author: CHAMBERLIN, JUSTICE,

text:
    Laterrence LENOIR a/k/a Laterrence A. Lenoir a/k/a Laterrence Awson Lenoir v. STATE of Mississippi
    NO. 2016-KA-00431-SCT
    Supreme Court of Mississippi.
    03/02/2017
    Rehearing Denied May 4, 2017

      ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: W. DANIEL HIN-CHCLIFF, GEORGE T. HOLMES, RENEE H. BERRY
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN McCLINTON
    BEFORE WALLER, C.J., COLEMAN AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE,

FOR THE COURT:

¶ 1. A Copiah County jury convicted La-terrence Lenoir of two counts of armed robbery and one count of conspiracy to commit armed robbery. Lenoir appeals his convictions, arguing the jury had insufficient evidence to determine that he committed the crime or, alternatively, that his motion for a new trial should have been granted. We disagree and affirm his convictions.

FACTS AND PROCEDURE

¶2. This case concerns the events that occurred on September 6, 2012, at a Dollar General store in Wesson, Mississippi. At approximately 10 p.m., three employees of the Dollar General store—Dawn Forrest, Jeffrey Thomas, and Vinshaun Motley— prepared to close the store for the night. Forrest worked on the deposit in the store’s office, Thomas used the restroom, and Motley gathered the store’s buggies in the parking lot. At this time, two men entered the store and robbed the employees at gunpoint. The men’s faces were partially covered and each wore gloves. The men stole approximately $3,600, the store telephone, and the cell phone of each employee.

¶ 3. More than three years later, on January 27, 2016, a Copiah County grand jury indicted Laterrence Lenoir on three counts of armed robbery and one count of conspiracy to commit an armed robbery in connection with the events at the Dollar General store. Lenoir was appointed counsel and he pleaded not guilty. On March 14, 2016, a jury trial commenced in the circuit court. The State’s case against Lenoir consisted of testimony from the three Dollar General employees—one of whom testified in exchange for a plea deal—and surveillance footage of the robbery from the store’s security system. The following is the evidence admitted against Lenoir during trial.

Dawn Forrest

¶4. The State first called Forrest, a part-time manager of the Dollar General Store at the time of the robbery. Forrest testified that she knew Lenoir because Lenoir’s girlfriend also worked at the same Dollar General store. Forrest stated that Lenoir generally would go to the store twice a day—once to drop his girlfriend off at work and once to pick her up at the end of her shift.

¶ 6. Forest testified that she was working on the deposit in the store’s office on the night of the robbery. At that time, two men, one wielding a gun, came into the store. Forrest described one of the robbers as taller than the other. The taller robber had the gun and wore a dark-colored, hooded sweatshirt with shorts. Forrest stated that the other robber wore a scarf across his face and had red-tipped, shoulder-length dreadlocks.

¶ 6. After the robbers entered the store, Forrest recalled that one of the men said, “Give us the money.” At first, Forrest thought two kids were playing a joke, but she later became afraid after the taller man with the gun pointed the weapon at Thomas as he exited the restroom. Now afraid, Forrest stated that she was going to do “whatever they asked me to do.” Forrest then gave the men the money from the cash registers and the safe in the front of the store.

¶7. After giving the men the money, Forrest believed the men would leave; however, the men then demanded the money from the office in the back of the store. Forrest testified that the men “should not have known” about the money in the back. Forrest then led the men to the back of the store, accessible only through the employee break room, and gave the men the money from the office. She also testified that the men took each of the employees’ cell phones and the store phone.

¶ 8. At this point during Forrest’s testimony, the State played video-surveillance footage of the robbery. The footage tracks Forrest’s testimony. The video surveillance has no audio of what was said during the commission of the robbery, but it shows two men, one wielding a handgun, holding up the employees and demanding money from the registers. The video also shows Forrest leading the men to the back of the store. At the conclusion of Forrest’s testimony, the trial judge admitted Forrest’s recovered cell phone into evidence.

¶ 9. On cross-examination, Forrest admitted that she could not identify Lenoir as one of the robbers. Forrest claimed she could not see the men’s faces at the time of the robbery, and no identification can be made from the blurry surveillance cameras.

Jeffrey Thomas

¶ 10. Thomas also testified for the State. He testified that he knew Lenoir from church. Thomas told the jury that, while closing the store on the night of the robbery, he had to use the restroom. When he exited the restroom, he encountered the two robbers. Like Forrest, Thomas testified that he first believed someone was playing a joke. But upon seeing the handgun, he told the jury that he became afraid for his life. Thomas testified that he then dropped to the floor and tried not to make eye contact; He also testified that the men. stole money and the cell phones of each employee. Thomas, however, could not identify the men who robbed the store.

Vinshaun Motley

¶ 11. The State’s final witness was Motley, another Dollar General employee present on the night of the robbery. Motley stated that he had known Lenoir for about four to five years and that he knew Desmond Williams, Lenoir’s alleged coconspir-ator, from school. Motley told the jury that he had seen Lenoir and Williams together “a lot.” Motley further testified that Williams had dreadlocks and that Lenoir is taller than Williams.

¶ 12. At around 3 or 4 p.m. on the day of the robbery, Motley saw Lenoir at the Dollar General store. Lenoir wanted to buy a game from Motley but did not have money at the time to purchase the game. Lenoir told Motley that “he needed to hit a lick first to get some money so he could pay for the game.” Motley explained to the jury that “hit a lick” means “to come up on some money by any means.”

¶ 13. Later that night, at around 10 p.m., Motley and his coworkers prepared to close the store for the evening. While he was in the parking lot gathering buggies, Motley saw two men running toward the-store. He testified that one of the men “was running ..-. with a waddle, and the other man had long hair.” When asked who the person running with the “waddle” was, Motley testified: “It kind of looked like [Lenoir’s] waddle. [Lenoir’s] got a distinct walk from anyone I know.” Motley stated that he went into the store to get his manager and, at. that time, he was robbed. He identified his recovered cellphone case but stated that he never got his phone back.

¶ 14. Motley then told the jury that, on the day after the robbery, Lenoir met with him about buying the game. He testified that Lenoir gave him money but told him. not to worry about the game. Instead, Lenoir told him that he was “sorry” and “to keep [his] mouth closed.” Motley told the jury that he assumed Lenoir was talking about the robbery. Motley remained silent for three years, until he was arrested; at that time, he agreed. to testify against Lenoir in exchange for a plea deal. On cross-examination, Motley stated that he, like Lenoir and Williams, was charged with armed robbery of the store but that the plea deal diminished his charge to accessory-after-the-fact. Further, he admitted' that the videos did not show the robbers’ “clear path of walking.”

¶ 15. Lenoir presented no defense and, at the conclusion of the State’s case-in-chief, motioned for a directed verdict. The trial judge denied Lenoir’s motion, and thé jury subsequently convicted Lenoir of two counts of armed robbery and one count of conspiracy to commit armed robbery. The trial judge sentenced Lenoir to sixteen years for each count of armed robbery, to run consecutively, and also sentenced Lenoir to five years for the conspiracy, to run concurrently with the robbery convictions. The trial judge further denied Lenoir’s motions for a new trial, to set .aside his sentence, and for judgment notwithstanding the verdict.

¶ 16. Lenoir raises two issues on appeal, which we recite verbatim:

I. Whether the paucity of evidence and the attenuated nature of the proceedings denied appelldnt a fair trial arid due process as guaranteed under the Fifth and Sixth Amendments of the Constitution.
II. Whether the trial court erred when it denied appellant’s rnotion for a new trial as the verdict was contrary to the weight of the evidence.

