author: GRIFFIS, J.,

text:
    TIPPAH COUNTY, Mississippi, Appellant, v. Joyce CHILDERS, as Guardian of Daniel Childers and Daniel Childers, Individually, Appellees.
    No. 2007-CA-01843-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2009.
    Rehearing Denied Aug. 11, 2009.
    Certiorari Denied Nov. 19, 2009.

      B. Sean Akins, Ripley, Attorney for Appellant.
    Justin Strauss Cluck, Kent E. Smith, Holly Springs, Attorneys for Appellees.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Daniel Childers filed suit in the Circuit Court of Tippah County for negligence and gross negligence. After holding a writ of inquiry, the circuit court entered a default judgment in favor of Childers in the amount of $250,000. Tippah County filed a motion to set aside the default judgment, and the circuit court denied the motion. On appeal, Tippah County argues that the circuit judge erred when he denied its motion to set aside the default judgment. We find no merit to Tippah County’s argument, and we affirm.

FACTS

¶ 2. On January 30, 2006, Doris Moffitt, Childers’s aunt, instituted proceedings to have Childers committed for a mental evaluation and treatment. The Chancery Clerk of Tippah County issued a writ ordering the Tippah County Sheriffs Department to take Childers into custody until he could be properly examined.

¶ 3. After the writ was issued, Deputies Tommy Garrett and Tim Wilbanks went to Childers’s home to take him into custody. The deputies found Childers behind the house and ordered Childers to put his hands on the house. Childers turned around and began to go toward the house. It is disputed whether Childers ran or simply walked toward the house. Deputy Garrett deployed his tazer, and Childers fell to the ground. According to both officer’s affidavits, Childers told them to be careful when they handcuffed him because he had a previous injury to his arm. Subsequently, Childers received medical treatment because he severely injured his elbow when he fell. During Childers’s subsequent commitment hearing, Childers was ordered to undergo treatment for his mental condition.

¶ 4. On December 20, 2006, Childers sent Tippah County a notice of claim pursuant to the Mississippi Tort Claims Act. On March 7, 2007, Tippah County denied Childers’s claim. On April 4, 2007, Child-ers served the summons and process on the Chancery Clerk of Tippah County. The Tippah County Circuit Clerk’s office executed an entry of default on May 18, 2007. On May 25, 2007, Childers filed his motion for default judgment. The circuit court entered a default judgment after conducting a writ of inquiry on August 16, 2007, which was nearly three months after the entry of default.

ANALYSIS

¶ 5. The standard of review for a circuit court’s denial of a motion to set aside a default judgment is an abuse of discretion standard. McCain v. Dauzat, 791 So.2d 839, 842(¶ 5) (Miss.2001). The circuit court’s “discretion must be exercised in accordance with the provisions of Rules 55(c) and 60(b) of the Mississippi Rules of Civil Procedure as well as the supplementary criteria given validity in the decisions of this Court.” Guar. Nat’l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987).

¶ 6. In order to assist trial judges, the Mississippi Supreme Court has articulated a three-prong test for trial judges to use when they are analyzing a motion to set aside a default judgment under Mississippi Rule of Civil Procedure 60(b). McCain, 791 So.2d at 843(¶ 10). Under this test, the trial judge must consider: “(1) the nature and legitimacy of the defendant’s reasons for his default ..., (2) whether the defendant in fact has a color-able defense to the merits of the claim, and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default is set aside.” Id. (citation omitted). The supreme court has described this test as “a balancing of the equities.” Id.

I. Did the circuit court err when it found that Tippah County did not have a legitimate excuse for its neglect?

¶ 7. In the motion to set aside default judgment, Tippah County alleged that:

The Defendant would show that the Defendant properly forwarded the Complaint to its agent, Ripley Insurance Agency, which scanned the complaint into their system but failed to forward the Complaint on to Zurich Insurance for defense.
The Defendant would further show that B. Sean Akins, the Attorney for the Tippah County Board of Supervisors, who forwarded the Complaint to Ripley Insurance Company did not follow up with them because his father was hospitalized in Baptist Memorial Hospital and North Mississippi Medical Center during this time period. His father died on May 15, 2007.

Hence, to establish excusable neglect, Tip-pah County argues that the actions of its insurance agent or its attorney are separate bases to establish excusable neglect.

¶ 8. The first excuse offered by Tippah County for its neglect is that its insurance agent failed to forward a copy of the summons and complaint to its insurance carrier. Thus, no answer was filed on its behalf. The malfeasance of a party’s insurance company is not the focus for the determination of excusable neglect under the three-prong balancing test. H & W Transfer and Cartage Serv., Inc. v. Griffin, 511 So.2d 895, 899 (Miss.1987).

¶ 9. In Griffin, the supreme court held: H & W forwarded the summons and complaint to its insurance agent immediately upon receipt. This is what a prudent defendant should do. Imprudently, however, H & W thereafter did nothing, made no follow-up inquiry, and for all practical purposes let the matter drop until some five months later when it found out about the default judgment. ... In sum, though the initial steps of both H & W and Midland were reasonable and prudent, each thereafter dropped the ball. Because H & W is the party defendant, however, we concentrate upon its conduct and consider that in and of itself H & W’s “story” does not amount to good cause.

Id at 899. Accordingly, it is not the conduct of the insurance agent or company that we must consider to establish excusable neglect. Hence, Tippah County’s first argument has no merit.

¶ 10. Tippah County’s second argument is that Tippah County’s attorney could not follow-up on the complaint due to his father’s terminal illness and subsequent death. This argument is made in the motion, but it is not elaborated on in the attorney’s affidavit, which was considered by the circuit court at the hearing. In his rebuttal argument, counsel stated:

[ultimately it is the county’s responsibility to make sure that the lawsuit is responded to. I hesitate to mention, but I put it in my pleadings that my father passed away in May of this year [2007], and to the extent that I should have followed up and didn’t because of other things going on, if that’s my fault, that’s my fault; but regardless, in the end it was the county’s responsibility that an answer was filed....

The circuit judge’s order does not address this argument.

¶ 11. Childers responds that an attorney’s incompetence is not excusable neglect. Furthermore, Childers points out that process was served on April 4, 2007, Tippah County’s answer was due on May 4, 2007, and the attorney’s father died on May 15, 2007. While this Court has sympathy for the passing of an attorney’s parent and may have found it sufficient to establish excusable neglect, it is not this Court’s discretion that is to be reviewed; instead, we must consider whether the circuit judge abused Ms discretion in not finding it to constitute excusable neglect.

¶ 12. Here, like in Griffin, Tippah County dropped the ball after it was properly served with process and delivered a copy of the summons and complaint to its insurance agent. Tippah County was the named defendant in the complaint, and it was Tippah County’s responsibility to make sure that an answer was filed.

¶ 13. The Mississippi Supreme Court has held that: “Incompetence or ignorance on the part of a party’s attorney does not give rise to Rule 60(b)(2) relief.” Stringfellow v. Stringfellow, 451 So.2d 219, 222 (Miss.1984). While we do not consider Tippah County’s attorney’s actions in this case to rise to the level of incompetence or ignorance, we do find that Tippah County had a duty to file the answer or request an extension of time. If Tippah County had assigned this duty to its attorney, even if his father was ill, Tippah County’s attorney was required to arrange for another attorney in his firm to manage his affairs while he was unable to complete his legal responsibilities. To support the circuit judge’s conclusion, however, we note that there is nothing in the attorney’s affidavit to explain why another attorney in his firm was unable to assist until he was able to resume his practice. Regardless, such failure on behalf of Tippah County’s attorney does not give rise to Mississippi Rule of Civil Procedure 60(b)(2) relief. Id. Here, we find that the circuit judge did not abuse his discretion, and we find no merit to this issue.

¶ 14. On appeal, Tippah County adds another argument. Tippah County contends that Childers should have given its attorney three days’ notice before the hearing on Childers’s motion for a default judgment. Tippah County argues that its attorney had made an appearance in this case because he signed the written denial of Childers’s notice of claim. Childers argues that Tippah County’s denial of his notice of claim cannot be considered an appearance in this case because no complaint had been filed when he received this letter.

¶ 15. Mississippi Rule of Civil Procedure 55(b) states: “If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing....” We find no authority for the proposition that a denial of a notice of claim under the Mississippi Tort Claims Act constitutes an appearance under Mississippi Rule of Civil Procedure 55(b), where the denial precedes the institution of the lawsuit. Accordingly, we find no merit to this argument.

II. Did the circuit court err by finding that Tippah County did not have a cobrable defense?

¶ 16. Tippah County argues that the circuit judge erred when he found that it did not have a colorable defense. The supreme court has stated:

The most important prong is the determination of whether the defendant has a colorable defense to the merits of the claim. Here the law demands more than a mere wish and a prayer. In order to show a creditable defense in the present setting, a party must show facts, not conclusions, and must do so by affidavit or other sworn form of evidence. Capital One Servs. v. Rawls, 904 So.2d 1010, 1016(¶ 19) (Miss.2004) (internal citations and quotations omitted). On appeal, Tippah County only asserts that it had the colorable defense of sovereign immunity. However, Tippah County did not assert sovereign immunity as a defense in its motion to set aside default judgment or the hearing on the motion.

¶ 17. Childers argues that Tippah County waived any argument that it had a colorable defense under the Mississippi Tort Claims Act. After thoroughly examining the record, we agree with Childers and find that Tippah County did not present its argument regarding sovereign immunity as a colorable defense to the circuit judge. “[W]e need not consider matters raised for the first time on appeal, which practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review.” Alexander v. Daniel, 904 So.2d 172, 183(¶ 26) (Miss.2005). Thus, Tippah County’s sovereign immunity argument is procedurally barred.

