author: MAXWELL, J.,

text:
    David LYNCH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01874-COA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.

      Leslie S. Lee, Jackson, Justin Taylor Cook, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court.

¶ 1. David Lynch was convicted in Clarke County Circuit Court of possession of cellular phones while confined in a correctional facility, in violation of Mississippi Code Annotated section 47-5-193 (Supp. 2009). He was sentenced as a habitual offender to fifteen years’ imprisonment in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Lynch claims the circuit court erred in denying his motion for a mistrial. Lynch moved for a mistrial after the circuit court allowed the State to question Lynch about an out-of-court representation made by his attorney. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 23, 2007, Deputy Elton Davis received a report that something was burning in jail cell M-l, where Lynch was housed. Smoking is prohibited in the correctional facility, so Deputy Davis called for a search of the jail cell for contraband. He was assisted by Deputies Berry White and Jerry Ivey.

¶ 3. The deputies had each of the inmates exit the cell. Deputy Davis remained in the hall, while Deputies White and Ivey entered, cleared, and searched the cell for contraband. According to Deputy Davis, Lynch was the first to exit the jail cell. Lynch was dressed in a T-shirt and orange pants. Deputy Davis patted Lynch’s torso area and ordered him to pull down his pants. When Lynch complied, Deputy Davis noticed Lynch was wearing four pairs of boxer shorts, as well as, a pair of thermal underwear. After having him remove his outer garments, Deputy Davis immediately saw a bulge in Lynch’s thermal underwear. Davis notified Deputy White. He then retrieved two cell phones from the pouch located in the crotch area of Lynch’s thermal underwear. Deputy White testified that he also observed the bulge in Lynch’s underwear and witnessed Deputy Davis remove the cellular phones. Mississippi Code Annotated section 47-5-193 prohibits possession of cellular phones in a correctional facility.

¶ 4. Lynch testified in his own defense and admitted the phones were found in his possession but denied ownership or knowing possession of the phones. Lynch’s defense centered around his claim that he was showering at the time the deputies began their search of the jail cell. He contended that after exiting the shower, he borrowed clothes from another inmate. Lynch testified that when he began putting on the borrowed pants, the thermal underwear was already inside of the pants. Though he denied wearing four pairs of boxer shorts, he admitted he knew the thermal underwear contained some form of contraband, but he decided to take his chances rather than notify the deputies. According to Lynch, he was still wet and had soap on him when the deputies entered his cell.

¶ 5. Deputy Davis testified that Lynch was not wet or damp during the search, and Deputy White explained to the jury that Lynch was not showering when the search began. Deputy Ivey was called as a rebuttal witness for the State. He also contradicted Lynch’s testimony about being in the shower when the deputies arrived to conduct the search.

¶ 6. During Lynch’s cross-examination, he accused Deputies Davis and White of fabricating their testimony about the cell phones on the day of trial. After Lynch made these claims, the prosecutor asked Lynch if he had previously read the two deputies’ written statements about the seizure. Lynch denied having read the statements, but said he had heard the statements. The State then questioned Lynch about his attorney’s pretrial representation to the circuit judge and assistant district attorney that Lynch had “read his discovery.” Lynch’s counsel objected to this line of questioning and moved for a mistrial. The circuit court overruled his objection and denied his motion for a mistrial.

¶ 7. The jury found Lynch guilty of possession of contraband inside a correctional facility. The circuit judge denied Lynch’s post-trial motions for a new trial and for a judgment notwithstanding the verdict.

STANDARD OF REVIEW

¶ 8. Trial judges enjoy a great deal of discretion in addressing the relevancy and admissibility of evidence. Robinson v. State, 940 So.2d 285, 238(117) (Miss.2006). “Reversal is proper only where such discretion has been abused and a substantial right of a party has been affected.” Johnson v. State, 666 So.2d 499, 503 (Miss.1995) (citing Green v. State, 614 So.2d 926, 935 (Miss.1992)); M.R.E. 103(a).

¶ 9. A mistrial may only be granted by the trial court “when the harm done would render the defendant without hope of receiving a fair trial.” Lepine v. State, 10 So.3d 927, 941(¶ 39) (Miss.Ct.App.2009) (quoting Reed v. State, 764 So.2d 511, 513(¶ 7) (Miss.Ct.App.2000)). The trial judge is in the best position to assess the effect of the incident, and we will not reverse unless the trial judge abused his discretion in denying the motion for a mistrial. Ladner v. State, 584 So.2d 743, 753 (Miss.1991).

DISCUSSION

¶ 10. Before trial, Lynch’s attorney informed the circuit court and assistant district attorney that Lynch had “read his discovery and he’s reviewed the videos that we have been furnished by the State.” After Lynch accused Deputies Davis and White of fabricating their trial testimony, the following exchange took place during Lynch’s cross-examination by the State:

[Prosecutor] You got to read [the statements], didn’t you?
[Lynch] I heard them.
[Prosecutor] I know. But didn’t you read those statements?
[Lynch] I heard them.
[Prosecutor] Listen to my question. You read these statements?
[Lynch] No, I haven’t read these statements.
[Prosecutor] Now, earlier today, not with the jury here, but Mr. Jordan had made a comment with you present that you had read over all of the discovery, is that not true?
[Lynch] The discovery — I didn’t know I was even coming to trial here today for the cell phones, sir.
[Defense counsel] We move for a mistrial, Your Honor. The jury needs to be released for a moment, Judge. I want to argue this, Your Honor.
[Defense counsel] Your Honor, I would ask Rhonda, if she would, to read back the last statement about what Mr. Jordan said outside the presence of the jury.
[Prosecutor] What I said was is, outside the presence of the jury, Mr. Jordan said that you had read over your discovery. That’s all I said.
[Defense counsel] And I don’t think I’ve ever said that.
[Prosecutor] That’s exactly what you said back there in the Judge’s chambers. Didn’t he, Judge?
THE COURT Yes, sir.
[Defense counsel] I said he had read his discovery. But you don’t make that comment when the jury is sitting in the box. He has read his discovery.
THE COURT This man denied exactly that under oath on the witness stand, and that is certainly a matter of fact that would be right for cross-examination. The whole issue is his credibility here.
[Defense counsel] I agree with you, Your Honor.
THE COURT And there was certainly a representation by you that he had, in fact, read over his discovery.
[Defense counsel] To my knowledge he had because he’s viewed all the videos.
THE COURT And what we have on the witness stand here is a sworn statement that he had not. That is a conflict that is an appropriate matter for cross-examination.
[Defense counsel] Yes, sir. He has reviewed all the videos to my knowledge. I know [Defense co-counsel] has read them to him. Is that correct, [Defense co-counsel]?
[Defense co-counsel] That’s correct.
THE COURT So, I mean, if — it is an unusual matter for cross-examination; however, under the facts here presented, I don’t think it is an inappropriate matter for cross-examination and your motion for a mistrial under those circumstances and under these circumstances here present is overruled.

¶ 11. Lynch’s appeal is based primarily on the supreme court’s decision in Walker v. State, 729 So.2d 197 (Miss.1998). He contends that based on Walker, we are required to reverse his conviction. However, we decline to read Walker so broadly-

¶ 12. In Walker, the circuit court allowed the defendant, Calvin Walker, to be cross-examined about comments made by his co-defendant’s lawyer during opening statements. The attorney’s comments directly implicated Walker in a crack cocaine transaction and were used by the State as substantive evidence of Walker’s guilt on the cocaine-distribution charges. Id. at 201(¶ 14). In fact, a substantial portion of Walker’s cross-examination centered on the “tacit admission of guilt” made by his co-defendant’s attorney. As the supreme court put it:

The State seized on the statements of [the co-defendant’s] counsel, and hammered Walker, testifying on his own behalf, with this apparent tacit admission of guilt by his co-defendant, and despite vociferous objection from Walker’s attorney, the trial court allowed the prosecutor to treat [the co-defendant’s] attorney’s opening statement as if it were direct testimony by [the co-defendant] against Walker[.]

Id. at 200-01(¶ 12).

¶ 13. Here, only a small portion of Lynch’s cross-examination focused on his attorney’s statements. More importantly though, unlike the attorney’s statement in Walker, Lynch’s attorney’s representation was used only for impeachment purpose on a collateral and quite trivial matter— whether Lynch had heard or read his discovery. Lynch’s attorney’s statements did not touch on his client’s guilt, much less rise to the level of a “tacit admission of guilt” on the underlying phone-possession charge.

¶ 14. In addressing the circuit court’s decision to permit the State to conduct the complained of examination, we point out that while trial judges enjoy a great deal of discretion in assessing the admissibility of evidence, such discretion must be exercised within the confínes of the rules of evidence. Bailey v. State, 956 So.2d 1016, 1025(¶ 26) (Miss.Ct.App.2007) (citing Austin v. State, 784 So.2d 186, 193(¶ 23) (Miss. 2001)).

¶ 15. Unsworn prior inconsistent statements of a witness may be used to impeach the witness’s credibility. M.R.E. 613(b). However, here we are not faced with a prior statement from a testifying witness. Also, there is nothing in the record to establish that Lynch agreed with his counsel’s representation that he had read the deputies’ statements. Absent such an acknowledgment, we cannot conclude that Lynch adopted his attorney’s statements as his own. Thus, Lynch’s attorney’s representations were not prior inconsistent statements under 613(b) and should not have been used for impeachment purposes under these circumstances.

¶ 16. While we find it was error for the circuit court to allow the State to use Lynch’s attorney’s statements for impeachment purposes, errors in the admission or exclusion of evidence are not grounds for reversal unless the errors adversely affect a substantial right of a party. Bailey, 956 So.2d at 1025-26(¶ 26) (eit-ing Lynch v. State, 877 So.2d 1254, 1281(¶ 86) (Miss.2004)).

