text:
    Bobby Franklin BASWELL, Appellant v. Elizabeth BASWELL, Appellee
    NO. 2015-CA-01564-COA
    Court of Appeals of Mississippi.
    01/31/2017

      UNION COUNTY CHANCERY COURT, JOHN ANDREW HATCHER, J.
    JOHN PATRICK ROBBINS, ATTORNEY FOR APPELLANT
    CHRISTOPHER ALAN CHILDERS, ATTORNEY FOR APPELLEE
   CARLTON, J.,

FOR THE COURT:

¶ 1. Bobby Baswell appeals the Union County Chancery Court judgment awarding Elizabeth Baswell periodic alimony and attorney fees. On appeal, Bobby raises the following issues: (1) whether the chancellor erred by awarding Elizabeth periodic alimony; and (2) whether the chancellor erred by awarding Elizabeth attorney fees. Finding no error, we affirm.

FACTS

¶2. Bobby and Elizabeth married on October 4,1985. In March 2013, they separated. On February 23, 2015, Bobby filed a complaint for divorce. In an order filed on October 2, 2015, the chancellor granted the parties an irreconcilable-differences divorce. The chancellor acknowledged that, on the day of trial, the parties stipulated the only remaining issues between them related to alimony and attorney fees.

¶ 3. The chancellor found that the parties’ division of their assets and debts left Elizabeth with a deficit. As a result, the chancellor analyzed the Armstrong factors to determine whether to award Elizabeth periodic alimony. The chancellor first determined that Bobby net monthly income totaled $2,544.79 and that his reasonable monthly expenses totaled $1,477.50, which left Bobby with a monthly surplus of $1,067.29. The chancellor next determined that Elizabeth net monthly income totaled $907 and that her reasonable monthly expenses totaled $886.59, which left her with a monthly surplus of $20.41. The chancellor therefore found that consideration of the parties’ incomes and expenses favored Elizabeth. In addition, based on his calculations of the parties’ incomes and expenses, the chancellor concluded that the needs of each party was a factor that also weighed in Elizabeth favor.

¶ 4. While Bobby was healthy and possessed a good earning capacity, the chancellor found that Elizabeth had received Social Security disability pay for a number of years and that her disabilities prohibited her from working. As a result, the chancellor concluded that this factor also favored Elizabeth. In considering the parties’ obligations and assets, the chancellor noted that Bobby Rule 8.05 financial statement reflected a monthly automobile payment of $300 but no actual automobile. The chancellor also noted the parties’ agreement that Elizabeth would keep the marital home and retain responsibility for the related mortgage payments. Based on these considerations, the chancellor concluded that this factor favored Elizabeth.

¶ 5. The chancellor next found that the parties had been married twenty-seven years at the time of their separation and almost thirty years at the time of'their divorce. As a result, the chancellor determined that the length of the parties’ marriage favored Elizabeth. Although the parties had three children during their marriage, the children were adults. Thus, even though Bobby fiancée and her grandchildren lived with Bobby, and even though the parties’ grown daughter and her husband lived with Elizabeth, the chancellor concluded that the parties had no legal' obligation to pay for anyone other than themselves. As a result, the chancellor considered this factor to be neutral. The chancellor likewise considered the parties’ ages—Bobby was fifty years old, and Elizabeth was forty-seven years old— to be a neutral factor.

¶ 6. The chancellor next found that the parties had a marginal standard of living prior to their final separation. Following their final separation, Bobby had been forced to file for bankruptcy, and the chancellor determined that Elizabeth lifestyle had diminished considerably. As a result, the chancellor found that each party standard of living had deteriorated. However, after concluding that Elizabeth lifestyle had deteriorated the most, the chancellor determined that this factor weighed in her favor.

¶ 7. The chancellor also considered any tax consequences resulting from a spousal-support order, but he noted that no evidence had been submitted on the. issue. As a result, the chancellor concluded that this factor was neutral. In addition, the chancellor found no evidence that either party had wastefully dissipated assets, and he therefore determined this factor to be neutral.

¶ 8. In discussing the parties’ fault or misconduct and any other just and equitable factors, the chancellor concluded that these factors clearly favored Elizabeth. The chancellor stated that Bobby, "without warning or notice, vacated the marital home, moved in with the woman he calls his fiancé[e] ... [and] her three (3) grandchildren, and continues to live with her in a state of unlawful cohabitation.” The chancellor further stated that Bobby “left the marital relationship without justifiable cause or reason under the law at a time when [Elizabeth] was disabled, he knew her disability, and her disability has since worsened to .., where she [cannot] even earn the little bit of income she was making while the parties were together .... ” In addition, the chancellor reiterated his finding that, unlike Elizabeth, Bobby possessed expendable income after his reasonable monthly expenses and was therefore in a far better position to care for himself.

¶ 9, Based on his analysis of the Armstrong factors, the chancellor concluded that periodic alimony was proper, and he ordered Bobby to pay Elizabeth $525 a month. The chancellor then considered the issue of attorney fees. After finding that Elizabeth possessed a “gross inability” to pay her attorney fees, the chancellor ordered Bobby to pay reasonable attorney fees not to exceed $1,500. Aggrieved by the chancellor judgment, Bobby appeals.

STANDARD OF REVIEW

¶ 10. “This Court standard of review in domestic[-]relations matters is extremely limited.” Phillips v. Phillips, 45 So.3d 684, 692 (¶ 28) (Miss. Ct. App. 2010). We refuse to disturb a chancellor findings of fact unless the findings were manifestly wrong or clearly erroneous or unless the chancellor applied an erroneous legal standard. Id. When substantial evidence in the record supports the chancellor factual findings, we will not reverse the chancellor decision. Id. However, we review questions of law de novo. Smith v. Wilson, 90 So.3d 51, 56 (¶ 13) (Miss. 2012).

DISCUSSION

I, Whether the chancellor erred by awarding Elizabeth periodic alimony.

¶ 11. Bobby argues that this Court should reverse the award of periodic alimony because the chancellor improperly evaluated the Armstrong factors. Specifically, Bobby takes issue with the chancellor findings on the following factors: (1) the parties’ incomes and expenses; (2) the parties’ obligations and assets; (3) the parties’ standards of living; and (4) the parties’ fault or misconduct.

¶ 12. “Alimony awards are within the discretion of the chancellor, and his discretion will not be reversed on appeal unless [he] was manifestly in error in his finding of fact and abused his discretion.” Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993) (internal citations omitted). “[I]f the marital assets, after equitable division and in light of the parties’ [nonmarital] assets, will adequately provide for both parties, then no more need be done.” O’Brien v. O’Brien, 149 So.3d 508, 515 (¶ 23) (Miss. Ct. App. 2014) (citation and internal quotation marks omitted). However, if a deficit remains for one of the parties, the chancellor should determine whether an award of alimony is appropriate. Coggins v. Coggins, 132 So.3d 636, 640 (¶ 9) (Miss. Ct. App. 2014). The chancellor makes this determination by applying the Armstrong factors. Id.

¶ 13. Here, the chancellor concluded that the parties’ agreed-upon division of their assets and debts left Elizabeth with a deficit. After considering the Armstrong factors, the chancellor ordered Bobby to pay Elizabeth $525 a month in periodic alimony. As previously stated, Bobby disputes the chancellor findings of fact with regard to four of the Armstrong factors. However, upon review, we find no manifest error or abuse of discretion in the chancellor findings with regard to these four factors.

¶ 14. With regard to the parties’ incomes and expenses, the record reflects that the chancellor calculation of Bobby monthly expenses differed from the figures Bobby provided on his Rule 8.05 financial statement. Although Bobby argues that the chancellor erred by reducing his claimed expenses for certain categories, the record contains substantial evidence to support the chancellor findings. The chancellor first determined that Bobby listed several expenses on his financial statement that were voluntary rather than mandatory. As a result, in calculating Bobby actual monthly income and expenses, the chancellor excluded those expenses that were voluntary. In addition, the chancellor found the amounts Bobby listed for certain other expenses to be unreasonable since the amounts covered Bobby, his fiancée, and his fiancée three grandchildren. Because Bobby possessed no legal obligation to support his fiancée or her grandchildren, the chancellor adjusted the amounts of Bobby listed expenses to reflect an amount that provided for Bobby alone. Since the record contains substantial evidence to support the chancellor finding that this factor favored Elizabeth, we find no manifest error.

¶ 15. With regard to the parties’ obligations and assets, Bobby claims the chancellor erred by failing to consider as an obligation the $300 automobile payment Bobby listed. Although he failed to list a specific automobile on his Rule 8.05 financial statement, Bobby asserts that he listed the payment and testified at the hearing that he makes the payment. Bobby argues that, “[b]y not considering this $300 obligation, the [chancellor] made further funds available to [Elizabeth] alimony obligation but did not take into account the need for [Bobby] to meet his own financial obligations.”

¶ 16. While acknowledging Bobby testimony that he had a 2004 Trailblazer, the chancellor noted that Bobby also testified he was borrowing his brother truck and that the loan for the Trailblazer was in both his and his fiancée names. After determining that Bobby Rule 8.05 financial statement failed to provide any evidence that Bobby owned an automobile, the chancellor concluded that no such payments should be considered. Upon review, we find no manifest error in the chancellor factual findings regarding this factor.

