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

text:
    Jaime C. PARRISH, Appellant v. Paul R. PARRISH, Appellee
    NO. 2016-CA-00871-COA
    Court of Appeals of Mississippi.
    October 31, 2017 Rehearing Denied March 6, 2018 Certiorari Denied June 14, 2018
    RICHARD SHANE MCLAUGHLIN, ATTORNEY FOR APPELLANT.
    JOHN A. FERRELL, ATTORNEY FOR APPELLEE.
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Paul and Jaime Parrish consented to a divorce on the ground of irreconcilable differences and submitted to the Alcorn County Chancery Court the determination and distribution of the marital estate and Jaime's alimony request. In this appeal, we must decide whether the chancellor erred when he (1) classified the marital home as Paul's partially separate property, (2) classified Paul's retirement account as separate property, and (3) declined to award Jaime alimony. Finding no abuse of discretion, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Paul and Jaime were married in 2007 and separated in 2014. They continued to live in the same home until they were officially divorced in 2016. When they married, Paul was fifty-four and Jaime was forty-nine years old. They met at the United States Postal Service (USPS), where they both worked as mail carriers. Paul and Jaime had no children together, but each had adult children from prior relationships. Additionally, Jaime had custody of her minor grandson by her daughter from a previous marriage.

¶ 3. During the marriage, Paul and Jaime lived together in a home that Paul owned for approximately twenty-eight years prior to the marriage. In April 2009, Paul executed a warranty deed conveying the home and real property to himself and Jaime in joint tenancy with rights of survivorship. Jaime and Paul remodeled the home together during the marriage. The chancellor found, and the parties generally agree, that the home was in terrible condition at the time Jaime moved in. Both parties paid for and contributed labor toward numerous improvements to the home during the marriage. Throughout the marriage, Jaime invested about $50,000 from an inheritance and her own earnings into remodeling and repairing the marital home. Both parties claimed in their Uniform Chancery Court Rule 8.05 financial statements that the home was worth $100,000.

¶ 4. The chancellor found that "[Paul] brought into this marriage the marital home, and it was lien free, and for that, the Court is giving the Plaintiff a $25,000.00 credit off the $100,000.00 value thereof in its equitable distribution and considering that portion as non-marital." As a result, the chancellor valued the home in the marital estate at $75,000, rather than the parties' agreed valuation of $100,000. Additionally, the chancellor classified Paul's retirement account as separate property, and declined to award Jaime alimony. Jaime now appeals.

STANDARD OF REVIEW

¶ 5. "This Court employs a limited standard of review of property division and distribution in divorce cases." Sims v. Sims , 169 So.3d 937, 940 (¶ 10) (Miss. Ct. App. 2014) (quoting Bowen v. Bowen , 982 So.2d 385, 393 (¶ 32) (Miss. 2008) ). "This Court will not disturb the chancellor's opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Stroh v. Stroh , 221 So.3d 399, 406 (¶ 17) (Miss. Ct. App. 2017) (quoting Mabus v. Mabus , 890 So.2d 806, 819 (¶ 53) (Miss. 2003) ). When reviewing issues of law, our standard is de novo. Id. (citing Lowrey v. Lowrey , 25 So.3d 274, 285 (¶ 26) (Miss. 2009) ).

¶ 6. "The chancellor's distribution of the marital assets will be affirmed as long as 'it is supported by substantial credible evidence.' " Sims , 169 So.3d at 940 (¶ 10) (quoting Bowen , 982 So.2d at 394 (¶ 32) ). "In addition, 'alimony awards are within the chancellor's discretion and will not be reversed by the Court on appeal absent manifest error or an abuse of discretion.' " Id. (quoting Cosentino v. Cosentino , 912 So.2d 1130, 1132 (¶ 8) (Miss. Ct. App. 2005) ).

DISCUSSION

¶ 7. Jaime contends that the chancellor misclassified the marital home as Paul's partially separate property and that the misclassification caused an inequitable property distribution. She also argues that the chancellor erred by classifying Paul's retirement account as his separate property, also thereby excluding it from the equitable distribution.

¶ 8. "When conducting a property division in a divorce case, the chancellor first must classify each asset as marital or nonmarital."

Carney v. Carney , 201 So.3d 432, 440 (¶ 27) (Miss. 2016). "Then, the chancellor must equitably divide the marital assets in accordance with the factors specified in Ferguson v. Ferguson . " Id. (citing Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994) ). "It is well settled that 'an equitable division of property does not necessarily mean an equal division of property.' " Id. (quoting Chamblee v. Chamblee , 637 So.2d 850, 863-64 (Miss. 1994) ).

I. Marital Home

¶ 9. In the final judgment of divorce, the chancellor stated the following:

In its equitable distribution hereafter, the Court gives credit to [Paul] for his initial contribution of the marital property of one-fourth (1/4) the value thereof, being $25,000.00, classifying same as nonmarital, but otherwise fully commingled to be marital property in the valued amount of $75,000.00[.]

Throughout the final judgment, the chancellor repeatedly referred to the marital home as "the marital property." The chancellor listed the parties' assets and classified the home as "marital," however, in a parenthetical noted "(non-marital $25,000.00)." Though the parties both valued the home at $100,000, the chancellor valued the home at $75,000. Thus, only $75,000 was subject to equitable distribution.

¶ 10. Under the family-use doctrine, separate property may convert to marital property. Rhodes v. Rhodes , 52 So.3d 430, 438 (¶ 25) (Miss. Ct. App. 2011). In fact, this "doctrine will almost always apply to the family home." Id. at (¶ 26). Here, the chancellor seemingly classified the marital home as partially separate property and partially marital property in order to arrive at an equitable distribution. The home should have been classified as marital property, and the parties' agreed valuation of $100,000 should have been subject to equitable distribution. While the chancellor is well within his discretion to award a greater interest in the marital home to Paul, this is accomplished through equitable distribution in accordance with the Ferguson factors-not by classifying the home as Paul's partially separate property. "However, we will not reverse the chancellor's judgment because of this possible error in classification. Where the overall division is fair, an error in classification does not warrant reversal." Kimbrough v. Kimbrough , 76 So.3d 715, 721 (¶ 27) (Miss. Ct. App. 2011). In regard to the division of the home, Paul received a 62.5 percent interest in the home, and Jaime received a 37.5 percent interest in the home. Aside from the home, the chancellor equally divided the remainder of the marital estate. Notwithstanding the possible misclassification of the home, the division is fair-especially given Paul's longstanding ownership of the home prior to the marriage. Again, equitable distribution does not mean equal division, and the chancellor was within his discretion to award Paul a greater equitable interest in the home.

II. Retirement Accounts

¶ 11. Jaime argues the chancellor also erred by classifying Paul's retirement account, valued at $99,976.96, as his separate property, thereby excluding it from the equitable distribution. Jaime also owned several retirement accounts totaling $79,000, which the chancellor also classified as nonmarital. In the final judgment, the chancellor stated the following in regard to the parties' retirement accounts:

The Court has looked at the retirement and savings of both parties, which were instituted prior to the marriage of the parties, as non[ ]marital.
....
Each party had retirement and savings plans brought to the marriage, and they have been kept separately, and as such, the Court is deeming them non[ ]marital.

¶ 12. Retirement income acquired and accumulated during the marriage is marital property. Gregg v. Gregg , 31 So.3d 1277, 1281 (¶ 16) (Miss. Ct. App. 2010). "The party seeking to exclude an item from the marital estate bears the burden of establishing its separate character." Cork v. Cork , 811 So.2d 427, 430 (¶ 13) (Miss. Ct. App. 2001). Here, there was no evidence-by either Paul or Jaime-of the premarital value of their respective retirement accounts. In accordance with our law, Paul and Jaime's retirement savings generated during the marriage were marital property subject to equitable distribution. Nevertheless, the chancellor's property distribution should be upheld where the overall division is fair. Kimbrough , 76 So.3d at 721 (¶ 27).

¶ 13. In this case, both Paul's and Jaime's individual retirement accounts were through their employer, USPS, and instituted prior to the marriage. The chancellor allocated the separate retirement accounts of both Paul and Jaime as nonmarital, noting that they were instituted prior to the marriage and maintained separately, and taking into account the amount of the retirement accounts and the relatively short length of the marriage. Given the fairness of the property division as a whole, we cannot find that the chancellor abused his discretion in allocating to Paul and Jaime their individual retirement accounts as nonmarital.

¶ 14. "In reviewing a chancellor's judgment, this Court does not conduct a Ferguson analysis anew, but reviews the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion." Phillips v. Phillips , 904 So.2d 999, 1001 (¶ 8) (Miss. 2004). Here, the chancellor went through the Ferguson factors in detail and arrived at an equitable division notwithstanding the possible misclassifications. Again, "we will not reverse the chancellor's judgment because of this possible error in classification. Where the overall division is fair, an error in classification does not warrant reversal." Kimbrough , 76 So.3d at 721 (¶ 27). We find that the overall division is fair and that the chancellor did not abuse his discretion. This issue is without merit.

