. Brandon attempted through post-trial motions to show what his proposed expert would have testified about, had Brandon’s counsel established his indigence and need for state funds to pay the expert. But the proposed expert report and the affidavits from additional experts were never made part of the trial record. Rule 22(b) clearly states: “Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record.” (Emphasis added). In Havard v. State, 928 So.2d 771, 786 (¶ 18) (Miss.2006), a direct appeal of a capital-murder conviction, the supreme court refused to consider affidavits that were not part of the trial record, submitted in support of one of the defendant’s claims. The supreme court was “not about to embark upon a journey of a carte blanche consideration of outside-the-record documents ... to decide issues on direct appeal” — especially when those documents had not been subjected to the same evidentiary standards as evidence submitted at trial. Id.

¶ 22. Following the supreme court’s directive, we too decline to consider expert reports and affidavits that are not part of the trial record. See id. Rather than address this claim on direct appeal, we find the more legally sound approach is to permit Brandon to establish through a PCR motion and hearing whether, but for his counsel’s alleged deficiencies, Brandon would have been able to present an expert whose testimony would have rebutted that of the State’s experts, supported his version of how Xavier’s injuries occurred, and created a reasonable probability of a different outcome.

¶23. “The Mississippi Supreme Court has stated that, where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Aguilar, 847 So.2d at 878 (¶17) (citing Read v. State, 430 So.2d 832, 837 (Miss.1983)); see also Havard, 928 So.2d at 786 (¶ 18) (finding defendant had preserved his right to raise issue that was not fully developed on direct appeal in a future PCR proceeding). Thus, we deny relief while preserving Brandon’s right to fully develop the ineffectiveness issues through a PCR motion — with one exception.

B. Stipulation to Dr. Hayne’s Expert Qualifications

¶ 24. We do find Brandon has raised one claim of ineffective assistance “based on facts fully apparent from the record.” M.R.A.P. 22(b). Brandon asserts that his lawyer was deficient for stipulating to Dr. Hayne’s qualifications as an expert in forensic pathology. We note that, because Brandon is represented by different counsel on appeal, Brandon had to present this issue in his direct appeal or otherwise waive this issue. See M.R.A.P. 22(b). Having considered the merits of this claim, we find it fails under both prongs of Strickland.

¶ 25. First, Brandon fails to show his counsel was deficient. Though Dr. Hayne has been rightly criticized for certain aspects of his work, our supreme court has made abundantly clear that it believes “Dr. Hayne is qualified to proffer expert opinions in forensic pathology[.]” Edmonds v. State, 955 So.2d 787, 792 (¶ 8) (Miss.2007). And it has consistently found Dr. Hayne qualified to render expert opinions in the field of forensic pathology in criminal cases. E.g., Moffett v. State, 49 So.3d 1073, 1110-11 (¶¶ 126-27) (Miss.2010); De-Henre v. State, 43 So.3d 407, 417 (¶40) (Miss.2010); Nelson v. State, 10 So.3d 898, 904 (¶ 26) (Miss.2009); Lima v. State, 7 So.3d 903, 907 (1117) (Miss.2009). Thus, Brandon’s counsel’s stipulation to Dr. Hayne’s qualifications was not objectively unreasonable. See Cooper, 76 So.3d at 755 (¶ 25).

¶ 26. Second, Brandon fails to show prejudice. Both of Xavier’s treating physicians testified Xavier’s injuries were caused by being violently shaken and not by a short fall from a bed. In particular, Dr. Bugnitz was emphatic that Xavier’s fatal bleeding did not match Brandon’s version of how Xavier was injured. Dr. Bugnitz, who co-authored a study refuting the theory that retinal hemorrhages may occur due to CPR, also discredited the defense’s suggestion that Xavier’s injuries from the fall were made more severe by Brandon performing CPR before the paramedics arrived. So even if Brandon’s counsel had succeeded in disqualifying or otherwise discrediting Dr. Hayne, we cannot find it reasonably probable that the outcome would have been different.

¶ 27. We therefore deny relief on the specific claim that Brandon’s trial counsel was ineffective for stipulating to Dr. Hayne’s qualifications, while preserving Brandon’s right to bring all other ineffective-assistance claims in a PCR motion.

III. Sufficiency and Weight of the Evidence

¶28. When we consider Brandon’s final argument that the jury’s verdict is against the sufficiency and overwhelming weight of the evidence, we are further convinced that the record is not fully developed to allow us to address Brandon’s claim that his counsel was ineffective for failing to secure an expert witness.

¶29. Brandon argues the trial judge should have granted his post-trial motion for a judgment notwithstanding the verdict or, alternatively, a new trial. A motion for a judgment notwithstanding the verdict tests the legal sufficiency of the evidence, while a motion for a new trial tests the weight of the evidence. Bush v. State, 895 So.2d 836, 843-44 (¶¶ 16, 18) (Miss.2005). Though Brandon’s post-trial motion advocated multiple grounds for relief, he advanced only one on appeal. Essentially, Brandon recasts his argument that the trial judge wrongly denied his request for a state-funded expert into a challenge to the sufficiency and weight of the evidence.

¶ 30. In doing so, Brandon relies on a report from the expert he claims he would have introduced to rebut the State’s pathologist, had he been granted state funds. Brandon argues this report questions the validity of the State’s expert testimony, showing it was insufficient to support the jury’s verdict, and outweighs the contradictory expert testimony presented at trial. But this report is not a part of the trial record, so it is therefore outside of our appellate review. See McCullough, 47 So.3d at 1211 (¶ 18). And it certainly was not part of the evidence before the jury. As already discussed, the proper avenue to present this report and develop the record on the issue of prejudice is a PCR motion.

A. Sufficiency of the Evidence

¶ 31. “[I]n considering whether the evidence is sufficient to sustain a conviction,” we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush, 895 So.2d at 843 (¶ 16) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Viewing the evidence in light most favorable to the State, we find a rational juror could have found the essential elements of depraved-heart murder beyond a reasonable doubt. See id.

¶ 32. Depraved-heart murder is the “killing of a human being without the authority of law ... done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual[.]” Miss.Code Ann. § 97-3-19(l)(b). Brandon admitted that, when he arrived to babysit Xavier the afternoon preceding his death, Xavier was acting normally. Brandon was alone with Xavier from three that afternoon until Brandon called 911 in the middle of the night. Xavier’s two treating physicians and the State pathologist testified that Xavier’s injuries were inconsistent -with Brandon’s claim that Xavier had fallen off the bed, but consistent with the child being violently shaken. Thus, viewing the evidence in the light most favorable to the State, a reasonable juror could conclude that Brandon acted without regard to Xavier’s life by violently shaking him, resulting in his death.

B. Weight of the Evidence

¶ 33. When considering an objection to the weight of the evidence, we view the evidence in the light most favorable to the verdict and “will only disturb [the] verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). As Brandon cites no record evidence contradicting the jury’s finding of guilt, we find no reason to disturb the jury’s verdict.

¶ 34. Since the jury’s verdict is neither against the sufficiency nor the overwhelming weight of the evidence, we find no abuse of discretion in the trial judge’s denial of Brandon’s post-trial motion.

Conclusion

¶ 35. The apparent issue is not whether the trial judge abused his discretion but whether Brandon received constitutionally effective representation. Because the record is not fully developed to address this issue on direct appeal, we affirm Brandon’s conviction. Other than denying Brandon’s specific challenge to his attorney not contesting Dr. Hayne’s qualifications, we pass on the issue of ineffective assistance of counsel, allowing Brandon to re-raise his counsel’s alleged deficiencies and the prejudicial effect in a PCR motion.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF DEPRAVED-HEART MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $2,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON AND FAIR, JJ„ CONCUR. ISHEE, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

      . Brandon’s appellate counsel, Robert W. Davis Jr. and Valena Beety, did not represent him at trial.

      . This court denied Brandon's appellate counsel’s request to stay the briefing schedule and remand the case to the trial court for an evidentiary hearing to retroactively supplement these documents into the trial record. Consequently, we grant the State’s motion to strike any arguments based on these reports and the reports themselves, which were submitted only as "record excerpts,” but are not part of the trial record. See McCullough v. State, 47 So.3d 1206, 1211 (¶ 18) (Miss.Ct.App.2010) (finding appellant could not make documents part of the trial record "by simply attaching copies to his briefs filed with this Court”).