¶ 17. As to the chancellor consideration of the parties’ fault or misconduct, Bobby asserts that his extramarital relationship was not the reason—or at least not the only reason—for the parties’ separation. At the hearing, Bobby testified that, prior to their separation, Elizabeth helped provide in-home care for a sick elderly patient. Bobby stated that Elizabeth job kept her from the marital home almost all day and all night. Bobby further stated that he almost never saw Elizabeth unless he went to her place of work, and he testified that the parties frequently slept in separate bedrooms and kept separate finances. In addition, Bobby testified that the parties argued over Elizabeth work schedule and that he asked Elizabeth to be home on a more regular basis. Based on these assertions, Bobby argues on appeal that the chancellor abused his discretion by only holding Bobby accountable for the parties’ separation.

¶ 18. Despite Bobby argument, Elizabeth provided testimony during the hearing to refute his assertions. Elizabeth testified that she and Bobby were not fighting at'the time he left the marital home and that, as far as she had been aware, she did not do anything to cause the separation. Elizabeth further stated that Bobby never mentioned to her that he was unhappy with her work schedule. Instead, Elizabeth testified that, about a week after Bobby moved out, he told her that he had left because he had cheated on her. Based on the testimony and evidence presented during the hearing, the chancellor found that Bobby misconduct had contributed to the breakdown of the parties’ marriage and that consideration of this factor strongly and clearly favored Elizabeth. Due to the substantial evidence in the record to support the chancellor finding, we find no manifest error.

¶ 19. With regard to the final disputed factor—the parties’ standards of living— Bobby argues that the chancellor “abused his discretion by using the award of alimony as a punitive tool to punish [Bobby] for adultery” rather than fashioning a remedy that allowed Bobby to also maintain a reasonable standard of living. To support this assertion, Bobby alleges that the chancellor repeatedly referred to Bobby extramarital relationship as “unlawful” and “illegal,” and he contends that the chancellor failed to acknowledge that Elizabeth regular absences from the home contributed to the breakdown of the parties’ marriage. According to Bobby, the chancellor reduction of the allotted amounts for many of Bobby listed monthly expenses, coupled with the amount of the alimony award, prevents him from maintaining any reasonable standard of living. As previously discussed, however, we find substantial evidence in the record to support the chancellor reduction of several of Bobby listed monthly expenses and his determination that Bobby extramarital relationship led to the breakdown of the parties’ marriage. We further find substantial credible evidence to support the chancellor conclusion that Elizabeth standard of living had more significantly deteriorated since the parties’ separation.

¶ 20. Thus, after reviewing Bobby claim that the chancellor improperly evaluated four of the Armstrong factors, we find no manifest error in the chancellor findings. The record contains substantial credible evidence to support the chancellor findings and his award of periodic alimony to Elizabeth. As a result, this assignment of error lacks merit.

II. Whether the chancellor erred by awarding Elizabeth attorney fees.

¶ 21. Bobby also asserts that the chancellor erred by awarding Elizabeth attorney fees up to the amount of $1,500 because Elizabeth never submitted evidence of her attorney fees. With regard to attorney fees, this Court recently stated:

An award of attorney fees is appropriate in a divorce case where the requesting party establishes an inability to pay. However, if a party is financially able to pay her- attorney, an award of attorney fees is not appropriate. As the issue of whether to award attorney fees in a divorce case is a discretionary, matter left to the chancellor, this Court, is reluctant to disturb such a finding.

Williams v. Williams, 179 So.3d 1242, 1254 (¶ 42) (Miss. Ct. App. 2015) (internal citations and quotation marks omitted). “Unless the chancellor is manifestly wrong, his decision regarding attorney[] fees will not be disturbed on appeal.” Gaiennie v. McMillin, 138 So.3d 131, 137 (¶ 15) (Miss. 2014) (citation omitted).

¶ 22. “In order to determine the amount of attorney fees, a chancellor must look to the factors enumerated in McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982),” Branch v. Branch, 174 So.3d 932, 945 (¶ 57) (Miss. Ct. App. 2015). In Branch, this Court recognized:

The court in McKee stated: We are also of the opinion the allowance of attorney fees should be only in such amount as will compensate for the services rendered. It must be fair and just to all concerned after it has been determined that the legal work being compensated was reasonably required and necessary. The specific factors included]
[T]he relative financial ability of the parties, the skill and standing of the attorney employed, the'nature of the case and novelty and difficulty of the ' questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case.
Further, where the record shows an inability to pay and a disparity in the relative financial positions of the parties, there is no error in awarding attorney fees.

Branch, 174 So.3d at 945-46 (¶ 58) (internal citations and quotation marks omitted).

¶ 23. In Branch, the chancellor found that the ex-wife lacked the ability to pay her attorney fees. Id. at 946 (¶ 59). This Court stated that, although the chancellor never “explicitly considered] the individual McKee factors, the chancellor found the [ex-wife attorney] fees reasonable in accordance with McKee.” Id. Despite some omissions in the chancellor findings and the lack of a factor-by-factor analysis under McKee, we concluded that the chancellor accurately relied on the ex-wife financial position and correctly awarded attorney fees. Id. at (¶¶ 59, 61). We therefore found no manifest error in the chancellor decision to award reasonable attorney fees. Id. at (¶ 61).

If 24. In the present case, Elizabeth testified as to the severity of her overall financial situation. Like in Branch, the record here fails to reflect that the chancellor explicitly considered the McKee factors or conducted a factor-by-factor analysis under McKee. Instead, based on the evidence and testimony before him, the chancellor appears to have simply concluded that Elizabeth had proven her inability to pay her attorney fees. The chancellor stated in his order that Elizabeth had incurred attorney fees but that she had a “gross inability” to pay the fees. As a result, the chancellor ordered Bobby to pay Elizabeth reasonable attorney fees not to exceed $1,500 at an hourly rate of $175 an hour, plus actual, necessary, and reasonable expenses. The chancellor further stated that, “[I]f challenged in regard to the issue of attorney fees and expenses, [Elizabeth] attorney shall submit an itemized bill for same at the hourly rate he did charge, not to exceed that set by the [c]ourt .... ” However, the record reflects no evidence that Bobby ever requested, or that Elizabeth attorney ever provided, an itemized bill for attorney fees.

¶ 25. Upon review, we find no abuse of discretion in the chancellor conclusion that Elizabeth lacked the ability to pay her attorney fees based on the evidence and testimony of her overall financial situation. We therefore find no manifest error in the chancellor decision to award Elizabeth reasonable attorney fees. Accordingly, this issue lacks merit.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

      . Although the parties had three children during their marriage, all three had reached the age of majority by the time of the divorce hearing.

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993).

      . UCCR8.05.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Frank Thomas FRIDAY a/k/a Frank Friday, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01343-COA
    Court of Appeals of Mississippi.
    02/14/2017

      DESOTO COUNTY CIRCUIT COURT, GERALD W. CHATHAM SR. J.
    OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. A DeSoto County jury found Frank Friday guilty of three counts of sexual battery and two counts of fondling of Betty, who, at the time of the crime, was his twelve-year-old stepdaughter. The trial judge sentenced Friday to twenty years with five years suspended for Count III (sexual battery), ten years for Count IV (fondling), ten years for Count V (fondling), twenty years with five suspended for Count VI (sexual battery), and twenty years with five suspended for Count VII (sexual battery) in the custody of the Mississippi Department of Corrections, followed by five years of reporting postre-lease supervision and five years of nonre-porting postrelease supervision. Counts IV, V, and VI were ordered to be served concurrently to the sentence in Count III, with Count VII to be served consecutively to the sentence in Count III. Friday now appeals, arguing the trial court erred in refusing to grant funds for an independent DNA examination, and in failing to conduct a tender-years hearing. Finding only harmless error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On January 9, 2014, Detective Tim Stark of the Horn Lake Police Department received a telephone call from the school resource officer at Horn Lake Middle School. Detective Stark learned from a Mississippi. Department of Human Services (DHS) social worker at the school that two students, then-fourteen-year-old Abby and twelve-year-old Betty, had reported being sexually abused by their stepfather, Friday. Detective Stark arranged for Betty to go to the Memphis Rape Crisis Center for a sexual-assault examination; he also interviewed the children’s mother, Karen, about the allegations.

¶ 3, Betty’s sexual-assault kit was logged and stored at the police station until it could be delivered to the crime lab. A search warrant was obtained for Friday’s DNA and compared to the vaginal swabs from Betty’s sexual-assault kit. The kit contained seminal fluid found in Betty’s vagina, which matched Friday’s cheek-swab DNA by a “statistic of one in greater than ten billion.” Both Abby and Betty had forensic interviews at Healing Hearts Child Advocacy Center in Southaven, Mississippi, which Detective Stark observed. Ultimately, Friday was arrested, and a seven-count indictment ensued.

¶ 4. At trial, both Abby and Betty testified. Abby, the older sister, testified that Friday moved in with the family after he and her mother had been dating several months. Abby testified that Friday “messed with” her younger sister,- Betty. Once Abby had sneaked into Karen and Friday’s bedroom to “pop out and scare” him. She hid behind the bed with the lights off. Abby then saw Betty go into the bedroom with Friday and saw Betty’s clothes drop to the floor. Friday and Betty got into bed, and Abby heard the bed squeaking.

¶ 5. Eventually, Abby got “fed up with it” and “couldn’t take any more”; so, one morning before school she told her mother that Friday was “touching” her and Betty. Her mother looked “really sad and hurt.” Abby testified the abuse had been going on for perhaps a couple of years; the last time was a few days before she told her mother. Betty was not in the room when Abby told their mother. At school that day, Abby was noticeably upset; so the school counselor asked what was wrong. Abby told her of Friday’s sexual abuse, which triggered a DHS investigation and Detective Stark’s involvement.

