author: IRVING, P.J., CARLTON, J.,

text:
    David Lee MAY a/k/a David L. May a/k/a David May, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-KA-00681-COA
    Court of Appeals of Mississippi.
    12/13/2016
    Rehearing Denied April 11, 2017
    Certiorari Denied August 3, 2017

      OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES
    OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT, JOSEPH SCOTT HEMLEBEN
    DISTRICT ATTORNEY: JOEL SMITH
   IRVING, P.J.,

FOR THE COURT:

¶ 1. David Lee May was convicted of possession of one-tenth but less than two grams of cocaine and sentenced as a habitual offender to life without parole. On appeal, May argues he was subject to an illegal search and seizure under the Fourth Amendment. We agree. The State failed to prove that May consented to the search that resulted in the discovery of the cocaine or that the police had probable cause to conduct the search. Therefore, we find that May’s conviction and sentence must be reversed and rendered.

FACTS

¶2. Around midnight on November 3, 2010, Biloxi Police Department Officer Doug DeGeorge saw a vehicle veer over the fog line and into the median on Interstate 10. May was a passenger in the vehicle. Officer DeGeorge conducted a traffic stop for careless driving. The driver could not produce a driver’s license, so Officer DeGeorge asked him to exit the vehicle. In frisking the driver for weapons, he felt “an unusually large bulge” in the driver’s pants. The driver admitted it was drugs. The driver was placed under arrest, and Officer DeGeorge called for backup.

¶ 3. Officer DeGeorge asked May if he had a driver’s license. May had a Mississippi identification card, but his license was suspended. Because the driver had been arrested and May’s license was suspended, Officer DeGeorge began the process to have the vehicle towed. Officer DeGeorge asked May to exit the vehicle so it could be inventoried. May was directed to sit on the ground next to the front driver’s side tire of Officer DeGeorge’s patrol car.

¶ 4. As May sat on the ground, Officer DeGeorge noticed that he was acting “extremely nervous” and was “[ejxtremely fidgety.” Officer DeGeorge observed that May held onto his right shoe and looked down at it if anyone talked to him or he thought anyone was looking at him. Officer DeGeorge asked May if he had anything illegal in his possession. May said no. According to Officer DeGeorge, he then asked May if he would mind removing his shoes. Officer DeGeorge testified that May said he did not mind and took off his shoes. A Zippo lighter fell out of one of his shoes. Officer DeGeorge picked up the lighter to examine it. He testified: “[W]ith a Zippo, you can actually pull the center out to refill it. And so I did so. And a plastic bag containing marijuana, a small amount of marijuana[,] and a small amount of crack cocaine fell out of the center of that.” May was arrested. At the police station, he gave a voluntary statement, admitting that the cocaine and marijuana were his.

¶ 5. May was indicted in the Harrison County Circuit Court for possession of one-tenth but less than two grams of cocaine under Mississippi Code Annotated section 41-29-139(c)(l)(B) (Supp. 2016). He proceeded to trial and was allowed to represent himself with the assistance of standby counsel. Prior to trial, May filed a pro se motion to suppress. It stated: “I am requesting] ... [Investigator] David Elliott ... of the Biloxi Police Department to suppress all evidence on case num. 10-025337[,] ... possession of a controlled substance to wit crack[ ] cocaine/cell phone[ ]s ... [—] the items ... that w[ere] tak[e]n the [night] of Nov. 3[,] 2010.” After conducting a hearing, the circuit court denied May’s motion to suppress. The jury found May guilty as charged. He was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life in the custody of the Mississippi Department of Corrections. May appeals, arguing his conviction and sentence should be reversed because the search of the lighter violated the Fourth Amendment.

STANDARD OF REVIEW

¶ 6. We apply a mixed standard of review to Fourth Amendment issues. Cook v. State, 159 So.3d 534, 537 (¶ 6) (Miss. 2015). The existence of probable cause or reasonable suspicion is reviewed de novo. Id. “But the de novo review is limited to the trial court’s ‘decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.’ ” Id. (quoting Dies v. State, 926 So.2d 910, 917 (¶ 20) (Miss. 2006)).

DISCUSSION

¶ 7. May raises one issue on appeal: whether the search of the lighter that fell from his shoe violated the Fourth Amendment. “The Fourth Amendment of the U[nited] S[tates] Constitution and Article 3, Section 23 of the Mississippi Constitution guarantee a person’s right to be free from unreasonable searches and seizures.” Cooper v. State, 145 So.3d 1164, 1168 (¶ 10) (Miss. 2014). “As a general rule, our state and federal Constitutions prohibit searches without a valid warrant unless an exception applies.” Galloway v. State, 122 So.3d 614, 669 (¶ 182) (Miss. 2013). The State bears the burden to show that a warrantless search falls under one of the permissible exceptions. Id. If no exception is found, the evidence seized as a result of the search “should be suppressed as fruit of the poisonous tree.” State v. Woods, 866 So.2d 422, 427 (¶ 16) (Miss. 2003). “A search is not unreasonable when it is based on probable cause.” Walker v. State, 881 So.2d 820, 827 (¶ 15) (Miss. 2004).

¶8, One exception to the warrant requirement is consent. Galloway, 122 So.3d at 669 (¶ 182). Also excepted from the warrant requirement are items within a police officer’s plain view or plain feel. Ferrell v. State, 649 So.2d 831, 833-34 (Miss. 1995) (plain view); Gales v. State, 153 So.3d 632, 639 (¶ 17) (Miss. 2014) (plain feel). The State asserts May consented to the search that resulted in his conviction, and, even if he did not, May’s behavior created probable cause for the search, rendering his consent unnecessary. The State further argues that May has waived his arguments regarding these issues, as they were not specifically raised in his motion to suppress.

1. Consent

¶ 9. To provide an exception to the warrant requirement, a person’s consent to search must be knowing and voluntary. Moore v. State, 933 So.2d 910, 916 (¶ 19) (Miss. 2006). For consent to be given knowingly, “the person searched must be aware he has the legal right to refuse.” Id. Voluntariness is determined from the totality of the circumstances. Graves v. State, 708 So.2d 858, 863 (¶ 24) (Miss. 1997). Factors to consider are

whether the circumstances were coercive, occurred while in the custody of law enforcement or occurred in the course of a station house investigation. The court must also look to the individual’s maturity^ impressionability, experience and education. Further, the court should consider whether the person was excited, under the influence of drugs or alcohol, or mentally incompetent. If the consent occurred while the defendant was being generally cooperative,' the consent is more likely to be voluntary; however, if the defendant agreed and then changed his mind, the consent should be suspect.

Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226-28, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). “[WJhere consent is given, the State is not. required to demonstrate knowledge; rather, ‘the burden is on the defendant to show impaired consent or some diminished capacity.’” Moore, 933 So.2d at 916 (¶ 20) (quoting Jones v. State, 607 So.2d 23, 29 (Miss. 1991)).

¶ 10, May argues his consent was involuntary under the circumstances—he was afraid because he had just seen his companion arrested, and he was sitting on the side of the interstate with no way to leave. For these same reasons, May argues that he was subjected to a custodial interrogation, as he was in a custodial situation when Officer DeGeorge asked him to remove his shoe, and he was not read his rights under Miranda v. Arizona, 384 U.S. 1121, 1125, - S.Ct. -, - L.Ed.2d - (1966), rendering the questioning illegal. However, according to Officer De-George’s testimony, May was not under arrest or being detained for any reason when he was asked to remove his shoe. Rather, he was sitting on the ground because his driver’s license was suspended and he could not lawfully drive the vehicle in which he had been riding. As Officer DeGeorge testified, “Because we arrested the driver ... [and] Mr. May ... [had] a suspended driver’s license, ... he wasn’t able to leave at that point.” According to May^ own statements, he was allowed to use his cell phone to make calls to look for a ride as he sat on the ground. The record shows that Officer DeGeorge did not appear concerned with May at this point. Officer DeGeorge testified he did not recall whether May had his phone or whether he was making calls, as Officer DeGeorge was “dealing with” the driver, who was under arrest, and “[the driver’s] narcotics,” and he was making phone calls, “notifying the investigators and the supervisors and such.” ;

¶ 11. As May points out- on appeal, practically speaking, it may have been difficult for him to leave the scene, as it was the middle of the night and the traffic stop occurred on the interstate. But there was no testimony to this effect. Nor was there any testimony that Officer DeGeorge used coercive tactics to detain May or make May remove his shoe. May bore the burden to prove his consent was involuntary. He has provided no such proof. Rather, the evidence showed May was being generally cooperative and was allowed to sit with minimal supervision to use his phone. Based on the facts presented, we find May voluntarily consented to the removal of his shoe.

¶ 12. We must next examine whether May’s voluntary consent to remove his shoe extended to the search of the lighter that fell from his shoe. The State argues, and the dissent agrees, that May’s consent and voluntary removal of his shoe imputed consent to search all items contained in May’s shoe. The State and dissent cite Gales in support of then-assertion.

