author: FAIR, J.,

text:
    Richard COLL, Appellant v. WAL-MART STORES EAST, L.P., Appellee
    NO. 2016-CA-00702-COA
    Court of Appeals of Mississippi.
    05/30/2017
    Rehearing Denied August 29, 2017
    Certiorari Denied November 16, 2017

      ATTORNEYS FOR APPELLANT: ROBERT ELLIOTT BRIGGS III, MYLES ETHAN SHARP
    ATTORNEYS FOR APPELLEE: WILBUR PEMBLE DELASHMET, ASHLEY POWELL GRIFFIN, MI-GNON MESTAYER ' DELASHMET, CHAD CHRISTOPHER MARCHAND
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Richard Coll brought a slip-and-fall claim against Wal-Mart Stores, East L.P. and Coca-Cola Bottling Company United Inc. after allegedly falling on a Coca-Cola display. Wal-Mart moved for summary judgment, arguing that there was no evidence that Wal-Mart was negligent in creating a dangerous condition or that Wal-Mart had any actual or constructive knowledge of a dangerous condition. The circuit court granted' Wal-Mart’s motion. Finding no error, we affirm.

FACTS

¶2. On September 16, 2013, Coll went shopping at a Wal-Mart in Biloxi, Mississippi. In the main “action alley,” there was a Coca-Cola display -with Coca-Cola products stacked on pallets. Coll stepped into the display to grab some drinks. As he exited the display, he slipped and fell on his left side, fracturing his hip. One of the display signs was near him on the floor. Coll stated in his deposition that he did not see anything on the floor when he entered the display. He admitted he was not sure what caused him to fall, but concluded it was the sign because he “had to slip on something.”

¶ 3. Stephen Irby, a senior merchandiser for Coca-Cola, testified that he was responsible for designing and building the display. He was restocking the display when Coll' approached. Irby said he stepped away from the display to let Coll grab some drinks. He further stated that Coll accidentally kicked the sign when he was exiting the display, causing the sign to fall. Irby testified that Coll did not slip on the sign. He also testified that there were still at least two cases of drinks on that corner of the display (where Coll fell). After Coil’s fall, Irby continued restocking the display.

¶ 4. Two Wal-Mart employees — Amanda Campisi and Zena Mullins — testified by deposition, although neither witnessed Coil’s fall, Mullins was the first Wal-Mart employee to arrive after Coil’s fall. Coll was still on the floor. Contrary to Coll and Irby’s testimony, Mullins stated that the corner of the display had no drinks on it when she arrived. When asked whether that was the way it was supposed to be, she said no. Mullins also stated that it was not her responsibility to determine what happened.

¶ 5. Campisi was an assistant store manager at the time of Coil’s fall and was assigned to investigate the incident. She stated, like Mullins, that the corner of the display had no drinks on it when she arrived. Campisi recalled that Irby and Mullins were there. She saw Coll on the floor and noticed some cardboard sitting near him. About thirty minutes after Coll was taken away in an ambulance, Campisi took pictures of the area. Since Irby had continued restocking the display, the pictures were not helpful for trial.

¶ 6. Wal-Mart provided a DVD recording of the incident, but, due to technical difficulties, the court was unable to review the DVD. At the summary judgment hearing, both parties agreed that viewing the' video was unnecessary.

STANDARD OF REVIEW

¶ 7. “We employ a de novo standard of review of a trial court’s grant or denial of summary judgment and examine all the evidentiary matters before it .... ” Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss. 2004). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 8. “The evidence is viewed in the light most favorable to the party opposing the motion.” Davis, 869 So.2d at 401 (¶ 10). Still, “an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial” M.R.C.P. 56(e). Furthermore:

[W]hen a party, opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.

Galloway v. Travelers Ins., 515 So.2d 678, 684 (Miss. 1987).

DISCUSSION

¶ 9. There is no dispute that Coll was a business invitee. See Grammar v. Dollar, 911 So.2d 619, 624 (¶ 12) (Miss. Ct. App. 2005) (defining business invitee as “someone who enters onto another’s premises at the invitation of the owner for the purpose of benefitting both parties”). The owner of a business is not required to insure against all injuries, even for an invitee; rather, he “owes a duty to an invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or to warn of dangerous conditions not readily apparent, which the owner or occupant knows of, or should know of, in the exercise of reasonable care.” Robinson v. Ratliff, 757 So.2d 1098, 1101-02 (¶ 12) (Miss. Ct. App. 2000). Mere proof “of the occurrence of a fall on a floor within [the] business premises is insufficient to show negligence on the part of the proprietor.” Stanley v. Boyd Tunica Inc., 29 So.3d 95, 97 (¶ 8) (Miss. Ct. App. 2010) (quoting Byrne v. Wal-Mart Stores Inc., 877 So.2d 462, 465 (¶ 6) (Miss. Ct. App. 2003)).

¶ 10. Coll must prove either (1) that Wal-Mart’s negligence injured him, (2) that Wal-Mart had knowledge of the dangerous condition and failed to warn him, or (3) that the condition existed for a sufficient amount of time so that Wal-Mart should have had knowledge or notice of the condition (constructive knowledge). Anderson v. B.H. Acquisition Inc., 771 So.2d 914, 918 (¶ 8) (Miss. 2000) (citation omitted). We address each contention below.

1. Negligent Act

¶ 11. Coll claims that Wal-Mart defectively designed the display. He relies on Hardy ex. rel. Hardy v. K Mart Corp., 669 So.2d 34 (Miss. 1996) (‘Hardy I”), and K-Mart Corp. v. Hardy ex. rel Hardy, 735 So.2d 975 (Miss. 1999) (“Hardy II”), in support of his argument. Both cases involved customer Marion Hardy, who slipped and fell in spilled paint near a paint display at K-Mart. Hardy I, 669 So.2d at 36; Hardy II, 735 So.2d 975 (¶ 2).

¶ 12. In Hardy I, the circuit court granted summary judgment, finding that Hardy failed to show that K-Mart was negligent in stocking the paint cans or that K-Mart had actual or constructive notice of the spill. Hardy I, 669 So.2d at 37. The Mississippi Supreme Court reversed on the negligence issue, finding there was a genuine issue of material fact as to whether the paint display was unstable, causing the spill. Id. at 38. On remand, the jury found that K-Mart was negligent and awarded Hardy $250,000. Hardy II, 735 So.2d at 978 (¶ 1). In Hardy II, K-Mart appealed the jury verdict, and the supreme court affirmed. Id. at 980 (¶ 41).

¶ 13. In both cases, the K-Mart assistant store manager testified about his involvement with the paint display. He stated that he was in charge of the display configurations and that K-Mart’s corporate offices constructed the displays. Hardy II, 735 So.2d at 979 (¶ 6). He further stated that any display with paint cans stacked higher than three layers without cardboard would be unsafe, and that the open paint can on the floor was the same color as the cans of the display. Hardy I, 669 So.2d at 38-39; Hardy II, 735 So.2d at 979 (¶ 6).

¶ 14. The Hardy cases are readily distinguishable from the present case. Contrary to the store manager in Hardy, Irby did not work for the store at issue. Further, he testified that he, as a Coca-Cola employee, was solely responsible for designing and building the display. There was no evidence presented showing Wal-Mart had any involvement in constructing or maintaining the Coca-Cola display. Nor was there testimony indicating that the Coca-Cola display was somehow faulty.

¶ 15. Even though Wal-Mart cannot be liable under the theory of defective design, it stül had a responsibility to maihtain its premises in a reasonably safe condition. However, Coll has failed to present any evidence as to how any Wal-Mart employee created the condition that allegedly caused his fall. Thus, we find Coll failed to create a genuine issue of material fact as to Wal-Mart’s negligence.

2. Actual or Constructive Knowledge

¶ 16. Coll argues that Wal-Mart had actual or constructive knowledge of “dangers associated with the display.” As discussed above, Coll failed to show how Wal-Mart 'had any input with the design or construction of the display. So the question is whether Wal-Mart had actual or constructive notice that the sign had fallen.

¶ 17. Coll testified that he was in the store for about two minutes. He said that the sign was there when he entered the display. He also said he did not see the sign before he fell but it was on the , floor afterward. Irby testified that he saw Coll accidentally kick the sign. So the sign either fell or was knocked off as Coll exited the display. Based on the testimony, Coil’s arrival and his fall happened within a matter of seconds. We were able to review the DVD (not viewed at the summary judgment hearing), which showed merely seventeen seconds between Coil’s entering the display and his fall. After reviewing .the record; we find that Coll failed to present any evidence showing that any Wal-Mart employee knew or should have known that the sigia had fallen onto the floor.

¶ 18. We find the circuit court’s grant of summary judgment in favor of Wal-Mart was proper. Therefore, we affirm.

¶ 19, THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON AND WESTBROOKS, JJ., CONCUR. GREENLEE, J„ NOT PARTICIPATING.

      . Coll later amended his complaint to include Coca-Cola employee Stephen Irby. Between the filing of the original complaint and the amended complaint, the case was removed to federal court and then remanded to state court.

      . Due to’Coll’s settlement with Coca-Cola, the circuit court dismissed all his claims against Coca-Cola.

