author: CARLTON, J., FOR THE COURT:

text:
    Jonathan Earl HERRINGTON a/k/a Jonathan Herrington, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01376-COA
    Court of Appeals of Mississippi.
    October 10, 2017 Rehearing Denied February 20, 2018 Certiorari Denied May 17, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. A Neshoba County grand jury indicted Jonathan Herrington for the deliberate-design murder of Billy Scott Bishop. See Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2014). Following Herrington's trial, a jury convicted him of manslaughter. See Miss. Code Ann. § 97-3-35 (Rev. 2014). The Neshoba County Circuit Court then sentenced Herrington to twenty years in the custody of the Mississippi Department of Corrections (MDOC). See Miss. Code Ann. § 97-3-25(1) (Rev. 2014).

¶ 2. On appeal from his conviction and sentence, Herrington raises the following issues: (1) whether the circuit court erred by admitting improper opinion testimony; (2) whether the circuit court erred by admitting Kimberly Gentry's four written pretrial statements; (3) whether insufficient evidence supported the verdict; (4) whether the verdict was against the overwhelming weight of the evidence; and (5) whether resentencing or sentence clarification is needed.

¶ 3. Finding no error, we affirm Herrington's conviction and sentence.

FACTS

¶ 4. Around 4 a.m. on October 16, 2014, Deputy Jessie Hamilton with the Neshoba County Sheriff's Department responded to a call about a disturbance and a shooting that had occurred at Herrington's residence almost two hours earlier around 2 a.m. Upon arriving at Herrington's mobile home, Deputy Hamilton encountered Herrington, who was sitting on his back porch and bleeding from a cut under his eye. At trial, Deputy Hamilton testified as to what Herrington said occurred prior to, during, and after Bishop's shooting.

¶ 5. According to Deputy Hamilton's testimony, Herrington stated he was lying in his bed when Bishop walked into his bedroom and attacked him. Herrington claimed that Bishop entered his bedroom holding a cell phone and told Herrington the caller wanted to speak to him. After taking the phone, Herrington reported that Bishop jumped on top of him and began hitting him. Herrington said he tried to push Bishop away and then noticed Bishop reaching for a pistol. Herrington told Deputy Hamilton that he then reached for his own pistol, which he kept under his pillow. Herrington stated that he fired at Bishop twice and that Bishop fell over but kept trying to come toward him. As a result, Herrington said he shot Bishop a third time. Herrington further told Deputy Hamilton that he placed all the guns involved in the incident on the kitchen table.

¶ 6. Upon entering Herrington's residence, Deputy Hamilton saw Gentry sitting in the living room. As Herrington had stated, Deputy Hamilton found three guns on the kitchen table: Herrington's .38 revolver, Gentry's .380 pistol, and the .357 revolver that Herrington claimed was in Bishop's possession. Consistent with what Herrington had told him, Deputy Hamilton removed three spent rounds from Herrington's .38 revolver. Deputy Hamilton removed one spent round from the .357 revolver, and he unloaded the magazine and one bullet from the chamber of Gentry's .380 pistol.

¶ 7. When he entered Herrington's bedroom, Deputy Hamilton observed Bishop lying on his back halfway across the bottom corner of the bed. Deputy Hamilton also noted blood stains in the center of the mattress. Deputy Hamilton testified that "[m]ost of the blood that was on ... Bishop was in the facial area[, a]nd the spot in the middle of the bed was coagulated blood." After overruling the defense's objection, the circuit court allowed Deputy Hamilton to testify that, based on his observations, he believed Bishop had lain face down in the center of the mattress at one point but that his body had later been rolled over and moved to the edge of the bed.

¶ 8. As further trial testimony reflected, Herrington had met both Bishop and Gentry only recently before the shooting. Gentry testified that Herrington and Bishop had just started hanging out the week before the shooting and that the two appeared to get along with each other. Although Herrington's house was about fifteen minutes from hers, Gentry stated that both Herrington and Bishop had been staying with her for almost a week while they all used crystal methamphetamine and marijuana. Gentry's then-boyfriend, Jamey Johnson, testified that he had also been hanging out and using drugs with the group during this time period. Johnson corroborated Gentry's testimony that Herrington and Bishop appeared to get along well with each other.

¶ 9. Gentry further testified at trial that Herrington left her house the morning of the shooting and returned to his own home. Gentry stated that Bishop grew angry when he learned Herrington had left. According to Gentry, Herrington took a stolen gun, a .357 revolver, with him when he left her house, and Bishop was upset because the two men "were supposed to split whatever came out of [the sale of the gun.]" Gentry also testified that she received a strange phone call the day of the shooting from an unknown caller. The caller allegedly threatened "to blow [Gentry's] brains out" if Gentry did not stop mentioning Herrington's name and hanging out with him. Gentry testified that Bishop called the person back and warned him or her against threatening Gentry.

¶ 10. Gentry also testified that, later the same day, she made plans with Herrington to go to his house. Johnson picked up Gentry and Bishop, and the three drove to Herrington's residence. Both Gentry and Johnson testified that Herrington knew they were headed to his house. When they arrived at Herrington's residence, Herrington was already there with Billy Withers and Josh Henley. Although neither Gentry nor Johnson were acquainted with Withers, they knew Henley. Gentry and Johnson testified that they and Bishop gave Henley a ride elsewhere and then returned to Herrington's residence. Upon returning to Herrington's residence, Gentry testified that she, Johnson, and Bishop joined Herrington in his bedroom.

¶ 11. According to Gentry, she received a call from the same number as earlier in the day when the caller had threatened her. Gentry said that this time the caller asked for Bishop. Gentry stated that she handed the phone to Bishop, who then tried to give the phone to Herrington. Although Gentry testified that Herrington refused to take the phone, Johnson testified that Herrington took the phone and put it on speaker phone. However, both Gentry and Johnson agreed that a fight ensued between Herrington and Bishop. Gentry and Johnson testified that Bishop jumped on top of Herrington, who was sitting on his bed. According to Gentry's and Johnson's testimony, Bishop then began to hit Herrington.

¶ 12. Gentry stated that she wanted to stop the fight. She testified that she went into the kitchen, grabbed her .380 pistol from her purse, and fired a single shot in the air away from Herrington's bedroom. Upon hearing the shot, Johnson ran from the bedroom to check on Gentry. Johnson corroborated that he heard Gentry fire only one shot. After seeing that Gentry was unharmed, Johnson immediately returned to the bedroom, where he saw Bishop "jumping over the bed" toward Herrington. Johnson testified that Herrington was now sitting on the floor and that Bishop was "[a]lmost touching" Herrington when Herrington fired two shots toward Bishop's head. Gentry, who was still in the kitchen, testified that she also heard two shots but that she did not witness the actual shooting. After the shooting, Johnson stated that Bishop lay face down in the middle of Herrington's bed. Johnson testified that he grabbed Gentry, and the two drove away in his vehicle.

¶ 13. While Johnson and Gentry were driving, Herrington called Gentry. Gentry agreed to meet Herrington at his mother's house. After Johnson dropped her off, Gentry returned with Herrington to his residence. Gentry testified that Johnson and Herrington were both members of the Simon City Royals gang. On the drive back to Herrington's residence, Gentry testified that Herrington said he had "earned his teardrop," which meant he had killed someone. Gentry further claimed that Herrington told her "[h]e did what he had to do."

¶ 14. Gentry testified that she saw no gun in Bishop's possession the day of the shooting, and she stated that she saw neither Bishop nor Herrington in possession of a weapon just before the shooting. Johnson also saw no gun in Bishop's possession and testified that the only weapons he saw were those fired by Gentry and Herrington. Although Gentry testified that she, Bishop, and Herrington were not doing drugs the night of the shooting, she stated that, at the time of the shooting, they were all still under the influence of the drugs they had taken the previous day.

¶ 15. According to Gentry, about three hours elapsed between the shooting and when she and Herrington arrived back at his residence from his mother's house.

Gentry said that Herrington began gathering up items as soon as they entered his home. Gentry stated that Herrington went into his bedroom, took a picture of Bishop's body, and sent the picture to someone. Gentry further said she overheard a phone conversation Herrington had in which he stated, "[N]o, we'd have to burn my whole trailer down[ ] if we did that." Based on the context of the conversation, Gentry assumed Herrington and the person on the other end of the call were talking about trying to get rid of Bishop's body. Gentry further testified that, upon returning to Herrington's residence, she laid her .380 pistol on the kitchen table and that Herrington laid his .38 revolver and a .357 revolver on the table. Gentry stated that Herrington retrieved a fourth gun, the stolen .357 revolver, and then left the house to dispose of the weapon. According to Gentry, Herrington gave her a phone to call 911 and instructed her as to what to tell the operator.

¶ 16. During Gentry's cross-examination, Herrington's attorney questioned her about four written pretrial statements she gave to law enforcement. Gentry gave two statements the day of the shooting on October 16, one statement the day after the shooting on October 17, and one statement several days later on October 28. The defense cross-examined Gentry about portions of each individual pretrial statement and about any perceived differences between her pretrial statements and her trial testimony. On redirect, the State moved to admit Gentry's pretrial statements into evidence. Over the defense's objection, the circuit court admitted all four statements. When asked on redirect about the number of pretrial statements she gave, Gentry explained that she was in custody following the shooting and was therefore no longer taking drugs. Gentry testified that the law-enforcement officers "knew [her] clarity would become better after ... [she] had more time to calm down from the event." Gentry further testified that her memory was still impaired from her drug use when she gave her statements on October 16 and 17. However, she stated that she was no longer impaired when she gave her final statement on October 28.