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Margaret Darlene FORE, Appellant/Cross-Appellee v. W.C. FORE, Appellee/Cross-Appellant.
    No. 2011-CA-01564-COA.
    Court of Appeals of Mississippi.
    Feb. 19, 2013.
    Walter L. Nixon Jr., Walter Jerome Blessey IV, attorneys for appellant.

      Dean Holleman, Gulfport, Haley Lynn Zelenka, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. After a five-day divorce trial, Darlene and Cotton Fore found themselves still married. Each had accused the other of adultery and sought fault divorces solely on that ground. The chancellor found that neither party had established adultery and denied both of their claims. Both parties appeal. Because the chancellor’s decision was one of fact and was within his discretion, we affirm.

FACTS

¶ 2. Darlene, fifty-three years old at trial, and Cotton, then seventy years old, had married on August 1, 1998. Darlene permanently left the marital home eleven years later and filed her complaint for divorce in October 2009. Cotton counterclaimed in January 2010.

¶ 3. The divorce was vigorously litigated, as evidenced by the twenty-five single-spaced pages of the trial court docket. For eighteen months the parties enthusiastically pursued all means of discovery allowed by the Mississippi Rules of Civil Procedure. Private investigators were hired. Contempt pleadings, motions for continuances, mediation attempts, amendments of pleadings, and volumes of subpoenas were filed, pursued, and argued.

¶ 4. Because each party sought a divorce solely on the ground of the other’s alleged post-separation adultery, the chancellor bifurcated the trial and tried grounds first. Five days of trial produced a transcript well in excess of 800 pages.

¶ 5. Aided by briefs, speaking pleadings, and proposed findings of fact and conclusions of law, the chancellor filed a seven-page final judgment on July 6, 2011. In it, he denied a divorce to both parties and denied separate maintenance to Darlene because she averred that she would never return to living with Cotton under any circumstances. Both sides sought reconsideration, which was denied, and both parties thereafter appealed.

STANDARD OF REVIEW

¶ 6. “In domestic relations cases, [the appellate court’s] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1063-64 (¶9) (Miss.2004). We “will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. at 1064 (¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). This Court “views the facts of a divorce decree in a light most favorable to the appellee and may not disturb the chancery decision unless manifestly wrong or unsupported by substantial evidence.” Fisher v. Fisher, 771 So.2d 364, 367 (¶ 8) (Miss.2000). Questions of law, however, are reviewed de novo. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945 (¶ 7) (Miss.2000).

DISCUSSION

¶ 7. Most reported cases addressing adultery as a ground for divorce deal with judgments granting a divorce — not denial of divorce on that ground. The most recent reported decision by the Mississippi Supreme Court addressing a chancellor’s denial of divorce on the ground of adultery is Davis v. Davis, 832 So.2d 492 (Miss. 2002). The question was whether a post-separation “one night stand” was sufficient to support a divorce on the ground of adultery. The supreme court held that it was. Id. at 496 (¶ 15). In that case, as in many in recent years, sexual relations outside of marriage were readily admitted.

¶ 8. A few months prior to Davis, in Hensarling v. Hensarling, 824 So.2d 583 (Miss.2002), the supreme court upheld a grant of divorce on the ground of adultery where sexual involvement outside of marriage was denied, as in this case. That case contains the supreme court’s most recent and perhaps most thorough summary of the law on adultery and the evidence necessary to support a divorce on that ground:

This issue lies within the discretion of the chancellor as the trier of fact and must be decided based on the weight and sufficiency of the evidence. The standard of proof in cases involving allegations of adultery as grounds for divorce was clearly and succinctly stated by this Court in Holden v. Frasher-Holden, 680 So.2d 795 (Miss.1996). In that case we stated as follows:
“A charge of adultery may be grounds for divorce upon a showing of either an infatuation for a particular person of the opposite sex or a generally adulterous nature on the part of the defendant.” [McAdory v. McAdory, 608 So.2d 695, 700 (Miss.1992).] There must be evidence of one or the other before a divorce may be granted on these grounds. Id. In [Brooks v. Brooks, 652 So.2d 1113, 1118 (Miss.1995) ], this Court recited the proper evidentiary standard to be applied to the proof set forth by the complaining party, as articulated in [Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986) ]: In Mississippi one seeking a divorce on the grounds of adulterous activity must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination. Owen v. Gerity, 422 So.2d 284, 287 (Miss.1982); Magee v. Magee, 320 So.2d 779, 783 (Miss.1975); Rodgers v. Rodgers, 274 So.2d 671, 673 (Miss.1973). Where the plaintiff relies on circumstantial evidence as proof for his allegations, he or she retains the burden of presenting satisfactory evidence sufficient to lead the trier of fact to a conclusion of guilt. Rodgers, 274 So.2d at 673. However, such evidence need not prove the alleged acts beyond a reasonable doubt and the plaintiff is not required to present direct testimony as to the events complained of due to their secretive nature. Bunkley & Morse’s Amis, Divorce & Separation in Mississippi, §§ 3.09(5) (1957). Nevertheless, the burden of proof is a heavy one in such cases because the evidence must be logical, tend to prove the facts charged, and be inconsistent with a reasonable theory of innocence. Owen, 422 So.2d at 287, citing and quoting Banks v. Banks, 118 Miss. 783, 79 So. 841 (Miss.1918). Brooks, 652 So.2d at 1116 (quoting Dillon, 498 So.2d at 330) (emphasis added).
Holden, 680 So.2d at 798.
We also held in McAdory “that the elements of infatuation or proclivity toward adulterous behavior must be supported by evidence of a reasonable opportunity to satisfy the infatuation or proclivity.” McAdory, 608 So.2d at 700. Brenda testified that she did not know Art Sharpe until after Ken had left home and filed for divorce and that she was never sexually involved with him. However, in this case there is substantial evidence in the record to support the chancellor’s conclusion that proclivity and opportunity were present in the relationship between Brenda and Art Sharpe. The burden of proof was met with regard to this issue. As such, the chancellor’s finding of adultery is not clearly erroneous.

Hensarling, 824 So.2d at 594-95 (¶¶ 36-37) (emphasis in original, some citations omitted).

¶ 9. Turning to the facts of the case at hand, after Darlene left Cotton and the employ of Fore Trucking, she was called by Lucas Tillman, the owner of Tillman’s Heating and Air. Lucas said he understood Darlene knew Quickbooks, and he needed help with setting it up for his business. When she went to his office, she learned he was separated from his wife. Darlene knew both of the Tillmans previously, as a couple. Cindy Tillman had worked for her husband’s business, just as Darlene had worked for Cotton. Lucas and Darlene did not discuss their respective separations at the time.

¶ 10. After she reviewed Lucas’s records, Darlene told him she thought he ought to declare bankruptcy because records were in a shambles, he had problems with the Mississippi State Tax Commission and the Internal Revenue Service, and he had no money.

¶ 11. Darlene entered into a consulting agreement with Lucas, which contained a provision that she would advance and be repaid any funds required for software and other personalty. In what the chancellor described as “an unusual employer/employee relationship,” Darlene loaned $25,000 of her own money to Lucas’s business. She bought Saints tickets, spent a lot of time on the phone with Lucas, made loans to a member of his family, and visited his parents’ home. However, “[o]ther than a hug and a kiss in the courthouse hallway,” the chancellor found no proof of “romantic affection between the two.” Darlene went to Lucas’s home on two occasions late in the evening, but during one, his wife was present. And the other was documented by a private investigator who could not place Darlene inside the house, where Lucas’s children were also present. She and Lucas stated that they had talked alone in her car for ten or fifteen minutes. The private investigator’s notes did not contradict their statements.