¶ 6. Betty also testified at trial. She explained that her mother worked nights at a casino; so she and Abby were often alone with Friday. Betty testified that the night before Abby told their mother, Friday had instructed Betty to take off her clothes and lie on the bed. As Betty put it, Friday touched her in places that would normally be covered with a bikini. He then put “his front” “in [her] front.” Betty stated she was thirteen at the time, and she felt “really bad” and guilty after it happened.

¶ 7. Betty relayed to the jury another incident where “just about the same thing that happened in the bedroom” happened on the couch when she and Friday were watching television. Friday had put Betty’s hand on his “private part.” Friday had also kissed Betty, put his private part in her mouth, and put his mouth on her private area.

¶ 8. Abby admitted to recanting her allegations to several people, including her mother, Detective Stark, and the DHS social worker. However, she explained that she recanted because her mother was so upset. Abby told her mother that she heard voices in her head that told her to accuse Friday of sexual abuse. As a result, Abby was admitted to an inpatient behavioral health center for treatment. On redirect, however, Abby explained that she did not really hear these voices. Abby also claimed that Friday had touched her private areas.

¶ 9. Betty also admitted to recanting her allegations because her mother was hurt by the accusations. However, she also explained that her testimony about Friday’s sexual abuse was true, as were her initial reports to law enforcement, DHS, and the rape crisis center.

¶ 10. Karen, the girls’ mother, testified that Abby told her one morning that Friday had been “touching her and her sister while [she] was at work.” Initially, she did not believe her children. When Karen confronted Friday, he stated that her daughter must have “ejaculated him and inserted herself with his semen.”

¶ 11. Friday testified in his own defense. He denied ever touching Betty or Abby inappropriately. He did not know what happened, but admitted the State “possibly could” have his DNA because he has always slept naked, and has nocturnal emissions; so “it was available.”

ANALYSIS

1. Independent DNA Examination

¶ 12. Friday argues that the trial court deprived him of a fair trial by refusing to grant funding to obtain his own DNA examination and/or expert, who he claims would provide independent verification of the validity of the Mississippi Crime Laboratory’s DNA test results.

¶ 13. “Whether an indigent defendant must be provided expert funding is decided on a case-by-case basis,” and reviewed for an abuse of discretion. Barksdale v. State, 176 So.3d 108, 112 (¶ 18) (Miss. Ct. App. 2015) (citing Lowe v. State, 127 So.3d 178, 183 (¶ 20) (Miss. 2013)). The State “must take steps to assure that the [indigent] defendant has a fair opportunity to present his defense[, and a] trial court must provide expert assistance to an indigent defendant when denial of such assistance would render the trial fundamentally unfair. This does not mean that an expert must be supplied any time an indigent defendant requests one.” Id. (internal citations and quotation marks omitted). “[A] defendant must demonstrate a substantial need in order to justify the trial court expending public funds for an expert to assist the defense.” Lowe, 127 So.3d at 181 (¶ 14) (quoting Richardson v. State, 767 So.2d 195, 198 (¶ 10) (Miss. 2000)). Factors a reviewing court should consider when determining whether a defendant was denied a fair trial as a result of the trial court’s denial of funds for an expert include: “whether and to what degree the defendant had access to the State’s experts, whether the defendant had the opportunity to cross-examine those experts, and lack of prejudice or incompetence of the State’s experts.” Townsend v. State, 847 So.2d 825, 829 (¶ 13) (Miss. 2003) (citing Fisher v. City of Eupora, 587 So.2d 878, 883 (Miss. 1991)).

¶ 14. In a pretrial motion, the defense requested funds for independent testing of the DNA evidence, stating evidence remained that could still be tested and “verification of this DNA evidence [was] essential for the Defendant to prepare his defense and to discover potentially exculpatory evidence.” At the motions hearing, the only reason given for Friday’s request was his, insistence he was innocent. The State responded that it had no argument for or against it, explaining that testimony from both victims would be elicited at trial, as well as the DNA evidence, which was “the strongest, most damning piece of evidence against this defendant.” The trial judge denied the motion over a week later, after researching the issue.'

¶ 15. In an analogous case, Ellis v. State, 989 So.2d 958, 964 (¶ 15) (Miss. Ct. App. 2008), the trial court granted the defendant’s motion to conduct an independent DNA test for his trial for sexual battery and statutory rape, but denied his request for funds to hire an independent DNA expert. We affirmed, finding the court did not abuse its discretion in denying the request for funds, since the defendant could not prove that funding his own expert “would have significantly aided his defense.” Id. at 965 (¶¶ 19-20). Likewise, Friday has failed to present any specific reason given why this request would have significantly aided his defense.

¶ 16. Applying the factors above, at trial the defense attorney had the opportunity to cross-examine Leslia Davis of the Mississippi Crime Laboratory, who was the State’s DNA expert. None of her testimony called into question the accuracy of the DNA test results, practices, or procedures. Friday’s counsel did not complain of her incompetence or prejudice, and there were no accusations of any problem with the crime laboratory’s testing or any other reason to question its validity. Finally, while the DNA evidence against Friday was certainly “damning,” there was other strong evidence of guilt as well, such as Betty’s forensic interview, which was seen by the jury, and the trial testimony of Betty, Abby, Karen, Detective Stark, two school counselors, and the rape-crisis-center nurse. Accordingly, we cannot say that the trial court abused its discretion.

2. Tender-Years-Hearsay-Exception Hearing

¶ 17. Friday argues, that the trial court erred in failing to conduct a tender-years hearing under Mississippi Rule of Evidence 803(25), thereby allowing inadmissible hearsay testimony from Karen and Brittaney Baskin, the forensic interviewer, to be heard by the jury about Abby’s and Betty’s statements of the sexual abuse.

¶ 18. The standard of review for the admission of hearsay evidence is abuse of discretion. White v. State, 48 So.3d 454, 456 (¶ 9) (Miss. 2010). Rule 803(25), known as the tender-years hearsay exception, states:

A statement by a child of tender years describing any act of sexual contact with or by another is admissible if: (A) the court—after a hearing outside the jury’s presence—determines that the statement’s time, content, and circumstances provide substantial indicia of reliability; and (B) the child either: (i) testifies; or (ii) is unavailable as a witness, and other evidence corroborates the act.

To determine whether a young declarant’s out-of-court statement is admissible under the tender-years exception, “the court must determine (1) that the declarant is a child of tender years and (2) that the time, content, and circumstances of the statement provide substantial indicia of reliability.” Veasley v. State, 735 So.2d 432, 436 (¶ 14) (Miss. 1999). “[Tjhei-e is a rebuttable presumption that a child under the age of twelve is of tender years.” Id. at (¶ 16). However, when the child declarant is twelve years old or older, the presumption does not apply, and “the trial court must make a case-by-ease determination as to whether the [declarant] is of tender years ... on the record and based on a factual finding as to the [declarant’s] mental and emotional age.” Id. at 437 (¶ 16). “The child’s age at the time of the statement, rather than her age at trial, is the relevant age used to determine if the tender Hyears exception applies.” Klauk v. State, 940 So.2d 954, 956 (¶ 6) (Miss. Ct. App. 2006) (citation omitted).

¶ 19. Friday filed a pretrial motion in limine to exclude possible hearsay testimony of certain witnesses or, alternatively, for a tender-years hearing, if the State sought to admit such testimony. Yet Bas-kin was not included in this list of witnesses. At the pretrial motions hearing, the trial judge stated that he would reserve ruling until when the witness was called, the testimony was elicited, and a contemporaneous objection was made. However, during the testimony of Karen and Baskin, the defense did not make any objection regarding any possible hearsay testimony, nor did the defense request a tender-years hearing outside of the jury’s presence.

¶ 20. At the time of the statements and interviews at issue, Abby was fourteen years old and Betty was twelve years old; so the tender-years presumption would not apply, and the trial court should have made a finding on the record as to whether the child was of tender years, but did not. We find this failure error, but harmless.

¶ 21. As the State points out, Nunnery v. State, 126 So.3d 105 (Miss. Ct. App, 2013), is instructive here. In Nunnery, this Court found error when the trial court did not conduct a tender-years hearing, even though the defense failed to raise the issue at the pretrial motions hearing and failed to object during the pertinent testimony. Id. at 109 (¶ 12). However, while it was error for the trial court not to determine if the victim of sexual abuse was of tender years and if the tender-years exception applied, the error did not warrant reversal. Id. at (¶ 13). The error was deemed harmless because “the weight of the evidence against [the defendant was] sufficient to outweigh the harm done by allowing admission of the evidence.” Id. (quoting Klauk, 940 So.2d at 957 (¶ 7)).

¶ 22. Here, the harmless-error standard applies as well. At trial, Betty testified to her sexual abuse in detail—both fondling and sexual battery. Further, Abby testified that she saw Friday and Betty in his bedroom—Betty’s clothes fell to the ground, and Abby heard the bed squeaking. Moreover, there was no objection to the admission of Betty’s forensic interview, and most damning, there was DNA evidence of Friday’s sperm in Betty’s vagina. The weight of the evidence of guilt outweighed any harm done by allowing admission of hearsay statements by Karen and Baskin. Accordingly, the admission of the statements without a tender-years hearing is harmless error.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF COUNT III, SEXUAL BATTERY, AND SENTENCE OF TWENTY YEARS, WITH FIVE YEARS SUSPENDED; COUNTS IV AND V, FONDLING, AND SENTENCE OF TEN YEARS FOR EACH COUNT, TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT III; COUNT VI, SEXUAL BATTERY, AND SENTENCE OF TWENTY YEARS, WITH FIVE YEARS SUSPENDED, TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT III; AND COUNT VII, SEXUAL BATTERY, AND SENTENCE OF TWENTY YEARS, WITH FIVE YEARS SUSPENDED, TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT III, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FOLLOWED BY FIVE YEARS OF REPORTING POST-RELEASE SUPERVISION AND FIVE YEARS OF NONREPORTING POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR,WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The names of the victim and the victim’s family have been changed to protect her identity.

