author: LEE, C.J., FOR THE COURT:

text:
    Terrell G. BASS a/k/a Terrell Gene Bass a/k/a Terrell Bass, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01362-COA
    Court of Appeals of Mississippi.
    October 3, 2017 Rehearing En Banc Denied February 20, 2018
    ATTORNEY FOR APPELLANT: TERRELL G. BASS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
    EN BANC.
   LEE, C.J., FOR THE COURT:

¶ 1. Terrell Bass appeals the dismissal of his second motion for postconviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Bass was indicted for two counts of capital murder and one count of aggravated assault after he killed his estranged wife, Tonya Stogner, and Ronald Plummer, and shot and injured Hershel Stogner. He took a plea deal, pleading guilty to one count of capital murder, one count of manslaughter, and one count of aggravated assault. In exchange for his guilty plea, Bass avoided the possibility of the death penalty. Bass was sentenced to life for capital murder, twenty years for manslaughter, and twenty years, with ten years suspended and five years' postrelease supervision for aggravated assault. All sentences were ordered to be served in the custody of the Mississippi Department of Corrections and ordered to run consecutively.

¶ 3. Bass, in his second PCR motion, raised three issues: (1) he received ineffective assistance of counsel, (2) his guilty plea was involuntary, and (3) his indictment was fatally defective. The circuit court dismissed Bass's PCR motion as time-barred and noted that it did not meet any of the exceptions to the bar. Bass now appeals.

STANDARD OF REVIEW

¶ 4. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Purnell v. State , 126 So.3d 949, 951 (¶ 4) (Miss. Ct. App. 2013) (citation omitted).

DISCUSSION

¶ 5. First, we find that Bass's PCR motion is time-barred. Under Mississippi Code Annotated section 99-39-5(2) (Rev. 2015), a claimant who pleads guilty has three years from the judgment of conviction to file his PCR motion. Here, Bass was convicted in 2009 and filed his second PCR motion in 2016-well beyond the three-year time-bar. As such, his PCR motion is time-barred. Additionally, Bass's motion is barred as a successive writ. Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) provides that when a prisoner has already filed a PCR motion, the second or a successive PCR motion is barred as a successive writ. We, of course, acknowledge that "[e]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act]." Williams v. State , 158 So.3d 1171, 1173 (¶ 4) (Miss. Ct. App. 2014) (citation omitted). However, "mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar." Id . Bass fails to do more than merely assert constitutional-rights violations, such that he does not survive the procedural bars. Additionally, Bass argues issues identical to those set forth in his first PCR motion, which we addressed fully in Bass v. State , 174 So.3d 883 (Miss. Ct. App. 2015) ( Bass I ). Nevertheless, we will again address the merits of his issues.

I. Effective Assistance of Counsel

¶ 6. In the instant case, Bass claims that he received ineffective assistance of counsel because the trial court appointed the local public defenders to represent him instead of the Office of Capital Defense. He argues that their representation was constitutionally ineffective because there were not proper funds to investigate and carry the case to a jury, and that his appointed counsel were not working on his case.

¶ 7. As we noted in Bass I , "[a] defendant has an absolute right to counsel, but the right to choose counsel is not absolute. It is a right that must not be abused or manipulated in such a way as to 'thwart the progress of a trial.' " Id. at 886 (¶ 10) (quoting McCormick v. State , 802 So.2d 157, 160 (¶ 10) (Miss. Ct. App. 2001) ). Here, Bass had no right to choose the Office of Capital Defense as his counsel. His absolute right to counsel was afforded to him by appointment of the local public defenders.

¶ 8. In regard to Bass's ineffective-assistance claim, Bass offers the same argument as stated in Bass I . As the facts and the law have not changed, neither has the application or result.

The circuit court noted that Bass's two appointed attorneys were both experienced public defenders. The circuit court further noted that Bass's two appointed attorneys had retained a private investigator, who had been assisting them with Bass's case for some time. Additionally, the circuit court discussed the work that Bass's two appointed attorneys had done on Bass's case, which included reviewing Bass's witness list, which included nearly sixty potential witnesses; reviewing Bass's recorded confession; visiting Bass in jail numerous times; and obtaining a mental examination for Bass.

Id . at 886 (¶ 9). Accordingly, the record does not support Bass's bare assertions of ineffective assistance of counsel. Furthermore, at Bass's plea hearing, he testified under oath that he had resolved his issues with his attorneys and that he was satisfied with their work. "It is appropriate for a circuit court to place great weight on statements made during guilty-plea hearings, as there should be a strong presumption of validity of anyone's statement under oath." Argol v. State , 155 So.3d 848, 855 (¶ 21) (Miss. Ct. App. 2013) (quoting Peckinpaugh v. State , 949 So.2d 86, 92 (¶ 16) (Miss. Ct. App. 2006) ). Here, the trial court did just that. The trial court did not abuse its discretion by denying Bass's request for new appointed counsel two weeks prior to trial, and there is no merit to Bass's claim that he received ineffective assistance of counsel.

II. Voluntary Guilty Plea

¶ 9. Bass next argues that his plea was involuntary because the trial court's denial of new appointed counsel left him "no option other than to investigate and prepare for a capital-murder case from inside a jail cell," and that otherwise he would not have pleaded guilty. Again, because there is no merit to Bass's argument that he received ineffective assistance of counsel, and the trial court did not err by refusing to appoint new counsel, this claim fails too. Rather, the transcript from Bass's plea hearing shows his guilty plea was intelligently and voluntarily given, without any coercion, pressure, threat, or other undue influence. Bass, with the assistance of his counsel, entered a voluntary guilty plea on all three counts, which enabled him to avoid the possibility of the death penalty. This issue is without merit.

III. Sufficiency of the Indictment

¶ 10. In his final issue on appeal, Bass argues that the indictment was fatally defective for failure to allege the crime underlying burglary that elevated Counts I and II to capital charges. It is true-as Bass asserts-that "capital[-]murder indictments that are predicated on burglary are required to state the underlying offense to the burglary." State v. Berryhill , 703 So.2d 250, 255 (¶ 23) (Miss. 1997). It is also true that Bass's indictment so stated the underlying offense to burglary. Both Counts I and II of Bass's indictment specifically charged that he killed Stogner and Plummer while engaged in the commission of the crime of burglary, and that the burglary was committed "with the intent to commit the crime of aggravated assault and with the intent to kill ...." "The crime of murder can be the underlying element required to establish the crime of burglary." Bass , 174 So.3d at 886 (¶ 13) (quoting Stevens v. State , 806 So.2d 1031, 1045 (¶ 56) (Miss. 2001) ). Here, Bass's indictment specified the crime underlying the burglary charge-namely, murder. Thus, this issue is without merit. The circuit court's decision is affirmed.

¶ 11. AFFIRMED.

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


source: Caselaw Access Project

author: GRIFFIS, P.J., FOR THE COURT:

license: Public Domain

text:
    Ronald Benjamin CLEMENTS a/k/a Ronald Clements a/k/a Ronald B. Clements a/k/a Ben Clements, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01586-COA
    Court of Appeals of Mississippi.
    December 12, 2017
    ATTORNEY FOR APPELLANT: ROBERT SNEED LAHER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE E. KOONCE
    DISTRICT ATTORNEY: J. TRENT KELLY
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1.

Ronald Clements was convicted of child fondling and sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections, with seven years suspended, followed by five years of post-release supervision. He was ordered to pay all court costs, a fine in the amount of $1,000, $200 to the Prentiss County Sheriff's Department Investigative Fund, $1,000 to the Mississippi Children's Trust Fund, and $100 to the Mississippi Crime Victim's Compensation Fund. Clements was further ordered to register as a sex offender and to have no contact with the child or the child's family.