¶ 12. On the other side of the aisle, Cotton admitted knowing Penny Fay Andrews, the former wife of one of his competitors. She had helped care for 900 of Cotton’s cows after Darlene and a nephew “got out of the cattle business,” leaving it to Cotton as the remaining interested party. Cotton had Penny’s cell phone number saved in his phone in 2007, and he made her one of twenty-two individuals to whom he left a relatively small portion of the residuary of his (very significant) estate. Cotton talked to her many times on his cell phone, perhaps even more than Darlene talked to Lucas — which is to say, a lot. Penny may have attended the Kentucky Derby with Cotton and his friends, but there was no evidence of inclination and no evidence of any opportunity for Cotton to be alone with her on that occasion. A woman thought to be Penny caught a ride home on Cotton’s jet from the Derby and was seen holding his hand on the plane. Cotton also attended cookouts and parties when she was present, and he was twice seen in bars with someone called Penny.

¶ 13. There was testimony of only one incident in which the two were alone together, or so they thought. On that occasion, however, the headlights of a private investigator’s vehicle illuminated them as they arrived at Cotton’s residence. The chancellor commented on this testimony as follows: “The investigators confronted Mr. Fore rather than staking out the residence and making an identification of the female leaving the home and determining how long she remained there.”

¶ 14. There is no doubt that the chancellor was well aware of the burden of proof for an adjudication of adultery. In his judgment he noted:

Adultery must be proved by clear and convincing evidence which in the civil context is a very high burden. It requires to a greater degree of certainty than the usual preponderance of evidence standard that is usually the requirement in civil litigation. Our Supreme Court has stated that before accepting a charge of adultery which so seriously affects the character of a person, the evidence must be clear and convincing. McAdory v. McAdory, 608 So.2d 695, 701 (Miss.1992)[.]

He went on to state:

Direct evidence is not necessary to prove adultery given the secretive nature of adulterous relationships, but if to be proven by circumstantial evidence, the accuser or plaintiff is faced with the heavy burden of convincing the trier of fact of the adulterer’s guilt through logical evidence that is inconsistent with a reasonable theory of innocence. The Court cites the parties to McAdory, cited above. Pool v. Pool, 989 So.2d 920 (Miss.Ct.App.2008) and Lister v. Lister, 981 So.2d 340 (Miss.Ct.App.2008).

Turning to the case at hand, he explained:

The evidence offered by both parties, while possibly meeting the lesser standard of preponderance of the evidence, falls short of meeting the higher standard of clear and convincing evidence which must be satisfied for each of the elements of adultery: (a) proof of an adulterous inclination and (b) an opportunity to consummate the inclination. The adulterous inclination may be proven by showing either an infatuation with a particular person or a general adulterous inclination.

¶ 15. Following these observations, the chancellor reviewed the evidence in some detail, setting out his impressions of the witnesses, their credibility, and their testimony. He discussed the weight he gave to specific information as well as why he discounted the testimony of some witnesses and relied more on the testimony of others. His discussion reflects a perception that Cotton and Darlene both became lonely and frustrated after their separation. They each developed what was claimed by both to be purely platonic relationships with members of the opposite sex. Evidence that they could be purely platonic included Cotton’s possible impotency and Lucas’s attempts to reconcile with his wife. The chancellor admitted the possibility of an adulterous inclination on the part of both parties, but found the evidence of opportunity to act on it was insufficient and certainly not clear and convincing. Both parties emphatically denied having sex with anyone other than each other and both asserted that their extramarital relationships were purely platonic in nature.

¶ 16. The chancellor concluded that their denials and assertions had merit and that “neither party has proved the other guilty of adultery.” As the judge of credibility, the chancellor is entitled to choose between reasonable interpretations of the evidence and the inferences that may be drawn therefrom. Bowen v. Bowen, 982 So.2d 385, 395 (¶42) (Miss.2008). After reviewing the record, we are satisfied that the trier of fact did not abuse his discretion, was not manifestly wrong, was not clearly erroneous, and applied the proper legal standard in making his decision. We have no basis to reverse the chancellor’s judgment.

¶ 17. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY IS AFFIRMED ON DIRECT AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND AP-PELLEE/CROSS-APPELLANT.

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

      . Darlene also requested separate maintenance if her divorce was denied.

      . He first made very significant provision for his wife and children.


author: MAXWELL, J.,

text:
    David R. FAULKNER a/k/a David Richard Faulkner a/k/a David Faulkner, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01718-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2013.

      George T. Holmes, Jackson, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. David R. Faulkner appeals his seven felony convictions resulting from his alleged sexual abuse of two children in his care. The molestations and sexual batteries of one of the child victims began when the child was around six years of age and spanned the course of approximately seven years. While Faulkner’s alleged abuse of the other child was less extensive in duration, it was similar in nature.

¶ 2. On appeal, Faulkner argues that one of the jury instructions constructively amended his indictment and that his convictions for the sexual battery and molestation of one of the children violated his right to be free from double jeopardy. Faulkner also insists that one of his fondling convictions was not supported by sufficient evidence and that all seven guilty verdicts are against the weight of the evidence. Finding no reversible error, we affirm.

Facts and Procedural History

¶ 8. Faulkner and his wife, Melissa, along with their four adopted children, moved to Carriere, Mississippi, in May 2006. The couple’s only adopted son, A.F., was thirteen years old at the time. In August 2006, the Faulkners agreed to serve as foster parents to another young boy, J.P., who was twelve. A.F. and J.P. shared a bedroom in the family’s trailer until February 2007, when J.P. left the Faulkners’ care.

¶ 4. In March 2007, the Mississippi Department of Human Services (DHS) received reports that Faulkner had sexually and physically abused A.F. and another boy at Faulkner’s previous Hancock County, Mississippi residence. After substantiating the sexual-abuse claims, DHS removed the four remaining children from the Faulkners’ home and contacted the Hancock County Sheriff’s Department. When investigating officers discovered Faulkner had also abused A.F. and J.P. in Carriere, they alerted the Pearl River County Sheriff’s Office.

¶ 5. Faulkner was arrested on May 21, 2007, and taken to the Pearl River County Jail. While in custody, he executed a Miranda waiver-of-rights form and made numerous incriminating statements during a recorded interview. Faulkner admitted touching J.P.’s and A.F.’s penises with his hands and performing fellatio on both children. He also admitted he had instructed A.F. to place his mouth on J.P.’s penis. Faulkner was charged with two counts of sexual battery, three counts of fondling, and two counts of directing a minor to commit a felony.

¶ 6. At trial, A.F. testified that Faulkner began molesting and sexually battering A.F. with “[h]is hand and mouth” when he was six or seven years old. According to A.F., the sexual abuse began within “a month or so” after he moved in with Faulkner in 1999 or 2000 and continued “throughout the years [he] lived with him.” A.F. explained that Faulkner would also direct him and J.P. to engage in fellatio with one another.

¶ 7. J.P. also testified at trial. He recounted that Faulkner began sexually abusing him “within the first months” of his time with the Faulkners. According to J.P., Faulkner had performed fellatio on both him and A.F. and also had directed the boys to perform oral sex on one another. Faulkner testified in his own defense, denying any sexual contact with either boy. He also denied ever directing them to perform sexual acts with each other.

¶ 8. The jury found Faulkner guilty on all counts. The circuit judge sentenced him to life on each of the two sexual-battery counts, fifteen years on each of the three fondling counts, and twenty years on each of the two counts of instructing a minor to commit a felony. The judge ordered all the sentences to run concurrently. Faulkner now appeals.

Discussion

¶ 9. Faulkner argues (1) Instruction 13 constructively amended Count VII of the indictment; (2) his convictions for the sexual battery and fondling of A.F. violated his double-jeopardy rights; (3) there was insufficient evidence to support his conviction for fondling J.P.; and (4) all seven verdicts are against the overwhelming weight of the evidence.

I. Variance Between Indictment and Jury Instruction

¶ 10. Mississippi imposes criminal liability on adults who direct or cause a person under the age of seventeen to commit any act that would qualify as a felony offense if committed by an adult. See Miss.Code Ann. § 97-1-6 (Rev.2006). Those convicted under this section face a possible $10,000 fíne and up to twenty years’ imprisonment. Id.

¶ 11. Count VII charged Faulkner with violating section 97-1-6 by directing A.F., a child under the age of seventeen, to commit a sexual battery on J.P., who was under the age of fourteen. The particular sexual battery alleged was forced fellatio between the two children—specifically, that Faulkner had directed A.F. to “put his mouth on the penis of J.P.” But at trial, the court granted a jury instruction that slightly differed from Count VII, permitting the jury to find Faulkner guilty on the count if it found Faulkner had directed A.F. to “put his penis in the mouth of [J.P.] Faulkner’s trial attorney did not object to this particular instruction, and the jury found Faulkner guilty on this count.