¶ 17. The jury also heard testimony from Investigator Kevin Baysinger with the Neshoba County Sheriff's Department. Investigator Baysinger stated that he responded to a call on October 16 about someone being shot after breaking into a house. After arriving at Herrington's residence, Investigator Baysinger photographed the scene and collected evidence. Investigator Baysinger testified that he recovered a spent shell casing from Gentry's .380 pistol by the kitchen garbage can. Consistent with Deputy Hamilton's testimony, Investigator Baysinger noted that Herrington's .38 revolver had three spent shell casings. Investigator Baysinger found one spent projectile from Herrington's .38 revolver on the bedroom floor close to Bishop's body. As later testimony revealed, two more spent projectiles from Herrington's .38 revolver were recovered from Bishop's body during the autopsy. In addition to the shell casings and projectiles, Investigator Baysinger collected a hat with a hole in the back of it from near the foot of the bed.

¶ 18. Investigator Baysinger testified that after waiving his rights, Herrington gave a written statement to law enforcement on October 20. In his statement, Herrington said that he was lying in his bed when Bishop attacked him without warning. Herrington wrote that Bishop "handed me the phone with some unknown person yelling[,]" and then Bishop "began to hit me in my face constantly[.]" Herrington's statement said he felt he had no choice other than to defend himself against Bishop's attack. According to the statement, Bishop was on top of Herrington when Herrington saw Bishop reach for a .357 revolver. Herrington wrote that he pulled his own gun, a .38 revolver, from beneath his pillow and "fired twice directly toward[ ] [Bishop's] facial area." Herrington further stated that Bishop was still on his legs and moving when he "fired the third and final shot to the direct center of the back of [Bishop's] head."

¶ 19. Although both Herrington and Gentry admitted handling the guns found on the kitchen table, and although Herrington told law enforcement that Bishop had the .357 revolver in his possession, Investigator Baysinger testified that no prints were recovered from any of the weapons. Investigator Baysinger further testified that, in his experience, this was odd for a crime scene. In addition, Investigator Baysinger stated that, other than Herrington's pretrial statement, no evidence linked the .357 revolver to Bishop or indicated that Bishop had ever had the weapon in his possession.

¶ 20. During his testimony, Investigator Baysinger confirmed that law enforcement recovered a fourth gun, another .357 revolver, from the home of Herrington's mother and stepfather. Investigator Baysinger testified that Gentry told law enforcement the gun belonged to her father and had been stolen from her residence. Investigator Baysinger also testified that the list of items removed from Bishop's body and returned to his family included a black-handled knife with a sheath and two pocket knives.

¶ 21. Dr. John Davis, who performed Bishop's autopsy, testified that he observed two shots to the back of Bishop's head and one shot to his chest. Dr. Davis stated that the shot fired at Bishop's torso traveled from front to back at a downward angle. Dr. Davis recovered the bullet that caused the torso wound. As for the two shots to the back of Bishop's head, Dr. Davis testified they were so close in proximity they entered Bishop's skull through one common defect and then traveled on inseparable wound paths. Although he recovered one of the bullets fired at the back of Bishop's head, Dr. Davis stated that the second bullet exited Bishop's body. Dr. Davis further said that any of the three shots, taken individually, would have been fatal to Bishop. Depending on Bishop's overall health and fitness, however, Dr. Davis testified that it could have taken several seconds to a few minutes for Bishop to succumb to his injuries. Dr. Davis also stated that Bishop was alive when all three shots were fired, and he opined that all three shots were fired close together in a relatively short amount of time.

¶ 22. According to the forensics expert who conducted a ballistics test on the two bullets recovered from Bishop's body, both were fired from Herrington's .38 revolver. The jury also heard testimony that an alcohol and drug screen revealed the presence of methamphetamine, amphetamine, diazepam, and nordiazepam in Bishop's blood. Although Bishop was under the influence of these drugs at the time he died, the expert who conducted the analysis could not say to what extent the drugs affected Bishop.

¶ 23. During the defense's case-in-chief, Withers, who was also present at Herrington's residence at the time of the shooting, testified on Herrington's behalf. Withers stated that he, Henley, and Herrington were at Herrington's residence when the others arrived. Withers corroborated that Gentry, Bishop, and Johnson gave Henley a ride elsewhere. After they left, Withers testified that he locked the front and back doors of Herrington's residence. Withers then fell asleep in Herrington's living room while Herrington remained in his bedroom talking on his phone.

¶ 24. According to Withers, he later awoke to a scuffle and saw two people beating Herrington. Withers stated that he got up to help Herrington when a woman fired a gun at him twice. Withers stated that he then ran out the front door of Herrington's residence and hid in the woods. After hiding in the woods about five minutes, Withers testified that he heard two more shots in quick succession, and then he heard a truck drive away. About three minutes later, Withers exited the woods and saw Herrington walking out of his residence. Withers testified that Herrington had a gash on his head and was holding what appeared to be a .38 revolver. Withers rode with Herrington to Herrington's mother's house, and then Withers ran by foot to someone else's home. Withers testified that he never saw drugs or anyone using drugs while at Herrington's house.

¶ 25. Herrington's mother, Linda Jones, also testified during the defense's case-in-chief. Jones testified that Herrington showed up at her house around 2 a.m. on October 16, bleeding from injuries to his face. Jones further stated that, after Gentry arrived at her house, Gentry and Herrington left together around 3:30 a.m. Jones claimed she had no knowledge of the .357 revolver law enforcement found when they searched her home after the shooting.

¶ 26. Finally, Herrington testified on his own behalf. Herrington confirmed that he met Gentry a few days prior to the shooting. He denied, however, that he had stayed at Gentry's house for several days and had used drugs with her, Johnson, and Bishop. Herrington also testified that Bishop had sent him a threatening text message the day before the shooting, and he denied knowing that Gentry, Johnson, and Bishop planned to come to his house the evening before the shooting. According to Herrington, he never invited them to his house. In addition, Herrington testified he was unaware that Johnson, Gentry, and Bishop planned to return to his residence after they gave Henley a ride somewhere else. In fact, Herrington testified that, after the others left, he asked Withers to lock the doors to his home. He testified that he and Withers then went to sleep.

¶ 27. Herrington testified that he was asleep when his bedroom lights later turned on and revealed Gentry, Johnson, and Bishop standing in his bedroom. Herrington said that Bishop tried to hand him a cell phone, and he (Herrington) could hear the person on the other end shouting. Herrington testified that he refused to take the phone, and that Bishop, and perhaps Johnson, jumped on top of him and began hitting him. Herrington further testified that he noticed Bishop had a .357 revolver and a black-sheathed knife stuck in the waistband of his pants. Herrington claimed that he saw Bishop reach for the .357 revolver. Testifying that he feared for his life, Herrington said he grabbed his own firearm from under his pillow and fired twice at Bishop. Although Bishop fell in his lap, Herrington stated he was afraid Bishop would still try to use the .357 revolver to shoot him. As a result, Herrington testified that he fired a third shot at the back of Bishop's head. Herrington claimed the third shot was the only one he fired at the back of Bishop's head, and he said he could not explain the autopsy results showing a second shot to the back of Bishop's head. Herrington further testified, however, that he thought he heard someone else fire two shots before he ever fired his weapon at Bishop.

¶ 28. After firing the third shot at Bishop, Herrington stated that he slid from underneath Bishop and took the bullets out of both his and Bishop's guns before placing the weapons on the kitchen table. Herrington testified that he encountered Withers outside his house, and he drove them both to his mother's home. Withers then left, and Herrington waited for Gentry to arrive. Herrington stated that he arrived at his mother's house around 2 a.m. After Gentry arrived, Herrington testified that she rode back with him to his house, where they contacted law enforcement. Herrington stated he also retrieved Gentry's gun, unloaded it, and placed it on the table with the other two weapons.

¶ 29. According to Herrington, he obtained a fourth gun, a .357 revolver, from a man named Wade Pilgrim. Herrington testified that he planned to buy the gun from Pilgrim for $300 and then trade the gun to his stepfather for another weapon. Herrington testified that the gun was given to his stepfather a day or two prior to the shooting, and he denied that he took the gun to his mother and stepfather's house immediately after Bishop's shooting to hide it. Following Herrington's testimony, the defense rested.

¶ 30. After hearing all the evidence and testimony, the jury convicted Herrington of manslaughter, and the circuit court sentenced him to twenty years in MDOC's custody. Herrington subsequently filed an unsuccessful motion for a new trial. Aggrieved by his conviction and sentence, Herrington appeals.

DISCUSSION

I. Whether the circuit court erred by admitting improper opinion testimony.

¶ 31. The State asserted at trial that Herrington tampered with evidence before he alerted authorities about the shooting. During Deputy Hamilton's direct examination, the State elicited testimony from Deputy Hamilton that he believed Bishop's body was moved after the shooting. On appeal, Herrington contends the circuit court erred by admitting this improper opinion testimony. Based on this alleged error, Herrington requests a new trial.

¶ 32. This Court reviews the trial court's admission or exclusion of evidence for abuse of discretion. Cooper v. State , 200 So.3d 1065, 1074 (¶ 32) (Miss. Ct. App. 2016). In the present case, Deputy Hamilton testified as a lay witness and was never tendered as an expert. " Rule 701 of the Mississippi Rules of Evidence allows a lay witness to give opinion testimony in certain limited circumstances." Ramer v. State , 156 So.3d 919, 921 (¶ 8) (Miss. Ct. App. 2014). As this Court has previously explained:

Under Rule 701, if the witness is not testifying as an expert witness, his testimony in the form of opinions or inferences is limited to those opinions or inferences that are rationally based on his perception, and helpful to the clear understanding of his testimony or the determination of a fact in issue. Additionally, Rule 701 requires that the witness's testimony must not be based on scientific, technical, or other specialized knowledge.

Ramer , 156 So.3d at 921-22 (¶ 8) (internal quotation marks omitted).