¶ 17. The supreme court has explained our standard regarding harmless error as follows:

To warrant reversal, two elements must be shown: error, and injury to the party appealing. Error is harmless when it is trivial, formal, or merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case; it is prejudicial, and ground[s] for reversal, only when it affects the final result of the case and works adversely to a substantial right of the party assigning it. Obviously, in order for the rule of harmless error to be called into play in support of a judgment, the judgment must be otherwise supportable, and will be reversed when there is nothing in the pleadings or evidence to support it.

Hicks v. State, 6 So.3d 1099, 1103(¶ 17) (Miss.Ct.App.2008) (citing Gray v. State, 799 So.2d 53, 61(¶30) (Miss.2001)).

¶ 18. Due to the overwhelming evidence of Lynch’s guilt, we find the decision to allow the State to impeach Lynch with his attorney’s statement was harmless error. Deputies Davis and White testified that upon searching Lynch they saw the bulge in the crotch area of his long underwear. Deputy Davis testified that he retrieved the cellular phones from Lynch’s person, and Deputy White corroborated the seizure. Also, the jury was free to reasonably infer that Lynch wore four pairs of boxer shorts on top of the thermal underwear in an effort to conceal the phones during the search. Furthermore, Lynch’s defense that he had been showering when the deputies began the search and hurriedly put on another inmate’s clothes was largely contradicted by the testimony of Deputies Davis, White, and Ivey.

¶ 19. The underlying offense turns on possession of the cellular phones, not ownership. And we find, there was ample evidence for the jury to find that Lynch knowingly possessed the contraband phones. Our supreme court instructs that “[ejrroneously admitted evidence is harmless when ‘the same result would have been reached had error not existed.’ ” Caldwell v. State, 6 So.3d 1076, 1079(¶ 9) (Miss.2009) (citing Tate v. State, 912 So.2d 919, 926(¶ 18) (Miss.2005)). As our United States Supreme Court has stated, a criminal defendant is “entitled to a fair trial but not a perfect one, for there are no perfect trials.” Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) (citation and internal quotations omitted). Considering the evidence presented against Lynch, we conclude that any error caused by the State’s reference to Lynch’s attorney’s comments was at most harmless and clearly did not affect the final outcome of his case.

¶ 20. While the circuit court erred in permitting the State to pursue this line of questioning, we do not find its decision to deny Lynch’s motion for a mistrial rendered Lynch without hope of receiving a fair trial. Accordingly, we find the circuit court did not err in denying Lynch’s motion for a mistrial.

¶ 21. THE JUDGMENT OF THE CLARKE COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF CONTRABAND IN JAIL AND SENTENCE AS A HABITUAL OFFENDER OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PROBATION, PAROLE, EARNED RELEASE, EARNED TIME, GOOD TIME, TRUSTEE STATUS OR ANY TYPE OF REDUCTION OF SENTENCE AND TO PAY A FINE OF $500 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLARKE COUNTY.

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

      . The exact number of inmates in jail cell M-S1 was disputed at trial; however, the deputies testified the jail cell could house up to eight inmates.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Willie CHERRY, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CP-01705-COA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.

      Willie Cherry, Jr., pro se, appellant.
    Office of the Attorney General by: Ladonna C. Holland, attorney for appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Willie Cherry, Jr., appeals the denial of his motion for post-conviction collateral relief. Cherry claims that: (1) he received ineffective assistance of counsel; (2) there was no factual bases for his guilty plea; (3) his guilty pleas were not knowingly and voluntarily entered into; (4) the circuit court was required to inform him of his right of appeal; (5) his sentence was excessive; (6) the prosecution withheld information; and (7) the circuit court erred when it denied his motion for post-conviction discovery. We find no error and affirm.

FACTS

¶ 2. Cherry was indicted for the crime of armed robbery, individually or while aiding and abetting Henry Jennings. Cherry pleaded guilty and was sentenced to a term of eight years in the custody of the Mississippi Department of Corrections. The sentence was to run consecutively to any prior sentences.

¶ 3. Cherry filed a motion for post-conviction collateral relief on May 7, 2007. The circuit court denied the motion without an evidentiary hearing.

STANDARD OF REVIEW

¶ 4. A circuit court’s denial of post-conviction collateral relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). 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

1. Ineffective Assistance of Counsel

¶ 5. Cherry argues that he would not have pleaded guilty to armed robbery but for his counsel’s errors and lack of effort expended in his representation. Cherry claims that his counsel was ineffective because he failed to know the applicable law, failed to investigate the case, and advised Cherry to plea guilty blindly. Cherry contends that if his counsel had been effective and properly investigated the case, then his counsel would have informed the circuit court that Cherry was guilty of accessory after the fact, not aiding and abetting. Further, Cherry claims that his attorney never interviewed any witnesses and told him to plead guilty without any discussion of the consequences. Cherry contends that these errors made his guilty plea involuntary and unintelligent.

¶ 6. To prove ineffective assistance of counsel, a defendant must show that: (1) counsel’s performance was deficient, and (2) this deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance was effective. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In cases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶7. Cherry offers only his statements that allege the deficiencies of his counsel. Such allegations are directly contradictory to his statements made under oath. Further, Cherry failed to show his counsel’s inaction prejudiced the result in this case. Cherry admitted the factual bases for the charges were correct. He testified that his counsel reviewed the plea petition with him that he signed and submitted to the court.

¶ 8. We find that Cherry failed to prove any instance of deficiency on the part of his counsel. Furthermore, Cherry failed to show with reasonable probability that, but for his counsel’s unprofessional errors, the result of his proceeding would have been different. Accordingly, this issue is without merit.

2. Factual Bases of Cherry’s Guilty Plea

¶ 9. Cherry claims that no factual bases existed for the trial court’s acceptance of his guilty plea. “Before the trial court may accept a plea of guilty, the court must determine that ... there is a factual basis for the plea.” URCCC 8.04(A)(3). We look to the entire record to determine if such a factual basis exists. Drake v. State, 823 So.2d 593, 594(¶ 5) (Miss.Ct.App.2002) (citing Corley v. State, 585 So.2d 765, 767-68 (Miss.1991)). The mere fact that the factual basis does not provide all the details which may be produced at trial does not make the guilty plea invalid. Id. This Court has held that, “if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for the plea.” Id. at (¶ 6) (quoting U.S. v. Hinojosa-Lopez, 130 F.3d 691, 695 (5th Cir.1997) (overruled on other grounds)).

¶ 10. The indictment alleged that Henry Jennings and Willie Cherry took from the presence of Joseph Chandler and/or Ricardo Hollingsworth $50 of the property of Joseph Chandler and $1,961.40 of the property of Retzer Resources d/b/a McDonald’s. Further, it alleged that the taking was against the will of Joseph Chandler and/or Ricardo Hollingsworth and he/ they were in fear of immediate injury to his and/or their person by the exhibition of a pistol, a deadly weapon. After the reading of the indictment, the circuit court asked Cherry if he committed the crime charged. He responded, ‘Tes.”

¶ 11. Here, as in Drake, the indictment was specific as to the crime charged. Cherry’s indictment provided all of the elements of the offense of armed robbery. Those elements included: “(1) feloniously take or attempted to take another’s personal property; (2) from the person or from the presence; (3) against the person’s will; (4) by violence to his person, or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Clayton v. State, 946 So.2d 796, 804(¶ 28) (Miss.Ct.App.2006) (citing Miss.Code Ann. § 97-3-79) (Rev.2000).

¶ 12. We find that the indictment was specific as to the crime of aiding and abetting armed robbery and that there was a sufficient factual basis to support Cherry’s conviction for armed robbery. Thus, this issue has no merit.

3. Voluntariness of Cherry’s Guilty Plea

¶ 13. Cherry argues that his guilty plea was not knowingly and voluntarily entered into because no one explained to him what constitutes a deadly weapon. Specifically, he claims that a B.B. gun is not a deadly weapon within the armed robbery statute. See Miss.Code Ann. § 97-3-79 (Rev.2006). Further, Cherry argues that the circuit court never informed Cherry of all the elements of the crime.

¶ 14. A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). Such a plea is voluntary and intelligently made when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The State read the charges in the indictment, and the following exchange then occurred:

By the Court: All right. Mr. Cherry, do you understand that charge?
By Mr. Cherry: Yes, sir.
By the Court: Did you commit that offense?
By Mr. Cherry: Yes, sir.
By the Court: The least amount of time you can get is three years, and the most amount of time you can get is life by a jury. And you’ve already said to me earlier that your attorney has explained this to you; is that correct?
By Mr. Cherry: Yes, sir.
By the Court: Recommendation?
By Ms. Mitchell: The State recommends a sentence of eight years in an institution under the supervision and control of the Mississippi Department of Corrections.
By the Court: Did you accept this recommendation?
By Mr. Cherry: Yes, sir.

¶ 15. An examination of the plea colloquy shows that the judge informed Cherry of the nature of the charges against him and the consequences of a guilty plea. Cherry’s argument that the plea was not voluntary because no one explained to him what constitutes a deadly weapon fails. See Miss.Code Ann. § 97-3-79. “A deadly weapon is defined as any object, article or means which, when used as a weapon is, under the existing circumstances reasonably capable of or likely to produce death or serious bodily harm to a human being upon whom the object, article, or means is used as a weapon.” Duckworth v. State, 477 So.2d 935, 938 (Miss.1985). Although this Court has not specifically addressed whether a B.B. gun is a “deadly weapon,” the supreme court has found that a metal pellet gun which was unloaded and inoperable was a deadly weapon as a matter of law, because it could have been used to club a victim and inflict serious bodily injury. Id. As a matter of law, this weapon is a “deadly weapon” within the statute.