DISCUSSION

I. Whether the paucity of evidence and the attenuated nature of the proceedings denied appellant a fair trial , and due process as guaranteed under the Fifth and Sixth Amendments, of the Constitution.

¶ 17. Lenoir first claims that the State offered insufficient evidence for a jury to find beyond a reasonable doubt that Lenoir was one of the men who robbed the Dollar General store. Lenoir argues that “the case against him. consisted of no more than one accomplice remembering how he walked three years later.” We disagree, finding sufficient evidence linked Lenoir to the robbery.

¶ 18. “A motion for judgment notwithstanding the verdict implicates the sufficiency of the evidence.” Cowart v. State, 178 So.3d 651, 666 (Miss. 2015) (quoting Ginn v. State, 860 So.2d 675, 684 (Miss. 2003)). While reviewing a case for sufficiency of the evidence,

[t]his Court considers each eleinent of the offense and reviews all of the evidence in the light most favorable to the verdict. This Court must accept as true all credible evidence consistent with guilt. This Court must-give the State “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Moreover, matters regarding the weight and credibility given the evidence are the province of the jury. This Court may reverse only when, “with respect to one or more’ of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Thus, if any rational trier of fact could have found each and every one of the elements of the crime beyond a reasonable doubt, when viewing the evidence in the light most favorable to the prosecution, the verdict must stand.

Id. (internal citations omitted).

¶ 19. “The elements of armed robbery are: (1) a felonious taking or attempt to take; (2) from the person or from the presence; (3) the personal property of another; (4) against his will; (5) by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Id. (citing Miss. Code Ann. § 97-3-79 (Rev. 2014)). Also, “[t]he only element of conspiracy to commit armed robbery is two or more persons agreeing to commit armed robbery.” Id. (citing Miss. Code Ann. § 97—1—l(l)(a) (Rev. 2014)).

¶ 20. Again, Lenoir does not argue that the prosecution failed to provide evidence of any of the above-mentioned elements of armed robbery; rather, Lenoir argues insufficient evidence existed linking him as one of the robbers. For good measure, we find that sufficient evidence was presented for a jury to find, beyond a reasonable doubt, all of the above-mentioned elements. The State introduced three surveillance videos corroborating Forrest’s and Thomas’s testimony. The testimony, and videos show that the men took the cell phones of Forrest and Thomas, as well as the store’s money, while brandishing a handgun. Further, both Forrest and Thomas testified that they became afraid after seeing the weapon.

¶ 21. We also find, “viewing the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the verdict, that the evidence was sufficient to enable a rational jury to find beyond a reasonable doubt” that Lenoir committed the crime. King v. State, 47 So.3d 658, 664 (Miss. 2010). Forrest testified that one of the robbers was tall and that the other man had dreadlocks. Motley later testified that Lenoir was taller than Williams, his alleged- cocon-spirator, and that Williams had dreadlocks. Motley also told the jury that Lenoir and Williams hung out “a lot.” Further, Motley testified that the taller man ran with what appeared to be the same distinct “waddle” that Lenoir, whom Motley had known for years, previously had exhibited.

¶ 22. Motley further testified that, just hours before the robbery, Lenoir approached him about buying a game, Lenoir did not'have enough money to purchase the game, but he told Motley that he would “hit a lick,” (i.e., come up with some money by any means). On the day following the robbery, Motley testified that-Lenoir did bring him money.- But rather than buy the- game from Motley, Lenoir told Motley that 'he was sorry’ and told him to keep his mouth closed. The jury heal’d that Motley assumed that Lenoir was telling him to keep his mouth shut about the robbery.

¶ 23. Further, Forrest testified that the robbers “should not have known” about the extra money located in the office at the back of the store, which was accessible only through the employee break room. The jury heard testimony that Lenoir was familiar with the store because he generally went to the store twice a day to pick up and drop off his girlfriend, who worked there. Giving the State “the benefit of all reasonable inferences that may reasonably be drawn from the evidence,” we must conclude that the jury believed Lenoir became privy to the fact that the Dollar General kept additional cash in the back office. Ginn, 860 So.2d at 685 (quoting Sheffield v. State, 749 So.2d 123, 125 (Miss. 1999)).

¶ 24. Lenoir argues that Motley’s testimony was inherently unreliable because he was indicted as an accomplice to the robbery and agreed to testify in return for a plea deal. This Court has held that:

“[W]hen a conviction rests upon accomplice testimony, the uncorroborated testimony of an accomplice may be sufficient to convict the accused.” (citation omitted). “But if the accomplice testimony is uncorroborated and is unreasonable, self-contradictory, or substantially impeached, then accomplice testimony is insufficient, and the trial court must direct a verdict of not guilty.” (citation omitted).

Id. (quoting King, 47 So.3d at 664). Although the State presented no evidence corroborating Motley’s testimony, we determine that Motley’s testimony was not “unreasonable, self-contradictory, or substantially impeached.” King, 47 So.3d at 664. Admittedly on cross-examination, Motley conceded that the surveillance videos did not show that he had a clear view of the robber’s walking path. We find, however, that this admission did not impeach Motley’s testimony concerning Lenoir’s gait. Motley testified that he recognized Lenoir’s “waddle” when he saw the two men running toward the store as he was outside gathering buggies. The videos show only the robber’s movements inside the store.

¶25. More importantly, Motley’s testimony that Lenoir brought him money the day after the robbery and told him to keep his mouth shut was never contradicted. In fact, Lenoir fails to address this testimony in his argument on this issue. Lastly, we note that the record indicates that the trial judge correctly instructed the jury on accomplice testimony and that “[i]ssues of witness credibility are properly resolved for the jury.” Cowart, 178 So.3d at 667.

¶ 26. In sum, the State presented evidence suggesting that Lenoir planned, committed, and confirmed the robbery. The evidence supports the contention that Lenoir planned the robbery, because he told Motley that he was going to “hit a lick” to come up with some money just hours before the robbery. The evidence also supports the contention that Lenoir committed the crime because of the physical descriptions previously mentioned. Lastly, the evidence supports the contention that Lenoir confirmed the robbery by giving Motley money and telling him to keep his mouth shut. For these reasons, Motley’s testimony was “sufficient to convict [Lenoir].” Id.

¶ 27. Lastly, we conclude that the State presented sufficient evidence for fair-minded jurors to convict Lenoir of conspiracy. The evidence clearly shows two men working in agreement with each other to rob the Dollar General store. The men entered the store together, held up the employees at gunpoint, took the money, and ran off at the same time. This issue is without merit.

II. Whether the trial court erred when it denied Lenoir’s motion for a new trial, as the verdict was contrary to the weight of the evidence.

¶28. Lenoir next asserts that the jury’s verdict was contrary to the overwhelming weight of the evidence. “A challenge to the weight of the evidence is raised in a motion for a new trial, and is addressed to the trial court’s discretion.” King, 47 So.3d at 665 (citing Bush v. State, 895 So.2d 836, 844 (Miss. 2005)). The standard of review we employ while reviewing such a challenge is well-settled:

On review, this Court will disturb a verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Unlike a reversal based on the sufficiency of the evidence, a reversal based on the weight of the evidence does not indicate that acquittal was the only proper verdict. “Rather, as the ‘thirteenth juror,’ the court simply disagrees with the jury’s resolution of the conflicting testimony.” Nonetheless, the power to grant a new trial should be exercised only where the evidence preponderates heavily against the verdict.

Id. (citations omitted).