¶ 2. Clements did not file any post-trial motions. Nevertheless, he appeals his conviction and challenges the sufficiency and weight of the evidence. We find these issues are procedurally barred and without merit. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Clements was indicted on one count of child fondling. Specifically, the indictment charged Clements as follows:

[O]n or about or between the dates of October 1, 2012[,] and December 1, 2012, [Clements] did wilfully, unlawfully[,] and feloniously, being a person above the age of 18 years, for purpose of gratifying his lust or indulging his depraved, licentious sexual desires, handle, touch[,] and/or rub, with his hands or other parts of his body, [Sara Gates, ] a child under ... 16 years of age, her birth date being September 16, 2006, with or without her consent, in violation of Mississippi Code Annotated, Section 97-5-23....

¶ 4. At trial, the State called six witnesses. Linda Pickering, Sara's mother, was the first to testify. Pickering testified that Sara's date of birth was September 16, 2006, and that Sara was six years old and in kindergarten in the fall of 2012.

¶ 5. Pickering further testified that in the fall of 2012, she was living with Clements and her two children. At that time, Pickering worked at the Chevron from 1 p.m. to 11 p.m. Sara and her brother would go to their grandmother's house after school, and Clements would pick them up three to four times a week. Pickering stated Clements was alone with the children nearly every night.

¶ 6. Pickering explained that on Christmas Eve 2012, she overheard her nephew, Charlie, say to Sara, "last night after we had sex." Pickering called her sister and subsequently took the children to her sister's house to find out what was going on. Charlie advised that he learned of sex from Sara. When Pickering asked Sara to explain, Sara responded that she could not tell because her daddy would get mad. Upon further questioning, Sara told Pickering that "daddy made [her] kiss his wee-wee." When asked if she meant Clements, Sara stated yes.

¶ 7. Pickering testified that when she asked Sara if Clements had hurt her, Sara responded, no, "he just used the tickly thing." Sara described the tickly thing as "the thing behind the clothes in the drawer." Pickering advised that the "tickly thing" was a vibrator that was kept in a drawer under some clothes. Pickering further advised that she and Clements were the only ones who knew where the vibrator was kept.

¶ 8. Pickering immediately reported the allegations to the sheriff's department and was instructed to wait until after the holidays to speak to the Department of Human Services (DHS). On December 26, 2012, Pickering took Sara to DHS, where Sara was interviewed outside of Pickering's presence. Pickering further took Sara for a forensic interview and got Sara into therapy.

¶ 9. Pickering testified that she believed her daughter and that Sara's story never changed. Importantly, Pickering testified that Sara never advised that anyone other than Clements touched her.

¶ 10. Candace Scott, Pickering's sister, testified that her son, Charlie, was "about three months older than [Sara]." Scott stated that she, along with her husband and Pickering, talked to Charlie about what Pickering had overheard him say to Sara. Charlie advised that Sara "showed him how to have sex the night before" and that they "pulled their clothes down and touched each other and kissed." When asked if she ever questioned Charlie again about what had happened with Sara, Scott responded, "[a] few times, but it was always [Sara] showed him, so the story never changed." Scott explained that according to Charlie, it only happened that one time.

¶ 11. Detective Derrick Hester, a criminal investigator with the Prentiss County Sheriff's Department, testified that on December 24, 2012, he received a sexual-abuse complaint from Pickering regarding Sara. He subsequently met with Pickering on December 26th, during which Pickering reported that Clements, her boyfriend, had fondled and molested her child. Detective Hester contacted DHS to create a safety plan and to set up a forensic interview.

¶ 12. Detective Hester was not present for the forensic interview, but reviewed the audio and video recordings as part of his investigation. Detective Hester subsequently had a warrant issued for Clements and contacted him directly. Clements met with Detective Hester at his office where Clements was interviewed and arrested.

¶ 13. Joanna Wilbanks, a family protection specialist with the Prentiss County DHS, who handles child-sexual-abuse cases, met with Pickering and Sara following the receipt of a report on December 26, 2012. During the meeting, Sara disclosed, without being asked, that "her dad made her suck down there" and pointed to her private area. When Wilbanks asked Sara who her dad was, Sara responded that it was Clements.

¶ 14. Additionally, when Wilbanks asked Sara if anyone had told her what to say, Sara stated that her mother told her to tell the truth. In her report, Wilbanks stated as follows:

Found the allegations in the report to be substantiated. [Sara] has disclosed that her mother's boyfriend, [Clements], made her suck down there and pointed to her private area. [Sara] stated that she was scared to say what down there was. [Sara] did state that her dad told her not to tell anybody. Forensic interview will be documented and post narrative once received.

¶ 15. Marie Frison, the director of the Child Advocacy Center in Tupelo, was admitted as an expert "in forensic interviewing and in dealing with sexually abused children." Frison conducted a forensic interview of Sara on January 2, 2013. The forensic interview included anatomy identification where an age appropriate female and male drawing was used. According to Frison, Sara referred to a girl's private area as her "private place" and the boy's private area as his "private place" or "wee-wee."

¶ 16. Frison testified that Sara disclosed sexual abuse by Clements and did not say anyone else abused her other than Clements. The synopsis of Frison's forensic interview with Sara was admitted into evidence and read to the jury. The synopsis stated as follows:

[Sara] reports that she lives with her mother and brother. [Sara] said her mother is nice because she lets her color on everything and mean because she whoops her all the time. [Sara] said her father lives in a different home and he is mean because he did something down there, pointing to [her] vaginal area. [Sara] reported that her father touched her vagina with his hand. [Sara] said her clothes were down to her knees and he touched her on the outside of her body. [Sara] also reports that her father made her touch his penis with her hand and rub up and down. [Sara] said her father's penis was hairy and big. [Sara] said his clothes were pulled down as well. [Sara] said this happened in her mother's bed. [Sara] reports that this happened more than one time. [Sara] also reports seeing her father with his clothes down and white stuff coming out of his penis. [Sara] stated he was shaking it too much. [Sara] described him rubbing white stuff into the carpet. [Sara] also said that her father made her lick his penis and kiss it.

¶ 17. Frison opined that the results of Sara's interview were consistent with that of a child who had been sexually abused. Frison explained that Sara was able to provide who was involved, what sexual act occurred, where the abuse occurred, and when it occurred. Additionally, Sara's statements were consistent, verbal, and explained using anatomical drawings. Frison testified there were no red flags that indicated Sara might have been coached into making the disclosure.

¶ 18. Sara was the State's last witness. Sara testified that when she was in kindergarten, she lived with her mom, her brother, and Clements, whom she considered to be her "daddy." Sara stated that in October or November 2012, Clements touched her in her private place. When asked where her private place was, Sara pointed to her vaginal area.

¶ 19. Sara explained that while her mother was at work, Clements took her into her mother's bedroom, told her to get into the bed, and to pull down her pants. Sara stated Clements then got in the bed, pulled down his pants, and asked her to touch his "middle," which she later identified as his "wiener." Sara stated that when she touched Clements's wiener, she felt hair. Additionally, Sara stated that she kissed Clements's wiener "[b]ecause he told [her] to." Sara agreed that Clements touched her in her private area and had her touch him.

¶ 20. Sara further explained that on a separate occasion, while in the living room, Clements pulled down his pants, got a vibrator out of the drawer, and rubbed it against his penis, as Sara watched. Sara explained that while Clements was doing this, she saw "white stuff" come out of his penis. Sara described Clements's penis as "really bumpy" with brown hair.

¶ 21. When asked why she did not tell her mother what had happened, Sara replied, "[b]ecause [Clements] told me not to." However, Sara testified that she eventually told her mother what had happened after her mother overheard her talking about it with her cousin.