¶ 33. During the State's direct examination of Deputy Hamilton, the following exchange occurred:

Prosecutor: Deputy Hamilton, looking at that picture that was just entered into evidence[, i]t looks like there's one spot [on the mattress] with blood and a splatter; is that correct?
Deputy Hamilton: Yes, sir.
Prosecutor: Were you able to gather anything from that [pattern?]
....
Defense Attorney: I would object. He's not qualified to give an opinion as to blood splatter or-
The Court: I would say the question does not require that level of expertise. ... Objection is overruled.
Deputy Hamilton: In my opinion, it appeared that the body may have been laid across the bed at that point and then moved afterward.
Prosecutor: Okay. Explain to us what you mean[.]
Deputy Hamilton: Most of the blood that was on ... Bishop was in the facial area. And the spot in the middle of the bed was coagulated blood. So I would assume that his face was actually on that spot at one time.
Prosecutor: Okay. And when you got [to the crime scene], his face wasn't there?
Deputy Hamilton: No, sir. He was [lying] on his back across the bed when I arrived.
Prosecutor: In the position where you found him, was there much blood pooled around him?
Deputy Hamilton: It was ... on the floor, from his facial area.
Prosecutor: So you believe that the body was face down in that one spot-
Deputy Hamilton: At one point. Yes.
Prosecutor: -and then rolled over?
Deputy Hamilton: Yes.
Prosecutor: But you don't know?
Deputy Hamilton: I don't know for sure if that's what happened, but that's what it appeared to me.

¶ 34. As previously stated, Herrington argues that Deputy Hamilton's testimony constituted improper opinion testimony. Herrington asserts that Deputy Hamilton's testimony delved into crime-scene forensics and reconstruction-areas that require specialized knowledge not possessed by the average person. Upon review, we disagree.

¶ 35. In Smith v. State , 725 So.2d 922, 925 (¶ 7) (Miss. Ct. App. 1998), the trial court admitted an officer's testimony "that the shoe print he observed on the kicked-in back door of the victim's house was, in his opinion, of the 'same pattern' as that found on the sole of a pair of shoes he observed at [the defendant's] house." In finding the officer's testimony admissible under Rule 701, this Court held the officer's observations about shoe-print patterns required no "specialized knowledge to assist the trier of fact." Smith , 725 So.2d at 925-26 (¶ 7). Instead, we concluded that the officer's "testimony was nothing more than his first-hand observation, rationally based on his personal perceptions[,]" and that his opinion was "helpful to the jury in resolving [an] important factual issue" in the case. Id. at 926 (¶ 7).

¶ 36. In the present case, Deputy Hamilton testified that, upon arriving at the crime scene, he observed most of the blood on Bishop's body around his "facial area." Deputy Hamilton also noted a large pool of blood in the middle of Herrington's mattress. Because Bishop's body was lying face up on the mattress rather than by the pool of blood, Deputy Hamilton opined that Bishop's body must have been moved at some point. Like in Smith , we find Deputy Hamilton's testimony consisted of nothing more than first-hand observations that were rationally based on his personal perceptions and that required no specialized knowledge. See id. at 925-26 (¶ 7). As a result, we find no abuse of discretion in the circuit court's admission of the opinion testimony. See Cooper , 200 So.3d at 1074 (¶ 32). We therefore find this issue lacks merit.

II. Whether the circuit court erred by admitting Gentry's four written pretrial statements.

¶ 37. Herrington further argues the circuit court erroneously admitted into evidence Gentry's four written pretrial statements. According to Herrington, the four pretrial statements constituted hearsay that unfairly prejudiced him. Herrington also claims that the State improperly used Gentry's pretrial statements as substantive evidence to bolster her testimony. As previously acknowledged, we review the circuit court's admission of evidence for abuse of discretion. See id.

¶ 38. Rule 801(d)(1)(B) of the Mississippi Rules of Evidence provides that a witness's prior statement is not hearsay when:

The declarant testifies and is subject to cross-examination about [the] prior statement, and the statement ... is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying ....

¶ 39. Our caselaw further reinforces that a witness's prior consistent statement is admissible when the witness's credibility and veracity have been attacked. Swindle v. State , 755 So.2d 1158, 1164 (¶ 14) (Miss. Ct. App. 1999). However, the Mississippi Supreme Court has explained that "[e]vidence of prior consistent statements made by the witness is not evidence of the fact testified to by the witness, but may be offered for the sole purpose of supporting the testimony of the witness whose veracity has been attacked." Stampley v. State , 284 So.2d 305, 307 (Miss. 1973). Thus, the supreme court has warned that the admission of a witness's prior consistent statement "should be received by the [trial] court with great caution and only for the purpose of rebuttal so as to enable the jury to make a correct appraisal of the credibility of the witness." White v. State , 616 So.2d 304, 308 (Miss. 1993) (quoting Stampley , 284 So.2d at 307 ).

¶ 40. In Swindle , the defense repeatedly questioned the State's chief witness on cross-examination about inconsistencies between his pretrial statement and his trial testimony. Swindle , 755 So.2d at 1164 (¶ 12). On redirect, over the defense's objection, the trial court allowed the State to introduce the witness's pretrial statement into evidence. Id. On appeal, the defendant claimed the pretrial statement constituted hearsay and improperly bolstered the witness's trial testimony. Id. In reviewing the issue, however, the supreme court observed that the defense had used the pretrial statement to cross-examine the witness and to challenge his veracity. Id. at (¶ 15). As a result of the defense's attack on the witness's veracity, the supreme court held the trial court properly admitted the witness's prior consistent statement for the limited purpose of determining the witness's credibility. Id.

¶ 41. In his concurrence to the majority opinion in Swindle , Judge Southwick observed that, in ruling upon the issue of the pretrial statement, the trial court simply "determined that[,] since the defense had already discussed the statement at considerable length, it should be admitted into evidence." Id. at 1180-81 (¶ 69) (Southwick, J., concurring). After discussing Rule 801(d)(1)(B) regarding prior consistent statements, Judge Southwick explained that "even a prior consistent statement can be so selectively used as to appear inconsistent. That concept seems to merge with [ Rule 106 of the Mississippi Rules of Evidence,] another admission[-]of[-]evidence rule[.]" Swindle , 755 So.2d at 1181 (¶ 72). Rule 106 provides that, "[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part-or any other writing or recorded statement-that in fairness ought to be considered at the same time." The comment to Rule 106 explains that "[s]uch a rule attempts to prevent misleading the jury by taking evidence out of context."

¶ 42. According to the Swindle concurrence, "[e]ven if 'Rule 106 does not necessarily require that all the remainder of a document' be admitted, it does not bar admission of 'that part which ought in fairness to be considered.' " Swindle , 755 So.2d at 1181-82 (¶ 73) (quoting Washington v. State , 726 So.2d 209, 216 (¶ 33) (Miss. Ct. App. 1998) ). In fact, the purpose of Rule 106 is that, "to 'minimize the inaccuracy of an incomplete presentation of a record, trial courts have the power to determine whether fairness requires the proponent to introduce the whole writing' as relevant to the issues of the case." Swindle , 755 So.2d at 1182 (¶ 73) (quoting Weinstein's Federal Evidence § 106.02[1] (1998) at 106-5). Furthermore, the Swindle concurrence stated that, "even if evidence is otherwise inadmissible, one party can open the door to its admission." Id. at (¶ 74) (quoting Washington , 726 So.2d at 216 (¶ 34) ). For those reasons, the concurrence agreed with the majority in Swindle that the trial court properly admitted the witness's prior consistent statement. Id. at (¶ 75).

¶ 43. In discussing the nature of the pretrial statement, Judge Southwick stated:

[The prior statement] need not be identical in every detail to the trial testimony to be considered consistent. The test of admissibility is whether a reasonable mind would accept the central thrust of the prior statement as being consistent with the witness's in-court testimony. I also find that even by using the actual statement that is considered consistent, the defense implicitly charged that what [the witness] was saying on the stand was different than what he had said soon after the shooting. That implies recent fabrication. So long as the central thrust of the prior statement is consistent with the trial testimony, it is a prior consistent statement even if the cross-examining attorney was attempting to show that it was not.

Id. (internal citation and quotation marks omitted).

¶ 44. We find the facts of the instant case are analogous to those presented in Swindle . As in Swindle , Herrington's attorney broached the topic of Gentry's four pretrial statements on cross-examination and then repeatedly questioned Gentry about any differences existing between her pretrial statements and her trial testimony. The record reflects that, over the course of the cross-examination, Herrington's attorney discussed each of Gentry's four pretrial statements, even reading portions of the statements into evidence.

¶ 45. As a result of the defense's attempt to discredit Gentry through her pretrial statements, the State sought to admit the four statements into evidence on redirect. The defense objected, arguing that the statements improperly bolstered Gentry's trial testimony. In response, the State argued, "Your Honor, I would point out that[,] during cross-examination, [the defense] referred to these four statements and said that each one was a little different. [The defense's] classification of the evidence allows the jur[ors] to determine that for themselves." After holding that the defense had received the opportunity to fully cross-examine Gentry on each of her individual pretrial statements, the circuit court concluded that the jury was "entitled to know the whole story." As a result, the circuit court overruled the defense's objection and admitted Gentry's four pretrial statements into evidence. Consistent with the circuit court's holding, the record shows that the defense cross-examined Gentry separately on portions of each pretrial statement.

¶ 46. After the admission of Gentry's pretrial statements, the State asked why Gentry gave four statements. In response, Gentry explained that the law-enforcement officers questioning her knew her clarity would be better once she had more time to calm down from the shooting. Gentry further stated that she was in custody the entire time and no longer using drugs. As a result, by the date she gave her final statement, she was no longer impaired from her drug use before the shooting. Following the State's redirect examination of Gentry, the circuit court allowed the defense to recross-examine her.

¶ 47. Upon review, we find no abuse of discretion in the circuit court allowing the State to introduce the pretrial statements on redirect to support Gentry's accuracy and credibility. See Cooper , 200 So.3d at 1074 (¶ 32). By cross-examining Gentry on portions of each of her pretrial statements, Herrington's attorney challenged her veracity as to each statement. See Swindle , 755 So.2d at 1164 (¶ 15). Furthermore, by using limited portions of each statement, the defense challenged the consistency of the statements. In reading directly, but selectively, from Gentry's prior statements, Herrington's attorney implied that her trial testimony was a recent fabrication that differed from her pretrial statements to law enforcement. Id. at 1182 (¶ 75) (Southwick, J., concurring). However, a review of the entirety of Gentry's four pretrial statements establishes that "a reasonable mind [c]ould accept the central thrust of the prior statement[s] as being consistent with [Gentry's] in-court testimony." Id. We therefore find that, not only did the defense open the door to the State's introduction of Gentry's pretrial statements, but as the circuit court ruled, fairness dictated that the jury have access to Gentry's complete statements. Thus, we find this assignment of error lacks merit.