III. Alimony

¶ 15. Jaime argues that the chancellor erred by declining to award alimony and failing to conduct an on-the-record Armstrong analysis. "Whether to award alimony and the amount of alimony are within the discretion of the chancellor." Riley v. Riley , 846 So.2d 282, 285 (¶ 10) (Miss. Ct. App. 2003) (citation omitted). "The chancellor's decision will not be reversed on appeal unless he was manifestly in error in his finding of fact or abused his discretion." Id.

¶ 16. "Alimony should be considered only if, after the parties['] assets are equitably divided, there are not 'sufficient assets to provide for both parties' and one party is left with 'a deficit.' " Stroh , 221 So.3d at 412 (¶ 43) (quoting Carter v. Carter , 98 So.3d 1109, 1112 (¶ 8) (Miss. Ct. App. 2012) ). Where "there are sufficient marital assets which, when equitably divided and considered with each spouse's non-marital assets, will adequately provide for both parties, no more need be done." Dykes v. Dykes , 191 So.3d 1287, 1291 (¶ 24) (Miss. Ct. App. 2016) (quoting Lauro v. Lauro , 847 So.2d 843, 848 (¶ 13) (Miss. 2003) ).

¶ 17. Following the equitable distribution, the chancellor determined that there were sufficient assets to adequately provide for both parties, and that Jaime did not suffer a deficit. Thus, alimony was inappropriate, and the chancellor was not required to conduct an Armstrong analysis. This finding is supported by substantial credible evidence, including Jaime's ability to earn a living, her salary, and the relatively short length of the marriage. The evidence also showed that at the time of the divorce, Paul was sixty-three years old, eligible to retire, and, during the pendency of the litigation, experienced serious health problems, and underwent heart surgery. Jaime testified that she had some back issues but otherwise hoped she could continue to work as a mail carrier. Accordingly, the chancellor did not abuse his discretion by declining to award alimony.

¶ 18. AFFIRMED.

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

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


source: Caselaw Access Project

author: WESTBROOKS, J., FOR THE COURT:

license: Public Domain

text:
    Artea CHILTON v. STATE of Mississippi
    NO. 2014-KA-00330-COA
    Court of Appeals of Mississippi.
    October 31, 2017 Rehearing Denied March 13, 2018 Certiorari Denied June 21, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Artea Chilton was indicted on one count of armed robbery using a deadly weapon. After a jury trial, Chilton was found guilty of armed robbery, and the Forrest County Circuit Court sentenced him to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with twenty years to serve, and five years of postrelease supervision (PRS), and to pay a $5,000 fine. After sentencing, Chilton filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the court denied after a hearing. After our review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 19, 2012, Chilton, driving a red Mustang, picked up Darisha Johnson from her apartment complex to take her to get something to eat. Johnson testified that Chilton instead drove to McMullan Motors and spoke with one of the salesmen. The salesman was later identified as Dewayne Morris.

¶ 3. Morris testified that Chilton wanted to look at the fastest and most expensive car at the dealership. Morris directed Chilton to a Dodge Charger that was on display inside of the dealership. Morris discussed a listing price of $55,000, but explained to Chilton that he could possibly sell the car for $50,000 if Chilton paid cash. Both Chilton and Morris testified that Chilton responded that he was going to the bank to retrieve the cash for the car, and that he would be right back.

¶ 4. Johnson testified that she and Chilton left McMullan Motors and drove to a BancorpSouth. Chilton, dressed in all black and wearing a mask on the back of his head, walked into the BancorpSouth and cut in front of one of the customers, who was later identified as Cleveland Collins. From there, witnesses testified that Chilton loudly asked a teller who the owner of the bank was. The teller, identified at trial as "Clayton" or "Clay," directed Chilton to Tina Gibbs, the branch manager.

¶ 5. Gibbs testified that Chilton walked into her office and stated that he wanted money because he was going to buy a Dodge. Gibbs testified that she felt a bit uneasy because of Chilton's demeanor and appearance, and she initially thought Chilton was robbing the bank until he mentioned the car. Therefore, she asked Chilton whether he wanted a loan. Gibbs testified that Chilton responded that he did not need a loan. Gibbs stated that he wanted all of the money, and that he was robbing the bank. By this time, Gibbs had pressed the silent alarm located on the side of her desk.

¶ 6. Gibbs later testified that Chilton said he had a gun, and gestured as though it was in his pocket. However, Gibbs stated she never actually saw Chilton's gun. After this brief exchange in her office, Gibbs stepped out and informed the tellers that Chilton was robbing the bank.

¶ 7. Candisha Campbell, a teller at the bank, testified that Gibbs instructed the tellers to hand Gibbs "bait money." Michelle Long, another teller at BancorpSouth, testified that she gave Gibbs bait money-the money typically given during a robbery.

¶ 8. After Gibbs retrieved the bag of bait money, she handed it to Chilton. Witnesses testified that Chilton told everyone to "have a good weekend" before exiting the bank.

¶ 9. Johnson testified that Chilton appeared calm as he entered the car, and that he had a bag of money with him. Johnson stated that she did not feel that anything was wrong until the police started following behind the car trying to cut them off. Johnson said that Chilton started going through the bag and money and throwing some of the money out of the window. Chilton later testified that the money had trackers in it. As soon as she got the chance, Johnson jumped out of the car and ran to an auto parts store. Johnson also tried to flag down Chief Charles Bolton of the Hattiesburg Police Department; however, he was in pursuit of Chilton. A few moments later, Chilton was apprehended.

¶ 10. Sergeant Laron Smith later testified that he received a call regarding a possible robbery. He stated that he and other officers were following behind a red Mustang until another officer cut off the Mustang's route. Sergeant Smith further stated that Chilton was noncompliant with commands to get out of the car. Sergeant Smith said that several officers had to remove Chilton from the vehicle.

¶ 11. Chilton and Johnson were arrested and charged with armed robbery. However, the grand jury did not return an indictment against Johnson. At trial, Chilton denied that he intended to rob the bank. He said he never told Gibbs that he had a gun, and he only wanted to discuss financing options regarding the Dodge. According to Chilton, he threw out the trackers because he was scared. Chilton further stated that he knew taking the money was wrong, but he did not understand how loans worked at a bank.

¶ 12. Following a two-day trial, Chilton was convicted of armed robbery. He was sentenced to twenty-five years in the custody of the MDOC, with twenty years to serve, followed by five years of PRS and to pay a $5,000 fine. Following his unsuccessful posttrial motions, he appeals and claims: (1) the indictment was fatally defective; (2) the circuit court erred when it gave jury instruction S-4; (3) the circuit court erred when it gave jury instruction S-1A; (4) there was insufficient evidence to convict him, and the verdict is against the overwhelming weight of the evidence; and (5) the circuit court erred in prohibiting him from introducing a video into evidence.

DISCUSSION

I. Whether the indictment was fatally defective.

¶ 13. Chilton argues that the indictment was fatally defective because it failed to charge him with "the exhibition of a deadly weapon." "The [reviewing] Court affords [a] de novo review to a claim that an indictment was fatally defective for failure to include an essential element." Warren v. State , 187 So.3d 616, 621 (¶ 10) (Miss. 2016) (citation omitted). "The ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense." Id. at 621-22 (¶ 10).

¶ 14. "All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment ... before the jury shall be impaneled ... and not afterward ...." Brown v. State , 37 So.3d 1205, 1209 (¶ 9) (Miss. Ct. App. 2009) (quoting Miss. Code Ann. § 99-7-21 (Rev. 2007)). "Further, the Mississippi Supreme Court has held that where a deficiency appearing in an indictment is non-jurisdictional, it may not be raised for the first time on direct appeal absent a showing of cause and actual prejudice." Id. (citations and quotation marks omitted). Deficiencies are jurisdictional "where the indictment fails to charge a necessary element, and where there exists no subject matter jurisdiction." Id. at 1210 (¶ 9).

¶ 15. The indictment against Chilton charged:

[O]n ... October 19, 2012, [he] did willfully, unlawfully, and feloniously take, steal, and carry away from the person and/or the presence of, and against the will of Tina Gibbs, approximately $1,510.00 in U.S. Currency, the personal property of the said Tina Gibbs by virtue of her employment at BancorpSouth, 713 Broadway Drive, Hattiesburg, Mississippi, by putting [her] in fear of immediate injury, by stating that he was armed with a gun , contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

(Emphasis added).

¶ 16. "An indictment must contain (1) the essential elements of the crime charged, (2) sufficient facts to fairly inform the defendant of the charge which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense." Warren , 187 So.3d at 621 (¶ 10) (citation omitted). " Rule 7.06 of the Uniform Rules of Circuit and County Court Practice states, in pertinent part, that 'the indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.' " Id.

¶ 17. In Dambrell v. State , 903 So.2d 681, 689 (¶ 32) (Miss. 2005), the supreme court held:

[W]hen a defendant makes an overt act and a reasonable person would believe that a deadly weapon was present, then the intent of the statute has been met for conviction purposes. In other words, if a defendant makes an overt act, a victim does not have to actually see a deadly weapon. So long as the victim reasonably believes that the defendant had a deadly weapon and the defendant makes an overt act the statute is satisfied.