¶ 16. Because we find Cherry was informed of all the elements of the crime and that the B.B. gun constituted a “deadly weapon,” Cherry’s claim on appeal that his plea was involuntary and unintelligent because he claims that he did not know all of the elements and that a B.B. gun is not a “deadly weapon” is without merit.

A Trial Court’s Requirement to Inform the Defendant of his Right to Appeal

¶ 17. Cherry contends that the trial court committed reversible error when it failed to advise him of his right to appeal his sentence through a direct appeal. Mississippi Code Annotated section 99-35-101 (Rev.2007) states that “[a]ny person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.” See Cook v. State, 990 So.2d 788, 793(¶ 11) (Miss.Ct.App.2008). However, a defendant may directly appeal the sentence given as a result of that plea even though a conviction from a guilty plea may not be directly appealed. Trotter v. State, 554 So.2d 313, 315 (Miss.1989). Nevertheless, a trial court is not required to inform the defendant of his right to direct appeal his sentence after he enters a guilty plea. Cook, 990 So.2d at 793(¶ 11). Thus, this issue is without merit.

5. Excessive Sentence

¶ 18. Cherry alleges that he is not guilty of aiding and abetting; instead, he claims he is guilty of being an accessory after the fact. As such, he argues that his sentence is excessive because eight years is above the maximum sentence for being an accessory after the fact of armed robbery. Cherry also argues that he did not admit to aiding and abetting a robbery by use of a deadly weapon.

¶ 19. However, as discussed above, Cherry did in fact admit to aiding and abetting an armed robbery with a pistol in his plea colloquy. Thereafter, the judge stated that the minimum sentence was three years, and the maximum sentence was life imprisonment for the charge.

¶ 20. The supreme court has stated that “sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Beamon v. State, 9 So.3d 376, 380(¶ 11) (Miss.2009) (quoting Wall v. State, 718 So.2d 1107, 1114 (Miss.1998)). Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute. Corley v. State, 536 So.2d 1314, 1319 (Miss.1988).

¶ 21. Since Cherry’s sentence was within the limits of the sentencing guidelines, this Court has no basis to regard Cherry’s sentence as excessive. This issue is without merit.

6. Proseen,tonal Misconduct

¶ 22. Cherry claims that the State knowingly used false information and that the State failed to provide the pistol in discovery that was used in the armed robbery. Cherry avers that, had the grand jury known the weapon was a B.B. gun, he “most likely would have been indicted only for accessory after the fact.”

¶ 23. In order to establish prose-cutorial misconduct, the defendant must show: “(1) that the State possessed evidence favorable to the defendant; (2) that the defendant did not possess the evidence and could not have obtained it himself with reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.” Howell v. State, 989 So.2d 372, 378(¶ 14) (Miss.2008).

¶ 24. Cherry failed to show that had the B.B. gun been disclosed to the defense and that had the grand .jury known that the weapon was a B.B. gun, a reasonable probability exists that the outcome of Cherry’s proceedings would have been different. Thus, he failed to show that the State is guilty of prosecutorial misconduct. This issue is without merit.

7. Denial of Cherry’s Post-Conviction Discovery

¶ 25. Cherry claims that the circuit court acted arbitrarily and capriciously when it denied his motion for post-conviction discovery. In Fleming v. State, 553 So.2d 505, 506 (Miss.1989), the supreme court stated where “[a] prisoner who has filed a proper motion pursuant to the [Mississippi Uniform Post-Conviction Collateral Relief] Act, and whose motion has withstood summary dismissal under section 99-39-11(2) (Supp.1989), may be entitled to trial transcripts and other relevant documents in the discovery provision in section 99-39-15 (Supp.1989), upon good cause shown and under the discretion of the trial judge.” A post-eonviction-relief petitioner is entitled to post-conviction discovery for good cause shown only if his motion withstands summary dismissal. Fleming, 553 So.2d at 506.

¶ 26. Here, Cherry’s motion did not survive summary dismissal, and he failed to show good cause for the discovery which he sought. In his brief, Cherry did not show how the grant of post-conviction discovery would have helped his case, and he only alleges that his motion should have been granted. Accordingly, we find that the circuit court did not act arbitrarily or capriciously when it denied Cherry’s request for post-conviction discovery. This issue is without merit.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . “As of July 1, 2008, an amended section 99-35-101 reads, 'Any person convicted of an offense in a circuit court may appeal to the Supreme Court. However, where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.’ ’’ Cook, 990 So.2d at 793 n. 2.


author: ROBERTS, J., for the Court.

text:
    T.K., Appellant, v. H.K., Appellee.
    No. 2008-CA-01969-CGA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.

      Harry M. Yoste, Jr., attorney for appellant.
    M. Channing Powell, Gulfport, attorney for appellee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J., for the Court.

¶ 1. H.K. filed a complaint against his former wife, T.K., for modification of custody of their then two-year-old daughter, S.K. The Harrison County Chancery Court found merit to H.K’s complaint and awarded H.K. primary physical custody of S.K. T.K. appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. H.K. and T.K. were married in 2001. Their only daughter, S.K., was born in January 2003. H.K. and T.K. separated in April 2003, and nearly two years later, they divorced. At that time, they agreed that T.K. would receive primary physical custody of S.K. and that H.K. would receive visitation rights.

¶ 3. The parties had consistently lived on the Mississippi Gulf Coast. During H.K.’s visitation weekend before Hurricane Katrina made landfall on Monday, August 29, 2005, H.K. had taken S.K. to Tallahassee, Florida so she would not be in the path of the hurricane when it made landfall. Although H.K.’s visitation was scheduled to end on Sunday evening, H.K. did not return to the Mississippi Gulf Coast until the following Tuesday.

¶4. H.K. returned S.K. to T.K.’s custody. At that time, T.K. did not have electricity, food, or water. H.K. asked T.K. to let S.K. remain with him because he had a generator that was able to supply electricity to his entire house and his living arrangements were relatively unaltered by the storm damage. T.K. refused H.K’s request. During the next four days, T.K. went to H.K.’s discount beer and tobacco store twice. Each time, T.K. was allowed to take what she needed from the store.

¶ 5. During T.K.’s second trip to the store, S.K. remained in T.K.’s car with an unidentified woman. According to H.K., S.K. was dirty; she had rashes; and she suffered from numerous insect bites. H.K. again unsuccessfully asked T.K. to leave S.K. with him.

¶ 6. Without informing H.K., T.K. took S.K. to Phenix City, Alabama. H.K. attempted to call T.K., but she would not answer his calls or return his messages. H.K. did not see S.K. or communicate with T.K. for approximately two months.

¶ 7. On November 9, 2005, T.K. filed a form petition for protection from abuse against H.K. in the circuit court of Russell County, Alabama. Within the form petition, T.K. described herself as a resident of Russell County, Alabama. T.K. checked boxes and claimed that: H.K. had injured her; he had tried to injure her; he had threatened to injure her; he made her afraid she would be seriously injured; and he made her have sex by force or threat of force. Under the portion of the form that requires a written explanation of the basis for the request for protection, T.K. stated that H.K. had attempted to call her “several” times since September 8, 2005. T.K. further stated that she “ignored him till [sic] he called with my address.” T.K. elaborated on H.K.’s calls as follows:

9/12/05 — told me I better come back. 9/16/05 — He is sending his ex-wife Lujon who just got out of prison to take care of me. 10/05/05 — Left message if I know what is best I will bring [S.K.] to him. 11/08/05 — said he is coming to get [his] daughter and he knows where I am.

¶ 8. Among numerous other things, T.K. requested that the Russell County Circuit Court enjoin H.K. from the following: (1) threatening, attempting to commit, or committing acts of abuse against her or S.K.; (2) contacting her or S.K.; (3) being near her or S.K.; or (4) transferring unspecified property that she and H.K. mutually owned.

¶ 9. On December 5, 2005, the Alabama circuit court conducted a hearing on T.K/s petition. H.K. did not appear at that hearing. Two days later, the Alabama circuit court entered an order on T.K/s petition. The Alabama circuit court held that H.K. was prohibited from threatening or harassing T.K. Additionally, the Alabama circuit court held that H.K. was not allowed to contact or communicate with T.K.

¶ 10. On November 21, 2005, which was prior to the Alabama circuit court’s resolution of T.K/s petition, H.K. filed a complaint against T.K. in the Harrison County Chancery Court. Most pertinent to this appeal is H.K/s request that the chancery court modify the previous custody arrangement and award him primary physical custody of S.K. On January 13, 2006, the chancellor entered an order awarding H.K. with make-up visitation for the time that H.K. lost when T.K. kept S.K. from him with no contact. Additionally, the chancellor stated that the chancery court “shall be the arbiter or [sic] any dispute between the parties and the parties shall not seek to obtain the assistance of any court in any other jurisdiction.”

¶ 11. T.K. moved back to the Mississippi Gulf Coast in July 2006. Sometime prior to August 2006, H.K. became disturbed by things S.K. said during his visitation periods. S.K. indicated that Sergio Colon, an acquaintance of T.K/s, had sexually abused her. H.K. videotaped some of S.K.’s statements about Sergio. H.K. recorded S.K., who was three years old at that time, discussing how Sergio “licked her butt and her pee-pee.” Additionally, S.K. said that Sergio put her legs on his shoulders. S.K. demonstrated what she meant by lying on her back, widening her knees, and pulling her ankles toward her own shoulders. S.K. also demonstrated how Sergio “licked her butt and her pee-pee.” S.K. also mentioned that Sergio “held [a] turtle in him [sic] hands,” that the turtle was on her mouth, and that the “turtle pooped in her mouth.”