¶29. Lenoir admits that the defense put on no proof of its own, but he argues that “two of the three witnesses utilized by the State, provided testimony, when properly analyzed, that supported the defendant and his innocence and did not weigh in favor of guilt.” Lenoir points out that Forrest and Thomas both testified that they were well-acquainted with Lenoir, but that neither could offer any evidence identifying Lenoir as one of the robbers. Lenoir argues the surveillance videos and testimony show that both Forrest and Thomas “had ample opportunity to see and hear the two men that entered the store.” Lenoir also points to the lack of physical evidence connecting him to the crime.

¶ 30. We find that the “evidence [against Lenoir] did not preponderate so heavily against the verdict that the failure to grant a new trial would sanction an unconscionable injustice.” Id. Though Forrest and Thomas knew Lenoir from prior encounters, the evidence shows that the robber alleged to be Lenoir wore a hooded sweatshirt partially covering his face when he entered the dimly lit store. Further, Lenoir’s contention that Thomas “had an ample opportunity” to view the taller robber is not as clear as he suggests. Though the video shows Thomas encountering the man with the gun as he exits the restroom, the video also shows that Thomas dropped to the floor just seconds after noticing the handgun. Further, because of the blurry nature of the video, we cannot conclude that the video contradicts Thomas’s testimony that he tried not to make any eye contact.

¶ 31. Even more, this Court cannot conclude that the overwhelming weight of the evidence suggests that the employees should have recognized Lenoir’s voice during the commission of the robbery. As previously stated, the video of the robbery has no audio component. Further, Forrest’s testimony shows only two instances in which the robbers spoke, the first being “Give us the money,” and the second being “We want the money from the back.” And regarding these two statements, Forrest could not recall which robber uttered the I commands. Because the record does not indicate that Lenoir spoke to an extent that his voice would clearly be recognizable to Forrest and Thomas, the trial judge did not err by denying Lenoir a new trial.

¶ 32. Lastly, the fact that there is no physical evidence tying Lenoir to the crime scene does not mandate that Lenoir be granted a new trial. “The absence of physical evidence does not negate a conviction where there is' testimonial evidence." Burleson v. State, 166 So.3d 499, 512 (Miss. 2015) (quoting Brown v. State, 130 So.3d 1074, 1082 (Miss. 2013) (quoting Graham v. State, 812 So.2d 1150, 1153 (Miss. Ct. App. 2002)). On cross-examina tion, all three of the State’s witnesses admit that they never saw law-enforcement officials dust for fingerprints or seek to procure other DNA evidence. -And admittedly, the prosecution failed to trace Forrest’s recovered cell phone and Motley’s recovered cell-phone case to Lenoir. However, the testimony and video evidence show that both robbers were wearing gloves; thus, searching for fingerprints may not have yielded any incriminating evidence. We find this .issue is. without merit.

CONCLUSION

¶ 33. For the above-mentioned reasons, we affirm Lenoir’s convictions. ■

¶ 34. COUNT I: CONVICTION OF ARMED ROBBERY AND SENTENCE OF SIXTEEN (16) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF ARMED ROBBERY AND SENTENCE OF SIXTEEN (16) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF CONSPIRACY TO COMMIT THE CRIME OF ARMED ROBBERY AND SENTENCE OF FIVE-(5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS I AND II SHALL RUN CONSECUTIVELY. SENTENCE IN COUNT IV SHALL RUN CONCURRENTLY WITH SENTENCES IN COUNTS I AND II. COUNT III IS DISMISSED. APPELLANT SHALL BE GIVEN CREDIT FOR TIME SERVED WHILE AWAITING SENTENCING.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAXWELL AND BEAM, JJ.> CONCUR. .

      . Lenoir has another case before this Court concerning another alleged robbery. The case at hand solely concerns the charges stemming from a robbery that occurred at the Dollar General in Wesson, Mississippi. The other case involving this same defendant is styled Lenoir v. State, 2016-KA-00226-SCT.

      . The defendant here does not dispute that an armed robbery occurred. Rather, Lenoir argues that there is insufficient evidence to show that he committed the crime.

      . The grand jury also indicted Desmond J. Williams as the other perpetrator of the robbery and conspiracy. Lenoir filed a motion for severance, and the two men were tried separately.

      . Vinshaun Motley, one of the employees present at the time of the robbery, was later arrested and indicted for the armed robbery of the Dollar General. In response to a plea deal for the lesser charge of accessory after the fact, Motley testified for the State against Lenoir. Thereafter, one of the three counts of armed robbery for which Lenoir was indicted was dismissed.

      . Lenoir does not directly attack his conspiracy conviction in his brief to this Court; but he does argue that insufficient evidence was provided to tie him to the robbery at all.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Ronald Wade BETTS, Appellant v. Belinda Moucha BETTS, Appellee
    NO. 2014-CA-01024-COA
    Court of Appeals of Mississippi.
    09/13/2016
    Rehearing Denied February 28, 2017
    Certiorari Denied June 1, 2017

      ATTORNEY FOR APPELLANT: STEPHANIE L. MALLETTE
    ATTORNEY FOR APPELLEE: CAROLINE CRAWLEY MOORE
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶1. This appeal arises from the denial of Ronald Betts’s Mississippi Rule of Civil Procedure 60(b) motion, requesting that the court set aside a divorce decree based on fraud committed by his former wife, Belinda Betts. Ronald appeals and asks that this Court set aside the chancery court’s ruling and remand for a new hearing.

¶2. Ronald and Belinda divorced on November 17, 2011, ending their thirty-one-year marriage. The two entered into a property-settlement agreement, which was incorporated into the divorce decree. As part of the property-settlement agreement, Ronald agreed to pay Belinda $35,000 in $500 monthly payments.

¶3. In February 2012, Belinda filed a complaint for citation of contempt of court asserting multiple instances of contempt, namely that Ronald failed to pay the balance on a camper that was eventually repossessed. Because Ronald did not pay the balance, Belinda had to pay part of the balance in order to avoid a lawsuit against her. According to Belinda, Ronald told her previously that he sold the camper and paid the remaining balance on the loan. Ronald did not list this debt in his Uniform Chancery Court Rule 8.05 financial statement, which the court noted in its order “can amount to a fraud perpetrated on the court and contempt.” The court ordered Ronald to pay Belinda for the expense she incurred in paying on the balance.

¶4. Belinda then filed a second complaint for citation of contempt of court in May 2012, and the court did not find Ronald in contempt. Finally, Belinda filed a third complaint for citation of contempt of court in May 2013, claiming that Ronald had stopped making his $500 monthly payments.

¶5. Ronald filed an answer to the third complaint for contempt and a counter-petition to set aside the final decree of divorce. Ronald argued that under Rule 60(b), the divorce decree should be set aside because Belinda made a false representation to the court by intentionally filing a substantially false Rule 8.05 financial statement. On November 1, 2010, Belinda and her sister received an undivided interest in 74.6 acres of land that previously belonged to her father and mother. Ronald contended fraud occurred when Belinda failed to list this land on her Rule 8.05 financial statement.

¶6. A hearing was held, and Belinda, Ronald, and Rodney Faver, Belinda’s former attorney, testified. Belinda testified that she did not list the 74.6 acres of land on her Rule 8.05 financial statement because the land did not belong to her. She testified that the land belonged to her mother, that her mother paid for the land, and that her father left the land for her mother when he died.

