author: BEAM, JUSTICE,

text:
    John K. HAMILTON v. Kidron S. Wise YOUNG
    NO. 2015-IA-01260-SCT
    Supreme Court of Mississippi.
    02/16/2017

      ATTORNEY FOR APPELLANT: WILLIAM WAYNE SMITH
    ATTORNEYS FOR APPELLEE: ROY 0. PARKER, JR., T. K. MOFFETT
   BEAM, JUSTICE,

FOR THE COURT:

¶ 1. This interlocutory appeal arises from the registration of an Ohio-issued divorce decree in the Lee County Chancery Court and a subsequent petition for modification by the obligee, a Mississippi resident. Asserting the continuing and exclusive jurisdiction of the Ohio court in matters involving the modification and alteration of the decree, the obligor-father appeals the chancery court’s denial of his motion to dismiss the obligee-mother’s complaint for modification of the decree. Reviewing the procedural history and the facts of the case, we find that (1) neither the Ohio court nor the parties consented in writing to the transfer of jurisdiction, and (2) because evidence indicates that the Ohio court never relinquished jurisdiction, that court is the proper forum for proceedings on modification. Thus, this Court reverses the chancery court’s ruling and enters judgment in favor of the father, dismissing the mother’s complaint for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 10, 2010, the Court of Common Pleas in Muskingum County, Ohio, entered a judgment granting the divorce of Appellant John Hamilton and Appellee Ki-dron Wise Young. The judgment entry and divorce decree dissolved the parties’ marriage and provided for the care, custody, control, and support of their minor child, Adelie Wise-Hamilton. Through the decree, Young received residential parent and legal custodian status with regard to Adelie. The decree made Hamilton the nonresidential parent with requirements to abide by a parenting schedule as outlined by the parties’ separation agreement.

¶ 3. Some time after the divorce became final, Young and Adelie moved to Mississippi. Once settled, Young registered the 2010 divorce decree with the Lee County Chancery Court, in accordance with Mississippi Code Sections 93-25-81 and 93-25-83. By registering the decree with a Mississippi court, the order became enforceable in the same manner and subject to the same procedures as an order issued by a court in this state. Miss. Code Ann. § 93-25-85 (Rev. 2013). However, while the Lee County court gained the ability to enforce the decree, the registration did not authorize it to modify or amend the order as long as the Ohio courb-the issuing tribunal-maintained jurisdiction. Id. Eight months later, but prior to an entry of registration by the court, Young amended her complaint to include a request that the court assume jurisdiction of the case pursuant to Mississippi Code Section 93-25-101.

¶4. In an order dated July 30, 2013, nunc pro tunc July 15, 2013, the Lee County Chancery Court registered the Ohio decree, granting full faith and credit to the judgment. Additionally, without elaboration, the court assumed jurisdiction “of all matters relating to the minor child including, but not limited to: custody, visitation, and support, pursuant to Section 93-25-101.” The order was certified and shared to be “spread upon the minutes” of the Ohio court.

¶ 5. Less than one month later, on August 21, 2013, the Ohio court held a hearing on Hamilton’s motion to modify parental rights and responsibilities. Without reference to the Lee County court’s July 30th order, the Ohio court ruled that, because Hamilton still resides in Muskin-gum County, it maintains jurisdiction over all matters relating to Adelie. Finding that the parties had reached an agreement as to all issues presented, the court modified the original divorce decree to represent that the parties reside in separate states and entered an order reflecting the arrangement outlined in the judge’s settlement memorandum. Signed by both parties and their attorneys, this memorandum modified the original parenting arrangement and its visitation schedule. Although not dated when signed, the order on this hearing was entered by the clerk of Ohio court on September 6, 2013.

¶ 6. In November 2014, the Ohio court again amended the 2010 decree. Upon the recommendation of the Muskingum County Department of Job and Family Services, Child Support Division, the court decreased the amount of monthly support Hamilton was required to provide for Ade-lie’s care and maintenance. These changes in support were to be effective retroactively, beginning on November 1, 2014.

¶ 7. Aggrieved, in May 2015, Young filed in Lee County Chancery Court a complaint for modification of the September 2013 and November 2014 Ohio orders. Hamilton then timely responded with a motion to dismiss the action based on the Ohio court’s continuing, exclusive jurisdiction over the matter. Citing the Muskingum County court’s September 2013 order, Hamilton asserted that because he continues to reside where the cause of action originated, the Ohio court maintains jurisdiction over matters involving Adelie. The Lee County Chancery Court held a hearing on the matter on August 12, 2015, and ultimately denied Hamilton’s motion. Referencing a conversation held between the Lee County chancellor and the Ohio court prior to the July 2013 order, the court ruled that the Ohio judge had relinquished jurisdiction, upon which the Lee County Chancery Court assumed jurisdiction and granted full faith and credit to the Ohio divorce decree. The court also held that, although Hamilton referenced the September 2013 order as an indication of Ohio’s continuing jurisdiction, that order was not dated and therefore not proper.

¶ 8. On appeal, Hamilton presents one issue and asks this Court:

I.Whether the Lee County Chancery Court erred when it denied the Motion to Dismiss for Lack of Jurisdiction under the Uniform Child Custody, Jurisdiction, and Enforcement Act.

In her response, Young presents two additional issues for review:

II. Whether Hamilton is estopped from challenging an order of the Chancery Court two years after its entry, by filing a Motion to Dismiss for lack of jurisdiction.

III. Whether Mississippi’s jurisdiction in this matter can be challenged by a court in Ohio without finding that Ohio is the more convenient forum.

Because these issues contain mixed requirements for review, the standard of review for each issue is addressed, independently, prior to its analysis.

LAW AND ANALYSIS

I. Whether the Chancellor erred in denying the Motion to Dismiss for Lack of Jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.

¶ 9. Jurisdictional questions involving divorce decrees, child-support agreements, and custodial arrangements are issues familiar to this Court, and several cases before today have asked similar questions. See Edwards v. Zyla, 207 So.3d 1232, 2016 WL 6822419 (Miss. 2016)(Motion for rehearing denied 2/2/17; mandate issued 2/9/2017); Grumme v. Grumme, 871 So.2d 1288 (Miss. 2004); Dep’t of Human Servs. v. Shelnut, 772 So.2d 1041 (Miss. 2000); Bradshaw v. Bradshaw, 418 So.2d 64 (Miss. 1982). What sets this action apart from those previously decided is the question of fact surrounding the apparent waiver of jurisdiction by the Ohio court, and whether that apparent waiver effectively granted the Lee County Chancery Court authority over all issues related to the minor child. We hold that it does not.

¶ 10. While Hamilton asks the Court to review the jurisdictional issue under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) at the time of filing, the matter sub judice remained governed by both the UCCJEA and the Uniform Interstate Family Support Act (UIF-SA). Because Young’s complaint involves a modification of both the visitation arrangement and child-support payments, the questions pertaining to custody are reviewed under the requirements of the UC-CJEA, and those relating to child support are analyzed under the UIFSA.

A. Standard of Review

¶ 11. “This Court will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” R.K. v. J.K., 946 So.2d 764, 772 (2007) (citations omitted). While the issue of “whether a court had jurisdiction under the UCCJEA to hear a child-custody dispute is a question of law, which we review de novo[, ... ] the factual findings underpinning the jurisdiction question are reviewed under the familiar substantial-evidence and abuse-of-discretion standards.” Clifton v. Shannon, 93 So.3d 70, 72 (Miss. Ct. App. 2012). Therefore, we review the issue of whether the chancellor properly assumed jurisdiction of this case under the UCCJEA and UIFSA using the de novo standard, while the facts of this matter are reviewed using substantial evidence and abuse of discretion standard.

B. Child Support Modification under UIFSA

If 12. In his July 2013 order, the Lee County chancellor made a factual determination which ultimately vested jurisdiction of this matter in his court. After conferring with the Ohio court, the chancellor concluded that Ohio had relinquished jurisdiction, making the Lee County Chancery Court the appropriate forum for all matters related to the minor child. Thereafter, the chancellor assumed jurisdiction for future proceedings and issued an order to that effect, without any discussion or written record of the meeting between the two courts. In light of the information in the record and the subsequent Ohio orders in September 2013 and November 2014, we find that the chancellor’s uncorroborated assumption of jurisdiction in July 2013 is not enough to transfer the authority to modify an existing child support agreement from Muskingum County, Ohio, to Lee County, Mississippi. Under Section 93-25-17(3) of UIFSA, Mississippi courts shall recognize the continuing, exclusive jurisdiction of the tribunal of another state which has issued a child support order pursuant to the act or a substantially similar law. Miss. Code Ann. § 93-25-17(3) (Rev. 2013). Having fully adopted UIFSA, the applicable Ohio statute is identical to Mississippi’s law on modifying support orders of another state. The laws provide, in pertinent part:

(A) A tribunal of this state that has issued a child-support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child-support order if the order is the controlling order and either of the following applies:
(1) At the time of the filing of a request for modification, this state is the residence of the obligor, the individual obli-gee, or the child for whose benefit the support order is issued.
(2) Even if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.
(B) A tribunal or support enforcement agency of this state that has issued a child-support order consistent with the law of this state may not exercise continuing, exclusive jurisdiction to modify the order if either of the following applies:
(1) All of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction.
(2) Its order is not the controlling order.

Ohio Rev. Code Ann. § 3115.205 (emphasis added). Because “the purpose of UIFSA is to create certainty as to a single state that can modify the child support order,” determination of continuing, exclusive jurisdiction and the authority to modify such judgments in Mississippi is analyzed under a multi prong statute. Gnimme, 871 So.2d at 1290. The statute—Mississippi Code Section 93-25-101—allows “[t]he issuing state [to retain] continuing, exclusive jurisdiction until another state (registering state) acquires jurisdiction. The continuing, exclusive jurisdiction of the issuing state remains in effect as long as one of the parents or the child still resides in the issuing state, unless the parties agree to the contrary.” Grumme, 871 So.2d at 1290. Therefore, for a Mississippi court to assume jurisdiction of another state’s support judgment under UIFSA, no parties may remain in the state which issued the judgment; or, if a party remains in the issuing state, then both parties may agree—on the record—to the transfer of jurisdiction.