¶ 22. On cross-examination, Sara acknowledged that she and her cousin talked about sex, but stated that she had never touched her cousin, nor had her cousin ever touched her. Moreover, Sara stated that no one other than Clements had ever touched her in her private area.

¶ 23. Following the presentation of its witnesses, the State rested its case-in-chief. The circuit court recessed for the evening and allowed defense counsel and Clements time "to get ready if they had motions in this matter." The next morning, the circuit court asked if there were any motions on behalf of Clements. Defense counsel responded that Clements did not have any motions "at th[at] time," but wished to proceed with the presentation of his case.

¶ 24. Clements called various witnesses in support of his defense, including Pickering and Leah Headings. Pickering testified that her relationship with Clements continued until April 2013. Pickering described her continued relationship with Clements as stupid and not the smartest decision. Pickering emphasized that she always believed Sara and did everything she could do to protect her.

¶ 25. Additionally, Pickering testified that there had been "a couple" of other incidences between Sara and Charlie. Specifically, Pickering stated that she "caught them kissing."

¶ 26. Headings, who is a licensed clinical social worker, testified regarding her counseling sessions with Sara. Headings advised that because Sara had already disclosed sexual abuse, her focus "was ... more to help [Sara] to process and deal with her abuse and heal from it."

¶ 27. According to Headings, Sara advised that Clements "touched [her] down there" and asked her to touch his "willy." When asked why she told her mom on Christmas Eve, Sara responded, "[s]he just told me to do it. She saw us in the closet with our pants down." Headings clarified that Sara was talking about her cousin Charlie. Headings emphasized that this was the first time she had met with Sara and that Sara was "blurting all this out" since there were different things to discuss, both about Clements and Charlie.

¶ 28. Headings explained that when she first met with Sara, she believed Sara was having anxiety over being abused, which would explain why she skipped around from topic to topic. Importantly, Headings testified that she believed Sara was molested by Clements.

¶ 29. Clements testified in his own defense. He stated his relationship with Sara was a normal one between a father and a daughter. Clements denied the allegations and stated he never touched Sara inappropriately and never asked her to touch him. Clements explained that while he did not think Sara made up the allegations, he believed she accused the wrong person. Clements stated that "something else ha[d] happened" that had "not been discovered." Clements further testified that his date of birth was June 15, 1988, and that he was twenty-four years old in October and November 2012.

¶ 30. Following the presentation of his witnesses, Clements rested. The State did not call any rebuttal witnesses and finally rested. After the jury was excused, the circuit court asked defense counsel if there were any motions for the record. Defense counsel responded, "I don't believe so."

¶ 31. The record does not indicate any post-trial motions were filed by Clements following his conviction. Instead, Clements filed a notice of appeal within thirty days of the judgment. On appeal, Clements claims: (1) the evidence was insufficient to support his conviction, and (2) the verdict was against the overwhelming weight of the evidence.

ANALYSIS

I. Waiver

¶ 32. Although Clements challenges the sufficiency and weight of the evidence against him, we must first determine whether he waived these issues.

¶ 33. Absent a renewal of the directed-verdict motion, a request for a peremptory instruction, or a motion for a judgment notwithstanding the verdict (JNOV), an appellant has waived the sufficiency error on appeal. Darnell v. State , 202 So.3d 281, 285 (¶ 13) (Miss. Ct. App. 2016). Additionally, "[t]he matter of evidentiary weight is waived by the failure to move for a new trial." Stewart v. State , 879 So.2d 1089, 1095 (¶ 24) (Miss. Ct. App. 2004) (citation omitted).

¶ 34. The record shows that Clements did not move for a directed verdict at any point during trial. The record further shows Clements did not request a peremptory instruction or file any post-trial motions for a JNOV or a new trial. Consequently, Clements has waived his right to challenge the sufficiency and weight of the evidence against him.

¶ 35. Notwithstanding the procedural bar, we find Clements's claims are without merit.

II. Sufficiency of the Evidence

¶ 36. Clements first argues "[t]here was insufficient evidence to sustain the jury verdict against [him]." In considering whether the evidence is sufficient to sustain a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Williams v. State , 35 So.3d 480, 485 (¶ 16) (Miss. 2010) (citations omitted). Where the facts and inferences "point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is to reverse and render. Id . However, if "reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed to have been sufficient. Id .

¶ 37. Clements was convicted of child fondling in violation of Mississippi Code Annotated section 97-5-23(1) (Rev. 2015). The elements of child fondling are: (1) a handling, touching, or rubbing, (2) of a child under the age of sixteen years, (3) by a person above the age of eighteen years, (4) for the purpose of gratifying lust or indulging depraved, licentious sexual desires. Miss. Code Ann. § 97-5-23(1).

¶ 38. Here, the record shows that at the time the acts occurred, Clements was twenty-four years old and Sara was six years old. Sara testified that Clements touched her in her "private area" and made her touch and kiss his penis. Sara described Clements's penis and further described an incident wherein "white stuff" came out of his penis.

¶ 39. Our Supreme Court has held that

the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.

Collier v. State , 711 So.2d 458, 462 (¶ 15) (Miss. 1998) (disagreed with on other grounds by Dilworth v. State , 909 So.2d 731, 735 n.4 (Miss. 2005)

). Sara's testimony was corroborated by her mother and aunt. Additionally, Sara's testimony was consistent with the information she previously provided to various child-advocate professionals. Wilbanks, Frison, and Headings all found Sara's claims were credible. Moreover, Frison opined that the results of Sara's forensic interview were consistent with that of a child who had been sexually abused. Accordingly, we find sufficient evidence was presented to support Clement's conviction.

¶ 40. Despite the testimony presented, Clements asserts the evidence was insufficient for various reasons. We address each separately.

¶ 41. First, Clements claims there was "no medical and/or scientific evidence upon which to sustain the verdict." However, no such evidence is required. Nevertheless, the record shows forensic evidence was presented in support of the allegations. Specifically, Frison conducted a forensic interview of Sara, which included anatomical drawings and identification. Frison's report was admitted into evidence and read to the jury.

¶ 42. Clements next claims "there was no evidence that [he] ever admitted the allegation to law enforcement or otherwise." While Clements did not admit the allegations against him, he offered nothing to dispute Sara's claims other than general denials. Moreover, Sara's testimony regarding the allegations against Clements was corroborated by several witnesses, including Headings, a defense witness.

¶ 43. Clements further claims "[t]he record appears to be void of any actual proof of [his] age." Yet Clements himself testified that his date of birth was June 15, 1988, and that he was twenty-four years old in October and November 2012. Thus, at the time of the allegations set forth in the indictment, Clements was "above the age of 18 years."

¶ 44. Additionally, Clements asserts it is "evident from the record" that Sara and her cousin had "sexual contact" and that Sara's testimony was inconsistent on this issue. Although the record indicates that Sara and Charlie "touched each other and kissed," Sara affirmatively stated that no one ever touched her in her private area other than Clements. Importantly, Wilbanks, Frison, and Headings, who were all aware of Charlie's involvement, believed that Sara had been sexually abused by Clements. Thus, despite any "sexual contact" with Charlie, the evidence supports Sara's allegations against Clements.

¶ 45. Next, Clements asserts that Pickering's continued communication with him indicates that she did not believe Sara. However, Pickering testified that she believed her daughter. Although Pickering continued to talk to Clements following the allegations, the record shows she never again allowed Sara to be around Clements.

¶ 46. Clements last asserts that Sara did not initially accuse him during the trial, but did so only after being prompted by the State. However, the record shows Sara specifically stated at the beginning of her testimony that Clements touched her in her private place. Sara consistently identified Clements as the one who touched her and made her touch him.