      . The assistant manager based his testimony on a photograph (allegedly taken within three weeks of the accident) of the display showing the paint stacked in five layers. Hardy I, 669 So.2d at 38. There was conflicting evidence as to when the cans were stacked above three layers and whether a K-Mart employee or customer stacked the cans that high. Id.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Cameron TRAVELSTEAD a/k/a Cameron Ray Travelstead a/k/a Cam Travelstead, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00013-COA
    Court of Appeals of Mississippi.
    05/30/2017
    Rehearing Denied August 22, 2017
    Certiorari Denied November 9, 2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORQE T. HOLMES
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Cameron Travelstead appeals the judgment of the Hinds County Circuit Court finding him guilty of exploitation of a child. He argues that he deserves a new trial because the circuit court improperly admitted certain hearsay testimony, allowed improper closing argument by the State, permitted the illegal amendment of the indictment, refused to give a proper jury instruction, and excluded relevant defense' evidence. Travelstead also argues that he deserves a new trial because he received ineffective assistance of counsel.

¶ 2. We find no merit to any of Travel-stead’s arguments; therefore, we affirm his conviction and sentence.

FACTS

¶ 3. A substantial portion of the evidence supporting Travelstead’s conviction was gathered by the use of a peer-to-peer networking software program called Fro-stWire. Peer-to-peer networking software allows users to share electronic media between themselves directly over the internet. Once a user installs FrostWire, a folder is created in which the user can download files directly from other network users and likewise directly share the contents of that folder with other users of the networking software who search for content using FrostWire. Law- enforcement has developed software to detect files being shared on peer-to-peer networks that have file names or other unique digital signatures called “hash values” associated with child pornography. This gives law enforcement the ability to generate reports of Internet Protocol (IP) addresses that download and share suspected child pornography. On January 31, 2010, Jay Houston, the deputy commander of the Internet Crimes Against Children Task Force, working through the Mississippi Attorney General’s Office, received a report. After reviewing the hash values of the images contained in the report and independently determining that the photos were child pornography, Houston obtained a grand jury subpoena to obtain the identity of the person associated with the IP address from which the files had been downloaded.

¶ 4. The IP address from which the suspected child pornography was downloaded belonged to Comcast account holder Joel Travelstead, Travelstead’s uncle. After obtaining a search warrant, agents went to Joel’s home and found Travelstead there. After Mirandizing Travelstead, the agents questioned him, and he admitted to downloading pornography to his laptop computer. The agents later performed a forensic exam of Travelstead’s computer and found numerous deleted photos constituting child pornography, as well as child-pornography search terms used in searches that had been performed using the computer’s search engines.

¶ 5. Travelstead was indicted, pursuant to Mississippi Code Annotated section 97-5-33(5) (Rev. 2007), on one count of exploitation of a minor by possessing child por-' nography. He was later convicted and sentenced to twenty years in the custody of the Mississippi Department of Corrections, with eight years suspended and- twelve years to ■ serve, plus five years of post-release supervision. He now appeals.

DISCUSSION

I. Hearsay

¶ 6. “We review a trial court’s decision to admit or exclude evidence under , an abuse[-]of[-]discretion standard. Questions of law are reviewed under a de novo standard of review.” Anthony v. State, 23 So.3d 611, 616 (¶20) (Miss. Ct. App. 2009) (internal citation omitted).

¶ 7. The. National Center for Missing and Exploited Children (NCMEC) collects and stores images or photos of past victims of child' pornography into a database to catch future perpetrators. The agents in this case used this database and testified that they recognized several of the photos found on Travels'tead’s computer. Based on that information, the agents classified the photos as child pornography — in addition to performing an independent evaluation themselves. -

¶8. Travelstead argues that the substantive testimony that the images found on his laptop were “known images” of child pornography — based on opinions, conclusions, and statements of others— was incompetent testimonial hearsay and should have been excluded. He asserts that the underlying search warrant was ineffective because the agents presenting the evidence were not the individuals who made the original designation of the photos as child pornography. He also asserts that the photos were confirmed by other unknown persons, and such unauthenticated information was incompetent hearsay. Travelstead further asserts that the “known images” designation was presented as substantive proof that the alleged illegal images on his computer were of actual children. He contends that hearsay testimony should never be admitted to prove the truth of the matter asserted unless an exception applies, and neither Mississippi Rule of Evidence 703 (hearsay exception for expert testimony) nor Mississippi Rule of Evidence 803(6) (hearsay exception for business records) applies. He notes that this testimony was presented, over objection, by the State through Agent Wayne Mitchell, Agent Jeremy Turner, and Investigator Houston.

¶9. The State responds that the trial court correctly allowed Investigator Houston, Agent Turner, and Agent Mitchell to testify that the images found on Travelstead’s computer were “known images” of child pornography. Expert witnesses are allowed to rely on information from other experts. Darnell v. Darnell, 167 So.3d 195, 207 (¶ 33) (Miss. 2014).'Fur-ther, the State argues that the evidence against Travelstead was so overwhelming that even if the use of the term “known images” was error, the outcome of the trial would have been the same, as any error was harmless.

¶ 10. The State contends that during the investigation, Investigator Houston identified photos belonging to various series of known child pornography. The files found on Travelstead’s computer were found by their known hash values, each picture having a separate hash value, and being a separate photograph of child pornography. Investigator Houston testified that the photographs that the State entered into evidence were printed from the attorney general’s library of known child pornography. In addition, the State notes that the NCMEC -reports were not entered into evidence. As experts, pursuant to Rule 703, Investigator Houston and Agent Mitchell were entitled to rely on information from other sources to form their opinions, even though they did not personally create that information. Investigator Houston and Agents Turner and Mitchell testified at trial and were subjected to vigorous cross-examination. Travelstead had a meaningful opportunity to confront the witnesses against him, and his constitutional right to confront his accusers was not violated. But assuming arguendo that Houston’s testimony — that the images found on Travelstead’s computer were “known images” of child pornography— was inadmissible, we find no error in the admission of that testimony, because of the pronouncement of the Mississippi Supreme Court in Darnell:

While trial courts' should be wary of allowing inadmissible testimony simply through the use of ’an expert witness, expert witnesses, under Rule 703, are permitted to rely on inadmissible evidence if it is the type reasonably relied upon by such experts. See [M.R.E.] 703. When faced with a Rule 703 situation, opposing counsel may then, in invoking Rule 705, thoroughly cross-examine the expert as to the facts or data underlying their opinion in an attempt to impeach the testimony.

Darnell, 167 So.3d at 207 (¶ 33) (emphasis added). Consequently, this issue is without merit.

II. The State’s Closing Argument Regarding the Sharing of Images

¶ 11. Travelstead argues that he was not charged with disseminating child pornography, only exploitation of a minor by possessing child pornography; therefore, the State should not have been able to comment on the sharing of images without proof that he had actually done so. During closing arguments, the prosecutor stated .that he would like- to prosecute the person who took some of the photographs of one particular girl in the subject images, supposedly the girls father.. Then the prosecutor, referring to the father’s crime, argued that .Travelstead - “continues this crime while he views those pictures, masturbates to those pictures and shares those pictures with other people that have the same problems- .,..” Travelstead alleges that the prosecutor’s argument was improper. “[A]rguing statements of fact that are not in evidence or necessarily inferable from it which are prejudicial to the defendant is error.” Dancer v. State, 721 So.2d 583, 589 (¶ 31) (Miss. 1998). The test for determining “if improper argument by the prosecutor to the jury requires reversal is whether the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust, prejudice against the accused as to result in a decision influenced by the prejudice so created.” Id. (internal quotation marks omitted). Based on this alleged error, Travelstead believes that he was unjustly prejudiced and implores this Court to find that his trial was rendered unfair and to reverse his conviction and grant a new trial.

¶ 12. The State responds that' the trial court correctly overruled the defense’s objection to the prosecution’s statement, arguing that Travelstead shared illegal images of child pornography. According to the testimony of Investigator Houston, by downloading these files using FrostWire, Travelstead was also advertising that he has the filés, so that when another user searches for the file, the software will -be able to identify Travelstead’s computer as having the file, and portions of the file may be shared from Travelstead, as well as from other users. In addition, Investigator Houston explained that if a user does not opt out of sharing, then he shares files while he downloads them. The trial court also instructed the jury that arguments of counsel are not evidence, and that if the arguments of counsel are unsupported by the evidence, they should be disregarded. We find no error with the State’s arguments in its closing. Further, based on Investigator Houston’s testimony, it is evident that the software used to download the images also simultaneously shares the images with other users. This issue is without merit.

III. Ineffective Assistance of Counsel

¶ 18. “Whether a defendant has received ineffective assistance of counsel is a question of law reviewed de novo under two prongs: ‘first, the defendant must show that counsel’s performance was deficient[;] [sjeeond, the defendant must show that the deficient performance prejudiced the defense.’ ” Taylor v. State, 167 So.3d 1143, 1146 (¶ 5) (Miss. 2015) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

¶ 14. Travelstead enumerates several failures and acts of omission and commission by his trial attorney that he believes constitute ineffective assistance of counsel. However, neither he nor the State has stipulated that the record is sufficient for .us to address the matters that, according to him, prove he received ineffective assistance of counsel, and it is clear to us that the record is adequate to address only some of the matters raised by him. The State contends that Travelstead’s ineffective-assistance-of-counsel claim should be dismissed without prejudice to preserve his right to later raise the issue in post-conviction proceedings, if he so chooses, or denied outright on the merits.