Id. at 689 (¶ 32).

¶ 18. Accordingly, we find that the evidence presented supports a charge of armed robbery. Chilton was adequately put on notice that the State would attempt to prove that he committed armed robbery. Chilton's indictment referenced Mississippi Code Annotated section 97-3-79 (Rev. 2014), and the title of the indictment stated "armed robbery."

¶ 19. Section 97-3-79 reads as follows:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery ....

¶ 20. The supreme court has held that "although use of the statutory language is generally sufficient, using the exact language from the statute is not necessary if the words used have substantially the same meaning and the indictment is specific enough to give the defendant notice of the charge against [him]." State v. Hawkins , 145 So.3d 636, 640 (¶ 8) (Miss. 2014).

¶ 21. Rule 7.06 discusses indictments and enumerates seven items that must be included in every indictment:

The indictment upon which the defendant is to be tried shall be a plain, concise[,] and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and 7. The words "against the peace and dignity of the state."

¶ 22. Taken as a whole, Chilton's indictment provided a clear explanation of the charges from which Chilton could prepare his defense. The indictment was not fatally defective because it did not include the phrase "exhibition of a deadly weapon." Therefore, this issue is without merit.

II. Whether the circuit court erred in giving jury instruction S-4.

¶ 23. Chilton asserts that jury instruction S-4 impermissibly commented on the weight of the evidence, was argumentative, and deprived him of a fair trial and objective consideration of the evidence by the jury. "Jury instructions are within the discretion of the trial court and the settled standard of review is abuse of discretion." Tutwiler v. State , 197 So.3d 418, 424 (¶ 27) (Miss. Ct. App. 2015) (citation omitted). "Instructions are to be read together and taken as a whole with no one instruction taken out of context." Id. (citations and quotation marks omitted). "When read together, if the jury instructions state the law of the case and create no injustice, then no reversible error will be found." Id. at 425 (¶ 27).

¶ 24. Jury Instruction S-4 stated:

The Court instructs the jury that when a defendant makes an overt act and a reasonable person would believe that a deadly weapon is present, there is no requirement that a victim must actually see the deadly weapon. Therefore, if you believe from the evidence in this case that the Defendant, ARTEA CHILTON, intended for TINA GIBBS to believe that he was exhibiting a deadly weapon; to wit: a gun; and if you believe from the evidence in this case that Tina Gibbs did believe that ... Chilton[ ], was exhibiting ... a gun then you may conclude that ... a gun[ ] was exhibited.

¶ 25. At trial, Chilton objected to the use of this instruction; however, the circuit court found that the instruction was the correct statement of the law and granted the instruction. We agree.

¶ 26. In Williams v. State , 134 So.3d 732 (Miss. 2014), the supreme court analyzed a similar instruction given by a trial court. The instruction at issue in Williams provided that "[w]hen a defendant makes an overt act and the victim reasonably believes that the defendant has a deadly weapon, it is not required that the victim actually see a deadly weapon to support a conviction for armed robbery." Id. at 738 (¶ 20). The supreme court affirmed the use of this language in the instruction. Id. at (¶ 24).

¶ 27. Chilton patted his pants leg to signal that he had a gun. Furthermore, Chilton informed Gibbs that he had a gun in his pants. Therefore, we find that the circuit court did not abuse its discretion by allowing jury instruction S-4. Accordingly, this issue is without merit.

III. Whether the circuit court erred in giving jury instruction S-1A.

¶ 28. Chilton argues that jury instruction S-1A failed to instruct the jury on essential elements of the crime of armed robbery: namely (1) the "exhibition" of a deadly weapon and (2) felonious intent.

¶ 29. Chilton did not object to this instruction at trial. He raises this argument for the first time on appeal. The "failure to object to jury instructions at trial procedurally bars the issue on appeal." Hawthorne v. State , 835 So.2d 14, 19 (¶ 20) (Miss. 2003) (citation omitted). Notwithstanding the procedural bar, this Court finds no error with the use of jury instruction S-1A.

¶ 30. Jury Instruction S-1A stated:

The DEFENDANT, ARTEA CHILTON, has been charged with the crime of Armed Robbery. If you find from the evidence in this case beyond a reasonable doubt that in Forrest County, Mississippi:
(1) Th[at] approximately $1510.00 in U.S. currency was the personal property of Tina Gibbs of which she was in lawful possession of [sic] by virtue of her employment at BancorpSouth; and
(2) On or about October 19, 2012, the Defendant took the said property of Tina Gibbs, from (his/her) person and/or presence of and against the will of Tina Gibbs by placing Tina Gibbs in fear of immediate injury to his person, by indicating he had a deadly weapon, to-wit: a handgun; and
(3) That said taking was against the will of Tina Gibbs;
then you shall find the Defendant, ARTEA CHILTON, guilty of Armed Robbery.
If the State has failed to prove any or more of these elements beyond a reasonable doubt, then you shall find the Defendant not guilty of Armed Robbery.
If you find the Defendant, ARTEA CHILTON, not guilty of the crime of Armed Robbery, you may consider whether the Defendant is guilty of the lesser included offense of Robbery, and if you find from the evidence beyond a reasonable doubt that in Forrest County, Mississippi:
(1) Th[at] approximately $1510.00 in U.S. currency was the personal property of Tina Gibbs of which she was in lawful possession of [sic] by virtue of her employment at BancorpSouth; and;
(2) On or about October 19, 2012, the Defendant took the said property of Tina Gibbs, from (his/her) person and/or presence of and against the will of Tina Gibbs by putting Tina Gibbs in fear of some immediate injury to her/his person, but without the exhibition of a deadly weapon; and,
(3) that said taking was against the will of Tina Gibbs;
then you shall find the Defendant, ARTEA CHILTON, guilty of Robbery.
If the State has failed to prove any one or more of these elements you shall find the Defendant not guilty.

¶ 31. "Robbery has three essential elements: (1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence." Veazy v. State , 113 So.3d 1226, 1229 (¶ 11) (Miss. 2013) (citation omitted). "Armed robbery requires the additional element of exhibition of a deadly weapon." Id. "The law, of course, requires [that] the jury must be instructed regarding the elements of the crime which the defendant is charged." Williams , 134 So.3d at 737 (¶ 17) (quotation marks omitted).

¶ 32. However, the supreme court has "expressly recognized that the word 'rob' or 'robbery' has a well-defined meaning which includes an intent to steal." Lannom v. State , 464 So.2d 492, 496 (Miss. 1985). The supreme court has also upheld past jury instructions that did not contain the words "felonious intent." Id. These instructions "allow[ ] the jury to convict only upon evidence from which they could believe beyond a reasonable doubt that the defendant feloniously and violently robbed the victims." Id.

¶ 33. The absence of the words "felonious intent" had no effect on the State's burden of proof. We find that the jury was properly instructed as to the State's burden of proving that Chilton committed armed robbery under section 97-3-79. Moreover, we find that jury instruction S-1A tracks the language of the statute.

¶ 34. Further, this Court has already determined that Chilton's argument regarding the missing element of "exhibition of a deadly weapon" is meritless.

IV. Whether the evidence supports the verdict, or alternatively, whether the verdict was against the overwhelming weight of the evidence.

A. Sufficiency of the Evidence

¶ 35. Chilton argues that the evidence was insufficient to support the jury's verdict, because the evidence failed to prove beyond a reasonable doubt that he acted with "felonious intent" or that he "exhibited a deadly weapon." "To consider on appeal an argument that evidence is insufficient to uphold [a] conviction, [this Court must] examine all of the evidence presented to the fact-finder, including reasonable inferences that arise from other evidence, in the light that is consistent with the verdict of guilt." Cannady v. State , 855 So.2d 1000, 1002 (¶ 6) (Miss. Ct. App. 2003). Accordingly, "we reverse only if rational and fair-minded jurors could not have found the defendant guilty beyond a reasonable doubt." Id. (citation omitted).

¶ 36. The State presented evidence that Chilton walked into the bank with the intent to rob it. Gibbs testified that Chilton sat in her office, informed her that he was robbing the bank, and said that he had a gun. Based off of Gibbs's fear, she collected "bait money" and gave it to Chilton. Further, the bag of bait money was found on the seat of the car following Chilton's arrest.

¶ 37. Chilton asserts the State did not prove "felonious intent." However, Gibbs testified that Chilton told her he was robbing the bank. Furthermore, Chilton took the money from Gibbs, exited the bank, and began to throw the money with the trackers out of the window.

¶ 38. Chilton further asserts that the State did not prove that he "exhibited" a deadly weapon. However, we have determined that this argument lacks merit.

B. Weight of the Evidence

¶ 39. Chilton asserts the verdict was against the overwhelming weight of the evidence and that affirming his conviction would sanction an unconscionable injustice. We disagree. This Court's standard of review for claims that a conviction is against the overwhelming weight of the evidence is "that [we] must accept as true the evidence which supports the verdict[,] and will reverse only when [we are] convinced that the circuit court has abused its discretion in failing to grant a new trial." Boose v. State , 851 So.2d 391, 395 (¶ 20) (Miss. Ct. App. 2003).