¶ 12. On appeal, Faulkner claims for the first time the variance between the indictment and instruction is fatal. He acknowledges his waiver but requests this court conduct plain-error review and reverse his conviction on Count VII. Though his failure to object to Instruction 13 bars review of the instruction, regardless of his procedural default, we find he suffered no substantial injustice from the variance.

A. Waiver

¶ 13. The primary purpose of an indictment “is to give the defendant fair notice of the crime charged.” Nix v. State, 8 So.3d 141, 144-45 (¶ 16) (Miss.2009) (citing Bell v. State, 360 So.2d 1206, 1208-09 (Miss.1978)). It must contain “the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. Our supreme court recently explained that “once the grand jury hands down a true bill that alleges an accused committed a particular crime by engaging in certain conduct—absent waiver or a request for a lesser included offense—the accused must be prosecuted for that crime, and no other.” Decker v. State, 66 So.3d 654, 656 (¶ 6) (Miss.2011) (emphasis added). Here, we are faced with such a waiver.

¶ 14. Faulkner concedes he did not object to Instruction 13 as constructively amending the indictment, which may serve as a procedural bar to appellate review. See Rubenstein v. State, 941 So.2d 735, 774 (¶ 169) (Miss.2006) (finding that the defendant’s failure to object to a jury instruction as constructively amending the indictment to charge a murder-for-hire theory waives error). But this waiver aside, we still find no reversible error.

B. Plain-Error Review of the Materiality of the Variance

¶ 15. Where a party has forfeited an objection by failing to urge it at trial, an appellate court may exercise discretion to correct the error—but only, where the error is clear or obvious and affects the party’s substantial rights. United States v. Olano, 507 U.S. 725, 731-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). An appellate court “should correct a plain forfeited error affecting substantial rights if the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)).

¶ 16. Considering whether Faulkner’s substantial rights were violated, we note not all variances between an indictment and jury instructions are fatal. To properly categorize an instruction as error, its “variance from the language of the indictment ‘must be material[.]’ ” Nix, 8 So.3d at 145 (¶ 16) (quoting Williams v. State, 445 So.2d 798, 806 (Miss.1984)). While trial judges should generally strive to craft jury instructions that track the indictment’s language, an instruction is not necessarily fatally defective for failure to do so if the instruction “accurately follow[s] the requisite elements of the crime.” Duplantis v. State, 708 So.2d 1327, 1344 (¶ 76) (Miss.1998)).

¶ 17. Count VII alleged Faulkner had directed A.F. to “put his mouth on the penis of J.P.,” but the jury was instructed it could convict Faulkner on this count if it found he had directed A.F. to “put his penis in the mouth of [J.P.] Assessing the effect of this variance on the integrity of Faulkner’s trial, we point out that while the language differed, the essence of the charged offense remained unchanged, as none of the requisite elements were substantially altered. The instruction still required the jury to find beyond a reasonable doubt that Faulkner, an adult, directed A.F., a minor, to commit sexual battery by engaging in fellatio with another child, J.P.

¶ 18. At trial, both children testified that Faulkner had instructed them to place their penises in the other’s mouth. And the jury was privy to the tape and transcript of Faulkner’s pretrial admission that he had directed A.F. to perform fellatio on J.P. Gauging potential prejudice, we find Faulkner’s defense was not hampered by the differing language in Instruction 13. Faulkner’s defense did not hinge on his insistence that he merely directed A.F. to submit to fellatio with J.P. but not perform fellatio on J.P. Rather, Faulkner wholly denied any involvement in sexual acts with the children. On these facts, we are unable to say any forfeited error in the jury instruction prejudiced Faulkner’s defense or otherwise affected his substantial right to a fair trial. At most, the variance was a slight flaw in the trial that did not seriously affect the public fairness of the judicial proceeding.

II. Double Jeopardy

¶ 19. Faulkner next argues his separate convictions for sexual battery and fondling amount to multiple punishments for the same offense, thus violating his constitutional protections against double jeopardy. Because there is sufficient evidence of distinct separate criminal acts, we reject his argument.

¶ 20. Under Mississippi law, sexual battery of a child and unlawful touching are separate and distinct criminal offenses. While sexual battery of a child requires some sort of penetration—including fellatio—unlawful touching does not. Compare Miss.Code Ann. § 97-3-97 (Rev.2006), with Miss.Code Ann. § 97-5-23 (Rev. 2006). Faulkner is correct that our supreme court has held that under “particular circumstances” when penetration is achieved by touching a child under the age of fourteen, fondling- or molestation is a lesser-included offense of sexual battery. See Friley v. State, 879 So.2d 1031, 1035 (¶ 17) (Miss.2004). But Friley’s general holding—that it is not possible to penetrate a minor without touching the child— is not absolute. See Tapper v. State, 47 So.3d 95, 103 (¶ 30) (Miss.2010).

¶ 21. As our supreme court recently recognized in Tapper, “it is possible to commit an unlawful touching without committing sexual battery.” Id. And where sufficient evidence exists to support separate and distinct acts of fondling and sexual battery, separate indictable charges can properly stand without implicating jeopardy issues. Id.; see also Minor v. State, 62 So.3d 1002, 1005 (¶ 10) (Miss.Ct.App.2011). This is so even if the criminal acts are closely connected or based on a common nucleus of fact, which we find to be the case here. Id.

¶ 22. At trial, A.F. testified about a long-term pattern of deviant sexual abuse on Faulkner’s part. A.F. maintained that Faulkner had touched A.F.’s penis with his hands or mouth “throughout” the approximately seven-year span he lived with Faulkner—starting when A.F. was around six years old. A.F. recalled that the abuse continued when J.P. was placed with the family in August 2006, the month charged in both counts. A.F. also testified that around this time period Faulkner performed oral sex on him and that sometimes J.P. was present.

¶ 23. Faulkner personally acknowledged a litany of distinct molestations and one sexual battery. During a pretrial interview, Faulkner admitted that he had made A.F. touch his penis “about twenty” times. Faulkner also claimed to have participated in a separate act of penetration by putting A.F.’s penis in his mouth on one occasion. Faulkner’s admissions alone show distinct episodes of abuse. While he later denied molesting and battering A.F., the recording and transcript of his interview were in evidence and before the jury. Based on Faulkner’s own acknowledgments and A.F.’s testimony, we find sufficient evidence exists to support the separate sex-based charges.

¶ 24. To the extent Faulkner challenges the sufficiency of the evidence supporting the charged date of the offense, we note he failed to object on this ground at trial. Such a failure to object to the date charged in an indictment has been deemed a waiver. See Baker v. State, 930 So.2d 399, 404-05 (¶¶ 9-10) (Miss.Ct.App.2005). Still, this default aside, we find no prejudice to Faulkner since the evidence was sufficient for reasonable jurors to conclude some of the molestations and sexual batteries “occurred within reasonable limits, or reasonably near, the time frame set forth in the indictment.” McBride v. State, 61 So.3d 138, 150 (¶53) (Miss.2011).

III. Sufficiency of the Evidence for Count III

¶ 25. Faulkner also challenges the sufficiency of the evidence supporting Count III, arguing the State did not prove the molestation occurred “during August 2006,” as charged.

¶ 26. When assessing the legal sufficiency of the evidence, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existedf.]” Carr v. State, 208 So.2d 886, 889 (Miss.1968). In applying this standard, we consider all evidence in a light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Credible evidence consistent with guilt must be accepted as true. We are instructed to give the State “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Jones v. State, 20 So.3d 57, 64 (¶ 16) (Miss.Ct.App.2009) (quoting Hughes v. State, 983 So.2d 270, 276 (¶ 11) (Miss. 2008)). And the jury resolves matters of weight and credibility.

¶ 27. Count III charged Faulkner with fondling J.P. during August 2006 — J.P.’s first month in the Faulkner home. Though J.P. did not mention that the molestation occurred in August, he did testify that the first instance of abuse had occurred “within the first months” of his stay. Faulkner suggests that because this slightly broader time frame differs from the charged date, the evidence is insufficient to sustain a conviction for the particular touching charged in Count III.