¶ 12. The hearing on H.K.’s complaint for modification was scheduled for August 2006. However, when the chancellor first discovered H.K.’s concerns regarding potential sexual abuse, the chancellor took emergency action. As a result, S.K. was temporarily removed from T.K.’s custody and placed in a shelter. The chancellor appointed Annette Williams as S.K’s guardian ad litem. Additionally, the chancellor appointed social worker Freída Kaletsch to conduct studies of H.K’s and T.K’s homes. Finally, the chancellor appointed J. Donald Matherne, Ph.D., a clinical psychologist, to interview S.K. regarding the assertion that she had been sexually abused.

¶ 18. On August 16, 2006, Dr. Matherne interviewed S.K. Dr. Matherne subsequently filed a written report that will be discussed in greater detail below. Paraphrasing for brevity’s sake, Dr. Matherne concluded that S.K.’s responses during the interview supported the assertion that S.K. had been sexually abused by a man named Sergio while she was in T.K.’s care.

¶ 14. However, on September 6, 2006, Williams, the guardian ad litem, filed a motion to return S.K. to T.K’s custody. Williams reported that she had interviewed T.K. and that she had “spoke[n] with” H.K., G.K., and the court-appointed social worker, among other people. Williams also stated that she based her motion on Dr. Matherne’s recommendation. The next day, the chancellor entered an order returning S.K. to T.K’s custody on the condition that Sergio have no contact with S.K.

¶ 15. Shortly after recommending that S.K. be returned to T.K.’s custody, Williams filed a motion requesting that the chancellor order T.K., H.K., and G.K. to submit to psychological evaluations. In October 2006, T.K., H.K., and G.K. agreed to undergo psychological evaluations to be performed by Dr. Matherne. Dr. Math-erne evaluated H.K. and G.K. on January 10, 2007. Dr. Matherne concluded that “there is no information to contraindicate [H.K. as] being able to function as the custodial parent of the minor child” and that H.K. “should be given consideration for the custodial placement of the minor child.” Dr. Matherne declined to reach a “definitive custodial opinion” because T.K. had yet to report for her own court-ordered psychological evaluation. Dr. Math-erne found that G.K.’s “clinical profile [was] entirely within normal limits.” Dr. Matherne went on to state that he found “no information ... to contraindicate [G.K.] functioning as a surrogate parent for [S.K.]” if the chancellor placed S.K. in H.K.’s custody.

¶ 16. The next document in the record is the May 15, 2007, report of Williams, the guardian ad litem appointed to represent 5.K. Williams recommended that the chancellor place S.K. in H.K’s custody. Williams found that it was clear that S.K. had been sexually abused by Sergio while in T.K.’s custody. Additionally, Williams was disturbed by T.K.’s denial that she had a relationship with Sergio. Williams was also disturbed by T.K’s denial that Sergio had sexually abused S.K. Williams stated that she was “quite concerned” for S.K. because, in her opinion, T.K. would not protect S.K. from future abuse or believe S.K. if she was subjected to further abuse.

¶ 17. On June 26, 2007, Kaletsch, the court-appointed social worker, filed her report. Kaletsch stated that, despite T.K.’s insistence that S.K. had not been sexually abused, based on Dr. Matherne’s report and other information, it was clear that S.K. had been abused by Sergio. Kaletsch recommended that H.K. receive custody of S.K. because it would be “very difficult for S.K. to therapeutically deal with the sexual abuse, should she remain with her mother.”

¶ 18. On July 12, 2007, T.K. finally reported to Dr. Matherne for the psychological evaluation she had agreed to undergo nine months earlier. T.K. gave Dr. Math-erne numerous excuses for failing to report earlier. After two sessions with T.K., Dr. Matherne ultimately stated that T.K.’s “clinical profile does not reveal evidence of significant psychopathology.” However, Dr. Matherne found “some degree of defensiveness in [T.K’s] responses.” Dr. Matherne also found that T.K. “seemfed] somewhat reluctant to admit to problems.”

¶ 19. Dr. Matherne stated that T.K. had “strong needs for affiliation and positive regard from others” that could “result in rather uninhibited social behavior that may be seen by others as being attention-seeking and dramatic.” According to Dr. Matherne, T.K.’s “needs for attention and affiliation can be so strong that the quality of her social interactions may be relatively unimportant as compared to their quantity.” Dr. Matherne’s “diagnostic impression” was that T.K. had what he described as an “Axis I: Adjustment Disorder.” Based on the information he obtained in his consultation, Dr. Matherne found that there was “insufficient evidence” that T.K. was aware that S.K. had been sexually abused “if in fact this abuse did occur.” Dr. Matherne also concluded “that there is insufficient evidence to place [S.K.] with anyone other than her mother.”

¶ 20. In early March 2008, the parties went to trial. Aside from the previously-mentioned reports, which had been filed prior to the trial, the chancellor heard testimony from H.K., T.K., G.K., and G.K’s adult daughter. In August 2008, the chancellor entered his judgment finding that it was necessary to modify custody and award primary physical custody of S.K. to H.K. T.K. appeals.

STANDARD OF REVIEW

¶ 21. This Court is bound by a limited standard of review regarding a chancellor’s decisions regarding child custody determinations. Johnson v. Gray, 859 So.2d 1006, 1012(¶ 31) (Miss.2003). Pursuant to that limited standard of review, we will not reverse a chancellor’s factual determination unless it was manifestly wrong or clearly erroneous. Id. Stated differently, we will not disturb the chancellor’s findings of fact if those findings are supported by substantial, credible evidence. Id. (citing Marascalco v. Mar-ascalco, 445 So.2d 1380, 1382 (Miss.1984)). However, we will reverse the chancellor’s judgment if we find that the chancellor applied an erroneous legal standard. Id.

ANALYSIS

¶ 22. T.K. claims the chancellor erred when he found that it was necessary to modify custody of S.K. When seeking to modify custody of a child, “a non-custodial party must prove [that]: (1) there has been a substantial change in circumstances affecting the child; (2) the change adversely affects the [child’s] welfare; and (3) a change in custody is in the best interest of the child.” Johnson, 859 So.2d at 1013(¶ 33) (citing Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997)). Furthermore, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child. Id.; see also Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

1. Material Change in Circumstances

¶ 23. “Modification [of a child custody order] must be based on conduct of the custodial parent that poses a danger to the mental or emotional health of the child.” Powell v. Powell, 976 So.2d 358, 361(¶ 11) (Miss.Ct.App.2008) (citing Giannaris v. Giannaris, 960 So.2d 462, 467(¶ 9) (Miss.2007)). “In determining whether a material change in circumstances has occurred, the chancellor must consider the totality of the circumstances.” Id. T.K. claims the chancellor erred when he found that there had been a material change in circumstances. We disagree.

¶ 24. In considering the totality of the circumstances, the chancellor mentioned four things that caused him to conclude that there had been a material change in circumstances: (1) his conclusion that S.K. had been sexually abused by Sergio while in T.K’s care; (2) T.K.’s refusal to believe that S.K. had been sexually abused by Sergio; (3) T.K.’s failure to inform H.K. of S.K.’s location while she and S.K. were in Phenix City, Alabama after Hurricane Katrina; and (4) T.K.’s Alabama petition for protection from abuse. T.K. claims that the chancellor erred. According to T.K., none of the rationales cited by the chancellor should have been a basis for his conclusion that there had been a material change in circumstances.

A. Abuse and T.K.’s Denial that It Occurred

¶ 25. T.K. argues that “the fact of the molestation is not, in and of itself, sufficient to create a change of circumstances” and that “[t]he important issue ... is not whether abuse occurred.” According to T.K., “[t]he important issue” is “whether [her] actions, and her denial of the allegations, constituted a danger to ... [S.K.].” T.K. then cites Morrow v. Morrow, 591 So.2d 829, 833 (Miss.1991) for the principle that “only parental behavior that poses a clear danger to the child’s mental or emotional health can justify a custody change.” Additionally, T.K. seems to attack S.K.’s credibility. According to T.K’s brief, “[t]he child also told some fairly unusual things to the psychologist which tend to reduce the credibility of her story.” Another portion of T.K.’s brief states that the “allegations of abuse arose under suspicious circumstances which should give pause to the court in its determination of whether a change in circumstances arose.”

¶ 26. However, resolution of factual disputes is always a matter entrusted to the sound discretion of the chancellor. Carter v. Carter, 735 So.2d 1109, 1114(¶ 19) (Miss. Ct.App.1999). Accordingly, we decline to reweigh S.K’s credibility or cast doubt on the assertion that S.K. had been sexually abused without first finding that there was no substantial, credible evidence to support the chancellor’s determination. Reviewing the evidence before the chancellor, we find that there was certainly substantial evidence for the chancellor’s finding that S.K. had been sexually abused while in T.K’s care.

¶ 27. We have previously discussed S.K’s statements that were recorded by H.K. S.K. made remarkably similar statements to Dr. Matherne. In his report following his evaluation of S.K., Dr. Math-erne’s stated:

[S.K.] was asked if she knew a person named Sergio. She said that Sergio “tried to get my legs on his shoulder.” She said that Sergio “took off my clothes.” She said that Sergio “took my shirt off.” She said that her mother was in the kitchen. She then said that Sergio “took my pants off and my panties.” She was specifically asked who had done this. She said, “Sergio.” She was asked why he had taken off her clothing. Her response was, “To look at my body.” She then spontaneously said, “Sergio touched me with him [sic] hands.”

Dr. Matherne went on to state that he reviewed anatomical drawings with S.K., who said that Sergio had “touched me on my belly. He touched me right here.” According to Dr. Matherne, S.K. “pointed to the vaginal area in the drawing.” Dr. Matherne also reported that S.K. said Sergio “touched ‘my pee-pee.’ ” Dr. Matherne stated that S.K. said that Sergio “put his ‘mouth right here,’ pointing to the vaginal area in the drawing ... [and] said specifically that he had put ‘his tongue’ on this area of her body.”