¶ 13. As noted above, Hamilton has maintained continued residence in Muskin-gum County, Ohio, since the 2010 divorce decree was entered. Although Young and Adelie relocated to Mississippi, Hamilton’s continued residence in Ohio fulfills the requirement for that state to maintain jurisdiction under UIFSA and Ohio Code Section 3115.205(A)(1). While the Lee County chancellor’s July 2013 order asserts that his conversation with the Ohio judge vested in his court jurisdiction over all matters relating to the minor child, under UIFSA, this conversation was not enough. Both Hamilton and Young must have filed consent in a record with the Ohio court, stating that the Lee County Chancery Court has jurisdiction over either one of the parties or the minor child, and that it may modify the order and assume continuing, exclusive jurisdiction over the matter. Because neither the trial record nor the parties provide any evidence indicating such a submission was made to either the Mus-kingum County or the Lee County courts, it follows that the Lee County court never acquired jurisdiction over this case. Therefore, the chancellor’s assertion of jurisdiction over child-support agreements fails under UIFSA, and any orders issued which indicate the contrary are reversed.

C. Custody Modification under the UCCJEA

¶ 14. Under the UCCJEA, the process for a state to relinquish its jurisdiction on child-custody matters also is detailed through identical statutes in the Ohio and Mississippi codes. Mississippi Code Section 93-27-203 provides that “a Mississippi court ‘may not modify a child custody determination made by a court of another state unless’ a Mississippi court ‘has jurisdiction to make an initial determination [of custody] under [Mississippi Code] Section 93-27-201(a) or (b)[.]’ Thus, the first step in any analysis regarding a Mississippi court’s right to modify another state’s existing custody determination begins with determining whether a Mississippi court satisfies either Section 93-27-201(l)(a) or Section 93-27-201(l)(b).” Edwards, 207 So.3d at 1236, 2016 WL 6822419, at *3.

¶ 15. Here, the Lee County Chancery Court meets the initial requirement under Section 93-27-201(a). That section mandates that Mississippi be “the home state of the child on the date of the commencement of the proceeding.” Miss. Code Ann. § 93—27—201(l)(a) (Rev. 2013). For Mississippi to be considered the home state of the child, Adelie must have “lived with a parent for at least six consecutive months immediately before the commencement of the custody proceeding.” Edwards, 207 So.3d at 1236, 2016 WL 6822419 at *3, (citing Miss. Code Ann. § 93-27-102(g)). Because Young and Ade-lie moved to Mississippi soon after the 2010 divorce decree was entered and remained within the state consecutively for more than six months prior to the decree’s registration in Mississippi, the Lee County court was correct in determining that Mississippi is Adelie’s home state.

¶ 16. Having satisfied subpart (a) of Section 93-27-201, the analysis to determine whether Lee County had jurisdiction to modify the custody arrangement continues to Section 93-27-203. Part (a) of the statute provides that the chancellor could modify the custody determination if “the court of the other state determines it no longer has exclusive, continuing jurisdiction under [UCCJEA] Section 93-27-202, or that a court of this state would be a more convenient forum under [UCCJEA] Section 93-27-207.” Miss. Code Ann. § 93-27-203(a) (Rev. 2013). Part (b) provides that if “a court of this state or a court of the other state determines that neither the child, the child’s parents, nor any person acting as a parent presently does not reside in the other state,” then a court of this state may assume jurisdiction to modify a child custody determination made by the court of the other state. Id. 93-27-203(b). As discussed below, Hamilton’s continuing residence in Muskingum County causes the analysis to fail under both (a) and (b).

¶ 17. For part (a), the Act defines exclusive, continuing jurisdiction in Section 93-27-202, providing that a court which has made a child custody determination consistent with the UCCJEA will have jurisdiction over the determination until a court of that state determines that neither the child nor her parents have a significant connection with the state, or a court of that state or of another state determines that the child, the child’s parents, and any person acting as a parent currently do not reside in that state. Miss. Code. Ann. § 93-27-202 (Rev. 2013). In short, if the parents or the child neither reside in nor maintain a significant connection with the issuing state, then its jurisdiction can be terminated.

¶ 18. In applying this rule to Section 93-27-203(a) and (b), the chancellor’s assumption of jurisdiction was in error. Because Hamilton has not moved from Muskingum County since the divorce decree was entered, the Ohio court maintained continuing and exclusive jurisdiction over the case. Additionally, in looking to the second half of part (a), for Mississippi to be considered a more convenient forum, the Ohio court must at the very least have determined that the Lee County court was the proper forum based on the factors outlined in Ohio Code Section 3127.21. The record submitted to this Court contains no information indicating the Ohio court’s consideration under the statute, nor do the parties assert that a motion was made to determine whether the Ohio court was a convenient forum. Accordingly, under the statute, the chancellor erred in assuming jurisdiction over any custody matters.

¶ 19. Finding that the chancellor erred under the applicable statutes, we also find that he erred under relevant Mississippi caselaw. As explained above, the evidence in the record does not support the view that either the Ohio court or the parties agreed to relinquish jurisdiction to the Lee County court. The record includes no information regarding the conversation between the chancellor and the Ohio court, and there is no information indicating that the parties assented to the change. Without more, Mississippi caselaw fails to support the chancellor’s actions.

¶ 20. While the issue before us is new to this Court, the Mississippi Court of Appeals, in Nelson v. Halley, 827 So.2d 42 (Miss. Ct. App. 2002), explained that consent to modify an order from another court which has exclusive jurisdiction is to be effected through a filed writing:

[A state may modify a support order, if it finds that the] child or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state and all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over the order.

Halley, 827 So.2d at 49-50 (quoting Miss. Code Ann. § 93-25-101(l)(b) (Supp. 2001)). The chancellor in today’s case neither required consent from the parties nor submitted minutes of his conference with the Ohio court to the record. Further, the Ohio hearing—which took place just one month after the judgment was registered in Mississippi—reasserted jurisdiction in Muskingum County, amending the decree and adjusting the parties’ visitation arrangement. The November order—issued one year later by the Ohio court—modified Hamilton’s child-support obligations, again indicating that the Ohio court had not waived its jurisdiction. These subsequent orders and the lack of recorded consent between the courts and the parties indicate that the chancellor’s assumption of jurisdiction goes “clearly against logic and effect of such facts as are presented,” suggesting the chancellor committed an abuse of discretion. Douglas v. Burley, 134 So.3d 692, 697 (Miss. 2012).

¶21. Therefore, because Hamilton resides in the state with continuing and exclusive jurisdiction over this matter, and neither the parties nor the Ohio court consented-on the record-to transferring jurisdiction to the Lee County Chancery Court, the Ohio court neither waived nor relinquished its control over matters pertaining to the parties’ divorce decree or the care of the minor child. For these reasons, we hold that the chancellor erred in denying Hamilton’s motion to dismiss.

II. Whether the Appellant is es-topped from challenging an order of the Chancery Court two years after its entry, by filing a Motion to Dismiss for lack of jurisdiction.

¶ 22. This Court employs a de novo standard of review when considering the appeal of a motion to dismiss. Johnson v. Thomas ex rel Polatsidis, 982 So.2d 405, 409 (Miss. 2008). Likewise, it uses the same standard when determining questions of law including limitations issues, timeliness, and standing. Mitchell v. Progressive Ins. Co., 965 So.2d 679, 682 (Miss. 2007).

¶ 23. Following Young’s registration of the decree and support order, Hamilton submitted to the personal jurisdiction of the court for purposes of enforcement of the decree and nothing more. Under UIFSA, “[t]he proper procedure to be followed by a foreign jurisdiction seeking enforcement of a child support order is to send a request for registration with the order to the appropriate tribunal in Mississippi. Miss. Code Ann. § 93-25-83 (Supp. 1999). A registered order ‘is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.’ ” Shelnut, 772 So.2d at 1044-45 (citing Miss. Code Ann. § 93-25-85(2) (Supp.1999)). “As long as the issuing state retains its continuing, exclusive jurisdiction over its child support order, a registering sister state is precluded from modifying that order.” Halley, 827 So.2d at 47 (citing 9 ULA Uniform Interstate Family Support Act § 611 cmts. (1999)).

¶ 24. Further, a complaint for registration of a foreign child support judgment in Mississippi does not require a responsive pleading. Under Sections 93-25-81 and 93-25-83 of the Mississippi Code, registration of the order does not require that litigation be commenced. However, when combined with the request to modify a support order or visitation arrangement, the pleading must be answered or defenses are otherwise waived. See Miss. Code Ann. § 93-25-97. Here, Young’s First Amended Complaint for Registration of Foreign Judgment and for Other Relief requested the chancery court to register the Ohio judgment, give that judgment full faith and credit, and assume jurisdiction over the matter. As detailed above, Ohio maintained “a sufficient interest in the modification of its order,” preventing Mississippi from assuming jurisdiction spontaneously. Halley, 827 So.2d at 47. Accordingly, Hamilton had no reason to challenge the registration of the decree; and therefore, he had no need to object to the amended complaint.

¶ 25. Alternatively, Young argues that the Lee County court properly assumed jurisdiction, and the chancellor’s determination that Mississippi is a more convenient forum under Mississippi Code Section 93-27-202 and 93-27-203 was appropriate. However, as previously discussed, the chancellor’s failure to request consent of the parties or to document his finding on jurisdiction in the record preserved Ohio’s control over this matter. See Halley, 827 So.2d at 52 (Court of Appeals found that the chancellor’s custody modification under the UCCJEA was appropriate because it was recorded and signed by both parties and their counsel). Moreover, because the Lee County court did not properly assume jurisdiction over the matter, Hamilton cannot have waived his ability to challenge it. Therefore, finding that Young’s request for registration did not require a response, and the chancellor’s assumption of jurisdiction was improper, we hold that Hamilton’s motion to dismiss was timely filed.