¶ 28. But an allegation of the date “of the offense is not an essential element of the offense charged in the indictment[.]” Daniels v. State, 742 So.2d 1140, 1143 (¶ 10) (Miss.1999) (citation omitted). And generally, failure to precisely prove an offense occurred during a specific time period is not grounds for reversal. “[W]ithin reasonable limits, proof of any date before the return of the indictment ... is sufficient.” Id. (citation and internal quotations omitted). Our supreme court has held that a child sex victim’s testimony that the abuse occurred within two months of the charged date was reasonably near, or within reasonable limits of, the charged time frame to support a sexual battery conviction. McBride, 61 So.3d at 150 (¶¶ 49-52). We similarly find that J.P.’s testimony that the fondlings started “within the first months” of his stay, which began in August 2006, was certainly sufficiently near the charged time frame to sustain the conviction on Count III.

IV. Weight of the Evidence for All Verdicts

¶ 29. Faulkner finally insists all seven verdicts preponderate heavily against the weight of the evidence.

¶ 30. In reviewing a challenge to the weight of the evidence, we consider the evidence in the light most favorable to the verdict. Bush, 895 So.2d at 844 (¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). “[W]e 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.” Id.

¶ 31. A jury is entitled to believe or disbelieve the testimony of any witness. Moore v. State, 969 So.2d 153, 156 (¶ 11) (Miss.Ct.App.2007). And our appellate courts have held that the unsupported testimony of a sex-crime victim “is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.” Riley v. State, 797 So.2d 285, 288 (¶10) (Miss.Ct.App.2001) (quoting Collier v. State, 711 So.2d 458, 462 (¶ 15) (Miss.1998)). The jury obviously found the victims’ testimony and the other evidence supporting the pattern of sexual abuse more credible than Faulkner’s defense. Viewing the evidence in the light most favorable to the jury’s verdicts, we find no injustice in allowing the jury’s verdicts to stand.

¶ 32. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, SEXUAL BATTERY, AND SENTENCE OF LIFE IMPRISONMENT; COUNT II, SEXUAL BATTERY, AND SENTENCE OF LIFE IMPRISONMENT; COUNT III, CHILD MOLESTATION, AND SENTENCE OF FIFTEEN YEARS; COUNT IV, CHILD MOLESTATION, AND SENTENCE OF FIFTEEN YEARS; COUNT V, CHILD MOLESTATION, AND SENTENCE OF FIFTEEN YEARS; COUNT VI, DIRECTING A MINOR TO COMMIT A FELONY, AND SENTENCE OF TWENTY YEARS; AND COUNT VII, DIRECTING A MINOR TO COMMIT A FELONY, AND SENTENCE OF TWENTY YEARS, WITH ALL SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

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

      . To protect the identities of the minors, we substitute initials for their names.

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


author: LEE, C.J.,

text:
    In the Matter of the ESTATE OF James D. HODGES, Deceased: Susan H. Hodges, Appellant, v. Robert Shelby Daniel Hodges, Appellee.
    No. 2011-CA-01640-COA.
    Court of Appeals of Mississippi.
    March 12, 2013.

      Stanley Alex Sorey, Raleigh, attorney for appellant.
    Robert T. Higginbotham Jr., Todd Wilson Hood, Oxford, attorneys for appellee.
    BEFORE LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. James D. Hodges died intestate on October 26, 2007, leaving his wife of almost nine years, Susan H. Hodges, and his adult son by a previous marriage, Robert Shelby Daniel Hodges (“Daniel”). At the time of his death, James owned two homes: one at 1105 4th Street Southeast in Magee, Mississippi, and the other at 1107 4th Street Southeast in Magee, Mississippi. The 1105 property was owned by James, individually, subject only to a life estate in favor of his father, Robert O. Hodges, who is deceased. James and Susan claimed the 1105 property as the homestead and were afforded a homestead exemption for tax purposes. At the time of James’s death, James and Susan were living in the 1105 property. The 1107 property was owned by James and Susan as tenants by the entirety with the right of survivorship and not as tenants in common. At the time of James’s death, James’s son Daniel was living in the 1107 property. Essentially, Susan legally owned the 1107 property yet lived in the 1105 property.

¶ 2. The Simpson County Chancery Court found that when James died, the fee simple ownership of the 1107 property vested in Susan by operation of law. The trial court also found that the 1105 property and the 1107 property were of equal value. Applying Mississippi Code Annotated section 91-1-19 (Rev.2004), the trial court found that the 1105 property was exempt property and was not part of the estate; therefore, it vested in fee simple to Daniel. Additionally, the trial court ordered Daniel to pay Susan $6,000.

¶ 3. Susan now appeals, arguing the trial court erred in: (1) finding the properties were equal in value and applying Mississippi Code Annotated section 91-1-19; (2) failing to consider Susan’s use of the 1105 property under Mississippi Code Annotated section 91-1-23 (Rev.2004); (3) allowing the appraiser’s report into evidence without supporting testimony or cross-examination; and (4) not allowing Susan’s appraisal to be admitted into evidence. Finding the issue of the admittance of the appraiser’s report dispositive, we will not address the other three issues on appeal.

STANDARD OF REVIEW

¶4. A trial judge’s decision to admit or exclude evidence is reviewed for abuse of discretion. Wright v. Royal Carpet Servs., 29 So.3d 109, 113 (¶ 9) (Miss.Ct.App.2010). “If an error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party.” Id. (internal quotations omitted).

DISCUSSION

¶ 5. At a hearing on July 19, 2010, Judge Larry Buffington ordered Daniel to obtain an appraisal of both properties, specifically noting if Susan was not happy with the appraisal, she could obtain her own. Daniel retained David Livingston to perform appraisals of both the 1105 property and the 1107 property. Susan did not retain an appraiser to appraise either property.

¶ 6. On June 6, 2011, a hearing was held before Judge David Shoemake, who had inherited the case from Judge Buffington. At the hearing, Daniel sought to admit both appraisals into evidence. Susan objected on the ground that Daniel did not call Livingston to testify and, therefore, did not have a sponsoring witness through which to admit the appraisals. Judge Shoemake admitted the appraisals, noting that Judge Buffington had requested them.

¶ 7. Susan argues that the trial judge erred in not requiring Livingston to be called as a sponsoring witness to testify about his opinion in order determine the reliableness of his appraisals.

¶ 8. This Court has stated, “Prior to its admission into evidence, a document or photograph must be authenticated.” Crutcher v. State, 68 So.3d 724, 730 (¶ 12) (Miss.Ct.App.2011). Mississippi Rule of Evidence 901(a) states that “authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” One illustration in Rule 901(b)(1) is for testimony of a witness with knowledge that “a matter is what it is claimed to be.”

¶ 9. For Livingston to be called as a sponsoring witness under Rule 901, he would have to meet the requirements for an expert witness under Mississippi Rule of Evidence 702 because his testimony would be based on the “specialized knowledge” required for an appraiser. Under Rule 702, a witness with “specialized knowledge” may testify to his opinion if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

¶ 10. When determining the admissibility of an expert’s testimony, the trial judge, applying a “modified Daubert standard[,] ... must first determine whether expert testimony is relevant and, second, whether the proffered testimony is reliable.” Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 946-947 (¶14) (Miss.2008) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Relevancy is determined by Mississippi Rule of Evidence 401 to be evidence that tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Clearly, the appraiser’s evaluations of the properties are relevant to the determination of the property division, therefore meeting the first prong of the modified Daubert standard.

¶ 11. In order to determine reliability under the second prong of the Dau-bert standard, the party requesting the expert testimony to be admitted must offer proof “that the expert’s opinion is based upon scientific methods and procedures, not unsupported speculation.” Adcock, 981 So.2d at 947 (¶ 16). The trial judge may look to factors including:

“whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance” within the expert’s particular field.

Id. (quoting Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 37 (¶ 13) (Miss.2003)).

¶ 12. The trial judge abused its discretion when it allowed the appraisals to be admitted into evidence without the appraiser as a foundational witness under Rule 901. Furthermore, Daniel offered no proof of Livingston’s methods or procedures for appraising either property. None of the applicable reliability factors were considered prior to admitting the appraisals. Additionally, Susan never had the ability to cross-examine Livingston on his methods or procedures.