¶ 40. Considering the evidence previously mentioned in this opinion, we find that the verdict is not so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Therefore, we find this issue to be without merit.

V. Whether the trial court abused its discretion by prohibiting Chilton from introducing a video into evidence .

¶ 41. Chilton contends that the trial court erred by prohibiting him from introducing a music video he recorded three days before the armed robbery. "Th[e reviewing c]ourt reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard of review." Smith v. State , 986 So.2d 290, 295 (¶ 12) (Miss. 2008).

¶ 42. Chilton asserts that the video shows that he was wearing the same mask and clothes in the music video that he was wearing the day of the robbery. He asserts that the video explains why he was wearing a mask. The trial court found that the video was irrelevant. According to Chilton, he was not able to fully present his defense. He also claims that the tape was relevant. We disagree.

¶ 43. "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." M.R.E. 401. Additionally, "evidence [that] is not relevant is not admissible." M.R.E. 402.

¶ 44. The trial court properly determined that the music video was not relevant, and therefore, inadmissible. There was no conflicting testimony regarding what Chilton was wearing the day of the robbery. Moreover, Johnson testified that it was not unusual for Chilton to wear masks, because he was a bit "weird." As such, there was evidence implying that Chilton did not necessarily wear the mask in the bank to conceal his identity. Therefore, it was inconsequential that Chilton appeared to have the same mask and clothes on from the video during the robbery. Moreover, witnesses testified that Chilton never used the mask during the armed robbery. He simply wore it on the back of his head until he was apprehended by police. Accordingly, we find no abuse of discretion in the trial court's decision to exclude the videotape.

¶ 45. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., NOT PARTICIPATING.

      The mask Chilton was wearing is known as the "Guy Fawkes" mask. It is perhaps best known as the mask appearing in the movie V for Vendetta .

      A gun was never recovered from the scene or from Chilton's car.

      Effective July 1, 2017, Rule 7.06 was replaced with Rule 14.1(a) of the Mississippi Rules of Criminal Procedure. But because the proceedings in this case preceded this charge, the former rule applies here.

      Chilton had worn the mask in the music video, and he was excited about filming a music video.

      Effective July 1, 2016, the Mississippi Rules of Evidence were restyled. Though these changes were nonsubstantive, we have quoted the former rule in effect when Chilton was tried.

      Chilton testified that he pulled the mask over his face after being stopped by police.


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

text:
    Jake BIAS a/k/a Jake Jerome Bias, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-00682-COA
    Court of Appeals of Mississippi.
    November 7, 2017 Rehearing Denied March 20, 2018 Certiorari Denied June 14, 2018
    ATTORNEY FOR APPELLANT: CYNTHIA ANN STEWART
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Jake Bias pleaded guilty in the Circuit Court of Hinds County to statutory rape for willfully, feloniously, and unlawfully having sexual intercourse with J.B. While incarcerated, Bias filed a motion for post-conviction relief (PCR), which was denied. Bias now appeals, asserting that (1) he received ineffective assistance of counsel; (2) his "confession" did not match the physical evidence; and (3) he was entitled to an evidentiary hearing.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On November 1, 2010, Chasidy Butler took her three-year-old daughter, J.B., to the University of Mississippi Medical Center (UMMC), after noticing that J.B. was suffering from irregular vaginal discharge and frequent urination. J.B. underwent a thorough medical evaluation and tested positive for chlamydia and gonorrhea. The medical records indicated that J.B. exhibited no tearing in the vaginal, perineal, or anal areas, and that her hymen was intact. A hospital social worker wrote on a report that J.B. had previously told her godmother that her father had "hurt her private area." J.B. was interviewed by the Child Advocacy Center, but its report was inconclusive as to whether she had been sexually abused.

¶ 4. On March 29, 2011, Bias pleaded guilty to statutory rape, pursuant to Mississippi Code Annotated section 97-3-65(1)(b) (Rev. 2014). On March 30, 2011, the circuit court sentenced him to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended, three years of supervised probation, and fifteen years to serve. Further, the court required him to register as a sex offender and to undergo mandatory sex counseling while incarcerated and during probation. The court also ordered Bias not to have any contact with J.B.

¶ 5. On March 31, 2014, Bias filed a PCR motion, which the circuit court summarily denied. Bias appealed, asserting the issues set forth in the first paragraph of this opinion. The PCR motion contained in the initial appellate record was missing some pages. On March 31, 2017, Bias filed a motion to supplement the record with the missing pages. We granted Bias's motion in an order entered on April 5, 2017, and a supplemental volume of the record was filed on April 25, 2017. However, the supplemental volume's version of the PCR motion was still incomplete, resulting in the absence of essential portions of Bias's second argument on appeal: that his confession did not match the physical evidence.

¶ 6. Because of the incompleteness of Bias's PCR motion in the record before us and the trial court's summary denial of the PCR motion without addressing the specific issues that had been raised in the motion, we are only able to speculate as to which arguments were actually presented to the trial court for review. Bias contends that the PCR motion filed with the trial court included his argument that his confession did not match the physical evidence, and that the pages containing that argument were simply missing from the appellate record. That may be true. However, no version of the PCR motion in the record before us contains a complete statement of the allegations and argument made in the trial court regarding Bias's second appellate issue. Therefore, we must proceed based on the record before us and are unable to address it.

DISCUSSION

¶ 7. "When reviewing a trial court's denial or dismissal of a [PCR motion], we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review legal conclusions under a de novo standard of review." Chapman v. State , 167 So.3d 1170, 1172 (¶ 3) (Miss. 2015).

Ineffective Assistance of Counsel

¶ 8. Bias argues that his trial counsel was constitutionally ineffective for three reasons: (1) his counsel failed to note and advise him of the fact that he had not tested positive for any STDs, nor had he been treated for them; (2) his counsel failed to note that "the evidence completely contradicts the confession, raising the specter of false confession"; and (3) his counsel "failed to raise the child's exposure to numerous other men."

¶ 9. "A voluntary guilty plea waives claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea." Rigdon v. State , 126 So.3d 931, 936 (¶ 16) (Miss. Ct. App. 2013) (citations and quotations omitted). Bias pleaded guilty and, during the plea hearing, acknowledged that he was satisfied with his counsel's services. Bias raises no issue regarding the voluntariness of his guilty plea. As such, we find no merit to this issue. Notwithstanding that fact, however, we briefly address Bias's arguments.

¶ 10. "The standard of review for claims of ineffective assistance of counsel is the two-prong test from Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing that (1) counsel's performance was deficient and (2) that the deficiency prejudiced the defense." Deloach v. State , 937 So.2d 1010, 1011 (¶ 5) (Miss. Ct. App. 2006). The burden is on the defendant to prove both prongs. Id. (citation omitted). "Counsel's choice of whether or not to ... call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy." Renfrow v. State , 202 So.3d 633, 636 (¶ 8) (Miss. Ct. App. 2016) (citation omitted). "This Court rarely second guesses trial counsel regarding matters of trial strategy." Id. (citation omitted).

¶ 11. With respect to Bias's first contention-that his counsel failed to note and advise him of the fact that he had not tested positive for any STDs, nor had he been treated for them-it is sufficient to say that, while it is true that there is no evidence in the record of Bias testing positive for an STD, his confession that he was infected with an STD makes this issue moot. During the plea hearing, the State advised the circuit court that it was prepared to prove that, after Bias was Mirandized, he was interviewed and gave a videotaped statement wherein he first denied having done anything to his daughter, but admitted to having a venereal disease.

Thereafter, the following conversation ensued:

[COURT]: And do you have a venereal disease, Mr. Bias?
[BIAS]: Well, ma'am, I got tested at the jail, but they didn't never [sic] tell me about it.
[COURT]: Are you on any medication?
[BIAS]: No, ma'am.

As such, we find no merit to Bias's contention that his trial counsel was ineffective for failing to raise, at the plea hearing, the issue of Bias not testing positive for an STD.

¶ 12. Second, Bias argues that his trial counsel was ineffective for failing to note that the physical evidence contradicts his confession, raising the inference that the confession was false. As noted, we are unable to ascertain, based on the record before us, whether this issue was presented to the trial judge.

¶ 13. "We will not hold a trial court in error on appeal for a matter not presented to it for decision." Moffett v. State , 49 So.3d 1073, 1101 (¶ 91) (Miss. 2010) (citation omitted). "[A]n issue is procedurally barred if not first raised in a PCR motion before a trial court." McLaurin v. State , 114 So.3d 811, 813 (¶ 4) (Miss. Ct. App. 2013). We do not take issue with Bias's attorney's assertion that this issue was presented to the trial court. However, our review is based on the record before us, not on counsel's representation of what was presented to the trial court. "It is an appellant's duty to justify his arguments of error with a proper record, which does not include mere assertions in his brief, or the trial court will be considered correct." Bass v. State , 888 So.2d 1187, 1190 (¶ 14) (Miss. Ct. App. 2004). Therefore, this issue is procedurally barred. Procedural bar notwithstanding, this issue is without merit.