      . Counts I and II were charges for the fondling of Abby. Ultimately, the jury acquitted Friday of Count I, and Count II was dismissed for insufficient evidence.

      . The sexual-assault kit performed on Betty found seminal fluid in her vaginal swab. The Mississippi Crime Laboratory concluded that the genetic profile taken from Friday’s cheek swab could not be excluded from the DNA profile taken from the sexual-assault kit—the probability of it not matching being one in greater than ten billion.


author: GRIFFIS, P.J.,

text:
    Charles E. STASHER and Sarah Eula Stasher, Appellants v. Patricia Ann PERRY, Executrix of the Estate of Randy Archie Springer, Deceased, Appellee
    NO. 2015-CA-01603-COA
    Court of Appeals of Mississippi.
    02/14/2017

      MADISON COUNTY CHANCERY COURT, CYNTHIA L. BREWER, J.
    SANDRA STASHER, ATTORNEY FOR APPELLANTS
    JAMES M. CREWS III, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J, BARNES AND CARLTON, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. The Chancery Court of Madison County granted Randy Archie Springer’s complaint for adverse possession and to confirm and quiet title and denied Charles E. Stasher and Sarah Eula Stasher’s counterclaim to remove cloud on title and to quiet and confirm title by adverse possession. The Stashers now appeal. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On April 28, 1983, Fulton Cannon executed a warranty deed to Charles and Sarah Stasher, which conveyed certain real property located in Madison County, Mississippi. The Stashers used proceeds from a Farmers Home Administration loan to purchase the property. Because the Stash-ers intended to run cattle on the property, they were required to fence in the property as a condition of the loan. The Stashers did not obtain a boundary survey. Instead, the Stashers met with Cannon, who pointed out the line where the Stashers should place the fence. The fence was built shortly after the Stashers purchased the property.

¶ 3. From 1983 to 1992, Cannon and the Stashers were neighbors. In 1992, following the death of Cannon, Cannon’s wife, along with others, conveyed their interest in the Cannon property to John Wilson. Following Wilson’s death, the property was devised to Ben Wilson, Stephen Wilson, and Gregory Wilson by Last Will and Testament dated December 10,1992.

¶ 4. On February 22, 2005, Stephen Wilson executed a warranty deed, which conveyed to Randy Archie Springer an undivided 83.34% interest in the property. On October 26, 2006, Rosa Lee Milton executed a warranty deed, which conveyed to Springer the remaining 16.66% undivided interest in the property.

¶ 5. The Springer property adjoins and is immediately east of the Stasher property. The fence built by the Stashers in 1983 was actually constructed east of and parallel to the true west line of the Stasher property. As a result, the fence is located on property formerly owned by Cannon but, through the previously described conveyances, is now owned by Springer.

¶ 6. The land in dispute is located on the west side of the Springer property, immediately east of the east line of the Stasher property. This disputed property is approximately 3,332 feet long and 30 feet wide, and comprises approximately 2.29 acres. It is undisputed that Springer is the legal owner of and has record title to the disputed property.

¶ 7. On August 1, 2007, Springer filed a Complaint for Adverse Possession and to Confirm and Quiet Title. On September 4, 2007, the Stashers filed an Answer and Counterclaim to Remove Cloud on Title and to Quiet and Confirm Title by Adverse Possession. On March 17, 2015, a bench trial was held before the Chancery Court of Madison County, during which all parties appeared and were represented by counsel.

¶ 8. On July 15, 2015, the chancery court entered its opinion and final judgment wherein it granted Springer’s complaint, denied the Stashers’ counterclaim, found Springer to be the exclusive owner of the disputed property, and confirmed and quieted title in Springer. The Stashers filed a motion for reconsideration, amendment of findings of fact and conclusions of law, and entry of a new final judgment, which the chancery court denied.

¶ 9. The Stashers now appeal and argue: (1) the chancery court erred in finding Cannon gave the Stashers permission to construct a fence and, as a result, the Stashers cannot claim adverse possession for the time period that Cannon owned the property, (2) the chancery court erred in finding that, by 2003, the fence was no longer in good repair, sufficient to put John Wilson and his predecessor in title, Stephen Wilson, on notice of the Stashers’ claim of ownership, and (3) the chancery court erred in finding Springer held himself out as the owner of the property in such a way that Springer’s and his predecessors’ claims were sufficient to establish open, notorious, visible, exclusive, continuous, and uninterrupted possession of the land for the statutory ten-year period.

STANDARD OF REVIEW

¶ 10. “[O]ur appellate review of the chancellor’s decision is limited.” Apperson v. White, 950 So.2d 1113, 1116 (¶ 4) (Miss. Ct. App. 2007). We “will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id.

ANALYSIS

¶ 11. Adverse possession requires the claimant to prove that his possession or occupancy was: (1) under claim of ownership, (2) actual and hostile, (3) open, notorious, and visible, (4) continuous and uninterrupted for a period of ten years, (5) exclusive, and (6) peaceful. Rice v. Pritch-ard, 611 So.2d 869, 871 (Miss. 1992). To succeed on a claim of adverse possession, the claimant must prove each of the elements by clear and convincing evidence. Id.

I. Whether the chancery court erred in finding Cannon gave the Stashers peivnission to construct the fence and, as a result, the Stashers cannot claim adverse possession for the time period that Cannon owned the property.

¶ 12. The first issue we must address is whether the Stashers established adverse possession of the disputed property during the years of Cannon’s ownership, 1983-1992. The existence of a fence “is one of the strongest indications of adverse possession.” Roy v. Kayser, 501 So.2d 1110, 1112 (Miss. 1987). However, “the mere existence of a fence near the actual boundary line does not establish that the fence is the accepted boundary between the parties.” Ellison v. Meek, 820 So.2d 730, 735 (¶ 16) (Miss. 2002). “The adverse possessor must hold the property without the permission of the true title owner since ‘permission defeats adverse possession.’ ” Apperson, 950 So.2d at 1118 (¶ 12) (citing Gillespie v. Kelly, 809 So.2d 702, 706-07 (¶ 14) (Miss. Ct. App. 2001)).

¶ 13. At trial, Charles Stasher admitted the fence was constructed in its location with Cannon’s permission. Specifically, Charles testified as follows:

Q. And as a part of your financing for that property, you were supposed to put a fence along that line; isn’t that right?
A. That’s right. Yes, sir.
Q. Okay. And you put that fence in with Mr. Cannon’s permission and at his direction?
A. Yes, sir. He was right there with us.
Q. Okay. You didn’t take it on yourself to figure out where it was?
A. No, sir.
Q. He allowed you to put it there?
A. Yes, sir.
Q. And it was all done with his consent.
A. Yes, sir.

Charles acknowledged that Cannon continued to reside on what later became the Springer property, and that Cannon continued to own what Springer ultimately purchased.

¶ 14. Moreover, Charles admitted he did not intend and was not trying to take any more land from Cannon than what was described in the deed. Charles testified that Cannon was to retain whatever property he had left following the transaction. Charles acknowledged that the property Cannon retained was later sold to Springer.

¶ 15. Charles’s wife, Sarah, also testified at trial but denied the fence was built with permission. However, Sarah acknowledged that Cannon selected the location of the fence and that Cannon continued to own the land that Springer later purchased. Additionally, James White, a friend of the Stashers and the person who built the fence, testified that he “put the fence exactly where [Cannon] told us to put the fence.”

¶ 16. The chancellor found the Stashers “had permission to build the fence on the disputed property, and thus cannot claim adverse possession for the time period that Fulton Cannon owned Mr. Springer’s property.” We find the chancellor’s findings are supported by the record.

¶ 17. The Stashers assert that even if Cannon gave them permission to build the fence, there is no evidence that Cannon gave them permission to use the disputed property. .However, the record reflects the Stashers occupied and held the disputed property by permission of Cannon.

¶ 18. Because the Stashers failed to show their possession or occupancy of the disputed property was adverse or hostile, the chancellor did not err in finding that the Stashers cannot claim adverse possession from 1983-1992.

II. Whether the chancery court erred in finding that, by 2003, the fence was no longer in good repair, sufficient to put John Wilson and his successors on notice of the Stash-ers’ claim of ownership.

¶ 19, The next issue for our consideration is whether the Stashers established adverse possession of the disputed property during the years of the Wilsons’ ownership, 1992-2005. “If a fence encloses the property for ten years, under a claim of adverse possession, title vests in the claimant and possessor, even though the fence was subsequently removed or fell into disrepair.” Roy, 501 So.2d at 1112. Regardless of whether the fence remains standing at the time of filing suit, the court must determine “whether the inclosure, like other acts of possession, is sufficient to fly the flag over the land and put the true owner upon notice that his land is held under an adverse claim of ownership.” Snowden & McSweewy Co. v. Hanley, 195 Miss. 682, 687, 16 So.2d 24, 25 (1943).