¶ 28. Dr. Matherne went on to report as follows:

[S.K.] said that [Sergio] had touched her “on my butt.” She said that he had touched her with his mouth and more specifically with “him [sic] tongue.” At this point, this child pointed to her tongue to indicate more specifically to this clinician what part Sergio touched her with when he came into contact with her buttocks area.

Finally, Dr. Matherne reported that, according to S.K., “she told ‘mommy and she said that he wasn’t supposed to be licking my butt and pee-pee.’ The child claims that her mother did talk to Sergio and ‘he didn’t say anything.’ She said that her mother got an officer and Sergio got handcuffed.” Dr. Matherne ultimately concluded that, “based on the information obtained in this consultation, this clinician is of the opinion that the allegation of sexual abuse is substantiated.”

¶ 29. Additionally, the chancellor could have reasonably discounted T.K.’s own credibility in stating that Sergio did not sexually abuse S.K. T.K. consistently maintained that she and Sergio did not have a romantic relationship. According to T.K., as reported by Kaletsch, Sergio was a “client.” However, Kaletsch had spoken with Georgia Laningham, who had met T.K. and S.K. in Phenix City, Alabama. Laningham told Kaletsch that her brother, Jerry Brooks, had given T.K. the use of his Lexus and had helped her get a job in a local school system. Kaletsch also reported as follows:

Ms. Georgia discussed the behavior she observed between Sergio Colon and [T.K.]. Ms. Georgia said she witnessed [T.K.] driving Sergio Colon around in Mr. Brooks’[s] Lexus. According to Ms. Georgia, Sergio is a tall (6' 4") young man who has been a client of the Lazarus Center in Phoenix [sic] City, Alabama. Ms. Georgia said she witnessed [T.K.] and Sergio kissing, holding hands, and embracing publicly. She said [T.K.] is lying when she says she was helping Sergio in any sort of official capacity. She said the public display of affection between Sergio and T.K., [sic] proved to her their relationship was romantic, not therapeutic.

Additionally, T.K. reported to Williams, the guardian ad litem, that “she was not meant to be alone.” Williams made it clear that T.K. was referencing the concept that she preferred to be involved in a relationship with someone as opposed to being single. Accordingly, the chancellor could have found that T.K. was less credible because her assertion that S.K. had not been sexually abused was based on T.K.’s motivation to lie on behalf of a man with whom she previously had a romantic interest.

¶ 30. Additionally, Dr. Matherne interviewed T.K. and found that “[t]here [was] some degree of defensiveness in [T.K’s] responses and she seems somewhat reluctant to admit to problems.” The chancellor could have found that T.K.’s refusal to admit that S.K. had been sexually abused while under her care by a man with whom she had a romantic relationship was consistent with Dr. Matherne’s conclusion regarding T.K.’s reluctance to admit to problems. In any event, it was within the chancellor’s discretion to weigh the evidence and find as a fact that S.K. had been sexually abused by Sergio while she was in T.K’s care. Furthermore, based on the finding that S.K. had been sexually abused by Sergio while she was in T.K’s care— and the fact that T.K. denied that it had occurred or that S.K. needed counseling— we find that there was substantial, credible evidence to support the chancellor’s decision that there had been a material change in circumstances.

B. T.K’s Move to Alabama

¶ 31. T.K. claims the chancellor erred when he listed her move to Alabama among the reasons he found that there had been a material change in circumstances. T.K’s relocation deprived H.K. of his court-ordered visitation with S.K. Citing Mixon v. Sharp, 853 So.2d 834, 838(¶ 10) (Miss.Ct.App.2003), T.K. argues that lack of cooperation with a non-custodial parent’s visitation is a matter that should be resolved in contempt proceedings.

¶ 32. However, T.K’s move affected more than H.K’s visitation rights. When T.K. moved, she did not tell H.K. where she was going with S.K. For two months, H.K. was uninformed of S.K.’s whereabouts. H.K. repeatedly attempted to call T.K., but T.K. admitted that she ignored his calls and messages. T.K. never told H.K. where S.K. was, how he could reach her, or when he might see her again. H.K. had no idea of whether S.K. was healthy or provided for. Moving without informing H.K. of S.K’s whereabouts and completely refusing to communicate with H.K. could reasonably be characterized as more egregious than simply failing to cooperate with H.K. regarding visitation. Based on the totality of the circumstances, the chancellor did not err when he found that T.K.’s move contributed to the material change in circumstances.

C. T.K’s Petition for Protection from Abuse

¶ 33. The chancellor commented that T.K.’s Alabama petition for protection from abuse was also a basis for his finding that there had been a material change in circumstances. The chancellor mentioned that T.K. filed her petition despite the fact that H.K. had not been to Alabama during the entire time that T.K. had secretly relocated to Phenix City, Alabama. T.K. claims that the chancellor misinterpreted her petition. T.K. claims that the chancellor should have realized that she based her petition on the concept that H.K. had made threatening phone calls to her.

¶ 34. If the chancellor did in fact misinterpret T.K’s petition, there was a basis for the chancellor’s misinterpretation. As previously stated, T.K. claimed in her petition that: H.K. had injured her; he had tried to injure her; he threatened to injure her; he made her afraid she would be seriously injured; and he made her have sex by force or threat of force. It appears that someone struck through the check marks in the boxes for “injured me,” “[tjried to injure me,” and “[m]ade me have sex by force or threat of force.” The initials “TK” appear next to the struck through cheek marks. Presumably, those are T.K.’s initials. However, it is unclear exactly when those checked boxes were struck through. The record does not indicate that those boxes had been struck through at the time the petition was filed. However, we decline to find that those boxes were not struck through at the time of the petition.

¶ 35. Even if we were to find that the chancellor erred in his characterization of T.K.’s petition, that finding would not counter our previous determination that there was substantial, credible evidence to support the chancellor’s conclusion that there had been a material change in circumstances based on the matters discussed above. Accordingly, although we do not find that the chancellor erred, if we were to find any error, it would be harmless.

2. The Change in Circumstances Is Adverse to the Child’s Best Interest

¶ 36. As for whether the change in circumstances is adverse to S.K.’s best interest, there can be no doubt that it is— particularly because S.K. indicated that she had informed T.K. about Sergio, but T.K. not only denied that it had occurred in the face of significant evidence to the contrary, she also denied that her daughter should receive counseling to cope with the abuse.

¶ 37. “Although we usually determine that a material change in circumstances has occurred based on evidence that has a present adverse effect on the child, this Court has found that ‘in limited circumstances, adverse effects exist if it is shown that it is reasonably foreseeable that the child will suffer adverse effects because the child’s present custodial environment is clearly detrimental to his or her well[-]being.’ ” Holmes v. Holmes, 958 So.2d 844, 848(¶ 18) (Miss.Ct.App.2007) (quoting Savell v. Morrison, 929 So.2d 414, 418-19(¶ 13) (Miss.Ct.App.2006)). Likewise, the child does not have to suffer actual injury before a court can find an adverse effect. Id.

¶ 38. Kaletsch, the court-appointed social worker, stated that her “concern is the fact that [T.K.] still maintains [the molestation] did not happen.” Kaletsch then opined that it would “be very difficult for [S.K.] to therapeutically deal with the sexual abuse, should she remain with her mother.” Williams, the guardian ad litem, reported that she was “quite concerned for [S.K.] [because] I do not believe her mother will believe her in the future, much less protect her should something like this happen again.” Accordingly, it was foreseeable that S.K. will be adversely affected by T.K.’s refusal to believe S.K. had been sexually abused and T.K’s refusal to believe that S.K. needs counseling to cope with being sexually abused when she was under T.K.’s care. Accordingly, we find no merit to T.K.’s claim that the chancellor erred when he found a material change in circumstances in the custodial parent’s home that is adverse to the child’s well-being.

¶ 39. In R.L.S., 807 So.2d at 1260(¶ 49), a chancellor found that there had been a material change in circumstances regarding child custody based on the fact that the child at issue in that case had been sexually abused while in the care of the custodial parent. However, the chancellor went on to hold that, despite the material change in circumstances, the previous custodial parent should retain custody of the child. Id. This Court found that the chancellor erred when he found that it was in the child’s best interest to remain with the mother, because the child had been sexually abused by a male acquaintance while in her care. Id. at 1261(¶ 54). This Court noted that the custodial mother in R.L.S. “acted in a manner to conceal or protect” the abuser and “exemplified extremely poor parental judgment.” Id. This Court also noted that “the material change in the overall living conditions ... will likely remain in the foreseeable future [and the mother] shows no responsibility for her inappropriate parental behavior, nor a propensity to change.” Id. at 1262(¶ 56).

¶ 40. In this case, while there was not any evidence that T.K. acted to conceal or protect Sergio, T.K. refused to believe that Sergio had sexually abused S.K. T.K. resolutely maintained her position despite S.K’s description of the events and Dr. Matherne’s conclusion that his interview of S.K. substantiated the child’s reports. Additionally, contrary to recommendations for court-appointed personnel, T.K. refused to believe that S.K. should attend counseling sessions to help her cope with being abused As in R.L.S., this material change in S.K.’s circumstances will remain for the foreseeable future. S.K. must now cope not only with having been sexually abused, but also with the fact that her mother does not believe that she was sexually abused. Also similar to R.L.S., T.K.’s refusal to believe that S.K. needs counseling could reasonably be considered as showing no propensity to change her opinion. The chancellor could have reasonably concluded that if S.K. were to remain in T.K’s care, that would exacerbate not only the harm S.K. suffered in the past but also the harm she will likely suffer in the future.