¶ 14. Bias's next argument is based on the fact that the medical records indicate that there was no tearing in J.B's vaginal area and her hymen was "normal." First and foremost, we note that J.B. was not brought to the hospital until four to six weeks after she initially exhibited symptoms of frequent urination and discharge, per the UMMC social worker's report. Thus, it is feasible that any tearing that occurred may have healed between the time that she sustained it and the time that she was inspected. Additionally, we note that "[p]enetration, however slight, is sufficient to establish the penetration element of sexual battery." Burrows v. State , 961 So.2d 701, 706 (¶ 17) (Miss. 2007). Further, our supreme court held in Poole v. State , 46 So.3d 290, 295 (¶ 30) (Miss. 2010), that "evidence of an intact hymen is not conclusive proof that no penetration occurred." This caselaw, combined with the fact that, at the plea hearing, Bias actually admitted to the crimes he was charged with, renders this issue void of merit. Furthermore, it is also waived by his valid plea of guilty.

¶ 15. Finally, as to Bias's third contention regarding his ineffective-assistance-of-counsel claim, we note that the record is void of any evidence whatsoever to suggest that J.B. "was exposed to numerous other men." As such, we find no merit to this issue.

Evidentiary Hearing

¶ 16. Bias argues that the trial court erred in failing to grant him an evidentiary hearing, because there are serious conflicts in the evidence that suggest his innocence. Particularly, Bias emphasizes the fact that, based on J.B.'s medical reports, evidence of penetration is inconclusive and her hymen was still intact. He also points out that a report prepared by the Children's Justice Center indicates that the evidence was inconclusive as to whether J.B. was sexually abused. Bias also takes issue with the fact that there is no "medical evidence" showing that he tested positive for any STDs, or that he was treated for an STD after being imprisoned. The State responds that the trial court did not err in failing to order an evidentiary hearing, because it was not required to do so, particularly due to the fact that Bias admitted his crime in open court. Further, the State maintains that the evidence weighs in favor of Bias's guilt.

¶ 17. After reviewing the record in its entirety, we find that Bias was not entitled to an evidentiary hearing. Mississippi Code Annotated section 99-39-19(1) (Rev. 2015) provides:

If the motion is not dismissed at a previous stage of the proceeding, the judge, after the answer is filed and discovery, if any, is completed, shall, upon a review of the record, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice shall require.

"[N]o hearing is required when, based on the record of the guilty plea hearing, it is clear that the petitioner is entitled to no relief." Pepper v. State , 96 So.3d 780, 785 (¶ 15) (Miss. Ct. App. 2012). The plea-hearing transcript includes the following representations by the State:

The defendant was brought in. He was interviewed by the police and Mirandized where he gave a videotaped statement, ... wherein this defendant first denied [doing] anything with his daughter, but admitted to having a venereal disease. Later he changed his statement and said that he was in his bedroom asleep with the child, and the child removed his penis and stuck it in her vagina. And later when the police said that didn't make a whole lot of sense, he said what really happened was that he didn't want to lie anymore. He was drunk and mistook her for a grown woman.

After hearing the State's factual basis, the court asked Bias, "Did you commit those acts?" Bias replied, "Yes, ma'am."

¶ 18. Based on the plea-hearing transcript, we are satisfied that the trial court did not err in summarily denying Bias's PCR motion.

¶ 19. AFFIRMED.

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

      Initials are used to protect the victim's privacy.

      A report completed by a social worker at UMMC on November 1, 2010, indicated that J.B.'s mother said the frequent urination and discharge began about four to six weeks prior to the date on which she was actually taken to UMMC.

      We note that this issue is, in essence, Bias's second issue on appeal. Thus, although we have declined to address it as a separate issue, we are inevitably addressing it here as a part of his ineffective-assistance-of-counsel claim.


text:
    Larry LEWIS a/k/a Larry D. Lewis, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01484-COA
    Court of Appeals of Mississippi.
    November 28, 2017 Rehearing Denied March 27, 2018 Certiorari Denied June 14, 2018
    ATTORNEY FOR APPELLANT: PATRICK E. STEGALL
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Following a jury trial in the Panola County Circuit Court on August 15-16, 2016, Larry Lewis was convicted of statutory rape of a child under fourteen and statutory rape of a child over fourteen but under sixteen. Lewis was sentenced as a habitual offender, under Mississippi Code Annotated section 99-19-83 (Rev. 2015), to life imprisonment without parole in the custody of the Mississippi Department of Corrections. Aggrieved, Lewis filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied. Lewis timely appeals. After review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Charlene and her five children, including J.T., moved in with Lewis in late 2012 or early 2013. At the time, J.T. was around twelve or thirteen years old. J.T. testified that she began having a sexual relationship with Lewis around this time. At the time, Lewis was approximately fifty years old or older.

¶ 3. Robert Harris, J.T.'s great uncle, contacted the Department of Human Services (DHS) to report an inappropriate relationship between J.T. and Lewis. DHS interviewed J.T. and her family regarding the allegations of the sexual relationship. Each of the family members, including J.T., denied the existence of a sexual relationship.

¶ 4. Shortly after, Charlene and her children moved from Lewis's home. Charlene testified that although she and her children moved out, J.T. continued to visit Lewis alone. However, the family returned to live with Lewis sometime later in 2014.

¶ 5. J.T. stated that she and Lewis stayed in his house together in one bedroom, while her mother and siblings slept in a camper located in the back of Lewis's property. Charlene denied that J.T. lived with Lewis alone; however, she testified that she liked to party and was frequently out late at night. As a result, the children were left unattended in the camper while Lewis was in the house.

¶ 6. In 2015, Zeandra Butler, Lewis's biological daughter, notified DHS that her father and J.T. were involved in an inappropriate relationship. A representative from DHS interviewed J.T. at her school. During this interview, J.T. reported that she and Lewis were involved in a sexual relationship and had been involved since she was thirteen years old. At the time of the second DHS interview, J.T. was approximately sixteen years old.

¶ 7. Subsequently, Lewis was arrested and charged with statutory rape under Mississippi Code Annotated section 97-3-65(1)(a) and (1)(b) (Rev. 2014). Lewis was convicted in the Circuit Court of Panola County and sentenced to life imprisonment under the habitual-offender statute. Lewis filed a motion for a JNOV or, in the alternative, a new trial, which the circuit court denied. Lewis appeals.

STANDARD OF REVIEW

¶ 8. "To preserve the issue of denial of a directed verdict, the defense must move for a directed verdict at the close of the State's case." Goldsmith v. State , 195 So.3d 207, 212 (¶ 13) (Miss. Ct. App. 2016). "If a motion for a directed verdict is denied and the defendant introduces evidence on his own behalf, the defendant must renew his motion for a directed verdict at the close of all evidence." Id. "When considering a trial court's denial of a motion for judgment notwithstanding the verdict, [the reviewing court's] standard of review is de novo." Gilmer v. State , 955 So.2d 829, 833 (¶ 6) (Miss. 2007).

DISCUSSION

¶ 9. Lewis asserts that he was entitled to a directed verdict, because the evidence was insufficient to support his guilty verdicts for counts I and II. He further asserts that the judge incorrectly denied his posttrial JNOV motion.

¶ 10. However, "[b]ecause motions for directed verdicts and JNOV motions require consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court." Shipp v. State , 847 So.2d 806, 811 (¶ 20) (Miss. 2003) (quotation marks omitted).

Thus, in this case, we review the circuit court's denial of Lewis's JNOV motion.

¶ 11. Lewis was convicted of statutory rape of a child under the age of fourteen under Mississippi Code Annotated section 97-3-65(1)(b) (Rev. 2014). Under this code section, the crime of statutory rape is committed when:

(b) A person of any age has sexual intercourse with a child who:
(i) Is under the age of fourteen (14) years;
(ii) Is twenty-four (24) or more months younger than the person; and
(iii) Is not the person's spouse.

¶ 12. Lewis was also convicted of statutory rape under Mississippi Code Annotated section 97-3-65(1)(a). This section provides:

(1) The crime of statutory rape is committed when:
(a) Any person seventeen (17) years of age or older has sexual intercourse with a child who:
(i) Is at least fourteen (14) but under sixteen (16) years of age;
(ii) Is thirty-six (36) or more months younger than the person; and
(iii) Is not the person's spouse.

¶ 13. The facts established that Lewis and J.T. began a sexual relationship when J.T. was thirteen years old. J.T. reported that Lewis put his penis into her vagina on several occasions. At the time, Lewis was approximately fifty years old or older. J.T. also testified that her relationship with Lewis continued until she was sixteen years old.

¶ 14. However, Lewis asserts that there was no direct evidence to link him to the crime of statutory rape. This Court has previously held that "[w]itness testimony alone is sufficient to secure a conviction." Jordan v. State , 80 So.3d 817, 831 (¶ 59) (Miss. Ct. App. 2010) (citing Lattimer v. State , 952 So.2d 206, 224 (¶ 55) (Miss. Ct. App. 2006) ).

