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

text:
    Christopher Allen JOINER a/k/a Christopher Joiner a/k/a Christopher A. Joiner a/k/a Chris Joiner, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00177-COA
    Court of Appeals of Mississippi.
    February 13, 2018
    OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Christopher Allen Joiner appeals his convictions for three counts of armed robbery under Mississippi Code Annotated section 97-7-79(2) (Rev. 2014). He argues that the trial court improperly denied his request for a mental evaluation to determine whether he was fit to stand trial. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 1, 2016, after he was indicted, Joiner filed a motion to proceed pro se. In the motion, Joiner stated that he had asked his first appointed attorney for a psychological evaluation. Joiner provided no other basis, reasoning, or explanation for such an evaluation. Then on May 24, 2016, five months before his trial, Joiner was appointed new trial counsel.

¶ 3. Joiner made no further mention of his request for a psychological evaluation to his new attorney or to the judge in his numerous pretrial court appearances. Then Joiner was offered a plea deal. Joiner discussed the details of his case and the plea with his attorney, and then with the judge. Nevertheless, Joiner rejected the plea offer and decided to go to trial.

¶ 4. The trial began on October 3, 2016. At trial, Joiner mentioned his request for a psychological evaluation to his new attorney and subsequently to the judge. This was the first time Joiner had mentioned it since the motion to proceed pro se. After a discussion between Joiner, his attorney, and the judge, the motion for a psychological evaluation was denied.

¶ 5. The jury found Joiner guilty of all three armed-robbery counts. He was sentenced to life in the custody of the Mississippi Department of Corrections on each count, with the sentences in Counts II and III to run concurrently with each other and consecutively to the sentence imposed in Count I. Joiner filed a motion for a new trial and raised the issue of the psychological evaluation. The court denied the motion, and Joiner has timely appealed.

STANDARD OF REVIEW

¶ 6. Constitutional due process requires that a person accused of a crime may only be tried if he is legally competent. Lokos v. Capps , 625 F.2d 1258, 1261 (5th Cir. 1980). Uniform Rule of Circuit and County Court 9.06 requires a trial court to order a defendant to undergo a mental examination if, upon "its own motion or upon motion of an attorney, [the trial court] has reasonable ground to believe that the defendant is incompetent to stand trial[.]" The determination of whether a trial court has a "reasonable ground" to suspect mental incompetency is within the discretion of the trial court. Harden v. State , 59 So.3d 594, 601 (¶ 14) (Miss. 2011). This discretion is broad in determining whether to order a mental evaluation and competency hearing. Id. at 603 (¶ 19). This is because the trial judge is in the best position to observe the appellant and his demeanor. Id.

¶ 7. The standard of review for an appellate court to determine if there was an abuse of discretion is whether "the trial judge received information which, objectively considered, should reasonably have raised a doubt about [the] defendant's competence and alerted [the judge] to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense[.]" Goff v. State , 14 So.3d 625, 644 (¶ 66) (Miss. 2009) (citation omitted). "[T]here is no abuse of discretion in denying a mental evaluation where there has been no proof presented to the trial judge that such an examination is needed." Coker v. State , 909 So.2d 1239, 1241 (¶ 8) (Miss. Ct. App. 2005) (citation omitted).

ANALYSIS

¶ 8. Joiner argues that the trial court erroneously denied him a mental evaluation and that the evaluation was necessary to determine whether he was competent to reject his plea offer and stand trial. The State responds that the defense presented no medical evidence as to his emotional or mental condition upon his motion for a psychological examination that would have warranted such an evaluation. The Mississippi Supreme Court has held that, in order to warrant a psychiatric examination, there must be evidence indicating a reasonable probability that the defendant is incapable of making a rational decision. Jaquith v. Beckwith , 248 Miss. 491, 500, 157 So.2d 403, 407-08 (1963). Joiner showed no evidence of a reasonable ground. Joiner's own testimony and the testimony of his attorney showed that he was competent to stand trial and therefore not in need of a mental evaluation.

While there is no precise statement of what quantum of evidence necessitates a trial judge to order a mental evaluation, the United States Supreme Court has explained "evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required."