III. Whether insufficient evidence supported the verdict.

¶ 48. Herrington challenges the sufficiency of the evidence supporting his manslaughter conviction. In considering a challenge to the legal sufficiency of the evidence, "we consider all evidence in the light most favorable to the State[,]" and "[w]e give the State the 'benefit of all favorable inferences reasonably drawn from the evidence.' " Duke v. State , 146 So.3d 401, 405 (¶ 15) (Miss. Ct. App. 2014) (quoting Grossley v. State , 127 So.3d 1143, 1147 (¶ 10) (Miss. Ct. App. 2013) ). Furthermore, we accept as true all credible evidence consistent with the defendant's guilt. Id. "The central question 'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Id. (quoting Grossley , 127 So.3d at 1147 (¶ 10) ). "[I]f '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 [to sustain the conviction]." Birge v. State , 216 So.3d 1174, 1177 (¶ 11) (Miss. Ct. App. 2017) (quoting Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) ).

¶ 49. Manslaughter is "[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense." Miss. Code Ann. § 97-3-35. Mississippi Code Annotated section 97-3-15(1)(e)-(f) (Rev. 2014) provides that the killing of a human being is justifiable:

(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises thereof in which such person shall be;
(f) When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished[.]

Where a defendant claims self-defense, "the State bears the burden of proving beyond a reasonable doubt that the defendant was not acting in necessary self-defense." Birge , 216 So.3d at 1177 (¶ 12) (quoting Harris v. State , 937 So.2d 474, 481 (¶ 23) (Miss. Ct. App. 2006) ).

¶ 50. Herrington argues that the circumstances surrounding Bishop's death demonstrate a clear case of self-defense and justifiable homicide. He further asserts that the State failed to prove beyond a reasonable doubt that he did not act in necessary self-defense at the time of Bishop's shooting. As a result, he contends insufficient evidence supported his guilty verdict.

¶ 51. The jury heard undisputed evidence from multiple witnesses that Bishop initiated the fight with Herrington. Herrington asserted at trial that it "[f]elt like I was getting the life beat out of me." However, Herrington testified that he never sought medical treatment for any injuries. Furthermore, Herrington claimed that he never feared for his life until he saw Bishop reach for a weapon.

¶ 52. According to Herrington, Bishop reached for a .357 revolver during the fight, which prompted Herrington to retrieve his own gun and fire three times. The State presented evidence, however, to rebut Herrington's assertion that the situation necessitated deadly force. As Investigator Baysinger observed during his testimony, no other evidence supported or corroborated Herrington's claim that Bishop ever had a gun in his possession. Gentry testified that she never saw Bishop in possession of a gun the day of or just prior to the shooting. Johnson, who testified that he actually saw Herrington fire two shots toward Bishop's head, also stated that he never saw Bishop in possession of a gun. Furthermore, Investigator Baysinger testified that no prints were recovered from the .357 revolver that Herrington claimed belonged to Bishop.

¶ 53. Despite Johnson's testimony that he saw Herrington fire two shots toward Bishop's head, Herrington asserted that he only shot Bishop once in the back of the head after Bishop fell in his lap and continued to move while holding a gun. As the jury heard, however, the autopsy revealed Bishop sustained one shot to his torso and two shots to the back of his head. The autopsy further showed that the two shots to the back of Bishop's head were so close in proximity to each other that the bullets entered his skull at one common point and traveled a similar path.

¶ 54. Testimony from multiple witnesses established that Herrington failed to alert law enforcement about the shooting until almost two hours after the fact. Gentry testified that, upon returning with Herrington to his residence, he immediately began gathering up items. Gentry stated that Herrington then gave her a phone and told her exactly what to say before instructing her to contact the authorities. Before the authorities arrived, Gentry testified that Herrington used a second phone to take a picture of Bishop's body and to send the picture to someone. Although Herrington claimed that he never moved Bishop's body, Deputy Hamilton testified that it appeared the body had been moved before authorities arrived. Deputy Hamilton stated there was coagulated blood pooled in the center of Herrington's mattress as though Bishop's face had rested there. However, when Deputy Hamilton entered Herrington's bedroom, Bishop's body lay face up across the corner of the mattress as though someone had rolled Bishop over.

¶ 55. Gentry further stated that, while waiting for the authorities to arrive, she overheard part of a phone conversation in which Herrington said, "[N]o, we'd have to burn my whole trailer down[ ] if we did that." Gentry testified that she assumed Herrington and the other person were discussing how to dispose of Bishop's body. Gentry also claimed that, after she put her .380 pistol on the kitchen table and Herrington put his .38 revolver and a .357 revolver on the table, Herrington retrieved a fourth gun, the stolen .357 revolver. Gentry claimed that Herrington exited the house with the stolen gun and disposed of the weapon. According to Investigator Baysinger, authorities later recovered the .357 revolver from Herrington's mother's house.

¶ 56. Viewing the evidence in the light most favorable to the State, we find sufficient evidence existed for a rational trier of fact to find the State met the essential elements of manslaughter beyond a reasonable doubt. See Duke , 146 So.3d at 405 (¶ 15).

IV. Whether the verdict was against the overwhelming weight of the evidence.

¶ 57. Herrington also contends that his guilty verdict is contrary to the weight of the evidence. In responding to this claim, the State correctly points out that Herrington untimely filed his motion for a new trial. "Uniform Rule of Circuit and County Court 10.05 requires that a motion for [a] new trial must be made within ten days of the judgment ...." Allen v. State , 200 So.3d 1100, 1101 (¶ 2) (Miss. Ct. App. 2016) (footnote added and citation omitted). Herrington's judgment of conviction was filed on August 15, 2016. Thus, Herrington had until August 25, 2016, to timely file a motion for a new trial. See id. However, Herrington's attorney did not even sign and submit the posttrial motion to the circuit court until September 7, 2016, which was well outside the ten-day time period. We therefore find no error in the circuit court's denial of Herrington's motion for a new trial.

V. Whether resentencing or sentence clarification is needed.

¶ 58. At the conclusion of Herrington's trial, the circuit court sentenced him to twenty years in MDOC's custody "as a matter of law, albeit, without parole ... [to be served] day for day." On appeal, Herrington acknowledges that his twenty-year sentence complies with the statutory maximum provided by section 97-3-25(1). He contends, however, that he was never indicted as a habitual offender or pursuant to a sentence enhancement. As a result, Herrington questions whether the circuit court believed that his sentence was required to be twenty years "as a matter of law." Herrington asks that, if this Court affirms his conviction, we remand his case for resentencing or for clarification as to whether the circuit court felt legally obligated to sentence him to the statutory maximum of twenty years.

¶ 59. As Herrington contends, he was neither indicted nor convicted pursuant to the habitual-offender statute or a sentence enhancement. Despite the circuit court's pronouncement in open court that Herrington was sentenced to twenty years "as a matter of law, albeit, without parole ... [to be served] day for day[,]" the sentencing order makes no mention of parole ineligibility or a day-for-day requirement. Instead, the sentencing order simply states, "The Defendant, ... Herrington, is sentenced to serve a term of twenty (20) years in the custody of [MDOC]."

¶ 60. As discussed, Herrington was sentenced under section 97-3-25(1), which permits a sentencing range from two to twenty years in MDOC's custody for anyone convicted of manslaughter. Thus, Herrington's sentence falls within the permissible range provided by statute. "In general, a sentence which falls within the permissible range designated by statute will not be disturbed on appeal." Hayes v. State , 203 So.3d 1144, 1146 (¶ 5) (Miss. Ct. App. 2016) (quoting McCline v. State , 856 So.2d 556, 560 (¶ 18) (Miss. Ct. App. 2003) ). Furthermore, "we have recognized that 'it is well-settled law in Mississippi that a written order prevails over a conflicting oral pronouncement.' " Weary v. State , 155 So.3d 866, 869 (¶ 9) (Miss. Ct. App. 2013) (quoting Jones v. State , 70 So.3d 255, 259 (¶ 12) (Miss. Ct. App. 2011) ). Accordingly, because Herrington's sentencing order complies with statutory guidelines, we decline to disturb his sentence on appeal. This assignment of error lacks merit.

¶ 61. We affirm Herrington's conviction and sentence.

¶ 62. AFFIRMED.

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

      Herrington's judgment of conviction was signed on August 8, 2016, and filed on August 15, 2016. Under Rule 4(a) of the Mississippi Rules of Appellate Procedure, Herrington had thirty days to timely file his notice of appeal. The record shows that Herrington submitted his motion for appeal to the circuit court prior to the thirty-day deadline. Also prior to the expiration of the thirty-day deadline, the circuit court heard Herrington's motion and signed an order granting his appeal and his request for in forma pauperis status. However, Herrington's appeal was not filed with the circuit court clerk until after the expiration of the thirty-day deadline. Even so, we may suspend Rules 2 and 4 of the Mississippi Rules of Appellate Procedure to allow an out-of-time appeal in a criminal case. See Wells v. State , 73 So.3d 1203, 1207 (¶ 8) (Miss. Ct. App. 2011). As reflected by its grant of Herrington's appeal and request for in forma pauperis status, the circuit court found Herrington's appeal to be timely. Thus, in the interests of justice, we allow his appeal to proceed, and we address the merits of his assignments of error. See id.

      See M.R.E. 106 ; Esco v. State , 9 So.3d 1156, 1163 (¶¶ 29-31) (Miss. Ct. App. 2008) ; Washington , 726 So.2d at 216 (¶¶ 33-34).