¶20. Sarah testified the fence “wasn’t perfect.” Sarah further testified regarding the condition of the fence:

Q. There were places where trees had fallen across it—
A. Probably was.
Q. [A]nd wire was down.
A. Uh-huh.
Q. Right?
A. Still now when the wind blows, trees blow down.
Q, Okay. Obviously, if you don’t go back and move the fallen trees and replace the wire, it just stays down.
A. Uh-huh.
Q. And it’s no good—
A. Yes, sir.
Q. And it’s no good to hold cows in or keep them out, is it?
A. No. At that time it wasn’t no cows in it.

¶ 21. Sarah specifically acknowledged that by the time the fence was no longer good to hold cows in or keep them out, there were no longer cows on the property. Sarah previously testified that the Stashers ran cows on the property until 1998. Additionally, Sarah testified that before 2002, Charles “got down in his hip” and they decided “to just let the timber grow [s]o ... the fence wouldn’t just have to be perfect.”

¶ 22. The chancellor found that, by 2003, the fence was no longer in good repair sufficient to put the Wilsons on notice of the Stashers’ claim of ownership. The testimony supports the chancellor’s findings.

¶23. The Stashers claim that in addition to the construction of the fence, they exerted other acts of possession over the disputed property. Specifically, the Stashers assert they ran cattle, planted grass, hunted, and cut timber on the property. However, we find these acts do not amount to adverse possession.

¶24. Although the testimony indicates the Stashers ran cows and planted grass on the property until 1998, neither act was continuous and uninterrupted for a period of ten years. Additionally, Charles acknowledged the cows did not graze all the way to the fence due to “pine straw and stuff.” As a result, any claim for adverse possession based on the running of cows or the planting of grass is insufficient.

¶25. Although there is evidence the Stashers cut timber on the property, there is no indication how often this occurred. As the chancellor properly noted, “sporadic or occasional pasturing of cows and cutting of timber is insufficient to support a claim of adverse possession.” Apperson, 950 So.2d at 1116 (¶ 6).

III. Whether the chancery court erred in finding Springer held himself out as the owner of the property in such a way that Springer’s and his predecessors’ claims were sufficient to establish open, notorious, visible, exclusive, continuous, and uninterrupted possession of the land for the statutory ten-year period.

¶ 26. The last issue for our determination is whether the activities of Springer and his predecessors established Springer’s claim of ownership by adverse possession. Importantly, at trial, the parties stipulated that their respective de-raignments of title had been admitted in the pleadings. There has ■ been no issue raised that the legal descriptions of the Springer and Stasher tracts overlap. Thus, as the chancellor properly noted, the parties are the record owners of the lands described in their respective title deeds. Additionally, the Stashers admitted in their counterclaim that Springer is vested with record title to the disputed property. It is arguably unnecessary that Springer prove adverse possession of property to which he holds legal title. Nevertheless,, we find the chancellor properly determined that Springer met his burden of proof.

¶ 27. The Stashers argue ,“[t]he only act of possession on the disputed property by Springer’s predecessors in title was that of paying taxes on the disputed property.” It is undisputed that the Wilsons paid taxes on the disputed property from 1992 to 2005. While the payment of property taxes does not conclusively establish ownership, it is an important factor to consider. See Apperson, 950 So.2d at 1116 (¶ 6) (finding “the payment of property taxes is but one factor for the chancellor to consider, and is not conclusive of ownership”); Geoghegan v. Krauss, 228 Miss. 231, 242, 87 So.2d 461, 465 (1956) (finding the payment of taxes is a “very weighty fact” in support of title).

¶ 28. However, the payment of property taxes was not the only act of possession exerted by the Wilsons. Ben Wilson testified that shortly after his father purchased the property in 1992, he visited the property with a survey crew for the purpose of locating the property corners, including the northwest and southwest corners, which correspond to the northwest and southwest corners of the disputed property. After locating the comers, Ben marked each corner with a six and one-half foot, yellow-painted metal “T-post.” Both posts were visible in 1992, and the northwest-corner post remained visible in 2005. Ben testified he marked the corners of the property to identify the boundary line. Ben further testified that Charles was present when he installed the T-posts.

¶ 29. Following his purchase of the property in 2005, Springer paid the property taxes. Additionally, Springer posted the property, cut firewood, conducted wildlife management, and planted food plots for deer.

¶ 30. We find the chancellor did not err in finding Springer’s and his predecessors’ actions were sufficient to establish adverse possession.

CONCLUSION

¶ 31. “In a bench trial, the chancellor is the finder of fact and, thus, solely determines the credibility of witnesses and the weight to give to the evidence.” Segrest v. Starnes, 143 So.3d 628, 633 (¶ 24) (Miss. Ct. App. 2014). We “cannot reweigh the evidence and must defer to the chancellor’s findings of the facts, so long as they are supported by substantial evidence.” Hall v. Hall, 134 So.3d 822, 828 (¶ 21) (Miss. Ct. App. 2014).

¶ 32. We find the chancellor’s findings are supported by substantial evidence. We do not find the chancellor abused her discretion, or was manifestly wrong or clearly erroneous. Thus, we affirm.

¶ 33. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., NOT PARTICIPATING.

      . Randy Archer Springer died September 25, 2015. By order entered July 6, 2016, Patricia Ann Perry, executrix of the estate of Randy Archie Springer, was substituted as the Appel-lee in this matter.

      . Although it is unclear from the testimony how many years the Stashers planted grass, Charles testified he planted grass every winter in the pastures and that the cows wanted grass. Thus, it appears the Stashers planted grass for the cows, which ran on the property until 1998. Moreover, in their reply brief, the Stashers admit they "ran cattle and planted grass on the property from 1983 until 1998.”


author: CARLTON, J.,

text:
    Timothy MEADOWS, Appellant v. STATE of Mississippi, Appellee Alex Crews, Appellant v. State of Mississippi, Appellee
    NO. 2015-KA-01432-COA, NO. 2015-KA-01525-COA
    Court of Appeals of Mississippi.
    02/14/2017

      JONES COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, WAY-MAN DAL WILLIAMSON, J.
    OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLE-BEN, ATTORNEY FOR APPELLEE
    OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AI-KENS, ATTORNEY FOR APPELLANT
   CARLTON, J.,

FOR THE COURT:

¶ 1. A Jones County grand jury indicted Timothy Meadows and Alex Crews for manslaughter, in violation of Mississippi Code Annotated section 97-3-35 (Rev. 2014). After a joint trial of both defendants, the jury rendered guilty verdicts for Crews and Meadows. The Jones County Circuit Court sentenced Meadows and Crews each to a term of twenty years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years to serve, five years suspended, and five years on post-release supervision. Both Crews and Meadows were further ordered to pay $9,565.50, which included court costs, fines, and restitution.

¶2. Crews and Meadows each filed a separate motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The trial court denied their posttrial motions. Crews and Meadows each timely filed an appeal. Appellate counsel for both Meadows and Crews subsequently requested that then-appeals be consolidated because all of the appealable issues can be adequately addressed in one appeal.

¶ 3. On appeal, Crews and Meadows argue that circuit court lacked jurisdiction over their case because the youth court possessed original jurisdiction over this proceeding, and the youth court never transferred jurisdiction to the circuit court, The State concedes that the circuit court herein lacked jurisdiction due to the State’s failure to follow the statutory procedure for transferring cases from youth court. Finding that the circuit court indeed lacked jurisdiction over the matter, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 4. On August 27, 2014, Cynthia Craney and Timothy Williamson, along with Crar ne/s son, Alex Crews, and Crews’s best friend, Timothy Meadows, went to the Leaf River to ride four-wheelers. That evening, as they were leaving, Williamson became angry with Craney and Crews over whether to leave a broken four-wheeler behind. A physical altercation arose between Williamson, Crews, and Meadows. Craney called 911, and Crews and Meadows ultimately restrained Williamson in a headlock/chokehold until help arrived. Williamson was dead when officers arrived on the scene.

¶ 5. A recording of Craney’s 911 call was admitted into evidence, wherein the jury heard Craney saying hysterically, “I need someone down here at this river. My boyfriend, he’s hitting on my kids. He’s beating the hell out of them.... [0]h ■ God, please.... He’s got my son on the ground. ” When the 911 operator asked the assailant’s name, Craney answered: “[H]is name is Timothy Williamson. He’s on probation ... for aggravated assault.... He’s drinking and his hands are lethal.... He just went ... irate .... [Tjhey’re right here on the ground right now trying to detain him. He’s a big man ... and his hands are lethal.” The 911 operator informed Craney to start looking for the police officers arriving on the scene. Cra-ney informed the operator, “My baby’s seventeen years old, and his friend’s trying to help him hold him down; he’s going crazy.”

¶ 6. Jones County Sheriffs Deputies Sonny Jefcoat and David Ward were dispatched to Old River Road in Jones County on the night of August 27, 2014, in response to a 911 call from Craney. Deputy Jefcoat arrived on the scene first. Deputy Jefcoat testified that Craney told him that “Williamson had assaulted her boys and they were holding him down,” and that Williamson “jumped on my boys” and “attacked” them. Craney entered Deputy Jef-coat’s patrol car and led him to the site of the fight. The video from Deputy Jefcoat’s patrol car dash camera, which was entered into evidence at trial, revealed Craney informing Deputy Jefcoat, “Sir, he’s a lot further down there, my kids have him kind of contained. He’s been drinking. He’s not supposed to be drinking. He tried to jump on my son.... I have no idea why he freaking went off like the way he did.” Deputy Jefcoat testified that when he approached the scene, he saw Crane/s truck in the road facing him with its lights on, and he saw Williamson, Crews, and Meadows on the ground beside the truck. Deputy Jefcoat then checked Williamson for a pulse but found none, so he proceeded to perform chest compressions until Deputy Ward arrived and relieved him.