¶ 41. The facts regarding the molestation that occurred in R.L.S. are more developed than the facts surrounding the molestation that occurred in this case. However, the development of the facts in any case of this type are subject to the victim’s age, ability, and willingness to explain the abuse they suffered. Very young children may not even be aware that what occurred was something that must be communicated. Accordingly, the chancellor acted pursuant to his discretion when he considered S.K.’s ability as a three-year-old to communicate what had happened to her.

3. Modification of Custody Is in the Child’s Best Interest

¶ 42. The third factor of the test to determine whether it is necessary to modify a previous child custody order is whether a change in custody is in the best interest of the child. Johnson, 859 So.2d at 1013(¶ 33) (citing Bredemeier, 689 So.2d at 775). Furthermore, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child. Id. To determine whether a change in custody is in the best interest of the child, the chancellor appropriately applied the familiar Albright factors. E.g., McRee v. McRee, 723 So.2d 1217, 1220(¶ 11) (Miss.Ct.App.1998) (holding that upon a finding of a material change in circumstances, a court is to apply the Albright factors to determine which parent should have primary custody of a child).

¶ 43. The Albright factors are: (1) age, health, and sex of the child; (2) a determination of the parent that had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which parent has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of parent and child; (7) the moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright, 437 So.2d at 1005. T.K. claims that the chancellor erred in weighing six of the Albright factors.

A. Continuity of Care

¶ 44. The chancellor held that, as the prior custodial parent, T.K. provided the majority of S.K’s care. However, the chancellor went on to hold that “[t]he material change in circumstances mitigate against finding that this factor favored [T.K.]” and that “[H.K.] and [G.K.] provided an adequate and safe environment for [S.K.] while she was in their custody.” We interpret the chancellor as having found that this factor favored H.K.

¶ 45. T.K. claims that the chancellor should have found that this factor favored her. According to T.K., the chancellor should not have found that the material change in circumstances negated any favorable consideration she might have otherwise received under this factor. T.K. also argues that H.K. had little to do with S.K. after he and T.K. divorced.

¶ 46. The chancellor could have reasonably held that although T.K. technically provided the longer duration of S.K.’s care, the relatively poor quality of that care negated the fact that T.K. had technically provided chronologically longer care. The chancellor could have also considered that because T.K. absconded with S.K., T.K. contributed to the comparatively less time H.K. was able to spend with S.K. We find that the chancellor acted within his discretion when he weighed this factor.

B. Parenting Skills and Willingness and Capacity to Provide Child Care

¶ 47. The chancellor noted that “[b]oth [T.K.] and [H.K.] had adequate parenting skills and the willingness and capacity to provide primary child care to [S.K.].” The chancellor went on to state that “[T.K.] engages in activities with [S.K.] and has [S.K.] in the after school program at Bayou View elementary where [T.K.] is employed. [H.K.] reads, colors, and plays with [S.K.].” The chancellor then found that this factor “moderately” favored T.K.

¶ 48. According to T.K., rather than finding that this factor “moderately” favored her, the chancellor should have found that this factor “overwhelmingly” favored her. T.K’s argument is based on her claims that H.K.: (1) did not participate in school activities or conferences; (2) did not attend birthday parties; (3) had almost no financial involvement in [S.K.’s] life other than the minimum child support; (4) did not help with costs of S.K/s private school; and (5) was not involved with S.K.’s “extracurricular activities.” T.K. also claims that H.K. was not concerned for S.K.’s medical care “because he never contributed his share of’ S.K/s medical insurance. Finally, T.K. argues that “[H.K.] demonstrated little, if any, willingness to be a primary care giver [sic].” As T.K. does not elaborate on the basis of her final assertion, nor does she cite to any point in the record where this Court might determine the basis of such a vague and generalized assertion, we will not address T.K.’s generic claim that H.K. was not willing or expressed little willingness to be S.K.’s primary caregiver.

¶ 49. We will not reweigh the evidence to determine whether this factor “overwhelmingly” rather than “moderately” favored T.K. There was substantial evidence for the chancellor’s conclusion that this factor “moderately” favored T.K. Accordingly, we find no error in the chancellor’s characterization of the degree to which this factor favored T.K.

C. Employment of the Parent and Responsibilities of That Employment

¶ 50. Regarding this factor, the chancellor detailed H.K/s and T.K.’s respective recent employment history and held that “[w]ith [G.K.] present to assist [H.K.], this factor favored neither party. If [G.K.] were not present, it would have favored [T.K.].”

¶ 51. In so doing, T.K. re-characterizes H.K.’s employment in a more negative light and then argues, in essence, that G.K. had no impact on H.K/s employment or his employment responsibilities. T.K. concludes her argument that the chancellor should have found that this factor favored her by reiterating her employment as an educator and the fact that she does not have to work during the summer.

¶ 52. In Stark v. Anderson, 748 So.2d 838, 843-44 (¶¶ 11-12) (Miss.Ct.App.1999), this Court upheld a chancellor’s decision to modify custody based, in part, on aspects of the presence of stepparents. We find that, under the circumstances, it was within the chancellor’s discretion to consider that G.K. had some effect on H.K/s employment responsibilities. Accordingly, we find no per se error in the chancellor’s decision to include G.K. in his discussion of this factor.

D. Physical and Mental Health and Age of the Parents

¶ 53. In this factor, the chancellor discussed H.K/s and T.K.’s ages and their health. The chancellor noted that: H.K. had previously injured one of his knees; he took medication that effectively regulated his cholesterol; he does not drink alcohol; and he smokes. The chancellor also noted that H.K. did not smoke in S.K.’s presence when she was at his house. The chancellor went on to discuss the fact that T.K/s physical health was good and that she takes forty milligrams of Prozac on a daily basis to treat depression. The chancellor noted that T.K. described her dosage as a “high dose.” Finally, the chancellor discussed the fact that T.K. inconsistently told Dr. Matherne that: she took twenty milligrams of Prozac each day; she “rarely” drinks alcohol; and she “smokes occasionally, but not around [S.K.].” The chancellor then found that this factor favored H.K.

¶ 54. T.K. claims that the chancellor should have found that this factor favored neither party. T.K. argues that depression is a common ailment; she also asserts that the chancellor did not mention the fact that H.K. had taken “Wellbutrin, another medication for depression.” T.K. then states that because H.K. had taken a prescription medication for depression, the chancellor should have found that H.K. was not in any better health than she was.

¶ 55. There was substantial, credible evidence for the chancellor’s resolution of this factor. T.K. fails to mention that H.K. was prescribed Wellbutrin approximately six years prior to his interview with Dr. Matherne. T.K. also fails to mention that: H.K. only took Wellbutrin for a brief period; he did not take it at the time of Dr. Matherne’s interview; and he did not take any medication for depression at the time of the chancellor’s determination. Accordingly, we find no error based on the chancellor’s decision to omit discussion of the fact that H.K. once took Wellbutrin.

E. Moral Fitness of the Parents

¶ 56. Under this factor, the chancellor noted that: H.K. had been married five times; he lived with G.K. before they were married; and he had visitation with S.K. during that time. The chancellor then noted that: H.K. was Jewish; he did not attend synagogue, but he and S.K. would attend a reformed synagogue if he received custody of her. Next, the chancellor discussed the fact that T.K. had been married three times and that T.K. took S.K. to Bethel Lutheran Church.

¶ 57. The chancellor also mentioned that T.K. told Dr. Matherne that she took twenty milligrams of Prozac each day, while she testified at trial that she took forty milligrams of Prozac each day. The chancellor found that T.K. “misstated her Prozac dosage.” However, the chancellor stated that he “cannot find that this was intentional.” The chancellor went on to accept T.K.’s testimony that she took forty milligrams of Prozac daily and that he was “concerned Dr. Matherne may have found the 40mg dosage to have been important to his evaluation.” The chancellor then found that this factor favored neither party-

¶ 58. T.K. claims that the chancellor should have found that this factor favored her. T.K. argues that the chancellor should have considered that: H.K. smokes; smoke “constantly lingers” in H.K’s home; and S.K. is subjected to second-hand smoke when she is in H.K.’s care. There was no evidence that smoke “constantly lingers” in H.K’s home. H.K. testified that he does not smoke in S.K.’s presence and that he smokes in a separate part of the house. The chancellor could have reasonably omitted discussion of those facts on the basis that they do not tend to prove that H.K. is somehow a less moral person. Although T.K. discusses H.K’s smoking, even she does not indicate exactly how it negatively affects H.K.’s morality. Accordingly, it was within the chancellor’s discretion to omit discussion of any facts related to H.K.’s smoking in weighing H.K’s morality.

¶ 59. Next, T.K. argues that the chancellor erred because he did not discuss the fact that H.K. and G.K. had lived together before they were married, including times when H.K. had S.K. for his visitation. T.K. also points out that H.K. and G.K. lived together before she and H.K. were divorced. The chancellor could have weighed the evidence and concluded that simply because H.K. and G.K. had lived together, even during H.K.’s visitation with S.K., those facts in and of themselves do not make H.K. less moral. There was no evidence that S.K. was harmed by the fact that H.K. and G.K. had lived together before they were married. Additionally, the chancellor could have found that H.K. was not less moral simply because he and G.K. began living together sometime during the two-year time between the time that H.K. and T.K. separated and divorced. Accordingly, it was within the chancellor’s discretion to omit discussion of those facts.

¶ 60. Next, T.K. addresses the chancellor’s discussion of the discrepancy in her statements regarding her daily dosage of Prozac. T.K. interprets the chancellor as having found that she was dishonest about her daily dosage of Prozac because the chancellor found that T.K. “misstated” her daily dosage. T.K. notes that there was an eight-month difference between the time she told Dr. Matherne that she took twenty milligrams of Prozac and the time that she testified that she took forty milligrams of Prozac. T.K. states that “[n]either the attorneys nor the court inquired about the differences in those amounts.”