      Effective July 1, 2017, the Mississippi Rules of Criminal Procedure superseded the Uniform Rules of Circuit and County Court. However, at the time of Herrington's judgment of conviction, the Uniform Rules of Circuit and County Court still applied.


source: Caselaw Access Project

author: WILSON, J., FOR THE COURT:

license: Public Domain

text:
    Alvin GREEN, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00334-COA
    Court of Appeals of Mississippi.
    January 9, 2018 Rehearing Denied May 8, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY TAYLOR GERBER
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Following a jury trial, Alvin Green was convicted of two counts of armed robbery, conspiracy to commit armed robbery, aggravated assault, and two counts of possession of a firearm by a convicted felon. Green's appointed appellate counsel filed a " Lindsey brief," certifying that she has scoured the record and that the case presents no "arguable issues" for appeal. Lindsey v. State , 939 So.2d 743, 748 (¶ 18) (Miss. 2005). Green subsequently filed a pro se supplemental brief that could be liberally construed as challenging the weight or sufficiency of the evidence and/or to allege ineffective assistance of trial counsel. We have independently reviewed the entire record and find no issues warranting reversal. Therefore, we affirm Green's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. On Tuesday, October 27, 2015, Stanley Ginn was walking home from school at McComb High School when two men drove up beside him in a Silver Nissan. At trial, Ginn identified Green as one of the two men in the car. The other man got out of the car and put a gun to Ginn's stomach. Green directed the man with the gun to check Ginn's pockets and to take Ginn's book sack. The man with the gun took two dollars in change from Ginn's pockets, Ginn's iPhone, and Ginn's book sack. The man with the gun then returned to the car, and the two men drove off.

¶ 3. On Wednesday, October 28, 2015, Carlos Jones was at a gas station in McComb when two men in a car offered to sell him codeine cough syrup. At trial, Jones identified Green as one of the two men in the car, which he described as a gray Nissan Altima. Jones declined to buy the cough syrup but offered to sell the men some jewelry, which he showed them. Green said that he would buy the jewelry but needed to go to the ATM first. When Green got out of his car, he put a gun in Jones's stomach and said, "Give me everything you got." Jones tried to push the gun away, but Green fired the gun, and the bullet grazed Jones and wounded him. Green then returned to the car, and the two men then drove off.

¶ 4. Based on partial license plate numbers provided by witnesses, the police were able to identify the car used in the robberies as a 2009 silver Nissan Altima owned by Victoria Holmes. They located Holmes and the car on Friday, October 30, 2015.

¶ 5. Holmes told police that Green had her car on the days of the two robberies. Holmes, who lived in McComb, had gone to visit her sister in New Orleans the weekend before the robberies. Green lived in New Orleans and knew Holmes's sister, and Holmes agreed to give him a ride back to McComb on Monday, October 26, 2015. Green and a man named "Trell" then rented a room at the Quality Inn in McComb. On Tuesday and Wednesday, Green and Trell borrowed Holmes's car during the day while she was at work at Sanderson Farms. Green told Holmes that "he was thinking about staying [in McComb] longer" and might even move there. However, when Green and Trell picked Holmes up at work on Wednesday night, they were in a hurry to go back to New Orleans immediately. Holmes drove them back to New Orleans that night and then returned to McComb alone the next day.

¶ 6. A Pike County grand jury indicted Green for the armed robberies of Ginn and Jones, conspiracy to commit the armed robbery of Ginn, two counts of possession of a firearm by a convicted felon, and the aggravated assault of Jones. The case proceeded to a jury trial on February 15-16, 2017. The State called five witnesses: Ginn, Jones, Holmes, Detective Sid Boyte of the McComb Police Department, and an employee of the Quality Inn, who testified that Green stayed at the hotel on October 26-28, 2015. The defense rested without calling any witnesses, and the jury returned a verdict finding Green guilty on all counts.

¶ 7. The circuit court sentenced Green to concurrent terms of thirty years, with ten years suspended and five years of post-release supervision, for each count of armed robbery; ten years for each count of possession of a firearm by a convicted felon; five years for conspiracy; and twenty years for aggravated assault. Green subsequently filed a motion for a judgment notwithstanding the verdict or a new trial, which the circuit court denied, and a notice of appeal.

ANALYSIS

¶ 8. Lindsey , 939 So.2d at 748 (¶ 18), establishes the "procedure to govern cases where appellate counsel represents an indigent criminal defendant and does not believe that his or her client's case presents any arguable issues on appeal." Green's appointed appellate counsel complied with that procedure and certified that there are no arguable issues for appeal. Green then filed a pro se supplemental brief that could be liberally construed as challenging the weight or sufficiency of the evidence and/or to allege ineffective assistance of trial counsel.

¶ 9. Pursuant to Lindsey , we have "reviewed the briefs and conducted an independent and thorough review of the record, and we conclude that there are no issues that warrant reversal." Taylor v. State , 162 So.3d 780, 787 (¶ 18) (Miss. 2015). The State presented sufficient evidence to establish Green's guilt beyond a reasonable doubt, and the jury's verdict is not against the overwhelming weight of the evidence. Green's allegation that his lawyer "never looked into" exculpatory evidence " '[is] based on facts not fully apparent from the record' and thus cannot be addressed on direct appeal." Johnson v. State , 191 So.3d 732, 736 (¶ 14) (Miss. Ct. App. 2015) (quoting Sandlin v. State , 156 So. 2d 813, 819 (¶ 20) (Miss. 2013)). This claim is "more appropriate [for] a motion for post-conviction relief" and is therefore dismissed without prejudice. Id. at (¶ 13). Accordingly, Green's convictions and sentences are affirmed.

¶ 10. AFFIRMED .

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

      The grand jury also indicted Green on five additional counts based on another incident, with a different victim, on October 27, 2015. Those charges-armed robbery, kidnapping, conspiracy to commit armed robbery, conspiracy to kidnap, and possession of a firearm by a convicted felon-were remanded to the files on the day of trial.


text:
    In the MATTER OF the CONSERVATORSHIP OF Charles ADDISON: Cynthia Shenell Jackson a/k/a Cynthia Addison Jackson, Appellant v. Doug TOUCHSTONE, Conservator, William Addison a/k/a Willie Addison, and Aubrey Addison, Appellees
    NO. 2016-CA-00668-COA
    Court of Appeals of Mississippi.
    January 9, 2018 Rehearing Denied May 8, 2018
    ATTORNEY FOR APPELLANT: SANFORD E. KNOTT
    ATTORNEYS FOR APPELLEES: ALTON LAMAR WATTS, GARY L. HONEA, JOHN BENJAMIN ROWLEY, TODD BRENTLEY OTT
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. This is a case about joint ownership of bank accounts and certificates of deposit. From 1975 to 1999, Charlie Addison made his daughter, Cynthia Addison Jackson, a joint owner of several of his bank accounts and CDs. Cynthia was still in high school when Charlie opened the first of these accounts. In 2011, Charlie's mental and physical health had declined, and he needed a conservator. The chancellor appointed Cynthia conservator of Charlie's person and appointed the Pike County Chancery Clerk conservator of Charlie's estate. The chancellor also ordered the funds in the joint accounts and CDs to be transferred to a conservatorship account for "safekeeping." Cynthia appealed, arguing that the chancellor should have appointed her conservator of her father's estate. However, Charlie passed away while the appeal was pending. Cynthia and the conservator then filed a joint motion to dismiss the appeal as moot, which this Court granted.

¶ 2. After Charlie's death, Cynthia filed a motion in the chancery court requesting the return of the funds that had been transferred to the conservatorship account. She maintained that she was the rightful owner of the funds as the surviving joint owner of the accounts and CDs from which they had been transferred. The chancellor denied Cynthia's motion and ruled that the funds were the property of Charlie's estate. Cynthia appealed.

¶ 3. We hold that Cynthia was a joint owner with rights of survivorship of the funds held in the joint accounts and CDs, that her interest in the funds was not destroyed by their transfer to conservatorship accounts, and that she did not abandon her claim to the funds when she agreed to dismiss her prior appeal as moot. Accordingly, we reverse and render judgment in favor of Cynthia.

FACTS AND PROCEDURAL HISTORY

¶ 4. Charlie and his wife, Margie Mae, had two sons, Aubrey Addison and Willie Addison, and one daughter, Cynthia. Cynthia is fifty-eight years old and has lived in Pike County or Amite County for most of her life. Willie is seventy-four years old. It appears that he now lives in McComb, although he previously lived out of state and the record is not clear as to when he moved to Mississippi. Aubrey has lived in California since the early 1960s and is now approximately seventy-five years old. He rarely saw his parents in the last few years of their lives. Margie Mae passed away on May 3, 2012. Charlie passed away on January 9, 2014, at the age of ninety-six. As noted above, this appeal concerns certain bank accounts and CDs that Charlie established prior to his death.

¶ 5. In 1975, Charlie opened a savings account at First National Bank (now known as Trustmark National Bank) that named Cynthia as a joint owner. At that time, Charlie had moved to Wisconsin for work, and Cynthia was living with relatives in Mississippi while she finished high school. In the 1980s and 1990s, Charlie established additional accounts and CDs that named Cynthia as a joint owner. Charlie provided all of the funds for these accounts and CDs. Cynthia wrote checks on and made deposits to and withdrawals from the accounts, but only at Charlie's direction.

¶ 6. In 1993, Charlie and Margie Mae moved back to Mississippi and lived less than a mile from Cynthia for the rest of their lives. After he returned to Mississippi, Charlie continued to maintain and create accounts and CDs that named Cynthia as a joint owner. Cynthia saw her parents almost daily, but it is undisputed that Charlie remained independent, active, and competent to manage his own affairs for many years after he returned to Mississippi.

¶ 7. In April 2010, Charlie executed (1) a durable general power of attorney designating Cynthia as his attorney-in-fact; (2) a deed conveying 140 acres in Amite County to Cynthia; and (3) a will. The will was sealed, and Cynthia and her husband, John, testified that they had not seen it and did not know what it provided. John testified that Charlie made the appointment with the attorney himself. John testified that he drove Charlie to the attorney's office because Charlie asked him to do so; however, he did not attend the appointment with Charlie or ask him why he needed to see a lawyer. Cynthia testified that she did not ask her father to sign the power of attorney, deed, or will. According to Cynthia, Charlie did not tell her about the documents until after he had signed them, and he warned her that her brothers "were going to cause problems."