¶ 7. Deputy Ward arrived on the scene next, and placed Meadows in his patrol car and Crews in Deputy Jefcoat’s patrol car. The jury observed the video taken from the camera in Deputy Jefcoat’s patrol car which showed Crews crying and screaming, “I’m sorry. I’m sorry ... Mama. Mama. I just killed Tim. I just did. He couldn’t breathe and I kept on. He punched me in the face five ... times .... Tim, wake up. I’m sorry, man. I’m sorry.” Deputy Ward’s patrol car was also equipped with a dash camera. The video from the patrol car was admitted into evidence, and showed Deputy Ward arrive on the scene and ask Craney what happened. Craney informed him that Williamson “got in a fight with my kids.” Crews also informed Deputy Ward that Williamson “punched me in the mouth, and me and [Meadows] just put him to sleep. He won’t wake up.” Deputy Ward testified that Cra-ney also told him that she and Williamson got into a fight, and that she told him more than once that Williamson “just went nuts” and went “crazy.” Deputy Ward recalled Craney also telling him that Williamson started the fight and that Williamson had taken a Xanax earlier in the day.

¶ 8. Forensic pathologist Lisa Funte performed Williamson’s autopsy. She testified that Williamson was six feet two inches tall, and weighed 254 pounds. Funte stated that Williamson suffered bruising/contusions and lacerations on his face, lip, upper extremities, and torso. Funte also noticed bruising to his scalp, and hemorrhages to the muscles in the neck/ throat, eyes, and chest muscles. Funte testified that the hemorrhages in the neck/ throat and eye were consistent with asphyxiation, and that hemorrhaging to the chest can be caused by CPR. Funte also testified that Williamson’s blood-alcohol content was .065, and that caffeine and cotinine, a breakdown product of tobacco, were present in Williamson’s blood. Williamson’s toxicology report did not indicate the presence of Xanax, but Funte admitted that she could not definitively say that he did not take Xanax within a couple hours of his death, Funte testified that cause of death was “asphyxiation associated with strangulation” and that the manner of death was homicide.

¶ 9. In the morning/early afternoon after the incident, Deputy Keith Leroy took recorded statements from Craney, Meadows, and Crews. Deputy Leroy testified that he did not take statements the night before because everyone appeared heavily intoxicated. The record reflects that Deputy Leroy obtained signed Miranda waivers from Crews and Meadows before taking their statements.

¶ 10. At trial, Craney, Crews, and Meadows testified that at about 2 p.m. on August 27, 2014, they went with Williamson to the Leaf River sandbar to ride four-wheelers with Larry Walters, his wife, and another couple. After discovering that one of the four-wheelers stopped working, Cra-ney testified that Williamson “was mad. He was furious. He didn’t want to leave the four-wheeler there because he had promised Larry that he would take it back. He was raising cane and cussing, [Crews] heard everything, or I assume he did, when he walked up.” Crews testified that he tried to calm down Williamson and Cra-ney, but Williamson “took it the wrong way when I was trying to calm him down .... [H]e took it the wrong way and he just flipped on us.” Crews and Craney both testified that Williamson then punched Crews in the mouth. Crews and Craney also both stated that Williamson “passed a couple licks,” and grabbed Crews by the throat and choked him against the truck on the passenger’s side. Crews and Craney testified that Meadows, who had been asleep in the truck when the fight started, then got out of the truck and helped get Williamson off of Crews. Williamson tried to get up and “went for the truck” on the driver’s side, and Craney told the boys to get the keys out of the truck.

¶ 11. Meadows testified that he woke up to a “bump” on the truck, and he saw Williamson choking Crews by the back passenger side. Meadows exited the truck and “jumped in between them and broke them up.” Because he was asleep when the fight started, Meadows admitted that he did not know what the fight started over. Meadows testified that Williamson hit him, and “I don’t know if he hit [Craney], but she fell to the ground.”

¶ 12. After Craney told Crews and Meadows to get the keys out of the truck, Meadows testified that Williamson attacked him as he tried to get the keys. Meadows testified that Williamson got in the driver’s seat, and Meadows reached for the keys while standing outside the driver’s side. Williamson then attacked Meadows by biting and hitting him. Crews and Meadows both testified that Williamson and Meadows began fighting for the keys, and Crews pulled Williamson from the passenger’s side as Meadows pushed from the driver’s side. Both Crews and Meadows stated that Williamson “was still fighting” and “swinging,” so Meadows put Williamson in a headlock as they both fell out of the passenger’s seat. Meadows then hit Williamson and Crews kneed him. Crews testified that he put Williamson in a headlock on the ground. Crews and Meadows stated that Williamson kept trying to get up, so Meadows held Williamson’s arm to help Crews hold him down. Crews testified that he and Meadows were holding Williamson down until help arrived, and they were still lying in that spot when police arrived.

¶ 13. Regarding the physical altercation with' Williamson, Crews testified that he was scared and defending himself. He explained that he felt “[tjerrified. Afraid for my mother and my friend .., because I knew what [Williamson] was capable of.” Crews testified that Williamson started the fight, and he felt the need to defend himself. Meadows also testified, “I was scared. He was scared. [The mjain thing [was that] we [were] just defending ourselves making sure we [weren’t] getting hurt.” Meadows testified that he would not do anything differently because he “knew [he] was defending [him]self.”

¶ 14. The record reflects that the jury-received instructions on heat-of-passion manslaughter and self-defense. The circuit court denied Meadows’s and Crews’s requested instruction on the alternative theory of accident and misfortune, for the stated reason that “I think the claim has been self-defense from the start of the trial. D-4 will be refused.” The jury ultimately returned a verdict finding Crews and Meadows guilty of heat-of passion manslaughter. After the denial of their posttrial motions, Crews and Meadows now appeal.

DISCUSSION

I. Jurisdiction

¶ 15. Crews and Meadows argue that circuit court lacked jurisdiction over their case because the youth court possessed original jurisdiction over this proceeding. Crews and Meadows submit that since the proceeding was never transferred to the circuit court by the youth court, Meadows’s and Crews’s convictions and sentences are illegal and void. See Miss. Code Ann. § 99-19-3(1) (Rev. 2015) (“A person charged with an offense shall not be punished therefor unless legally convicted thereof in a court having jurisdiction of the cause and of the person.”). Accordingly, Crews and Meadows argue that they are entitled to have this Court vacate their convictions and sentences and remand this case with instructions to transfer the case to the Jones County Youth Court for further proceedings. As stated, the State concedes that the circuit court herein lacked jurisdiction due to the State’s failure to follow the statutory procedure for transferring cases from youth court.

¶ 16. The Mississippi Supreme Court has expressed that “[¡jurisdiction is a question of law and is reviewed de novo.” In re M.I., 85 So.3d 856, 857 (¶ 6) (Miss. 2012).

¶ 17. The record reflects that Meadows was born November 13, 1996, and Crews was born on June 19, 1997. The alleged offense occurred August 27, 2014, and both defendants were seventeen years old at the time. Mississippi Code Annotated section 43-21-151 (Rev. 2015) provides, in relevant part:

(1) The youth court shall have exclusive original jurisdiction in all proceedings concerning a delinquent child, a child in need of supervision, a neglected child, an abused child or a dependent child except in the following circumstances:
(a) Any act attempted or committed by a child, which if committed by an adult would be punishable under state or federal law by life imprisonment or death, will be in the original jurisdiction of the circuit court;
(b) Any act attempted or committed by a child with the use of a deadly weapon, the carrying of which concealed is prohibited by [sjection 97-37-1, or a shotgun or a rifle, which would be a felony if committed by an adult, will be in the original jurisdiction of the circuit court[.J

¶ 18. The record reflects that Crews and Meadows were indicted for heat-of-passion manslaughter, a crime that does not carry a sentence of life imprisonment or death. Additionally, Meadows’s and Crews’s indicted offense did not involve a deadly weapon. As a result, Crews and Meadows submit, and the State agrees, that the exceptions to the youth court’s exclusive original jurisdiction are not met,

¶ 19. At the time of the indictment, Meadows was eighteen years of age; however, youth-court jurisdiction attaches at the time of the offense, not the time of the indictment. Section 43-21-151(2) sets forth:

Jurisdiction of the child in the cause shall attach at the time of the offense and shall continue thereafter for that offense until the child’s twentieth birthday, unless sooner terminated by order of the youth court. The youth court shall not have jurisdiction over offenses committed by a child on or after his eighteenth birthday.

As stated, the record reflects that both defendants were seventeen years old at the time of the offense.

¶ 20. Mississippi Code Annotated section 43-21-159(1) (Rev. 2015) provides:

"When a person appears before a court other than the youth court, and it is determined that the person is a child under jurisdiction of the youth court, such court shall, unless the jurisdiction of the offense has been transferred to such court as provided in this chapter, or unless the child has previously been the subject of a transfer from the youth court to the circuit court for trial as an adult and was convicted, immediately dismiss the proceeding without prejudice and forward all documents pertaining to the cause to the youth court[.J

We recognize that “[n]o child under the jurisdiction of the youth court shall be held criminally responsible or criminally prosecuted by any court for any act designated as a delinquent act, unless jurisdiction is transferred to another court under [sjection 43-21-157.” Miss. Code Ann. § 43-21-151(3).