III. Will Childers suffer prejudice if his default judgment is set aside?

¶ 18. In his order, the circuit judge found:

[Childers’s] mother, an alleged material witness to [Childers’s] altercation with the deputies is advanced in age, and in very poor health. The docket of Tippah County is such that a trial on the merits of this case would probably be delayed until at least the later part of 2008, or early 2009. Therefore, the Court finds that [Childers] would suffer substantial prejudice if the county’s Motion was granted.

During the hearing on this matter, Child-ers’s mother was unable to testify because she could not climb the stairs in the courthouse. Furthermore, she suffered from diabetes and periodic strokes. Tippah County argues that Childers will not suffer prejudice if he loses his only corroborating witness because Childers may rely on his own testimony. Childers argues that he would be prejudiced without the testimony of his mother because a jury is less likely to believe someone who has been committed for treatment of a mental disease.

¶ 19. The supreme court, while discussing a plaintiff similarly situated to Child-ers, stated:

Even if the judgment had been vacated at that time and [the plaintiff] given the earliest possible trial setting, the trial would still have occurred more than one year following the original February 6, 1985, setting. It requires no great insight to know that a year’s postponement of a trial which will turn on witnesses’ memories regarding a split second event — a motor vehicle accident — will often substantially prejudice one or both of the parties in terms of the common human phenomenon of loss of memory of specific events over time, not to mention the fact that the injured plaintiff is without a resolution to her claim for that period of time.

Pittman, 501 So.2d at 388. Like the plaintiff in Pittman, Childers would not have been able to try his case until well over a year after the circuit judge would have set aside Childers’s default judgment. Furthermore, unlike Pittman, Childers’s witness would most likely suffer extreme memory loss from her strokes or be deceased at the time of the trial. We also find that Childers’s mental deficiency means that he would suffer even more prejudice than the plaintiff in Pittman because his testimony would most likely require corroboration in order for a jury to find for him.

CONCLUSION

¶ 20. The standard of review for a circuit court’s denial of a motion to set aside a default judgment is abuse of discretion. McCain, 791 So.2d at 842(¶ 5). Here, we must consider whether the circuit judge abused his discretion when he applied the McCain balancing test. Id. at 848(¶ 10). The circuit judge determined that each and every factor weighs in favor of Child-ers. We cannot say that this was an abuse of discretion. Accordingly, we affirm the judgment of the circuit court.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF TIPPAH COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Whitzey Santaiz WALKER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01869-COA.
    Court of Appeals of Mississippi.
    April 7, 2009.
    Rehearing Denied Sept. 8, 2009.
    Certiorari Denied Nov. 19, 2009.

      Leslie S. Lee, Jackson, Erin Elizabeth Pridgen, Frank J. Campbell, Vicksburg, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Whitzey Santaiz Walker appeals his conviction in the Warren County Circuit Court of burglary of a dwelling and sentence as a habitual offender of twenty-five years in the Mississippi Department of Corrections. Walker argues that the evidence presented at trial was insufficient to support the jury’s guilty verdict, particularly that the evidence could not support a finding that he entered the dwelling with the intent to commit assault inside. Finding no error, we affirm.

FACTS

¶ 2. Melissa Lyons testified that on the night of July 16, 2006, she and her husband were asleep in the bedroom of their home when she was awakened by the barking of her dog, which also slept in the master bedroom. Melissa then heard “banging” on the front porch area of her home, but she could not identify whether it came from the door, the window, or the porch. On direct examination by the State, she elaborated as follows:

Q. Tell me what happened that night.
A. It was about 11:00. I was almost asleep and the dog started growling and making this noise. I heard all this bumping going on the front porch. My bedroom, my master bedroom is behind my living room. So I came across — my children live next door — in a trailer next door. And I thought something was wrong. I have two labs. I thought they may have run an armadillo up in [sic] my porch before running against the door. I didn’t know what it was. I just jumped up. And then the dog was acting up. Went to the door. And like an idiot, I opened it completely opened, just like that (Indicating).
Q. What did you see?
A. And I saw that fellow over there (Indicating).
BY MR. BONNER: Your Honor, we would like for the record to reflect that she’s identified the defendant, Mr. Walker.
BY THE COURT: The record will so reflect.
(THE WITNESS IDENTIFIED THE DEFENDANT.)
A. He was standing at my front porch. Here’s my door when you open the door. I have two windows here. My porch goes out this way. And I had two big chairs right here (Indicating). Well, he was pulling this chair back. He was messing with this window, my further window (Indicating). He was about ten feet from me. He, you know, raised up and looked at me. He said something about my house. Coming in my house or something about my house. I thought he said: “I’m coming in your house.” And I said: “Oh, hell, no.” And I slammed that door. He ran toward me. I’m fairly good size. I pushed — and I was scared to death. I pushed the door shut, locked it and started screaming for my husband, who I thought was asleep. I took two steps from that door, I took maybe two, maybe three steps. I had this little table here at the time. I had a little table that I did my little craft work on close to the window. He came through that window, just I don’t know how he did it. He came down, and he stood up. And he was coming across to me, and he must have been three feet from me—
Q. Let me stop you. Was the window opened?
A. No. No. The window was not opened. The window was not opened. Let me get, kind of—
Q. Get your bearings.
A. Yeah. When I was walking, I was yelling for my husband, and I was trying to run. And he came through that window. We got new windows. Okay. You pull them out. You can clean them, and you can push them back in. Don’t buy those kind. He hit that window, and came though it, and he stood up. And he was coming across the room toward me. He had his hands up. And all I know is if my husband would not have been there, I would be gone. Really — It was the scariest thing I’ve ever seen.
Q. Tell me what happened.
A. I screamed. I think I said: “Sherwood, you better get in here.” You know, I was screaming it over and over.
Q. Who’s Sherwood?
A. Sherwood is my husband. I said: “Get in here. Get in here,” you know. Before I got too far, he was right on me. And I said: “Get out of my house. Get out of my house.” I had my hands up.
Q. You’re talking about two different he’s. You need to clarify for the record.
A. Sherwood was in the bedroom. I was yelling for him to come out. I couldn’t see him, because I was watching this one coming though, Mr. Walker (Indicating). You know, I had my eyes there, and I was like: “Get out of my house. Get out of my house.” And he was coming steady for me.
Q. Tell me what happened.
A. The next thing I see, Sherwood hits him with his hand, knocks him down, grabs a chair, and I’m like running around in circles. I’m like, looking for a phone, looking for a gun. I didn’t know what to do. I didn’t even cut the lights on. I was so upset. You know, Sherwood had him. They were wrestling. He had him with the chair. It was just awful. I ran to the phone. I grabbed a phone. Oh, they knocked over all the lighting, the tables. It was terrible. I got a phone and called 911. That was a big confusion, because they couldn’t find my house. It was just confusion. And they wrestled around on the floor awhile. I made it to the bedroom, got a gun, got a phone, ran outside to stop the officers. And finally, I think I talked to 911 twice maybe three times. We had to call each other back, because I had to stop what I was doing and find — get—• you know, find a gun, and you know, trying to help. I wasn’t very much help.

On cross-examination, Melissa also elaborated that:

Q. From the time he knocked on the door and you first saw him, until the time you slammed the door on him, how long are we talking about?
A. Seconds.
Q. Seconds. Seconds. When you slammed the door, was he still trying to say something to you?
A. Un-hnh (Indicating no). He was rushing me.
Q. Was he rushing you—
A. Rushing me. No, rushing. Bang. I slammed the door and held it against him and locked my door. I had to push my door shut.
Q. I understand.
A. I don’t think you do.
Q. Well, I mean, you pushed your door shut. It’s not—
A. No. The door is easy to open and shut. I had to push it against body weight. He was coming in my house.

Melissa also testified that, although she avoided injury, the front door jam was cracked during the confrontation.

¶ 3. On direct examination, Sherwood Lyons, Melissa’s husband, testified that:

Well, we had watched the late news, and we went to sleep. I was working shift work, and the little dog started barking and raising cane, right before midnight, 11:00 or something. And I was sound asleep, and I asked Melissa to go check and see what that pounding was. You know, somebody might have been — I thought the kids were coming in and out or something. And she went to the front door, and I heard her screaming, you know: “Hell, no.” And she started screaming: “Get here.” And when I jumped up out of the bed, and got to the door of my bedroom which was right outside the living room. The door from the living room goes into the bedroom. And I looked across there, and this guy had dove through our window and was climbing up like that going toward Melissa (indicating). And the room is about 24 foot long. It’s a pretty big room. He was probably about eight foot from the other wall, so — He was coming at Melissa. And Melissa’s legs go to rubbing when she gets real frightened, and she was telling him, to get back, get back. And he was rushing at her, and I ran over there, and knocked him down on the ground. I couldn’t even tell who he was or what. And, you know, put my foot on him and restrained him. Told Melissa to call 9 — screamed at her and told her to call 911. And she went in there, and I heard her call them and stuff. And it seemed like forever before the police got there, but you know, it probably wasn’t, but it seemed like it. And they finally came and cut the lights on, and you know, I couldn’t believe this guy was an older guy. I thought it was a kid, because there was [sic] kids been going up [and] down the road. And it was an older guy, and he broke in on us. You know, I’m glad the police came on and got there and stuff, and it was blood everywhere, where he dove through my widow. And I was worried about that.

John Elfer, a patrol officer with the Warren County Sheriffs Department, testified he responded to a possible burglary in progress. When he arrived at the Lyons-es’ home, he placed a man, later identified as Walker in custody. Officer Elfer elaborated:

Q. Did he give you any trouble?
A. He refused to comply with' our commands. He was told to turn over, place his hands behind his back. The normal operations that we go through to try to place someone in handcuffs. He was kicking. I don’t remember him saying anything. But we had to use force, myself and the other officer, to get the handcuffs on him, get him on his stomach. And then he wouldn’t stand up for us, we had to physically take him outside.