Bradley v. State , 116 So.3d 1093, 1096 (¶ 17) (Miss. Ct. App. 2013) (quoting Drope v. Missouri , 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ).

¶ 9. During questioning of both Joiner and his attorney, each stated there were no problems communicating with each other or formulating a defense:

[JUDGE]: My question to you, though, is quite simple. Have you discussed this [plea deal] fully with your attorney?
[JOINER]: Yes, sir; I have and he has advised me to the best of my interest.
[JUDGE]: He has advised you, you feel, to the best of your interest. Now, the decision you have made to, I suppose, reject their recommendation and to proceed to trial, that is your decision?
[JOINER]: Yes, sir.
[JUDGE]: You reached that decision after consultation with your attorney?
[JOINER]: Yes, sir.
[JUDGE]: Any form of pressure or-
[JOINER]: No, sir.
[JUDGE]: -threats or coercion, anything of that nature?
[JOINER]: No, sir; nothing like that.

¶ 10. Additionally, prior to this case, Joiner had appeared in front of the trial judge numerous times regarding other felony charges and entered guilty pleas. The trial judge noted when deciding whether to deny the motion for a psychological evaluation that, during those prior occasions, there had never been any mention of the need for a competency evaluation. Joiner was familiar with the plea-bargain system, and the judge had previously had the opportunity to observe Joiner's decision-making abilities.

¶ 11. The record indicates that Joiner was alert and understood the nature of the proceedings and the circumstances and consequences surrounding his actions. Joiner showed no signs of mental defect. "[T]he burden of proof in this case rests upon the movant[ ] to prove by substantial evidence that the defendant is mentally incompetent to stand trial." Richardson v. State , 767 So.2d 195, 203 (¶ 41) (Miss. 2000). Joiner participated in his defense and was able to assist his attorney and express himself in a clear and rational manner. We find Joiner failed to show there was any reasonable ground to conclude he was not competent to stand trial, and the trial court did not abuse its discretion in denying the petition to determine competency. Thus, Joiner's assignment of error is without merit. The judgment of the Jackson County Circuit Court is affirmed.

¶ 12. AFFIRMED .

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

      Although it applies in this case, Rule 9.06 has since been replaced by Rule 12 of the Mississippi Rules of Criminal Procedure (effective July 1, 2017). "Mississippi Rule of Criminal Procedure 12.5(a) departs from Rule 9.06's mandatory-hearing requirement. In the absence of a motion by the court or the parties, a hearing is no longer mandatory, but permissible." Pitchford v. State , 2015-CA-01818-SCT, 240 So.3d 1061, 1067, 2017 WL 4699552, at *5 n.1 (Miss. Oct. 19, 2017) (citing MRCrP 12.5(a) cmt.).


source: Caselaw Access Project

author: WILSON, J., FOR THE COURT:

license: Public Domain

text:
    Sean HARDEN, Appellant v. Danielle Dawn SCARBOROUGH, Appellee
    NO. 2016-CA-01393-COA
    Court of Appeals of Mississippi.
    March 27, 2018
    ATTORNEYS FOR APPELLANT: HAROLD O. GRISSOM JR., Gulfport, PRESTON ANDREW GRISSOM
    ATTORNEY FOR APPELLEE: DIANNE HERMAN ELLIS, Ocean Springs
    BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. In this child custody dispute, the father, Sean Harden, argues that the chancellor erred by awarding physical custody of the parties' son, Rhett, to the mother, Danielle Scarborough. Harden also argues that the chancellor erred in setting child support, by considering hearsay, by enjoining both parties from routinely visiting Rhett's daycare or school during the day, and by enjoining both parties from sharing pictures of Rhett on social media. For the reasons that follow, we find no error and affirm the chancellor's rulings on child custody and child support. We also find that Harden's hearsay argument is without merit. However, we reverse and render the orders restricting the parties' visits to Rhett's daycare and prohibiting them from sharing pictures of the child on social media. We reverse on those issues because there was no evidence that either issue had caused any harm to the child or that either parent had visited the school or shared photos inappropriately.