¶7. The court then issued an order, finding Ronald in contempt for his failure to pay $500 monthly to Belinda pursuant to the divorce decree. The court also found that though Ronald established that Belinda did not disclose the property on her original Rule 8.05 statement, he failed to prove that Belinda knew of her false representation because she did not consider the land her property. Furthermore, the court held that Ronald failed to establish a proximate injury resulting from the misrepresentation. The court then found that Ronald had not come to the court with clean hands. He failed to list the existence of certain mineral rights in his Rule 8.05 financial statement. The court held that Belinda’s actions did “not constitute the intentional filing of a substantially false statement” and did not find her in contempt.

¶8. Ronald now appeals, claiming that the court erred when it found that Belinda’s failure to list the property on her Rule 8.05 financial statement did not constitute the intentional filing of a substantially false statement.

STANDARD OF REVIEW

¶9. “This Court will not disturb a chancellor’s findings unless they are manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard.” Bell v. Stevenson, 158 So.3d 1229, 1233 (¶ 6) (Miss.Ct.App.2015). “It is well settled that chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters.” Finch v. Finch, 137 So.3d 227, 232 (¶ 10) (Miss. 2014).

¶10. “[W]hen this Court reviews motions for relief pursuant to Rule 60(b), reversal is warranted only when an abuse of discretion is found, because these motions are to be addressed at the sound discretion of the trial court.” Id. at (¶ 11).

ANALYSIS

¶11. Ronald argues that Belinda’s failure to list the property on her Rule 8.05 finan-cia^ statement constituted an ' intentional filing of a substantially false statement and fraud upon the court. Belinda contends that Ronald’s unclean hands bar him from relief.

¶12. Rule 60 provides in part:

(b) Mistakes; Inadvertence;' Newly Dis-' covered Evidence; Fraud, etc, On motion •and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order,, or proceeding for the following reasons:
(6) any other reason justifying relief from the judgment.

“Rule 60(b)(6) provides a ‘catch-all’ provision under which relief may be granted in exceptional and compelling circumstances, such as for fraud upon the court.” Trim v. Trim, 33 So.3d 471, 475 (¶ 7) (Miss.2010).

¶13. “Relief based on ‘fraud upon the court’is reserved for only the most egregious misconduct, and requires a showing of ‘an unconscionable plan or scheme which is designed to improperly influence the court in Its decision.’ ” Id. at 477 (¶ 15). “[Sjimply failing to disclose essential facts to the proceedings to the adverse party or the court does not rise to the level of fraud. There must be a finding that the disclosure was intentional.” Finch, 137 So.3d at 235 (¶ 23).

1Í14. “[A] party’s intentional filing of a substantially false Rule 8.05 financial statement' constitutes a fraud on the court.” Trim, 33 So.3d at 478 (¶ 17). And “no time limit constraints] the chancellor’s ability to modify the divorce judgment to remedy the fraud on the court.” Id.

¶15. The following elements constituting intentional or fraudulent representation must be proven by clear and convincing evidence:

(1) a representation, (2) its falsity, (3) its, materiality, (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) .the hearer’s ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury.

Id. at (¶ 19) (citing McCord v. Healthcare Recoveries Inc., 960 So.2d 399, 406 (¶ 17) (Miss.2007)).

¶16, The chancellor declined to set aside or modify the divorce decree after finding that Belinda did not intentionally mislead the court and that Ronald came to court with unclean hands after failing to disclose certain property rights on his Rule 8.05 financial statement, “[T]he trial court is best able to determine wheth-. er a fraud has been perpetrated upon it. As a result, the chancellor’s determination of the issue is entitled to great, weight.” Tirouda v. State, 919 So.2d 211, 216 (¶ 12) (Miss.Ct.App.2005), “The credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of fact.” Trim, 33 So.3d at 479 (¶ 20).

¶17, The testimony from Belinda supports the chancellor’s conclusion that she did not know of her false representation to the court. She simply did not consider the property her own. She had not paid for the property, and she was not using, the property for. any purpose. The testimony showed that her mother currently or previously lived on the property, and Belinda considered it her parents’ land. Intentional or fraudulent representation requires that a representation be made, which the speaker knows to be false, with the intent that it should be acted, on by the hearer. Finch, 137 So.3d at 235 (¶ 23).

¶18. Belinda’s conduct was not shown to be “the most egregious misconduct, ... ‘an unconscionable plan or scheme which is designed to improperly influence the court in its decision.’ ” Trim, 33 So.3d at 477 (¶ 15). And even though she failed to list the property in her Rule 8.05 financial statement, “simply failing to disclose essential facts to the proceedings to the adverse party or to the court does not rise to the level of fraud.” Finch, 137 So.3d at 235 (¶ 23). “[A] party is not entitled to relief [under Rule 60(b)] simply because he is unhappy with a judgment.” McNeese v. McNeese, 119 So.3d 264, 272 (¶ 20) (Miss.2013).

¶19. Furthermore, Ronald himself failed to list mineral rights in his possession on his Rule 8.05 financial statement, leading the chancellor to find that Ronald came tó court with unclean hands. “Mississippi’s chancery courts are courts of equity, and under the clean[-] hands doctrine, anyone that comes before ‘a court of equity ... must do equity as a condition of recovery.’ ” Dill v. Dill, 908 So.2d 198, 202 (¶ 11) (Miss.Ct.App.2005). “This doctrine, in effect, prevents a complainant from petitioning the court to modify' an original decree absent proof that said complainant has fully performed under the terms of the original decree or, in the alternative, that full performance thereunder has been wholly impossible.” Id. The chancellor noted: “Just as Belinda failed to disclose an asset at the time of their divorce, so did Ronald.”

¶20. This Court finds that the chancellor did not abuse his discretion in denying Ronald relief under Rule 60(b). As such, the substantial'evidence supports the chancellor’s discretionary ruling as the fact-finder.

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

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

      . Faver represented Belinda during the divorce and the first two complaints for contempt against Ronald. He testified that his law partner had drawn the deeds that transferred the property to Belinda and her sister. Faver stated that he was not aware of the transfer until after he filed the second petition for citation of contempt.


author: ISHEE, P.J.,

text:
    James RATCLIFF a/k/a James Edward Ratcliff, a/k/a James E. Ratcliff, a/k/a Eddie Rankin, Appellant v. STATE of Mississippi, Appellee
    NO. 2014-CP-01698-COA
    Court of Appeals of Mississippi.
    11/08/2016
    Rehearing Denied March 18, 2017
    Certiorari Denied July 27, 2017

      ATTORNEY FOR APPELLANT: JAMES RATCLIFF (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
    BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
   ISHEE, P.J.,

FOR THE COURT:

¶ 1. James Ratcliff pleaded guilty to possession of cocaine with intent to distribute. The Forrest County Circuit Court sentenced him to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty-five years suspended and five years to serve. The sentencing order contained a banishment clause, as a condition of Ratcliffs suspended sentence, in which he was to “remain outside ... Forrest County, Perry County!,] and Lamar County ... for the entire period of his suspended sentence.”

¶2. After filing two unsuccessful motions for postconviction relief (PCR), Rat-cliff filed a third PCR motion in December 2011. The circuit court dismissed Ratcliffs third PCR motion as a successive writ. On appeal, Ratcliff argued that the banishment clause was illegal. In September 2013, this Court reversed the circuit court’s judgment and remanded the case, so the circuit court could “determine whether Ratcliffs banishment [was] legally viable.” Ratcliff v. State, 120 So.3d 1058, 1059 (¶ 6) (Miss. Ct. App. 2013).