¶ 13. An error constitutes reversible error “when it affects the final result of the case and works adversely to a substantial right of the party assigning it.” Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216, 221 (Miss.1969). The trial judge relied on the appraisals to determine the division of the properties, therefore affecting the final result of the ease. For this reason, we reverse the decision of the Simpson County Chancery Court.

¶ 14. THE JUDGMENT OF THE SIMPSON 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 AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ„ CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.


author: STUART, Justice.

text:
    Howard M. SCHRAMM, Jr. v. George G. SPOTTSWOOD and Amy H. Spottswood. George G. Spottswood and Amy H. Spottswood v. Howard M. Schramm, Jr., et al.
    1110794 and 1110915.
    Supreme Court of Alabama.
    Oct. 19, 2012.
    See also, Spottswood v. Reimer, 41 So.3d 787.

      Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellant Howard M. Schramm, Jr., and cross-appellees Howard M. Schramm, Jr., Henry E. Reimer, Sr., Daniel E. Reimer, Sr., Regina R. Ehlert, and Melanie R. Moore.
    Bradley R. Byrne and Kenneth S. Steely of Jones, Walker, Waechter, Poitvent, Car-rére & Denegre L.L.P., Mobile, for appel-lees/cross-appellants George G. Spotts-wood and Amy H. Spottswood.
   STUART, Justice.

Howard M. Schramm, Jr., appeals the March 6, 2012, judgment of the Baldwin Circuit Court approving pier-construction permits issued to Schramm’s neighbors, George G. Spottswood and Amy H. Spotts-wood, by the Alabama Department of Conservation and Natural Resources (“DCNR”) and Baldwin County even though the proposed pier would violate the 10-foot setback rule in the applicable DCNR and Baldwin County rules and regulations (appeal no. 1110794). The Spotts-woods cross-appeal the order of the Baldwin Circuit Court denying their January 9, 2012, motion to alter, amend, or vacate its February 27, 2007, judgment setting the boundaries of their riparian-use area (appeal no. 1110915). We affirm.

I.

This dispute concerns the boundaries between three coterminous lots located on the eastern shore of Mobile Bay approximately one mile south of the Grand Hotel at Point Clear. In March 2005, the Spottswoods bought the middle of those lots from the Demouy family and thereafter commenced replacing the existing pier on the lot (“the Demouy pier”), which had been built in the 1950s but had been damaged by Hurricane Ivan in 2004. When it became apparent to the Spottswoods’ neighbors to the south, Henry E. Reimer, Sr., Daniel E. Reimer, Sr., Regina R. Eh-lert, and Melanie R. Moore (collectively referred to as “the Reimers”), that the Spottswoods intended to build their new pier to the south of where the Demouy pier had been located, the Reimers became concerned that their view of the sunset and of the Grand Hotel would be obstructed, and they accordingly commissioned a survey to ascertain the proper boundary lines for the lots, both the upland boundary line between the lots and the riparian boundary line extending out from the shore and into Mobile Bay. When that survey showed the upland boundary line between the lots as being in a location that significantly decreased what was believed to be the Spottswoods’ water frontage and the riparian boundary line as being in a location that bisected the Demouy pier, the Reimers initiated an action seeking to establish conclusively the boundary lines set forth in that survey as the boundaries between the two lots. The Spottswoods filed a counterclaim seeking to establish the property lines in a manner consistent with their own survey, which afforded them significantly more waterfront footage. Eventually Schramm, the Spotts-woods’ neighbor to the north, intervened, seeking a judgment declaring the boundary lines between his lot and the Spotts-woods’ lot as well.

On February 27, 2007, the trial court entered a final judgment in the case. In that order, the trial court noted that the determination of the boundaries was complicated by the fact that the documentary evidence did not clearly define boundaries along the beach area, which had changed shape and grown by a minimum of approximately 50 feet and perhaps as much as 150 feet over an approximately 150-year period. Applying equitable principles, the trial court therefore held that the boundary line proposed by the Spottswoods was the proper border between their lot and the Reimers’ lot, thus giving the Spotts-woods ownership of a disputed triangle-shaped piece of land also claimed by the Reimers. However, the trial court also declined to apply the general rule holding that riparian boundary lines should run perpendicular to the shoreline because doing so would have placed the riparian boundary between the Spottswoods and the Reimers directly through the Reimers’ pier, which had existed since the 1950s and which, when built, was undisputedly south of a line running perpendicular to the shore where the Spottswood and Reimer parcels met. Thus, the trial court held that the riparian boundary line should instead extend out into the water at the same angle as the upland boundary line.

The trial court also held that both the upland and riparian boundary lines between Schramm’s lot and the Spottswoods’ lot had been defined in a 1956 agreement between their predecessors in title. That agreement also required any pier or similar structure constructed on Schramm’s lot to observe a 25-foot setback along the riparian boundary line with the Spotts-woods, which line, pursuant to the general rule, extended perpendicular from the shore. The trial court further held that the 1956 agreement imposed no similar setback requirements upon the owners of the Spottswoods’ lot.

Once the riparian boundary lines of the Spottswood property were established, the result was that the Spottswoods had riparian rights to a triangle-shaped area in front of their property bordered by the shore on the east and the above-described riparian boundary lines on the north and south until they intersected at a point approximately 105 yards offshore. With regard to the placement and style of any pier constructed by the Spottswoods, the trial court held that the Spottswoods could proceed with the construction of a new pier without any limitation upon the height, structure, or materials used, provided (1) that they complied with all applicable state and federal permitting requirements and (2) that they built the pier in the same general footprint of the Demouy pier — even though the Demouy pier had in fact encroached to a small extent into waters as to which Schramm had riparian rights. Finally, the trial court noted that it retained jurisdiction “to determine any subsequent issues regarding the establishment or description of the land and riparian boundary lines decreed herein or the Spottswoods’ construction of their pier.”

The Spottswoods subsequently appealed the judgment of the trial court, arguing that the court erred in its determination of their riparian boundary line with the Reimers and in requiring them to build any new pier within the footprint of the Demouy pier; the Reimers cross-appealed, arguing that the trial court erred in its determination of the upland boundary line between their lot and the Spottswood lot. On July 24, 2009, in Spottswood v. Reimer, 41 So.3d 787, 796-98 (Ala.Civ.App.2009), the Court of Civil Appeals affirmed the trial court’s judgment insofar as it established both the upland and riparian boundaries between the Spottswood and Reimer lots; however, it reversed the trial court’s judgment to the extent it required the Spottswoods to build any future pier in the footprint of the Demouy pier, holding that that restriction was in violation of § 33-7-50, Ala.Code 1975, which, this Court held in Ex parte Cove Properties, Inc., 796 So.2d 331, 334 (Ala.2000), authorizes owners of riparian lands to construct a pier in navigable waters in front of their property subject only to harbor and pier lines established by the United States or the State of Alabama and the additional caveat that the pier not unreasonably obstruct navigation.

On approximately February 10, 2010, the Reimers began seeking permits to begin repairing their pier, which had been damaged in August 2005 during Hurricane Katrina, by preparing (1) a joint application to the United States Army Corps of Engineers and the Alabama Department of Environmental Management; (2) an application to DCNR; and (3) an application to Baldwin County. On February 26, 2010, the Reimers submitted a copy of their applications and plans to the trial court, the Spottswoods, and Schramm, asking the trial court to confirm that the construction of their pier was in compliance with the trial court’s February 27, 2007, order. On April 19, 2010, the trial court entered an order confirming that the Reimers’ proposed pier did not violate its earlier judgment and again stating that it would retain jurisdiction “to review any application hereafter submitted by [the Spottswoods] for the construction of their pier.”