¶ 13. In Gales, 153 So.3d at 636 (¶-2), two individuals robbed a convenience store at gunpoint and then fled. A police officer saw a man, later identified as Brandon Gales, who met the description of one of the suspects, running down a street near the store. Id: at (¶ 4). Gales tried to make it look -as if he was walking when he saw the officer. Id. The officer approached him. Id. Because he had reason to suspect that Gales possessed a weapon, the officer frisked Gales for safety reasons; Id. at 64'0 (¶ 19}. The officer felt an unknown bulge in Gales’s back pocket. Id. at 636 (¶ 4). The officer asked Gales what was in his pocket. Id. at (¶ 5). Gales voluntarily removed wads of cash. Id. at 642 (¶ 27). On appeal, Gales argued that the officer exceeded the scope of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), by asking him to remove an item from his pocket that the officer .knew was not a weapon. Id, at 639 (¶ 17). However, the Mississippi Supreme Court noted that “since Terry, the U.S. Supreme Court has held repeatedly that mere police questioning does not constitute a seizure.” Id. at (¶ 18) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). The supreme court further found that “once police are lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item is lost.” Id. at 642 (¶ 30) (quoting Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983)). Thus, “[b]ecause Gales voluntarily showed [the officer] the money, Gales no longer had a ‘reasonable expectation of privacy’ as to the money under the Fourth Amendment,” and the seizure was legal. Id. at 639 (¶ 17).

¶ 14. This case is distinguishable from Gales. When Gales voluntarily removed the cash from his pocket, it was immediately viewable as incriminating because the officer was looking for an 'armed-robbery suspect matching Gales’s description who had stolen cash. And Gales voluntarily showed the officer the cash, removing any reasonable expectation of privacy. Here, however, when May voluntarily removed his shoe, only the lighter was revealed. There was no testimony that the lighter was inherently incriminating or illegal, that the lighter was a weapon or could contain a weapon, or that Officer De-George was concerned for his safety because of the lighter. Thus, unless the scope of May’s consent to remove his shoes extended to a search of the .interior of the lighter, the search of the lighter was illegal.

¶ 15. The scope of consent under the Fourth Amendment is examined for “objective reasonableness.” O’Donnell v. State, 173 So.3d 907, 914 (¶ 13) (Miss. Ct. App. 2015). We must ask ourselves: “[W]hat would the typical reasonable person have understood -by the exchange between the officer and the suspect?” Id. (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)). We cannot find that a typical reasonable person would have understood a request to remove a person’s shoes as a request to search the contents of any object contained in the shoes. As applied to the.facts here, we cannot find that by consenting to remove his shoes, May would have understood that he was consenting to Officer DeGeorge taking apart and searching. the. lighter that fell from his shoe. Rather, we find the scope of May’s consent only extended to the contents of the .shoe that were plainly viewable as incriminating or dangerous. Because Officer DeGeorge had no basis to search the lighter and May had not consented to the search of the lighter, May retained a reasonable expectation of privacy in its contents. Without May’s consent, the State was required to prove probable cause or another exception to the warrant requirement for the contents of the lighter to be admissible under the Fourth Amendment.

2. Probable Cause

¶ 16. May asserts that Officer DeGeorge’s search of the lighter was not reasonably related to the scope of the initial stop nor was probable cause to search the lighter developed during the stop. See Terry, 392 U.S. at 20, 88 S.Ct. 1868. A search is reasonable under Terry when: (1) “the officer’s action was justified at its inception,” and (2) “it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. Under the first factor, May concedes the careless-driving traffic stop was justified. He also concedes that Officer DeGeorge had the right to conduct a pat-down search for weapons. But he argues that under the second factor, the scope of the search went beyond that allowed by Terry, and -no probable cause was created during the stop for the warrantless search.

¶ 17. We agree that the scope of the search was not reasonably related to the circumstances warranting the interference—the traffic stop. At the time May was asked to remove his shoe, the traffic stop had been completed, and the driver was under arrest. Officers were making arrangements for the vehicle to be inventoried and towed. Therefore, our analysis is limited to whether Officer DeGeorge had probable cause to determine that May was involved in illegal activity.

¶ 18. Probable cause for a war-rantless search “exists where the facts and circumstances within the arresting officer’s knowledge and of which [he] had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Walker, 881 So.2d at 827 (¶ 15). “A collection of actions which, individually, are subject to innocent explanation may be sufficient to create reasonable suspicion under the totality of the circumstances.” Anderson v. State, 864 So.2d 948, 951 (¶ 13) (Miss. Ct. App. 2003) (citing United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). “However, mere hunches or ‘looking suspicious’ is not sufficient to establish reasonable suspicion.” Id. (citing Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)).

¶ 19. As the supreme court has explained:

[Probable cause] is not what some officer thought[;] it is not some conduct that was simply unusual, not some conduct which simply roused the suspicion that illegal activity could be afoot when there was at the same time just as likely a possibility that nothing at all illegal was transpiring. Rather, it must be information reasonably leading an officer to believe that then and there contraband or evidence material to a criminal investigation would be found.

Rooks v. State, 529 So.2d 546, 555 (Miss. 1988).

¶20. Officer DeGeorge testified at the suppression hearing as follows regarding his observations of May’s behavior:

Q. And what, if anything, did you observe about Mr. May as he was sitting there in front of your vehicle?
A. .Mr. May was extremely nervous. Extremely fidgety. He continued to keep holding on to his right shoe, kept looking ;down at it anytime anybody was talking to him or if he thought somebody was looking at him. I made note of that.
Q. And what did his demeanor tell you from your experience as a police officer?
A. Usually when people start looking at things or putting their hand in their pockets or a certain pocket, they are trying to conceal something or hide something.
Q. And what did you do then?
A. I asked Mr. May if he had anything illegal on him. He told me no. I asked him if he would mind taking his shoes off. He said, no. He took his shoes off and a Zippo lighter fell out.

¶ 21. At trial, Officer DeGeorge testified as follows:

Q. What was [May]’s demeanor as he was removed from the vehicle and sitting on the ground in front of your patrol vehicle?
A.... I noticed that he continued to stare at his right shoe. He started reaching and grabbing for it as if he was trying to hide something. Anytime somebody would look at it, he would hold it. If somebody wasn’t looking at him, he would hold it and kind of look at it. It kind of brought my attention, obviously, to his right shoe.
Q. And based on your training and experience, what did ... his actions suggest to you?
A. Normally if people are—if they will stick their hand in their pocket, say, their right pocket, but their other hand is not in a pocket, they are usually trying to conceal something in the pocket. Especially if they look down at them hand. Most of the time, if something is illegal, such as narcotics or weapons, it’s almost as if they’re touching it that it doesn’t exist and you can’t see it.

¶ 22. We cannot find probable cause existed for a search based on Officer De-George’s testimony. Officer DeGeorge merely testified that he became suspicious that May could have something illegal in his shoe because May acted nervous and looked at and held onto his right shoe as he sat on the ground. But to establish probable cause, an officer must have “information reasonably leading [the] officer to believe that then and there contraband or evidence material to a criminal investigation would be found.” Rooks, 529 So.2d at 555. Officer DeGeorge guessed that May could be in possession of something illegal. But this alone is insufficient to establish probable cause. As stated, “mere hunches or ‘looking suspicious’ is not sufficient to establish reasonable suspicion.” Anderson, 864 So.2d at 951 (¶ 13).

¶ 23. We find the facts here analogous to the following eases, in which no probable cause was found under the plain-view or plain-feel doctrine for containers that typically hold innocuous materials. In Anderson, 864 So.2d at 949 (¶ 2), a police officer conducted a traffic stop at approximately 11:30 p.m. The defendant, Carl Anderson, was asked to exit the vehicle. Id. at (¶ 3). Anderson acted nervous, and the officer could see a plastic bag sticking out of Anderson’s pants. Id. The officer testified he could not see the contents of the bag, nor did he believe the bag itself to be dangerous. Id. at 950 (¶9). But the officer thought the bag looked “out of place.” Id. at 951 (¶ 12). He pulled Anderson’s pants away from his body and could see the plastic bag contained what appeared to be cocaine. Id. at 949-50 (¶ 3). In holding the search was illegal, we found that “[t]hough crack cocaine may quite often be carried in plastic bags, and though having a plastic bag inside one’s pants may be unusual, neither consideration creates probable cause to believe that there was cocaine.” Id. at 951 (¶ 12). We noted the officer’s somewhat ambiguous testimony that he thought he saw residue higher on the bag, which “was possibly crack cocaine.” Id. at 950 (¶ 10). But we found that even “[observing the powdery substance itself did not create probable cause.” Id. at 950-51 (¶ 10).