¶ 4. At the close of the State’s case-in-chief, Walker moved for a directed verdict, arguing that the State had failed to prove intent to commit assault within the Lyons-es’ home contemporaneous with Walker’s breaking and entering the dwelling. The trial court denied the motion, observing:

The jury determines whether or not there was intent to commit an assault. And if they do find that, that’s a jury question, then they can return a verdict of guilty on the issue of burglary because then you would have the two prongs of burglary completed. But that’s a jury question. It’s not for the Court to determine that. And that can only be determined through the facts of the case.
As I said before, it did not have to be an aggravated assault. It could have been a simple assault. And as you know, simple assault carries when someone makes a threatening gesture toward someone, and that person feels that they are in imminent danger to that person.
The Court must take as true all the statements given by Ms. Lyons. Now, the jury does not have to take that as true in their decision at the end of the case. But at this point in time, the Court must take as true all of the statements as to Ms. Lyons, as to what she felt, that she felt threatened, and what happened on that night.
Therefore, the Court finds that the Motion for Directed Verdict should fail because there are jury questions as to whether or not this was assault or intent to assault — not actual assault but the intent to assault. That’s a jury question.

¶ 5. In his defense, Walker testified that his mother had died shortly before the incident and that he and his wife “had a real bad argument.” Walker then left his home for four or five days, which he spent drinking and using cocaine. He testified that on the night of July 16, 2006, he was “just driving, crying and drunk” when his automobile was struck from behind and forced off the road by another vehicle. After extricating himself from his wrecked car, Walker walked to a brick home where he knocked on the door. He testified as follows:

So I knock on the door, boom, boom, boom, boom, boom, boom. So I ain’t expect — I didn’t know who would come to the door. So the lady, Ms. Lyons, she came to the door. I said: “Ma’am,” I said, “I had a car wreck.” I say [sic] “Somebody ran me off the road. I had a real bad car accident.” I said: ‘Would you call an ambulance and a tow service for me?” She said, “no.” She closed the door. I’m drunk. I’m high. I hadn’t been home. I haven’t had no [sic] sleep, zero sleep, at all for four days of straight drinking, no rest, no sleep, no nothing. So and I turned around. I turn around. I say, bam, my back was against a window. I don’t remember being in no [sic] house, and my legs was [sic] like this here outside, I mean, right there in the windowsill (Indicating). It was a brick windowsill, and right there in the windowsill, just like this here, like this here, laid out (Indicating). I passed completely out. I woke up two or three days later in the hospital, not knowing where I am [sic]. I didn’t know nothing. I don’t remember nothing [sic]. But waking up two to three days later.

Walker also produced his wife, Veronica Walker, who attested that her husband’s automobile had been wrecked. Veronica also stated that, following the incident, Walker had spent three to four days in the hospital.

¶ 6. The jury subsequently convicted Walker of burglary of a dwelling. After concluding a sentence-enhancement hearing, the trial court adjudicated Walker to be a habitual offender and sentenced him to serve twenty-five years in the MDOC, without eligibility for probation or parole. The trial court subsequently denied Walker’s motion for a judgment notwithstanding the verdict, and Walker timely appeals.

WHETHER THE EVIDENCE OF BURGLARY WAS SUFFICIENT.

¶ 7. The supreme court has stated that “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The supreme court cautioned, however, that:

this inquiry does not require a court to “ ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The supreme court continued:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient.

Id. (internal citations omitted).

¶ 8. Walker was charged with burglary of a dwelling, with the intent to assault the occupants of the home, pursuant to Mississippi Code Annotated section 97-17-23 (Supp.2008). Section 97-17-23(1) defines burglary of a dwelling as “breaking and entering the dwelling house ... of another ... with intent to commit some crime therein.” Likewise, assault is defined by Mississippi Code Annotated section 97-3-7(1) (Supp.2008), which provides in pertinent part that “[a] person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or ... (c) attempts by physical menace to put another in fear of imminent serious bodily harm.... ”

¶ 9. Burglary thus requires both an unlawful breaking and entering, as well as a contemporaneous intent to commit a crime therein, and the State is required to prove each element to sustain a conviction. Newbum v. State, 205 So.2d 260, 263 (Miss.1967). On appeal, Walker argues that the State failed to sufficiently prove he had the requisite intent to commit an assault at the time he entered the Lyonses’ home.

¶ 10. The supreme court has stated that “all the proof need not be direct and the jury may draw any reasonable inferences from all the evidence in the case.” Campbell v. State, 278 So.2d 420, 423 (Miss.1973). Thus, intent may be proven by circumstantial evidence. Stinson v. State, 375 So.2d 235, 236 (Miss.1979). Indeed, as the supreme court has stated: “If intent required definite and substantive proof, it would be almost impossible to convict, absent facts disclosing a culmination of the intent. The mind of an alleged offender, however, may be read from his acts, conduct, and inferences fairly deducible from all the circumstances.” Newbum, 205 So.2d at 265 (quoting 13 Am.Jur.2d Burglary § 52 (1964)).

¶ 11. The testimony most favorable to the prosecution was that following the confrontation on the Lyonses’ porch, Walker attempted to force his way through the front door. When Melissa succeeded in pushing the door closed and locking it, Walker crashed through a glass window and advanced briskly upon Melissa with his hands raised, in what was described as a threatening gesture. Viewing the evidence in a light most favorable to the prosecution, as we must, the evidence was sufficient for a reasonable jury to infer from these facts that Walker intended to assault Melissa inside her home at the time of the breaking and entering. This argument is without merit.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS A HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY.

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


author: IRVING, J.,

text:
    Robert ELLIS, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02178-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.
    Rehearing Denied Sept. 8, 2009.
    Certiorari Denied Nov. 12, 2009.

      Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Robert Ellis Jr. was convicted by the Lowndes County Circuit Court of possession of less than 0.1 gram of cocaine and sentenced as a habitual offender to eight years in the custody of the Mississippi Department of Corrections without the possibility of probation or parole. Aggrieved, Ellis appeals and asserts: (1) that the trial court erred in failing to suppress evidence in violation of his due process rights and Fourth Amendment rights, (2) that the trial court erred in allowing hearsay testimony of several witnesses, and (3) that evidence was admitted without the establishment of a proper foundation.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On May 4, 2006, Officer Ryan Woods, a Columbus, Mississippi police officer, called over the radio for assistance in apprehending a fleeing suspect. Officers Kelvin Lee, Wade Beard, and Oscar Lewis responded to the call. By the time the officers made it to the scene, Officer Woods had already detained the suspect, Ellis.

¶ 4. One of the officers noticed that Ellis had a plastic bag containing a white substance in his mouth and that Ellis began chewing it. Having worked in narcotics, the officers determined that it was highly probable that the bag in Ellis’s mouth contained some type of narcotic that he was trying to dispose of. As Ellis continued to chew on the bag, the officers noticed that a white substance appeared on the outer corner of his mouth, indicating to the officers that the bag was open and that the white substance, suspected of being cocaine, was getting into Ellis’s mouth. The officers’ suspicion was later confirmed by the crime lab, which determined that the white substance was cocaine.

¶ 5. In the attempt to prevent Ellis from ingesting “too much” of the cocaine, the officers used several methods to get him to spit the bag out. First, the officers tried pinching Ellis’s nose to prevent him from breathing. Second, the officers tried pressing Ellis’s cheeks and jaws. Third, the officers informed Ellis that he was in imminent danger, hoping that Ellis would be concerned for his health and would spit the bag out. When none of these methods worked, the officers used a Taser on Ellis. After the first use of the Taser, Ellis partially released the bag; however, when the officers released the Taser’s trigger, Ellis retracted the bag. At that point, the officers called for medical assistance. While they were waiting, they used the Taser on Ellis four additional times in one last attempt to get him to disgorge the bag of cocaine.

¶ 6. At trial, all of the officers testified that they were attempting to save Ellis’s life, as they were all aware that the ingestion of too much cocaine can be fatal. Also, at trial, the State offered a video recording of the incident. The video showed the officers constantly telling Ellis to spit the bag out and explaining that if he did not, he would die. The video also revealed that, as time passed, Ellis’s condition worsened until, by the end of the recording, he could barely stand on his own.

¶ 7. The ambulance driver testified that when she and her partner arrived at the scene, Ellis was having difficulty breathing, “as if he was choking on something.” The driver also testified that Ellis’s skin was clammy, his color was abnormal, he was sweating, and he had a rapid heartbeat. The driver further testified that Ellis’s symptoms were consistent with the first stages of a drug overdose. According to the driver, they placed Ellis on a stretcher and put him in the back of the ambulance. Officer Woods and the driver’s partner rode in the back of the ambulance with Ellis.

¶ 8. Shortly after the ambulance left for the hospital, the driver was asked by her partner to pull over. She did so and went to the back of the ambulance. When she opened the back door, she saw her partner using forceps to remove the bag from Ellis’s mouth. The driver testified that her partner had determined that the bag was blocking Ellis’s airway. The driver gave Officer Woods a biohazard bag to be utilized in preserving the bag that was removed from Ellis’s mouth. However, she testified that she did not see Officer Woods place the bag of cocaine in the biohazard bag, because she immediately returned to the driver’s seat and continued the drive to the hospital.