¶ 21. Mississippi Code Annotated section 43-21-157 (Rev. 2015) sets forth the procedure for the transfer of jurisdiction from the youth court to another court:

(1) If a child who has reached his thirteenth birthday is charged by petition to be a delinquent child, the youth court, either on motion of the youth court prosecutor or on the youth court’s own motion, after a hearing as hereinafter provided, may, in its discretion, transfer jurisdiction of the alleged offense described in the petition or a lesser[-]included offense to the criminal court which would have trial jurisdiction of such offense if committed by an adult. The child shall be represented by counsel in transfer proceedings.
(2) A motion to transfer shall be filed on a day prior to the date set for the adjudicatory hearing but not more than ten (10) days after the filing of the petition. The youth court may order a transfer study at any time after the motion to transfer is filed. The transfer study and any other social record which the youth court will consider at the transfer hearing shall be made available to the child’s counsel prior to the hearing. Summons shall be served in the same manner as other summons under this chapter with a copy of the motion to transfer and the petition attached thereto.
(3) The transfer hearing shall be bifurcated. At the transfer hearing, the youth court shall first determine whether probable cause exists to believe that the child committed the alleged offense. For the purpose of the transfer hearing only, the child may, with the assistance of counsel, waive the determination of probable cause.
(4) Upon such a finding of probable cause, the youth court may transfer jurisdiction of the alleged offense and the youth if the youth court finds by clear and convincing evidence that there are no reasonable prospects of rehabilitation within the juvenile justice system.

¶ 22. Upon our review, we find that a youth-court transfer order or transcript from a hearing on the matter does not appear in the record before us. “[T]he statutory youth court transfer procedure is comprehensive and must be followed. The consequences of carving exceptions are far too grave.” Buck v. State, 838 So.2d 256, 261 (¶ 13) (Miss. 2003). The State concedes that the youth court herein failed to transfer the case to the circuit court as mandated by the statute, and requests that this Court remand the case to youth court for a determination as to whether the youth court would have transferred this case had it been properly brought before it. Alternatively, the State asks that the conviction be vacated and the case be remanded for further proceedings in the appropriate court.

¶ 23. After our review of the record and relevant caselaw, we find that the youth court possesses exclusive original jurisdiction over this proceeding. As a result, the circuit court lacked trial jurisdiction over this ease since there was not a transfer of jurisdiction to the circuit court from the youth court as required by section 43-21-151. We therefore reverse on the issue of jurisdiction, and we remand to the circuit court with instructions to vacate the convictions and sentences of Crews and Meadows and immediately dismiss the proceeding without prejudice and forward all documents pertaining to this cause to the Jones County Youth Court for further proceedings consistent with this opinion. See Buck, 838 So.2d at 260-61 (¶ 13). In so doing, we also deny the State’s request for alternative relief of a retroactive determination by the youth court as to-whether the youth court would have transferred this case to the circuit court had the case been properly brought before it. We find that the issue of jurisdiction is dispositive; hence, this Court will not address the remaining assignments of error raised herein.

¶ 24. THE JUDGMENTS OF THE JONES COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, ARE REVERSED, AND THESE CASES ARE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

LEE, C. J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR,. . WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . Crews and Meadows were represented by separate counsel at trial.

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

      . The record shows that the issue of the exclusive jurisdiction of the youth court herein was not raised at trial or in the posttrial motions.

      . The State recognizes that although this particular situation has not yet been addressed in Mississippi, the Court of Criminal Appeals of Oklahoma faced a similar situation in Gilley v. State, 848 P.2d 578 (Okla. Crim. App. 1992). There, a jury convicted Gilley of first-degree robbery. Id. at 579. At the time of the offense, Gilley was seventeen years old; however, because he was tried for robbery with a dangerous weapon, he was considered an adult under Oklahoma law. Id, On appeal, Gilley argued that "error occurred because he was not informed of his right to make application for reverse certification as a child to the juvenile system” as provided under Oklahoma law. Id. The Oklahoma Court of Criminal Appeals held that "[ajlthough we find that the appellant was not apprised of his right to apply for reverse certification procedure as was mandated by statute, this procedural error does not necessarily require reversal.” Id. at 580, Instead, the court analogized the situation in which a statutorily required postexa-mination competency hearing was erroneously not held. Id. Thus, the court remanded the case back to the district court "so that a hearing can be held allowing appellant the opportunity to present whatever evidence he had or now has to support his position that if such a hearing had been held in the first instance, he would have been certified as a child,” Id. See also State in re Schreuder, 649 P.2d 19, 25 (Utah 1982) (indicating that where the record in a postconviction criminal appeal establishes on its face that a juvenile court would certainly have transferred the case for adult prosecution, had it had the opportunity to properly consider the issue, an appellate court need not remand the matter for a reconstructed certification hearing, even where the certification process was erroneous).


author: WILSON, J.,

text:
    STATE of Mississippi, Appellant v. Boyce WILLARD, Appellee
    NO. 2016-CA-00284-COA
    Court of Appeals of Mississippi.
    02/14/2017
    HUMPHREYS COUNTY CIRCUIT COURT, JANNIE M. LEWIS, J.
    ATTORNEYS FOR APPELLANT: ANTHONY LOUIS SCHMIDT JR., OFFICE. OF THE ATTORNEY GENERAL, BY: DARRELL CLAYTON BAUGHN
    ATTORNEY FOR APPELLEE: BOYCE WILLARD (PRO SE)
   WILSON, J.,

FOR THE COURT:

■ ¶ 1. In 1984, Boyce Willard was convicted of murder and sentenced to life imprisonment. Since 1994, the Mississippi Parole Board has repeatedly denied him parole. In 2015, Willard filed a petition for post-conviction relief in the Humphreys County Circuit Court. Willard’s petition alleged that the Parole Board violated Mississippi Code Annotated section 47-7-18(6) (Rev. 2015) by imposing a five-year “setoff’ (i.e., delay) until his next parole hearing. Section 47-7-18(6), which went into effect on July 1, 2014, provides in part that “[a]ny inmate not released at the time of the inmate’s initial parole date shall have a parole hearing at least every year.” 2014 Miss. Laws ch. 457, § 44 (H.B. 585). ■

¶ 2. Willard’s filing was in substance a lawsuit against the Parole Board, not a claim for post-conviction relief. See Mangum v. Miss. Parole Bd., 76 So.3d 762, 766-67 (¶¶ 8-9) (Miss. Ct. App. 2011); Mack v. State, 943 So.2d 73, 75 (¶ 7) (Miss. Ct. App. 2006); McClurg v. State, 870 So.2d 681, 681-82 (¶¶ 2-6) (Miss. Ct. App. 2004). However, Willard never requested a summons or served the Parole Board or anyone else. Without requesting a response from the Parole Board or any other state entity, the circuit court granted. Willard’s petition and ordered the Parole Board to provide him with a hearing date that complied with section 47-7-18(6). The State filed a notice of appeal.

¶ 3. We pause here to note that around the same time that Willard initiated this action in Humphreys County, he filed a similar claim for declaratory and injunctive relief in the Sunflower County Circuit Court. On appeal in that case, we held that Willard was not eligible for parole under section 47-7-18 because that section does not apply to inmates convicted and sentenced prior to July 1, 2014. See Willard v. Miss. State Parole Bd., No. 2015-CP-01095-COA, 212 So.3d 80, 85-86, 2016 WL 6082528, at *4 (¶¶17-18) (Miss. Ct. App. Oct. 18, 2016) (motion for rehearing pending). A few weeks later, the Mississippi Supreme Court reached a similar conclusion in a case involving a related, albeit somewhat different, issue. See Fisher v. Drankus, 204 So.3d 1232, 1235-36 (¶¶ 10-14) (Miss. 2016).

¶ 4. However, we do not reach the merits of Willard’s claim in the present case. As the State has argued on appeal, this case should be dismissed because Willard failed to properly serve the Parole Board. See Mack, 943 So.2d at 75-76 (¶ 7); McClurg, 870 So.2d at 682 (¶ 6); accord Fluker v. State, 200 So.3d 1148, 1150 (¶ 4) (Miss. Ct. App. 2016). Accordingly, we reverse and render a judgment of dismissal without prejudice. M.R.C.P. 4(h).

¶ 5. THE JUDGMENT OP THE HUM-PHREYS COUNTY CIRCUIT COURT IS REVERSED AND RENDERED AS A DISMISSAL WITHOUT PREJUDICE. ALT. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.


author: FAIR, J.,

text:
    Cathy Doris L. GRANTHAM, Appellant v. OLD LIBERTY CEMETERY ASSOCIATION, Appellee
    NO. 2015-CA-01069-COA
    Court of Appeals of Mississippi.
    DISPOSITION: 02/21/2017

      CARROLL COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, EDWARD C. FENWICK, J.

      JAMES H. POWELL III, ATTORNEY FOR APPELLANT
    JONATHAN RYAN, TAYLOR ALAN D. LANCASTER, ATTORNEYS FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Cathy Grantham and the Old Liberty Cemetery Association (Association) sued each other over the title status of 1.55 acres constituting the Old Liberty Cemetery (Cemetery). The two cases were consolidated. After a three-day trial, the chancellor entered a detailed final judgment. Grantham appeals, arguing that: (1) the chancellor erroneously failed to award her a prescriptive easement over the road running adjacent to the southern boundary line of the Cemetery; and (2) the chancellor erroneously failed to find that the actions of Grantham’s sister, as an agent for the Association, rose to the level of malice necessary to support her counterclaim for slander of title. We find the decision to be within the chancellor’s discretion and therefore affirm.