III. Whether Mississippi’s jurisdiction in this matter can be challenged by a court in Ohio without finding that Ohio is the more convenient forum.

¶ 26. Whether the chancery court has jurisdiction to hear a particular matter is a question of law which this Court reviews de novo. Miss. Dep’t of Human Servs. v. Watts, 116 So.3d 1056, 1058 (Miss. 2012). However, “the findings made by a chancery court sitting as a finder of fact are reviewed under the substantial evidence/manifest error standard. Shearer v. Shearer, 540 So.2d 9, 11 (Miss. 1989). This standard provides that the findings of the chancellor will not be reversed if supported by substantial evidence; or that the finding will be upheld unless manifestly in error.” Stowers v. Humphrey, 576 So.2d 138, 140 (Miss. 1991). Because the chancellor independently made a factual, off-the-record, determination that Lee County was the more convenient forum the substantial-evidence standard applies to this issue.

¶ 27. As clearly outlined through the language of Mississippi Code Section 93-27-203 and the analysis provided under Issue I above, the chancellor’s assumption of jurisdiction over this matter was not supported by the evidence and was manifestly in error. As the record fails to show that the Ohio court relinquished jurisdiction, or that the parties and the courts determined Mississippi was a more convenient forum, Young’s argument fails under both the UCCJEA and UIFSA. Because the issues of jurisdiction and forum conveniens have been addressed thoroughly and serve as dispositive answers to the questions presented under this issue, we will not address the additional procedural arguments outlined by Young.

CONCLUSION

¶ 28. The principle of comity suggests that “courts of one state or jurisdiction will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and mutual respect.” Comity, Black’s Law Dictionary 267 (6th ed. 1990). This is the basic principle defining the constitutional requirement that state courts grant full faith and credit for the child-support and custody judgments of sister states. Laskosky v. Laskosky, 504 So.2d 726, 729 (Miss. 1987); see also U.S. Const. Art. IV § 1; 28 U.S.C.A. §§ 1738A, 1738B. Without evidence of the Ohio court’s waiver of jurisdiction and the parties’ consent to transfer jurisdiction to the Lee County court, the chancellor’s assumption of jurisdiction and apparent disregard for the longstanding principle of comity cannot be affirmed. Therefore, because this Court finds that the chancellor erred in denying Hamilton’s motion to dismiss, we reverse the judgment of the Lee County Chancery Court and render judgment in favor of Hamilton, dismissing Young’s complaint for lack of jurisdiction.

¶ 29. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN, MAXWELL AND CHAMBERLIN, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.

      . The relevant portion of Mississippi Code Section 93-25-101 describes the residency requirements for this state to modify a child support, order issued in another state, after having been registered here. Miss. Code Ann. § 93-25-101 (Rev. 2013). Those requirements are detailed in Issue I, as applicable.

      . Moreover, both parties assented to the Ohio court's continuing and exclusive jurisdiction though its September 2013 order. While neither Young nor her attorney signed the order before it was entered, Young and her attorney signed the attached Settlement Memorandum, from which the judge crafted the order. Aside from the court’s confirmation of jurisdiction on the matter, all material language included in the order is conveyed in that memo. By signing the memo and agreeing to the amend-mente, Young confirmed that the Ohio court maintained control over the matter and any changes to the divorce decree. Further, because Young failed to object to the order after it was entered, the ruling controls and the court’s reiteration of jurisdiction is proper.

      . See Miss. Code Ann. § 93-25-205 (Rev. 2013).

      . [U]pon petition, a tribunal of this state may modify a child support order issued in another state which is registered in this state, if, after notice and hearing, it finds that:
      (a) The following requirements are met:
      (i) Neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;
      (ii) A petitioner who is a nonresident of this state seeks modification; and
      (iii) The respondent is subject to the personal jurisdiction of the tribunal of this state; or
      lb) This state is the state of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.
      Miss. Code Ann. § 93-25-101(Rev. 2013).

      . This is Ohio’s statute which reads identically to Mississippi Code Section 93-25-207, Both statutes allow for the parties to submit information to the court regarding forum convenience. The court considers this information, along with the statute's listed factors, in determining whether the current forum is appropriate.

      . The revised version of this statute (applicable to this case) is substantially similar:
      (b) [A state may modify a support order, if it finds that this] state is the state of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this state, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction.

        Miss. Code Ann. § 93—25—101(l)(b) (Rev. 2013).

      . Mississippi Court of Appeals cases Nelson v. Halley, 827 So.2d 42 (Miss. Ct. App. 2002) and Gowdey v. Gowdey, 825 So.2d 67 (Miss. Ct. of App. 2002) present similar scenarios regarding UIFSA and UCCJEA governed issues in which the court determined that Mississippi courts could not assume jurisdiction over child-support and custody arrangements when the court of another state maintained exclusive and continuing jurisdiction. Directly applicable to the case at hand, these decisions confirm the chancellor’s error if the Court decides that he independently transferred jurisdiction to Lee County.

      . Although citing to the statute updated in 1999, the version applicable to the case today has the same effect as the language in Shel-nut. Mississippi Code Section 93-25-85(2) states that "[a] registered order issued in another state is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” Miss. Code Ann. § 93-25-85(2) (Rev. 2013).


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Jason MCMANUS, Appellant v. STATE of Mississippi
    NO. 2015-KA-00705-COA
    Court of Appeals of Mississippi.
    08/16/2016
    Rehearing Denied January 24, 2017

      OFFICE OF STATE PUBLIC DEFENDER, BY: BENJAMIN ALLEN SU-BER, FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE, FOR APPELLEE
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   BARNES, J.,

FOR THE COURT:

¶1. A Rankin County jury found Jason McManus guilty of the sexual battery of Vicki, who is the daughter of his former girlfriend and current wife, Melanie. The trial judge sentenced McManus to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years suspended and five years of supervised probation. McManus now appeals, arguing the verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.'

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. In 2010, Vicki testified that when she was fourteen years old, McManus and her mother, Melanie, started dating. Shortly thereafter, McManus moved in with Vicki and her mother in Pearl, Mississippi. Vicki had known McManus “pretty much [her] whole life.” Initially, Vicki did not like McManus, but over time he became “like [her] best friend—[she] could tell him anything.”

¶3. One such conversation occurred when Vicki was fifteen years old. Vicki testified that McManus was the first person she told about losing her virginity. She “told him that it was hurting, and ... he said that he wanted to help it not hurt.” On that day, no sexual incident occurred between them, but on a later day, one did. Vicki testified that she and McManus went to the Easy Stop convenience store in Pearl to get her mother a Diet Coke and some ice cream. McManus instructed Vicki to call her boyfriend, because he wanted to “help” her. After they had- parked, Mc-Manus told Vicki to pull down her pants and underwear. Vicki was talking to her boyfriend when McManus “put his hand in [her] vagina.” She did not “fight him off.” Feeling uncomfortable though, Vicki told her boyfriend she had to go. Her clothes were pulled down to her knees. They did not speak on the way home. Once home, Vicki went to her bedroom. She did not tell her mother about the incident because Vicki thought her mother would not believe her.

¶4. Even after this incident, though, Vicki continued to consider McManus one of her best friends, and they remained close. She testified that McManus was somebody that “was there for [her],” and somebody to whom she could talk. Vicki testified that the inappropriate touching also continued on occasion, when they would go to the store together. Even so, Vicki admitted that McManus never physically hurt her or threatened her in any way. McManus also provided for her family financially, working at the Nissan manufacturing plant in Canton, and then for an offshore drilling company.

¶5. The abuse went past-touching when Vicki told McManus she wanted an iPod for a late birthday or early Christmas present. He told her he could get one from a coworker at Nissan. One day when Vicki came home from school, McManus told her that he had obtained an iPod for her, but the only way she could get it was to have sex with him twice. Initially she refused, but then agreed. Melanie was at work, and McManus was home alone with Vicki in the late afternoon because he worked the night shift at Nissan. Vicki was fifteen years old at the time and testified the incident occurred between November and December 2011. She remembered this time period because it was after she had lost her virginity in June or July 2011, after she had turned fifteen years old, but before McManus had proposed to her mother.

¶6. Vicki testified in detail about the incident. McManus told her to go to the bathroom, get a towel, and remove her tampon. She complied, and then went into her mother’s bedroom. McManus laid the towel down on the bed; Vicki lay sideways while he remained standing. She took her shorts and underwear off. McManus “pulled his penis out of the hole of his boxers,” and put on a condom. She testified that “he stuck his penis in my vagina,” but she started “scooting back because ... I had changed my mind.” She told him if he did not stop, she would tell her mother, at which point McManus “jumped up and said, ‘what am I doing? I can’t do this. You’re my stepdaughter or you’re like my daughter.’ ”

¶7. Vicki testified that the encounter lasted less than a minute. She put her clothes back on and went to the living room, crying. Ultimately, McManus gave her the iPod. This incident was the only time McManus had sexual intercourse with Vicki, and he never inappropriately touched her again. He did, however, talk to her about having sex again.

¶8. The sexual abuse came to light when Vicki told a family friend that McManus kept asking her to have sex. The family friend told Melanie while she was at work. When Melanie came home, she confronted both Vicki and McManus about the allegation. McManus started crying and said it was just a joke, but Vicki admitted it was true. That same evening—May 18, 2012— McManus proposed to Melanie, who asked her daughter if she felt uncomfortable about it. Vicki responded she did not; so Melanie agreed. McManus and Melanie were married in August 2012.