¶ 8. Cynthia testified that by July 2011, Charlie "was not what he used to be" mentally, and she became concerned that Willie would try to convince Charlie to cut timber on his land. She was also worried that Willie would take Charlie to a bank and persuade him to withdraw funds from his accounts. Cynthia testified that she and her family were going to be out of town for several days, so she moved over $204,000 from joint accounts owned by her and Charlie to her personal bank account. She claimed that she did this to prevent Willie or anyone else from taking advantage of her father.

Petition for Appointment of a Conservator and Temporary Order

¶ 9. On December 20, 2011, Willie filed a petition in the Amite County Chancery Court to appoint a conservator for Charlie's person and estate. Willie alleged that Cynthia should not be appointed conservator because she had exercised undue influence over Charlie. Aubrey joined Willie's petition. Cynthia subsequently filed an answer and cross-petition for appointment of a conservator. Cynthia agreed that a conservator should be appointed for Charlie's person and estate, and she asked the court to appoint her as conservator.

¶ 10. On June 7, 2012, the chancellor entered a temporary order appointing Pike County Chancery Clerk Doug Touchstone as conservator for Charlie's estate and Cynthia as conservator over Charlie's person. The order also directed Cynthia to "deliver" all relevant "financial documents"-including all checking accounts, savings accounts, and CDs-to Touchstone within seven days and "enjoined [Cynthia] from disposing of any [CDs] or funds" in any account "that came from Charlie." The chancellor also ordered Cynthia to account for the approximately $204,000 that she had removed from the joint accounts.

¶ 11. On July 9, 2012, Touchstone filed a motion to compel Cynthia to comply with the court's order to turn over financial documents and return Charlie's money. Cynthia's response stated that she had returned the funds to the joint accounts on June 25, 2012, and that the court-appointed guardian ad litem (GAL) was already in possession of the financial documents. The funds were transferred from the joint accounts to new conservatorship accounts by September 14, 2012.

The Guardian Ad Litem Report

¶ 12. Willie and Aubrey told the GAL that they had not visited with Charlie in 2012 and were reluctant to visit him at Cynthia's home. Their primary concerns were the power of attorney and deed that Charlie signed in April 2010 and the funds that Cynthia transferred to her personal account. Willie and Aubrey did not believe that Charlie had the capacity in April 2010 to sign a deed or a power of attorney. The GAL concluded that the deed and transfer of funds "appear[ed] suspect," "at least on their face." However, he also concluded that all three children appeared to be "motivated by genuine concern for their father."

¶ 13. The GAL met with Cynthia, her husband, and Charlie at Charlie's home, a "small house/apartment" located directly behind Cynthia's home. Cynthia had the apartment built in 2012 so that she could care for her parents. Previously, Cynthia and her husband had cared for her parents by living temporarily in a camper parked next to her parents' home. The GAL found that Charlie's new home was clean, neat, and comfortable.

¶ 14. The GAL reported that Charlie was well cared for and in fair physical condition, although he was feeble. Charlie knew his birth year, although he was unable to state his age. Charlie seemed to think that he was still at his home in Amite County, rather than at his daughter's residence in Pike County. Charlie also seemed unsure whether he owned or ever had owned any land, and he tried to avoid answering questions about the land.

¶ 15. The GAL recommended that Cynthia be required to comply with the court's prior order to return the transferred funds, that the court hire a CPA to examine all of Charlie's financial records, that Charlie receive regular visits from a home health agency, and that Willie and Aubrey be allowed to visit their father at his home.

The Conservatorship Hearing and Order

¶ 16. At a hearing on September 11, 2012, all parties and the GAL agreed that Charlie required a conservator for his person and estate and that Cynthia should continue to act as conservator over his person. The only dispute was whether Touchstone or Cynthia should be conservator over Charlie's estate.

¶ 17. Cynthia testified about the joint accounts that she held with her father. She stated that she made withdrawals from and deposits to the accounts while her parents lived in Wisconsin based on her father's instructions. She readily acknowledged that the money in the accounts belonged to her father. She stated that she always considered it his money but that he "trusted" her and "wanted [her] to be over [the money]." She further testified: "By him putting it in my name that meant I would make the decisions about what was to be done with the money." She intended to use the money to "take care of [him], whatever his needs" might be. She testified that she did not "know the law on" what would happen to any money that remained after Charlie died.

¶ 18. Cynthia testified that around July 2011, she first noticed that her father's mind seemed to be getting weaker-it "was not what it used to be." She became concerned that, in her absence, Willie might convince Charlie to cut timber or transfer money out of his bank accounts. She claimed that she had to go to Arkansas on July 15, 2011 to help her daughter move to do a student internship, so before she left town, she transferred $204,000 from accounts jointly owned by her and Charlie to her personal account.

¶ 19. Cynthia admitted that she had not yet provided Touchstone with all relevant financial documents. She also admitted that she had paid her father's sitters from a joint account despite the court's order not to dispose of any of his funds. She testified that she had not understood the court's order to prohibit such payments.

¶ 20. The chancellor ruled from the bench that Touchstone would remain as conservator of Charlie's estate and that Cynthia would remain as conservator of Charlie's person. In her bench ruling, the chancellor criticized Cynthia's failure to turn over financial documents and comply with prior court orders. The chancellor also questioned the credibility of some aspects of Cynthia's testimony, noting her daughter's testimony that she had not moved to Arkansas in the summer of 2011. See supra n.4.

¶ 21. The chancellor's subsequent written order directed Cynthia to "deliver" the joint accounts and joint CDs to Touchstone. The order also directed the banks in which the funds were held to "surrender or otherwise turn over" the funds to Touchstone "for transfer and safekeeping in the conservatorship account."

The 2012 Appeal

¶ 22. Cynthia appealed the chancellor's ruling, and her appeal was assigned to this Court. Her appeal did not directly address the transfer or ownership of the funds that had been in the joint accounts and CDs. Rather, she argued that the chancellor erred by not appointing her as conservator of Charlie's estate.

¶ 23. On January 9, 2014, Charlie passed away. Cynthia and Touchstone then filed a joint motion to dismiss the appeal, stating that Charlie's death had "rendered moot" "all issues" "pending before this Court." This Court granted the motion and dismissed the appeal. Addison v. Touchstone , No. 2012-CA-01766-COA (Miss. Ct. App. March 6, 2014).

Order Closing the Conservatorship

¶ 24. After Charlie died, Cynthia and Touchstone filed motions in the chancery court to close the conservatorship. While those motions were pending, Cynthia filed an amended motion to close the conservatorship in which she requested the return of the funds that had been in the joint accounts and CDs. During a subsequent in-chambers discussion with the parties, the chancellor apparently permitted or requested additional briefing on issues related to ownership of the funds.

¶ 25. After receiving additional briefing from the parties, the chancellor entered a final order adjudicating ownership of the funds, approving the conservator's final accounting, and closing the conservatorship. The order stated that, prior to the first appeal in this matter,

[t]he [chancellor] found, based on undisputed testimony, that all of such funds were the property of [Charlie] and directed that the funds be deposited into the Conservatorship accounts .... With such transfer, the funds were confirmed to be the sole property of Charlie .... Cynthia ... appealed such order but abandoned her appeal after the death of Charlie ....

The chancellor ruled that all funds remaining in the conservatorship account should be transferred to Charlie's estate once an administrator was appointed. Cynthia filed a motion to reconsider, which the chancellor denied, and filed a timely notice of appeal.

ANALYSIS

¶ 26. The parties' briefs on appeal raise three issues: (1) whether Cynthia's rights in the funds formerly held in the joint accounts and CDs were destroyed when those funds were transferred to new conservatorship accounts and converted into new conservatorship CDs; (2) whether Cynthia's survivorship rights to those funds should be disregarded because the joint accounts and CDs were the product of a "confidential relationship" and "undue influence"; and (3) whether Cynthia "abandoned" her claim to the funds when she agreed to dismiss her prior appeal as moot. Before we address these issues, however, we must first address an issue raised by Willie and Aubrey in a motion to dismiss Cynthia's appeal.

I. The motion to dismiss the appeal is denied.

¶ 27. Willie and Aubrey argue that the appeal should be dismissed because Cynthia appealed from the order denying her motion to reconsider rather than the prior order adjudicating ownership of the funds at issue. This argument is without merit.

¶ 28. The chancellor's order adjudicating ownership of the funds and closing the conservatorship was entered in November 2015. Within ten days, Cynthia filed a motion to reconsider. On April 8, 2016, the chancellor denied Cynthia's motion to reconsider. Within thirty days, Cynthia filed a notice of appeal. Cynthia's notice of appeal stated that she was appealing the chancellor's "April 8, 2016 [decision] denying [her] motion to reconsider the Court's order adjudicating ownership, transfer of funds, and closing the conservatorship." Willie and Aubrey argue that by designating the ruling on the motion to reconsider, Cynthia forfeited the right to challenge the underlying ruling adjudicating ownership of the funds and closing the conservatorship. We disagree.

¶ 29. To begin with, this Court has clearly and repeatedly held that

[a] motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment.

Woods v. Victory Mktg. LLC , 111 So.3d 1234, 1236 (¶ 7) (Miss. Ct. App. 2013) (emphasis added; citations omitted); accord, e.g., Denham Law Firm PLLC v. Simmons , 207 So.3d 670, 675 (¶ 17) (Miss. Ct. App. 2017) ; Ford v. Miss. Dep't of Human Servs. , 158 So.3d 1241, 1244 (¶ 8) (Miss. Ct. App. 2015).