¶ 15. An appellate court will not normally address the issue of ineffective assistance in a direct appeal, unless “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Grady v. State, 190 So.3d 870, 871 (¶ 8) (Miss. Ct. App. 2015). While many of the matters raised by Travelstead appear to fall under the category of trial strategy and could be addressed based on the record before us, we decline to do so, choosing instead to dismiss his ineffective-assistance-of-counsel claim without prejudice so that he may seek permission, if he so desires, from the Mississippi Supreme Court to raise the issue in a motion for post-conviction relief. See id.

IV. Amended Indictment

¶ 16. The issue of whether an indictment is fatally defective is a question of law and warrants a broad standard of review by this Court. Since this issue is a question of law, the standard of review is de ripvo. The purpose of an indictment is to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense. The indictment shall contain the essential facts constituting the offenses charged and shall fully notify the defendant of the nature and cause of the accusation.

Jones v. State, 993 So.2d 386, 394 (¶ 19) (Miss. Ct. App. 2008) (internal citations and quotation marks omitted).

¶ 17. Travelstead argues that it was error for the trial court to grant the State’s motion to amend the indictment from a time frame of one day — February 22, 2010 — to a time frame of twenty-three days — January 31, 2010, through February 22, 2010. The defense’s theory was that Travelstead was a curious teenager who stumbled onto something he should not have and deleted it or exited the website as soon as possible. With the expansion of the dates of the offense as provided in the amended indictment, he alleges that he had to defend not one act, but many. He further alleges that the amendment was one of substance and not of form. “An indictment may not be amended to change the nature of [the] charge, except by action of the grand jury which returned the indictment. To be permissible, the amendment to an indictment must be of form and not of substance.” Griffin v. State, 584 So.2d 1274, 1275 (Miss. 1991) (internal citations and quotation marks omitted).

¶ 18. The State responds that the trial court did not err in allowing the indictment to be amended. Even though the original indictment charged only images that were on the computer on Februaiy 22, 2010, the State argues that the prior images would have been admissible to show lack of mistake. The images, whether charged as individual crimes of possession, would have still been admissible for the prosecution to use to defeat Travelstead’s claim of mistake. The fact that Travelstead performed multiple searches for child pornography and that he persisted in the behavior over time and accessed many images prior to February 22, 2010, would have been competent, admissible evidence to show lack of mistake. Therefore, the defense Travelstead had prior to the amendment was not diminished by the amendment to the indictment.

¶ 19. Travelstead is correct in his assertion that “[a] trial court has no authority to grant substantive amendments to indictments.” Conley v. State, 790 So.2d 773, 781 (¶ 16) (Miss. 2001). However, time was not an element of the crime he was indicted on; and the Mississippi Supreme Court has held that “unless time is an essential element or factor in the crime, an amendment to change the date on which the offense occurred is one of form only.” Id. We also agree with the State’s arguments. Accordingly, this issue is without merit.

V. Jury Instruction D-7

¶ 20. The standard of review applicable when considering challenges to jury instructions requires that the appellate court avoid considering instructions in isolation, but rather consider them as a whole for determining whether the jury was properly instructed. Defects in specific instructions do not require reversal where all instructions 'taken as a whole fairly— although not perfectly — announce the applicable primary rules of law.

Comby v. State, 901 So.2d 1282, 1288 (¶ 15) (Miss. Ct. App. 2004) (internal citations and quotation marks omitted).

¶21. Travelstead argues that the trial court erred by refusing to give instruction D-7 to the jury. He contends that the instruction was not redundant, properly stated the law, and should have been given. The instruction read as follows:

The [c]ourt instructs the jury that it is the duty of each and every member of the jury in this case to decide the issues presented for yourself, and if, after a careful consideration of all the evidence in the case and the instructions of the [c]ourt on the law and free consultation with your fellow jurors, there, is any single juror who has reasonable doubt of Cameron Travelstead’s guilt, it is your solemn duty as a juror under oath to stand by your belief!;] you must never yield your belief simply because every other single member of the jury may disagree with you.

¶ 22. The State responds that the trial court did not err in refusing instruction D-7. The instruction addressed jury deliberations and the requirement of a unanimous verdict. The State argues that the language of D-7 is less than neutral and has the intended effect' of encouraging .a deadlock. The State further argues that D-7 was correctly refused by the trial court, because the substance of the instruction had already been addressed in instruction C-4, which reads: “The verdict of the jury must represent the considered judgment of each juror. In order to return a verdict it will be necessary that each juror agree’ thereto. In other words, all twelve jurors must agree before a verdict can be rendered by the jury.” In addition, the State asserts that the trial judge stated that he would give such an instruction if the jury indicated' a split that it could not resolve. We find no error with the court’s administration of the jury instructions. This issue is without merit.

VI. Exclusion of Defense Evidence

¶23. Finally, Travelstead argues that the court was in error for excluding testimony regarding his life experiences leading üp to his arrest on the subject charges. He contends:

If the Court finds that the portions of Travelstead’s interview pertaining to the investigators asking him about possibly molesting children and all of the other questions about his background and sexuality were not extraneous and that his trial counsel was not ineffective in failing to seek exclusion of that information or by placing dependence of Travelstead’s entire defense on testimony about' his childhood, then it follows necessarily that the trial court erred in’ excluding testimony from Travelstead to explain all of the circumstances of his life which led him to accessing alleged child pornography and erred in excluding testimony from Don Waller[,] who counseled Travelstead.

In essence; he argues that since the State offered evidence about Travelst’ead’s sexual background, and he was questioned about molesting children, he was entitled to answer that evidence as a matter of law.

¶24. The State responds that the trial court correctly excluded the defense’s evidence, arguing that the State’s evidence explaining its investigation and questions regarding Travelstead’s interest in children does not open the door for the admissibility of Travelstead’s argument that he had a hard childhood and that his criminal behavior should be excused for that reason. The State contends that — -although relevant to mitigation at sentencing — this evidence was irrelevant to whether he possessed images of child pornography on his laptop computer. The State further contends that the testimony of Travelstead’s counselor would likely be irrelevant for the s^me reasons. We agree with the court’s resolution of this matter. Based on' the record, this evidence would not have been relevant to adjudicating the crime charged, and was properly excluded. This issue is without merit,

¶ 25. THE JUDGMENT OF THE CIRr CUIT COURT OF HINDS COUNTY, FIRST JUDICIAL DISTRICT, OF'CONVICTION OF EXPLOITATION OF A CHILD AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWELVE YEARS TO SERVE, EIGHT YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., NOT PARTICIPATING.

      . The report listed the hash values of forty purportedly "known” child-pornography images based on a determination that the same images are in a database of confirmed child-pornography images maintained by the National Center for Missing and Exploited Children.

      . Travelstead’s counsel alleges that the questions were compounded and ambiguous, and Travelstead did not know whether the questions were referring to legal pornography or illegal child pornography.

      . Agent Mitchell is a certified computer-foren- ■ sic examiner with the Federal Bureau of.Investigation. (FBI). He was admitted as an expert in the field'of computer forensics.

      . Agent Turner was not admitted as an expert in any field. His testimony was entered pursuant to Rule 803(6)’s business-records exception to the hearsay .rule.

      .Investigator Houston was admitted as an expert in peer-to-peer network sharing, undercover child-exploitation cases, and cyber-crimes, generally,

      . -According to the defense, Waller was Trav-elstead’s church counselor and was to be admitted as an expert in mental-health counseling.


author: LEE, C.J.,

text:
    Terrance O. JOHNSON a/k/a Terrance Orlando Johnson a/k/a Terrance Johnson a/k/a Terrence O. Johnson a/k/a Terrence Orlando Johnson, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00751-COA
    Court of Appeals of Mississippi.
    06/06/2017
    Rehearing Denied September 12, 2017
    Certiorari Denied October 26, 2017

      ATTORNEY FOR APPELLANT: TERRANCE 0. JOHNSON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. Terrance Johnson appeals the denial of his motion for postconviction relief (PCR). Finding no merit to Johnson’s claim that he was mentally incompetent to plead guilty, we affirm.

PROCEDURAL HISTORY

¶ 2. On October 22, 2012, in the Madison County Circuit Court, Johnson pleaded guilty to two counts of sale of cocaine, one of which was committed within 1,500 feet of a school. The judgment of conviction was entered October 24, 2012. His sentence totaled sixty years, with thirty years to serve in the custody of the Mississippi Department of Corrections and five years of postrelease supervision.

¶3. On May 2, 2016, Johnson filed a PCR motion, alleging his sentence is illegal, his plea was involuntary, and his trial counsel was ineffective. The trial court denied Johnson’s PCR motion. On appeal, Johnson argues that he was not competent to enter a guilty plea.

STANDARD OF REVIEW

¶ 4. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

DISCUSSION

¶ 5. In his only issue on appeal, Johnson argues that he was not competent to enter a guilty plea. Johnson contends the trial court should have questioned his competency due to his mental-health issues.

¶ 6. The State contends Johnson’s PCR motion is subject to the time-bar in Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). Section 99-39-5(2) states a PCR motion must be filed “within three (3) years after entry of the judgment of conviction.” The judgment of conviction was entered October 24, 2012. Johnson filed his PCR motion May 2, 2016, outside the three-year time limitation. Johnson did not assert any statutory exceptions to the time-bar. See White v. State, 59 So.3d 633, 635 (¶ 8) (Miss. Ct. App. 2011). Regardless of any bar, we will address the merits of Johnson’s claim.