¶ 3. The circuit court conducted a hearing on March 17, 2014. During the hearing, the circuit court noted that in July 2010, the State filed a petition to revoke Rat-cliffs suspended sentence because Ratcliff was “found in Hattiesburg, Mississippi!,] on or about June 11, 2010,” in violation of the banishment clause. Ratcliff went before the circuit court for a hearing on the State’s revocation petition. The circuit court did not revoke Ratcliffs suspended sentence. Based on the Mississippi Supreme Court’s decision in Mackey v. State, 37 So.3d 1161 (Miss. 2010), the circuit court, vacated the banishment clause in Ratcliffs sentence.

¶ 4. Next, the circuit court discussed the fact that during September 2011, Ratcliffs probation officer filed an affidavit alleging that Ratcliff violated the terms of his post-release supervision based on two misdemeanor shoplifting convictions, and his failure to pay his monthly supervision fees. Ratcliff appeared before the circuit court again on November 16, 2011. The circuit court revoked Ratcliffs suspended sentence and ordered him to serve the previously suspended twenty-five-year term of his sentence.

¶ 5. During the March 2014 hearing, the circuit court noted that it had not revoked Ratcliffs suspended sentence based on the previously vacated banishment clause. Instead, the circuit court clarified that it revoked Ratcliffs suspended sentence because he had engaged in criminal activity while he was on postrelease supervision. Ratcliff was adamant that he should not have to serve the balance of his previously suspended sentence. The circuit court entered its final judgment on November 20, 2014. The circuit court reiterated that Rat-cliffs suspended “sentence was not revoked based upon the banishment provision of the June 29, 2006 order, but was revoked based upon his violation of [p]ost[r]elease [supervision .... ” Ratcliff appeals.

STANDARD OF REVIEW

¶ 6. An appellate court will “not disturb a trial court’s factual findings unless they are found to be clearly erroneous.” Mackey, 37 So.3d at 1163 (¶ 6). But questions of law are reviewed de novo. Id.

ANALYSIS

¶ 7. Ratcliff vigorously argues that his case is identical to Mackey and Means v. State, 43 So.3d 438 (Miss. 2010). In Mackey, 37 So.3d at 1167 (¶ 24), the supreme court reversed and rendered a “trial court’s order revoking [a] suspended sentence based on a violation of the banishment order .... ” (Emphasis added). The supreme court clarified that its decision was not intended “to imply that all banishments are improper or disfavored.” Instead, “a trial judge’s reasons for ordering banishment —regardless of the size of the geographic area—must be articulated and supported in the record by a factual basis.” Id.

¶ 8. In Means, 43 So.3d at 440 (¶ 3), the trial court revoked a suspended sentence based on a violation of a banishment clause. The supreme court reversed the trial court’s dismissal of the PCR motion and remanded the case to the trial court, so it could determine “whether the banishment comported with the due-process requirements regarding proper banishments ....” Id. at 447 (¶¶ 30-31). If the trial court found that the banishment operated as a violation of the right to due process, then the trial court was instructed to “vacate the revocation and reinstate the original, suspended sentence with all the conditions except the banishment.” Id. at (¶ 30). It is unclear what happened after the supreme court remanded the case to the circuit court.

¶ 9. As the circuit court explained to Ratcliff, Mackey and Means both involved circumstances in which a suspended sentence had been revoked based on violations of banishment clauses. Ratcliffs suspended sentence was not revoked because of the banishment clause; after the supreme court’s decision in Mackey, the circuit court vacated the banishment clause in Ratcliffs sentence. Instead, Ratcliffs suspended sentence was revoked because he committed two additional crimes while he was on postrelease supervision. All of those events occurred before Ratcliffs previous appeal, but this Court was never fully informed of the complete procedural history of Ratcliffs case. Ratcliffs case is simply not analogous to Mackey or Means.

¶ 10. Ratcliff seems to be under the mistaken impression that the circuit court removed the banishment clause in his sentence and added a condition that would allow the circuit court to order him to serve the balance of his sentence if he engaged in criminal activity. However, that is simply not the case. When the circuit court sentenced Ratcliff in 2006, it gave him an opportunity to avoid serving the entire thirty-year balance of his sentence. Ratcliff would only have to serve five years if he did not violate the terms of his post-release supervision, one of which was to refrain from engaging in further criminal activity. The circuit court did not add that provision in 2010—it existed from the beginning of his sentence. When Ratcliff later engaged in further criminal activity (and failed to pay his monthly supervision fees), the circuit court merely enforced one of the original conditions of Ratcliffs sentence by revoking his suspended sentence. Vacating the banishment clause did not prevent the circuit court from revoking Ratcliffs suspended sentence based on his subsequent criminal activity.

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

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


author: LEE, C.J.,

text:
    Clyde Delbert ESPLIN, Appellant v. Rebecca Carol ESPLIN (Bryant), Appellee
    NO. 2015-CA-00727-COA
    Court of Appeals of Mississippi.
    11/15/2016
    Rehearing Denied April 11, 2017
    Certiorari Denied July 20, 2017

      ATTORNEYS FOR APPELLANT: DONALD WAYNE MEDLEY, DAVID NEIL MCCARTY
    ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS
    BEFORE LEE, C.J., JAMES AND' GREENLEE, JJ.
   LEE, C.J.,

FOR THE COURT:'

¶1. In this appeal, we must determine whether the chancellor abused his discretion in granting in part and (denying in part Clyde Esplin’s request for relief pursuant to Mississippi Rule of Procedure 60(b).

FACTS AND PROCEDURAL HISTORY

¶2. The Lamar County Chancery Court entered a judgment of divorce on April 26, 2011, granting Clyde and Rebecca Esplín an irreconcilable-differences divorce. Clyde later filed a petition for modification of custody and contempt. Rebecca filed an answer and counterclaim for contempt. At some point, the chancellor appointed a guardian ad litem (GAL). On November 15, 2012, the chancellor entered an opinion and final judgment. These two orders—the April 26, 2011 order and the November 15, 2012 order—are not included in the record on appeal. However, the record indicates that Rebecca was awarded custody of the couple’s three minor children and that Clyde was awarded visitation, ordered to pay $375 per month in child support, and ordered to pay for the children’s health insurance (including dental insurance). And the chancellor found Clyde in contempt for failing to provide adequate health insurance for the children and for interfering with the children during their school hours.

¶3. In 2013 and 2014, Rebecca filed two petitions for contempt and modification of child support. Clyde also filed a counterclaim for custody modification and contempt. After a hearing on June 5, 2014, the chancellor entered an order finding Clyde in contempt for violating several provisions of the final judgment of divorce and the November 15, 2012 judgment, including his failure to provide, sufficient health-insurance coverage for the children and make timely child-support payments. Although the hearing had been set by an agreed order dated February 18, 2014, Clyde, who lived in Oregon, failed to appear at the hearing. The chancellor increased Clyde’s child-support payments to $1,601.55,' awarded attorney’s fees to Rebecca, and dismissed Clyde’s counterclaim for custody modification and contempt.

¶4. The chancellor set another hearing to allow Clyde to purge himself of contempt. At this hearing on August 4, 2014, Clyde appeared without counsel. Finding Clyde’s reasons for his failure to meet his obligations unpersuasive, the chancellor ordered him incarcerated. Shortly thereafter, the parties entered an agreed order to release Clyde from his incarceration since he had paid $15,319.67 to purge himself of contempt. The amount paid by Clyde included back child support, unpaid medical expenses of the children, attorney’s fees, and GAL fees.

¶5. Over the next several months, Rebecca filed two more petitions for contempt relating to Clyde’s failure to make child-support payments among other things. During this period, the chancellor entered an order of withholding from Clyde’s wages for child-support payments.