FACTS

¶ 2. In the words of the chancellor:

What at first blush appears to be a bitter family dispute between two ... sisters has mushroomed into a community-wide dispute, because the land in issue is an old church cemetery that has been in existence for over 160 years. The land has little intrinsic value; however, it is sacred ground to the Lott family as well as to the many family and community members that have family and friends buried in the cemetery. The land on which the [Cjemetery is located was patented out of the government to Aaron Lott in 1840.

¶ 3. There were deeds and transfers of grave sites on a portion of Aaron Lott’s land over a period of more than 140 years. The Cemetery established itself by such use and by the erection of fences around it. In 1854 Aaron Lott and his wife, Martha, had deeded to the “Committee of Arrangements” of the Old Liberty Church two acres for the church building and the Cemetery near the building, both of which were in existence at that time. Ultimately, three sisters—Rita Deloach, Linda Douglas, and Cathy Grantham—and their father, Johnnie Lott, all descendants of Aaron Lott, became record title owners of that portion of Aaron Lott’s property surrounding the Cemetery. In October 1981, the daughters quitclaimed their interests to their father, excepting two acres, undescribed any further, for the Cemetery. In 1994 Johnnie conveyed his interest, subject to a life estate in himself, to his daughter, Cathy Grantham, “less and except 2 acres, more or less, comprising the [Cjemetery.”

¶4. Johnnie died in 2011. Two years later, Grantham filed an instrument claiming she controlled access to the Cemetery. On March 3, 2013, the Liberty Cemetery Committee (Committee), on behalf of Liberty Baptist Church, met to deal with the Cemetery and its surrounding area. Liberty Baptist Church had long since removed from the property around the Cemetery, there having been only two or three burials there in the preceding sixty to seventy years. The Committee voted to “quit deed” the Lott property, less and except the Cemetery, “to the Lott family.” On June 7, 2013, the Association was formally established and a charter and bylaws enacted, with its purpose enunciated as “permanent maintenance of the Liberty Baptist Church Cemetery.” The deed contemplated was executed and filed, with the church deacons conveying the Cemetery to named trustees and/or their successors to act on behalf of the Association, and a plat of the 1.55 acres constituting the Cemetery, which was prepared by Joe Sutherland, was attached. One of the sisters, Rita De-loach, participated in the process.

¶5. Grantham then began locking the gate to the Cemetery. When her attempts to deny access to the grounds failed (locks were cut off the gate seven times), her husband removed the culvert from the road ditch and pushed dirt and gravel in front of the gate.

¶ 6. In their suit, the Granthams alleged that the 1.55 acres claimed by the Association should actually only be the 1.25 acres of actual Cemetery grounds enclosed by a longstanding fence. Just a few months before the Association’s deed was filed, Grantham filed an “Instrument to Clarify Description and Location of the Lott Cemetery in Carroll County, Mississippi and Providing for Reasonable Access Thereto” to which a survey, performed by Sutherland, who had also performed a survey for the Association, was attached. The chancellor discussed both surveys in his opinion:

[Grantham’s , insistence that Sutherland’s survey] represents the correct description actually varies substantially from the existing fence lines and skews across the southeast corner of the [C]emetery so as to give her ownership of the gated entrance to the property as well a substantial portion of the [C]emetery. [Sutherland] acknowledged that this line was drawn by him at the request of the Granthams and did not reflect any boundaries or monuments he found on the ground. A second survey, also drawn by [Sutherland] was done at the request of the ... Association. This survey shows the [C]emetery completely enclosed by the old fence, but includes a strip of land on the eastern boundary lying’ outside the fence between the fence and the public road right-of-way. There was no dispute that Cathy Grant-ham owned record title to all of the contiguous land surrounding the [Cemetery.

¶ 7. The chancellor further stated that Grantham “claimed in the document the absolute, exclusive right to deny or grant access to the [C]emetery at her discretion,” also finding that the Cemetery gate was about five feet from the public right-of-way.

¶ 8. At the close of trial, the chancellor found that the Association’s predecessor in title (Liberty Baptist Church) met the statutory requirements for adverse possession of the contested property and granted the Association a prescriptive easement over the entrance to the Cemetery from the public road. The chancellor also confirmed that the strip of land between the fence and the public road lying east of Cemetery belonged to Grantham. Finally, he dismissed both parties’ claims for slander of title.

¶ 9. Grantham filed a motion for a new trial or, in the alternative, to alter or amend the judgment. She requested, for the first time, that she be granted a prescriptive easement and restated that the church, through her sister, slandered her title. After a hearing, Grantham’s motion was denied. She appeals.

STANDARD OF REVIEW

¶ 10. A chancellor’s factual findings will not be reversed unless they are manifestly wrong or clearly erroneous. However, a chancellor’s legal conclusions are reviewed de novo. Paw Paw Island Land Co. v. Issaquena & Warren Ctys. Land Co., 51 So.3d 916, 923 (¶ 26) (Miss. 2010).

DISCUSSION

1, Prescriptive Easement

¶ 11. Grantham first argues she was entitled to a prescriptive easement across the Association’s property. “The ev-identiary burden to establish a prescriptive easement is high.” King v. Gale, 166 So.3d 589, 593 (¶ 20) (Miss. Ct. App. 2015). Grantham had to show by clear and convincing evidence she used the Cemetery tract to get to her property. Id. See Thornhill v. Caroline Hunt Tr. Estate, 594 So.2d 1150, 1152 (Miss. 1992). Further, she had to prove her use was “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. (citations omitted). We note that she did not assert any claim for an “easement of necessity” because she has significant access to a public roadway, and makes claim for a “non-exclusive” prescriptive easement, even though exclusivity is a required element of a prescriptive easement.

¶ 12. The chancellor notes pointedly that Grantham denied any claim to the Cemetery land itself, only asserting the location of boundaries and easements to it and arguing that the Cemetery occupied 1.25 of the 1.55 acres the Association claimed. And there was no evidence presented that Johnnie, from whom she derived her title, ever claimed any ownership of the Cemetery. In her appellate brief, she restates that she “has decided not to appeal the determination ... that the fence lying south [of] the access road is the cemetery’s south boundary, but does appeal the denial of her ‘non-exclusive easement’ over the road to access her property.” Grantham had stated her father always fenced his property, and that the northern boundary of the property she inherited is also the southern boundary of the Cemetery. She also testified that he had a concrete pad poured to feed his cows and admitted that the concrete pad stopped just south of the fence in the very southeast corner of the fenced-in area of the disputed property. Occasionally, Johnnie let the cows out through the Cemetery gate. Prior to her father’s death, Grantham returned to the property once or twice a month and had little knowledge of what was going on while she was away.

¶ 13. A “prescriptive easement,” as noted above, is an easement obtained by adverse possession over another’s land. Like any other adverse possession claim, an owner’s permission to use the easement defeats a party’s claim. See Kendall v. May, 199 So.3d 697, 700 (¶ 8) (Miss. Ct. App. 2016). The general public (or at the very least the descendants of those buried in the Cemetery) had entered the Cemetery without interference and with implied permission of the church for more than a century—until Grantham locked it and removed the culvert. Anyone who had ancestors buried in the Cemetery had the right to enter onto “family cemetery” property and visit an ancestor’s grave as well as to be buried in the Cemetery. Grantham, a direct descendant of Aaron Lott, specifically has such a right, with the same permission as any other descendant of an ancestor buried in the Cemetery, to drive across roads crossing Cemetery property. She has presented no evidence of any open, notorious, or exclusive occupancy of any portion of the Cemetery property for more than ten years, as determined by the chancellor. Consequently, she is entitled to no greater or lesser interest in an easement over parts of the Cemetery than any descended of anyone buried there.

2. Slander of Title

¶ 14. Grantham next claims the Association slandered her title.

To succeed in an action for slander of title, a claimant must show that another has falsely and maliciously published statements that disparage or bring into question that claimant’s right of title to the property, thereby causing special damage to the claimant. The slander may consist of a writing, a printing, or words of mouth, but they will provide grounds for a cause of action only if the statements have been made falsely and maliciously. Whatever the statement, however, in order for it to form the basis of a right of action, it must have been made not only falsely but maliciously.

Mize v. Westbrook Constr. Co., 146 So.3d 344, 348 (¶ 7) (Miss. 2014) (internal citation omitted) (citing Walley v. Hunt, 212 Miss. 294, 304, 54 So.2d 393, 396 (1951)).

¶ 15. The chancellor found that none of the actions taken by the Association or Liberty Baptist Church (or for that matter, actions by Grantham) were adequate to support a finding that the elements of a slander of title action were met. He observed that the Granthams and the Association used the same surveyor, and both requested that Sutherland plat the property in such a way as to embody their separate claims. He found the submission of their similar plats indicative of the desire and intent of both sides to obtain court approval of boundary claims not clear in the land deed records and not to intentionally, falsely, and maliciously publish claims of boundaries totally unsupported by any evidence. We find substantial evidence in the record allowing the chancellor’s ruling.

CONCLUSION

¶ 16. In a concise and thorough opinion, the chancellor determined facts, set out conclusions of law, and made a final ruling well within his discretion and without doubt neither manifestly wrong nor clearly erroneous. Thus, we affirm.

¶ 17. THE JUDGMENT OF THE CARROLL COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ, CONCUR.

      . Howard Grantham was later dismissed as a party.