¶ 15. Furthermore, Meredith Rawl, an expert in the field of child abuse and forensic interviewing, conducted a forensic interview of J.T. Rawl testified that based on her interview with J.T., her findings were consistent with that of a child who had been sexually abused. Rawl was questioned regarding J.T.'s statement that J.T. had been sexually active with a boyfriend and Lewis. However, Rawl stated that J.T.'s sexual history was irrelevant as far as their interview was concerned.

¶ 16. Kristine Gable, a nurse coordinator at a rape crisis center, testified that J.T. informed her that she and Lewis had been having sex from the time she was thirteen years old until two months before the physical exam. J.T. told Gable that Lewis used a condom twice; however, he did not ejaculate inside her vagina.

¶ 17. Stanley Wayne Lee, Lewis's coworker, testified that he overheard Lewis discussing his girlfriend. At the time, Lewis stated that his girlfriend was sixteen years old. Shelby Houston, another one of Lewis's coworkers, testified that Lewis talked about a sixteen-year-old girl named "Pookie" or "Nookie" that he met through the girl's mother. Houston also stated that it appeared that Lewis liked the young girl and wanted to marry her.

¶ 18. Zeandra, Lewis's biological daughter, called DHS because she believed that Lewis and J.T. were involved in an inappropriate relationship. Lewis's other biological daughter, J.L., testified that Lewis told her that he and J.T. were having sex.

Lewis also told J.L. he was going to marry J.T. and have kids with her.

¶ 19. Viewing the evidence in the light most favorable to the State, we find there was sufficient evidence for a reasonable jury to find Lewis guilty on both counts of statutory rape.

¶ 20. AFFIRMED.

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

      To protect confidentiality, we will refer to the victim and any other minors by their initials throughout this opinion. And we will refer to the mother by her first name only.

      Rita Crump, J.T.'s paternal grandmother, testified that J.T.'s nickname is "Nookie."


text:
    Dalton Ray STEWART, Appellant v. DYNAMIC ENVIRONMENTAL SERVICES, LLC and HDI-Gerling America Insurance Company, Appellees
    NO. 2017-WC-00467-COA
    Court of Appeals of Mississippi.
    January 23, 2018 Rehearing Denied May 15, 2018 Certiorari Denied June 21, 2018
    ATTORNEYS FOR APPELLANT: DAVID N. GILLIS, WAYNE E. FERRELL JR.
    ATTORNEYS FOR APPELLEES: JILL RENEE MILLER, MICHAEL MADISON TAYLOR JR.
    BEFORE LEE, C.J., GREENLEE AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Dalton Ray Stewart filed a motion to controvert with the Mississippi Workers' Compensation Commission (Commission) seeking disability benefits after he suffered an injury in an accident while employed by Dynamic Environmental Services LLC (Dynamic). Following discovery, Dynamic and HDI-Gerling America Insurance Company (HDI) filed a motion to dismiss Stewart's claim for lack of jurisdiction. The administrative judge found that the Commission lacked jurisdiction and dismissed Stewart's claim. Stewart appealed the order to the full Commission. The Commission dismissed Stewart's petition to controvert based on lack of jurisdiction in Mississippi. Stewart timely appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2012, Stewart was employed as a truck driver with Dynamic at its location in Pearsall, Texas. He left briefly and reapplied for employment as a truck driver in 2014. At all times pertinent to this case, Dynamic's headquarters were located in Texas. At the time, Stewart was living in Mississippi.

¶ 3. It is undisputed that Stewart contacted Chad Fullilove, an employee with Dynamic, via Facebook, regarding employment. Further, Stewart filled out the appropriate preemployment paperwork and submitted to a drug test in Pleasanton, Texas. While completing the preemployment process, Stewart stayed in Dynamic's on-site housing in Charlotte, Texas. Sam Moak, the safety director with Dynamic, presented a sworn affidavit stating that the trucks were kept at Dynamic's facility in Texas.

¶ 4. During the ninety-day probationary period, Stewart was involved in a single-vehicle rollover accident in Raegan County, Texas, on November 4, 2014. He received medical treatment at a hospital in Midland, Texas. In 2015, Stewart filed a claim for benefits under the Texas workers' compensation administrative process and began receiving benefits. However, Dr. Dropadi Kewairamani, the treating physician in Texas, declared that Stewart reached maximum medical improvement (MMI) only eight days after the accident.

¶ 5. Subsequently, Stewart returned to Mississippi and sought medical treatment. Stewart asserts that he was diagnosed with post-mild traumatic brain injury, depression, memory loss, vertigo, postconcussion syndrome, low-back pain, irritable-bowel syndrome, and a sleep disorder.

¶ 6. Stewart maintains that he was treated by another Mississippi physician and diagnosed with traumatic brain injury and depression, and that he had not reached MMI. As a result, Stewart filed a motion to controvert with the Commission. The claim was based on Stewart's injuries sustained while driving for Dynamic on November 4, 2014.

¶ 7. Dynamic and HDI filed a motion to dismiss Stewart's claim for lack of jurisdiction within Mississippi. After a hearing, the administrative judge issued an order dismissing the claim for lack of jurisdiction, and Stewart appealed the dismissal to the full Commission. The Commission affirmed the order of the administrative judge and dismissed Stewart's claim. Stewart appeals.

STANDARD OF REVIEW

¶ 8. This Court has held that "the standard of review in a workers' compensation appeal is limited to whether the Commission's decision is supported by substantial evidence." Hamilton v. Southwire Co. , 191 So.3d 1275, 1282 (¶ 23) (Miss. Ct. App. 2016). Moreover, "[t]he Commission is the trier and finder of facts in a compensation claim, the findings of the [administrative judge] to the contrary notwithstanding." Id. Accordingly, "[appellate] court[s] will reverse an order of the Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence." Id.

DISCUSSION

I. Whether Stewart was hired in Mississippi.

¶ 9. Stewart asserts that he was hired in Mississippi, and that the Commission's ruling was not supported by substantial evidence, was arbitrary and capricious, was based upon findings of fact contrary to the great weight of the evidence, and violated his statutory right to receive compensation under Mississippi law. We disagree.

¶ 10. Stewart maintains that the Commission erroneously relied on its previous rulings in Phelps v. Builders Transport Inc. , No. 98-07722-G-3058, 2000 WL 1930224 (Miss. Workers' Comp. Comm'n Dec. 13, 2000), and Stewart v. Advertising Network Solutions , No. 12 09091-M-1844, 2014 WL 266102 (Miss. Workers' Comp. Comm'n Jan. 10, 2014).

¶ 11. In Stewart , the full Commission ruled that "a telephone call placed by [the c]laimant while in Mississippi and followed by a written employment contract in another state does not result in the [c]laimant being hired in Mississippi for purposes of Mississippi Code Annotated section 71-3-109 [ (Rev. 2011) ]." Stewart , 2014 WL 266102, at *2.

¶ 12. In Phelps , the Commission found that although a claimant had been hired in Alabama, she returned to Mississippi to await instructions for her first assignment. Phelps , 2000 WL 1930224, at *2. As a result, the Commission found that the claimant was employed in Mississippi, and Mississippi had jurisdiction over her claim. Id. at *5.

¶ 13. Stewart further asserts he was hired in Mississippi because he informed Dynamic that he had found other employment. As a result, he maintains that Fullilove actively pursued his employment after he realized that he had been hired by Macro Companies (Macro) in Louisiana. Stewart contends that his resignation from his job with Macro before reporting to Dynamic creates an inference that he was hired in Mississippi. However, Stewart does not cite any authority supporting this contention. Mississippi caselaw has consistently held that "failure to cite any authority is a procedural bar, and a reviewing court is under no obligation to consider the assignment." Bishop v. Miss. Dep't of Emp't Sec. , 145 So.3d 1254, 1255 (¶ 4) (Miss. Ct. App. 2014).

¶ 14. Therefore, we find no error with the Commission's reliance on these orders, and this issue is without merit.

II. Whether Stewart was temporarily working outside of Mississippi.

¶ 15. Because the accident occurred outside of the state of Mississippi, the only manner in which the Commission could possibly obtain jurisdiction over Stewart's claim is found under Mississippi Code Annotated section 71-3-109(1). This section provides:

If an employee who has been hired or is regularly employed in this state receives personal injury by accident arising out of and in the course of his employment while temporarily employed outside of this state, he or his dependents in case of his death shall be entitled to compensation according to the law of this state. This provision shall apply only to those injuries received by the employee within six months after leaving this state unless, prior to the expiration of such six months' period, the employer has filed with the commission of Mississippi notice that he has elected to extend such coverage a greater period of time.

Id.

¶ 16. Subsection (2) of the statute states that "the provisions of this section shall not apply to an employee whose departure from the state is caused by a permanent assignment or transfer." Miss. Code Ann. § 71-3-109(2).

¶ 17. The facts establish that Stewart's departure from Mississippi was caused by a permanent assignment in Texas. The only contact Stewart had with Mississippi consisted of telephone and computer communications between him and Fullilove while Stewart was located in Mississippi. Moreover, Stewart initiated contact about the possibility of being rehired. After back-and-forth communication between Fullilove and Stewart on social media, Stewart traveled to Texas to present his application for employment and accompanying preemployment paperwork. Stewart even stayed in Dynamic's on-site facility housing until the paperwork had been processed.