Subsequently, however, the Spottswoods filed an objection to the Reimers’ proposal with DCNR, arguing that the Reimers’ proposed pier would come within 10 feet of the riparian boundary separating their riparian-use area, in violation of DCNR rules requiring all piers on State-owned submerged land to be “setback 10 feet from the riparian lines of adjacent property owners,” Ala. Admin. Code (Department of Conservation and Natural Resources), Rule 220 — 4—.09(4)(b)(ll), as well as a similar Baldwin County regulation. The Reimers thereafter requested the trial court to intervene, arguing that they were rebuilding their pier in the footprint on which it had existed for over 50 years, with the exception of a 3-foot addition to the boat lift — the boat lift being the only part of the pier within 10 feet of the riparian boundary — that had been made in 1998 with the approval of the Demouy family, the Spottswoods’ predecessors in title. However, the Reimers subsequently conceded the issue and redrew their plans to place the boat lift on the south side of their pier so as to completely prevent any portion of their pier from intruding into the 10-foot setback area.

The Spottswoods thereafter filed for permits to build their own pier, receiving the permits in January and February 2011. Those permits approved the Spottswoods’ plans to build a pier just inside the riparian boundary line separating the Spotts-woods’ and Schramm’s riparian-use areas. In other words, the proposed pier left essentially no setback area on the Spotts-woods’ side of the riparian boundary line. In an affidavit explaining the decision to approve the Spottswoods’ plans in spite of the lack of the required 10-foot setback, DCNR employee Jeff Jordan stated:

“In this case, the court decision memorialized the projection of the Reimer lateral upland property boundary with the Spottswoods as a riparian line. The boundary line takes an acute angle from the shore that now intersects with the Spottswoods other riparian line to the north. The area determined by the court does not follow the guidance used by [DCNR] described above.
“That results in the Spottswoods having an unusually confined riparian use area when compared to the width of their shoreline and the width and shape of the water body. In contrast, the Reimer property to the south while having a very similar shoreline width now enjoys much larger riparian use area than any similar parcel with similar shoreline width.
“The Schramm property adjacent and north to the Spottswoods, while having a shorter width of shoreline, also enjoys a larger riparian use area.
“During the review it became evident that the Spottswood riparian area now artificially terminates so close to shore and converges so closely that it may not be possible to reach reasonable navigable depths given the unique near shore dynamics of the Mobile Bay along that area and still meet the setbacks.
“Upon review and with consideration toward efforts to be consistent and predictable I reviewed similar permit requests and [DCNR’s] responses.
“One situation involved a private riparian property owner applying to repair and expand a pier on Arnica Bay. The applicant’s adjacent riparian property owner built a pier immediately on the setback and the other neighbor had an unpermitted pier built but at an angle to the shoreline that followed a projection of his lateral upland property boundary. To allow the applicant to build and maintain a similar size pier and boathouse and to be able to reach navigable depths the applicant was allowed to build within the setback. In [an] effort to determine the reasonable use area, a minimum distance was determined between the proposed structure and the adjacent existing structure.... Due to the confined nature of the area, the applicant was allowed to maintain a minimum ten-foot setback from the adjacent riparian property owner’s existing structure and not the riparian line.
“The pier line boundary agreement between the Schramm and Spottswood property specifies a 25-foot setback referenced as the center of the Schramm structure as it currently exists. The Spottswood pier maintains a distance from the Schramm pier greater than the 10-foot requirement used in the previous situation.
“In both situations, in order to not unreasonably] restrict the traditional common-law riparian right of the applicants or their ability to reach reasonable navigational depth and to be allowed a similar structure as those immediately adjacent with similar riparian shoreline widths, encroachment into the setbacks [was] allowed.
“The above conforms to [Ala. Admin. Code (Department of Conservation and Natural Resources), Rule 220-4-.09(4)(c)(l) ]: ‘None of the provisions in this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common-law riparian rights of the upland property owners adjacent to state-owned submerged lands.’
“As in previous similar situations and given the confined riparian use area that now restricts the Spottswoods’ use of their riparian lands, in order to satisfy the requirement to not infringe upon the riparian rights of an owner of riparian lands fronting public waters, the Spotts-woods were permitted to construct within the setbacks.”

Schramm became aware of the Spotts-woods’ plans in April 2011 after he was given a copy of the plans by a member of the Reimer family. A short time later, the Spottswoods commenced construction of their pier, and, on May 9, 2011, Schramm asked the trial court to set a hearing to review the plans for the Spottswoods’ pier. The Spottswoods thereafter voluntarily stopped construction on their pier, and the Reimers and Schramm subsequently filed a formal joint motion asking the trial court to prohibit the Spottswoods from building the planned pier based on the failure to observe the 10-foot setback required by DCNR and by Baldwin County regulations.

On January 9, 2012, the Spottswoods filed a motion asking the trial court to amend its February 27, 2007, order setting the riparian boundaries for the water in front of their lot because, they argued, pursuant to § 9-12-22, Ala.Code 1975, they were entitled to grow and harvest oysters “in the waters in front of their land to the distance of 600 yards from the shore.” However, the Spottswoods argued, the riparian boundaries set by the trial court caused their riparian-use area to terminate only 105 yards from the shore, thus prohibiting them from the full enjoyment of their rights under § 9-12-22. The trial court conducted an ore tenus evidentiary hearing on all pending matters on March 2, 2012, and on March 6, 2012, issued separate orders denying both the Reimers’ and Schramm’s joint request to invalidate the pier permits issued the Spottswoods and the Spottswoods’ motion to amend its February 27, 2007, judgment setting their riparian boundaries. On March 19, 2012, Schramm appealed the judgment entered against him, and, on April 11, 2012, the Spottswoods appealed the judgment entered against them.

II.

This Court explained the standard of review applicable to Schramm’s appeal in Ex parte City of Fairhope, 739 So.2d 35 (Ala.1999), in which we considered the City of Fairhope’s argument that the Court of Civil Appeals had improperly reversed the judgment of the circuit court affirming the City of Fairhope’s issuance of a permit authorizing a second-floor addition to a grandfathered nonconforming garage that did not meet the side-yard setback requirement. We stated then:

“There is no dispute that the proper standard of review in cases based on an administrative agency’s decision is whether that decision was arbitrary or capricious or was not made in compliance with applicable law.
“ ‘Our standard of review regarding administrative actions is very limited in scope. We review the circuit court’s judgment without any presumption of correctness since that court was in no better position than this court to review the agency decision. State Health Planning & Resource Dev. Admin, v. Rivendell of Alabama, Inc., 469 So.2d 613 (Ala.Civ.App.1985). The special competence of the agency lends great weight to its decision. That decision must be affirmed unless arbitrary, capricious, or not made in compliance with applicable law. Rivendell. Neither the circuit court nor this court may substitute its judgment for that of the administrative agency. Alabama Dep’t of Public Health v. Perkins, 469 So.2d 651 (Ala.Civ.App.1985).’
“State Dep’t of Revenue v. Acker, 636 So.2d 470, 473 (Ala.Civ.App.1994).”

739 So.2d at 38. The standard of review applicable to the Spottswoods’ cross-appeal is the standard of review applicable to the denial of a Rule 59(e), Ala. R. Civ. P., postjudgment motion to alter, amend, or vacate a judgment. “Whether to grant relief under Rule 59(e), Ala. R. Civ. P., is within the trial court’s discretion.” Bradley v. Town of Argo, 2 So.3d 819, 823 (Ala.2008).

III.

On appeal, Schramm argues that DCNR’s issuance of a permit to the Spottswoods for construction of a pier violated the agency’s own rules and that DCNR’s decision was arbitrary and capricious. Specifically, he cites Ala. Admin. Code (Department of Conservation and Natural Resources), Rule 22(M-,09(4)(c)(4), which provides:

“Except as provided herein, all structures ... must be set back a minimum of 10 feet inside the applicant's riparian rights lines. Exceptions to the setbacks are: private residential single-family docks or piers where such structures are shared by two adjacent single-family parcels; utility lines; bulkheads, seawalls, riprap or similar shoreline protection structures located along the shoreline; structures and activities previously authorized by [DCNR]; structures and activities built or occurring prior to any requirement for [DCNR] authorization; when a letter of concurrence is obtained from the affected adjacent upland riparian owner; or when [DCNR] determines that locating any portion of the structure or activity within the setback area is necessary to avoid or minimize adverse impacts to natural resources.” Dist. No. 2, 172 Or. 630, 638-39, 143 P.2d 471, 474 (1943); see generally 65 C.J.S. Navigable Waters § 73b (1966).”