¶ 7. Uniform Rule of Circuit and County Court 9.06 states in part: “If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination ....” Whether a reasonable ground exists “to believe that a defendant is incompetent to stand trial rests largely within the discretion of the trial [court].” Harden v. State, 59 So.3d 594, 601 (¶ 14) (Miss. 2011) (quoting Goff v. State, 14 So.3d 625, 644 (¶ 66) (Miss. 2009)). “On review, the pertinent question is whether ‘the trial [court] received information which, objectively considered, should reasonably have raised a doubt about [the] defendant’s competence and alerted him to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense.’ ” Id. (quoting Goff, 14 So.3d at 644 (¶ 66)).

¶ 8. During his plea hearing, Johnson stated that he had been prescribed two medications to treat his bipolar disorder and schizophrenia. The trial court asked Johnson questions regarding his medications, including the name of the medications and whether they interfered with his ability to understand the proceedings. Johnson stated that neither the medications nor his mental conditions impacted his ability to understand the proceedings. He also admitted he was guilty of the crimes charged. Further, Johnson’s trial counsel stated that, based upon prior conversations with Johnson, he believed Johnson was competent to enter a guilty plea. At no point did Johnson’s trial counsel indicate the need for a mental evaluation.

¶ 9. In its order denying Johnson’s PCR motion, the trial court found Johnson’s plea voluntary “[bjased upon the [c]ourt’s observation of Johnson during the proceeding, his answers during [questioning], and his [trial] counsel’s opinion as to [Johnson’s] competency ....” The trial court further stated, “If the [c]ourt ha[d] a reasonable ground to believe that Johnson was incompetent to stand trial or enter a guilty plea, the [c]ourt would have, on its own motion, ordered a mental evaluation.” Based on the foregoing, we cannot say that the trial court erred in accepting Johnson’s guilty plea.

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

IRVING AND GRIFFIS, P.JJ., , BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.


author: WESTBROOKS, J.,

text:
    Tim TURNER, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01892-COA
    Court of Appeals of Mississippi.
    06/13/2017

      ATTORNEY FOR APPELLANT: TIM TURNER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF-THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J.,

FOR THE-COURT:

¶ 1. Tim Turner appeals the Itwamba County Circuit Court dismissal of his second petition for postconvietion rélief (PCR). Finding no error, wé affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 28, 2011; Turner entered a guilty plea on one enhanced count of sale of a controlled substance (cocaine). Turner was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC).- Twenty-eight years of the sentence were suspended, followed by five years of postrelease supervision (PRS). Turner was given two years, of credit for time served and. was released on PRS. On November 23, 2011, the State filed a petition to revoke Turner’.s PRS and to impose his suspended sentence after Turner failed a drug test and failed to comply with other conditions of his release.

¶ 3. On December 8; 2011, a hearing was held on the State’s petition. At the conclusion of the hearing, the court found that Turner violated the conditions of his PRS by failing to report to the MDOC; failing to abstain from using illegal drugs; failing to avoid people or places of disreputable or harmful character; and failing to pay court costs and restitution as ordered. As a result, the trial court modified Turner’s PRS and ordered him to complete an in-patient rehabilitation program,

¶4. On March 15, 2012, Turner was discharged from the program after testing positive for cocaine. The State filed a second petition to revoke Turner’s PRS and impose the suspended sentence. -The second revocation hearing was held on May 14, 2012. During the hearing, Turner asserted irregularities in his urinalysis, contending that the positive test was not his. Due- to the alleged irregularities, Turner performed a hair-follicle drug test to dispute the findings of the urinalysis, and the follicle test was positive for cocaine as well.

¶ 5. Turner then sought to have his urine sample retested; however, the lab had disposed of the urine. The circuit court found Turner in violation of the terms of his modified PRS. Turner’s twenty-eight-year sentence was imposed, .with eight years suspended and five years to serve on PRS. Turner was returned to the custody of the MDOC. Turner subsequently filed his first PCR petition, arguing that the revocation of his PRS was illegal, his sentence was too harsh, and the March 15, 2012 urinalysis was improper and invalid.

¶ 6. On October 8, 2013, the circuit court denied his PCR petition, and Turner appealed to this Court. We affirmed the circuit court’s decision, and the Mississippi Supreme Court denied certiorari. On November 3, 2015, Turner filed his second PCR petition. The circuit court dismissed Turner’s second PCR petition, finding that it lacked merit. From that order, Turner now appeals. Finding no error, we affirm.

STANDARD OF REVIEW

¶7. The circuit court may summarily dismiss a PCR petition “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss. Code Ann.-§ 99-39-11(2) (Rev. 2007). “On appeal, this-Court will affirm the summary dismissal of a PCR [petition] if the petitioner has failed to demonstrate ‘a claim procedurally alive substantially showing the denial of a state or federal right.’” Flowers v. State, 978 So.2d 1281,1283 (¶ 5) (Miss. Ct. App. 2008) (quoting Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999)). This Court, however, reviews questions of-law de novo. John son v. State, 962 So.2d 87, 89 (¶ 8) (Miss. Ot. App. 2007).

DISCUSSION

I. Whether Turner’s due-process right to confront an adverse witness was denied.

¶ 8. Turner contends that his right to confront and cross-examine adverse witnesses was violated during the revocation hearing. Turner asserts that the lab technician who conducted the urinalysis should have been present to testify regarding the accuracy of the test. Turner maintains that since his probation officer lacked direct knowledge of the collection and testing of the urine sample, he should not have been permitted to testify as to the results. However, Turner admits that he did not subpoena the lab technician, yet he still maintains that the circuit court erred in admitting the urinalysis results. We disagree.

¶ 9. At no time during the hearing did Turner object to the admission of the urinalysis results on the basis of the State’s failure to sufficiently establish the chain of custody. Turner maintains that since his counsel questioned the accuracy of the urinalysis during an in-chambers conference, the circuit court should have required the presence of the lab technician. We do not agree. “The failure to make a contemporaneous objection bars [a defendant] from raising [the] issue for the first time on appeal.” Smith v. State, 724 So. 2d 280, 319 (¶155) (Miss. 1998). “A trial judge will not be found in error on a matter not presented to him for [a] decision.” Jones v. State, 606 So.2d.1051, 1058 (Miss. 1992).

¶ 10. Turner never explicitly objected to the admission of the urinalysis results. Merely questioning the accuracy of the evidence is not enough to raise an objection to its admission at trial. Moreover, Turner could have subpoenaed the lab technician as a part of his defense, yet he did not. The circuit court had no obligation to subpoena witnesses to aid Turner in his defense. Turner was responsible for subpoenaing the lab technician and making contemporaneous objections to the admissibility of the evidence, yet he did not. Therefore, we find no error.

II. Whether there was sufficient evidence presented to support the revocation of Turner’s PRS.

¶ 11. Turner further argues that the State failed to prove by a preponderance of the evidence that he violated the terms and conditions of his PRS. Turner asserts that all evidence submitted to support the revocation of his PRS was inadmissible hearsay. Turner asserts that the absence of the lab technician prevented the chain of custody from being established. Nevertheless, Turner never made a contemporaneous objection on the grounds of inadmissible hearsay; therefore, the issue is procedurally barred. Smith, 724 So.2d at 319 (¶ 155). However, we will address whether the preponderance of the evidence supports the revocation of Turner’s PRS.

¶ 12. Turner tested positive for cocaine after he returned to in-patient rehabilitation on a three-hour pass. He contested the accuracy of the urinalysis and an independent hair-follicle test that was performed. The hair-follicle test also was positive for cocaine. Turner then sought to have the urine retested, but the urine sample had been destroyed. Turner’s argument hinges solely on the urinalysis and completely ignores the fact that his hair-follicle test was positive for cocaine. Moreover, the hair-follicle test, standing alone, establishes by a preponderance of the evidence that Turner used cocaine while on PRS. The terms of his PRS were violated because of his cocaine use. Moreover, the trial court found that Turner violated additional terms of his PRS by failing to report to his probation officer and failing to pay his court-ordered restitution. We therefore find that the revocation of Turner’s PRS was supported by a preponderance of the evidence.

III. Whether Turner’s PCR petition is time-barred and successive-writ barred.

¶ 13. “Under the Uniform Post-Conviction Collateral Relief Act, a motion for relief following a guilty plea is untimely unless filed within three years after entry of the judgment of conviction.” Smith v. State, 118 So.3d 180, 182 (¶ 7) (Miss. Ct. App. 2013) (citation omitted) (citing Miss. Code Ann. § 99-39-5(2) (Supp. 2012)). Turner asserts that his PCR petition is not time-barred since his claim is one of the unlawful revocation of probation. However, the State argues that Turner’s PCR petition is time-barred and successive-writ barred, because the PCR petition was filed more than three years after his guilty plea, and this is his second PCR petition. We agree that Turner’s motion is time-barred and successive- writ barred,

¶ 14. A PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Additionally, a trial court’s denial of a PCR motion is a final judgment and bars a second or successive motion unless an exception applies. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Though there are exceptions, those exceptions are not applicable to Turner’s appeal. The revocation of Turner’s PRS was justified by his failure to comply with the conditions of his release. Moreover, Turner filed this PCR petition more than three years after his guilty plea, and this is his second PCR petition. Therefore, we find that his PCR petition is time-barred and successive-writ barred. Finding no error, we affirm.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY DISMISSING THE PETITION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ITAWAM-BA COUNTY.