FACTS AND PROCEDURAL HISTORY

¶ 2. Harden and Scarborough began dating around August 2013. Their son, Rhett, was born in October 2014. Harden and Scarborough never married but cohabited at Harden's home from June 2014 until May 2015. Harden is a high school teacher and coach. He resigned as head football coach at the school during this litigation but continues to teach and coach powerlifting. Scarborough is a registered nurse at a hospital.

¶ 3. On May 25, 2015, Scarborough, with Rhett, moved out of Harden's house. On June 1, 2015, she filed a complaint to establish paternity, custody, and child support. On June 17, 2015, Harden filed an answer and counterclaim for custody and child support.

¶ 4. After Scarborough moved out of Harden's house, she enrolled Rhett in a new daycare without notifying Harden, and she did not allow Harden to see Rhett again until July 5, 2015. Scarborough testified that the new daycare was closer to her work, and her daughter from a prior relationship had attended it. Scarborough testified that she denied Harden visitation from May 25 to July 5 on the advice of her former attorney because there was no court order in place. During that time, Scarborough and Harden communicated primarily by text message and through their attorneys. The record includes hundreds of pages of the parties' text messages from both before and after their separation.

¶ 5. On July 21, 2015, the court entered a temporary order granting Scarborough and Harden joint legal custody, Scarborough temporary physical custody, and Harden weekend visitation. The court also ordered Harden to pay child support of $541.50 per month.

¶ 6. A trial was held March 22-25, 2016. Scarborough testified and called her mother, father, and daughter as witnesses. Harden testified and called his mother as a witness. A fellow teacher and former principal at Harden's school also testified briefly.

¶ 7. The chancellor ruled from the bench at the conclusion of the trial and subsequently entered a written judgment establishing custody, visitation, and support. The chancellor made findings under Albright and awarded Scarborough physical custody of Rhett with joint legal custody and visitation for Harden. The chancellor awarded Harden visitation consisting of alternating weekends, alternating Thursday afternoons, most of the summer, and specified holidays. The chancellor ruled that child support would remain at $541.50 per month, as set by the temporary order. The final judgment also prohibited both Harden and Scarborough from posting pictures of Rhett on social media. Finally, the judgment provided that Harden and Scarborough were encouraged to participate in Rhett's extracurricular and school activities, including all parties and special events at his school or daycare, but neither party should "routinely visit any daycare or school, for lunch or otherwise," or without "a specific purpose for such visit."

¶ 8. On appeal, Harden argues that the chancellor misapplied the "tender years doctrine" and erred in applying most of the Albright factors. Harden also argues that the chancellor erred in setting child support because the chancellor failed to account for Harden's resignation as football coach and anticipated loss of income. Finally, Harden argues that the chancellor abused his discretion by enjoining both parties from posting pictures of Rhett on social media and by limiting visits to Rhett's school or daycare. Scarborough did not file a cross-appeal, but in her brief on appeal she asserts that the chancellor erred by ordering that Rhett's last name should be changed to Harden on his birth certificate and other records. She also asserts that Harden's appeal is frivolous and requests an award of attorney's fees. Additional facts are discussed below as relevant and necessary.

ANALYSIS

I. Child Custody

¶ 9. "A chancellor's custody decision will be reversed only if it was manifestly wrong or clearly erroneous, or if the chancellor applied an erroneous legal standard." Smith v. Smith , 97 So.3d 43, 46 (¶ 7) (Miss. 2012). "[T]his Court cannot reweigh the evidence and must defer to the chancellor's findings of the facts, so long as they are supported by substantial evidence." Hall v. Hall , 134 So.3d 822, 828 (¶ 21) (Miss. Ct. App. 2014). Thus, on appeal in a child custody case, the issue is not whether this Court "agrees with the chancellor's ruling," but only whether "the chancellor's ruling is supported by credible evidence." Hammers v. Hammers , 890 So.2d 944, 950 (¶ 14) (Miss. Ct. App. 2004).