¶ 47. Overall, considering the evidence in the light most favorable to the State, we find sufficient evidence exists to support Clements's conviction of child fondling. Accordingly, this issue is meritless.

III. Weight of the Evidence

¶ 48. Clements argues "the verdict of the jury ... was against the overwhelming weight of the evidence." He claims "[n]o reasonable jury possibly could have concluded beyond a reasonable doubt that [he] committed the crimes alleged in the indictment."

¶ 49. "When reviewing a denial of a motion for [a] new trial based on an objection to the weight of the evidence, we 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." Birge v. State , 216 So.3d 1174, 1178 (¶ 17) (Miss. Ct. App. 2017). "The evidence is weighed in the light most favorable to the verdict." Id .

¶ 50. Here, the jury heard from both Sara and Clements, and was therefore presented with both sides of the story. "[T]he jury acts as fact-finder and must determine the credibility of the witnesses, and the proper weight to be assigned to their testimony." Winding v. State , 908 So.2d 163, 168 (¶ 20) (Miss. Ct. App. 2005) (citations omitted). Any conflicts in the evidence are for the jury to resolve. Williams v. State , 64 So.3d 1029, 1033 (¶ 13) (Miss. Ct. App. 2011) (citation omitted).

¶ 51. Having considered the evidence presented, we do not find the verdict to be so contrary to the overwhelming weight of the evidence that to allow the verdict to stand would sanction an unconscionable injustice. Thus, we find this issue lacks merit.

CONCLUSION

¶ 52. We find the issues raised on appeal were waived by Clements's failure to move for a directed verdict, his failure to seek a peremptory instruction, and his failure to file a post-trial motion for a judgment notwithstanding the verdict or a new trial. Nevertheless, we find sufficient evidence to support Clement's conviction and do not find the verdict to be so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Accordingly, we affirm the circuit court's judgment.

¶ 53. AFFIRMED .

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      For privacy purposes, we substitute fictitious names for the minor children and their parents.


author: GRIFFIS, P.J., FOR THE COURT: GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    Daniel W. MICHAEL, Appellant/Cross-Appellee v. Kellie Michelle SMITH, Appellee/Cross-Appellant
    NO. 2016-CA-00929-COA
    Court of Appeals of Mississippi.
    January 9, 2018
    ATTORNEY FOR APPELLANT: SHAWN M. LOWREY
    ATTORNEY FOR APPELLEE: BARRON CRUZ GRAY
    EN BANC.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Daniel W. Michael appeals the chancellor's entry of a child-visitation schedule that set visitation every other weekend from Saturday through Sunday. Michael argues the chancellor erred by not granting standard visitation of Friday through Sunday, and by imposing on him all costs and travel associated with the visitation. Kelli Michelle Smith, the child's mother, cross-appeals and argues that because Michael's post-trial motion was untimely, the chancellor lacked jurisdiction to rule on the motion and his appeal should therefore be dismissed, as it stems from a void judgment.

¶ 2. We find Michael's appeal is properly before this Court and that the chancellor correctly imposed all costs and travel expenses on Michael, but abused his discretion in restricting visitation. Thus, we affirm in part, and reverse and remand in part.

FACTS

¶ 3. E.M.S. was born to Michael and Smith in August 2013. Michael and Smith were never married. They lived in Laurel, Mississippi, at the time of E.M.S.'s birth. However, by the time this action commenced, Michael had moved to Louisiana. On March 11, 2015, Smith filed a petition in the Jones County Chancery Court to adjudicate paternity and establish custody, support, and visitation. Smith attached a DNA test, dated August 2013, that showed Michael is E.M.S.'s father.

¶ 4. On June 22, 2015, a temporary hearing was held on Smith's petition. The parties stipulated that Michael was E.M.S.'s father. On July 16, 2015, the chancellor entered a temporary order, granting Smith legal and physical custody of E.M.S. Michael was granted two-hour supervised visitations twice each week in Laurel. Smith was ordered to supervise the visitations while E.M.S. became acclimated with Michael. Michael was ordered to pay child support and the child's health insurance.

¶ 5. A trial was held on September 2, 2015, and a final judgment was entered on January 15, 2016. Smith was granted legal and physical custody of E.M.S., and a progressive visitation schedule was set for Michael. The chancellor found that due to the lack of bonding between Michael and E.M.S., Michael was to have visitation, supervised by Smith, beginning on November 28, 2015, on every second and fourth Saturday of each month at Smith's home or other place in Jones County designated by Smith from 10 a.m. to 12 p.m. Beginning on January 9, 2016, the visitation time was expanded from 10 a.m. until 5 p.m. on every second and fourth Saturday, and was to be unsupervised; but visitation was to occur in Jones County. Beginning on April 9, 2016, the visitation was to be unsupervised from 10 a.m. on Saturday until 5 p.m. on Sunday, every second and fourth weekend, in Jones County.

¶ 6. Additionally, Michael was ordered to pay an agreed-upon amount of child support and back child support. Michael was also ordered to pay certain child-care expenses and all of Smith's attorney's fees. All provisions of the temporary order not inconsistent with the final judgment were incorporated into the final judgment.

¶ 7. On January 25, 2016, ten days after the final judgment, Smith filed a Mississippi Rule of Civil Procedure 59(e) motion for reconsideration. Smith sought: (1) the imposition of a specific deadline for Michael to pay the back child support; and (2) a ruling on the payment of health insurance and medical expenses, which were addressed in the temporary order but not the final judgment.

¶ 8. On January 28, 2016, thirteen days after the final judgment, Michael filed a motion for relief from judgment under Mississippi Rule of Civil Procedure 60(b)(2) and (b)(6). Michael argued that the chancellor improperly restricted visitation and failed to set any holiday visitation. The motion states that counsel had mailed a Rule 59(e)"Motion to Alter or Amend" to the chancery clerk on January 21, 2016, but for "reasons beyond the knowledge of counsel," the motion was not received by the clerk.

¶ 9. Smith subsequently responded to Michael's motion for relief from judgment and argued that the motion failed to clearly state the relief sought and, thus, was not a proper Rule 60(b) motion. Smith claimed that Michael's motion was, on its face, a Rule 59(e) motion to alter or amend the judgment, which was required to be filed within ten days of the entry of the final judgment. Since the motion was filed thirteen days after the entry of the final judgment, Smith argued Michael's motion was time-barred.

¶ 10. On April 18, 2016, the chancellor held a hearing on the post-trial motions. At the outset of the hearing, Smith immediately moved to withdraw her motion for reconsideration, saying that all claims in the motion had been "worked out between the parties." Thus, the hearing proceeded only on Michael's motion for relief from judgment. The parties presented arguments on whether the motion was one under Rule 59 or 60, with the chancellor ultimately telling Michael to present both motions.

¶ 11. On April 20, 2016, the chancellor sent the parties a letter, stating that Michael's motion would be granted, "subject to [certain] provisions." The chancellor incorrectly stated that he believed Michael's post-trial motion-filed thirteen days after the entry of the final judgment-was a timely Rule 59(e) motion, since Mississippi Rule of Civil Procedure 6(e) allows three additional days to respond to documents served by mail. As to the final judgment, the chancellor stated that, "[c]learly, [he] erred" when he "restricted [Michael's] visits to Jones County ... and failed to address other visitation to which [Michael] was entitled."

¶ 12. On May 27, 2016, the chancellor entered an amended judgment on the parties' post-trial motions. The chancellor denied Smith's Rule 59 motion as moot, since it had been withdrawn. Additionally, the chancellor granted Michael unsupervised visitation, not limited to Jones County, every other weekend from 10 a.m. on Saturday through 5 p.m. on Sunday, and set a standard holiday- and summer-visitation schedule. Michael was ordered to be responsible for the costs and transportation associated with visitation. All other portions of the final judgment not dealing with visitation remained in effect.