¶ 18. This Court dealt with similar jurisdictional issues in Rice v. Burlington Motor Carriers Inc. , 839 So.2d 602 (Miss. Ct. App. 2003). In Rice , "[t]he Commission dismissed Rice's petition to controvert for lack of jurisdiction." Id. at 602 (¶ 1). "[The claimant] was a resident of Pontotoc County when he enrolled in a truck[-]driver training school located in Nashville, Tennessee." Id. at (¶ 2). During a work trip from Indiana to Pennsylvania, he suffered a back injury. Id. at 603 (¶ 2). "The injury occurred in the State of Pennsylvania." Id. "After several days of unsatisfactory recuperation, Rice returned to Mississippi where he underwent extensive medical treatment including back surgery." Id. Further in Rice ,

[The employer] contested the jurisdiction of the Mississippi Workers' Compensation Commission to award compensation benefits under the facts of this case, arguing that there was an insufficient nexus between [Mississippi] and the circumstances of both Rice's employment and his work-related injury to permit the Commission to determine Rice's claim. The Commission agreed and dismissed Rice's petition on that basis without reaching the underlying merits of his claim for benefits.

Id. at (¶ 3).

¶ 19. We find that Stewart's case is analogous to Rice . As a result, Stewart's argument lacks merit.

III. Whether the Commission conducted a proper review of the record.

¶ 20. Stewart further asserts that the Commission should have reviewed his claim under the rules set forth for summary judgment in Mississippi Rule of Civil Procedure 56. However, we disagree.

¶ 21. In its order, the Commission stated that the summary-judgment standards pursuant to Rule 56(c) are not applicable, because the Commission has not adopted the rule. We find no error in this determination. Therefore, this argument is meritless.

IV. Whether Stewart's workers' compensation claim in Texas impacts Mississippi's jurisdiction.

¶ 22. Stewart asserts that he may pursue his claim in both Texas and Mississippi. It is undisputed that "more than one statute can apply to a single compensable injury, so long as each state has a relevant interest in the case." Martin v. L. & A. Contracting Co. , 249 Miss. 441, 446, 162 So.2d 870, 872 (1964). The Martin court further held that "successive awards can be made in different states, deducting the amount of the first award from the second." Id.

¶ 23. However, Mississippi must first have jurisdiction over the claim. Stewart's accident occurred in Texas. Dynamic's principal place of business is in Texas. Sam Moak, the safety director for Dynamic, signed an affidavit stating that, once hired, drivers at Dynamic utilized the company-owned trucks stored in the yard in Charlotte. Stewart's truck was never kept in Mississippi. Therefore, this issue is without merit.

V. Whether Dynamic and HDI's motion was filed to delay Stewart's claim and cause hardship and prejudice.

¶ 24. Stewart asserts that the motion to dismiss was filed to delay litigation of his claim. As a result, Stewart claims to have suffered economic hardship and a lack of medical treatment. However, the Commission disagreed.

¶ 25. Stewart offered no substantial evidence to support his assertion that he suffered an undue delay. Stewart only offered medical information concerning his claim under the Texas workers' compensation system. Therefore, we find that there was sufficient evidence for the Commission to dismiss Stewart's petition to controvert for lack of jurisdiction.

¶ 26. AFFIRMED.

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


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

text:
    Charles D. EASTERLING, Appellant v. Lajuana EASTERLING, Appellee
    NO. 2016-CA-01658-COA
    Court of Appeals of Mississippi.
    February 20, 2018 Rehearing Denied June 19, 2018
    ATTORNEY FOR APPELLANT: PHILLIP LLOYD LONDEREE, Petal
    ATTORNEY FOR APPELLEE: S. CHRISTOPHER FARRIS
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. This case considers the chancellor's denial of a motion to reconsider a judgment that granted a modification of alimony payments. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Charles D. Easterling and Lajuana Easterling had been married for thirty-seven years when they were divorced on January 23, 2013. They entered into a property-settlement agreement that stipulated the terms of their divorce. Among the terms, Charles was required to pay monthly periodic alimony in the amount of $2,500 to Lajuana; Lajuana retained possession of the marital home; and Charles was obligated to pay the monthly note on the home.

¶ 3. Prior to and at the time of the divorce, Charles worked as a tool pusher for Ensco, an off-shore oil-drilling contractor. After the divorce, Charles remarried, and he now has an adopted daughter and two stepchildren who reside in his home. However, Charles testified that due to circumstances in the oil industry beyond his control, he was terminated from Ensco in 2015. Charles testified that he was without a regular income. He said that he had attempted to find other employment in the oil industry, but to no avail. He further testified that he picked up odd jobs when available.

¶ 4. On August 13, 2015, Charles filed a complaint for modification of his alimony obligation. A hearing was held with both Charles and Lajuana in attendance on December 2, 2015. There was no record or written order of the proceedings. But each party agreed that the court temporarily reduced Charles's alimony obligation to $600 per month. From that date until the final judgment, Charles paid the reduced amount of alimony and ceased monthly payments on the home-equity line of credit, which forced Lajuana to begin paying the interest on the mortgage.

¶ 5. A trial was held on May 10, 2016. The chancellor found that Charles's termination from Ensco was an unanticipated, unforeseen loss of employment beyond his control that resulted in a substantial material change in circumstances. Therefore, the chancellor then analyzed the Armstrong factors and granted Charles a permanent reduction of his alimony payments to $1,500 per month.

¶ 6. Charles then filed a motion to reconsider and asked the chancellor to completely eliminate his alimony obligation. The motion was denied, and Charles has appealed.

ANALYSIS

¶ 7. Charles argues that the complete loss of his income justifies either the total elimination of his alimony obligation, or a greater decrease in his alimony obligation than the chancellor granted. Charles claims that his finances are so immediately finite that at this rate, within four years, he will be sixty-five years old and destitute, making compliance with the judgment thereafter impossible.

¶ 8. When requesting modification of a previously ordered alimony award, chancellors are vested with general statutory authority to modify divorce decrees and make "new decrees as the case may require." Miss. Code Ann. § 93-5-23 (Rev. 2013). Within this broad authority is the more specific power to increase, decrease, or terminate periodic alimony payments. Hubbard v. Hubbard , 656 So.2d 124, 129 (Miss. 1995). "Unless the chancellor is in manifest error and abused her discretion, we will not reverse." Peterson v. Peterson , 129 So.3d 255, 257 (¶ 5) (Miss. Ct. App. 2013) (citing Armstrong v. Armstrong , 618 So.2d 1278, 1280 (Miss. 1993) ). "In the case of a claimed inadequacy or outright denial of alimony, we will interfere only where the decision is seen as so oppressive, unjust or grossly inadequate as to evidence an abuse of discretion." Armstrong , 618 So.2d at 1280.

¶ 9. When considering a party's petition to modify or terminate an award of periodic alimony, a chancellor must first determine whether "an unforeseeable and material change in circumstances occurred since entry of the initial divorce decree." Peterson , 129 So.3d at 257 (¶ 7) (citing Holcombe v. Holcombe , 813 So.2d 700, 703 (¶ 11) (Miss. 2002) ). "The change in circumstance must not be anticipated by the parties at the time of the original decree." Holcombe , 813 So.2d at 703 (¶ 11). If no unforeseeable and material change has occurred, then a modification of the alimony award is improper. Peterson , 129 So.3d at 257 (¶ 7).

¶ 10. Once "a substantial unanticipated change has in fact occurred, the chancellor should then consider the Armstrong factors to determine the appropriate amount of alimony." Id. at (¶ 8) (footnote omitted) (citing Holcombe , 813 So.2d at 703 (¶ 12) ). When analyzing these factors and "deciding whether to modify periodic alimony," chancellors should "compar[e] the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree." Steiner v. Steiner , 788 So.2d 771, 776 (¶ 16) (Miss. 2001) (citations omitted). As in all alimony-modification cases, "[a]limony, if allowed, should be reasonable in amount, commensurate with the wife's accustomed standard of living, minus her own resources, and considering the ability of the husband to pay." Gray v. Gray , 562 So.2d 79, 83 (Miss. 1990). "[A]limony awards in excess [of] a spouse's ability to pay are 'per se unreasonable.' " Sheffield v. Sheffield , 55 So.3d 1142, 1145 (¶ 9) (Miss. Ct. App. 2011) (quoting Yelverton v. Yelverton , 961 So.2d 19, 28 (¶ 18) (Miss. 2007) ).

¶ 11. Here, the chancellor's final judgment found that Charles's "decrease in income from his loss of employment was not anticipated at the time of the divorce and is a material change in circumstances[, but] ... the loss of employment does not justify a termination of alimony[.]" After which, the chancellor considered the Armstrong factors to determine the proper amount of alimony. See Holcombe , 813 So.2d at 703-04 (¶ 12).