¶ 30. Moreover, "[a]n appeal shall not be dismissed for informality of form or title in the notice of appeal." M.R.A.P. 3(c). On this basis, our Supreme Court has held that an appeal from a timely motion to reconsider under Rule 59 is sufficient to permit appellate review of the final judgment that was the subject of the motion to reconsider. See K.D.F. v. J.L.H. , 933 So.2d 971, 974 (¶¶ 11-12) & n.2 (Miss. 2006). In addition, when the appellant's " 'statement of issues and ... brief clearly show' that a certain order or issue is being appealed, we will consider the merits of the issue." McNeese v. McNeese , 119 So.3d 264, 269 (¶ 11) (Miss. 2013) (quoting Fletcher v. Lyles , 999 So.2d 1271, 1277 (¶ 25) (Miss. 2009) ). Finally, we note that numerous federal decisions hold that a notice of appeal from an order denying a motion to reconsider under Rule 59 is sufficient to permit review of the underlying judgment, at least when the motion to reconsider renewed arguments previously made and generally requested reconsideration of the underlying judgment.

¶ 31. This Court clearly has jurisdiction to consider the chancellor's underlying order adjudicating ownership of funds and closing the conservatorship. Cynthia's notice of appeal mentioned that order, and her brief directly addresses it on the merits. In addition, Cynthia's timely motion to reconsider merely renewed her prior arguments. Finally, Willie and Aubrey were in no way misled or prejudiced by the content of Cynthia's notice of appeal. Their argument that the wording of the notice of appeal limits this Court's jurisdiction is without merit, and their motion to dismiss the appeal is denied.

II. Cynthia retained her rights and interest in the funds transferred from joint accounts and CDs to conservatorship accounts and CDs.

¶ 32. Cynthia argues that the funds in the conservatorship accounts and CDs should have reverted to her after Charlie's death because the funds originated in accounts that she and Charlie owned jointly. Cynthia does not argue that the chancellor erred by ordering those funds to be placed in conservatorship accounts for "safekeeping" during the existence of the conservatorship. She argues only that the transfers did not destroy her joint ownership of the funds and survivorship rights. In response, Willie and Aubrey argue that the transfer of the funds terminated the joint tenancy and Cynthia's interest in the funds. We address these issues below but first provide some additional detail concerning the relevant accounts.

¶ 33. Charlie established the following joint accounts, all of which were designated as jointly owned by or payable to Charlie or Cynthia:

• a savings account at First Bank with a balance of $149,811.70 at the time of transfer to the conservatorship;
• a money market account at Trustmark with a balance of $58,763.25 at the time of transfer to the conservatorship;
• certificates of deposit at Trustmark with principal amounts of $5,000, $20,000, and $50,000;
• and a certificate of deposit at First Bank with a principal amount of $78,655.33.

As discussed above, Cynthia transferred funds from the First Bank savings account and the Trustmark money account to her personal accounts in July 2011. She returned the funds to the joint accounts in June 2012, after she was ordered to do so by the chancery court.

¶ 34. In September 2012, Touchstone created new accounts and CDs to hold these funds, but the new accounts and CDs are all traceable to the former joint accounts. The funds from the joint First Bank savings account were transferred to a new First Bank savings account in Charlie's name, with Touchstone as conservator. A First Bank checking account was also established to make payments for Charlie's care and living expenses. The funds from the joint Trustmark money market account were transferred to a new Trustmark money market account. The four jointly owned CDs were converted into four new CDs that remained unchanged (except for additions of interest) at the time of the final accounting.

¶ 35. As discussed above, the certificates and signature cards for the jointly owned CDs and bank accounts all specifically designated the owners as Charlie "or" Cynthia. In addition, the terms and conditions for the three Trustmark CDs specifically stated that use of the conjunction "or" meant that the CD was payable to either Charlie or Cynthia or to the survivor of them. The First Bank CD similarly provided that it would be owned by Charlie and Cynthia "as joint tenants with rights of survivorship" and could be redeemed by "either of the joint tenants or the survivor."

¶ 36. Such provisions are valid and will be enforced under Mississippi law. See, e.g., In re Estate of Cannon , 733 So.2d 245, 250 (¶ 30) (Miss. 1999) ; Cooper v. Crabb , 587 So.2d 236, 240 (Miss. 1991) ; In re Will & Estate of Strange , 548 So.2d 1323, 1327 (Miss. 1989). Moreover, even absent such express statements of survivorship rights, Mississippi law presumes that a jointly owned account or CD payable to any of the joint owners is intended to confer full rights of survivorship on the joint owners. See Miss. Code Ann. § 81-5-63 (Rev. 2015); Madden v. Rhodes , 626 So.2d 608, 616 (Miss. 1993) ; DeJean v. DeJean , 982 So.2d 443, 449 (¶ 13) (Miss. Ct. App. 2007).

¶ 37. Cynthia's testimony was also consistent with her status as a joint owner of the accounts and CDs. She testified that she considered the money her "father's money," and she intended to use it "to take care of [him], whatever his needs." However, she also testified that her father "wanted her to be over [the money]," i.e., he wanted her to "make the decisions about what was to be done with the money." There was no evidence to rebut her testimony. In addition, her testimony was consistent with the evidence that her father had consistently named her as a joint owner on at least six different accounts or CDs for a period covering more than three decades.

¶ 38. Thus, at the time the chancery court appointed a conservator for Charlie's estate, Cynthia was a joint owner of the above-discussed CDs and accounts with her father with rights of survivorship. Therefore, the key issue in this appeal is whether the court-ordered transfer of those funds to conservatorship accounts for "safekeeping" destroyed Cynthia's interest in the funds. For the reasons that follow, we conclude that it did not.

¶ 39. Our Supreme Court has held that when a conservator is appointed to protect the assets of a ward who is the joint owner of joint accounts or deposits, "the conservator is not the alter ego of the [ward] and during the life of the [ward] the conservator does not have authority to withdraw all of the account funds unless specific sums are needed for his ward's necessities." In re Atkins' Estate , 422 So.2d 754, 756 (Miss. 1982). The Supreme Court reasoned that the conservator's authority with respect to a joint account is limited because the ward's right to make a complete withdrawal of all funds from a joint account is a "personal elective right" that may be exercised only at the ward's "personal discretion." Id. at 756-57 (quoting Howard v. Imes , 265 Ala. 298, 90 So.2d 818, 819-20 (Ala. 1956) ); accord Bodman , 674 So.2d at 1250. As another court put it, "[t]he decision regarding distribution of the [ward's] property after death belongs to the [ward]." In re Estate of Briley , 16 Kan.App.2d 546, 825 P.2d 1181, 1184 (Kan. Ct. App. 1992).

¶ 40. In a subsequent decision, our Supreme Court reiterated "that ownership of a joint tenancy is not necessarily inconsistent with a [conservatorship]." Bodman , 674 So.2d at 1250. Therefore, joint accounts "created prior to the [ward's] incapacity [are] not" "subject to being marshalled by the conservator," although the funds may be used if necessary to pay for the care and expenses of the ward during his lifetime. Id. ; see also Conservatorship of Kendrick v. Hancock Bank , 537 So.2d 888, 891 (Miss. 1989) ("Any joint assets created by the ward ... prior to the [time she became incompetent] ... are presumed valid and the [joint owner] is not required to relinquish her joint interest.").

¶ 41. Under these precedents, it was appropriate for funds in the joint accounts to be drawn and used for Charlie's care and necessary living expenses during his lifetime. Indeed, Cynthia did not object to such use of the funds and testified that the funds should be used for that purpose alone as long as her father lived. However, as discussed above, most of the funds in the joint accounts and deposits remained unused at the time of Charlie's death. It would not have been proper for the conservator to take any action that would have "had the effect of destroying [Cynthia's] survivorship interest in" those funds. Atkins , 422 So.2d at 756 (quoting Howard , 90 So.2d at 819 ).

¶ 42. Nonetheless, Willie and Aubrey now argue that Cynthia's interest in the funds "was destroyed the moment the funds from the joint accounts were withdrawn and placed in the ... conservatorship accounts." In other words, they contend that the transfer of the funds to new accounts had the immediate, legal effect of destroying all of Cynthia's rights to the funds-regardless of whether those funds were ever needed for Charlie's care and living expenses during his lifetime. We disagree.

¶ 43. Courts in other states have addressed this issue and have held that a conservator's withdrawal of funds from a joint account does not, in and of itself, destroy the rights of other joint owners. For example, the Kansas Court of Appeals held "that a conservator's withdrawal of funds from a joint account does not have the effect of terminating the rights of a surviving joint owner to those funds." Briley , 825 P.2d at 1184. The Michigan Supreme Court similarly held that even though a transfer of funds from a joint account to a conservatorship account "terminated the joint tenancy" in a technical sense, the surviving joint account owner retained his survivorship interest in the transferred funds after the ward's death. In re Estate of Wright , 430 Mich. 463, 424 N.W.2d 268, 271-72 (Mich. 1988). And the New Hampshire Supreme Court held that a guardian's withdrawal of the entire balance of a joint account did not terminate a surviving joint owner's rights in the account when the withdrawal was not necessary "for the welfare of the ward." In re Wszolek's Estate , 112 N.H. 310, 295 A.2d 444, 448 (N.H. 1972).

¶ 44. We agree with these courts that a conservator's transfer of funds from a joint account to a conservatorship account does not destroy a joint account owner's survivorship interest in the funds. In this case, the court ordered Touchstone to transfer the funds to "the conservatorship account" for "safekeeping." This transfer for "safekeeping" did not destroy Cynthia's survivorship interest in the funds. Under Mississippi law, the right to make a complete withdrawal of the funds is a purely elective right of the ward that can be exercised only by the ward, not the conservator.

¶ 45. In summary, Cynthia was a joint owner of the funds at issue when the conservatorship was established, and the formal transfer of the funds from joint accounts to conservatorship accounts did not destroy her survivorship interest in those funds. During Charlie's life, the funds in the joint accounts were properly used to pay for Charlie's necessary care and living expenses; however, Cynthia retained her survivorship interest in the unused funds following Charlie's death.