¶ 9. Officer Woods was unable to testify at trial because he had been called to active duty in Iraq. Therefore, there was no testimony as to what he did with the bag after it was given to him by the ambulance driver. However, Officer Brad Ray, a former narcotics officer with the Columbus Police Department, testified that he removed a bag bearing Officer Woods’s badge number, initials, and Ellis’s case number from the evidence vault and sent it to the crime lab for testing. Officer Ray further testified that it was departmental procedure to have the case number, complaint number, and the date of the incident on items that were placed in the evidence vault. Upon being shown the bag that was removed from the evidence vault by Officer Ray, all of the officers testified that it was, in fact, the bag that Ellis had in his mouth on the day of the incident. Also, the ambulance driver testified that the bag that was shown to her at trial appeared to have been the bag that her partner pulled from Ellis’s mouth while they were transporting him to the hospital.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. First, Ellis contends that the bag of cocaine that was removed from his mouth was removed in violation of his Fourth Amendment and due process rights and that the trial court erred in failing to suppress it. Ellis relies here, as he did in the trial court, on the “shocks the conscience” standard established in Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952) and argues that it should have been the standard used by the trial court. In Rochin, officers illegally broke into a defendant’s room and attempted to retrieve pills from the defendant’s mouth. Id. at 166, 72 S.Ct. 205. After they failed in their attempt, they handcuffed him and transported him to a hospital where the pills, containing morphine, were removed by a doctor who pumped his stomach without his consent. Id. The defendant was convicted by a California superior court of illegally possessing morphine. Id. The pills that were removed from his stomach were the primary evidence offered against him. Id. The defendant appealed, and the District Court of Appeal affirmed. Id. The Supreme Court of California denied certiorari. Id. at 167, 72 S.Ct. 205. Following a denial of review by the California Supreme Court, the United States Supreme Court granted cer-tiorari and suppressed the evidence, holding that the method utilized by law enforcement to obtain the evidence “shocks the conscience.” Id. at 172, 72 S.Ct. 205. However, the Supreme Court clarified that it was all of the actions taken by the police to obtain the evidence that “shocked the conscience.” Id. Specifically, the Court held that taken together, the “illegally breaking into the privacy of the [defendant], the struggle to open his mouth and remove what was there, and the forcible extraction of his stomach’s contents” amounted to a shocking of the conscience. Id.

¶ 11. As we explain below, Ellis’s reliance on Rochin is misplaced. He does not consider the totality of the circumstances surrounding the incident. Rather, he bases his argument solely on the method used to obtain the evidence.

¶ 12. The standard of review concerning a trial judge’s ruling on a motion to suppress evidence is well established:

When reviewing a trial court’s ruling on the admission of evidence, [an appellate court] must assess whether there was substantial credible evidence to support the trial court’s findings. The admission of the evidence lies within the discretion of the trial court and will be reversed only if that discretion is abused.

McLendon v. State, 945 So.2d 372, 879(¶ 14) (Miss.2006) (quoting Culp v. State, 933 So.2d 264, 274(¶26) (Miss.2005)).

¶ 13. Here, the trial court, in determining whether to grant or deny Ellis’s motion to suppress, reviewed the video recording. The trial judge found that the recording proved that the officers’ primary objective was to save Ellis’s life. Accordingly, the trial judge held that the facts in this case are distinguishable from those in Rochin. He noted that in Rochin, the police officers’ sole purpose for having Ro-chin’s stomach pumped was to preserve evidence. The trial judge further pointed out that in this case, Officer Woods did not retrieve the evidence bag from Ellis’s mouth, nor did he request the EMT to retrieve it; rather, the EMT retrieved it on his own volition.

¶ 14. We agree with the trial judge’s analysis of Rochin and find, as did the trial judge, that nothing about the officer’s action in this case “shocks the conscience.” Indeed, the action of the officers can only be described as admirable. Their quick decision to call for medical assistance may very well be the reason that Ellis is able to prosecute this appeal. This contention of error is without merit.

¶ 15. Next, Ellis contends that the trial court erred in allowing the officers to testify that Officer Woods informed them that he needed their assistance because Ellis was fleeing and would not stop for him. Ellis contends that this testimony was hearsay and was highly prejudicial.

¶ 16. While Ellis argues that the officers’ testimonies about his fleeing the scene left a bad impression on the jurors, we find that this specific testimony was simply offered to give the complete story of the incident and was not hearsay, as it was not offered to prove the truthfulness of the assertions. The testimonies arose as a result of the officers being questioned regarding the basis for their involvement in the ease. More importantly though, the reason behind the initial stop has no bearing on the elements of the crime. Therefore, this contention of error is also without merit.

¶ 17. Lastly, Ellis contends that the bag of cocaine was improperly admitted because the necessary chain of custody was not established. He argues that a break in the chain of custody occurred in the handling of the bag of cocaine after it was removed from his mouth. This argument is based on two facts: neither Officer Woods nor the EMT that was attending to Ellis in the back of the ambulance testified at trial, and the driver of the ambulance, who was the only other person that saw the bag of cocaine after it was removed, testified that she did not see what Officer Woods did with it.

¶ 18. With respect to the burden of proof that must be shouldered by the proponent of the admissibility of evidence subject to a chain-of-custody challenge, the Mississippi Supreme Court has stated:

[T]he proponent must satisfy the trial court that there is no reasonable inference of material tampering with or (deliberate or accidental) substitution of evidence. If there is a reasonable inference of tampering or substitution, the proponent’s proof is insufficient “to support a finding that the matter in question is what its proponent claims.” This is so because, in such a case, a fair-minded jury may not reasonably have found the fact beyond a reasonable doubt.

Butler v. State, 592 So.2d 983, 985 (Miss.1991) (internal citations omitted). An appellate court disregards chain-of-custody objections when there has been “properly predicated, direct identification testimony.” Id. at 985-86. In other words, a chain-of-custody issue exists only when “no witness makes a positive permissible identification of the object that it is what its proponent claims.” Id. at 985.

¶ 19. In our case there was no direct testimony establishing the transfer of the bag of cocaine from Officer Woods to the evidence vault of the police department. However, all of the officers and the ambulance driver identified the bag shown to them at trial as the bag that was removed from Ellis’s mouth. Officer Ray testified that he retrieved a bag from the evidence vault that bore Officer Woods’s initials, badge number, and Ellis’s case number and that this form of labeling was normal department procedure. Officer Ray took the bag to the crime lab for testing, and the crime lab identified the substance in the bag as cocaine.

¶ 20. Even though Officer Woods was not available to testify, there is little doubt that the State proved that the bag of cocaine which was removed from Ellis’s mouth was in fact the same bag of cocaine that was removed from the evidence vault by Officer Ray and tested by the crime lab. Therefore, the State’s proof was sufficient for the trial judge to find that there was no reasonable inference of tampering or substitution. Any break in the chain of custody goes to the weight of the evidence, not its admissibility. Fisher v. State, 481 So.2d 203, 225 (Miss.1985). This contention of error is also without merit.

¶ 21. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF LESS THAN 0.1 GRAM OF COCAINE AND SENTENCE AS A HABITUAL OFFENDER OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PROBATION OR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR.

      . According to the officers, they used the Ta-ser without the cartridge which contains probes that break the skin. The officers explained that the probes override all muscle control and incapacitate the suspect. When the Taser is used without the probes, the pain level is reduced to that of an electric shock, similar to the shock that emits from a cattle prod. The officers further explained that this type of use is less painful than using the Taser with the probes attached, as the pain lasts only as long as the Taser is firing and is in contact with the suspect.

      . The driver's partner did not testify at trial.

      . A forensic scientist at the crime lab confirmed that the bag contained cocaine.


text:
    Jeffery D. COOPER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-00865-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.
    Rehearing Denied Sept. 8, 2009.
    Certiorari Denied Nov. 12, 2009.

      Jeffery D. Cooper, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Jeffery D. Cooper appeals the dismissal of his motion for post-conviction collateral relief by the Circuit Court of Chickasaw County. Cooper asserts that: (1) the circuit court erred by reducing his charge from capital murder to murder without a separate indictment; (2) the circuit court sentenced him twice for armed robbery in violation of the Double Jeopardy Clause; and (3) he received ineffective assistance of counsel. We find no error and affirm.

FACTS

¶2. On June 29, 1993, Cooper was indicted for capital murder. The circuit court later entered an order reducing Cooper’s charge from capital murder to murder. On January 24,1994, Cooper pleaded guilty to murder. That same day, Cooper was arraigned upon information filed by the district attorney charging Cooper with armed robbery. Cooper waived indictment and pleaded guilty to armed robbery.

¶ 3. Cooper was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC) for the crime of murder. He was further sentenced to twenty years in the custody of the MDOC for the crime of armed robbery. Both sentences were ordered to run consecutively.

¶ 4. Cooper filed a motion for post-conviction collateral relief that was denied on August 12, 1996. The record shows that some years later, Cooper filed certain documents entitled “Application for Out of Time Appeal,” “Notice of Out of Time Appeal,” “Motion to Proceed on Appeal In Forma Pauperis,” and “Designation of Record on Appeal.” In an order entered on October 13, 2003, the circuit court denied the relief requested in these filings because of Cooper’s previous motion for post-conviction collateral relief that was denied on August 12,1996.

¶ 5. On January 18, 2007, Cooper filed a motion for post-conviction collateral relief. After a hearing, the circuit court dismissed the motion because it was filed subsequent to the three-year statute of limitations and because it was a successive writ. Cooper now appeals the dismissal of his motion.

STANDARD OF REVIEW

¶ 6. A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed absent a finding that the court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

Cooper’s motion is banned as untimely and as a successive writ.

¶ 7. The circuit court properly dismissed Cooper’s motion for post-conviction collateral relief as untimely and as a successive writ. Mississippi Code Annotated section 99-39-5(2) (Rev.2007) provides a prisoner three years in which to make a motion for post-conviction collateral relief. In cases of a guilty plea, the three-year statute of limitations begins to run “after entry of the judgment of conviction.” Id.

¶ 8. There are specific exceptions to this time limitation:

Excepted from this three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Id.