¶ 24. In Anderson v. State, 16 So.3d 756, 758 (¶ 3) (Miss. Ct. App. 2009), officers observed a handgun inside a home on a table near a known felon. Jamie Anderson, who was also in the home, was frisked for weapons. Id. at (¶ 4). In patting down Anderson, no weapons were found, but the officer felt a pill bottle, which he believed to contain methamphetamine. Id. “The issue that followed] [was] whether [the officer] had probable cause to believe that what he felt in Anderson’s pants at the time of the pat-down search actually contained contraband.” Id. at 760 (¶ 11). While the officer “assumed” the pill bottle contained drugs, “[t]here [wa]s no testimony in the record that pill bottles found in pants’ pockets normally contain illegal contraband.” Id. We found that under the plain-view doctrine, “the contraband must itself be in plain view” to establish probable cause and provide an exception to the warrant requirement. Id. at 761 (¶ 12) (quoting Ferrell, 649 So.2d at 833). Because the contents of the pill bottle were “not immediately apparent as contraband,” “the seizure of the contraband from a pill bottle in Anderson’s pocket fit[] neither the ‘plain-view’ nor the ‘plain-feel’ exceptions to the warrant requirement” and was illegal. Id. at (¶¶ 13-14).

¶ 25. In a similar case, Ferrell, 649 So.2d at 834, the supreme court found no exception to the warrant requirement for the search of a matchbox. Ray Ferrell was arrested for speeding and driving with a suspended license. Id. at 832. Ferrell was frisked and placed in the back of the officer’s patrol car. Id. Upon Ferrell’s request, one of the officers went to retrieve Ferrell’s keys from his vehicle. Id. The officer saw a matchbox on the passenger seat next to the keys. Id. From his experience, the officer knew narcotics were often carried in matchboxes. Id. The officer picked up the matchbox, revealing a yellow pill. Id. He opened the matchbox, and it contained only matches. Id. The officer then saw a second matchbox between the two front seats. Id. The officer opened it and discovered nine rocks of crack cocaine. Id. at 832-33. The supreme court found the search impermissible under the plain-view doctrine. Id. at 833-34. The supreme court stated that “[t]he plain[-]view exception is intended to allow police officers to seize incriminating items that are discovered in the course of their legitimate law enforcement activities, not to justify warrantless, exploratory searches of containers that purport to contain innocuous materials.” Id. at 834 (internal citations omitted) (quoting United States v. Villarreal, 963 F.2d 770, 776 (5th Cir. 1992)). “[A] container cannot be opened unless its contents are in plain view or they can be inferred from the container’s outward appearance.” Id. (quoting United States v. Sylvester, 848 F.2d 520, 525 (5th Cir. 1988)).

¶ 26. Here, like the foregoing cases, Officer DeGeorge could not articulate anything more than speculation that May might have had something illegal in his possession. When the lighter fell from May’s shoe, nothing illegal came into plain view or could be inferred from the lighter’s outward appearance. Nor did the testimony show that there was anything inherently dangerous about the lighter that would have justified a search for officer safety. Finally, there was no testimony that Officer DeGeorge’s handling of the lighter led him to believe under the plain-touch doctrine that something illegal may be inside. Under the totality of the circumstances and based on our de novo review of the facts established at trial, we find no substantial basis for the establishment, of probable cause and no exception to justify Officer DeGeorge’s warrantless search of the contents of the lighter.

¶27. Because Officer DeGeorge lacked probable cause for the search of the lighter and no exception to the warrant requirement applied, his search of the lighter was a Fourth Amendment violation. It follows that the cocaine seized as a result of the search should have been suppressed. With no evidence to support May’s possession-of-cocaine conviction, the conviction must be reversed and rendered.

3. Waiver

¶28. The State argues “several of the issues raised,” including May’s assertions of lack of consent and improper custodial interrogation, are procedurally barred because they were not “sufficiently raised” in May’s general motion to suppress. See Evans v. State, 725 So.2d 613, 638 (¶ 48) (Miss. 1997) (stating that the failure to raise an issue at trial procedurally bars the issue on appeal).

¶ 29. In addressing this assertion, we must consider that May filed his motion to suppress pro se and proceeded pro se at trial with standby counsel. May’s standby counsel did not assist at the suppression hearing or during the questioning of Officer DeGeorge at trial. “While pro se litigants are afforded some leniency, they must be held to substantially the same standards of litigation conduct as members of the bar.” Sumrell v. State, 972 So.2d 572, 574 (¶ 6) (Miss. 2008). But a pleading filed by a pro se person “is held to less stringent standards than formal pleadings drafted by lawyers.” Terrell v. State, 573 So.2d 732, 733 (Miss. 1990). When a person is proceeding pro se, we will not find, a “meritorious complaint ... lost because [it was] inartfully drafted.” Id.

¶ 30:' Although inartfully drafted, we find May’s motion to suppress was sufficient to preserve this issue for review. And, even if it was not, we find review for plain error appropriate. “The plain-error doctrine is implicated when an error at trial affects substantial rights and results in a manifest .miscarriage of justice.” Hearn v. State, 3 So.3d 722, 736 (¶ 36) (Miss. 2008). Plain error may be, found where the trial court fails “to properly evaluate evidentiary matters.” Id. “Plain[-]error [review] is also appropriate where there is a violation of constitutional rights.” Id. May’s right to be free from an illegal search and seizure is a constitutional right under the Fourth Amendment, and the admission of the cocaine into evidence was an evidentiary matter, which we find was not properly reviewed by the trial court. Thus, the issues raised, even if waived, are proper for plain-error review. May’s conviction is reversed and rendered.

¶ 31. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

CARLTON, J.,

DISSENTING:

¶ 32. I respectfully dissent from the majority’s opinion. I find that May consented to remove his shoe and, in so doing, voluntarily revealed to Officer DeGeorge the cigarette lighter concealed inside the shoe. As a result, I find that Officer DeGeorge’s search of May’s cigarette lighter and seizure of the cocaine inside the lighter failed to violate May’s Fourth Amendment rights. For these reasons, I would affirm the circuit court’s denial of May’s motion to suppress and would affirm May’s conviction,

¶ 33. After arresting the vehicle’s driver and discovering that May’s driver’s license was suspended, Officer DeGeorge concluded that the vehicle would have to be towed. Officer DeGeorge therefore asked May to exit the vehicle and sit on the ground so officers could inventory the vehicle’s contents before the vehicle was towed. Officer DeGeorge testified that May was not yet in custody when he asked May to exit the vehicle and sit on the ground. However, Officer DeGeorge further stated that it was not safe for the officers to inventory the vehicle while someone was still inside the car.

¶ 34. Although May was not yet in custody, Officer DeGeorge noticed that May acted extremely nervous and fidgety. According to Officer DeGeorge’s testimony, May kept grabbing and holding onto his right shoe as though he were trying to hide something. Whenever anyone spoke to May or looked in his direction, Officer DeGeorge observed that May would grab and hold onto his right shoe. Due to May’s behavior, Officer DeGeorge asked whether May had anything illegal in his possession. After May answered that he did not, Officer DeGeorge asked May whether he would mind taking off his shoes. Officer DeGeorge testified that May consented to the request.

¶ 35. As May voluntarily took off his shoe, a Zippo cigarette lighter fell to the ground. Officer DeGeorge testified that the center part of Zippo cigarette lighters come out so that a person can refill the lighter. When Officer DeGeorge pulled out the center part of May’s cigarette lighter, he found two small plastic bags containing marijuana and crack cocaine. After discovering the narcotics, Officer DeGeorge arrested May and searched May’s person. Upon arriving at the police station, May waived his constitutional rights and gave a statement. During his statement, May admitted that the cocaine and marijuana belonged to him. Testing later revealed that May’s cigarette lighter had contained 0.3 grams of cocaine,

¶ 36. May was subsequently indicted and charged with “knowingly, willfully, unlawfully!;,] and feloniously possessing] 0.1 grams or more but less than 2.0 grams of cocaine, a Schedule II Controlled Substance[.]” See Miss. Code Ann. § 41-29-139(c)(1) (Rev. 2013). The indictment further charged that May was a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) and had been previously convicted of the following felonies: (1) burglary in cause number B2402-2007-00714, with a sentence of five years in the custody of the Mississippi Department of Corrections (MDOC); (2) unlawful possession of a firearm or a weapon by a convicted felon in cause number B2402-2003-622, with a sentence of three years in MDOC’s custody; and (3) attempted robbery, a crime of violence, in cause number 91-7245, with a sentence of fifteen years in MDOC’s custody.

¶37. Prior to his trial, May moved to suppress the evidence of the cocaine found in his lighter during the traffic stop. However, the circuit court denied May’s pretrial motion and allowed the State to introduce the evidence during the trial. After considering the evidence and testimony presented at trial, the jury found May guilty of possession of a controlled substance. The circuit court sentenced May, as a habitual offender, to life in MDOC’s custody without the possibility of parole or probation. May filed an unsuccessful motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. Aggrieved by his conviction and sentence, May now appeals to this Court.

¶ 38. On appeal, May asserts no dispute that probable cause existed for Officer De-George’s initial traffic stop. Nor does May challenge Officer DeGeorge’s right to conduct a pat down of May for the safety of Officer DeGeorge and the other police officers. Instead, May asserts that Officer De-George’s search of his cigarette lighter and seizure of the cocaine inside the lighter violated the Fourth Amendment. As a result, May argues the circuit court erred by denying his pretrial motion to suppress the evidence of the cocaine found in his lighter.