¶ 61. We disagree with T.K’s interpretation. The chancellor also found that there was no evidence that T.K’s misstatement of her daily dosage was intentional. The chancellor did not find that T.K. had lied about her daily dosage of Prozac. He merely found that Dr. Matherne might have found it important to his psychological evaluation of T.K. There was testimony that there was a discrepancy in T.K.’s reported daily dosage of Prozac. There was no testimony that a physician had increased her daily dosage since Dr. Math-erne’s psychological report. While the chancellor did not inquire into the basis of the discrepancy, it is not the chancellor’s responsibility to do so. If there was such a basis for the discrepancy, S.K.’s attorney bore the responsibility of ensuring that such evidence was in the record.

¶ 62. Finally, T.K. claims that the chancellor erred by not considering what she describes as “gratuitous lies” about her. During H.K’s psychological evaluation, he told Dr. Matherne that T.K. had been sexually abused by her father; she had been a “professional call girl”; she was bisexual; and T.K. had been involved with a cult. At the trial, T.K’s attorney confronted H.K. regarding those matters. H.K. specified that his knowledge of those matters was based solely on what T.K. had told him. He also testified that he believed that they were true. Contrary to T.K.’s assertion on appeal, we can find no discrepancies in what H.K. told Dr. Matherne and his testimony at trial. T.K. denied that those assertions were true. In any event, the chancellor acted within his discretion when he omitted discussion of those facts. The chancellor could have found that there was insufficient evidence to determine whether H.K. or T.K. was truthful regarding whether those things had occurred. Having reviewed T.K’s arguments under this factor regarding matters that, according to her, should have been considered during the chancellor’s discussion of this factor, we find that the chancellor acted within his discretion at all times. We find no merit to this portion of T.K’s argument.

F. Other Relevant Factors

¶ 63. Under this heading, the chancellor discussed all aspects of the sexual abuse that S.K. suffered. The chancellor also noted that T.K. denied that S.K. needed counseling. Finally, the chancellor noted that Williams, the guardian ad litem, and Kaletsch, the court-appointed social worker in this case, both recommended that H.K. receive custody of S.K. We interpret the chancellor as having found that this factor favored placing S.K. in H.K’s custody.

¶ 64. T.K. claims the chancellor erred in several aspects under this factor. First, T.K. complains that Williams and Kaletsch both failed to prepare their reports appropriately and that they exceeded their authority in recommending that H.K. receive custody of S.K. However, T.K. never raised any of those arguments before the chancellor. We will not find that a trial judge erred in failing to decide a matter that was never presented to him or her. Birrages v. Ill. Cent. R.R., 950 So.2d 188, 194(¶ 18) (Miss.Ct.App.2006). We will not consider an issue that was not first presented to the trial court. Accordingly, this portion of T.K’s argument is procedurally barred.

¶ 65. Next, T.K. points out that although Williams ultimately recommended that H.K. receive custody of S.K., Williams had also recommended that the chancellor return S.K. to T.K.’s custody after the chancellor was aware of what were, at that time, allegations that Sergio had sexually abused S.K. Williams filed her recommendation prior to the trial and stated that she believed that T.K. “is protective and will insure that no opportunity for abuse shall occur while [S.K.] is in her custody.” Be that as it may, the fact remains that, Williams appropriately considered the totality of the circumstances, and it was within her authority to recommend that it was in S.K’s best interest that H.K. receive custody of S.K. Likewise, it was within the chancellor’s discretion to concur with Williams’s recommendation.

¶ 66. Additionally, T.K. claims the chancellor erred in stating that awarding H.K. custody of S.K. was “consistent with the recommendation of Dr. Matherne following his evaluation of the child.” T.K. claims that the chancellor’s statement “is blatantly false.” According to T.K., “Dr. Matherne made no such recommendation.” T.K. points out that, after her psychological evaluation, Dr. Matherne reported that there was “insufficient evidence to indicate that [T.K.] ... would have been aware of the abuse of her daughter, if in fact this abuse did occur.” T.K. also notes that Dr. Matherne stated that there was “insufficient evidence to place [S.K.] with anyone other than her mother.”

¶ 67. The chancellor could have reasonably interpreted Dr. Matherne’s statements as Dr. Matherne’s hesitation to act as a fact-finder and determine, based on the information he heard from T.K., that S.K. had been sexually abused. Dr. Math-erne certainly did not state that, in his opinion, S.K. had not been sexually abused. Additionally, Dr. Matherne’s evaluated S.K. and reported that, in his opinion, the allegations of sexual abuse were “substantiated.” Additionally, it is possible that the chancellor was referring to other portions of Dr. Matherne’s report after evaluating S.K. or H.K. That is, the chancellor could have reasonably been referring to that portion of Dr. Matherne’s report in which he stated that nothing in H.K.’s psychological profile caused him to believe that it would not be in S.K.’s best interest that H.K. receive custody of her. We find no error under this portion of T.K.’s argument.

CONCLUSION

¶ 68. We find that the chancellor did not abuse his discretion when he found that there had been a material change in circumstances that was adverse to S.K’s best interest. Additionally, we find no error in the chancellor’s application of the Albright factors or his conclusion that it was in S.K.’s best interest that H.K. receive primary custody of S.K. Accordingly, we affirm the chancellor’s judgment modifying custody and awarding H.K. primary custody of S.K.

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ, CONCUR. IRVING, J„ CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . "Although this case was filed with the full name of the parents and child involved stated, in deference to the child involved and the facts of this case, we have chosen to use the initials of the parents and the child.” R.L.S. v. A.R.S., 807 So.2d 1251, 1252(111) (Miss.Ct. App.2001).

        . H.K.’s testimony at trial was that "[w]e had a discount beer and tobacco store.” As best we can tell, H.K. owned that store along with G.K. H.K. and G.K. were not married at the time that H.K. allowed T.K. to take items from the store.

      . It appears that someone struck through the check marks in the boxes for "injured me,” "[t]ried to injure me,” and "[mjade me have sex by force or threat of force.” The initials "TK” appear next to the struck through check marks. Presumably, those are T.K/s initials. However, it is unclear exactly when those checked boxes were struck through.

      . There was some concern that S.K. was relating that Sergio forced her to perform oral sex and that she was describing ejaculation.

      . On August 30, 2006, S.K. was placed in the custody of G.K.'s adult daughter.

      . Nothing in Dr. Matherne’s written August 2006 report contained a recommendation that S.K. be returned to T.K.’s custody.

      . A note on the first page of her report indicates that she prepared her report on September 26, 2006. However, because T.K. had yet to appear for her court-ordered psychological evaluation by Dr. Matherne, Kaletsch had waited to reach any conclusions. Kaletsch waited nine months for T.K. to schedule her evaluation.

      . T.K. told Dr. Matherne that her attorney did not give her a copy of the court order until "perhaps May 2007.” She also told Dr. Matherne that someone in his office told her that he would be out of the office for thirty days. However, Dr. Matherne stated that T.K. "would not have been told this by the office manager, as this clinician has not ever been out of town for 30 days in his 37-year career.” Additionally, T.K. told Dr. Matherne that someone in his office told her that he "did not do custody evaluations.” Dr. Math-erne ultimately considered it "unclear why there was such a significant delay in her contacting [his] office for Lher] psychological evaluation.”


author: ROBERTS, J.,

text:
    Andretti CAMPER a/k/a Dre, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01865-COA.
    Court of Appeals of Mississippi.
    Jan. 5, 2010.

      Leslie S. Lee, Jackson, Hunter Nolan Aikens, attorneys for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Andretti Camper was convicted by a jury in the Circuit Court of Simpson County of aggravated assault and sentenced by the trial court to serve a term of eight years in the custody of the Mississippi Department of Corrections. The trial court denied Camper’s motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. Camper now appeals and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED IN ACCEPTING THE STATE’S RACE-NEUTRAL REASONS FOR THE PEREMPTORY STRIKES OF THREE AFRICAN AMERICAN PROSPECTIVE JURORS FOLLOWING A BATSON OBJECTION
II. WHETHER THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 16, 2006, Camper was traveling through D’Lo, Mississippi in the passenger seat of his car while Precious Rose, Camper’s then girlfriend, drove. Tony Edwards was playing dominos in front of a café in D’Lo, and upon seeing Camper’s vehicle, Edwards decided to stop the vehicle and confront Camper. After the vehicle stopped, Edwards walked around the vehicle and began arguing with Camper because Edwards believed that Camper had been spreading rumors that Edwards was a snitch. During the argument, Edwards reached into the vehicle and slapped Camper. Subsequently, Edwards was shot in the abdomen, and Camper’s vehicle drove away from the scene. After traveling a short distance, Rose stopped the vehicle and allowed Camper to drive. Shortly thereafter, Edwards got in a car with his cousin who drove him to the hospital.

¶3. At the Simpson County Hospital, Dr. Amneuy Chiemprabha (Dr. Chiem) advised that Edwards should be transferred to University Medical Center in Jackson for observation, but Edwards decided to leave the hospital after his initial treatment. While in the hospital, Edwards was interviewed by Deputy Bernard Gunter of the Simpson County Sheriffs Department. Edwards told Deputy Gunter where the shooting had happened, and Deputy Gun-ter visited the scene and recovered a .9-millimeter shell casing.

¶ 4. Camper was indicted for aggravated assault, and a trial was held in the Circuit Court of Simpson County. During jury selection, the prosecution’s first five peremptory challenges were used to strike five African American prospective jurors, and the defense raised Batson challenges. In response, the prosecution offered race-neutral reasons for the strikes of the prospective jurors, which the trial court accepted. The specific race-neutral reasons and the trial court’s basis for accepting them -will be addressed below, as needed.