¶ 9. Cooper pleaded guilty to murder and armed robbery on January 24, 1994. The instant motion for post-conviction collateral relief was not filed until January 18, 2007-well after the three-year statute of limitations had expired. Further, Cooper has not shown that he meets any of the exceptions enumerated in section 99-39-5(2). Thus, the circuit court correctly dismissed the motion as time-barred.

¶ 10. Mississippi Code Annotated section 99-39-23(6) (Supp.2008) bars successive motions made under the Mississippi Uniform Post-Conviction Collateral Relief Act. There are also exceptions to this bar:

Excepted from this prohibition is a motion filed under Section 99-19-57(2), raising the issue of the offender’s supervening mental illness before the execution of a sentence of death.... Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States that would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

Id.

¶ 11. Here, Cooper’s first motion for post-conviction collateral relief was denied by the circuit court on August 12, 1996. Because he fails to show that he fits one of the exceptions listed in section 99-39-23(6), his subsequent motion is barred as a successive writ.

¶ 12. Cooper argues that the procedural bars should be waived by this Court because his fundamental rights are implicated. However, there is no merit to his claim that his fundamental rights have been violated. The record clearly shows that the circuit judge entered an agreed order reducing his charge from capital murder to murder. The circuit court did not sentence him twice for armed robbery — he received a life sentence for murder and a sentence of twenty years for armed robbery. Further, his claims of ineffective assistance of counsel stem from his erroneous allegations that he was never properly indicted and that he is serving an illegal sentence. Accordingly, the circuit court’s dismissal of Cooper’s motion for post-conviction collateral relief is affirmed.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF CHICKASAW COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CHICKASAW COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


text:
    David Wayne GADDY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-00343-COA.
    Court of Appeals of Mississippi.
    April 28, 2009.
    Rehearing Denied Sept. 15, 2009.
    Certiorari Denied Nov. 19, 2009.

      Harrison County Circuit Court David Wayne Gaddy (Pro Se), attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. David Wayne Gaddy pleaded guilty to voyeurism and touching a child for lustful purposes. He was sentenced in the Circuit Court of Harrison County to five years and fifteen years respectively to be served in the custody of the Mississippi Department of Corrections. The sentences were originally to be served consecutively, but they were later amended to run concurrently. Gaddy then filed a motion for post-conviction relief in the Harrison County Circuit Court. Finding no merit to any of his contentions, the trial court dismissed his motion. Aggrieved, he appeals the dismissal.

FACTS AND PROCEDURAL HISTORY

¶2. Gaddy was initially arrested on June 23, 2003, for the statutory rape of a twelve-year-old girl. During the investigation of the statutory rape, the victim informed investigators that Gaddy had also been engaging in sexual intercourse with his ten-year-old daughter. Gaddy was subsequently arrested and charged with touching a child for lustful purposes. After placing Gaddy under arrest, Gaddy’s daughter was taken to the police department to fill out the necessary paperwork. While at the police station, Gaddy’s daughter opened up to her grandmother and told her that Gaddy had been touching her inappropriately. The Mississippi Department of Human Services (DHS) was assigned to the case and subsequently interviewed Gaddy’s daughter. During this interview, Gaddy’s daughter gave the details of what transpired: she became frightened one night after watching horror movies, and she climbed into bed with her father and fell asleep; when she awoke that night, she found her father’s hands on her “privates.”

¶ 3. Gaddy was also indicted separately on voyeurism charges. From his plea colloquy, it is ascertained that on May 12, 2003, while placing boxes on top of a dressing room at a clothing store, he peered over the wall into an occupied dressing room. He was subsequently arrested for this offense.

¶ 4. On June 7, 2004, Gaddy pleaded guilty to the charges of touching a child for lustful purposes and to voyeurism. He was sentenced to fifteen years for touching for lustful purposes and to five years for voyeurism. The sentences were ordered to run consecutively. Gaddy then filed a motion to reconsider his sentences. The trial court granted his motion and amended his sentences to run concurrently. He then filed a motion for post-conviction relief in the Harrison County Circuit Court, which was dismissed. Aggrieved by the dismissal, he appeals the ruling.

DISCUSSION

I. WHETHER THE TRIAL JUDGE SHOULD HAVE RECUSED.

¶ 5. Harrison County Circuit Court Judge Stephen B. Simpson presided over Gaddy’s plea hearing and his post-conviction relief motion hearing. Gaddy argues that Judge Simpson should not have heard either one of these proceedings because he is the father of three daughters. We will address each proceeding separately.

¶ 6. The standard by which we determine if a judge should have disqualified himself is an objective standard under Canon 3(E) of the Code of Judicial Conduct. “A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990). “A presumption exists that the judge, sworn to administer impartial justice, is qualified and unbiased.” In re Blake, 912 So.2d 907, 917(¶ 35) (Miss.2005) (quoting McFarland v. State, 707 So.2d 166, 180(¶52) (Miss.1998)). “To overcome the presumption, the evidence must produce a ‘reasonable doubt’ (about the validity of the presumption)[.]” Buchanan v. Buchanan, 587 So.2d 892, 895 (Miss.1991) (quoting Turner v. State, 573 So.2d 657, 678 (Miss. 1990)). “When a judge is not disqualified under the constitutional or statutory provisions the decision is left up to each individual judge and is subject to review only in a case of manifest abuse of discretion.” Jones v. State, 841 So.2d 115, 135(¶60) (Miss.2003).

¶ 7. Gaddy argues that Judge Simpson should have recused himself from Gaddy’s plea hearing because he is the father of three daughters. Gaddy asserts that Judge Simpson was inflamed by the charges against him and did not act in a reasonable and objective manner.

¶ 8. Judge Simpson made the following comments at Gaddy’s plea hearing: “Some of these lawyers and these people in this courtroom who know me may speculate that my sentence is based on the fact that I have three young daughters.... ” Gaddy argues that this statement proves Judge Simpson was biased during his sentencing. However, directly after making the above comment, Judge Simpson went on to state that:

[The sentencing] is based on what I perceive to be a person standing before me that whether he can help himself or not is not the issue. The question is, do you pose a danger to young children, both your own — if you will do that to your own, you will certainly do it to mine or some other stranger’s.... [I am] compelled to remove you from this community and from the potential of endangering some other child, and that’s what I’m going to do.

¶ 9. The supreme court faced a similar argument in Green v. State, 631 So.2d 167 (Miss.1994). There, Green was convicted of manslaughter in a shooting death. Id. at 170. At the defendant’s sentencing, the trial judge made the following comments:

I’m one of the few people in the South perhaps that advocates strict handgun control. People like you don’t deserve the right to own a handgun.... I see dozens of [killings] a year that are committed by people who will poke a handgun in their pocket and walk out on the street knowing they’re going to kill somebody or they wouldn’t put it in there. You didn’t have that gun on for protection and you didn’t have that gun on headed for a pawn shop.... It was a senseless, useless, reckless killing.

Id. at 177. On appeal, the court found the appellant’s recusal argument to be merit-less. Id. at 178. The comments were not “personal bias or prejudice concerning a party” as contemplated by Canon 3(C) of the Judicial Code of Conduct; the comments reflected the trial judge’s conclusions drawn from the evidence presented in the case. Id. The statements were “no more than a statement of law” and did not “express any pre-judgment” of Green’s case. Id. Additionally, no evidence was presented that the trial judge improperly admitted or excluded evidence as a result of his alleged bias. Id. Accordingly, the failure of the trial judge to recuse himself was not an abuse of discretion. Id.

¶ 10. In the present case, the alleged biased comments by Judge Simpson were only a snapshot of his entire statement. Upon reading Judge Simpson’s statement as a whole, it is clear that Judge Simpson put aside his feelings as a father and sentenced Gaddy according to the facts and the law. We find that the judge’s comments did not express any prejudgment of Gaddy that would cast a reasonable doubt about the validity of the presumption of the judge’s impartiality.

¶ 11. Gaddy also argues that Judge Simpson should not have presided over his post-conviction relief motion because he presided over Gaddy’s sentencing. Similar to his argument above, Gaddy asserts that Judge Simpson was biased in ruling on his motion for post-conviction relief because of his daughters and because he was the sentencing judge.

¶ 12. This Court faced a similar argument in Brooks v. State, 953 So.2d 291 (Miss.Ct.App.2007). In Brooks, the judge presiding over the defendant’s post-conviction relief motion was the same judge who heard the defendant’s plea hearing. Id. at 295(¶ 15). This Court found that the trial court did not err in denying the defendant’s motion to recuse because the defendant had failed to present any evidence that the judge was biased in the post-conviction relief hearing based upon his dealings in the plea hearing. Id. at 296(¶ 16).

¶ 13. Similar to Brooks, Judge Simpson presided over Gaddy’s plea hearing and his post-conviction relief motion. Also like Brooks, Gaddy has not provided any evidence that Judge Simpson was impartial based on the fact that he presided over both hearings. Accordingly, this issue is without merit.

II. WHETHER THE TRIAL JUDGE ERRED IN SENTENCING GAD-DY TO THE MAXIMUM SENTENCES.

¶ 14. “[The supreme court] has held that sentencing is within the discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute.” Wade v. State, 802 So.2d 1023,1030(¶ 36) (Miss.2001).

¶ 15. Gaddy was convicted of voyeurism, which carries a maximum sentence of five years. See Miss.Code Ann. § 97-29-61 (Rev.2006). He was also convicted of touching for lustful purposes in violation of Mississippi Code Annotated section 97-5-23(1) (Rev.2006), which carries a maximum sentence of fifteen years and/or a $5,000 fine. In his original sentencing order, Gaddy was sentenced to fifteen years for the touching for lustful purposes charge and five years for the voyeurism charge. The sentences were ordered to run consecutively. Upon a motion for reconsideration, the trial judge amended Gaddy’s sentences to run concurrently, thus reducing the amount of time Gaddy would be imprisoned.