¶ 39. According to May’s argument, Officer DeGeorge’s search was unreasonable, lacked probable cause, and occurred without valid consent. Specifically, May argues Officer DeGeorge’s search was not reasonably related to the scope of the initial traffic stop and was not justified by probable cause developed during the traffic stop. Furthermore, May contends Officer De-George lacked valid consent to search the lighter. May therefore asks this Court to either reverse and render his conviction or to remand the case for a new trial.

¶ 40. With regard to the applicable standard of review, the Mississippi Supreme Court has previously stated:

When reviewing a trial court’s denial of a motion to suppress, [the appellate court] adopts a mixed standard of review. Determinations of reasonable suspicion and probable cause- are reviewed de novo. However, [the appellate court] should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Thus, [the appellate court] is restricted to a de novo review of the trial judge’s findings using the applicable substantial evidence/clearly erroneous standard. Finally, [the appellate court] reviews the admission or exclusion of evidence for abuse of discretion.

Gillett v. State, 56 So.3d 469, 482 (¶ 21) (Miss. 2010) (internal citations and quotation marks omitted).

¶ 41. I also acknowledge that this case addresses the discovery of incriminating evidence found upon May’s voluntary removal of his shoe and the revelation to Officer DeGeorge of the lighter concealed within the shoe. As our caselaw establishes, the voluntariness of one’s consent to a search is a question of fact to be determined from the surrounding circumstances. See Gilbreath v. State, 783 So.2d 720, 723 (¶ 6) (Miss. Ct. App. 2000).

¶ 42. “The Fourth Amendment to the United States Constitution and Article 3 Section 23 of the Mississippi Constitution provide that an individual has the right to be free from unreasonable searches and seizures.” Shelton v. State, 45 So.3d 1203, 1208 (¶ 10) (Miss. Ct. App. 2010) (citing Dies v. State, 926 So.2d 910, 917-18 (¶ 21) (Miss. 2006)). “The action of an officer stopping a vehicle is reasonable when there is ‘probable cause to believe that a traffic violation has occurred.’” Lee v. State, 100 So.3d 982, 984-85 (¶ 9) (Miss. Ct. App. 2012) (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). However, consent to a search provides an exception to the requirement of a valid warrant or probable cause. Id. at 985 (¶ 10).

¶43. Although May raises no dispute that probable cause existed for Officer De-George’s initial traffic stop, I briefly address the issue. The record reflects that Officer DeGeorge stopped the vehicle for careless driving after he observed the vehicle swerve on the interstate and cross the fog line toward the median. As this Court has previously recognized, the “failure to have regard for the width and use of the street by swerving off the side of the road or crossing the marker lines constitutes probable cause for a traffic stop.” Henderson v. State, 878 So.2d 246, 247 (¶ 8) (Miss. Ct. App. 2004). Thus, under the circumstances presented, probable cause existed for Officer DeGeorge to execute a traffic stop and detain the vehicle.

¶ 44. “To stop and temporarily detain is not an arrest, and the cases hold that[,] given reasonable circumstances[,] an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest.” Gonzales v. State, 963 So.2d 1138, 1141 (¶ 13) (Miss. 2007) (citation omitted). In addition, the United States Supreme Court has “noted that it is imperative that the facts be judged against an objective standard: Would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?” Id. at 1141-42 (¶ 13) (citations and internal quotation marks omitted). During a proper investigative stop, if a police officer “develops reasonable, articulable suspicion of some criminal activity in addition to ... that initially suspected, the permissible scope of the stop expands to include the officer’s investigation of the newly suspected criminal activity.” Tate v. State, 946 So.2d 376, 382 (¶ 18) (Miss. Ct. App. 2006) (citing United States v. Kye Soo Lee, 898 F.2d 1034, 1040 (5th Cir. 1990)).

¶ 45. In the present case, Officer De-George was able to reasonably articulate the behavior that led him to suspect “some criminal activity in addition to ... that initially suspeeted[.]” Id. Officer DeGeorge testified that he noticed May acting extremely nervous and fidgety as he sat on the ground. Specifically, Officer DeGeorge observed that May appeared preoccupied with his right shoe and constantly grabbed the shoe whenever anyone spoke to him or looked at him. Based on his experience and training as a police officer, Officer De-George testified that May’s behavior indicated that May was attempting to hide something in his shoe. According to Officer DeGeorge’s testimony, May voluntarily consented to remove his shoes. On appeal, the State argues this indicates May also consented to the search of the cigarette lighter that fell out of his shoe.

¶ 46. In addition to arguing that he never consented to the search of the lighter, May contends that Officer DeGeorge’s search of the lighter was an illegal attempt to find evidence without probable cause. May asserts that, at the time the cigarette lighter fell to the ground, Officer De-George had completed his “safety search” of May. Therefore, because the lighter was a closed container and was neither a weapon nor contraband, May argues that the ensuing search of his lighter was unreasonable and lacked probable cause.

¶ 47. In addressing May’s assignment of error, I again emphasize that “consenting to a search is an exception to the requirement that searches are to be conducted pursuant to a valid warrant or probable cause.” Lee, 100 So.3d at 985 (¶ 10) (citing Jackson v. State, 418 So.2d 827, 830 (Miss. 1982)). I also recognize that, “[wjhether a person voluntarily consents to a search is a question of fact to be determined by the total circumstances.” Moore v. State, 933 So.2d 910, 916 (¶ 20) (Miss. 2006) (citation and internal quotation marks omitted). In Gales v. State, 153 So.3d 632, 639 (¶ 17) (Miss. 2014), our supreme court recognized that a defendant lacked a reasonable expectation of privacy with regard to incriminating evidence contained in his pocket when he voluntarily took the item out of his pocket .and showed it to law-enforcement officers. With respect to the present' case, I find the supreme .court’s holding in Gales controlling.

¶ 48. In Gales, a police officer was in pursuit of an armed-robbery suspect when he encountered the defendant. Id, at 640-41 (¶ 19). The officer had reason to suspect that Gales possessed a' weapon, and he therefore conducted a search of Gales’s person. Id. at 641 (¶ 19). Even though the officer felt no weapon, he did feel an unknown bulge in Gales’s back pocket. Id. Although concerned for his safety, the officer did not search Gales’s. pockets. Id. Instead, the officer testified that he asked Gales wha,t was in his pocket. Id. The officer further testified that Gales voluntarily emptied his pockets, shoving the officer the money in his pocket and claiming that he had won the money while gambling. Id.

¶ 49. Prior to his trial for armed robbery and conspiracy to commit armed robbery, Gales argued the officer’s search was unreasonable, and he unsuccessfully tried to suppress all evidence seized as a result of the search. Id. at 637 (¶ 10). In upholding the trial court’s finding that the officer performed, a constitutional search, the supreme court stated, “Because Gales voluntarily showed [the officer] the money, Gales no longer had a ‘reasonable expectation of privacy’ as to the money under the Fourth Amendment.” Id. at 639 (¶ 17) (quoting Katz v. United States, 389 U.S. 347, 359, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring)).

¶ 50. In the present case, May consented to the removal of his shoe, - which led him to voluntarily reveal to Officer DeGeorge the cigarette lighter concealed within the shoe. The record reflects substantial evidence to support the circuit court’s factual finding that May consented to Officer De-George’s search,- The record also reflects that May’s behavior created probable cause for the search, thereby rendering consent unnecessary. Like -the defendant in Gales, May lacked any reasonable expectation of privacy as to the incriminating evidence that he voluntarily revealed by removing his shoe. See id, As a result, I find no merit to May’s claims that Officer DeGeorge’s search of his cigarette lighter and seizure of the cocaine inside the lighter violated the Fourth- Amendment. I therefore would find no abuse of discretion in the circuit court’s denial of May’s motion to suppress. See Gillett, 56 So.3d at 482 (¶ 21). Accordingly, I respectfully dissent from the majority’s opinion and would affirm the circuit court’s judgment of conviction against May.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Sara JANE Koch a/k/a Sara Koch a/k/a Sara J. Koch, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01228-COA
    Court of Appeals of Mississippi.
    01/10/2017
    Rehearing Denied May 9, 2017
    Certiorari Denied July 27, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINS-WORTH, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   LEE, C.J.,

FOR THE COURT:

PROCEDURAL HISTORY

¶ 1. On March 25, 2013, Sara Jane Koch was indicted on two counts of felony driving under the influence (DUI) causing death or disfigurement. Count I charged aggravated DUI while Koch was under the influence of intoxicating liquor pursuant to Mississippi Code Annotated section 63-ll-30(l)(a) (Supp. 2016). Count II charged aggravated DUI while Koch’s blood-alcohol content (BAC) was over .08% pursuant to Mississippi Code Annotated section 63-ll-30(l)(c) (Rev. 2013). A jury in the Harrison County Circuit Court, Second Judicial District, found Koch guilty of aggravated DUI. Koch was sentenced to twenty-five years, with seven years suspended, eighteen years to serve in the custody of the Mississippi Department of Corrections (MDOC), and five years of postrelease supervision. Koch was also ordered to pay $5,750 in restitution. After her posttrial motions were denied, Koch appealed, asserting the following: (1) the indictment was defective; (2) the jury was not properly instructed; (3) the trial court erred by allowing the State’s expert witness to give opinion testimony; and (4) her conviction and sentence need clarification.