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


author: WESTBROOKS, J,

text:
    Edward Parker ELDRIDGE a/k/a Edward P. Eldridge a/k/a Edward Eldridge, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00166-COA
    Court of Appeals of Mississippi.
    06/13/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ,
   WESTBROOKS, J,

FOR THE COURT:

¶-1. Edward Parker Eldridge was convicted- of burglary of a dwelling- in the Circuit Court of Harrison County. He was sentenced to twenty years, with, twelve years suspended, leaving eight years to serve to the custody - of the Mississippi Department of Corrections, followed by four years of postrelease supervision. After sentencing, Eldridge filed a motion for a judgment -notwithstanding the verdict (JNOV) or, to'the alternative, a new trial, which was denied. Eldridge timely appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY .

¶ 2. In 2014, Charles Flowers resided in a small beach cottage located in Biloxi, Mississippi. Flowers left the cottage for work on June 10, 2014, and did not return home until the following day.

¶3, On June 11, 2014, Flowers arrived home and noticed the doors of his home ajar. Flowers testified that when he tried to gain access to the house, he was unable to enter through the doors. From a window, Flowers , testified he .saw blankets and guitar cables tied together between pieces of furniture. When Flowers finally gained access to his home, he found half of a sandwich and a half-melted bowl of ice cream. A laundry basket containing a number of Flowers’s personal items and valm ables was found by the front door. There was also broken glass on the floor, and clothes thrown everywhere in the house.

¶ 4. Steven Kelly, an investigator with the Biloxi Police Department, testified he went to Flowers’s home to investigate after he received a call about a burglary. He testified that when he arrived, he noticed shards of glass by Flowers’s french doors, and that it appeared the house had been rummaged through. He testified he noticed a half-eaten sandwich and bowl of ice cream on the table. Moreover, he testified he noticed electronic or musical-type equipment in a laundry basket close to a door in Flowers’s home. Investigator Kelly also stated he did not take photos of the home during that time, because he had just started working for the police department and had not been issued a camera.

¶ 5. Flowers testified that he did not stay at his house that night, because he was afraid. Flowers returned to his house a few days later to retrieve the rest of his items. He testified he found a casino player’s card with the name “Edward Parker Eldridge” on it, a dirty razor, and dirty clothes on the floor in his bathroom. Flowers also testified it appeared as if someone had tried to break in the home again. Flowers later took the items found in his house to the Biloxi Police Department.

¶ 6. After Flowers revealed the casino player’s card with Eldridge’s name, an investigator showed him a picture of a man named Edward Parker Eldridge. Coinci-dently, on June 11, 2014, Eldridge was questioned by Officer Kevin Kinny of Biloxi Police Department on another matter. Officer Kinny stopped to visit with El-dridge and took Eldridge’s picture on June 11, 2014. Flowers testified that he recognized the shirt worn by Eldridge in the picture, despite the shirt being worn inside out. The shirt had the name “Home Cypress Farms” embroidered on it. Home Cypress Farms was the name of the Flowers family farm. Flowers stated that the shirt had been gone since the burglary. Eldridge was arrested and charged with burglary of a dwelling.

■ ¶ 7. During the trial, Eldridge did not testify on his own behalf, and the court heard the evidence listed above. However, Eldridge argued the State failed to prove the elements of the crime of burglary, and tendered a jury instruction on the lesser included offenses of criminal trespass and petit larceny. The court refused his jury instructions. Following a jury trial on January 20, 2016, Eldridge was sentenced to a term of twenty years,' with eight years to serve and twelve years suspended. El-dridge’s motion for a JNOV or, in the alternative, a new trial was denied.' On appeal, Eldridge asserts the court erred by denying his request for a lesser-included-offense instruction on trespass.

STANDARD OF REVIEW

¶ 8. “The standard of review for a claim that a defendant was entitled to a lesser-included-offense. instruction is de novo, as this is a question of law.” Pierce v. State, 107 So.3d 1011, 1014 (¶ 11) (Miss. Ct. App. 2012) (citations omitted).

DISCUSSION

Whether the trial court erred when it refused Eldridge’s request for a lesser-included-offense instruction on trespass.

¶ 9. Eldridge argues that it is fundamentally unfair to prevent a defendant from being allowed to present his defense and to have the jury instructed thereon. Eldridge. is correct in his assertion that “a defendant is entitled to have every legal defense he asserts to be submitted as factual issue for determination by the jury under proper instruction of the court.” Love v. State, 121 So.3d 952, 955 (¶ 13) (Miss. Ct. App. 2013). “However, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Newell v. State, 49 So.3d 66, 73-74 (¶¶ 20-21) (Miss. 2010) (citation omitted). “A lesser-included-offense instruction should be granted unless the trial court, and ultimately the appellate court, can say” that “[t]aking the evidence in the light most favorable to the accused, and considering all reasonable inferences which may be drawn in favor of the accused from the evidence, no reasonable jury could find the defendant guilty of the lesser included offense and conversely not guilty of at least one essential element of the principal offense.” Pierce, 107 So.3d at 1014 (¶ 11) (citations and quotation marks omitted).

¶ 10. The court in Jackson v. State, 90 So.3d 597, 607 (¶ 36) (Miss. 2012), stated that the inference ordinarily to be drawn from a defendant’s unexpected breaking and entering into the home of another person unknown to him, followed by his rummaging through the victim’s effects and fleeing upon discovery, is that the defendant had the intent to commit larceny. The question in this case is “whether the evidence is so clear that no reasonable juror could have accepted the defendant’s theory that his intent to commit a crime was formed after he was in the house.” Id. at 605 (¶ 34).

¶ 11. Eldridge rummaged through Flowers’s personal items, then fled before he could retrieve the items placed at the door. Eldridge is not required to prove any element of the crime with which he was charged; however, there is no testimony or evidence submitted to substantiate a claim for the lesser-offense theory. The trial court found that looking at all of the evidence, a reasonable jury could not have found Eldridge guilty of criminal trespass only. We agree.

¶ 12. Therefore, this Court finds no reversible error in the trial court’s refusal of the jury instruction on criminal trespass. Accordingly, we affirm.

¶ 13. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY YEARS, WITH TWELVE YEARS SUSPENDED, LEAVING EIGHT YEARS TO SERVE, FOLLOWED BY FOUR YEARS OF POSTRELEASE SUPERVISION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $2,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: FAIR, J., LEE, C.J.,

text:
    Ronnie ALI, Appellant v. Amy Kaye Townsend ALI, Appellee
    NO. 2015-CA-01246-COA
    Court of Appeals of Mississippi.
    06/13/2017

      ATTORNEY FOR APPELLANT: DEAN HOLLEMAN
    ATTORNEYS FOR APPELLEE: EARL L. DENHAM PHILLIP LANE NORWOOD'MATTHEW PAUL PAVLOV
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.-
   FAIR, J.,

.FOR THE COURT:,

¶ 1. Dr. Ronnie Ali, 49, and nurse practitioner Amy. Ali, 27, were married in 2003 and 'had a child' together a few months later. They séparated after almost seven years of‘marriage, and Amy filed for divorce.

¶2. Over the next several years they filed more than two hundred pleadings, with Amy filing the lion’s share. The trial was bifurcated due to complex financial issues, especially those relating to several “urgent care”, medical clinics owned by the couple. On March 7, 2013, Amy was granted a divorce on habitual cruel and inhuman treatment grounds. The remaining issues were tried over twelve days in February and March of 2014. A year later the chancellor entered a detailed twenty-six-page decision, dividing the parties’ property and awarding Amy custody of the minor child, child support, and alimony.

¶ 3. Ronnie states in his brief that though he feels the chancellor erred in the equitable distribution, he “chooses” not to challenge it. Visitation, child support, alimony, attorney’s fees, and life insurance remain at issue on appeal. We conclude that the chancellor applied the correct legal standards and acted within his discretion in awarding child support, alimony, and attorney’s fees. Those awards must be affirmed. We remand, however, on the issues of visitation and insurance.

STANDARD OF REVIEW

. ¶ 4. “When [an appellate court] reviews a chancellor’s decision in a case involving divorce and all related issues, [the court’s] scope of review is limited by the substantial evidence/manifest error rule.” Yelverton v. Yelverton, 961 So.2d 19, 24 (¶6) (Miss. 2007). A chancellor’s factual findings will not be disturbed unless manifestly wrong or clearly erroneous, or an erroneous legal standard was applied. Carambat v. Carambat, 72 So.3d 505, 510-11 (¶ 24) (Miss. 2011). As long as substantial evidence supports the chancellor’s findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss. 2010). Additionally, if the chancellor has made no specific findings of fact, we generally “proceed on the assumption that he resolved all such fact issues in favor of the appellee.” Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss. 2005) (citation omitted). Questions of law, on the other hand, are reviewed de novo. Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss. 2011).

’ DISCUSSION

1. Visitation

¶ 5. The chancellor’s final judgment contained no express order for permanent holiday or summer visitation, though it at times appears to presuppose they had been awarded. On appeal, Ronnie contends this-was error; and Amy concedes that it appears to be an oversight that should be clarified on remand to the chancery couth As- this issue is conceded, we remand to the chancery court to clarify the visitation order.

2. Alimony

' ¶ 6. Ronnie submits in his brief that the periodic alimony award, $5,500 per month, is not appropriate in this case because “there was absolutely no disparity in Amy’s financial position as compared to Ronnie’s horrific financial position” after the equitable division. While he does not directly challenge the division, he nevertheless urges that, in mathematical terms, Amy received more value in the property division (approximately $390,000) than the net value of the marital estate (approximately $280,000), and significantly more than his net deficit after property division, attorney’s fees, and litigation expenses (which he puts at $417,000). Ronnie also points to Amy’s income of $6,000 per month as a nurse practitioner prior to the marriage, as well as income she could expect as owner of an urgent care clinic awarded to her in equitable division. Ronnie submits that Amy is capable of supporting herself.