¶ 16. The terms of Gaddy’s sentences are clearly within the statutory limits for the prescribed crimes. Accordingly, this issue is without merit.

III. WHETHER GADDY SHOULD HAVE BEEN GRANTED A JURY TRIAL.

¶ 17. Gaddy asserts two arguments that he should have been afforded a jury trial. First, Gaddy argues that Judge Simpson’s labeling of him as a danger to the community was unfair, and it should have been the province of the jury to assess him as a danger. Second, Gaddy claims that, based upon newly discovered evidence, he should have been granted a jury trial after his guilty plea was entered. We will address these arguments together.

¶ 18. In Jones v. State, 915 So.2d 511, 515(¶ 10) (Miss.Ct.App.2005), this Court stated that:

Newly discovered evidence is relevant only in situations where a defendant went to trial and was convicted. If, following the trial, a defendant discovers relevant and material evidence which could not have reasonably been discovered prior to trial, the defendant may seek to have his conviction set aside based on the newly discovered evidence. When a defendant pleads guilty, he is admitting that he committed the offense. Therefore, by definition, a plea of guilty negates any notion that there is some undiscovered evidence which could prove his innocence.

Stated more succinctly, “[a] valid guilty plea waives the presentation of witnesses and a jury trial.” Rush v. State, 749 So.2d 1024,1028(¶ 16) (Miss.1999).

¶ 19. Gaddy’s right to present issues to a jury expired when he pleaded guilty to the charges. Thus, these arguments are without merit.

IV. WHETHER THERE WAS A FACTUAL BASIS FOR GAD-DY’S CONVICTION.

¶ 20. “A factual basis is not established by the mere fact that a defendant enters a plea of guilty.” Knight v. State, 983 So.2d 348, 352(¶12) (Miss.Ct. App.2008) (citing Lott v. State, 597 So.2d 627, 628 (Miss.1992)). “A factual basis for a plea may be established by the admission of the defendant, but the admission must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.” Parkman v. State, 953 So.2d 315, 319(1116) (Miss.Ct.App.2007). “[W]e are not limited to the plea hearing and may look to the record as a whole to determine if there is a factual basis for the plea.” Id. at (¶ 17).

¶ 21. Upon reviewing Gaddy’s plea hearing and record, we find a factual basis to establish the charges against him. During his plea hearing, Gaddy admitted the facts that surrounded the elements for both of the crimes. The facts, recited by the judge and admitted to by Gaddy, are primarily gleaned from three reports: a DHS report, a police report, and a psychologist’s report. Without going into the details of each report, they consistently state the facts surrounding Gaddy’s arrest. Gaddy’s daughter reported the same story to her grandmother, the DHS worker, and the psychologist. She provided sufficient facts and detail to support the charges against Gaddy. Therefore, after reviewing the plea colloquy and the various reports, we find that this claim is without merit.

V. WHETHER GADDY’S GUILTY PLEA WAS KNOWING AND VOLUNTARY.

¶ 22. “A plea is deemed 'voluntary and intelligent’ only where the defendant is advised concerning the nature of the charges against him and the consequences of the plea.” Loden v. State, 971 So.2d 548, 573(¶ 60) (Miss.2007) (quoting Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)).

¶ 23. Gaddy proposes several reasons why his guilty plea was not knowing and voluntary. Gaddy claims that he did not understand the consequences of making a guilty plea, the trial court never outlined the elements of the charged crimes, and no summation of the evidence against him was ever presented to him at the plea hearing. Gaddy argues that these omissions resulted in him not understanding the nature of the charges against him.

¶ 24. Gaddy’s plea colloquy provides in part:

The Court: Mr. Gaddy, it’s alleged in your indictment that on or about June of 2003 at a time when you were over the age of eighteen years and for the purpose of satisfying your depraved sexual desires, you did touch or rub with your hands the vagina of G.L.G., a child who was at the time in question under the age of sixteen. How old was this child?
Gaddy: Eleven
The Court: And you did that?
Gaddy: Yes, sir.
The Court: It is also alleged ... that on or about May 12 you entered the property of Overstock Fashions on Beach Boulevard in Biloxi and thereafter peeped through a window or opening in a dressing room for the purposes of viewing indecent or spying upon the occupant of that dressing room. Did you do that?
Gaddy: Yes, sir.

Prior to this exchange, the trial court asked Gaddy in detail about his education level, whether he could read and write, whether he had reviewed the plea petitions, whether he understood the petition, whether he understood that he was waiving certain rights by pleading guilty to the charged crimes, and whether anyone forced, coerced, or induced him to plead guilty. Gaddy answered that he understood the charges against him, and the consequences of pleading guilty, and he stated that he was entering into this plea voluntarily. There is nothing in the record to show that Gaddy’s guilty plea was not entered knowingly and voluntarily. Accordingly, this argument is without merit.

VI. WHETHER GADDY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 25. A claim of ineffective assistance of counsel is judged by the standard stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two inquiries under that standard are: (1) whether counsel’s performance was deficient, and, if so, (2) whether that deficient performance was prejudicial to the defendant’s defense in the sense that the defendant is deprived of a fair trial. Id. at 687, 104 S.Ct. 2052. “To show prejudice, the claimant must demonstrate that, but for his attorney’s errors, there is a reasonable probability that a different result would have occurred.” Watts v. State, 981 So.2d 1034, 1039(¶ 12) (Miss.Ct.App.2008). This standard is also applicable to the entry of a guilty plea. Roland v. State, 666 So.2d 747, 750 (Miss.1995). The burden of proving that both prongs of Strickland is on the defendant, “who faces a ‘rebuttable presumption that counsel’s performance falls within the broad spectrum of reasonable professional assistance.’” Walker v. State, 703 So.2d 266, 268(¶8) (Miss.1997) (citation omitted).

¶ 26. Gaddy argues that his counsel was ineffective for failing to object to Judge Simpson presiding over the plea hearing and his post-conviction relief hearing. As we stated above, it was not error for Judge Simpson to hear Gaddy’s plea and motion for post-conviction relief. Additionally, Gaddy stated in his plea colloquy that he was satisfied with the assistance provided by his attorney. More importantly, a different result would not have occurred if Gaddy’s attorney would have objected to Judge Simpson presiding over both hearings. Thus, we find that this does not rise to the level of ineffective assistance of counsel.

¶ 27. Gaddy also argues that the trial court erred by not granting him an evidentiary hearing on his ineffective assistance claim. Gaddy claims that his attorney failed to investigate the possibility of Gaddy having mental problems, which could have provided him with a defense. Gaddy provides the affidavits of his mother and sister to support his contention.

¶ 28. “To merit an evidentiary hearing on the issue of ineffective assistance of counsel, a defendant’s allegations of counsel’s performance must raise ‘sufficient questions of fact on the issue of ineffective assistance of counsel.’ ” Walker, 703 So.2d at 269(¶ 10).

¶ 29. During his plea hearing, Gaddy’s attorney stated that he had attempted to find Gaddy’s psychiatrist and obtain his medical records. However, after checking locally and abroad with the medical association, Gaddy’s attorney was unable to locate Gaddy’s psychiatrist or his medical records. Gaddy supplied the affidavits of his sister and mother to support his contention. However, these affidavits largely pertain to Gaddy’s daughter, not his mental health. The affidavits state that Gad-dy’s attorney informed Gaddy’s mother that he would investigate Gaddy’s mental health. According to the statements Gad-dy’s attorney made during the plea hearing, he fulfilled his word to Gaddy’s mother by investigating Gaddy’s mental health, but he was unable to locate Gaddy’s psychiatrist or his medical records. Therefore, we find that Gaddy’s contentions do not raise sufficient questions of fact regarding his ineffective assistance counsel claim to warrant an evidentiary hearing. Thus, this issue is without merit.

VII. WHETHER THE CUMULATIVE ERROR OF THE TRIAL COURT MANDATES REVERSAL.

¶ BO. “The cumulative[-]error doctrine stems from the doctrine of harmless error ... [which] holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Ross v. State, 954 So.2d 968, 1018 (¶ 138) (Miss.2007). However, where there is no error in any part, there can be no reversible error to the whole. Gibson v. State, 731 So.2d 1087,1098(¶ 31) (Miss.1998).

¶ 31. Gaddy’s final assertion is that the cumulative errors of the trial court mandate reversal of the judgment rendered against him. Finding all of Gaddy’s claims of error to be without merit, we find no cumulative error which would require reversal of Gaddy’s convictions.

¶ 32. Gaddy lists several other arguments in his statement of issues. However, Gaddy fails to brief this Court on these remaining issues. Therefore, this Court finds that the remaining issues are waived for the failure to cite authority, as well as the failure to address the issues. See Cook v. Mardi Gras Casino Corp., 697 So.2d 378, 383 (Miss.1997).

¶ 33. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, C.J., LEE, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . The statutory rape was later reduced to sexual battery, and the charge was passed to the file.


author: ISHEE, J„

text:
    Michael McDUFFIE, Appellant, v. Kathi McDUFFIE, Appellee.
    No. 2008-CP-00033-COA.
    Court of Appeals of Mississippi.
    Sept. 22, 2009.

      Michael McDuffie, pro se.
    G. Charles Bordis, attorney for appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J„

for the Court.