¶ 13. On June 22, 2016, Michael filed a notice of appeal. On appeal, Michael raises two issues: (1) the chancellor abused his discretion in ordering visitation from Saturday through Sunday rather than Friday through Sunday; and (2) the chancellor abused his discretion in ordering Michael to be responsible for all costs and travel for visitation. Additionally, Smith raises two issues on cross-appeal: (1) the chancellor lacked jurisdiction to rule on Michael's Rule 59(e) motion, as it was untimely; and (2) Michael's appeal should be dismissed, as it stems from a void judgment.

ANALYSIS

Smith's Cross-Appeal

¶ 14. We first address Smith's cross-appeal, as it questions the chancellor's jurisdiction to enter the amended judgment and attacks the validity of Michael's notice of appeal. Smith argues that the chancellor erroneously considered Michael's Rule 59(e) motion, and, consequently, the amended judgment is void, and this appeal should be dismissed. Smith's argument raises a question of law, which we review de novo. In re M.I. , 85 So.3d 856, 857 (¶ 6) (Miss. 2012).

¶ 15. "The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b)." Loftin v. Jefferson Davis Cty. Sch. Dist. , 142 So.3d 1098, 1100 (¶ 5) (Miss. Ct. App. 2014). "The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion." Id. A Rule 59(e) motion must be filed within ten days of the entry of the final judgment. M.R.C.P. 59(b). This deadline cannot be extended. M.R.C.P. 6(b). A motion to reconsider filed after the ten-day deadline is a Rule 60(b) motion. Motions filed under the reasons set out in Rule 60(b)(1)-(6) must be filed within a reasonable time, and for motions filed under subsections (1)-(3), within six months.

¶ 16. The record shows that although Michael attempted to file a Rule 59(e) motion, it was never received by the chancery clerk. When Michael discovered that his motion had not been filed, the ten-day deadline had passed, and Michael abandoned his attempt to seek relief under Rule 59(e). Instead, he filed a Rule 60(b) motion.

¶ 17. In support of her argument that the chancellor erroneously ruled on the untimely Rule 59(e) motion and not the Rule 60(b) motion, Smith cites the chancellor's letter to counsel sent after the post-trial-motions hearing, which states that the chancellor considered Michael's Rule 59(e) motion to be timely and well taken. However, this statement does not appear in the chancellor's amended judgment, nor was it otherwise incorporated into the amended judgment. Rather, the amended judgment states that the chancellor "reviewed [Michael's] post-trial motion"-without specifying which one-and "finds it well taken[.]"

¶ 18. The chancellor's statement in the letter and Smith's argument do not acknowledge that Michael's January 28, 2016 Rule 60(b) motion was the only post-trial motion that Michael actually filed. While the Rule 59(e) motion was attached to the Rule 60(b) motion, Michael acknowledged that the Rule 59(e) motion was never filed, and he did not move to extend the time for filing it, as the chancellor would not have been permitted to grant such relief. See M.R.C.P. 6(b) (stating that the time to file a Rule 59(e) motion may not be extended).

¶ 19. Michael's Rule 60(b) motion sought relief from judgment under subsections 60(b)(2) and (6). Rule 60(b)(2) provides for relief from a final judgment for accident or mistake, and Rule 60(b)(6) provides for relief from a judgment for "any other reason ... justifying relief" not set out in Rule 60(b)(1)-(5). A Rule 60(b)(2) motion must be filed within "a reasonable time" within six months of the final judgment, and a Rule 60(b)(6) motion must be filed within "a reasonable time."

¶ 20. The record shows Michael's Rule 60(b) motion was filed within a reasonable time, as it was filed thirteen days after the final judgment. Since Michael's Rule 60(b) motion was timely filed, the chancellor had jurisdiction to consider it and thereafter enter the amended judgment. As the trial court's amended judgment on Michael's timely Rule 60(b) motion was not a void judgment, Michael's appeal is properly before this Court, and Smith's cross-appeal is without merit.

Michael's Appeal

I. Visitation Schedule

¶ 21. Michael first argues the chancellor erred in limiting his weekend visitation from Saturday through Sunday, rather than Friday through Sunday.

¶ 22. "The chancellor has broad discretion when determining appropriate visitation and the limitations thereon." Harrington v. Harrington , 648 So.2d 543, 545 (Miss. 1994). The chancellor's findings of fact will be affirmed when supported by substantial evidence, unless the chancellor abused his discretion or applied an incorrect legal standard, or if the decision was manifestly wrong or clearly erroneous. Gateley v. Gateley , 158 So.3d 296, 300 (¶ 19) (Miss. 2015). Unlike a petition for modification of child custody, alteration of a visitation schedule does not require a showing of a material change in circumstances in the custodial home. Mabus v. Mabus , 847 So.2d 815, 818 (¶ 8) (Miss. 2003). Instead, the chancellor must consider "the best interest of the child as his paramount concern," and "the rights of the non[ ]custodial parent, recognizing the need to maintain a healthy, loving relationship between the non[ ]custodial parent and his child." Harrington , 648 So.2d at 545.

¶ 23. In support of his argument, Michael relies on Fields v. Fields , 830 So.2d 1266 (Miss. Ct. App. 2002). In Fields , the chancellor awarded the father visitation every other weekend from 5 p.m. on Friday until 6 p.m. on Sunday. Id. at 1267 (¶ 4). However, the chancellor awarded no holiday or summer visitation, and required that the father ensure that the child participated in up to three church activities chosen by the mother during his weekend visitations. Id.

¶ 24. On appeal, this Court found no basis in the record for the chancellor's imposition of these restrictions on visitation. Id. at 1269 (¶ 12). In so finding, this Court first pointed to the chancellor's award of overnight visitation, which created an inference that standard visitation was not detrimental to the child. Id. Further, this Court noted that in the temporary order entered prior to the final judgment, the chancellor "did not hesitate in awarding ... standard summer and holiday visitation privileges." Id. There was no evidence that anything had changed since the temporary order, or that summer and holiday visitation were in any way detrimental to the child. Id.

¶ 25. Here, as in Fields , there is no indication that standard visitation would be detrimental to the child. See id. The chancellor awarded Michael overnight visitation and further awarded standard summer- and holiday-visitation privileges. While the chancellor did not place the same restrictions at issue in Fields , he did in fact restrict Michael's visitation, as Michael's weekend visitations did not include Friday.

¶ 26. "Except in unusual circumstances, a noncustodial parent is entitled to unrestricted standard or liberal visitation." Deborah H. Bell, Bell on Mississippi Family Law § 5.08[2] (1st ed. 2005) (citing Cox v. Moulds , 490 So.2d 866, 870 (Miss. 1986) ). Standard visitation includes "two weekends a month until Sunday afternoon and at least five weeks of summer visitation[,] plus some holiday visitation."Id. (citing Messer v. Messer , 850 So.2d 161, 167 (¶ 22) (Miss. Ct. App. 2003) ; Fields , 830 So.2d at 1269 (¶ 12) ; Chalk v. Lentz , 744 So.2d 789, 792 (¶ 9) (Miss. Ct. App. 1999) ). "Awarding less is an abuse of discretion unless there is concrete proof of actual harm to a child." Id. "Appropriate visitation restrictions often relate to abusive behavior, drug or alcohol abuse, or mental illness." Id. at § 5.08[4].