¶9. During an argument, Vicki finally told her mother about McManus having sex with her. Melanie had caught Vicki with her boyfriend over at her grandmother’s house. Melanie kept telling Vicki how disappointed McManus would be with her actions, and what a great person McManus was. Angry, Vicki asked her mother that if McManus was such a great person, why did he have sex with her. Vicki testified that her mother was shocked at Vicki’s accusation, and did not believe her. Vicki related that Melanie told her to pack up her things, and sent her to live with her estranged biological father. This arrangement lasted approximately one week before Vicki called her mother asking to return home, as she and her father were living mostly in motel rooms and fought all of the time. Vicki testified she wanted a more “stable place” to live, even though McManus was there occasionally.

¶10. While Vicki was living with her father, Vicki’s godmother, Andrea Hale, asked Vicki about McManus’s having sex with her. Initially, Vicki told Hale that it was true, but later that day Vicki recanted because she was tired of Hale asking her questions.

¶11. After the disclosure to her mother, Vicki did not go to the hospital, and did not inform law enforcement for nearly two years about the sexual abuse because “it was in the past and it was over.” Additionally, no abuse had occurred in a while, and Vicki “felt like it should [be] left alone.”

¶12. However, on October 6, 2013, Officer Jake Windham, a detective with the Pearl Police Department, received a sexual-abuse complaint from Lieutenant Brian Ellis by Vicki and the mother of one of Vicki’s friends, whom Vicki had told. Vicki had a forensic interview, and Officer Wind-ham testified he did not detect any deception from Vicki, and her statements were consistent. The disclosures during the interview pointed to McManus as a suspect, and were sufficient to continue the investigation.

¶13. In November 2013, McManus was arrested on the charge of sexual battery, and an indictment was returned against him. A jury trial commenced in February 2015. Vicki and Officer Windham testified for the State. During Vicki’s cross-examination, defense counsel introduced a photograph Vicki had taken of herself using what she claimed was her mother’s iPod, denying that the iPod in the photograph was the one McManus had given her. The date of the photograph was October 6, 2011.

¶14. Officer Windham testified he was aware that Vicki recanted to her godmother and mother, but it was typical for a victim to recant due to “pressure outside of the situation.” Additionally, Windham admitted that initially both Vicki and Hale reported that the sexual act occurred the same day Melanie and McManus became engaged, but Vicki later clarified the date was an earlier time.

¶15. Melanie and McManus testified for the defense. Melanie testified that in the summer of 2013, Vicki became angry because Melanie would not let her live with her boyfriend. During this argument Vicki told her mother of the abuse. Melanie admitted she did not believe Vicki’s accusations against McManus; moreover, Vicki later recanted to her. Melanie offered to take Vicki to the police about the abuse, but Vicki refused. Further, Melanie stated she did not send Vicki to live with her biological father; Vicki wanted to go, but her father had no relationship with his daughter. When Melanie confronted Mc-Manus in front of Vicki about the accusations, he denied the accusations, explaining that he was just telling Vicki how boys will ask for sex. At the time, Vicki agreed that is what McManus meant. Also, Melanie testified that McManus bought Vicki an iPod in April 2011, and the photograph of Vicki is with that iPod, not Melanie’s iPod, as hers did not take photographs.

¶16. McManus testified in his own defense. He stated that in November 2011, he was employed by a drilling company and would work two weeks offshore and then return home for two weeks. He admitted buying Vicki an iPod, but it was while he worked for Nissan in April 2011, not November or December. Vicki was given the iPod the week after her birthday, around the end of April or the beginning of May 2011. On cross-examination, McManus denied ever speaking to Vicki about sex or her virginity, but explained that he just wanted to warn her about teenage boys’ sexuality. He considered himself a father figure to Vicki. Finally, McManus denied ever having any sexual contact with Vicki.

¶17. The jury returned a verdict of guilty to the charge of sexual battery. The trial court denied McManus’s motion for a judgment notwithstanding the verdict or a new trial. McManus timely appealed.

ANALYSIS

¶18. McManus raises one issue: that the verdict is against the overwhelming weight of the evidence, because there are numerous inconsistencies in the evidence, and a vague timeline of events. Therefore, he claims he should be granted a new trial.

¶19. A motion for a new trial challenges the weight of the evidence. The standard of review for such a motion is abuse of discretion. Dilworth v. State, 909 So.2d 731, 737 (¶ 20) (Miss.2005) (citation omitted). The reviewing court “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). The evidence will be weighed in the light most favorable to the verdict. Id.

¶20. McManus was charged with sexual battery of Vicki under Mississippi Code Annotated section 97—3—95(1)(c) (Rev. 2014), which reads: “A person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child.” The jury was properly instructed on these essential elements of sexual battery. There was some contradictory and inconsistent evidence presented to the jury, such as the date McManus stopped working at Nissan, the time frame of when McManus gave Vicki the iPod, the time frame of the offense, and Vicki’s recanting her accusations to both Hale and Melanie. However, it is well established that it is the jury’s role to assess the weight and credibility of the evidence and to resolve any conflicts in the evidence. Latiker v. State, 918 So.2d 68, 73 (¶ 12) (Miss.2005) (citation omitted). Ultimately, the jury decided to believe Vicki’s version of events over that of McManus and Melanie, and not give the inconsistent evidence great weight.

¶21. We note Vicki’s version of events was very detailed and never changed throughout her testimony. During his investigation, Officer Windham did not detect deception on Vicki’s part. Vicki was able to recount specific details of both sexual incidents, but particularly the charged offense at the end of 2011. Further, while Vicki could not give an exact date of when the event occurred, one is not required in a child-abuse case as long as the defendant is “fully and fairly advised of the charge against him.” Bateman v. State, 125 So.3d 616, 624 (¶ 25) (Miss.2013) (quoting Morris v. State, 595 So.2d 840, 842 (Miss.1991)). Moreover, a specific date is not an element of sexual battery; so a vague timeline of events does not discredit Vicki’s testimony. Office Windham also testified that the fact Vicki recanted to her mother and godmother was not unusual, and was usually due to “pressure from outside of the situation.” Finally, McManus did not offer any concrete details to counter Vicki’s version of events except to deny culpability. Viewing the evidence in the light most favorable to the verdict, allowing the verdict to stand does not sanction an unconscionable injustice. The trial court did not abuse its discretion in denying McManus’s motion for a new trial.

¶22. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS SUSPENDED AND FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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

      . Vicki’s birthday is in April.

      . At this time, McManus was working offshore every other two-week period. When Mc-Manus was home, Vicki would stay with her grandmother.

      . Vicki also testified that she had gone to the Pearl Police Department not about the abuse, but to become emancipated, because she wanted out of her mother’s house, as she was tired of living there, and she had gotten into an argument with her mother and grandmother.

      .The indictment only addressed the sexual incident in November or December of 2011, not the earlier digital-penetration.

      . McManus’s last day at Nissan was September 8, 2011.


author: ISHEE, J.,

text:
    Jeremy FLYNN, Appellant v. Michael BLAND and Vickey Bland, Appellees
    NO. 2015-CA-01283-COA
    Court of Appeals of Mississippi.
    08/30/2016
    Rehearing Denied January 17, 2017
    Certiorari Denied February 23, 2017

      JERRY WESLEY HISAW, NANCY M. MADDOX, FOR APPELLANT
    TRACY BUSTER WALSH, FOR AP-PELLEE
    BEFORE GRIFFIS, P.J., ISHEE AND WILSON, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. Jeremy Flynn appeals the DeSoto County Chancery Court’s award of physical custody of his minor child to the maternal grandparents. Jeremy also appeals the chancery court’s denial of Jeremy’s request to change the minor’s surname. For the following reasons, we affirm in part, reverse in part, and render.

FACTS

¶2. Madison Bland and Jeremy Flynn began a romantic relationship while minors, and proceeded to live together in the home of Madison’s parents, Michael and Vickey Bland, in Southaven, Mississippi. Jeremy and Madison broke up when Madison was three months pregnant and Jeremy left the Blands’ home. According to Madison, she communicated to Jeremy that she was pregnant and that he was the father. However, Jeremy disputed knowing that he was the father. At trial, Jeremy and his mother testified they requested- a DNA test, while Madison was pregnant, but Madison refused. Madison testified that she refused because she thought the DNA test would be harmful to the baby. She further testified that Jeremy never asked again. The record indicates that during the pregnancy, Jeremy saw Madison several times, including when he accompanied Madison to the Medicaid office to sign up for prenatal medical benefits.

¶ 3. On November 10, 2006, a female child, Allyson Bland, was born. Jeremy was not at the birth, nor was he listed as the father on the birth certificate. Madison and Allyson resided with the Blands following Allyson’s birth. Testimony indicates that soon after Allyson’s birth, Madison took Allyson to see Jeremy, but Jeremy “ran” and was unwilling to meet Allyson.

¶ 4. In 2009, the Blands moved to Holly Springs, Mississippi. Madison testified that in 2010 she started working at a bar and once waited on Jeremy’s sister. Soon after she saw Jeremy’s sister, according to Madison, Jeremy came to visit her at work. Madison explained that she spoke to Jeremy about Allyson and reiterated that Jeremy was the father. Madison and her sister, Mallory, both testified that Jeremy showed no interest in the child and that there were several opportunities for Jeremy to connect with Madison and Allyson, but he failed to do so. In 2012, Madison moved to Hot Springs, Arkansas. By order of the Marshal County Chancery Court, Madison gave her parents custody of Allyson. As such, Allyson remained with the Blands in Holly Springs after Madison moved to Arkansas.

¶5. Contrary to Madison’s assertions, Jeremy insisted at trial that he did not know he was the father until he ran into Madison at the bar in 2010. Jeremy testified that in 2012, in an effort to gain custody of Allyson, he tried via social media to locate Madison. Madison testified that she was in a rehabilitation program at this time and did not respond. Madison testified that in January 2014 she responded to Jeremy’s social-media message and gave Jeremy her telephone number. Jeremy stated that he then called Madison shortly thereafter and instituted the instant child-custody suit.