¶ 5. At trial, Camper testified that he did not have a pistol with him on the day in question. Instead, Camper stated that Edwards had a pistol tucked in the waistband of his pants, which he displayed to get Rose to stop the car, and Camper testified that he and Edwards were tussling over the pistol when it fired. Camper stated that he threw the pistol out of the car window at the scene of the shooting. Camper claimed that he reacted the way that he did because he believed that Edwards was about to shoot him.

¶ 6. Edwards testified that he did not have a pistol, and that he merely flagged the car down to stop it. Edwards stated that Camper had shot him after he slapped Camper. Edwards also admitted that he had testified in a previous unrelated trial which resulted in a conviction and that he later recanted his testimony, admitting that it was not true.

¶ 7. Rose testified that she was driving Camper’s car when Edwards stopped them; she heard them arguing; she heard a slap; she heard a gunshot a few seconds later; and after leaving the scene of the shooting, Camper threw something from the car into the woods. Rose also testified that she never saw a pistol during the incident and had no idea where the pistol came from.

¶ 8. According to Deputy Gunter, Edwards said that he had been shot by Camper. Deputy Gunter went on to testify that he had recovered a .9-millimeter shell casing from the scene, and that a pistol was never found. Deputy Gunter also testified that he had previously taken a statement from Rose. Deputy Gunter testified that Rose had previously told him that she saw a pistol in Edwards’s waistband and that Camper shot Edwards with Edwards’s pistol.

¶ 9. Dr. Chiem testified that he treated Edwards in the Simpson County Hospital emergency room for an abdominal gunshot wound, and that it was a serious bodily injury.

¶ 10. The jury found Camper guilty of aggravated assault. As previously mentioned, he was sentenced to eight years in the custody of the MDOC. From this conviction and sentence, Camper appeals.

ANALYSIS

I. RACE-NEUTRAL REASONS

¶ 11. Camper argues that the trial court erred in accepting the State’s race-neutral reasons for the peremptory strikes of three African American prospective jurors following an objection pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Camper claims that the State exercised these peremptory challenges in a raeially-discrimi-natory manner. He argues that the State failed to provide race-neutral explanations for the strikes, and the trial court failed to make determinations as to whether the State had engaged in purposeful discrimination in exercising the strikes. We disagree.

¶ 12. Our standard of review relating to a Batson challenge is well settled. “This Court reviews a trial court’s ruling on a Batson challenge with great deference and will not overturn the trial court’s ruling unless it is clearly erroneous or against the overwhelming weight of the evidence.” Pruitt v. State, 986 So.2d 940, 942(¶ 8) (Miss.2008) (citing Flowers v. State, 947 So.2d 910, 917(¶ 8) (Miss.2007)). “On appellate review, the trial court’s determinations under Batson ... are accorded great deference because they are based, in a large part, on credibility.” Coleman v. State, 697 So.2d 777, 785 (Miss.1997). “We give such deference to the trial court’s findings because the trial judge is in the best position to evaluate the demeanor and credibility of the attorney offering the gender/race-neutral explanation.” Perry v. State, 949 So.2d 764, 767(¶ 7) (Miss.Ct.App.2006) (citing Lynch v. State, 877 So.2d 1254, 1271(¶ 50) (Miss.2004)).

¶ 13. Batson provides the procedure that must be used when the defendant raises an objection based on the defendant’s belief that peremptory challenges are being used to remove members of the defendant’s race from the jury as a result of purposeful discrimination. Batson, 476 U.S. at 96, 106 S.Ct. 1712. A successful Batson challenge requires the following:

First, the defendant must establish a prima facie case of discrimination in the selection of jury members. The prosecution then has the burden of stating a racially[-]neutral reason for the challenged strike. If the State gives a racially[-]neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a factual finding to determine if the prosecution engaged in purposeful discrimination. If the defendant fails to rebut, the trial judge must base his decision on the reasons given by the State.

Thorson v. State, 721 So.2d 590, 593(¶2) (Miss.1998) (internal citations omitted). To satisfy the final requirement, the trial judge must make a determination of whether the prosecution’s race-neutral reason is merely a pretext for discrimination. Booker v. State, 5 So.3d 356, 358-59(¶4) (Miss.2008).

A. JAMES WARREN

¶ 14. With respect to prospective juror James Warren, the prosecution’s race-neutral reason was his disinterest in the proceedings and his living situation. The State explained: “I think Warren looked disinterested^] and he looked kind of sleepy. The State would also state that Warren lives in a known drug area, [that] being Bill Womack Road.” The trial court responded: “Are you excusing white jurors who live in that area?” The prosecutor answered by stating, “I didn’t see anyone else who lived on that road, Your Honor.” Camper’s attorney replied that he did not think Warren looked disinterested, and he did not know if he lived in a known drug area. The trial court accepted the prosecution’s race-neutral reason on the condition that the prosecution was excluding all white prospective jurors that lived within suspected drug areas. The trial judge was not in error because living in a high-crime area has been accepted by the Mississippi Supreme Court as a race-neutral reason for the exercise of a peremptory strike. Lynch, 877 So.2d at 1271-72(¶ 51).

B. ANNETTE LAMPTON

¶ 15. The prosecution’s reason for excluding Annette Lampton was that she “look[ed] disinterested[,] and she had her hands crossed during the voir dire procedure.” The trial court made its factual finding concerning Lampton by holding that bad body language was an acceptable race/gender neutral reason. It was not error for the judge to accept the prosecution’s reason, because body language has been accepted by the Mississippi Supreme Court as a race-neutral reason for the exercise of a peremptory strike. Id.

C. SALRINA McLAURIN

¶ 16. Regarding prospective juror Salrina McLaurin, the prosecution stated: ‘Tour Honor, Ms. McLauren looked kind of sleepy. She wasn’t paying attention.” In response, the trial judge stated that the Mississippi Supreme Court has held inattentiveness as a permissible reason provided that it is equally applied. The trial court was correct that inattentiveness is an acceptable race-neutral reason for striking a prospective juror. “Inattentiveness alone has been accepted as a race-neutral explanation for the exercise of a peremptory strike.” Horne v. State, 825 So.2d 627, 636(¶24) (Miss.2002) (citing Puckett v. State, 788 So.2d 752, 760(¶ 18) (Miss.2001)).

¶ 17. When considering a Bat-son objection, the trial court should consider the racial composition of the entire veni-re panel, the jurors considered for service, and the jurors and alternates who actually served. Trial courts and attorneys have a duty to populate the record with adequate information concerning the racial composition of prospective jurors in order for the trial and appellate courts to fully analyze the voir dire proceedings. It is extremely difficult, if not impossible, for an appellate court to declare the trial judge’s decision as clearly erroneous or against the overwhelming weight of the evidence without knowing the racial and/or gender composition of the venire and petit jury. The record before us does not contain adequate information to determine the racial composition of the venire or petit jury. With that limitation, we have considered the race-neutral reasons offered by the State.

¶ 18. Following a careful study of the record and case law, we find that Camper has not met his burden of proving purposeful discrimination by the State in its use of peremptory strikes. Therefore, the trial court’s rulings were not clearly erroneous or against the weight of the evidence. This issue is without merit.

II. WEIGHT OF THE EVIDENCE

¶ 19. Camper argues that the verdict is against the overwhelming weight of the evidence. “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). This Court sits as a hypothetical “thirteenth juror.” Id. We weigh the evidence in the light most favorable to the verdict. Id. If we disagree with the verdict of the jury, a new trial must be granted. Id.

¶20. Camper claims that “the witnesses whose testimony provided the evidence necessary to convict Camper was remarkably suspect and incredible.” Camper first attacks the testimony of Edwards. Edwards testified that Camper had a pistol on the day in question, and that Camper shot him with it. Edwards further testified that he did not have a pistol. Camper points out that Edwards admitted that he had previously testified in a criminal trial which resulted in a conviction and that he later recanted his testimony, signing an affidavit stating that his previous testimony was false. In other words, Edwards admitted to giving dishonest testimony at trial at least once before. Edwards’s previous false statement was brought before the jury during Camper’s cross-examination of Edwards.

¶ 21. Next, Camper attacks the testimony of Rose, claiming that Deputy Gun-ter’s testimony rebuts Rose’s testimony. Rose testified that she did not see a pistol during the incident, on either Camper or Edwards, and that she did not give a statement to Deputy Gunter. However, Deputy Gunter later testified that he had taken a statement from Rose in which she stated that she saw a pistol in Edwards’s waistband, and he stated that she told him that Camper used Edwards’s pistol to shoot Edwards.

¶ 22. We have long held that the jury is the sole judge of witnesses’ credibility. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). “[W]hen the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony. This wise rule applies with equal force to the [Sjtate’s witnesses and the appellant’s witnesses, including the appellant himself.” Id.

¶ 23. “A person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.” Miss.Code Ann. § 97-3-7(2) (Supp.2009). The State’s proof met the elements of aggravated assault. The State introduced this evidence through the testimony of Deputy Gunter, Edwards, and Dr. Chiem. As previously stated, Camper attempted to rebut the State’s evidence with the testimony of Camper, Rose, and with a second examination of Deputy Gunter. “[T]he credibility of witnesses is not for the reviewing court.” Id. The jury in this case was aware of the facts that led the appellant to argue that the testimony was “remarkably suspect and incredible.” Viewed in the light most favorable to the jury’s verdict, the record reflects that the verdict is not against the overwhelming weight of this evidence. This issue is without merit.

CONCLUSION

¶ 24. We find that Camper’s arguments are without merit for the aforementioned reasons stated. The conviction and sentence are affirmed.

¶ 25. THE JUDGMENT OF THE SIMPSON COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SIMPSON COUNTY.

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