¶6. On November 21, 2014, Clyde filed a petition pursuant to Rule 60(b) entitled “motion for review and relief from final judgment for contempt and modification.” A hearing on the matter occurred on February 19, 2015. In an order dated April 2, 2015, the chancellor granted Clyde’s petition for relief in part by reducing his child-support payments due to a calculation error. Clyde was ordered to pay $1,234.88 per month in child support. Because the chancellor found Clyde in contempt again for failure to abide by the court’s prior orders, the chancellor declined to review Clyde’s other claims regarding modification of child support. The chancellor found that Clyde owed $7,852.64 in back child support; made derogatory remarks about Rebecca to the children; interfered with Rebecca’s parental rights; and failed to maintain adequate medical and dental insurance for the children as ordered. The chancellor also awarded Rebecca attorney’s fees. As before, the chancellor determined that Clyde should be incarcerated but scheduled a review hearing on May 26, 2015, to allow Clyde to purge himself of contempt prior to being incarcerated.

¶7. According to the docket entries, this hearing did not occur. Instead, Clyde filed a notice of appeal on May 1, 2015, and posted a supersedeas bond of $12,856.43. In his brief, Clyde contends that the chancellor erred by ordering him to obtain additional health insurance for his children and by failing to reduce his child-support payments. Rebecca requests attorney’s fees on appeal.

STANDARD OF REVIEW

¶8. Our review of Rule 60(b) motions is limited. Pride v. Pride, 154 So.3d 70, 74 (¶ 6) (Miss. Ct. App. 2014). “We will not reverse a trial court’s decision to deny relief under Rule 60(b) unless the trial court abused its sound discretion.” Id. “Additionally, the allegations and indicated evidence should be such as would convince a court that what is sought is not simply an opportunity to litigate that which is already settled.” Id.

DISCUSSION

I. Health Insurance

¶9. Clyde contends that by ordering him to obtain health insurance for his children, the chancellor created a new mandatory requirement and violated state law. Clyde argues that he had already obtained sufficient health insurance for his children and requiring him to obtain different health insurance created a new “gold standard” insurance requirement. According to Clyde, the children were insured through his current wife’s employer in Oregon. Rebecca testified that the deductible of $3,000 was too high, and she had difficulty finding in-network providers in the Hattiesburg area. And the dental insurance purportedly provided by Clyde was in reality a discount program, not insurance. However, Clyde testified that he had dental insurance for the children, but the insurance only covered the children in Oregon, not Mississippi. Clyde also testified that he had unsuccessfully tried to find other health-insurance options for the children, including dental insurance. Rebecca states the November 2, 2012 order required Clyde to provide medical insurance (including dental) to the children in Mississippi with a reasonable deductible.

¶10. Clyde also argues that the chancellor committed reversible error by failing to make specific findings when he ordered Clyde to provide the children’s health and dental insurance. According to Mississippi Code Annotated section 43-19-101(6) (Rev. 2015),

All orders involving support of minor children, as a matter of law, shall include reasonable medical support. ... In any case in which the support of any child is involved, the court shall make the following findings either on the record or in the judgment:
(a) The availability to all parties of health insurance coverage for the ehild(ren);
(b) The cost of health insurance coverage to all parties.
The court shall then make appropriate provisions in the judgment for the provision of health insurance coverage for the children) in the manner that is in the best interests of the child(ren).

We reiterate that this appeal stems from the denial of a Rule 60(b) motion, not a motion for modification. And Clyde never appealed either the initial judgment of divorce or the November 2, 2012 order. As stated before, Clyde did not include th.e original judgment of divorce or a transcript of the hearing in the record. In this instance, Clyde failed to follow the chancellor’s order and was given numerous opportunities to do so. Since our review of Rule 60(b) motions is limited, we cannot find that the chancellor abused his discretion in denying Clyde’s request for relief.

II. Child Support

¶11. Clyde contends the chancellor erred in failing to reduce his child-support payments based upon his inability to pay. The chancellor did reduce Clyde’s support due to a calculation error. However, the chancellor declined to review Clyde’s request for relief since Clyde had not filed a motion for modification—only a Rule 60(b) motion-—and he came into court with unclean hands. The chancellor stated, “as the Court AGAIN finds [Clyde] to be in civil contempt of this court, he will not receive consideration for affirmative relief until such time as he purges himself of contempt and can come into court with clean hands.” (Emphasis in original).

¶12. Once child-support payments become due, they become vested and cannot be modified. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss. 1990). A party who cannot meet his child-support payments should promptly file a motion for modification. Thurman v. Thurman, 559 So.2d 1014, 1016 (Miss. 1990). In this instance, Clyde never filed a motion for modification. Rather he continually failed to pay his monthly child support and only sought relief via a Rule 60(b) motion. Here, the chancellor granted the limited relief available under a Rule 60(b) motion—the correction of a calculation error. We can find no abuse of discretion by the chancellor in denying Clyde’s request for relief.

III. Attorney’s Fees

¶13. Rebecca requests attorney’s fees on appeal. When allowed, this Court' has generally granted attorney’s fees in the amount of one-half of what was awarded in the chancery court. Lauro v. Lauro, 924 So.2d 584, 592 (¶ 33) (Miss. Ct. App. 2006) (citing Monroe v. Monroe, 745 So.2d 249, 253 (¶ 17) (Miss. 1999)). The award of attorney’s fees is based on necessity rather than entitlement. Id, The chancellor awarded Rebecca $2,432.50 in attorney’s, fees. Therefore, this Court awards $1,216.25 to Rebecca for her attorney’s fees associated with the costs of this appeal.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN , PART WITHOUT SEPARATE WRITTEN OPINION.

      . Since the original order of divorce was not included in the record, the visitation schedule is unclear. But it appears the children spent much of the summer in Oregon with Clyde, and Clyde comes to Mississippi for visitation during the school year.

      . We reiterate that this order was not included in the record on appeal. But the order is referred to throughout the hearings.


author: ISHEE, J.,

text:
    Margaret MAGERS, Appellant v. DIAMONDHEAD RESORT, LLC, Appellee
    NO. 2015-CA-01330-COA
    Court of Appeals of Mississippi.
    12/13/2016
    Rehearing Denied March 18, 2017
    Certiorari Denied July 20, 2017

      ATTORNEYS FOR APPELLANT: JOE SAM OWEN, BEN F. GALLOWAY III, GULFPORT, ASHLEY CATHERINE WRIGHT
    ATTORNEYS FOR APPELLEE: DONNA M. MEEHAN, MICHAEL D. SIMMONS, JACKSON.
    BEFORE GRIFFIS, P.J., ISHEE AND CARLTON, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. On June 24, 2011, Margaret Magers was sexually assaulted by Alfredo Mongoy Cruz, an undocumented worker, in the hotel-lobby bathroom at Diamondhead Resort LLC. At the time of the assault, Dia-mondhead only had one security guard on duty, Anthony Wright. Cruz was convicted of forcible rape and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, with no hope of parole. On October 31, 2011, Magers filed a premises-liability suit against Dia-mondhead, alleging negligent security of the premises. The case proceeded to trial, and on December 19, 2014, a Hancock County jury returned a verdict in favor of Diamondhead. Magers appeals, and asserts that the trial court erred in giving jury instructions D-3 and D-8 in conjunction with P-14. She further appeals the circuit court’s decisions to prohibit her counsel from cross-examining Wright regarding his previous felonies, and to prohibit reference to Cruz’s status as an “illegal immigrant.” Finding no merit to the issues raised by Magers, we affirm.