PROCEDURAL HISTORY

¶6. In 2010, the Blands obtained an order awarding them custody of Allyson. However, it is undisputed that no notice was given to Jeremy. Therefore, the temporary order did not adjudicate Jeremy’s custodial rights as to Allyson.

¶ 7. In April 2014, Jeremy filed a petition for an order of filiation, custody of the minor child, and other relief against Madison. An agreed order on DNA paternity testing was entered on June 10, 2014, for genetic testing of Jeremy and Allyson to determine paternity. The Blands then filed an intervening petition for third-party custody against Jeremy. An order of filiation and an order regarding temporary visitation and support was entered. A trial ensued soon thereafter.

¶ 8. On July 13, 2015, after the trial, the chancellor found Jeremy guilty of desertion. The chancellor awarded the Blands and Jeremy joint legal custody, with the Blands having primary physical custody. The chancellor also declined to change Allyson’s last name to Flynn. Jeremy timely filed a motion for reconsideration. The chancellor made some minor changes in the custody schedule but kept primary physical custody with the Blands and refused to change Allysoris last name. Jeremy now appeals.

LAW AND DISCUSSION

¶ 9. “In child custody cases, this Court will only disturb a chancellor’s decision if such decision is manifestly wrong, clearly erroneous, or ... [based on] an improper legal standard.” Cockrell v. Watkins, 936 So.2d 970, 972 (¶ 4) (Miss.Ct.App. 2006). “A chancellor’s findings of fact will not be set aside on appeal so long as they are supported by substantial evidence.” Id. “The best interest of the child is paramount in any child-custody case.” Smith v. Smith, 97 So.3d 43, 46 (¶ 8) (Miss.2012).

¶ 10. “In custody battles between a natural parent and a third party, it is presumed that it is in the child’s best interest to remain with his or her natural parent.” Id. “To be awarded custody, therefore, the third party must first clearly rebut the natural-parent presumption or preference; if it is successfully rebutted, the chancellor must then examine the Al-bright factors and determine that third-party custody serves the best interest of the child.” Id.

The natural-parent presumption can be rebutted by a clear showing that (1) the parent has abandoned the child; (2) the parent has deserted the child; (B) the parent’s conduct is so immoral as to be detrimental to the child; or (4) the parent is unfit, mentally or otherwise, to have custody.

Id. at (¶ 9).

¶ 11. In the case at bar, the chancery court specifically found that Jeremy had deserted his child. The chancery court stated that “Jeremy did in fact know or should have known he had a child, and therefore a duty or obligation to support that child financially and emotionally since 2006.” The chancery court also stated that “[o]ne cannot sit idle, and let time go by knowing that [he has] or may have a child that someone else is raising. Such is the definition of desertion[:] ‘an avoidance of a duty or obligation.’ ” We agree.

¶ 12. Here, Jeremy does not dispute accompanying Madison, while pregnant, to the Medicaid office. However, after Allyson’s birth, according to the record, Jeremy was not a part of Allyson’s life. There was testimony from several witnesses that Jeremy was aware of Allyson’s existence. Even using the year Jeremy asserts he found out that he was the father, 2010, there is no evidence that he began to foster a relationship with Allyson at that time. The record also reflects that in 2012 Jeremy used only social media to find Madison, who responded two years later, in 2014, to Jeremy’s message. The record is clear that Jeremy could have made more of an effort to locate Madison in ways other than social media, such as contacting members of Madison’s family, but failed to use his resources. Instead, Jeremy waited until 2015, when Allyson was eight years old, to invoke his parental rights. We cannot find error in the trial court’s finding that Jeremy deserted his child, thereby rebutting the natural-parent presumption.

¶ 13. With respect to physical custody, the chancery court conducted a thorough analysis of the Albright factors, and ultimately awarded physical custody to the Blands. The chancery court pointed out that several Albright factors favor the Blands, specifically that the Blands have cared for Allyson for over seven years, that she attends a good school while in their care, and that she is in a stable environment. Furthermore, Allyson has a good relationship with her half brother, who also resides with the Blands. The record clearly supports the chancery court’s award of physical custody of Allyson to the Blands.

¶ 14. The trial court further noted that since 2014 Jeremy has played a bigger role in Allyson’s life. The chancery court also pointed out his willingness and capacity to provide care, along with the emotional ties that have been established between Jeremy and Allyson. As stated earlier, so long as the chancellor’s findings are supported by substantial evidence, they will not be set aside on appeal. Here, we find that the chancery court’s award of joint legal custody to Jeremy and the Blands is supported by substantial evidence. Finding no error, we affirm the award of joint legal custody of Allyson to Jeremy and the Blands, with the Blands having physical custody of Allyson.

¶ 15. Finally, Jeremy takes issue with the chancery court’s decision not to change Allyson’s surname to Flynn. Jeremy cites Rice v. Merkich, 34 So.3d 555 (Miss.2010), in support of his argument. We find Rice on point. Rice involved a child born to an unwed mother who failed to inform the father of the child’s birth. Id. at 558 (¶ 2). Accordingly, the child’s father was not given an opportunity to sign a paternity form. Id. The Mississippi Supreme Court quoted Mississippi Code Annotated section 41-57-23(2) (Rev. 2009), which provides:

If a child is born to a mother who was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges paternity, the name of the father shall be added to the birth certificate if a notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in [Mississippi Code Annotated] [s]ection 93-9-9 [ (Rev. 2004) ]. The surname of the child shall be that of the father except that an affidavit filed at birth by both listed mother and father may alter this rule.

Rice, 34 So.3d at 558 (¶ 10).

¶ 16. Ultimately, the supreme court in Rice determined that because the mother failed to prove by a preponderance of the evidence that it was in the child’s best interest that the child’s surname not be that of the father, the child should bear the father’s surname. See id. at 559 (¶ 16). In doing so, the supreme court noted that, in addition to conforming with applicable statutes on the topic, the decision also adhered to the Rules Governing the Registration and Certification of Vital Events by the Mississippi State Department of Health. Id. at 558-59 (¶¶ 11-12).

¶ 17. Furthermore, “in the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.” Miss. Code Ann. § 93-9-9(1). As explained in Rice, “[although the statute does not delineate those circumstances where the ‘judgment specifies otherwise,’ it is reasonable to conclude that those circumstances should be examined in light of the best interest of the child, if, and only if, this is a contested issue.” Rice, 34 So.3d at 557 (¶8).

¶ 18. Here, the record is clear the Blands did not contest the change-of-name request and have failed to show by a preponderance of the evidence that it is not in the best interest of Allyson to bear her father’s surname. We reverse the chancery court’s decision on this issue, and render the change of Allyson’s surname from Bland to Flynn in accordance with section 93-9-9(1).

¶ 19. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS AFFIRMED IN PART, AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE HALF TO THE APPELLANT AND ONE HALF TO THE APPELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

      . Albright v. Albright, 437 So.2d 1003, 1005 (Miss. 1983). The Albright Court held:
      We reaffirm the rule that the polestar consideration in child custody cases is the best interest and welfare of the child. The age of the child is subordinated to that rule and is but one factor to be considered. Age should carry no greater weight than other factors to be considered, such as: health and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parentfi] and other factors relevant to the parent-child relationship.

        Id.


author: CARLTON, J.,

text:
    Victor SIMS a/k/a Victor L. Sims a/k/a, Appellant v. STATE of Mississippi Appellee
    NO. 2015-KA-01311-COA
    Court of Appeals of Mississippi.
    09/20/2016
    Rehearing Denied January 24, 2017

      OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, FOR APPELLANT:
    OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, FOR AP-PELLEE:
    BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
   CARLTON, J.,

FOR THE COURT:

¶1. Victor Sims appeals his convictions and sentences for four separate counts of armed robbery. See Miss. Code Ann. § 97-3-79 (Rev. 2014). On appeal, Sims raises the following issues: (1) whether his trial attorneys rendered ineffective assistance of counsel; and (2) whether the verdicts were contrary to the weight of the evidence. Finding no error, we affirm.

FACTS

¶2. On October 21, 2014, a Jones County grand jury indicted Sims and his nephew, Randy Dunn, for one count of armed robbery involving four separate victims. The single-count indictment charged that, on March 16, 2014, Sims and Dunn, working in conjunction with one another:

[Wjillfully, unlawfully, and feloniously attempted] to take or took the personal property of Joyce McCoy, Evelyn Thomas, Dorothy Jackson, and Victoria Dean from the person and presence of [McCoy, Thomas, Jackson, and Dean], against their will, by violence to their person, by putting them in fear of immediate injury by exhibition of a handgun, a deadly weapon ....

¶3. On December 11, 2014, the circuit court appointed Patrick Pacific as Sims’s public defender. On February 3, 2015, Sims filed a pro se motion to dismiss the charge against him. The next month, on March 16, 2015, Pacific filed a motion in limine to exclude from the trial the alleged victims’ statements and any references to the statements. In correspondence dated March 24, 2015, Sims wrote a letter to the Mississippi Bar in which he complained about his legal representation. Then, on March 27, 2015, Sims filed a second pro se motion to dismiss the charge against him. On April 1, 2015, Pacific filed a motion to withdraw as Sims’s counsel. Citing Sims’s letter to the Mississippi Bar, Pacific asserted to the circuit court that he felt he could no longer represent Sims.

¶4. On April 2, 2015, the circuit court entered orders denying Sims’s motion in limine and his two motions to dismiss the charge against him. Although the circuit court also denied Pacific’s motion to withdraw as Sims’s attorney, the court appointed Brad Thompson from the public defender’s office to serve as co-counsel on Sims’s case. On April 17, 2015, Pacific and Thompson filed a motion to reduce Sims’s bond. However, the circuit court denied that motion as well.

¶5. The circuit court scheduled Sims’s trial for May 18, 2015. However, ten days before trial, on May 8, 2015, the grand jury handed down an amended indictment against Sims and Dunn. The amended indictment still charged Sims and Dunn with armed robbery of the four victims named in the original indictment. However, instead of charging Sims and Dunn with only one count of armed robbery involving all four victims, the amended indictment now charged Sims and Dunn with four separate counts of armed robbery—one count for each of the four separate victims.