III. The joint accounts were not the product of undue influence.

¶ 46. Willie and Aubrey also make a one-page, in-the-alternative argument that Cynthia's ownership of the joint accounts should be disregarded because she supposedly "failed to rebut with clear and convincing evidence the presumption that the joint accounts were the products of undue influence." They assert that there is a presumption of undue influence because "Cynthia ... clearly had a confidential relationship with Charlie ..., based on ... his utter dependency on her to handle his affairs since the age of 16" (i.e., since Cynthia was sixteen years old). This argument is without merit.

¶ 47. To begin with, Willie and Aubrey presented absolutely no evidence that the joint accounts or CDs were the product of undue influence or that there was a "confidential relationship" between Cynthia and Charlie at the time those accounts and CDs were established. This issue was not even raised in the chancery court. The record shows that the accounts at issue were created between 1975 (when Charlie was only forty-seven years old, and Cynthia was just sixteen) and 1999. There is no evidence that, during this period, Cynthia was "in a position to exercise a dominant influence upon [Charlie] because of [Charlie's] dependency upon her." Madden , 626 So.2d at 617 (discussing "the concept of a confidential fiduciary relationship") (quoting Hendricks v. James , 421 So.2d 1031, 1041 (Miss. 1982) ). It is well settled under Mississippi law that a parent/child relationship is not necessarily a confidential relationship, see, e.g., Noblin v. Burgess , 54 So.3d 282, 296 (¶ 52) (Miss. Ct. App. 2010), and Charlie did not become dependent on Cynthia until years later. Because there was no "confidential relationship" when the joint accounts were created, there was no "presumption of undue influence" for Cynthia to rebut. See, e.g., Stevens , 19 So.3d at 769 (¶ 12).

¶ 48. Cynthia took care of Charlie during his final years, and there is no doubt that a confidential relationship arose at some point as he became increasingly dependent on her. However, Charlie was not incompetent or subject to any "dominant influence" when he created the joint accounts years earlier. Willie and Aubrey's argument is a bare assertion in their appellate brief, unsupported by anything in the record.

IV. Cynthia did not abandon her claim to the funds when she dismissed her prior appeal as moot.

¶ 49. The chancellor's order adjudicating ownership of the funds also suggested that Cynthia effectively "abandoned" any claim to the funds transferred from the joint accounts to the conservatorship accounts when she dismissed her 2012 appeal. On appeal, Touchstone argues the chancellor's ruling can be affirmed on this basis. However, for the reasons that follow, we disagree that the dismissal of the prior appeal as moot can be viewed as an abandonment of this issue.

¶ 50. As discussed above, the chancellor's September 13, 2012 order directed Cynthia to "deliver" the joint accounts and CDs to Touchstone and directed Touchstone to transfer the funds to "the conservatorship account" for "safekeeping." Cynthia's appeal from the September 13 order did not directly challenge the chancellor's directives regarding the transfer of funds to a conservatorship account. Instead, Cynthia's argument in the 2012 appeal was that the she, rather than Touchstone, should have been appointed as conservator of her father's estate. Cynthia and Touchstone subsequently agreed to dismiss the appeal as moot after Charlie passed away on January 9, 2014.

¶ 51. Cynthia and Touchstone appropriately alerted this Court that the 2012 appeal was moot. The only question in that appeal was who should serve as Charlie's conservator, and Charlie's death rendered that question moot. Cynthia did not "abandon" her claim to the funds at issue in this appeal when she agreed that her prior appeal was moot. She was not required to continue litigating a moot question in order to preserve her claim to the funds at issue in this appeal-a separate issue that was not raised in the 2012 appeal.

¶ 52. Furthermore, the chancellor's September 13, 2012 order did not expressly or finally adjudicate or terminate Cynthia's interest in the funds at issue in this appeal. The chancellor did order that the funds be transferred to conservatorship accounts for "safekeeping" and to pay Charlie's expenses. However, as discussed above, Mississippi law permits funds held in joint accounts to be used for a ward's necessary expenses, and Cynthia expressly agreed that the funds should be used only for Charlie's care and expenses as long as he was alive. Therefore, the chancellor's September 13, 2012 order was not necessarily inconsistent with Cynthia's claim to a survivorship interest in any funds that remained unused at Charlie's death. That being the case, the order did not put Cynthia on notice that she was required to continue litigating the 2012 appeal-even after the central question in that appeal became moot-in order to preserve her claim to a survivorship interest in the funds.

CONCLUSION

¶ 53. Cynthia was a joint owner with survivorship rights in the joint accounts and CDs that her father established while he was still competent, years before his mental condition declined to the point that he required a conservator or could have been subject to undue influence. The transfer of those funds to a conservatorship account for "safekeeping" did not destroy Cynthia's survivorship interest. Nor did she abandon her claim to the funds when she properly agreed to dismiss her prior appeal as moot. We therefore hold that all funds transferred to the conservatorship accounts or converted into conservatorship CDs must be returned to Cynthia as the surviving owner of the funds.

¶ 54. REVERSED AND RENDERED.

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

      The petition also requested appointment of a conservator for Margie Mae, but she passed away in May 2012, prior to a final hearing on the petition.

      The Amite County Chancery Clerk was unable to serve as Charlie's conservator.

      The first attorney appointed as Charlie's GAL withdrew because he previously represented Willie in unrelated litigation. The chancellor then appointed Michael Austin as GAL. Austin is the GAL referred to in this opinion.

      Later in the hearing, Cynthia's daughter testified that she had not moved to Little Rock during the summer of 2011. She lived in Little Rock at the time of the hearing, but she testified that she remained in Jackson to pursue a master's degree after she graduated from college in the summer of 2011.

      Willie's attorney filed a notice of appearance in the 2012 appeal but did not file a brief or otherwise participate in the appeal.

      Touchstone, Willie, and Aubrey are appellees. Touchstone filed a brief on appeal, and Willie and Aubrey filed a separate brief.

      By prior order of the Court, the motion to dismiss the appeal was denied in part and passed for consideration with the merits in part. See Jackson v. Addison , No. 2016-CA-00668-COA (Miss. Ct. App. Sept. 5, 2017).

      See also Hamm v. Hall , 693 So.2d 906, 912 (Miss. 1997) (holding that although the appellant's "notice of appeal ... did not expressly refer to [a prior] ruling," the Court had jurisdiction to review the prior ruling because the hearings and order from which the appeal was taken were "merely continuations of that prior ... order"); cf. Johnson v. Boydston , 605 So.2d 727, 731 (Miss. 1992) (holding that a notice of appeal by an injured party was sufficient to notice an appeal for a spouse's consortium claim when "the issues are identical, and there is no surprise, detrimental reliance, or prejudice, and ... it is reasonably clear that the omission of the name was an oversight").

      See, e.g., R.P. ex rel. R.P. v. Alamo Heights Indep. Sch. Dist. , 703 F.3d 801, 808-09 (5th Cir. 2012) ; Rojas-Velazquez v. Figueroa-Sancha , 676 F.3d 206, 209 (1st Cir. 2012) ; "R" Best Produce Inc. v. DiSapio , 540 F.3d 115, 121-22 (2d Cir. 2008) ; Artes-Roy v. City of Aspen , 31 F.3d 958, 961 n.5 (10th Cir. 1994).

      Cynthia actually returned $6,670.83 less than she had transferred from the First Bank account and returned $134.29 more than she had transferred from the Trustmark account. The differences in the amounts withdrawn and the amounts returned are not accounted for specifically in the record, although Cynthia did testify generally that she had used her father's funds to pay his sitters and other living expenses he incurred.

      During the conservatorship, a total of $25,500 was disbursed to Cynthia for Charlie's care and expenses. In addition, approximately $22,000 in attorney's fees, conservator's fees, and CPA fees was paid from the First Bank savings account or checking account. Touchstone's final accounting showed that the savings account and checking account had a combined balance of approximately $112,000.

      The only subsequent withdrawals from this account were to pay approximately $7,400 in GAL fees.

      Mississippi law is also clear that a subsequent will cannot destroy an account or deposit held as a joint tenancy with rights of survivorship. Estate of Bodman v. Bodman , 674 So.2d 1245, 1248 (Miss. 1996). Charlie's will is not part of the record in this appeal. As noted above, Cynthia testified that the will was sealed and that she had not seen it. Willie and Aubrey are contesting the will in a separate proceeding in the chancery court.

      We note that the law of these states is consistent with Mississippi law on the subject of a conservator's authority with respect to joint accounts. See Briley , 825 P.2d at 1183-84 ; Wright , 424 N.W.2d at 271 ; Wszolek's Estate , 295 A.2d at 447-48.

      "The [S]upreme [C]ourt has held that the burden of establishing the existence of a confidential relationship is upon the party asserting it. Clear and convincing evidence is necessary to prove the existence of a confidential relationship." Stevens v. Estate of Smith , 19 So.3d 764, 769 (¶ 12) (Miss. Ct. App. 2009) (citation, quotation marks omitted).

      In 2013, the conservator did file a petition to set aside the April 4, 2010 warranty deed, alleging that the deed was the product of a confidential relationship and undue influence. However, that deed was executed thirty-five years after Charlie opened his first joint account with Cynthia, and more than a decade after Charlie created the last of the jointly owned CDs. No further action was taken on the conservator's petition to set aside the deed prior to closing the conservatorship. It appears that Willie and Aubrey may be challenging the deed in a separate proceeding in the chancery court.

      Willie and Aubrey argue that Cynthia is "procedurally barred" from arguing "for the first time on appeal [that] the chancellor erred in finding that [she] 'abandoned' " her claim to the funds by dismissing her prior appeal. However, this issue arose for the first time in the chancellor's order adjudicating ownership of the funds and closing the conservatorship. As far as we can determine, neither Touchstone nor Willie and Aubrey made this argument in the chancery court, and the chancellor never directed the parties to address the issue. Cynthia did not waive her right to challenge the chancellor's ruling simply because she did not anticipate that the chancellor would deny her claim on a ground that neither the conservator nor Willie and Aubrey had raised.

      Willie's attorney filed an appearance in the 2012 appeal but did not file a brief.