¶ 27. Here, there is no evidence of actual harm to E.M.S., nor is there evidence of abusive behavior, drug or alcohol abuse, or mental illness by Michael. Instead, the chancellor found Michael's lack of bonding with E.M.S. as the reason to restrict Michael's visitation. However, such restriction seems counterproductive. Indeed, it is unclear how limiting visitation between Michael and E.M.S. would strengthen the parent-child bond. Moreover, the record shows that at the time of the amended judgment, Michael had been "bonding" with E.M.S. for at least four hours per week for almost one year.

¶ 28. "Our courts have adopted a policy of maintaining relationships between parents and their children even though the parent may be non-custodial." Fields , 830 So.2d at 1267 (¶ 6).

The best interests of the minor child should be the paramount consideration ... while respecting the rights of the noncustodial parent and the objective of creating an environment conducive to developing as close and loving a relationship as possible between parent and child.

Bell on Mississippi Family Law at § 5.07[1] (quoting Chalk , 744 So.2d at 792 (¶ 9) ).

¶ 29. "[A]bsent evidence that the child [would be] harmed by standard visitation, the chancellor may not impose limitations on the visitation privileges of the non[-]custodial parent." Fields , 830 So.2d at 1268 (¶ 8). Here, as in Fields , there is no evidence to support the chancellor's restrictions on Michael's visitation with E.M.S. See id. at 1269 (¶ 12). Moreover, there is no evidence that E.M.S. would be harmed by standard visitation. Accordingly, we find the chancellor abused his discretion in restricting Michael's visitation, and reverse and remand with instructions to award Michael standard visitation with E.M.S., to include Fridays.

II. Travel and Costs Associated with Visitation

¶ 30. Michael further argues the chancellor erred in ordering him to incur all travel and costs associated with visitation. Michael asserts the chancellor failed to consider that he has to travel two hours each way to pick up and drop off the child, and that due to the driving time and the limited Saturday through Sunday visitation, he is unable to spend a significant amount of time with the child. He also argues that Smith should be required to meet him halfway to pick up and drop off the child.

¶ 31. The determination of transportation and costs associated with child visitation is within the chancellor's discretion. Branch v. Branch , 174 So.3d 932, 940 (¶ 24) (Miss. Ct. App. 2015). "There is no authority in Mississippi to the effect that the non[ ]custodial parent is entitled to the assistance of the [custodial parent] in the logistical aspects of exercising visitation rights." Id. (quoting Hulse v. Hulse , 724 So.2d 918, 919 (¶ 6) (Miss. Ct. App. 1998) ). Michael moved out of state to Louisiana after the child's birth, and Smith remained with the child in Laurel. We cannot find the chancellor abused his discretion in ordering Michael to bear the costs and responsibility of transporting E.M.S. for visitation.

¶ 32. We note that "reasonable participation of the custodial parent" may be warranted in cases where visitation is "substantially impaired" by the noncustodial parent's ability to transport the child. Id. at (¶ 25) (quoting Hulse , 724 So.2d at 919 (¶ 6) ). However, that is not the case here. Michael admits that he can "drive without difficulty" and that "[t]he cost of the travel [i]s not the issue[.]" Accordingly, we affirm the chancellor on this issue.

CONCLUSION

¶ 33. Overall, we find Michael's appeal is properly before us and Smith's cross-appeal is without merit. The amended judgment is affirmed as to travel and costs associated with visitation, but reversed as to the visitation schedule and remanded to the chancery court with instructions to award Michael standard visitation with E.M.S., to include Fridays.

¶ 34. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

LEE, C.J., FAIR, WILSON AND TINDELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND CARLTON, J. WESTBROOKS, J., NOT PARTICIPATING.

GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 35. I disagree with the majority's conclusion that the chancellor abused his discretion in setting visitation every other weekend from Saturday through Sunday. Our well-established standard of review for child visitation is abuse of discretion. Even if we disagree with the chancellor's findings, we may not substitute our judgment for that of the chancellor. Sanderson v. Sanderson , 170 So.3d 430, 434 (¶ 13) (Miss. 2014). There is no evidence the chancellor abused his discretion in setting the visitation schedule. Thus, the chancellor's decision regarding visitation should be affirmed. I agree with the majority that the chancellor correctly found that Michael was responsible for the cost and travel associated with visitation, and that jurisdiction is proper.

¶ 36. Our standard of review is limited. Gateley v. Gateley , 158 So.3d 296, 300 (¶ 19) (Miss. 2015). "The chancellor has broad discretion when determining appropriate visitation and the limitations thereon." Harrington v. Harrington , 648 So.2d 543, 545 (Miss. 1994). We "must affirm the chancellor's findings of fact if they are 'supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong [or] clearly erroneous [,] or [applied] an erroneous legal standard[.]' " Gateley , 158 So.3d at 300 (¶ 19) (quoting Holloman v. Holloman , 691 So.2d 897, 898 (Miss. 1996) ).

¶ 37. In setting child visitation, the chancellor must consider "the best interest of the child as his paramount concern," and also "the rights of the non[ ]custodial parent, recognizing the need to maintain a healthy, loving relationship between the non[ ]custodial parent and his child." Id. The appellate court "will not substitute its judgment for that of the chancellor 'even if [it] disagrees with the [chancellor] on the finding of fact and might arrive at a different conclusion.' " Sanderson , 170 So.3d at 434 (¶ 13) (quoting Owen v. Owen , 798 So.2d 394, 397 (¶ 10) (Miss. 2001) ).

¶ 38. Michael argues that he was entitled to "standard visitation" of Friday through Sunday every other weekend, in additional to summer and holiday visitation, unless there was evidence showing that such visitation was harmful to E.M.S. He argues that because there was no such evidence presented, the visitation schedule must be reversed. Michael and the majority rely on Fields v. Fields , 830 So.2d 1266, 1268 (¶ 8) (Miss. Ct. App. 2002), where we held "that absent evidence that the child is harmed by standard visitation, the chancellor may not impose limitations on the visitation privileges of the non[ ]custodial parent."

¶ 39. In Fields , the father was awarded visitation every other weekend from Friday afternoon through Sunday afternoon, but no holiday or summer visitation. Id. at (¶ 4). The chancellor restricted the father's weekend visitation by ordering that, during his visitation, he "ensure that [the child] participates in [up to three] church[-]related functions as determined by [the child's mother]." Id. This Court reversed the chancellor's decision, finding that there was no showing of detrimental harm, such that visitation should be restricted. Id. We stated that "there must be evidence presented that a particular restriction on visitation is necessary to avoid harm to the child before a chancellor may properly impose the restriction." Id. Further, we noted that "the chancellor did not hesitate in awarding ... standard summer and holiday visitation privileges" in the temporary agreement entered prior to the final judgment, and that no evidence was presented that anything had changed since the temporary order. Id. at 1269 (¶ 12).

¶ 40. The chancellor here did not place such requirements or restrictions on Michael's visitation. Michael was awarded summer and holiday visitation and visitation every other weekend. There were no requirements or restrictions on the manner of Michael's visitation; rather, the chancellor simply set the days and times he determined appropriate for visitation based on the child's age and relationship with Michael. The chancellor did not abuse his discretion in doing so, and there is no basis for overruling his decision on appeal. As explained in Horn v. Horn , 909 So.2d 1151, 1162 (¶ 41) (Miss. Ct. App. 2005), while "the manner of visitation may not be restricted" without compelling reason, "the time restraints " are in the chancellor's discretion. (Emphasis added).

¶ 41. In Horn , the noncustodial parent argued that the Christmas visitation schedule set by the chancellor was impermissibly restrictive. Christmas visitation was set for every other year from 3 p.m. on December 24 through 3 p.m. on December 25. In upholding the chancellor's decision, this Court stated: "While the chancellor may not restrict a non[ ]custodial parent's activities during visitation without compelling reason, the chancellor has broad discretion to specify times for visitation." Id. (emphasis added). "During visitation, non[ ]custodial parents have broad authority and discretion respecting the place and manner of visitation, 'subject only to the time constraints found reasonable and placed in the decree.' " Id. (quoting Cox v. Moulds , 490 So.2d 866, 870 (Miss. 1986) ).