STATEMENT OF FACTS

¶ 2. Magers attended Club NVee, a nightclub inside the Diamondhead Resort, with her brother and a few friends after the group enjoyed dinner. There were roughly twenty-five patrons at the club on June 24, 2011, in addition to the owner and operator, Roger Jones: the bartender, Jackie Kilgo: the security guard, Wright: and the front-desk clerk, Kerry Shiyou. According to surveillance footage, Magers exited the club at 1:50 a.m. and walked to the restroom located near the hotel lobby. Unbeknownst to Magers, Cruz followed her into the bathroom. Cruz was a member of a construction crew performing work in the area. He spent several nights at Dia-mondhead prior to June 24, 2011: however, Diamondhead failed to adhere to its own policy, and Cruz was never registered as a guest. Cruz stayed in one of three rooms reserved by the construction foreman, Martin Quezada.

¶3. While in the women’s restroom, Magers was brutally raped by Cruz for approximately two minutes. Wright passed by the bathroom door and noticed the light was out, so he “got the desk clerk” and the pair knocked on the bathroom door to investigate. A few seconds later, Cruz exited the bathroom and walked back to his hotel room. Shortly after Cruz exited, Magers, who was visibly upset on surveillance footage, approached Wright and informed him that she was raped in the bathroom. Wright called 911 and searched the premises for Cruz, who was ultimately found in his hotel room. Prior to the sexual assault, Cruz was only known by Diamond-head employees as a “bad tipper,” and had no other negative interactions With anyone at the hotel. Cruz was arrested and later convicted of forcible rape.

¶ 4. On December 19, 2014, the empaneled jury returned a verdict in favor of Diamondhead. Magers timely moved for a new trial under Mississippi Rule of Civil Procedure 59. The motion was denied, and Magers timely appealed the judgment.

DISCUSSION

¶ 5. In a negligence-based premises-liability case, a plaintiff must show that the defendant breached a duty owed to the plaintiff, and that the breach proximately caused damages. Kroger v. Knox, 98 So.3d 441, 443 (¶ 13) (Miss. 2012). The Mississippi Supreme Court has consistently held that “the foreseeability of the injury sustained provides the touchstone for liability.” Crain v. Cleveland Lodge 1532, Order of Moose Inc., 641 So.2d 1186, 1189 (Miss. 1994). The supreme court has declined to impose a burden on businesses that approaches “strict liability for all injuries occurring on its premises as a result of criminal acts by third parties.” Id. at 1191. Property owners have a duty to remedy, or warn of, dangerous conditions on their property that are known or should be known. Id. “Where the alleged dangerous condition is the threat of an assault,” the plaintiff must prove the defendant had either “(1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exist[ed] on the premises.” Kroger, 98 So.3d at 443 (¶ 14). “[T]he overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises, as well as the frequency of criminal activity on the premises,” are both relevant factors in determining whether an “atmosphere of violence” existed on the premises. Crain, 641 So.2d at 1189-90. “Generally, criminal acts can be intervening causes which break the causal connection with the defendant’s negligent act, if the criminal act is not within the realm of reasonable foreseeability.” Williams v. Wal-Mart Stores E. L.P., 99 So.3d 112, 118 (¶ 19) (Miss. 2012) (quoting Double Quick Inc., v. Moore, 73 So.3d 1162, 1166 (¶ 9) (Miss. 2011)).

I. Jury Instructions

¶ 6. This Court reviews the giving or refusal of jury instructions for an abuse of discretion. Windless v. State, 185 So.3d 956, 960 (¶ 8) (Miss. 2015). “When jury instructions are challenged on appeal, we do not review them in isolation: rather, ‘we read them as a whole to determine if the jury was properly instructed.’ ” Id. (citing Rubenstein v. State, 941 So. 2d 735, 787 (¶ 176) (Miss. 2006)). If the jury instructions, read as a whole, fairly announce the law of the case and create no injustice, no reversible error will be found. Id. (citing Harris v. State, 861 So.2d 1003, 1014 (¶ 21) (Miss. 2003)). “The trial court has considerable discretion in instructing the jury, and a litigant is entitled to have jury instructions that present his theory of the case.” Utz v. Running & Rolling Trucking Inc., 32 So.3d 450, 474 (¶ 78) (Miss. 2010). If a trial judge finds that a proposed jury instruction is an incorrect statement of the law, repeats a theory covered in other instructions, or has no proper foundation in the evidence before the court, then he may refuse the instruction. Id. (citing Inv’r Res. Servs. Inc., v. Cato, 15 So.3d 412, 423 (¶ 29) (Miss. 2009)). “On appeal, the appellate courts analyze whether a jury instruction correctly stated the law and was supported by the evidence.” Id. (citing Young v. Guild, 7 So.3d 251, 259 (¶ 23) (Miss. 2009)).

¶7. In the case at bar, Magers takes issue with three jury instructions that were given at trial. She argues that plaintiffs instruction fourteen (P-14), in conjunction with defense instructions three and eight (D-3 and D-8), directly contradicted one another and charged the jury with determining whether Diamondhead owed her a duty. The jury instructions are as follows:

P-14
If you find that there was not an atmosphere of violence in the premises but you find that conditions existed on the premises that gave Diamondhead Resort, LLC actual/constructive notice that a violent crime would occur, you should find for the Plaintiff.
D-3
Proximate cause is defined as the cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.
Proximate cause has two separate and distinct concepts: 1) cause in fact: and 2) foreseeability. In this case, Diamond-head’s negligence is the cause in fact of Margaret Magers’[s] injury if, but for Diamondhead’s negligence, ... Mag-ers’[s] injury would not have occurred.
Foreseeability means cause to anticipate a third party’s actions. Cause to anticipate an assault, such as in this case, may be established by: (1) actual or constructive knowledge of the third party’s violent nature, in [this] case Alfredo Mongoy Cruz, or (2) actual or constructive knowledge that an atmosphere of violence existed on Diamond-head’s premises. Evidence supporting the existence of an atmosphere of violence ... on Diamondhead’s premises may include the overall pattern of criminal activity prior to the night of June 23, 2011 [,] and the early morning of June 24, 2011, as well as the frequency of criminal activity on Diamondhead’s premises.
You are instructed that in order to establish that Diamondhead’s conduct was the proximate cause of ... Mag-ers’[s] injuries, ... Magers must prove that but for its alleged negligence ... the assault by ... Cruz would not have occurred and the assault was reasonably foreseeable.
D-8
You are instructed that an operator of a business can be liable only where he had cause to anticipate the wrongful act of the assailant. The operator of a business may have cause to anticipate that an assault of its customers may arise from:
1. Actual or constructive knowledge of the assailant’s violent nature, in this case ... Cruz, or;
2. Actual or constructive knowledge that an atmosphere of violence exists o'n the property.
Therefore, if you find from a preponderance of the evidence in this case that Diamondhead .,. had cause to anticipate the assault of ... Magers by:
1. Having actual or constructive knowledge of ... Cruz’s violent nature: or
2. Having actual or constructive knowledge that an atmosphere of violence existed on and about its premises: and
3. If you also find that Diamondhead ... failed to take reasonable actions to alleviate the cause to anticipate an assault on thé property: and
4. If you further find that Diamond-head ... failed to take reasonable actions to alleviate the cause to anticipate an assault was the sole cause or proximate contributing cause to [the] Plaintiffs injuries on June 24, 2011, then you shall find for the Plaintiff and against Diamondhead ... as to this theory of liability.
However, if you believe that the Plaintiff has failed to show any 'One of these elements, then your verdict shall be for the Defendant as to theory of liability.