¶6. On May 14, 2015, Sims’s attorneys and Dunn’s attorney filed an unsuccessful joint motion to quash the amended indictment. Although the circuit court denied the motion, the court rescheduled Sims’s and Dunn’s trial dates to afford each of the defendants a fair opportunity to present a defense to the amended multi-count indictment. Pursuant to its ruling, the circuit court rescheduled Sims’s trial date for June 23, 2015.

¶7. At Sims’s trial, Lieutenant Robert Morris testified that he responded to an armed-robbery complaint at McCoy’s house at 11:39 p.m. on March 16, 2014. When Lieutenant Morris arrived at the scene, McCoy informed him that she and several other ladies had been playing cards when two black males entered with guns and demanded the ladies’ money. Lieutenant Morris further testified that the ladies identified Sims as one of the robbers and stated that Sims and his accomplice drove away in a black Pontiac Grand Prix.

¶8. Agent Josh Stringer with the Mississippi Bureau of Narcotics next testified. At the time of the armed robbery, Agent Stringer was employed as an officer with the Laurel Police Department. Agent Stringer also responded to the armed-robbery complaint at McCoy’s house. While en route to McCoy’s house, Agent Stringer learned Sims was a suspect and had allegedly fled the crime scene in a black Pontiac Grand Prix. Due to prior interactions with Sims, Agent Stringer knew Sims currently lived with his girlfriend, Sholanda Simmons, who owned a black Pontiac Grand Prix. As a result, Agent Stringer testified that he drove to Simmons’s residence to try to locate Sims and the car.

¶9. As he drove toward Simmons’s house, Agent Stringer encountered a crowd of people gathered outside a nearby residence. Members of the crowd flagged down Agent Stringer’s marked patrol car, and he pulled over to speak to them. Agent Stringer testified that one of the individuals, Octavia Jackson, said she had heard that Sims was a suspect in the armed robbery. Octavia further told Agent Stringer that she was not present at the time of the robbery but that she had been at McCoy’s residence earlier in the evening when Sims had also been present. Agent Stringer testified that Octavia stated Sims had appeared to be under the influence of something and had caused a disturbance. Octavia told Agent Stringer that, due to Sims’s behavior, McCoy had forced Sims to leave, and Octavia had left shortly after Sims.

¶10. Agent Stringer further testified that he spoke to Kimberly Ransom, who was present at the time of the armed robbery and had her wallet and some cash stolen. Agent Stringer said Ransom told him that she knew without a doubt that Sims and Dunn were the two suspects involved in the crime. Agent Stringer testified that Ransom informed him that Sims wore sunglasses and concealed the lower part of his face and that he held a small silver revolver. Ransom also told Agent Stringer that, even though Dunn wore what appeared to be a pair of stockings over his face, she still recognized him.

¶11. The jury next heard from McCoy, the victim who owned the house where the armed robbery occurred. McCoy stated that both Sims and his girlfriend, Simmons, had been at her home earlier in the evening prior to the robbery. McCoy testified that Sims wore a brown shirt and black pants during his initial visit and that he told Octavia, who was playing cards, that “[h]e should take her money out of her wallet.”

¶12. McCoy further testified that, around 1 a.m., she was cleaning up the mess from the party in her bathroom when Sims returned. Even though Sims wore a black stocking cap over his face to hide his identity, McCoy stated that she could still see his complexion. McCoy also testified that Sims wore the same clothes from earlier and that she heard one of the other ladies refer to Sims by name when Sims entered the house. McCoy testified that Dunn accompanied Sims and pointed a silver gun at her while Sims pointed a black gun at the other ladies in the kitchen. McCoy said that, before leaving, Sims asked whether McCoy had anything on her. McCoy testified that she pointed to the couch, where her purse was lying. According to McCoy, Sims stole her wallet, Social Security card, debit cards, and about $700 in cash from her purse.

¶13. The State next called McCoy’s mother, Dorothy, as a witness. Dorothy also testified that Sims was at McCoy’s house prior to the robbery and that he told Octavia he ought to take Octavia’s money. Dorothy testified that one of the other ladies, Dean, then had some words with Sims following his comment to Octavia. Dorothy stated that Dean “told [Sims] to get out from behind her[,] talking about taking somebody’s money, and he said a few words.” Dorothy characterized the exchange between Dean and Sims as slightly hostile, and she testified that Sims left after the exchange. However, Dorothy further stated that Sims returned later with another man and that Sims wore the same brown shirt and black pants that he wore earlier. Dorothy testified that Sims pointed a silver pistol at her and the other ladies in the kitchen while his partner held a silver gun on her daughter, McCoy, in the bathroom. Although Sims wore something over his face, Dorothy testified that she recognized Sims and that Dean even called Sims by name after he entered. Dorothy further testified that Sims stole about $300 from her.

¶14. Thomas, another of the armed-robbery victims, testified that Sims and another man entered McCoy’s house holding guns. Thomas stated that Sims held a silver revolver on her and the other ladies in the kitchen while his accomplice pointed a black gun at McCoy. Thomas testified that she recognized Sims because he wore the same clothes that he had on earlier in the day. According to Thomas, when Sims robbed her, he was wearing a brown shirt, black pants, and a black baseball hat with a gold symbol on it. Thomas also testified that she had known Sims for about fifteen years and had worked with his mother. Thomas stated that Sims stole about $300 from her.

¶15. The final armed-robbery victim, Dean, testified next. Dean stated that, the first time Sims entered McCoy’s home, he stood behind Dean’s chair at the kitchen table. Dean further testified that Sims told Octavia that he needed to take Octavia’s purse, and Dean said she was unsure whether Sims was joking when he made the statement. Regardless of whether Sims intended the comment as a joke, Dean told him to not stand behind her chair. Dean also stated that Sims, who was wearing a brown shirt and black pants, left McCoy’s house soon after the exchange.

¶16. Dean further testified that, around 1 a.m., McCoy was tidying the house when someone entered the doorway directly behind Dean’s chair and said, “Give up the money.” Without turning around to look at the speaker, Dean testified that she replied, “Victor, get out from behind me playing.” Dean said she immediately recognized the speaker as Sims because she had known Sims for over twenty years. When Dean finally turned around, she saw Sims and another man both holding guns. According to Dean, Sims’s gun appeared to be black. Although Sims seemed to have a black stocking tied around his head, Dean testified that he was still wearing the same brown shirt and black pants from his earlier visit to McCoy’s house. Dean stated that Sims and his accomplice stole about $250 from her.

¶17. During the defense’s case-in-chief, Sims testified on his own behalf. Sims testified that, on the night of the armed robbery, his girlfriend, Simmons, allowed him to borrow her ear. Sims stated that he dropped Simmons off at McCoy’s house around 6 p.m. and then returned a little after 9 p.m. to pick her up. While at McCoy’s house to pick up Simmons, Sims testified that he jokingly made a comment to one of the ladies that he would “take [her] little chump change.” Because Simmons had already left the card game by the time he arrived to pick her up, Sims testified that he did not stay at McCoy’s house very long.

¶18. Sims and his sister, Verlinda, both testified that Sims left Verlinda’s house around 10:30 p.m. the night of the robbery to go to Dunk’s, a night club about thirty minutes away in Hebron, Mississippi. Sims testified that he stopped at a place called Norman’s and then arrived at Dunk’s around 11:30 p.m. Sims further stated that he was still at Dunk’s when the armed robbery occurred. Sims’s nephew, Phillip Sims, testified that he was also at Dunk’s on the night in question and that he saw Sims there. According to Phillip’s testimony, he first saw Sims around 12:25 a.m.

¶19. Upon learning that the police suspected Sims of the armed-robbery incident, Verlinda testified that she called Sims around 11:45 p.m. to relay the news. Despite Phillip’s testimony that he saw Sims at Dunk’s around 12:25 a.m., Verlinda testified that Sims met her around 12:30 a.m. at a local mall so he could return Simmons’s car. Verlinda stated that she followed Sims to Simmons’s house, where Sims parked Simmon’s car ánd got into Verlinda’s car. Verlinda testified that Sims had just climbed into her vehicle when the police arrived and arrested Sims.

¶20. After considering all the evidence and testimony, the jury found Sims guilty of all four armed-robbery counts. The circuit court then sentenced Sims to four concurrent terms of twenty-eight years in the custody of the Mississippi Department of Corrections. Sims filed an unsuccessful motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Aggrieved by his convictions and sentences, Sims appeals.

DISCUSSION

I. Whether Sims’s trial attorneys rendered ineffective assistance of counsel.

¶21. Sims argues that his trial attorneys rendered ineffective assistance of counsel by failing to object to the prejudicial hearsay testimony of two of the State’s witnesses and by failing to request an alibi jury instruction. We separately address each of the two allegations raised under this assignment of error. Upon review, we find no merit to Sims’s ineffective-assistance-of-counsel claim..

¶22. To prove ineffective assistance of counsel, Sims must show (1) his attorneys’ performance was deficient, and (2) the deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellate courts presume that trial counsel’s decisions are strategic, and we give great deference to trial counsel’s performance. Blunt v. State, 55 So.3d 207, 210 (¶ 11) (Miss.Ct.App.2011). “With respect to the overall performance of the attorney, counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy and cannot give rise to an ineffective[-]assis-tanee[-]of[-]counsel claim.” Shinn v. State, 174 So.3d 961, 965 (¶ 10) (Miss.Ct.App. 2015) (citation omitted).

¶23. Thus, defendants face “a strong but rebuttable presumption that counsel’s performance falls within the broad spectrum of reasonable professional assistance.” Blunt, 55 So.3d at 210 (¶ 11) (citation omitted). To overcome the presumption, a defendant must show a reasonable probability that, but for his counsel’s unprofessional errors, the outcome of the proceeding would have been different. Goldman v. State, 162 So.3d 889, 893 (¶ 15) (Miss.Ct.App.2015). “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In examining ineffective-assistance-of-counsel claims, the appellate court conducts a de novo review of the record as a whole and looks at the totality of the circumstances. Blunt, 55 So.3d at 210 (¶ 12).