¶ 10. "[T]he polestar consideration in child custody cases is the best interest and welfare of the child." Albright , 437 So.2d at 1005. In evaluating the child's best interest, the chancellor must consider the following factors: (1) age, health, and sex of the child; (2) which parent had "continuity of care prior to the separation"; (3) "which has the best parenting skills"; (4) which has "the willingness and capacity to provide primary child care"; (5) both parents' employment responsibilities; (6) "physical and mental health and age of the parents"; (7) "emotional ties of parent and child"; (8) "moral fitness of the parents"; (9) "the home, school and community records of the child"; (10) the child's preference, if the child is at least twelve years old; (11) the stability of the home environment and employment of each parent; and (12) any "other factors relevant to the parent-child relationship" or the child's best interest. Id.

¶ 11. The chancellor must address each Albright factor that is applicable to the case. See Powell v. Ayars , 792 So.2d 240, 244 (¶ 10) (Miss. 2001). However, the chancellor need not decide that each factor favors one parent or the other. See Weeks v. Weeks , 989 So.2d 408, 411 (¶ 12) (Miss. Ct. App. 2008). Nor does Albright require that "custody must be awarded to the parent who 'wins' the most factors." Blakely v. Blakely , 88 So.3d 798, 803 (¶ 17) (Miss. Ct. App. 2012). "The point of Albright is to identify the custody arrangement that would be in the child's best interest-not to determine what is in either parent's best interest or which parent is the better person." Vassar v. Vassar , 228 So.3d 367, 375 (¶ 26) (Miss. Ct. App. 2017) (citing Reno v. Reno , 253 Miss. 465, 475, 176 So.2d 58, 62 (1965) ); Hollon v. Hollon , 784 So.2d 943, 947 (¶ 12) (Miss. 2001). "[T]he chancellor has the ultimate discretion to weigh the evidence the way he sees fit." Johnson v. Gray , 859 So.2d 1006, 1013-14 (¶ 36) (Miss. 2003). We review the chancellor's application of the factors for manifest error, giving deference to the weight that he assigned each factor.

Smith v. Smith , 206 So.3d 502, 513 (¶ 24) (Miss. 2016).

¶ 12. Harden claims that the chancellor erred in two ways when he awarded physical custody of Rhett to Scarborough. First, Harden claims that the chancellor misapplied the "tender years doctrine" by requiring him to prove that Scarborough was an unfit parent. Second, Harden argues that the chancellor's specific findings and ultimate decision under Albright lack support in the evidence.

¶ 13. We begin by addressing Harden's "tender years" argument. Prior to the 1980s, our Supreme Court "held that if the mother of a child of tender years ... is ... fit, then she should have custody." Law v. Page , 618 So.2d 96, 101 (Miss. 1993). However, "over the years, the tender-years doctrine has been diminished and is now only a presumption." Smith v. Smith , 206 So.3d 502, 513 (¶ 26) (Miss. 2016) (citing Law ). "The doctrine is 'even less binding when the child is male.' " Id. (quoting Law ). Today, "age is only one of several factors to be considered" under Albright . Id. (quoting Mercier v. Mercier , 717 So.2d 304, 317 (¶ 14) (Miss. 1998) ); Deborah H. Bell, Mississippi Family Law § 12.01[4][a] (2d ed. 2011) (stating that Mississippi has "abandoned the maternal preference" and that a child's age is only one of several factors considered in a custody decision).

¶ 14. The chancellor's ruling in this case was consistent with the law as it currently stands. The final judgment states in relevant part:

While there is a preference for putting children of "tender years" with the mother as opposed to the father, in the event that the father has demonstrated that he is able to handle the young child as well as mother, then that difference does not exist. There was a good bit of testimony with regard to that .... [T]he Court does not find that it is a major factor in this case. This factor is neutral.

This finding was also consistent with the chancellor's statements during his bench ruling. Harden points to comments that the chancellor made prior to trial , which seemed to reflect an outdated view of the tender years doctrine. However, Harden's attorney provided the court with case law on this issue, the chancellor corrected himself, and his bench ruling and the final judgment correctly applied the law. Thus, Harden's argument is without merit.