FACTS

¶2. At 5:11 a.m. on February 1, 2012, Koch called 911 to report that she had hit a pedestrian while driving on Interstate 10 in D’Iberville, Mississippi. She told the 911 dispatcher that “someone was in my lane[,] and I hit them[,] and I’m sure I killed them.” At one point, Koch stated, “[T]here was a car[] in the middle of the road that was there, so I hit them.” The 911 operator responded, “So you say there was another car, and the person was standing near the car?” Koch responded, “Yes, on the side of the road.”

¶ 8. D’Iberville Police Officer Kevin Sid-away arrived on the scene around 5:15 aim. Officer Sidaway testified he pulled up behind Koch’s car, and she was parked in the emergency lane. Officer Sidaway stated he walked to the passenger side of the car for safety purposes, and once Koch had rolled the window down, he noted the smell of alcohol inside the car. Officer Sid-away testified that Koch was crying hysterically. He also stated that he did not drive over any debris in the road while approaching Koch’s car. Another officer had arrived at the same time as Officer Sidaway but parked further back.

¶4. Officer Kenneth Goins, a DUI-enforcement officer with the D’Iberville Police Department (DPD), arrived at 5:23 a.m. Officer Goins noted the smell of alcohol in Koch’s car. He testified that as he walked Koch to his patrol car, she “was unsteady on her feet, kind of swaying and stumbling a little bit.” Koch was still crying. Officer Goins read Koch her Miranda rights, arrested her, and transported her to the D’Iberville police station. Officer Goins obtained a warrant for a blood test, and Koch’s blood was drawn at a local hospital at 6:59 a.m. At some point, Koch told Officer Goins that she had consumed five alcoholic beverages prior to the accident.

¶ 5. Terry Hines, a captain with the DPD, arrived at the scene at 5:50 a.m. Captain Hines walked down the emergency lane, noting the debris from the accident. Captain Hines noted that no debris was found in the right lane of Interstate 10; rather, debris was found in the emergency lane and in the grass on the side of the interstate. According to Captain Hines, the victim’, Donald Sullivan, had been walking to work when Koch struck him. Sullivan’s body was found in the grassy area approximately thirty or forty feet from the emergency lane. During his investigation, Captain Hines learned that Koch had been at the Hard Rock Casino in Biloxi, Mississippi, prior to the accident. Captain Hines also obtained a warrant to search Koch’s cell phone.

¶ 6. Several hours after the accident, Koch called a friend from jail. This call had been recorded and was played for the jury during trial. Koch’s friend asked her if Sullivan was walking on the interstate or on the side. Koch responded, “Apparently on the side. I don’t remember much.”

¶ 7. Donnie Dobbs, a detective with the Biloxi Police Department (BPD), assisted the DPD with the data recovery from Koch’s cell phone. Detective Dobbs testified that Koch had been exchanging text messages with someone Koch referred to as “Brucie Boyfran.” At 4:41 a.m., Koch sent Brucie a text that said, “Driving. Go R [sic].” And then at 4:42 a.m., she sent him another text that said, “I’m fd up;” Koch texted Brucie several more times and called him at 5:10 a.m. The duration of the call was fifty, seconds. The- next outgoing call was the 911 call at 5:11 a.m. The last activity on Koch’s phone was a text from Brucie at 5:24 a.m., stating, “Pick up the phone. I’m worried, about you. You just called me up crying.”

¶8. John Doueet, an officer with the BPD, assisted the DPD with the investigation. Officer Doueet was accepted as an expert in accident reconstruction. After investigating the accident scene, Officer Doueet noted no skid marks or broken glass in either the emergency lane or the right lane of the interstate. Using the “cone of evidence” or “cone of debris” method to estimate the area of impact, Officer Doueet concluded that he was able to form an opinion within a reasonable degree of scientific certainty that Sullivan was walking in the emergency lane when he was hit.

¶ 9. Emily Harper, a forensic toxicologist with the Mississippi State Crime Lab, testified that Koch’s BAC was .18%. And that based upon the 'time Koch’s blood was drawn, Koch’s BAC at the time of the accident would have been higher.

¶10. Dr, Mark LeVaughn, a forensic pathologist and Mississippi’s chief medical examiner, testified regarding the autopsy results. Dr. LeVaughn stated that Sullivan’s cause of death was multiple blunt-force injuries and these injuries were consistent with being struck from behind by a car while standing upright. Dr. LeVaughn testified that the car struck Sullivan’s right leg first, then the force of the impact propelled Sullivan onto Koch’s car, where his head struck the windshield. Sullivan then bounced off the car and landed in' the grass to the side of the interstate.

¶ 11, Jason Walton testified for Koch as an expert in accident reconstruction. Walton testified that Officer Doucet’s use of the cone-of-evidence method to determine the area of impact was not a reliable method for a higher-speed impact. And that Officer Doueet had not applied the cone-of-evidence method correctly. Due to the lack of evidence and information, Walton testified -it was impossible to determine the area of impact—that it could have occurred in the emergency lane or in the right lane of the interstate.

•¶ 12. Officer Michael Davis, an expert in accident reconstruction with the BPD, was called by the State :in rebuttal. Officer Davis testified that Walton did not employ the cone-of-evidence method correctly. Officer Davis stated that by using the correct method, he determined that Sullivan would have been walking in the emergency lane when Koch struck him.

DISCUSSION

I. Indictment

¶ 13. In her first issue, - Koch argues that the indictment failed to allege a specific' negligent act. Issues concerning the sufficiency of an indictment are questions of law; thus, our standard of review is de novo. Taylor v. State, 94 So.3d 298, 305 (¶ 14) (Miss. Ct. App. 2011). Count I stated: Koch “did -unlawfully, willfully, and feloniously, drive or operate a motor vehicle . ... while under the influence of intoxicating liquor, and did thereby in a negligent manner cause the death of ... Sullivan ,in violation.of Section 63—11— 30(1)(a) and (5)....” Count II stated: Koch “did unlawfully, willfully, and felo-niously, drive or operate a motor vehicle ... during a time in which [she] ... had [a BAC] of ... 0.18% ... and did thereby in a negligent manner cause the death of ... Sullivan ... in violation of Section 63-11—80(1)(c) and (5)[.]”

¶ 14. Prior to trial, Koch filed a motion to dismiss the indictment because it did not include the specific negligent act. During the hearing on the motion to dismiss, the State argued its theory was that Koch had veered into the emergency lane when she hit Sullivan. And that Koch' was on notice due to the information she received during discovery—including police reports, crime-lab reports, and accident-reconstruction' reports. The trial court denied Koch’s motion.

¶ 15. Koch acknowledges that the accident report noted “failure to keep proper lane/run off the road,” but argues that the indictment was insufficient for failing to include this language. Koch cites to Tran v. State, 962 So.2d 1237 (Miss. 2007), and Taylor for support. In Tran, the defendant was convicted of money laundering. Tran, 962 So.2d at 1240-41 (¶ 13). The Mississippi Supreme Court found that an indictment for money laundering must inform the defendant of the specific unlawful acts that produced the funds the defendant was accused of laundering. Id. at 1248 (¶ 45). The indictment did not state the underlying offense—it simply stated the funds represented proceeds from “some unlawful activity.” Id. at 1241 (¶13). However, the supreme court found any error was harmless since the defendant was on notice of the unlawful activity—drug trafficking— and was provided the opportunity to prepare a defense. Id. at 1248 (¶ 45).

¶ 16. Like Koch, the defendant in Taylor was convicted' of aggravated DUI and alleged on appeal that the indictment was defective for failing to include the specific negligent act. Taylor, 94 So,3d at 303, 305 (¶¶ 1, 14). This Court determined -that regardless of the sufficiency of the indictment, the defendant “had notice of the basis for the negligence charged in the indictment.” Id. at 307 (¶20). We did. not determine whether an indictment for aggravated DUI was required to allege a specific negligent act: “To be clear, we do not find that an indictment for [aggravated DUI] is or is not required. to allege a specific basis for an allegation of negligence.” Id. (emphasis added).

¶ 17. During the hearing on Koch’s motion to dismiss, the State indicated the discovery materials stated that Koch was driving under the influence and “failed to keep a proper lane and ran off the road.” To reiterate, Koch did acknowledge that the accident report indicated “failure to keep proper lane/run off the road.” And Koch’s defense called an expert to rebut the State’s theory that Koch had run off the road. Further; at various times' during the trial, Koch’s attorney indicated that he had prepared a defense based' upon the State’s theory that Koch was in the emergency lane when she struck Sullivan. As in Taylor, we find Koch had notice of the basis for the negligence charged .in the indictment.