¶24. As we have previously stated:

It is unusual for this Court to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal because there is usually insufficient evidence within the record to evaluate the claim. Because an appellate court is limited to the trial record on direct appeal, issues of ineffective assistance of counsel are more appropriate in a motion for postconviction relief. We may address such claims on direct appeal only if (a) the issues are based on facts, fully apparent from the record, or (b) the parties stipulate that the record is adequate, and we determine that additional findings of fact by a trial judge are not needed[.] If the record is not sufficient to address the claims on direct appeal, we dismiss the claims without prejudice, preserving the defendant’s right to raise the claims later in a properly filed motion for postconviction relief.

Shinn, 174 So.3d at 965 (¶ 11) (internal citations and quotation marks omitted).

¶25. In addressing Sims’s claim of ineffective assistance of counsel, we acknowledge that the State declines to stipulate that the record is adequate for judicial review of this issue on direct appeal. Therefore, unless the issue is “based on facts fully apparent from the record[,]” we must dismiss Sims’s claim without prejudice. Id. (citation omitted). Upon review, we find the record in this case contains sufficient evidence to address Sims’s claim on direct appeal. We therefore address the merits of Sims’s ineffective-assistance-of-counsel claim. We first discuss Sims’s allegation that his attorneys rendered ineffective assistance by failing to object to certain hearsay testimony. We then, address Sims’s assertion that his attorneys erred by failing to request an alibi jury instruction.

a. Hearsay Testimony

¶26. Sims contends that his trial attorneys repeatedly failed to object to prejudicial and inadmissible hearsay testimony elicited from two of the State’s witnesses. Specifically, Sims takes issue with the following: (1) Lieutenant Morris’s testimony about “what [the] women at the card game supposedly told him about the robbery[,]” including his testimony that Dean “allegedly told him she definitely recognized ... Sims as the robber and called [Sims] by name”; and (2) Agent Stringer’s testimony about the statements Octavia and Ransom gave him, including Octavia’s statement that she had heard one of the suspected armed robbers was Sims, and Ransom’s statement that she was present when the robbery occurred and knew the robbers were Sims and Dunn.

¶27. “We presume that decisions not to object to testimony were strategic if they fairly can be characterized as such.” Shinn, 174 So.3d at 967 (¶ 15) (citations omitted). In the present case, the State argues that Sims’s attorneys raised no objections at trial to Lieutenant Morris’s and Agent Stringer’s testimony as part of a reasonable trial strategy to “fully develop the inconsistencies between what certain witnesses initially told police and what [those same witnesses later] testified] to at trial.” Upon review, we agree that the evidence in the record reflects and supports a trial strategy of attacking inconsistencies in witness testimony. Thus, we find that the decision by Sims’s attorneys to not object to the disputed testimony can be fairly characterized as a strategic decision.

¶28. Throughout Sims’s- trial, the record reflects that the defense attempted to emphasize the inconsistencies existing among the various witness accounts of the armed robbery. During opening statements, Sims’s attorney, Pacific, stated:

Now, we don’t really know what happened that night. There [were] so many inconsistencies in the statements [as to] what happened, who wore what, who said what, [and] who was there. ... The only evidence that we have that ties ... Sims to this crime is the four victims’ statements!,] which all somewhat contradict each other ....

¶29. During the State’s case-in-chief, Sims’s attorneys repeatedly seized upon the opportunity to cross-examine witnesses about the various inconsistencies in their accounts of the armed robbery. With respect to Lieutenant Morris’s testimony and Agent Stringer’s testimony, Sims’s attorneys questioned the two law-enforcement officials about the differing accounts of the armed robbery related to them by the alleged victims.

¶30. As the record reflects, Lieutenant Morris testified on direct examination that he responded to the armed-robbery call at McCoy’s house. While interviewing the witnesses present at the scene, Lieutenant Morris testified that Dean told him that she recognized Sims as one of the armed robbers because she had known Sims for a while, because Sims had been at McCoy’s house earlier in the evening wearing almost the exact same clothing, and because Dean recognized Sims’s voice.

¶31. Although Sims’s attorneys raised no objection to Lieutenant Morris’s direct testimony about what Dean told him, the record reflects that the defense revisited the issue during Lieutenant Morris’s cross-examination. In response to questions by Sims’s attorneys, Lieutenant Morris admitted that, other than Dean, none of the other ladies at McCoy’s house told him that Sims was one of the armed robbers. Furthermore, Lieutenant Morris testified during his cross-examination that he found nothing inside or outside the house to implicate Sims in the crime. Instead, Lieutenant Morris agreed that he and his fellow officers began to consider Sims as a suspect based solely on the statements provided by the ladies at McCoy’s house. We also note that Dean herself testified to the same statements that Lieutenant Morris attributed to her during his testimony. As the record reflects, Sims’s attorneys then had an opportunity to question her about her statements during cross-examination.

¶32. Following Lieutenant Morris’s testimony, the State next called Agent Stringer as a witness. Agent Stringer testified on direct examination that, as he was driving to the house of Sims’s girlfriend to look for Sims and the suspected getaway car, he encountered Octavia. Agent Stringer stated that Octavia wanted to report the armed robbery to him. Agent Stringer further stated that he informed Octavia that law enforcement already knew of the armed robbery, and he asked whether Octavia had any information on the crime. Octavia responded that she had been present at McCoy’s house earlier in the evening but had not been present when the robbery actually occurred. Agent Stringer testified that Octavia also stated she had heard that Sims was a suspect in the robbery. In addition, Agent Stringer testified that he spoke to Ransom, who told him that she was present when the armed robbery occurred and that “she knew without a doubt” that Sims and Dunn were the two suspects involved in the armed robbery.

¶33. As the record reflects, Sims’s attorneys again raised no objections to Agent Stringer’s testimony as to what Octavia and Ransom told him. However, on cross-examination, Sims’s attorneys further questioned Agent Stringer about the statements each woman gave him on the night of the armed robbery. With regard to Octavia’s statement, the record shows that Agent Stringer again testified that Octavia had admitted she was not present at the time of the armed robbery and was simply relaying information she had heard from someone else. With regard to Ransom’s statement, Sims’s attorneys asked on cross-examination whether Agent Stringer was aware that Ransom had later signed a statement saying that Sims was not, in fact, involved in the armed robbery. In response, Agent Stringer testified that he was not aware that Ransom had signed such a statement since that would have been handled by the case investigators rather than by him.

¶34. In questioning the four victims about the events of the armed robbery, the defense continued to highlight any inconsistencies existing in their testimony. The record shows that, in addition to identifying discrepancies between the witnesses’ trial testimony and their prior statements to police, the defense also attempted to emphasize the inconsistencies that existed from one account of the armed robbery to the next. Finally, during its closing argument, the defense once again identified for the jury the various discrepancies and inconsistencies existing among the witnesses’ accounts of the armed robbery.

¶35. Upon review, we find that Sims fails to meet his burden to show that his attorneys’ “representation fell below an objective standard of reasonableness.” See Strickland, 466 U.S. at 688, 104 S.Ct. 2052. As our caselaw recognizes, Sims was only guaranteed “the right to reasonably effective counsel or competent counsel, not perfect counsel or one who makes no mistakes at trial.” Havard v. State, 928 So.2d 771, 780 (¶ 7) (Miss.2006) (citations omitted). Furthermore, as previously stated, “counsel’s choice of whether or not to ... make certain objections falls within the ambit of trial strategy and cannot give rise to an ineffective[-]assistance[-]of[-]counsel claim.” Shinn, 174 So.3d at 965 (¶ 10) (citation omitted). After reviewing the totality of the circumstances, we find the record contains evidence to show that Sims’s attorneys may have decided not to object to the disputed testimony as part of an overall trial .strategy to attack the inconsistencies existing in the testimony of the various eyewitnesses and the State’s other witnesses. As a result, we find no merit to this assignment of error.

b. Alibi Jury Instruction

¶36. As acknowledged, Sims also contends that his trial attorneys provided ineffective assistance of counsel because they failed to request an alibi jury instruction. According to Sims, his alleged alibi constituted his sole defense at trial. Sims asserts that his attorneys’ failure to request an alibi jury instruction meant the jury was not properly presented with his theory of the case and was not informed that he did not have to prove the truth of his alibi.

¶37. Jurisprudence reflects that this Court has previously upheld ineffective-assistanee-of-counsel claims due to inadequate jury instructions. McTiller v. State, 113 So.3d 1284, 1291 (¶ 23) (Miss.Ct.App.2013). "When claiming ineffective assistance of trial counsel because of jury instructions, it is the duty of the appellant to demonstrate both error in failing to receive the instruction and the prejudice to the defense.” Havard, 928 So.2d at 789 (¶ 28) (citation and internal quotation marks omitted). As this Court has stated:

When confronted with issues concerning jury instructions, an appellate court’s primary concern is that the jury was fairly instructed and that each party’s proof-grounded theory of the case was placed before it. A defendant is entitled to jury instructions that support his theory of the case, even when the evidence supporting his theory is weak, inconsistent, or of doubtful credibility. Evidence supporting the defendant’s theory of the ease may even arise from ... his own testimony.

Love v. State, 85 So.3d 940, 942 (¶ 8) (Miss.Ct.App.2012) (internal citations and quotation marks omitted).

¶38. Although Sims claims that his alibi constituted his sole defense at trial,'as previously discussed, the record shows that his attorneys pursued a defense and a trial strategy that attacked the contradictions and inconsistencies in the victims’ stories to impeach the victims’ credibility. In the defense’s opening statement and closing argument, Sims’s attorneys never referenced Sims’s alleged alibi but instead repeatedly emphasized the discrepancies among the different eyewitness accounts of the armed robbery. In addition, throughout the trial, Sims’s attorneys questioned the victims and other witnesses about the inconsistencies in the victims’ stories.