¶ 15. We next address the chancellor's application of the Albright factors and Harden's criticisms of the same. The chancellor found that continuity of care, willingness and capacity to provide primary care, and "other factors relevant to the parent-child relationship" favored Scarborough, while all other factors were neutral or inapplicable. Harden argues that the three factors found to favor Scarborough actually favored him or were at least neutral. Harden also argues that his employment responsibilities favor him and that he has better parenting skills and superior morals. We address these arguments in turn.

¶ 16. Continuity of care. The chancellor found that "[t]he continuity of care prior to separation was with both parents," and although Harden "did more than many fathers, and probably most fathers, overall [Scarborough] did more of the hands-on care of the child." Therefore, the chancellor found that this factor favored Scarborough, although only slightly. We find no manifest error or abuse of discretion in this respect. This issue basically turned on the parties' conflicting testimony as to who provided care to Rhett on a more regular basis prior to their separation. The chancellor, as the finder of fact, was entitled to credit Scarborough's testimony. See, e.g. , McNeese v. McNeese , 119 So.3d 264, 275 (¶ 32) (Miss. 2013) ; Powell , 792 So.2d at 243 (¶ 6).

¶ 17. Willingness and capacity to provide primary childcare. The chancellor found that "[b]oth parties have a willingness and capacity to provide care for ... Rhett," but he found that the factor fell "more into [Scarborough's] ability." Harden argues that this was error because he proved that he was willing and able to care for Rhett and even resigned as head football coach to spend more time with Rhett. However, this issue also turned primarily on the parties' conflicting testimony. In addition, the chancellor noted that Scarborough had "already raised, with the help of her mother," a daughter from a prior relationship. Scarborough's daughter, Chandler, was seventeen years old at the time of trial, and the chancellor found that she was "a delightful person" and "an example of the way you would like to find a child to be." There is no basis for this Court to say that the chancellor manifestly erred or abused his discretion in resolving the parties' conflicting testimony. Moreover, the chancellor specifically found that Harden was willing and capable of providing care-he only found that this factor favored Scarborough to some degree.

¶ 18. Parenting skills . Harden argues that he has better parenting skills, and he criticizes the chancellor for failing to address this factor specifically. While the chancellor did not expressly state that this factor favored either parent or use the phrase "parenting skills," it is apparent that he considered the parties' parenting skills in connection with his consideration of the two factors discussed just above. It was up to the chancellor, as the finder of fact, to weigh and consider the conflicting evidence, and we cannot say that he manifestly erred or abused his discretion. See Dobson v. Dobson , 179 So.3d 27, 31 (¶¶ 14-15) (Miss. Ct. App. 2015) (holding that the chancellor's omission of a specific finding as to which party had better parenting skills was insignificant because the chancellor clearly considered the relevant facts).

¶ 19. Employment and employment responsibilities of the parents. The chancellor found that this factor was neutral and that neither party's employment had interfered with his or her parental responsibilities. Harden argues that the chancellor erred because his job as a teacher and coach affords him more time and greater flexibility than Scarborough's job as a nurse. Scarborough testified that she works thirty to sixty hours a week at Garden Park Medical Center; that she ordinarily works from 8:30 a.m. to 5:00 p.m., although her schedule sometimes varies; and that her parents and her daughter are available to provide childcare if she has to work late. The evidence did not show that Scarborough's employment had interfered with her duties as Rhett's mother. Harden emphasizes that he does not have to work during the summer, and the chancellor took this into account by awarding Harden extensive summer visitation that far exceeds Scarborough's periods of custody in those months. However, given the lack of evidence that Scarborough's job as a nurse has ever interfered with her ability to parent, we cannot say that the chancellor manifestly erred or abused his discretion in finding this factor neutral.

¶ 20. Moral fitness. The chancellor stated that moral fitness is "probably one of the most difficult things for a judge to determine," and he found this factor to be neutral. He found that "both of the parties are basically good people" who need to make "behavioral changes" in some areas. Harden argues that this was error because his morals are superior to Scarborough's. Harden relies on his own testimony that Scarborough, among other things, smoked while she was pregnant, smoked in Rhett's presence, and twice discussed the possibility of having an abortion-once when she first learned that she was pregnant and a second time when they argued and she was "upset." However, Scarborough denied that she ever smoked during her pregnancy or in Rhett's presence, and the specifics of any discussion of an abortion are unclear. Harden also emphasizes that Scarborough interfered with his relationship with Rhett and denied him visitation for about forty days after she moved out of his house. Scarborough testified that she withheld visitation on the advice of her attorney because no court order was in place. In any event, the chancellor considered this issue and specifically criticized Scarborough for interfering with Harden's relationship with Rhett. Thus, the chancellor considered the relevant facts and evidence, and we cannot say that he clearly erred or abused his discretion by finding this factor to be neutral.