¶ 7. The chancery court has broad discretion in deciding whether to award alimony and in what amount. Pearson v. Pearson, 761 So.2d 157, 165 (¶ 25) (Miss. 2000). “[Appellate courts] will not disturb the award on appeal unless it is found to be against the overwhelming weight of the evidence or manifestly in error.” Id.

¶ 8. Ronnie acknowledges that the issues of property division and alimony are “intertwined.” McKissack v. McKissack, 45 So.3d 716, 723 (¶ 41). (Miss. Ct. App. 2010). “All property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together. Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss. 1994) (citation and internal quotation marks omitted).

¶9. In the equitable division, Amy’s award mostly consisted of the marital home (approximately $187,000 in equity), household furnishings, three vehicles ($27,-000), about $18,000 in checking and savings accounts, a $28,000 IRA, and one of the urgent care clinics owned by the parties ($111,000). Ronnie received the other functioning urgent care clinic, another one that was apparently defunct, about $62,000 in gold coins and savings accounts, his personal .corporation ($32,000), and other personal assets — for a grand total of $266,000. Ronnie’s claims of a large net deficit in total awards are premised on his comparing his distribution of the marital assets with the marital debt ($376,500, of which $358,000 was delinquent taxes and penalties the chancellor attributed to Ronnie’s misconduct) and litigation expenses, including his and the half of Amy’s attorney’s fees he was ordered to pay.

¶ 10. The marital estate was disproportionately small compared to Ronnie’s income. His adjusted gross income on his Uniform Chancery Court Rule 8.05 financial statement was $41,463.00 per month after deducting federal and state income taxes of $19,668.76 per month (32.17%). At trial, Ronnie boasted he could earn $900,000 per year when he needed the money. Amy, on the other hand, had worked little since the marriage, dividing her time between caring for the child and managing the parties’ urgent care clinics. The clinics were not particularly valuable or profitable, despite the energy and money the parties had invested in them. The chancellor noted that he would have preferred to award Amy both of the remaining clinics, but Ronnie had entangled one with another business owned by his family. The chancellor also found that Ronnie had systematically violated “court orders regarding child and spousal support, payment of the mortgage, taxes, and insurance associated with the marital home as well as the transition of clinic management to [Amy] ... [and] the use of clinic funds without [Amy’s] approval or court order,” which had resulted in Amy’s filing a plethora of contempt pleadings.

¶ 11. Following a detailed discussion of the Armstrong factors, the chancellor awarded Amy $5,500 per month in periodic alimony. On appeal, Ronnie contends that the chancellor erred in finding a deficit following the property division and failed to consider Amy’s earning potential and Ronnie’s reasonable expenses.

¶12. The question of a deficit'is “with5 respect to having sufficient resources and assets to meet ... needs and living expenses.” Layton v. Layton, 181 So.3d 275, 282 (¶ 17) (Miss. Ct. App. 2015) (quoting Jackson v. Jackson, 114 So.3d 768, 777 (¶ 22) (Miss. Ct. App. 2013)). As the Mississippi Supreme Court has said, “a financially independent spouse may be required to support the financially dependent spouse in the manner in which the dependent spouse was supported during the marriage, subject to a material change in circumstances.” Rogillio v. Rogillio, 57 So.3d 1246, 1250 (¶ 11) (Miss. 2011).

¶ 13. Ronnie undoubtedly supported Amy during the marriage, but he contends on appeal that the chancellor failed to consider Amy’s ability to earn' income as a nurse practitioner, as well as the earnings from the urgent care clinic she was awarded. But, in fact, the chancellor addressed both directly in his opinion and judgment; he concluded that Amy’s prospects were uncertain after a long hiatus from paid employment, and that she “will be left with a ■ significant deficit even if she were to eventually obtain employment as a nurse practitioner.”

¶ 14. We also find no merit to Ronnie’s claims that there was no disparity following the property division — although it is true that Amy received much of the marital property, the marital estate was illiquid, relatively small, and could not produce income sufficient to support Amy as she was supported during the marriage. We are likewise unimpressed with Ronnie’s contentions regarding the chancellor’s findings of his misconduct and dissipation of marital assets; his argument is perfunctory and his contentions are often disingenuous or contradicted by other evidence in the record. As an example, Ronnie argues that the chancellor erred in finding that he had systematically violated the temporary order to pay the mortgage on the marital home by pointing out that he did, in fact, pay the mortgage — but it would be more accurate to say that Ronnie eventually paid the mortgage, as many of the payments were late. Similarly, Ronnie claims that the delinquent taxes were a result of an error by his preparer, but the only record evidence he cites in support of this claim is testimony from a different accountant that the taxes were done incorrectly.' Ronnie fails to mention that his accountant from the relevant time also testified at trial — that Ronnie had instructed her to stop making the tax payments, that she had resisted, and that she had considered herself terminated following the disagreement. Finally, Ronnie points out that the chancellor never entered an order finding him in contempt, but he does not explain how that is relevant to the chancellor’s ultimate findings.

¶ 15. Ronnie also suggests that the alimony award denies him sufficient income to maintain a reasonable standard of living, but he provides no substantive argument in support. His claimed monthly expenses — approximately $43,000 — consist largely of the temporary support awards and short-term debt service, particularly the delinquent taxes, which by themselves accounted for almost one-third of Ronnie’s claimed monthly expenses. It would be grossly inequitable to allow Ronnie to avoid paying alimony by wrongfully incurring temporary obligations. It is also worth noting1 that the chancellor’s order allows Ronnie to deduct the alimony from his annual taxable income of $733,584. Thus a monthly alimony payment of $5,500 will actually cost him no more than $3,538. Amy must pay the taxes, though at a lesser rate than Ronnie.

¶ 16. The chancery court has broad discretion in determining whether to award alimony and in what amount. Ronnie has failed to show an abuse of that discretion here. ■

3. Attorney’s Fees

¶17. Next, Ronnie challenges the chancellor’s order requiring him to pay one-half of Amy’s attorney’s fees, which amounted to approximately $144,500. Ronnie argues at length that Amy was able to pay her own fees, but his efforts are misdirected — while the chancellor did find that Amy could not pay her own attorney’s fees, the award was clearly based on Ronnie’s misconduct, not on Amy's inability to pay. On this point, Ronnie presents little argument and no authority. “The appellant’s failure to cite relevant authority obviates the appellate court’s obligation to review such issues.” Jones v. State, 203 So.3d 600, 605 n.1 (Miss. 2016).

4. Child Support

¶ 18. The chancellor awarded Amy $5,000 per month in child support for the single child, who was eleven years of age at the time of the judgment. The award was approximately 12% of Ronnie’s adjusted gross monthly income.

¶ 19., On appeal, Ronnie,bases his argument on an incorrect reading of Mississippi’s child support guidelines. He seems to assume that the presumptively correct child support amount for one child is 14% of the first $100,000 per year in adjusted gross income, or roughly $1,167 per month — period. But that. is simply not what the statute provides. Mississippi Code Annotated section 43-19-101(4) (Rev. 2015) states, in relevant part:

In cases in which the adjusted' gross income as defined in this section is more than One Hundred Thousand Dollars ($100,000.00) ..., the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.

If the “14% of all net income for one child” guideline was blindly applied to all of Ronnie’s 8.05 net income, the monthly amount of support to be paid to Amy .for his one child would be $5,810 per month. See id, § 43-19-101(1). Thus, if the chancellor deviated from the guideline, it was to reduce Ronnie’s obligation rather than increase it. But the chancellor did not deviate from the guideline; he found it inapplicable.

¶20. In the chancellor’s written judgment, he expressly noted that the guidelines did not presumptively apply to higher incomes and that the court was required to make a written finding as to whether their application was reasonable. The court then noted approximately $2,000 per month had been spent on schooling, tutoring, and various other activities for the child, before setting monthly child support from Ronnie at $5,000 per month. Again, this was approximately 12% of Ronnie’s adjusted gross income.

¶21. On appeal, Ronnie claims that this figure is unreasonable, but he provides no convincing argument. “In determining .child support, chancellors may consider, inter alia, the health, income, and earning capacity of both parents, the reasonable needs of the child, and the necessary living expenses of the noncustodial parent.’,’ Barnes v. Dep’t of Human Servs., 42 So.3d 10, 18 (¶ 32) (Miss. 2010) (Waller, C.J., concurring in part and in the result) (citation omitted). Ronnie’s principal argument is. that, the amount is excessive to provide the child with “reasonable” support. He notes that many children — indeed many families — make do with less, though this flies in the face of Ronnie’s testimony at trial as to how he believed the child should be supported and his claimed expenses relating to the child; on his Rule 8.05 financial statement, he claimed expenses of $1,000 per month just for entertaining the child during visitation. We reject the argument that equates reasonable support with subsistence and instead agree with the chancellor that the “reasonable needs” of the child ought to be viewed at least as broadly as the reasonable needs, of a wife seeking alimony. It is not an abuse of discretion for the chancellor to consider the standard of living to which the child is accustomed in deciding, what amount of support is reasonable. See Moulds v. Bradley, 791 So.2d 220, 228-29 (¶ 24) (Miss. 2001) (Diaz, J., concurring). The chancellor thoroughly considered this issue and provided sound reasons for his decision. We can find no abuse of discretion in the amount of the award.