‘ ¶ 18. Koch also contends that the State entered her text messages-into evidence to prove texting and driving was the negligent act. The State counters that the text messages were introduced to prove Koch was intoxicated.' Koch had filed a motion in' limine to prohibit the admission of the text messages into evidence. The trial court granted' Koch’s motion in part by limiting the admission of the text messages and phone calls to those Koch made right before and right after the accident. During trial, Koch objected to the admission of the texts and phone calls, claiming that the State was attempting to prove she was negligent by texting and driving. The trial- court noted that this information 'had already been shown to the jury and, while the text messages and phone calls had “some probative value, ... [they did not] prove that she was on the phone or she was texting at the time the incident took place.” The trial court further stated, “I think the negligent act is being ... on the shoulder of the road, if there is a negligent act.... [The texting] is just a fact that is in front of the jury.'” We find no error by the trial court in allowing the text messages into evidence.

II. Jury Instructions

¶ 19. Koch next contends that the jury should have been instructed on the specific act of negligence. Koch argues that even if she was on notice regarding the negligent act, the jury was only generally instructed on negligence. On review of a challenge to a jury instruction, “[w]e will not find reversible error where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.” Ford v. State, 975 So.2d 859, 864 (¶ 11) (Miss. 2008) (citation omitted).

¶ 20. Instruction S-3 states:

The [c]ourt instructs the [j]ury that [n]egligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like or similar circumstances. Negligence may consist either in doing something that a reason-ablet,] careful person would not do under like or similar circumstances or in failing to do something that a reasonable[,] careful person would do under like or similar circumstances. Simple negligence is sufficient for a conviction of Driving Under the Influence Causing Death or Disfigurement.

We noted in Taylor that “simple negligence is enough to support a conviction under section 63-11-30(5).” Taylor, 94 So.3d at 314 (¶ 51) (citations omitted). And that “[s]imple negligence has been defined as the failure to exercise reasonable care under the circumstances.” Id. (citation and internal quotation marks omitted). Here, the jury was properly instructed on simple negligence. This issue is without merit.

III. Expert Testimony

¶ 21. Koch argues that the State’s expert witnesses should not have been allowed to give opinion testimony regarding Sullivan’s location on the road at the time of the accident. Expert testimony must be relevant and reliable. Galloway v. State, 122 So.3d 614, 632 (¶27) (Miss. 2013). “Expert testimony is relevant if it will ‘assist the trier of fact in understanding or determining a fact at issue.’ ” Id. (quoting Ross v. State, 954 So.2d 968, 996 (¶ 57) (Miss. 2007)). “Expert testimony is reliable if it is ‘based on methods and procedures of science,’ not ‘unsupported speculation.’ ” Id. (quoting Ross, 954 So.2d at 996 (¶ 57)). Under our modified Dau-bert standard, expert testimony should be admitted under Mississippi Rule of Evidence 702 if the witness is qualified and the witness’s testimony “assist[s] the trier of fact in determining or understanding a fact at issue.” Anderson v. State, 62 So.3d 927, 938 (¶ 32) (Miss. 2011). The admission of expert testimony is within the trial court’s discretion. Newell v. State, 176 So.3d 78, 80 (¶ 8) (Miss. Ct. App. 2014).

A. Accident-Reconstruction Experts

¶ 22. Koch argues that the State’s experts in accident reconstruction—Doucet and Davis—were not qualified because the cone-of-evidence theory is not based upon sound scientific principles. Specifically, Koch claims neither expert could state whether this method had been peer reviewed or published. As described by both experts, this theory was used to determine the area of impact based upon the location of the debris and, in this case, the location of the victim’s body. Prior to trial, Koch filed a motion to exclude both experts’ testimonies.

¶ 23. After a hearing on Koch’s motion, the trial court determined that Doueet, Davis, and Walton (Koch’s expert) were qualified as experts in accident reconstruction. The trial court noted that the training and education of all three experts was comparable, the experts had taken some of the same courses, and all three had extensive experience. The trial court stated that all three experts agreed that it was possible to determine the area of impact, but not the point of impact. We cannot find the trial court abused its discretion in allowing the State’s expert witnesses to testify regarding the area of impact.

B. Dr. LeVaughn

¶ 24. Koch contends that Dr. Le-Vaughn should not have been allowed to testify that Sullivan was standing on the shoulder of the road when he was struck. Koch argues this testimony was outside of Dr. LeVaughn’s area of expertise and not based on any medical principles. Dr. Le-Vaughn stated that Sullivan’s cause of death was multiple blunt-force injuries and those injuries were consistent with being struck from behind by a car while standing upright. During cross-examination, Koch asked if Dr. LeVaughn had an opinion on what Sullivan was doing prior to impact. Dr. LeVaughn responded, “Prior to impact, no, sir. I can just testily to the pattern of injuries that I saw.” Koch then asked if Dr. LeVaughn knew where Sullivan was standing at the time of impact, and he replied, “The pattern of injuries, combined with the patient and the vehicle, would indicate to me that he was at least off to the side of the road somewhat.” Koch then asked Dr. LeVaughn to explain his answer. Dr. LeVaughn stated, “Because the impact was on the passenger side of the vehicle, which is on the right side of the road. And the scene photographs showed that he was found in the grass off to the side of the road.”

¶25. On redirect, the State asked Dr. LeVaughn, “Would you deem that [Sullivan] was in the breakdown lane based upon what [you have] testified to?” Koch then objected, stating, “I think this is outside [Dr. LeVaughn’s] field of expertise.” The trial court responded, “You asked the question. I [am] going to allow a followup.” Dr. LeVaughn responded, “Again, from the pattern of injury and the photographs that I reviewed, I would think he was in the area of the breakdown lane.” Koch argues these statements by Dr. Le-Vaughn were not based upon any medical principles. Regardless of whether these statements by Dr. LeVaughn were outside his area of expertise, Koch opened the door during cross-examination by asking Dr. LeVaughn where Sullivan was standing at the time of impact. The trial court did not abuse its discretion in allowing the State to question Dr. LeVaughn about his statements during redirect. See Jackson v. State, 766 So.2d 795, 807 (¶ 37) (Miss. Ct. App. 2000). This issue is without merit.

IV. Clarification of Conviction and Sentence

¶26. Lastly, Koch contends that her case should be remanded for clarification. The record indicates that Koch was indicted on two counts of DUI but that the jury returned a general verdict of guilty without specifying which count it found her guilty of. The sentencing order does not specify which count Koch was convicted of, but it lists one conviction and one sentence.

¶27. However, according to Koch, the MDOC- website shows her guilty of two counts- of aggravated DUI and serving two separate sentences. Koch is correct that she cannot be convicted of two counts of aggravated DUI in this particular circumstance. See Kramm v. State, 949 So.2d 18, 23 (¶¶ 18-19) (Miss. 2007). The record is clear, though, that Koch was only convicted and sentenced on.one count of aggravated DUI. If. Koch has issues with her MDOC documentation, she can file a grievance with the MDOC.

¶28. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, OF CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE CAUSING DEATH OR DISFIGUREMENT AND' SENTENCE OF TWENTY-FIVE YEARS, WITH SEVEN YEARS SUSPENDED, EIGHTEEN YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND FIVE YEARS’ POSTRELEÁSE SUPERVISION, AND TO PAY $5,750 IN RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Miss. Code Ann. § 63-11-30(5) (Supp. 2016).

      . Id.

      .Section 63-11-30 has since been amended, and subsection (c) relating to BAC is now Mississippi Code Annotated section 63—11— 30(l)(d) (Supp. 2016).

      . There was no other evidence of this.

      . This lane is also referred to in the record as the breakdown lane or the shoulder.

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

      . Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

      . The jury properly followed the instructions as given. Instruction C-5A instructed the jury that if it were to find Koch guilty “in Count I or II, the form of your verdict shall be: 'We the jury find .,. Koch guilty of Felony Driving Under the Influence Causing Death or Disfigurement.’ ”


author: BARNES, J.,

text:
    Charles D. EASLEY, Appellant v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellee
    NO. 2015-SA-01011-COA
    Court of Appeals of Mississippi.
    01/17/2017
    Rehearing Denied May 23, 2017
    Certiorari Denied August 3, 2017

      JEFFREY CARTER SMITH, COURTNEY BRADFORD SMITH, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: JANE L. MAPP, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND ISHEE, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. Charles D. Easley, a former Mississippi Supreme Court justice, requested Public Employees’ Retirement System (PERS) benefits from 1986 through 2000 for work he performed as a court-appointed attorney in the Lowndes County Chancery Court. Following an administrative hearing before the PERS Board of Trustee’s Claims Committee, the Board denied the request for service credit, finding that Justice Easley was an independent contractor and no employee-employer relationship had been established. He filed an appeal with the Hinds County Circuit Court, First Judicial District, which affirmed the Board’s decision. Finding no abuse of discretion in the Board’s denial of PERS benefits, we affirm the judgment.'

FACTS AND PROCEDURAL HISTORY

¶ 2. From 1986 to 2000, Justice Easley served as a court-appointed attorney in Lowndes County Chancery Court, representing indigent respondents in commitment proceedings. The chancery court’s order appointing Justice Easley stated that he was “entitled to a monthly salary of $450.00 ... for services rendered to the Court and [his] respective indigent clients.” It was noted in the order that this amount had been approved by the Lowndes County Board of Supervisors. This document was the only evidence of his appointment. Justice Easley maintained a private law practice during this period, and the chancery clerk assigned him cases on an individual basis.