¶ 21. Stability of the home environment and employment of each parent. The chancellor found this factor to be neutral. Harden argues that this factor favors him because he continues to own the three-bedroom home where Rhett lived until he was almost eight months old. Scarborough lives in a three-bedroom apartment, she and Rhett have lived in the same apartment complex since she moved out of Harden's house, she has worked at the same hospital since Rhett was born, and she previously worked at another hospital for eight years before Rhett's birth. Based on the evidence presented at trial, we cannot say that the chancellor manifestly erred by finding that Scarborough had a stable home environment and stable employment or by finding that this Albright factor was neutral.

¶ 22. Any other factors relevant to the parent-child relationship. The chancellor found that certain other factors favored Scarborough to at least some degree. He found that Rhett had developed "a strong bond" with his half-sister, Chandler, and that Scarborough's mother "was a big help" in caring for Rhett. The chancellor also found that Harden's family harbored "a very strong dislike" toward Scarborough, which was "not likely to change very much." Accordingly, the chancellor concluded that it would be "be far easier for [the parties] to co-parent Rhett" if Scarborough had physical custody.

¶ 23. On appeal, Harden argues that there is no evidence of a significant "bond" between Chandler and Rhett, that Chandler will leave for college soon anyway, and that the animosity between Scarborough and his family is Scarborough's fault. Harden also argues that the chancellor should have considered different issues under this factor. He asserts that the chancellor should have given more weight to Scarborough's interference with his visitation and relationship with Rhett. He also contends that the chancellor should have considered that Chandler stayed with her maternal grandparents for significant periods of time, rather than with Scarborough. The evidence on these issues was conflicting and open to different interpretations. We cannot say that the chancellor considered any improper factor or that he abused his discretion or clearly erred in weighing the evidence presented.

¶ 24. "Determining custody of a child is not an exact science." Lee v. Lee , 798 So.2d 1284, 1288 (¶ 15) (Miss. 2001). It "is one of the most difficult decisions that courts must make." Brewer v. Brewer , 919 So.2d 135, 141 (¶ 21) (Miss. Ct. App. 2005). The chancellor clearly found both Scarborough and Harden to be fit parents or else he would not have awarded Harden such extensive visitation. In determining custody, he applied and weighed the Albright factors and made appropriate findings of fact with support in the evidence. "It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact." Johnson v. Black , 469 So.2d 88, 90 (Miss. 1985). In addition, this Court will not "second guess" the chancellor's custody decision absent some legal or manifest error. Irle v. Foster , 176 So.3d 25, 31 (¶ 26) (Miss. Ct. App. 2013), aff'd , 175 So.3d 1232 (Miss. 2015). Therefore, we affirm.

II. Child Support

¶ 25. The statutory "child support award guidelines shall be a rebuttable presumption in all ... proceedings regarding the awarding or modifying of child support awards in this state" and shall "apply unless the [judge] makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate." Miss. Code Ann. § 43-19-101(1) - (2) (Rev. 2015). As relevant in this case, the guidelines establish a rebuttable presumption that support for one child should equal fourteen percent of the payor's adjusted gross income. Id.