¶ 12. "Personal bills cannot be used as a factor to reduce support payments." Hardin v. Grantham , 201 So.3d 511, 515 (¶ 15) (Miss. Ct. App. 2016). Since the divorce, Charles has acquired a new home and land, and has remarried and adopted one child and has two stepchildren. The law is clear that the claim of the divorced wife under an alimony award on the ex-husband's earnings takes precedence over that of a second wife. De Marco v. De Marco , 199 Miss. 165, 167, 24 So.2d 358, 359 (1946). The obligations to the first wife also take precedence over any obligations the ex-husband may have as the result of children with his new wife. James v. James , 724 So.2d 1098, 1104 (¶ 22) (Miss. Ct. App. 1998). As a result, Charles's post-divorce personal bills and remarriage cannot be used as factors to reduce his support payments. See Hardin , 201 So.3d at 515 (¶ 15).

¶ 13. Further, the chancellor considered the Armstrong factors and concluded that Charles had not missed any payments on his monthly financial obligations since the divorce. Despite having been fired and claiming that he was in financial jeopardy because of his alimony obligation, all of his debts were current and there was no risk of foreclosure or repossession at the time of the hearing. Charles argues that he was current on all of his debts only because he took on additional credit-card debt through cash advances in order to make the payments. However, "simply alleging, as does [Charles], that one is subsisting on borrowed funds does not show with the required particularity that he is unable to pay." Varner v. Varner , 666 So.2d 493, 497 (Miss. 1995).

¶ 14. At the time of trial, Charles held more than $400,000 in stocks and an annuity, along with real property, vehicles, and other assets. Here he argues that he will run out of money within four years if he is forced to pay $1,500 a month in alimony, $120 a month in mortgage payments-including retroactive payments on each-and his reported $7,574.56 in monthly expenses. If this were the case, at that rate without any other income, Charles would be rendered destitute regardless of the court-required support payments.

¶ 15. At the hearing, Charles could make his obligatory alimony payments to Lajuana, whose living expenses and needs have remained unchanged since the divorce. The supreme court has held:

[i]n property and financial matters between the divorcing spouses themselves, there is no question that, absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have reached [an] agreement and the chancery court has approved it, we ought to enforce it and take as dim a view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts.

Weathersby v. Weathersby , 693 So.2d 1348, 1351 (Miss. 1997) (quoting Bell v. Bell , 572 So.2d 841, 844 (Miss. 1990) ).

¶ 16. "[T]he chancellor has substantial discretion in reaching a decision that [she] finds equitable and fair to both parties." Seale v. Seale , 863 So.2d 996, 999 (¶ 14) (Miss. Ct. App. 2004). The chancellor determined that Lajuana had been substantially dependent upon both her disability payments and the alimony payments from Charles since the divorce to meet her monthly living expenses. Her financial situation has not changed. As a result of Charles's material change in circumstances, the chancellor concluded that a $1,000 reduction in his alimony obligation was warranted. We find the chancellor's reduction in the amount of the alimony was neither manifest error nor an abuse of discretion. The chancellor's judgment is affirmed.

¶ 17. AFFIRMED .

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


text:
    Only AL-KHIDHR, Appellant v. Ronald KING, Superintendent, and Central Mississippi Correctional Facility, Appellees
    NO. 2016-CP-01499-COA
    Court of Appeals of Mississippi.
    April 24, 2018
    ATTORNEY FOR APPELLANT: ONLY AL-KHIDHR (PRO SE)
    ATTORNEYS FOR APPELLEES: ANTHONY LOUIS SCHMIDT JR., DARRELL CLAYTON BAUGHN, JACKSON
    BEFORE IRVING, P.J., BARNES AND WILSON, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Only Al-Khidhr appeals the judgment of the Rankin County Circuit Court, arguing that the court erred by affirming the decision of Ronald King, Superintendent of the Central Mississippi Correctional Facility of the Mississippi Department of Corrections (MDOC), and dismissing his petition for judicial review.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On May 1, 2012, Al-Khidhr was indicted by a Harrison County grand jury for unlawful possession of a firearm by a convicted felon. On September 16, 2013, Al-Khidhr was indicted again by a Harrison County grand jury, the charge being possession of a controlled substance. On December 3, 2013, the circuit court granted the State's motion to amend Al-Khidhr's indictment for possession of a controlled substance to charge Al-Khidhr as a habitual offender, and on the same date, he pleaded guilty to the charges in both indictments. The circuit court sentenced him to consecutive sentences of five years on the firearm charge and four years on the drug-possession charge, with both sentences to be served in the custody of the MDOC. Pursuant to Mississippi Code Annotated section 99-19-23 (Rev. 2015), Al-Khidhr was entitled to a credit against his sentences for the time he spent in jail awaiting trial. He was given a credit for all time served on both charges through the date of his guilty pleas on December 3, 2013-amounting to 613 days of pre-trial confinement. Al-Khidhr does not dispute that 613 days is an accurate calculation of his pre-trial confinement; he only argues that it should have been doubled to apply to both of his charges.

¶ 4. However, on February 19, 2016, Al-Khidhr filed an "Administrative Remedy Program" (ARP) appeal with the MDOC requesting double credit for his pre-jail confinement time, arguing that he was entitled to a separate credit for each charge. MDOC denied his appeal on May 11, 2016.

¶ 5. On June 10, 2016, Al-Khidhr filed a petition for judicial review in the Rankin County Circuit Court. The circuit court dismissed the petition on June 30, 2016. On July 10, 2016, Al-Khidhr filed a motion for reconsideration, which the circuit court denied on September 30, 2016. On October 18, 2016, Al-Khidhr filed a notice of appeal.

¶ 6. On August 8, 2016, Al-Khidhr filed a motion to clarify his sentence in the Harrison County Circuit Court. On May 1, 2017, the circuit court dismissed Al-Khidhr's motion, finding that it was a successive writ and that venue was improper. He appealed the dismissal in the Harrison County case (cause number 2017-CP-00269) to the Mississippi Supreme Court, which assigned the case to this Court, where it is still pending. Of note, according to the MDOC, Al-Khidhr was released from custody on July 14, 2017.

DISCUSSION

¶ 7. Our standard of review is succinctly addressed in Welch v. Epps , 158 So.3d 360, 361 (¶ 3) (Miss. Ct. App. 2015) :

The decision of an administrative agency shall not be disturbed unless unsupported by substantial evidence; arbitrary or capricious; beyond the agency's scope or powers; or violative of the constitutional or statutory rights of the aggrieved party. There is a rebuttable presumption which favors the agency's decision and the challenging party has the burden of proving the contrary.

(Internal citations and quotation marks omitted).

¶ 8. Al-Khidhr contends that the MDOC improperly computed his prison sentence to conform to his sentencing order. He argues that the 613 days he spent in jail awaiting trial should have been applied to each of his consecutive sentences. He further argues that his sentence for drug possession was to be served as a habitual offender and that he completed that sentence on March 30, 2016; however, he contends that once his sentence for gun possession started, he was entitled to an additional 613-day credit for that sentence as well. He asserts that the court erred in dismissing his case in light of the sentencing order and the language of Mississippi Code Annotated section 99-19-23 (Rev. 2015), which states: "The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting trial on a criminal charge ... shall be applied on any sentence rendered by a court of law or on any sentence finally set after all avenues of appeal are exhausted." The sentencing order reads in pertinent part, "[t]he [d]efendant shall be given credit for any and all time served as to these charges." (emphasis added). He asserts that, based on that language, he was entitled to a separate credit for each charge.

¶ 9. The MDOC responds that the issues raised in this case are moot because, according to their records, on July 14, 2017, Al-Khidhr was released from the MDOC's custody. The MDOC argues that "cases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot." J.E.W. v. T.G.S. , 935 So.2d 954, 959 (¶ 14) (Miss. 2006) (quoting Monaghan v. Blue Bell Inc. , 393 So.2d 466, 466-67 (Miss. 1980) ). We agree, but there is an exception to the mootness doctrine: "we may address appeals considered moot where the matter is 'capable of repetition yet evading review.' " Smith v. State , 229 So.3d 178, 180 (¶ 5) (Miss. Ct. App. 2017). Therefore, we briefly consider the issues raised by Al-Khidhr.

¶ 10. Notwithstanding the overall merit of Al-Khidhr's appeal, or the lack thereof, the MDOC contends that he was given credit for time served within the guidelines of section 99-19-23, and that he received the appropriate amount of credit for the time he spent in jail before he pleaded guilty. The MDOC cites Foster v. Durr , 123 So.3d 940, 941 (¶ 8) (Miss. Ct. App. 2013), for the principle that Al-Khidhr "cannot receive credit twice for the same presentence jail-time served for multiple offenses." Despite Al-Khidhr's contention that Foster is not applicable to the case at hand, we find that it is. In Foster , this court found that Foster was entitled to 233 days of credit for jail time served while awaiting trial. Id. at (¶ 3). He was convicted, on the same day, of two charges which had individual and joint presentence jail-time attributable to them. Foster-just like Al-Khidhr-argued that his jail-time credit should have been applied to each of his sentences individually because his sentences were consecutive. Id. at (¶ 6). However, as this Court reasoned in Foster , Al-Khidhr cannot receive credit twice for the same presentence jail-time served for multiple offenses. As such, we find that the MDOC's decision was supported by substantial evidence and was not arbitrary or capricious.

¶ 11. AFFIRMED.

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