¶ 42. In setting the visitation schedule, the chancellor repeatedly stated that there was a lack of bonding between Michael and E.M.S.-who was two years and nine months old at the time of the amended judgment. It was undisputed that Smith had been E.M.S.'s caretaker since birth. Smith testified that Michael "was involved on a limited basis" after E.M.S. was born, and would come by "maybe a couple times a week." But by the time E.M.S. was three months old, he only visited "maybe once a week" or "once every other week for ... an hour or two hours at a time. And then after she was three months old, he never asked to see her again." Smith testified that she spoke to Michael about once a month, but "he didn't ask to see E.M.S. He never even asked ... how she was doing." Rather, the conversations were limited to Michael's financial support. Smith testified that she never denied Michael visitation, and she wanted Michael and E.M.S. to have a relationship. She testified that he showed no interest when she suggested he visit.

¶ 43. Michael testified that he visited E.M.S. from her birth in August 2013 through November 2013. But in December 2013, Smith sent him a text message that gave him the "impression that [Smith] ... was done with [him]" and "didn't want [his] family to ever meet [E.M.S.]" So he stopped visiting. Smith testified that at some point during this time, Michael expressed that he would agree to terminate his parental rights and that he did not want to continue financial support. In March 2015, Smith filed suit to determine paternity, custody, support, and visitation. Smith testified that at the time of the temporary hearing in June 2015, Michael had not seen or spoken to E.M.S. in over a year.

¶ 44. At the June 2015 temporary hearing, Michael was granted two-hour visitations twice each week in Laurel. Smith was to supervise the visitations while E.M.S. became acclimated with Michael. Smith testified that Michael did not begin his visits right away, but started visiting in July 2015. Smith stated that Michael visited eleven times and missed seven visits between June 2015 and September 2015. Smith testified that Michael brought his girlfriend to nine of the eleven visits, and that his girlfriend mainly interacted with E.M.S. Michael agreed that his girlfriend mainly bonded with E.M.S. the first few visits-he attributed this to them both being females-and he would sometimes ask to join in whatever activity they were doing. Both Smith and Michael testified that E.M.S. does not recognize Michael as her father, although Michael stated that he desired to have a father-daughter relationship with her.

¶ 45. In the January 2016 final judgment, the chancellor set a progressive visitation schedule, again noting the lack of bonding between Michael and E.M.S. For the first six weeks, the visitation was to be supervised, every second and fourth Saturday, for two hours at Smith's home or other place in Jones County designated by Smith. For the following thirteen weeks, the visitation was to be unsupervised from 10 a.m. to 5 p.m., every second and fourth Saturday, in Jones County. After that, the visitation was to be unsupervised from 10 a.m. on Saturday until 5 p.m. on Sunday, every second and fourth weekend, in Jones County.

¶ 46. The May 2016 amended judgment substantially expanded visitation, granting Michael unrestricted visitation every other weekend from Saturday at 10 a.m. to Sunday at 5 p.m., and summer and holiday visitation. The chancellor's finding regarding the lack of bonding between E.M.S. and Michael was supported by the substantial evidence in the record and provided the chancellor's basis for the visitation schedule. Therefore, even if I may have found differently as an original matter, I cannot find that the chancellor abused his discretion in setting the visitation schedule. "[T]he chancellor must award visitation based on what is in the best interest of the child." Marshall v. Harris , 981 So.2d 345, 350 (¶ 22) (Miss. Ct. App. 2008) (citing Rogers v. Morin , 791 So.2d 815, 820 (¶ 9) (Miss. 2001) ). The chancellor has done so here.

¶ 47. I note that the chancellor's decision does not preclude Michael from later seeking an alteration of the visitation schedule. Unlike a petition for modification of child custody, a motion for an alteration of a visitation schedule does not require a showing of a material change in circumstances. Mabus v. Mabus , 847 So.2d 815, 818 (¶ 8) (Miss. 2003). But based on this Court's limited appellate review of the matter before it, I find the amended judgment should be affirmed. Therefore, I respectfully dissent in part.

IRVING, P.J., AND CARLTON, J., JOIN THIS OPINION.

      Initials are substituted for privacy of the minor child.

      Rule 6(e) does not expand the time for filing a Rule 59(e) motion. The Mississippi Supreme Court has repeatedly held that a motion under Rule 59(e)must be filed within ten days of the entry of the final judgment. See S. Healthcare Servs. Inc. v. Lloyd's of London , 110 So.3d 735, 741 (¶ 14) (Miss. 2013) (stating a Rule 59(e) motion must be filed within ten days of the final judgment); City of Jackson v. Jackson Oaks Ltd. P'ship , 792 So.2d 983, 985 (¶¶ 2-3) (Miss. 2001) (finding a Rule 59(e) motion filed twelve days after the final judgment was untimely and must be treated as a Rule 60(b) motion); Taylor v. Morris , 609 So.2d 405, 407 (Miss. 1992) (finding that a Rule 59(e) motion filed eleven days after the final judgment was timely only because the tenth day fell on a Sunday).

      Smith did not respond to Michael's arguments on appeal; rather, her brief only raises issues concerning jurisdiction. Smith does not challenge the chancellor's grant of Michael's Rule 60(b) motion; thus, we only address Michael's issues regarding the substance of the amended judgment. We also note that although Smith failed to respond to the arguments in Michael's appellant's brief, we do not consider her failure to do so as a confession of error. As our supreme court has explained, the failure to respond to the issues raised on appeal "is ordinarily treated as a confession of error, except where a child's interests are concerned . In those instances, this Court makes a special effort to review the record for support to affirm." Doe v. Smith , 200 So.3d 1028, 1032 n.12 (Miss. 2016) (emphasis added) (citing Barber v. Barber , 608 So.2d 1338, 1340 (Miss. 1992) ; Sparkman v. Sparkman , 441 So.2d 1361 (Miss. 1983) ).

      The majority cites Bell on Mississippi Family Law for the definition of "standard visitation." Bell states that standard visitation includes "two weekends a month until Sunday afternoon and at least five weeks of summer visitation[,] plus some holiday visitation." Deborah H. Bell, Bell on Mississippi Family Law § 5.08[2] (1st ed. 2005). Although this definition states that standard visitation ends on Sunday afternoon, it does not say it begins on Friday afternoon, nor is any authority cited stating that standard visitation must begin on Friday.


text:
    Otis FIPPS, Appellant v. GREENWOOD LEFLORE HOSPITAL, Appellee
    NO. 2016-CA-01141-COA
    Court of Appeals of Mississippi.
    February 6, 2018
    ATTORNEY FOR APPELLANT: CARLOS EUGENE MOORE
    ATTORNEYS FOR APPELLEE: TOMMIE GREGORY WILLIAMS JR., TOMMIE G. WILLIAMS, HARRIS FREDERICK POWERS III
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this medical-malpractice case, we must determine whether the trial court erred in excluding the testimony of Otis Fipps's medical expert, which resulted in the dismissal of Fipps's suit against Greenwood Leflore Hospital (the Hospital). Finding no error, we affirm.

PROCEDURAL HISTORY AND FACTS

¶ 2. On June 12, 2012, Fipps underwent an esophagogastroduodenoscopy (EGD) procedure performed by Dr. Thomas Calvit at the Hospital. According to Dr. Calvit, Fipps had complained of epigastric pain in both his left and right lower quadrants, dysphagia (difficulty swallowing), rectal bleeding, and constipation. Fipps also told Dr. Calvit that he possibly ingested a small piece of plastic several days prior to his initial appointment. During the EGD, Dr. Calvit performed an esophageal dilatation to treat Fipps's dysphagia. Fipps claims this procedure caused a perforation of his esophagus, leading to further medical complications including a neck abscess and two additional surgeries.