It is undisputed that none of the listed exceptions apply here, and Schramm argues that it was accordingly error for DCNR to base its decision on an unenu-merated exception. The Spottswoods, however, cite DCNR employee Jordan’s testimony that Ala. Admin. Code (Department of Conservation and Natural Resources), Rule 22(M-.09(4)(c)(l), authorizes DCNR to decline to enforce a rule if doing so would “unreasonably infringe upon the traditional, common-law riparian rights of upland property owners adjacent to state-owned submerged lands.” We agree that Rule 22CM-.09(4)(c)(l) provides another basis on which DCNR can grant exceptions to the 10-foot setback requirement; however, this conclusion in turn raises the issue whether enforcing the 10-foot setback requirement against the Spottswoods would infringe upon a common-law riparian right held by them. Schramm argues that it would not; the Spottswoods argue that it would.

Jordan testified that DCNR granted the Spottswoods’ application for a pier permit because enforcing the setback requirement would infringe upon the general common-law right held by all owners of riparian property to be able to “wharf out” to waters of a reasonable navigational depth. Schramm disputes that such a common-law riparian right exists; however, caselaw reveals that this common-law right has in fact been recognized in most jurisdictions, including Alabama. In Cove Properties, Inc. v. Walter Trent Marina, Inc., 796 So.2d 322, 826-27 (Ala.Civ.App.1999), reversed in part on other grounds, 796 So.2d 331 (Ala.2000), the Court of Civil Appeals stated:

“[W]hile there are no Alabama cases explicitly adopting the principle, the majority common-law rule (which, in this area of riparian property law, is binding on this court; see Wehby [v. Turpin ], 710 So.2d [1243,] 1249 [ (Ala.1998) ], and § 1-3-1, Ala.Code 1975), is that the right to wharf out is derived from a riparian landowner’s right of access to navigable or deep water, and as soon as that landowner reaches the point of navigability, the purpose of the right is fulfilled and his or her access rights cease. E.g., Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 598 n. 13, 587 A.2d 126, 132 n. 13 (1991); State ex rel. Head v. Slotness, 289 Minn. 485, 487, 185 N.W.2d 530, 532 (1971); Rogers v. South Slope Holding Corp., 172 Misc.2d 33, 38-39, 656 N.Y.S.2d 169, 174 (Sup.Ct.1997), modified on other grounds and aff'd, 255 A.D.2d 898, 680 N.Y.S.2d 772 (1998); Hoff v. Peninsula Drainage

Thus, the Spottswoods do have the common-law right to build a pier in the waters in front of their property extending out to the point of navigability, and, under Rule 220-4-.09(4)(c)(l), DCNR may interpret and implement its rules in a manner that will respect that right.

However, even if this Court does recognize the Spottswoods’ right to wharf out to the point of navigability, Schramm nevertheless argues that DCNR’s approval of their permit application was arbitrary and capricious because, he argues, there is no evidence indicating that disregarding the 10-foot setback along their riparian boundary enables them to wharf out to a deeper part of the bay. Although it is true that there is no specific evidence of water depths or offshore slopes indicating that the Spottswoods will reach deeper water by placing their pier along the riparian boundary, we nonetheless conclude that DCNR’s decision to issue the permit is reasonable in light of that goal.

In his affidavit, Jordan stated that, after reviewing the boundary lines set by the trial court and considering “the unique near shore dynamics of the Mobile Bay along that area,” he concluded that it may not be possible for the Spottswoods to reach reasonable navigable depths and still observe the required setbacks. He further stated that it was DCNR policy to allow riparian property owners to construct piers similar to those maintained by neighboring properties with similar shoreline widths, and the evidence and maps in the record indicate that the Spottswoods’ proposed pier extends approximately as far into Mobile Bay as the piers of both Schramm and the Reimers. Presumably, those piers extend to the point of navigability, because they have no right to extend any further. Cove Properties, Inc. v. Walter Trent Marina, Inc., 796 So.2d at 326-27; see also Great American Ins. Co. v. Tugs “Cissi Reinauer, 933 F.Supp. 1205, 1218 (S.D.N.Y.1996) (“The right to construct a wharf derives from the right of access to ‘navigable’ or ‘deep’ water. 1 H.P. Farnham, Water and Water Rights § 62. For that reason, ‘as soon as the point of navigability is reached, the purpose of the pier is fulfilled, and the right to construct it ceases at that point.’ Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892).”). The maps in evidence indicate that moving the Spottswoods’ proposed pier south of the riparian boundary line any significant distance would immediately move it within the setback area for the riparian boundary line adjoining the Reimers’ riparian-use area. Thus, the only way the Spottswoods may have a pier similar in length to the pier of either Schramm or the Reimers is to disregard the setback requirements on either one side or the other. DCNR had a reasonable basis upon which to waive the setback on the Spottswoods’ northern riparian border adjacent to Schramm’s riparian-use area instead of the southern riparian border because of the 25-foot setback Schramm maintains on his side of the riparian boundary line, thus assuring that all three piers are separated by a reasonable distance, given the unique circumstances of these lots. Moreover, we note that the Demouy pier had also apparently encroached upon the 10-foot setback — and to a minor extent over the riparian boundary line — for several decades, and, for all that appears, this was never the subject of dispute among the parties. For these reasons, we cannot conclude that DCNR’s decision to approve the Spottswoods’ plans for construction of the pier was clearly unreasonable, arbitrary, or without a rational basis, and we accordingly affirm the judgment of the trial court denying Schramm and the Reimers’ request that the Spottswoods be prohibited from building a pier consistent with that permit.

We also affirm the order of the trial court denying the Spottswoods’ motion to alter, amend, or vacate its February 27, 2007, order setting the boundaries of the Spottswoods’ riparian-use area. The Spottswoods argue that their motion, filed almost five years after the trial court’s final judgment, was nevertheless timely and appropriate because the trial court stated in that order that it would retain jurisdiction over the case to determine any “subsequent issues” that arose regarding the boundary lines. We disagree. The Spottswoods’ motion does not raise any new issue because determining the riparian boundary lines of the Spotts-woods’ property was one of the central issues in this case from its inception. Rather, the Spottswoods’ motion is an attempt to advance a new argument in order to revisit an issue already decided by the trial court in its February 27, 2007, order, which decision was affirmed by the Court of Civil Appeals in Spottswood, 41 So.3d at 797 (“[W]e affirm the trial court’s judgment insofar as it determines that the riparian boundary line is an extension of the Spottswood line.”). This they cannot do. See Ex parte S.T.S., 806 So.2d 336, 341 (Ala.2001) (“The issues decided by an appellate court become the law of the case on remand to the trial court, and the trial court is not free to reconsider those issues. Murphree v. Murphree, 600 So.2d 301 (Ala.Civ.App.1992).”). The trial court did not exceed its discretion in rebuffing the Spottswoods’ attempt to relitigate this issue.

IV.

In appeal no. 1110794, Schramm appealed the judgment of the trial court approv-tag the pier-construction permit issued to the Spottswoods by DCNR, arguing that DCNR’s decision to issue its permit was arbitrary and capricious. However, because the evidence indicates that DCNR had a rationale basis for its decision, we affirm the judgment of the trial court. In appeal no. 1110915, the Spottswoods cross-appealed from the order of the trial court denying their motion to alter, amend, or vacate its February 27, 2007, judgment setting the boundaries of their riparian-use area. Because that motion sought to relit-igate an issue already decided by the trial court and the Court of Civil Appeals, we affirm that order as well.

1110794 — AFFIRMED.

1110915 — AFFIRMED.

MALONE, C.J., and PARKER, SHAW, and WISE, JJ., concur.

      . Although the State owns all property below the shoreline, owners of lands upon navigable waters have certain rights in those waters, including the right to build piers within the waters in front of those lands. See §§ 33-7-50 through 33-7-54, Ala.Code 1975.

      . DCNR and Baldwin County thereafter filed consent agreements with the trial court agreeing to recognize the court’s judgment regarding the validity and propriety of the pier permits issued to the Spottswoods.

      . On appeal, Schramm challenges only the pier permit issued by DCNR, not the pier permit issued by Baldwin County. Presumably, this is because, during the evidentiary hearing conducted by the trial court, a Baldwin County official testified that the county granted the Spottswoods’ application for a permit essentially because DCNR had already done so.