5. Insurance

¶ 22. The chancellor ordered Ronnie to maintain a life insurance policy valued at $2 million, with Amy to receive $1.5 million and the minor daughter to receive $500,000 in the event of Ronnie’s death. On appeal, Ronnie argues that the policy amounts required for Amy are excessive in light of the permissible purposes of such awards. We agree.

¶23. In Coggins v. Coggins, 132 So.3d 636, 644-45 (¶¶ 35-37) (Miss. Ct. App. 2014), this Court explained:

An alimony payor “maybe required to maintain life insurance in an amount sufficient to satisfy payment of alimony obligations that survive the payor’s death.” [Deborah H.] Bell, Mississippi Family Law § 9.08[4][c] [ (2005) ] (citing In re Estate of Hodges, 807 So.2d 438, 442-44 (¶¶ 14-23) (Miss. 2002)). The key phrase is “alimony obligations that .survive the payor’s death.”
Periodic alimony is an obligation that '‘terminates automatically” upon the payor’s death and cannot be imposed upon the payor’s estate, absent an express agreement. Armstrong [v. Armstrong, 618 So.2d 1278, 1281 (Miss. 1993) ]; see In re Hodges, 807 So.2d at 443 (¶ 19). While lump-sum alimony fully vests at the time of the divorce judgment, periodic alimony only vests on the date each payment becomes due. In re Hodges, 807 So.2d at 442 (¶ 17). So when the payor dies, the only alimony obligations that survive — and the only obligations that may be .insured — are unpaid lump-sum alimony and unpaid periodic-alimony payments that have already vested.
Recognizing the possibility that an alimony payor may fall behind in periodic-alimony payments and then die leaving those vested payments unsatisfied, this court has acknowledged the chancellor’s authority to require the alimony payor to maintain a life-insurance policy to protect the recipient spouse against such a contingency. [Johnson v. Pogue, 716 So.2d 1123, 1134 (¶ 41) (Miss. Ct. App. 1998) ]; see also Beezley v. Beezley, 917 So.2d 803, 808 (¶17) (Miss. Ct. App. 2005). But in Pogue, this court found that requiring the payor to maintain a $75,000 life-insurance policy to protect against the potential failure to make $500-per-month alimony payments was “excessive.” Pogue, 716 So.2d at 1134 (¶ 41).

¶24. Given the standard we have just recited, it is impossible to say that a life insurance -policy of $1.5 million is necessary to guard against the potential failure to make $5,500 monthly alimony payments and- to repay approximately $376,500 in marital debt. On remand, the chancery court should determine an appropriate award in light of the authorities we have just discussed. ■

¶25. THE JUDGMENT OF THE CHANCERY COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

GRIFFIS, P.J., BARNES, ISHEE, CARLTON AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN:PART WITHOUT . SEPARATE WRITTEN OPINION. LEE, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND WESTBROOKS, J.

LEE, C.J.,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 26. Because I find that the chancellor abused his discretion in awarding periodic alimony to Amy, I respectfully dissent .in part’ In light of the length of the marriage and Amy’s ability to earn a living, the chancellor’s alimony award was excessive. I do concur with the majority’s decision to affirm on the issues concerning attorney’s fees and child support and to remand on the issues concerning visitation and insurance.

¶27. First, the award of alimony was excessive, and the chancellor did not give adequate consideration to Ronnie’s monthly expenses. In determining the amount of support payable to the wife, a chancellor must consider not only the reasonable needs of the wife but also the right of the husband to lead as normal a life as reasonably possible. Davis v. Davis, 832 So.2d 492, 497 (¶ 19) (Miss. 2002) (citation omitted). Here, Ronnie’s monthly expenses, including his current support obligations to Amy, exceed his monthly gross income by approximately $2,400. The chancellor did not consider the appropriateness of the award in relation to Ronnie’s payments for child support and all marital debts and liens, which were assessed solely to him. The chancellor should have considered Ronnie’s “other financial obligations and his ability to maintain a decent standard of living.” Ewing v. Ewing, 203 So.3d 707, 716 (¶ 30) (Miss. Ct. App. 2016). Because Ronnie’s monthly expenses, including his support obligations, exceed his' gross monthly income, the chancellor’s alimony award was “per se unreasonable.” Brooks v. Brooks, 652 So.2d 1113, 1122 (Miss. 1995).

¶28. Further, the parties were only married for seven years before Amy filed for divorce. This Court and the Mississippi Supreme Court have classified marriages of much longer duration as- “mid-term” and “moderate-length” rather than long-term in the context of alimony awards. See Layton v. Layton, 181 So.3d 275, 296-97 (¶ 72) (Miss. Ct. App. 2015) (James, J., concurring in part and dissenting in part); Amacker v. Amacker, 33 So.3d 493, 498 (¶ 26) (Miss. Ct. App. 2009); Ericson v. Tullos, 876 So.2d 1038, 1039, 1041 (¶¶ 5, 11-12) (Miss. Ct. App. 2004); Mabus v. Mabus, 890 So.2d 806, 823 (¶68) (Miss. 2003). Alimony is not a bounty to which Amy became entitled to, receive indefinitely simply because, at one time, she was married to Ronnie. Beacham v. Beacham, 383 So.2d 146, 148 (Miss. 1980). Here, the length of the marriage did not favor awarding Amy periodic alimony.

¶ 29. Finally, Amy’s potential earning capacity should have weighed against an alimony award. Amy is a licensed nurse practitioner and, prior to the parties’ separation, managed an urgent care clinic for years. But the chancellor concluded that Amy’s earning capacity as a nurse practitioner was “uncertain” as she had not worked as a nurse practitioner for approximately ten years, and therefore awarded her periodic alimony in the amount of $5,500 per month. However, the record demonstrates that Amy’s earning capacity is enough to meet her reasonable needs. Perhaps an award of rehabilitative alimony would have been more appropriate since Amy had not worked as a nurse practitioner for ten years.

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

      . For example, the judgment specifies an exchange point for "weekend and holiday visitation.” In addition, a detailed visitation order for both weekend and holiday visitation was entered on June 14, 2013, expanding and providing details set out in an earlier visitation order.

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss. 1993).


text:
    In the MATTER OF the ESTATE OF Vivian BYAS, Deceased: Victor Byas and Mary Byas, Appellants v. Paulette Byas, Appellee
    NO. 2015-CA-00749-COA
    Court of Appeals of Mississippi.
    06/13/2017

      ATTORNEY FOR APPELLANTS: ALSEE McDANIEL
    .ATTORNEY FOR APPELLEE: VALLRIE LANETTE DORSEY
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this' case, we must determine whether the chancellor ’ erred in finding both Victor Byas and Mary Byas in contempt. Because the record contains insufficient evidence of contempt regarding both Victor and Mary, we reverse and render.

PROCEDURAL HISTORY

¶ 2. This case stems from a probate matter filed by Paulette Byas in the Sunflower County Chancery Court. Paulette’s mother, Vivian Byas, died on June 18, 2014. Victor, Mary, and Paulette are three of Vivian’s children. Paulette filed a petition to probate Vivian’s will. After a hearing, the chancellor entered an order on August 13, 2014, to continue the probate matter. The chancellor also ordered the parties involved to remove their personal belongings from Vivian’s house. The chancellor ordered that the house be vacated and remain locked until the matter was resolved. The chancellor further appointed Victor to “temporarily collect rental income, [and] pay the mortgages of [Vivian] along with the utilities and homeowners’ insurance.” The locks on the house were changed, and the keys were retained by the Sunflower County Chancery Clerk.

¶ 3. On October 27,2014, Paulette filed a motion for contempt, alleging that Victor and Mary had entered the house in violation of the previous order. Paulette claimed that Mary had been living in the house.

¶4. After a hearing on February' 12, 2015, the chancellor found both Victor and Mary in contempt for failing to abide by the court’s prior order. The chancellor fined Victor $250 and Mary $500. The chancellor also ordered Victor and Mary to be equally responsible for $677 in attorney’s fees.

¶ 5. Victor and Mary now appeal, arguing the chancellor erred in finding them in contempt.

FACTS

¶ 6. Paulette testified at the hearing that someone told her Victor and Mary had been seen going in and out of Vivian’s house after the chancellor ordered the house be vacated. Paulette stated she saw Mary’s car in the driveway on one occasion. Paulette admittedly never spoke with Victor or Mary about their actions.

¶ 7. Tyrone Hays, Vivian’s brother, testified that he lived near the house and drove past it frequently. Hays stated that he saw Mary sitting outside the house on a regular basis. Hays said he had also seen Mary enter and exit the house. On one occasion, he saw Victor and Mary talking outside the house. On cross-examination, however, Hays said he never saw Victor or Mary in the house.

¶ 8. Cordell Thomas, Paulette’s boyfriend, spoke with Victor on the phone. Thomas testified that Victor said he had a key to the house, and that he had been in the house .making repairs, Thomas stated he heard the house had recently caught on fire.

¶ 9. Stanley Johnson, a friend- of Vivian, saw Mary several times sitting by the carport of the house. Johnson had also seen Victor at the house. Johnson admittedly had never seen Victor in the house and had only seen Mary exiting the house one time.