¶ 3. After Justice Easley left the Mississippi Supreme Court in 2008, he contacted PERS to inquire whether he was eligible for benefits during the period he served as a court-appointed attorney (1986 through 2000). PERS had no record of his service during that period and was unable to find any documentation from the Lowndes County Board of Supervisors that Justice Easley had been hired as a county employee. His earnings were reported on an Internal Revenue Service (IRS) Form 1099-MISC for the years 1986-1998. But for unexplained reasons, in 1999 and 2000, Lowndes County classified Justice Easley as a part-time employee “not working 80 or more hours per month,” and his earnings were reported on an IRS W-2 form for those two years. Although he admittedly received health-insurance benefits through Lowndes County, the evidence was inconclusive who paid the premiums. At the hearing, he testified that he was “not sure” if he had paid them. Regardless, none of Justice Easley’s Lowndes County earnings were ever reported to PERS, and he never contributed to the system.

¶ 4. In a letter dated June 17, 2009, the executive director of PERS informed Justice Easley that he was considered an independent contractor and, therefore, not eligible for benefits. Justice Easley appealed the decision to the Board, and a hearing was held on January 25, 2011. The Board subsequently determined that Justice Eas-ley was not eligible for PERS membership related to his appointment by the Lowndes County Chancery Court, and it denied his request for service credit for those years. The Hinds County Circuit Court affirmed the Board’s decision, and Justice Easley now appeals to this Court.

DISCUSSION

I. Whether PERS’s decision to deny benefits was arbitrary and capricious.

¶ 5. An administrative agency’s decision may not be overturned on appeal “unless the agency’s decision is not supported by substantial evidence, is arbitrary or capricious, is beyond the scope or power granted to the agency, or violates constitutional rights.” Vaughn v. Pub. Emps’ Ret. Sys. of Miss., 182 So.3d 433, 437 (¶ 4) (Miss. 2015) (citing Pub. Emps’ Ret. Sys. v. Porter, 763 So.2d 845, 847-48 (¶ 8) (Miss. 2000)). Furthermore, “[t]here is a rebutta-ble presumption in favor of a PERS ruling.” Pub. Emps’ Ret. Sys. v. Dishmon, 797 So.2d 888, 891 ¶ 9) (Miss. 2001) (citing Brinston v. Pub. Emps’ Ret. Sys., 706 So.2d 258, 259 (¶ 6) (Miss. Ct. App. 1998)). Neither an appellate nor a trial court is “entitled to substitute its own judgment for that of PERS, and it is impermissible for a reviewing court to re-weigh the facts of the case.” Id. (citing Miss. Pub. Serv. Comm’n v. Merchs. Truck Line Inc., 598 So.2d 778, 782 (Miss. 1992)).

¶ 6. As the circuit court noted in its order, Mississippi Code Annotated section 25-11-105 (a)(i) (Rev. 2010) provides:

All persons who become employees in the state service after January 31, 1953, and whose wages are subject to payroll taxes and are lawfully reported on IRS Form W-2, except those specifically excluded, or as to whom election is provided in Articles 1 and 3, shall become members of the retirement system as a condition of their employment.

The evidence showed that Justice Easley received a 1099-MISC IRS form from 1986 to 1998, and he was classified as a “vendor.” Although he did receive an IRS W-2 form in 1999 and 2000, there was nothing to indicate his duties or classification had changed. Lowndes County classified Justice Easley as a part-time employee “not-working 80 or more hours per month” for those two years. He admitted that he was “paid part time” at the hearing, and he only worked when he “g[ot] a call that somebody needs [to be] committed” and had no specific hours, but “was on call 24 hours a day.” Section 25-ll-105(g) provides that “[t]he [B]oard may, in its discretion, deny the right of membership in this system to any class of employees whose compensation is only partly paid by the state or who are occupying positions on a part-time or intermittent basis.” (Emphasis added).

¶7. The PERS statute simply defines an employee as “any person legally occupying a position in the state service, and shall include the employees of the retirement system created under this articled” Miss. Code Ann. § 25-11-103(0 (Supp. 2016). Our court has held: “In determining whether an individual is an employee or an independent contractor, the central issue is ‘whether the employer has the right to exercise control over the work of the employee.’ ” Miss. Dep’t of Emp’t Sec. v. Harbin, 11 So.3d 137, 140 (¶ 7) (Miss. Ct. App. 2009) (quoting Estate of Dulaney v. Miss. Emp’t Sec. Comm’n, 805 So.2d 643, 646 (¶ 13) (Miss. Ct. App. 2002)). Thus, “[a]n independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Chisolm v. Miss. Dep’t of Transp., 942 So.2d 136, 141 (¶ 7) (Miss. 2006). As the chancery court’s order stated, Justice Easley was “entitled” to a small monthly salary from Lowndes County, and the record reflects he also received health and dental insurance through the county. However, similar to a court-appointed-public defender, the chancery court assigned Justice Easley cases on an as-needed basis; he did not have any regular work hours or an office at the courthouse. Lowndes County did not have control over Justice Easley’s day-to-day work, and' it was undisputed that he maintained a private law practice during this period.

¶8. As there was substantial evidence presented that supports the Board’s denial of benefits, we find its decision to deny benefits was not arbitrary or capricious.

II. Whether PERS exceeded its authority, and violated Justice Easley’s constitutional rights, by restricting the powers of the chancery court.

¶ 9. Justice Easley argues that PERS’s ruling exceeds its authority, as the ruling effectively limits or restricts the chancery court’s authority to appoint representation in commitment proceedings. Under Mississippi Code Annotated section 41-21-67 (Supp. 2016), the chancery court is authorized to appoint an attorney to represent-a respondent who does not have the services of an attorney in a commitment proceeding.

' ¶ 10. The Board did comment in its findings, that while the statute “contemplates the appointment of indigent counsel on a case-by-case basis, ... there appears to be no specific authorization for the practice of appointing indigent counsel for a period of years.” However, the Board did not make any findings that the chancery court’s authority to appoint indigent counsel in commitment hearings was unauthorized or restricted. Rather, analogizing his appointment to that of a court-appointed public defender, the Board merely concluded that such an appointment did not constitute an employee-employer relationship qualifying Justice Easley for benefits.

¶11. Accordingly, we find no merit to this argument.

III. Whether the attorney general’s role in this case was improper and violated Justice Easley’s right to due process.

¶ 12. A representative from the state’s attorney general’s office was the hearing officer in this case. Justice Easley contends that the attorney general’s office should not have been allowed “to investigate, prosecute, and act in a judicial or quasi-judicial capacity.” In Public Employ ees’ Retirement System v. Stamps, 898 So.2d 664, 677 (¶ 50) (Miss. 2005), the Mississippi Supreme Court held: “The presumption exists that hearing officers act with fairness and honesty.” (Citing Harrison Cty. Sch. Bd. v. Morreale, 538 So.2d 1196, 1202 (Miss. 1989)). “[T]o overcome this presumption, there must be a showing of personal or financial interest on the part of the hearing officer, or evidence of misconduct.” Id. at 677-78 (¶ 50) (citing Dampier v. Lawrence Cty. Sch. Dist., 344 So.2d 130, 132-33 (Miss. 1977)). Justice Easley has offered no details as to how the participation of the attorney general’s office at the hearing resulted in bias or partiality in the adjudication of the proceedings. He summarily argues that the attorney general may not “sit in a judiciary capacity for an administrative agency,” and “[tjhere was no semblance of fairness where PERS was acting as investigative and judicial bodies in the same circumstance.”

¶ 13. However, the supreme court “has rejected the proposition that administrative agencies cannot perform both investigative and adjudicative functions.” Id. at 678 (¶50) (quoting Freeman v. Pub. Emps’ Ret. Sys. of Miss., 822 So.2d 274, 281 (¶ 22) (Miss. 2002)). “The combination in the same individual of nonadjudicative functions does not violate due process, provided the claimant’s due process rights to a fair hearing before an impartial adjudicator are otherwise protected.” Id. Additionally, in reference to an assistant attorney general being a hearing officer, the supreme court has specifically noted that the office “affords counsel to state agencies[,] and ... [the supreme court] see[s] no conflict or suggestion of unfairness in this arrangement.” United Cement Co. v. Safe Air for the Env’t Inc., 558 So.2d 840, 842 (Miss. 1990) (citing Frazier v. State ex rel. Pittman, 504 So.2d 675, 691 (Miss. 1987)). Examining the record, we find no bias indicated in the hearing officer’s actions in this case, and there is no basis for Justice Easley’s claim.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Justice Easley served as an associate justice on the Mississippi Supreme Court from 2000 to 2008.


author: FAIR, J.,

text:
    Suzann (Savage) DAVIS, Appellant v. Charles Gregory DAVIS, Appellee
    NO. 2015-CA-01810-COA
    Court of Appeals of Mississippi.
    01/24/2017
    Rehearing Denied May 9, 2017
    Certiorari Denied August 3, 2017

      JERRY WESLEY HISAW, SOUTHA-VEN, MW. ZUMMACH, WALLS, ATTORNEYS FOR APPELLANT
    A.E. (RUSTY) HARLOW JR., GRENADA, DALANEY LEE MECHAM, KATHI CRESTMAN WILSON, GRENADA, ATTORNEYS FOR APPELLEE
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Suzann and Greg Davis were divorced on June 10, 2011, on the ground of irreconcilable differences. They entered into a property, child-support, and child-custody agreement, with Suzann retaining physical custody of all three children. Su-zann did not request Greg pay child support. The judgment was later modified by agreement on November 14, 2012, and July 16, 2013, after Suzann moved from Southaven, Mississippi, to South Carolina. Both judgments were consent orders approved by the chancellor.