¶39. The record also shows that Sims testified on his own behalf and asserted that he was at a night club at the time of the armed robbery. A review of the record, however, shows that the trial testimony, including Sims’s own testimony, failed to support an alibi instruction or to foreclose the possibility that Sims possessed the opportunity to commit the offense.

¶40. As the record reflects, the victims identified Sims as one of the armed robbers, and Sims himself testified that he had known the victims “for a long time.” Sims also admitted being at McCoy’s house prior to the armed robbery to pick up his girlfriend, Simmons. Sims further testified, though, that he was about thirty minutes away at Dunk’s, a night club, when the armed robbery occurred. Lieutenant Morris testified that he responded to the armed-robbery complaint at McCoy’s house at 11:39 p.m. According to Sims, he arrived at Dunk’s around 11:30 p.m. Sims’s nephew, Phillip, similarly testified that Sims was at Dunk’s the night of the armed robbery. However, Phillip testified that he did not see Sims at the night club until around 12:25 a.m. Thus, as the record reflects, no one testified to seeing Sims at Dunk’s at the time the armed robbery actually occurred.

¶41. The record also reflects that Sims’s sister, Verlinda, testified to meeting Sims at a local mall around 12:30 a.m, Verlinda further testified that she then followed Sims to his girlfriend’s house to return the girlfriend’s vehicle. According to Verlinda, Sims had just climbed into her vehicle when police arrived and arrested him. Thus, the testimony provided at tidal placed Sims within the geographical location of the armed robbery around the time that the crime occurred. The testimony revealed that Sims possessed the opportunity to commit the armed robbery at the reported time of the offense. As a result, the testimony failed to provide Sims with an alibi that foreclosed the possibility that he committed the armed robbery at the reported time and location of the crime.

¶42. The record reflects that Sims’s testimony constituted a general denial of having committed the crime. Instead of pursuing an alibi defense, Sims’s attorneys attacked the credibility of the witnesses by highlighting the inconsistencies and contradictions in their stories. Rule 9.05 of the Uniform Rules of Circuit and County Court sets forth the discovery requirements for asserting an alibi defense. We acknowledge that, in its appellate brief, the State provides that “the prosecutor indicated a month prior to trial [that] the defense had provided a written notice of the intention to offer an alibi defense as required by [R]ule 9.05 ..., [but] we cannot find such in the record.” Indeed, the record before this Court contains no documents to show that Sims provided notice to the State of his intent to assert an alibi defense, including the specific place he claimed to be during the alleged offense and the names of any witnesses upon whom he intended to rely to establish his alleged alibi defense. See URCCC 9.05.

¶43. We now turn to jurisprudence to review the evidentiary predicate for an alibi defense and related jury instructions. In Owens v. State, 809 So.2d 744, 746-47 (¶¶ 7-8) (Miss.Ct.App.2002), this Court stated:

[T]he law relating to an alibi defense involves something more than a simple denial by the defendant that he was present at the precise time the crime was committed. Black’s Law Dictionary suggests that the defense requires evidence that the defendant’s location at the relevant time was “so removed therefrom as to render it impossible for him to be the guilty party.” Black’s Law Dictionary 71 (7th ed. 1999). Thus, a defendant in close enough physical proximity to have committed the crime may deny the criminal activity and may affirmatively assert that he was elsewhere at the critical time. However, if the asserted alternate location is such that, based on the version of events contended for by the defense, it would remain within the realm of physical possibility for the defendant to have committed the crime, then the defense is nothing more than a denial and would not rise to the level of alibi. It is a fundamental concept of our system of criminal procedure that an instruction may not be given, even if it correctly recites the law, if there is no evidentiary basis for the instruction. Hodge v. State, 801 So.2d 762, 775 (¶ 42) (Miss.Ct.App.2001).
A defendant desiring to assert an alibi defense must, therefore, present evidence that, if found credible by the jury, would raise a reasonable doubt as to his culpability based on notions of the physical impossibility of having been at the crime scene during the crime’s commission.

¶44. As already discussed, Sims testified that he was at a night club at the time the armed robbery occurred, and Sims’s nephew, Phillip, testified that he saw Sims at the night club around 12:25 a.m. However, the record reflects that officers responded to the armed-robbery complaint at McCoy’s house at 11:39 p.m. In addition, Phillip’s testimony directly contradicted the defense testimony given by Sims’s sister, Verlinda, who stated that she met Sims at a local mall at 12:30 a.m. so he could return his girlfriend’s car.

¶45. Despite Sims’s testimony denying that he committed the crime and claiming that he was at a night club at the time,’ as in Owens, Sims failed to offer “evidence as to the physical distance from his alleged location to the place where the crime was committed from which the jury could reasonably conclude that it was impossible for him to have committed the crime.” Owens, 809 So.2d at 747 (¶ 8). As a result, the record shows that Sims’s evidence, or lack thereof, failed to present the necessary elements of an alibi defense. Thus, the circuit court was not required to instruct the jury on the issue. See id.; see also Cochran v. State, 913 So.2d 371, 374-75 (¶¶ 10-15) (Miss.Ct.App.2005) (finding that the trial court correctly denied the defendant’s alibi jury instruction because the instruction lacked a foundation in the evidence).

¶46. Based on a review of the record and Mississippi caselaw, we find that Sims’s testimony amounted to a simple denial of having committed the crime that failed to require an alibi jury instruction. See Owens, 809 So.2d at 746-47 (¶¶ 7-8). Since the evidence failed to provide a sufficient evi-dentiary foundation to support or require an alibi instruction, we find no ineffective assistance of counsel by Sims’s attorneys based on the failure to request such an instruction. In addition, we find that Sims’s attorneys may very well have chosen not to submit an alibi jury instruction as part of a calculated trial strategy and due to a lack of a sufficient evidentiary foundation for such an instruction. Although this strategy proved unsuccessful, we cannot say that Sims’s attorneys provided a deficient performance or that, but for their deficient performance with regard to this issue, a reasonable probability exists that the outcome of the trial would have been different. See also Havard, 928 So.2d at 791 (¶ 32) (“Trial counsel’s decision not to submit lesser offense instructions, while it turned out to be unsuccessful, was appropriate trial strategy, and thus beyond the realm of serious consideration on a claim of ineffective assistance of counsel”). We therefore find no merit to Sims’s argument that his attorneys were ineffective due to their failure to submit an alibi jury instruction.

II. Whether the verdicts were contrary to the weight of the evidence,

¶47. Sims next contends that the jury’s guilty verdicts were contrary to the weight of the evidence. According to Sims, the testimony of the four alleged armed-robbery victims was so contradictory that the testimony failed to support the verdicts against him. In addressing Sims’s argument, we apply the following standard of review:

When considering challenges to the weight of the evidence, we view the evidence in the light most favorable to the verdict. To disturb a verdict on this ground, we would have to find it was contrary to the overwhelming weight of the evidence and an unconscionable injustice. Our review requires [that] we accept all evidence consistent with the defendant’s guilt as true[,] together with any reasonable inferences that may be drawn from the evidence. Any factual disputes are properly resolved by the jury and do not mandate a new trial.

Duke v. State, 146 So.3d 401, 407 (¶ 22) (Miss.Ct.App.2014) (internal citations and quotation marks omitted).

1148. A review of the record reflects no merit in Sims’s contention that the verdicts were contrary to the weight of the evidence. Though the victims’ testimony about the armed robbery contained inconsistencies, these conflicts are not sufficient to warrant a reversal of the guilty verdicts. See id. at (¶ 23); Grossley v. State, 127 So.3d 1143, 1149 (¶ 20) (Miss.Ct.App.2013). While the victims’ testimony varied in some respects, their accounts also corroborated each other on several material points. The victims’ testimony also provided sufficient evidence of each element of the indicted offenses for the jury to find Sims guilty of each offense beyond a reasonable doubt. Furthermore, we recognize that the determination of how much weight and credibility to give to a witness’s testimony falls within the jury’s province. Price v. State, 23 So.3d 582, 586 (¶ 17) (Miss.Ct.App.2009).

1149. As the record reflects, all four of the armed-robbery victims named in Sims’s indictment identified Sims as one of the two men who entered McCoy’s house on March 16, 2014, and robbed them at gunpoint. The women testified that they recognized Sims even though he tried to conceal his face. According to the four victims of the armed robbery, Sims had been at McCoy’s house prior to the robbery, and he had worn a brown shirt and black pants. All four women testified that Sims still wore the same brown shirt and black pants when he returned to rob them. Thomas testified that she also recognized Sims because she had known him for about fifteen years and had worked with his mother. In addition, Dean stated that, even before turning around to look at the robbers, she recognized Sims’s voice and that she addressed Sims by name. According to Dean, she immediately recognized Sims because she had known him for over twenty years.

¶50. The record also reflects that the victims reported to law enforcement that the robbers drove away in a black Pontiac Grand Prix. According to Agent Stringer, he knew from his prior interactions with Sims that Sims’s girlfriend owned a black Pontiac Grand Prix. Furthermore, as Sims himself testified at trial, his girlfriend had let him borrow her car on the night of the armed robbery. Sims’s sister, Verlinda, also testified that she met Sims at a local mall around 12:80 a.m. so he could return Simmons’s car.

¶51. After viewing the evidence in the light most favorable to the jury’s verdicts, we cannot say that the inferences the jury drew from the evidence were unreasonable or that the verdicts against Sims are unconscionable. See Duke, 146 So.3d at 407 (¶ 22). We therefore find no merit to Sims’s assignment of error.

¶52. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, OF CONVICTION OF FOUR COUNTS OF ARMED ROBBERY AND SENTENCE OF FOUR CONCURRENT TERMS OF TWENTY-EIGHT YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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