¶ 10. Victor testified that the house had caught on fire as a result of a burglary. After which, Victor stated he got the key from the chancery clerk in order to install an alarm system. Victor testified that he also entered the house to water Vivian’s plants and to combat a rat infestation. Victor said he never let anyone else in the house and never, saw Mary in the house during his weekly visits to check on the property. Victor, testified that Mary lived with him until he got her a trailer. This trailer was parked next to Vivian’s house. Victor admitted that after the hearing in August, he tried to get permission from the chancellor to enter the home. The record does not indicate if the chancellor officially granted or denied his request. 'And the record on appeal does not include a transcript of the August hearing. '

¶ 11. Mary testified that she lived in the trailer, by Vivian’s house and parked her car in the carport after the house was burglarized to.deter further criminal activity. Mary stated that she did enter the house after the fire in order to secure a window that had been broken. She was nearby when the fire broke out and was at the house when the fire department responded.

DISCUSSION

' ¶ 12. In this contempt action, the first question to determine is whether the actions of Victor and Mary amounted to civil or criminal contempt. “If the primary purpose [of the contempt order] is to enforce the rights of private party litigants or enforce compliance with a court order, the contempt is civil.” Purvis v. Purvis, 657 So.2d 794, 796 (Miss. 1994). Criminal contempt is designed to punish the defendant for disobedience of a court order. In re Smith, 926 So.2d 878, 887-88 (¶ 13) (Miss. 2006). “This is proper only when the contemnor has wilfully, deliberately and contumaciously ignored the court, or the court’s directive.” Id. As Victor and Mary were punished for disobeying a court order and ordered to pay fines to the court, this case is a matter of criminal contempt. See, e.g., Hanshaw v. Hanshaw, 55 So.3d 143, 147 (¶ 14) (Miss. 2011) (“[Constructive criminal contempt punishes a party for noncompliant conduct outside the court’s presence.... The contemnor must pay constructive criminal-contempt fines to the court, rather than to an injured party.”).

f 13. Next, it is our duty to determine whether the record proves Victor’s and Mary’s guilt beyond a reasonable doubt. Smith, 926 So.2d at 888 (¶ 13). We “proceed[ ] ab initio to determine whether the record proves the appellant guilty of contempt beyond a reasonable doubt.” Purvis, 657 So.2d at 797 (citation omitted). The burden of proof is on the party asserting that contemptuous conduct has occurred. In re Hampton, 919 So.2d 949, 954 (¶ 13) (Miss. 2006).

¶ 14. There are two forms of criminal contempt: direct contempt and constructive contempt. “Direct criminal contempt involves words spoken or actions committed in the presence of the court that are calculated to embarrass or prevent the orderly administration of justice.” Moulds v. Bradley, 791 So.2d 220, 224 (¶ 7) (Miss. 2001). The punishment for direct criminal contempt “may be meted out instantly by the judge in whose presence the offensive conduct was committed ....” Id. Constructive criminal contempt, however, involves actions that occur outside the presence of the court. Id. at 225 (¶ 8). Most importantly, the contemnors must be provided certain procedural due-process safeguards such as a specification of the charges against them, notice, and a hearing. Id. Here, those due-process safeguards were met.

¶ 15. The motion for contempt filed by Paulette alleges that Victor and Mary were in willful contempt of the order by entering Vivian’s house.

¶ 16. In regard to Victor, the chancellor found the following:

The only thing the judge ordered you to do was to pay the mortgage, pay the insurance, and there’s not even an upkeep on here, and collect the rent.... But I understand why you felt the responsibility to protect the property itself, the contents in the property, and that’s reasonable and I do understand that. But that is not what was ordered and that is contempt of court. Now [the chancery clerk] gave you the key probably because there was a fire, but you never returned the key ... and perhaps, the house does need a caretaker. But it was your responsibility to petition the court to be appointed the caretaker of the house so that you could go there every week.... A house that is vacant and nobody there for an extended period of time is an invitation for break-ins and fires and everything else. So, your intent was probably in the right place in terms of being a caretaker, but the manner in which you proceeded was not.

(Emphasis added). Upon review of the record, we cannot find Victor guilty beyond a reasonable doubt. Victor admittedly got the key to enter the house, but only after the fire in order to install an alarm system, to water Vivian’s plants, and to combat a rat infestation. There was no evidence that Victor “wilfully, deliberately, and contumaciously” ignored the court order. In fact, as previously stated, the chancellor recognized that Victor acted reasonably and with the right intent when trying to care for Vivian’s house.

¶ 17. In regard to Mary, we find the same. Much of the evidence about Mary simply showed she had been seen outside the house. Mary testified that her trailer was parked next to Vivian’s house and that she parked her car in the carport to deter burglars. Mary admittedly entered the house after the fire occurred in order to secure a broken window, but there was no other clear evidence that she “wilfully, deliberately, and contumaciously” ignored the court order. In fact, the chancellor stated the evidence regarding Mary’s contempt was “not really clear.”

¶ 18. Because the evidence does not support a finding of constructive criminal contempt regarding both Victor and Mary, we reverse and render.

¶ 19. THE JUDGMENT OF THE SUNFLOWER COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . The record is conflicting as.to. whether. Vivian had eight or nine children.

      . Victor and Mary represented themselves.


text:
    Shanese MOSLEY, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee
    NO. 2016-CC-00692-COA
    Court of Appeals of Mississippi.
    06/13/2017

      ATTORNEY FOR APPELLANT: SHANESE MOSLEY (PRO SE)
    ATTORNEYS FOR APPELLEE: ALBERT B. WHITE ANNA CRAIN CLEM-MER , '
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Shanese Mosley appeals the judgment of the Marshall County Circuit Court, arguing that the court' erred in affirming the Mississippi Department of Employment Security’s (MDES)' denial of her claim for unemployment benefits.

¶ 2. Finding no error, we affirm.

PROCEDURAL .HISTORY

¶ 3. In April 2014, Mosley applied for unemployment-insurance benefits. The MDES denied her claim after determining that she had failed to meet the monetary-eligibility requirements. Specifically, MDES determined that Mosley had earned insufficient base-period wages, such that her weekly benefit amount computed to an amount below the minimum weekly benefit amount required under Mississippi Code Annotated section 71-5-503 (Rev. 2011). Mosley appealed the,initial decision of the MDES-and was granted a hearing before an administrative law judge (AJ), who affirmed the decision, of the MDES, Undeterred, Mosley then appealed to the Board of Review of the MDES, which affirmed; and then to the circuit court, which also affirmed the decision of the MDES. Mosley then appealed to the Mississippi Supreme Court. -

¶4. While Mosley’s’appeal was pending before the supreme court, MDES filed a motion in the supreme court, -seeking' a remand of the case to the MDES, so it could consider income earned by Mosley in the State of Tennessee, which, had not been considered by the MDES in its initial decision. The supreme., court granted the motion; vacated’the judgment of the circuit court that had affirmed the decision of the MDES, and remanded the case to the MDES for further proceedings.

¶ 5. After remand, the MDES took in consideration the income earned'by Mosley in Tennessee and again ruled that1 she had earned'insufficient base-period wages to establish a claim for unemployment benefits. Mosley again appealed the MDES’s decision to the circuit court; which affirmed, leading to the current appeal.

DISCUSSION

¶ 6. Our standard of review is succinctly addressed in Richardson v. Mississippi Employment Security Commission, 593 So.2d 31, 34 (Miss. 1992):

The principle is well settled that an Order of the Board of Review on the facts is conclusive on the-lower court;, if supported by substantial evidence and if absent fraud. Where .there is the required substantial evidence, this court has no' authority to reverse the circuit court’s affirmance of the decision of the Board of Review.

(Internal citations and quotation marks omitted).

¶ 7. Mississippi employment-security law provides for the payment of unemployment benefits to eligible persons, if the claimant meets the statutory eligibility requirements set forth in Mississippi Code Annotated section 71-5-511 (Rev. 2011). The requirement at issue is the. claimant’s duty to establish monetary eligibility in accordance with section 71 — 5—511(e) and section 71-5-503. This requires a claimant to have earned a sufficient amount of wages for covered employment with an employer during the claimant’s base period. As stated, MDES denied Mosley’s claim for benefits after determining that Mosley had failed to meet the monetary-eligibility requirements.

¶8. The weekly benefit amount to be paid is determined by dividing the highest quarter earnings by twenty-six and rounding the resulting figure to the next lower dollar. The minimum weekly benefit amount for an individual is thirty dollars. If an individual’s weekly benefit amount computes to less than thirty dollars, then the claimant is not entitled to benefits,

¶ 9. Before applying for unemployment benefits, Mosley had been employed by Express Employment in Mississippi. She had also been employed by Memphis Jewish Home and Rehab in Tennessee. During the applicable period, Mosley earned $369.74 at the Memphis Jewish Home and Rehab, for January through March 2013, and $482.50 at Express Employment, for April through June 2013. Therefore, Mosley’s highest quarter wages were $482, and when divided by twenty-six, it would only be an eighteen-dollar weekly benefit amount, which is less than the required minimum of thirty dollars. Accordingly, MDES provided substantial evidence to support its decision;. therefore, Mosley’s claim is without merit, and the circuit court properly affirmed MDES’s denial of benefits for failure to meet the monetary requirement. .

¶10. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT IS AFFIRMED.

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

      . " ‘Base period’ means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of an individual’s benefit year.” Miss. Code Ann. § 71-5-11(A) (Rev. 2011).