¶ 3. Fipps designated Dr. Myron Stokes, a general surgeon, as an expert "in surgery regarding upper and lower gastrointestinal issues." In his affidavit attached to the designation, Dr. Stokes stated that "the performance of esophageal dilatation [during Fipps's EGD procedure] was not proven to be indicated in any of Dr. Calvit's pre-operative or intraoperative findings, thus constituting a deviation from the standard of care expected of a physician in Dr. Calvit's profession and specialty." Dr. Stokes further opined that the esophageal "dilatation was the initiating event that led to Fipps developing a fistula with resultant neck abscess requiring two additional surgeries." Dr. Stokes was deposed several months later.

¶ 4. Based upon Dr. Stokes's deposition, the Hospital filed three pretrial motions. The first asked the trial court to exclude the portions of Dr. Stokes's testimony regarding informed consent. The second asked the trial court to exclude any potential testimony by Dr. Stokes that his medical license was current or that he had never been disciplined by any medical licensure board. The third asked the trial court to exclude Dr. Stokes's expert opinion because he lacked the appropriate qualifications to testify.

¶ 5. The trial court conducted a hearing on the Hospital's motions, ultimately granting all three. The effect of these rulings resulted in the exclusion of Dr. Stokes's deposition. After granting the Hospital's motions, the trial court asked Fipps to call his first witness. Since Fipps had no witness other than Dr. Stokes, Fipps rested. The Hospital then requested a dismissal pursuant to Mississippi Rule of Civil Procedure 41(b). Finding that Fipps could not meet his burden without expert testimony, the trial court granted the Hospital's motion.

DISCUSSION

I. Expert Testimony

¶ 6. Fipps first argues that Dr. Stokes was qualified to offer his opinion regarding the standard of care applicable to a gastroenterologist.

¶ 7. According to Mississippi Rule of Evidence 702, a witness may testify as an expert if the witness is "qualified as an expert by knowledge, skill, experience, training, or education," and "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

¶ 8. The trial court has a gate-keeping responsibility to assure a proposed expert's opinion has "a reliable basis in the knowledge and experience of the relevant discipline." Worthy v. McNair , 37 So.3d 609, 614 n.3 (Miss. 2010) (quoting Kumho Tire Co. v. Carmichael , 526 U.S. 137, 158, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ). See also Daubert v. Merrell Dow Pharm. Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We review a trial court's determination as to the qualifications of an expert witness under our familiar abuse-of-discretion standard, Hubbard v. Wansley , 954 So.2d 951, 956 (¶ 11) (Miss. 2007), which has been referred to in medical-expert cases as having "the widest possible discretion." Univ. of Miss. Med. Ctr. v. Pounders , 970 So.2d 141, 146 (¶ 16) (Miss. 2007).

¶ 9. We first note that the fact that Dr. Stokes, a board-certified general surgeon, is not certified as a gastroenterologist is not dispositive. "There is no requirement that an expert in a medical-malpractice case be a specialist in the same area as the doctor about whom the expert is testifying in regard to the standard of care." McDaniel v. Pidikiti , 39 So.3d 952, 956 (¶ 10) (Miss. Ct. App. 2009) (citation omitted). However, "[s]atisfactory familiarity with the specialty of the defendant doctor is ... required in order for an expert to testify as to the standard of care owed to the plaintiff patient." Hubbard , 954 So.2d at 957 (¶ 13).

¶ 10. In concluding that Dr. Stokes was not qualified, the trial court determined that "the questions pertaining to Dr. Stokes's knowledge of and familiarity with the standards of care of a gastroenterologist treating a patient such as Fipps simply were not asked." And that nothing exists "in Dr. Stokes's deposition from which this court can determine that Dr. Stokes is familiar with and/or possesses knowledge of the standard of care in the speciality of gastroenterology." The trial court recognized that Dr. Stokes did have some familiarity with EGD procedures, but noted that Dr. Stokes "was never asked and did not testify that he was familiar with the standard of care in the medical speciality of gastroenterology as to when and whether the dilatation procedures should be performed." In fact, Dr. Stokes's testimony concerning the esophageal dilatation indicated that he had never used the specific tool (a Maloney dilator) used by Dr. Calvit during the EGD. The trial court further noted that Dr. Stokes was never tendered as an expert in gastroenterology, only as a general surgeon.

¶ 11. Mindful that trial courts have the widest possible discretion in medical-expert cases, we cannot find that the trial court abused its discretion in finding Dr. Stokes was not qualified to offer his expert opinion. Although Dr. Stokes had some familiarity with the procedure, he did not indicate sufficient familiarity with the standard of care to which a gastroenterologist is held-Dr. Stokes simply opined as to what he would have done as a general surgeon in a similar situation. To reiterate the trial court's finding, Dr. Stokes "was never asked and did not testify that he was familiar with the standard of care in the medical speciality of gastroenterology as to when and whether the dilatation procedures should be performed." "The rule is that the expert must exercise the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Poole ex rel. Poole v. Avara , 908 So.2d 716, 724 (¶ 16) (Miss. 2005). Absent expert testimony, there is no triable issue of fact regarding the alleged medical malpractice of Dr. Calvit. This issue is without merit.

II. Informed Consent

¶ 12. Fipps next argues that Dr. Stokes's opinion regarding informed consent was properly disclosed; thus, the trial court erred in granting the Hospital's motion in limine. Upon questioning by the Hospital during his deposition, Dr. Stokes stated that he had not been asked to give his opinion on informed consent. However, on cross-examination, Fipps questioned Dr. Stokes about informed consent. The Hospital objected. After learning that Dr. Stokes's deposition would be his trial testimony, the Hospital then filed its motion in limine. "The standard of review for a trial court's decision either to admit or exclude evidence is abuse of discretion." Burnwatt v. Ear, Nose & Throat Consultants of N. Miss. , 47 So.3d 109, 114 (¶ 17) (Miss. 2010). Since we are affirming the trial court's decision to exclude Dr. Stokes's testimony, we see no reason to address this issue.

III. Status of Dr. Stokes's Medical License

¶ 13. Fipps contends that the trial court erred in granting the Hospital's motion in limine to prevent Dr. Stokes from testifying that he was a licensed physician. In his deposition, Dr. Stokes testified that he had never been disciplined by any state's medical-licensure board. By the time of trial, however, his license to practice medicine in Mississippi had been suspended. Fipps argues that any actions by the Mississippi State Board of Medical Licensure regarding Dr. Stokes's license did not commence until after Dr. Stokes's deposition; thus, Dr. Stokes's deposition testimony that he was a licensed physician who had never been disciplined was accurate at the time. Ultimately, Dr. Stokes's deposition was offered as his testimony. For reasons previously stated, we see no reason to address this issue.

¶ 14. AFFIRMED.

GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      In addition to the Hospital, Fipps initially sued Dr. Thomas Calvit in his individual capacity and Greenwood Gastroenterology Center. Both Dr. Calvit and Greenwood Gastroenterology Center were ultimately dismissed from the lawsuit.

      This procedure is also referred to as an esophageal dilation in the record.

      After Dr. Stokes's deposition but prior to trial, his Mississippi medical license was suspended.

      Fipps had previously informed the trial court that Dr. Stokes's deposition would serve as his trial testimony.

      Effective July 1, 2016, the Rules of Evidence were restyled. Though these changes were not substantive, we have quoted the former language of the rule that was in force during the trial-level proceedings.