¶ 1. Michael and Kathi McDuffie were married on October 21, 1995, and they separated on December 20, 2000. On November 26, 2007, the Chancery Court of Jackson County granted the parties a divorce on the ground of irreconcilable differences. Aggrieved by the judgment, Michael now appeals and asks this Court to consider the following issues:

I. Whether the chancellor committed manifest error by refusing to allow Michael to amend his bill of complaint for divorce and to withdraw his consent to a divorce based on irreconcilable differences.
II. Whether the chancellor applied the correct legal standard to classify the marital assets as marital or non-marital and abused his discretion in dividing the marital assets according to the Ferguson factors.
III. Whether the chancellor erred in failing to honor Michael’s homestead exemption under Mississippi Code Annotated section 85-3-1 (Rev.2008).
IV. Whether the chancellor abused his discretion in awarding Kathi attorney’s fees.
V. Whether the chancellor abused his discretion by awarding Michael supervised visitation with his child based on the recommendations of the guardian ad litem.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Michael and Kathi were married on October 21, 1995. One child was born of the marriage, Patricia Ann McDuffie, born July 25, 1998. Michael and Kathi separated on December 20, 2000, and they filed for divorce on April 5, 2004, on the ground of irreconcilable differences. Michael later sought to withdraw his consent to the irreconcilable differences divorce on June 5, 2007, because his wife admitted in open court to an adulterous affair. The chancellor denied his request, finding it to be untimely. After a prolonged separation and many setbacks in the process, the parties were granted a divorce based on irreconcilable differences on November 26, 2007.

¶ 3. The chancellor awarded Kathi paramount legal and physical custody of Patricia and, after considering the guidelines established in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983) and considering the recommendations of the guardian ad litem, awarded Michael supervised visitation with Patricia. The supervised visitation was to occur every other Saturday from 2:00 p.m. to 4:00 p.m. and was to be supervised by Kathi’s mother. The chancellor ordered the parties to report back to the court at a later date to fashion a supervised or graduated visitation schedule for the reunification of Michael with his child. Michael was ordered to pay child support in the amount of $275 per month beginning December 1, 2007. The chancellor also found Michael to be in arrears in his child support obligation in the amount of $3,410 and ordered him to pay an additional fifty dollars per month toward the arrearage until the amount was paid off.

¶ 4. The chancellor relied on Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994) to determine the proper division of the parties’ marital assets. The chancellor found it impossible to ascertain the exact value of the marital assets, in part because he found that neither party provided credible evidence regarding the value of the property. The chancellor found that the situation was further complicated by the fact that many of the items were no longer useful or that they had been destroyed or disposed of while the case was pending. Ultimately, the chancellor determined that all property was marital property and ordered all personal property to be liquidated and the parties to share in the proceeds. The chancellor ordered that any jointly-titled vehicles be sold and the proceeds to be equally distributed between the parties, with each party being allowed to keep his or her vehicles obtained after the separation.

¶ 5. As for the marital home, the chancellor noted that it had been destroyed by a fire during the course of the litigation. Therefore, the chancellor directed that the insurance proceeds be used to pay off any indebtedness on the home and that any money remaining be divided equally between the parties. The chancellor awarded neither party alimony. Lastly, the chancellor concluded that Michael was responsible for most of the delays in the case and awarded $5,000 in attorney’s fees to Kathi.

STANDARD OF REVIEW

¶ 6. An appellate court’s scope of review in domestic relations matters is limited. Perkins v. Perkins, 787 So.2d 1256, 1260-61(¶ 9) (Miss.2001) (quoting Montgomery v. Montgomery, 759 So.2d 1238, 1240(¶ 5) (Miss.2000)). This Court will not disturb the findings made by the chancery court “unless the chancellor was ‘manifestly wrong, clearly erroneous or an erroneous legal standard was applied.’ ” Id.

DISCUSSION

I. Withdrawal of Consent to an Irreconcilable Differences Divorce

¶ 7. Michael argues that since Kathi admitted in open court to an adulterous affair, the chancellor should have allowed him to withdraw his consent to an irreconcilable differences divorce. Kathi responds that under Mississippi Code Annotated section 93-5-2 (Supp.2008), consent to a divorce on the ground of irreconcilable differences may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto.

¶ 8. The irreconcilable differences statute, Mississippi Code Annotated section 93-5-2(3), provides, in part, that a party’s consent to a divorce on the ground of irreconcilable differences “may not be withdrawn by a party without leave of the court after the court has commenced any proceeding, including the hearing of any motion or other matter pertaining thereto.” Michael and Kathi had previously filed a consent to a divorce based on the grounds of irreconcilable differences on April 5, 2004. Michael later sought to withdraw his consent to the irreconcilable differences divorce on June 5, 2007, more than three years after the original consent to an irreconcilable differences divorce was filed. The chancellor denied Michael’s request to withdraw his consent, finding that the request was untimely in light of all the circumstances and also determining that the marriage was irretrievably broken.

¶ 9. The divorce had been pending for three years before Michael sought to revoke his consent. There had been hearings on the matter since the parties had given their consent to an irreconcilable differences divorce. Therefore, according to section 93-5-2(3), Michael needed leave of the court to withdraw his consent. Based on the chancellor’s findings, we do not find that the chancellor committed manifest error in denying Michael’s request to withdraw his earlier consent to an irreconcilable differences divorce. This issue is without merit.

II. Classification of the Marital Property and Ferguson Factors

¶ 10. Michael next contends that the chancellor improperly classified some of his separate property as marital property. Michael’s main issue appears to rest with the chancellor’s classification as a marital asset the home that Michael owned before the parties married. Michael argues that the chancellor did not properly consider the fact that he acquired the land and built the home with proceeds he received from a personal injury lawsuit eight years before Kathi moved into the home. He also points out that the property included a large amount of land that could not have been completely converted to familial use. Michael contends that the chancellor improperly found that Kathi had made improvements to the home and contributed to its maintenance and upkeep. Michael also takes issue with the chancellor’s determination that much of the personal property from the marriage was destroyed in the fire that burned down the marital home after the parties had separated. Michael claims that Kathi removed many items of furniture and other personal property from the home before the fire occurred.

¶ 11. In response, Kathi argues that Michael admitted that most of the personal property of the parties had been destroyed by the house fire, were no longer useful, or had been disposed of while the divorce was pending. Kathi contends that the furniture she removed from the home was removed pursuant to a temporary order that granted her use and possession of the furniture in order to provide living arrangements for Patricia. She alleges that Michael sold some personal property which included a utility trailer, a trailer, and a welding machine in violation of previous court orders. With regard to the marital home, Kathi contends that it and the property were converted into a marital asset since they were used for familial purposes. Kathi concludes that Michael has failed to show that the chancery court committed error and the court’s decision should be affirmed.

¶ 12. This Court recognizes that marital property generally includes any and all property acquired during the marriage and that such property is subject to equitable distribution. McKnight v. McKnight, 951 So.2d 594, 596(6) (Miss.Ct.App.2007) (quoting A & L, Inc. v. Grant-ham, 747 So.2d 832, 838(18) (Miss.1999)). However, “non-marital assets may be converted into marital assets if they are commingled with marital assets or used for familial purposes, absent an agreement to the contrary.” A & L, Inc., 747 So.2d at 838(18) (citing Heigle v. Heigle 654 So.2d 895, 897 (Miss.1995)).

¶ 13. A chancellor need not divide the property equally in order to achieve an equitable distribution. McKnight, 951 So.2d at 596(¶6) (quoting Humphries v. Humphries, 904 So.2d 192, 198(24) (Miss.Ct.App.2005)). “The matter is within the chancellor’s discretion, as he has all equities and relevant circumstances in mind and is in the best position to decide such matters.” Id. “When this Court reviews a chancellor’s judgment of property division, we ‘are to review the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.’” Id. (quoting Wells v. Wells, 800 So.2d 1239, 1243(8) (Miss.Ct.App.2001)). “The polestar consideration in the marital property division process is fairness.” Herron v. Herron, 936 So.2d 956, 959(5) (Miss.Ct.App.2006) (citing Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994)).

¶ 14. Ultimately, the chancellor determined that all property was marital property. In dividing marital assets, the chancellor properly took into account the Ferguson factors; however, he determined that neither party provided credible evidence regarding the value of the personal property items. The chancellor further noted that many of the personal property items were no longer useful, had been destroyed by fire, or had been disposed of during the three years that the case had been pending. Accordingly, the chancellor found it impossible to ascertain the exact value of the marital assets. The chancellor stated that “to avoid any further wasting of the legal system’s valuable resources, this Court will direct personal property to be liquidated and the parties share in the proceeds.” All of the jointly titled vehicles were ordered to be sold and the profits to be split equally between the parties. Each party was awarded all the personal property in his or her possession. Essentially, the chancellor determined “the award of personal property to be of equal value since neither party provided credible values of personal property.”

¶ 15. With regard to the division of personal property, we do not find that the chancellor erred in his property division of the assets. The chancellor, in his ruling, recognized that the prolonged litigation caused much of the personal property to lose value, and the subsequent fire, which destroyed the former marital home, also destroyed much of the personal property. We find that the chancellor did not abuse his discretion classifying and dividing the parties’ personal property.

¶ 16. As for the marital home, the chancellor noted that Kathi and Michael shared the home during their marriage and found that it was converted by familial use to marital property. The chancellor found that both parties used the property for the benefit of the marriage and both parties made improvements to the property. The chancellor acknowledged that the marital home had been destroyed by fire; therefore, he directed that the insurance proceeds be used to pay off the outstanding mortgage and that any remaining proceeds be split equally between the parties. Additionally, the chancellor noted that Michael received almost $30,000 “over and above the $51,295.00 in marital debt” as a result of refinancing the marital home. The chancellor found that this was “adequate compensation for any pre-marital interest in the marital domicile.... ”

¶ 17. From the record before us, we cannot find that the chancellor erred in his determination that the home shared by the parties during the marriage was converted to marital property. It was brought into the marriage by Michael, but it was converted to a marital asset because it was used by the family. We find no abuse of discretion in the chancellor’s ruling that the home was a marital asset. This issue is without merit.