¶8. Magers contends that instrúctions D-3 and D-8 allowed the jury to "determine whether a duty was owed, which is a legal question to be determined by the court. Diamondhead assumed the duty owed to Magers and expressly admitted such throughout trial as well as in defense instruction D-2A, which stated in relevant part:

The Court instructs the Jury that under Mississippi law, as an invitee, Dia-mondhead was not the insurer of ... Mager[s’s] safety. Rather, Diamond-head owed ... Magers a duty to keep its premises reasonably safe and, when not reasonably safe, to warn only of hidden dangers not in plain and open view and to exercise reasonable care to protect her from foreseeable injury at the hands of other patrons.
The test is not whether the ... proprietor [ (Diamondhead) ] was able to foresee the particular type of injury suffered, but whether the proprietor could foresee an injury would result from its actions or failure to act.

(Emphasis added).

¶ 9. Diamondhead consistently represented to the jury that it owed Magers a duty, and it acknowledged its legal obligations throughout trial and does so on appeal. Thus, Magers’s assertion that the trial court improperly charged the jury with determining a legal duty is without merit.

¶ 10. Further, Magers contends that the three instructions directly contradicted one another and, as such, misled the jury. However, the instructions appropriately and adequately conveyed the governing principles of the law germane to this case. Magers’s own jury instruction,' one she now contends misled the jury, even expanded the ways in which the" jury could find in her favor. Instruction P-14 sought to establish that prior incidences of sexual activity' in the bathrooms could be a “condition” that gave Diamondhead actual or constructive notice “that a violent crime would occur.” This goes beyond the less-favorable parameters the defense instructions provided, which required a showing of an atmosphere of violence. The jury instructions, read as a whole, illustrate that the jury was properly charged. The instructions did not misstate the law or repeat theories of law already addressed, and there was evidence to support such instructions. Therefore, we find Magers’s claims that the jury was improperly charged to be without merit.

II. Evidentiary Rulings

1! 11. “The standard of review regarding admission or exclusion of evidence is abuse of discretion.” Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss. 2000) (quoting Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (¶ 9) (Miss. 1999)). “Where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party.” Id. (citation and quotation marks omitted). Rule 402 of the Mississippi Rules of Evidence provides that relevant evidence is admissible unless the United States Constitution, the Mississippi Constitution, or the rules of evidence provide otherwise, and that irrelevant evidence is not admissible. Rule 403 provides that the “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” M.R.E. 403,

¶ 12. Under Rule 609(a)(1), a testifying witness may be impeached by evidence of a prior criminal conviction “punishable by death or by imprisonment for more than one year.” M.R.E. 609(a)(1). Evidence of the conviction must be admitted subject to Rule 403 when the witness is not a party to the litigation. M.R.E. 609(a)(1)(A). Rule 609(a)(2) states that “for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest or false statement.” Under Rule 609(b), prior convictions that occurred more than ten years prior to the incident sparking litigation are admissible only if their “probative value, supported by specific facts and circumstances, substantially outweighs [the] prejudicial effect” and adequate notice is given to the adverse party. Evidence of a criminal conviction is limited to use in attacking a witness’s character for truthfulness. M.R.E. 609(a).

¶13. The first issue Magers raises regarding the circuit court’s exclusion of evidence is the decision to prohibit Magers from cross-examining Wright about his criminal past. On September 19, 1990, Wright pleaded guilty to “two indictments for contributing to the delinquency of a minor under South Carolina law,” which were elevated to one felony count. On July 24, 1995, Wright pleaded guilty to seven charges of burglary in the third degree, three charges of grand larceny, and one charge of burglary of a motor vehicle. On May 21, 2012, almost one year after the incident that sparked litigation in this case, Wright pleaded guilty to one count of possession of a firearm by a convicted felon.

¶ 14. Prior to Wright’s testimony, the circuit court heard arguments from the plaintiffs and the defense’s counsel regarding what evidence could be presented to the jury in relation to Wright’s prior convictions. The circuit court extensively reviewed Rules 609 and 403 and found on the record that Magers’s counsel was permitted to inquire as to the number of convictions and the dates of the convictions that occurred prior to the June 23, 2011 sexual assault. However, Magers’s counsel was prohibited from inquiring about the factual circumstances surrounding the convictions or what specific crimes the convictions were for. The circuit court expressly stated that if “the door was opened” as to Wright’s veracity, then Magers’s counsel would be permitted to question Wright in greater detail. Magers’s counsel was also prohibited from questioning Wright about his conviction for possession of a firearm by a convicted felon, since that occurred after the incident from which litigation arose.

¶ 15. Evidentiary rules requiring a trial judge to weigh the probative value of impeachment evidence that a witness has been convicted of a crime against the prejudicial effect, applies to witnesses in civil as well as criminal cases and guards against prejudice to any party. See Johnson v. Fargo, 604 So.2d 306, 309 (Miss. 1992). The circuit court properly weighed the evidence of Wright’s past criminal convictions against the prejudicial effect such that an admission would have on the proceedings. Wright’s three prior convictions were twenty-one and sixteen years before Magers was sexually assaulted, and one year after she was assaulted. All three of Wright’s prior convictions were irrelevant in determining Diamondhead’s liability.

¶ 16. Magers argues that Wright perjured himself when he indicated that “Mississippi decided to make [his misdemeanor charges] felonies.” While slightly confusing and poorly clarified on cross-examination, such a statement does not constitute perjury and certainly did not “open the door” for evidence of the prior criminal convictions to be presented to the jury. We find that the circuit court did not err in its evidentiary rulings regarding Wright’s pri- or convictions and, as such, did not abuse its discretion.

¶ 17. Magers’s second issue regarding evidentiary rulings made by the circuit court stems from the court’s ruling prohibiting Magers from referencing Cruz’s status as an “illegal immigrant” or an “undocumented worker.” Magers argues that she should have been allowed to inform the jury of Cruz’s status because it was “undeniably relevant to the issue of reasonable security.”

¶ 18. At trial, Diamondhead admitted that it allowed Cruz to occupy a room without checking in and registering at the front desk, which was contrary to its written policy. The jury heard that Diamond-head admitted that it allowed Cruz’s supervisor, Quezada, to check in for three hotel rooms and that it was unaware which room Cruz was staying in. Diamondhead further stated that Cruz presented a credit card and some form of identification to the bartender, Kilgo, when he made purchases at the nightclub: and, presumably, had Diamondhead checked Cruz’s ID at the front desk for check-in, Cruz would have produced that same identification. Despite these admissions at trial, the jury found that Diamondhead was not liable to Mag-ers. Cruz’s status as an illegal immigrant, especially in light of the incriminating admissions made by Diamondhead, is irrelevant. Magers’s assignment of error that she was deprived of demonstrating that Diamondhead failed in its duty to provide reasonable security due to the prohibition of referencing Cruz’s citizenship status is without merit. The circuit court did not abuse its discretion in excluding irrelevant and potentially prejudicial evidence from being heard by the jury.

CONCLUSION

¶ 19. The circuit court did not err or abuse its discretion in charging the jury, limiting and excluding Wright’s prior erim-maT convictions, or prohibiting mention of Cruz’s status as an illegal immigrant. Because we find no errors below, we find that Magers is not entitled to a new trial, and we affirm the circuit court’s judgment.

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

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

      . Diamondhead’s hotel policy required front-desk clerks to note the name and phone number of each guest staying in the rooms, even if the room was not in that guest’s name.

      . All of the charges Wright pleaded guilty to on July 24, 1995, were combined for one joint disposition.