¶ 2. In the 2012 judgment, both parties agreed that Greg would pay $1,850 a month in child support. The 2013 judgment awarded custody of Greg and Suzann’s middle child to Greg, with the other two children remaining with Suzann. Visitation was modified and set out in detail. Monthly child support payable from Greg to Suzann was set at $1,000 per month, to increase automatically to $1,750 should the middle child move in with her mother and become enrolled as a full-time student (which did not occur). Specifically included in the order was their agreement that “[t]he payment of said child support shall constitute [Greg’s] only obligation for support of the children to [Suzann].” The children’s medical expenses—not paid by insurance and maintained by Greg—were to continue to be Greg’s obligation, but any expenses not covered by insurance because they were “out of network” would be shared equally. Greg would refinance or sell the former marital home, to be quitclaimed to him by Suzann, within ninety days.

¶ 3. In 2014, Greg was convicted of criminal charges of making a false representation with the intent to defraud the government and embezzlement, A couple of weeks later, Suzann filed for further modification of physical custody and for contempt on Greg’s part for missing required payments, including monthly alimony payments, which he had not paid for a year. Greg answered and sought modification of child support based on the expected emancipation of the oldest child or, in the alternative, based on the fact that she refused to have any relationship with him.

¶ 4. On October 12, 2015, the chancellor entered an order denying all relief sought by Suzann. The chancellor found that a $30,000 payment made by Greg to Suzann right after the original divorce was entered had satisfied the $27,600 due for unpaid monthly lump-sum alimony payments of $2,300 for the twelve months prior to entry of the order. The remaining sum of $2,400 would reduce the total balance due, but not take the place of the upcoming payment (the original divorce property settlement contained provision for payment of $313,200 as lump-sum alimony payable in installments of $2,300 per month). The order recited that any future payments to Suzann not otherwise provided for, such as medical and/or college expenses, would be credited to the end of the lump-sum alimony term. Monthly payment of $2,300 remained an obligation of Greg. “For clarification purposes” the chancellor specifically found that Greg was not relieved of half the children’s college and medical expenses.

¶ 5. In recalculating Greg’s payments under Mississippi Code Annotated section 43-19-101 (Rev. 2015), the chancellor found that his child-support obligation for the two children living with Suzann was $1,196 a month—twenty percent of Greg’s monthly income. The chancellor then ordered Suzann to pay support for her child still living with Greg in the amount of $632—fourteen percent of her monthly income. Offsetting the payments, Greg’s obligation for child support was reduced to $664 per month. Finally, it was provided that child support would be modified upon the oldest child becoming emancipated.

¶ 6. From that order and opinion Suzann appeals, asserting that the chancellor erred: (1) in modifying support, there having been no material change in Greg’s circumstances since child support was reviewed and included in the agreed modification judgment of July 2013; and (2) in failing to order that Greg pay attorney’s fees and expenses for his contempt,

STANDARD OF REVIEW

¶7. -The standard of review in domestic-relations cases is limited. In re Dissolution of Marriage of Wood, 35 So.3d 507, 512 (¶ 8) (Miss. 2010). A chancellor’s factual findings will not be disturbed unless manifestly wrong or clearly erroneous, or an erroneous legal standard was applied. Carambat v. Carambat, 72 So.3d 505, 510-11 (¶ 24) (Miss. 2011). As long as substantial evidence supports the chancellor’s findings, ah appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss. 2010). Questions of law, however, are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss. 2011).

DISCUSSION

1. Reduction of Support

¶ 8. The Mississippi Supreme Court has stated the requirements for modifying a child-support agreement: “[T]he burden of proof that must be met by the party seeking a financial modification is to show a material change of circumstances of one or more of the interested parties, whether it be the father, mother, or the children) .... ” Wallace v. Bond, 745 So.2d 844, 848 (¶ 18) (Miss. 1999) (citing McEachern v. McEachern, 605 So.2d 809, 813 (Miss. 1992)). The change must occur as a result of after-arising circumstances of the parties not reasonably anticipated at the time of the agreement. Corkern v. Corkern, 58 So.3d 1229, 1232 (¶ 13) (Miss. Ct. App. 2011). This burden is not met by a showing of reduced income if that income was voluntarily reduced. Ballard v. Ballard, 843 So.2d 76, 79 (¶ 8) (Miss. Ct. App. 2003) (citing Lahmann v. Hallmon, 722 So.2d 614, 622 (¶ 28) (Miss. 1998)).

¶ 9. Suzann argues that the chancellor erred in lowering Greg’s child support. She relies heavily on the fact that Greg’s income and expenses at the time the chancellor ruled were the exact amounts he set out in his Uniform Chancery Court Rule 8.05 financial statement at the time of the July 2013 modification order.

¶ 10, The child support approved in 2013, at the request of both parties, was $1,000—an amount lower than provided by the 'section 43-19-101 guidelines. So, in actuality, the chancellor increased Greg’s child-support obligation by $196 (to conform- with statutory guidelines), but that figure was offset by the chancellor’s decision to order Suzann to pay Greg child support for their one child living with Greg. Whén parents, are given custody of separate children, a chancellor may require the parent with the higher income to pay only the difference in the child support that each custodial parent owes to the other. Reid v. Reid, 998 So.2d 1032, 1035 (¶¶ 17-18) (Miss. Ct. App. 2008).

¶ 11. The chancellor found Greg’s criminal convictions in 2014 to be a substantial and material change in circumstances:

[At the time of the 2013 order, Greg’s] only income was from his state retirement ... [and he agreed] to pay more child support than just what it would have figured based on his retirement income because he did have a couple of jobs lined up that he was confident he was going to get. So there has been a substantial and material change in circumstances because[] he, since then, has become a convicted felon; he does not have that income.

¶ 12. As shown in the record, Greg testified that he was a convicted felon and was having trouble finding employment. The chancellor based her finding on the fact that Greg only agreed to pay $1,000 a month because he thought he would have other income besides his state retirement. After review, we find no abuse of discretion in the chancellor’s modification of child support under section 43-19-101.

¶ 13. Suzann also argues that the chancellor erred in including lump-sum alimony as part of her income when calculating her child-support obligation, because lump-sum alimony is not the type of alimony contemplated in the statute. She points to Neville v. Neville, 734 So.2d 352 (Miss. Ct. App. 1999), and Dickerson v. Dickerson, 34 So.3d 637 (Miss. Ct. App. 2010), to support her argument. In Neville, this Court held that lump-sum alimony payable in installments is not “ ‘alimony5 necessarily includable” when calculating a parent’s adjusted gross income. Neville, 734 So.2d at 359 (¶31). In Dickerson, this Court simply detailed the connection between lump-sum alimony and the division of property. Dickerson, 34 So.3d at 645 (¶ 32). Neither of these cases prohibits a chancellor from considering lump-sum alimony as income under section 43-19-101(3)(a). Thus, we find that a chancellor retains the discretion to classify lump-sum alimony as income when calculating child support. We find no abuse of discretion in the present case.

2. Contempt and Attorney’s Fees for Failure to Pay Alimony

¶ 14. Civil contempt is a vehicle used to enforce or coerce obedience to a court’s order. Lahmann, 722 So.2d at 620 (¶ 19). Contempt matters are committed to the substantial discretion of the chancellor. Id. (citing Shelton v. Shelton, 653 So.2d 283, 286 (Miss. 1995)). A case for contempt is based on prima facie evidence of failure to comply with a court order. Newell v. Hinton, 556 So.2d 1037, 1039 (Miss. 1990); McCardle v. McCardle, 862 So.2d 1290, 1293 (¶ 11) (Miss. Ct. App. 2004).

¶ 15. Greg had paid $30,000 to Su-zann when he sold their former marital home, which he had been awarded in the divorce. The chancellor found that payment sufficient to cover all the unpaid alimony. But she cautioned that any future lump-sum payments made to Suzann would not negate his obligation on the front end. The chancellor also warned Greg that he was required to make his monthly alimony payments on time.

¶ 16. The chancellor found that Greg was never in default because he had tendered a payment to Suzann greater than the amount owed at the time of the hearing. We find the chancellor was within her discretion to deny Suzann’s request for contempt.

CONCLUSION

¶ 17. We find no error in the chancellor’s modification of child support or denial of Suzann’s - petition. Thus, we affirm the judgment of the chancellor.

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

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

      . Section 43—19—101(3)(a) provides that alimony is a potential source of income that may be considered when determining a parent's adjusted gross income,