III. Michael’s Homestead Exemption Under Mississippi Code Annotated Section 85-3-21

¶ 18. After reviewing Michael’s pro se brief, we are left in the dark as to what his actual argument is concerning this issue and as to what relief he seeks. According to the heading of his appellate brief on this issue, Michael asks: “Whether the chancellor exercise[d] proper discretion in not honoring Appellant[’s] homestead exemption pursuant to Miss.Code Ann. [section] 85-3-21.” While his argument is unclear, it appears Michael contends that since his wife abandoned the marital home, she should be prevented from claiming a homestead exemption. Michael claims that Kathi petitioned the court for partition of the marital property; therefore, she lost any homestead rights she had in the property.

¶ 19. Kathi argues that she was temporarily awarded use and possession of the home upon the parties’ initial separation. She notes that she only left the home because Michael broke into it. This is supported by an order entered November 6, 2001, which found Michael in contempt for breaking into the former marital home, of which Kathi had been granted exclusive use and possession. Further, Kathi claims she demonstrated her interest in claiming the marital property when she asserted that it was a marital asset in her pleadings and sought temporary use of the home. In addition, Kathi argues that the homestead issue raised by Michael is moot because the chancellor did not partition the property; the chancellor determined each party’s interest pursuant to the divorce. Also, the marital home was destroyed by fire; the mortgage was satisfied with insurance proceeds; and there were no outstanding liens on the property in question.

¶ 20. Upon review, we find no mention in the chancellor’s judgment of any right to the homestead exemption. Michael’s argument regarding this issue is difficult to follow, and it does not appear to be supported by relevant case law. The chancellor found the home in question to be a marital asset and divided it equally between the two parties. Kathi did not file a claim to partition the property as Michael claims; the chancellor divided it as part of the division of marital assets. Further, the home was destroyed by fire and the parties received insurance money to satisfy the outstanding debt on the home, which was split between them. As such, no home remained on which either party could claim a homestead exemption. We find that this issue is without merit.

IV. Attorney’s Fees

¶21. Michael argues that Kathi did not demonstrate an inability to pay her attorney’s fees; therefore, the chancellor erred in awarding her attorney’s fees. Michael also argues that he paid money directly to Kathi’s attorney, but those payments were not reflected in Kathi’s award of attorney’s fees. He also argues that Kathi should be required to pay the second guardian ad litem’s fees, since he paid the first guardian ad litem’s fees.

¶ 22. Kathi responds that she is entitled to attorney’s fees because Michael was in arrears in his child support obligation in the amount of $3,410 and because Michael deliberately extended the litigation for the purpose of harassment and delay. Kathi points out that Michael was found to be in contempt of court for failure to pay child support, and she sought attorney’s fees as a result. Further, Kathi contends she expended far more on attorney’s fees than the $5,000 she was awarded. Kathi argues that she was forced to bring action against Michael for the payment of child support because of his actions and that Michael admitted he was delinquent in child support payments. Therefore, she argues that the chancellor did not err in awarding her attorney’s fees. Kathi points out that “[i]t is within the chancellor’s discretion to award attorneys fees, in a divorce action, in spite of a spouse’s ability to pay, where additional attorney’s fees are incurred as a result of the opposing spouse’s fraudulent conveyance of marital property.” A & L, Inc., 747 So.2d at 845(60).

¶ 23. “[I]n a contempt action involving unpaid child support, a prima facie case is achieved when the party entitled to receive child support introduces evidence that the party required to pay the support has failed to do so.” R.K. v. J.K., 946 So.2d 764, 777-78(40) (Miss.2007) (citing Lahmann v. Hallmon, 722 So.2d 614, 620(¶ 19) (Miss.1998)). The party who failed to pay child support must then show a defense by clear and convincing proof. Id. Here, Michael admitted at trial that he was in arrears in his child support payments. As such, a prima facie case was made against him for contempt for failure to pay child' support. Further, “[c]on-tempt matters are committed to the substantial discretion of the trial court which, by institutional circumstances and both temporal and visual proximity, is infinitely more competent to decide the matters than we are.” Elliott v. Rogers, 775 So.2d 1285, 1290(22) (Miss.Ct.App.2000) (quoting Morreale v. Morreale, 646 So.2d 1264,1267 (Miss.1994)). In addition, “even where there is no specific statutory authority for imposing sanctions, courts have an inherent power to protect the integrity of their processes, and may impose sanctions in order to do so.” Selleck v. S.F. Cockrell Trucking, Inc., 517 So.2d 558, 560 (Miss.1987) (citing Ladner v. Ladner, 436 So.2d 1366, 1370 (Miss.1983)). Most notably, “where a party’s intentional misconduct causes the opposing party to expend time and money needlessly, then attorney’s fees and expenses should be awarded to the wronged party.” Id.

¶ 24. This Court finds it necessary to reiterate the chancellor’s findings regarding the prolonged litigation between these parties. The chancellor noted in his judgment that “this case is a textbook example of a litigant exhausting the patience of the court. [Michael’s] actions throughout the course of this litigation have prolonged this litigation well beyond the time necessary to complete the litigation of these issues .... [Michael] has been successful in delaying this matter on numerous occasions.” We find no abuse of discretion with the chancellor’s judgment and find that this issue is without merit.

Y. Supervised Visitation

¶ 25. Lastly, Michael takes issue with the chancellor’s decision to award him supervised visitation of his daughter. Michael argues that the guardian ad litem’s report was replete with inaccuracies. He refutes the report of alleged child molestation, arguing he never molested a minor child named Simon, and he points out that charges were never filed against him regarding that incident. Michael argues that the Department of Human Services concluded that the molestation charges were unsubstantiated. Michael also takes issue with the fact that the guardian ad litem overlooked Kathi’s adultery and the fact that she shared a room with her boyfriend in the same house with Patricia.

¶ 26. Kathi argues that the chancellor’s decision to award Michael supervised visitation with Patricia was correct. Kathi contends that Michael admitted that he had drug and alcohol problems that resulted in his intoxication. Kathi points out that Michael tested positive for crystal meth after a court-ordered screening in 2001. Since that time, Michael has failed to obtain another drug test to substantiate his claim he no longer uses drugs, despite the guardian ad litem’s recommendation to do so. Kathi argues it would be against the best interest of Patricia to allow her to be exposed to possible drug use. Further, Kathi points out that Michael made improper sexual advances toward a minor child, and she claims that the allegations against Michael have not been dismissed. Kathi argues that the guardian ad litem did a complete investigation and recommended that Michael undergo counseling, attend FOCIS, and submit to hair follicle drug screens in order to reestablish a relationship with his daughter, and at the time of trial, Michael had not complied with any of the recommendations. Kathi concludes that the chancellor conducted his own analysis and made his own findings based on all the evidence and did not simply adopt the findings of the guardian ad litem.

¶ 27. This court recognizes that “the best interest of the child is the main concern in determining visitation.” Rogers v. Morin, 791 So.2d 815, 820(23) (Miss.2001) (citing Dunn v. Dunn, 609 So.2d 1277, 1286 (Miss.1992)). “[T]he chancellor has discretion to fashion a visitation order to suit the child’s best interest.” Marshall v. Harris, 981 So.2d 345, 350(23) (Miss.Ct.App.2008) (citing Horn v. Horn, 909 So.2d 1151, 1162(39) (Miss.Ct. App.2005)). An appellate court will afford great deference to the chancellor’s visitation decision. Horn, 909 So.2d at 1161— 62(38). Here, the guardian ad litem presented an extensive report regarding the best interest of Patricia. The chancellor considered this information and the evidence presented at trial in light of the factors set out in Albright.

¶ 28. The guardian ad litem found that Michael admitted he had problems with drugs and alcohol, once testing positive for crystal meth during a court-ordered drug test, and the chancellor found that Michael’s explanation regarding the child molestation allegation raised questions regarding his moral fitness. According to Simon, who was eight years old at the time of the incident, Michael was intoxicated one night and turned on a pornographic movie. While the movie was playing, he took the minor into the laundry room. He told Simon that “this is what guys do,” and he put the child’s penis in his mouth. Nothing further happened. The guardian ad litem noted that according to Michael’s version of events, he caught Simon and another child watching a pornographic movie. According to Michael, he asked if the boys were interested in “that stuff’ and he allowed them to continue watching the movie and even watched some of it with them before ordering it to be turned off. The guardian ad litem gave more credence to Michael’s version of events because: the child’s version was uncorroborated; there was no evidence of criminal charges; and DHS indicated the findings were unsubstantiated. Ultimately, the guardian ad litem recommended supervised visitation because of Michael’s drug and alcohol issues, questions concerning his moral fitness, and the fact that Michael has had little or no contact with his very young daughter for some time. Based on the facts of this case, we find no error with the chancellor’s order granting Michael supervised visitation with Patricia. The chancellor properly took into account that the child’s best interests was the main concern and fashioned an appropriate visitation order, which provided for the future reunification of Michael with his daughter. Accordingly, we find no abuse of discretion, and we find that this issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . This Court has combined some issues for the purpose of judicial economy. In his appellate brief, Michael also asks us to consider whether the chancellor erred in failing to credit him for payments that he made on the marital debt. However, Michael provides no argument for this issue; therefore, we will not address it.

      . To protect the identity of the minor child, this Court has substituted a fictitious name in this opinion.

      . It is not specified, but it seems the guardian ad litem was referring to Focus on Children in Separation, which is a program designed to help prepare divorcing parents and their children for life after separation. The guardian ad litem suggested that Michael, Kathi, and Patricia attend these classes.

      . The GAL reported that Michael caught the children watching a pornographic movie. In Michael's appellate brief, he claims that he caught the children watching Girls Gone Wild, which he claims is R-rated, not pornographic.