¶ 26. Harden submitted a financial statement showing gross income of $6,122.08 per month with deductions for state income taxes ($254), federal income taxes ($984.08), Social Security ($377.03), insurance ($88.18), and retirement (PERS) ($550.99), resulting in adjusted gross income of $3,867.80 per month. At the temporary hearing, the chancellor followed the statutory guidelines and set support at fourteen percent of Harden's adjusted gross income, i.e., $541.50 per month. After trial, the chancellor ruled that Harden's support obligation would remain at that amount. "An award of child support is a matter within the discretion of the chancellor and we will not reverse that determination unless the chancellor was manifestly wrong in his finding of fact or manifestly abused his discretion." Porter v. Porter , 23 So.3d 438, 449 (¶ 7) (Miss. 2009) (quoting Dufour v. Dufour , 631 So.2d 192, 194 (Miss. 1994) ). "[C]learly there was no abuse of discretion, as the chancellor found the required support equal to the amount that is presumptively correct under the child-support guidelines." Mosher v. Mosher , 192 So.3d 1118, 1126 (¶ 38) (Miss. Ct. App. 2016).

¶ 27. On appeal, Harden argues that the chancellor improperly "imputed income" to him by not taking into account the loss of income that Harden anticipated due to his resignation as head football coach. At trial in March 2016, Harden introduced the same financial declaration, described above, showing gross income of $6,122.08 per month and adjusted gross income of $3,867.80 per month. He then testified that he anticipated that his pay would be reduced "at the end of August of 2016." He further testified:

Q. Okay. Do you have an inclination how much it would be reduced?
How much your-whether it's by year, paycheck or what have you?
A. By year, probably between 14 to 18,000.

On cross-examination, Harden explained that he gave an estimate of $14,000 to $18,000 because he was still considering resigning as the powerlifting coach, which would result in a loss of income of $4,500 per year.

¶ 28. We disagree with the basic premise of Harden's argument-that the chancellor "imputed income" to him. The chancellor simply applied the statutory support guidelines to the adjusted gross income shown on Harden's own financial declaration. The chancellor was not required to predict and calculate a future adjusted gross income based only on Harden's estimate of how much his annual income would "probably" decrease five months in the future. Obviously, the chancellor could not just divide Harden's $14,000 estimate by twelve and then subtract that amount from Harden's monthly adjusted gross income at the time of trial. The decrease in gross income that Harden predicted would also result in decreases to his itemized deductions for taxes and PERS. However, Harden has never calculated or articulated-either at trial or on appeal-what figure he thinks the chancellor should have used for his adjusted gross income. Accordingly, for purposes of this appeal, it is unnecessary for us to say whether Harden's voluntary resignation as football coach would be a basis for imputing income to him. We simply hold that the chancellor did not abuse his discretion by setting child support based on the statutory guidelines and Harden's admitted adjusted gross income at the time of trial.

III. Scarborough's Testimony About Her Former Attorney's Advice

¶ 29. At trial, Scarborough testified that she did not allow Harden to have visitation with Rhett for about forty days after she moved out of his house because there was no court order in place and she was afraid that Harden might not return Rhett to her. Scarborough also testified that her former attorney, who died prior to trial, told her that he could "not guarantee that [Harden] would bring [Rhett] back to [her]" and "suggested that until [they] went to court and got some paperwork," she should not permit visitation. Harden objected to this testimony as hearsay, but the chancellor overruled the objection, stating that Scarborough was only "giving the reason why she did what she did." The chancellor later commented that he believed Scarborough's testimony on this point, and he had "known [the deceased attorney] quite well and ha[d] to clean up a lot of cases that he was involved in." Harden argues that the chancellor erred by admitting and considering the testimony and by taking into account his prior experiences with the deceased attorney.

¶ 30. The standard of review for decisions involving the admission or exclusion of evidence is abuse of discretion. Owens v. Kelly , 191 So.3d 738, 741 (¶ 12) (Miss. Ct. App. 2015). In addition, "[f]or a case to be reversed based on the admission or exclusion of evidence, a party must be actually prejudiced, harmed, or have a substantial right adversely affected." Ill. Cent. R.R. v. Brent , 133 So.3d 760, 779 (¶ 42) (Miss. 2013).

¶ 31. Hearsay is an out-of-court statement that is offered "to prove the truth of the matter asserted in the statement." M.R.E. 801(c). Conversely, "[a] statement that is not offered to prove the truth of the matter asserted is not hearsay." Baldwin v. State , 784 So.2d 148, 159 (¶ 40) (Miss. 2001). Thus, an out-of-court statement that is offered only-as the chancellor put it-to explain "why [the witness ] did what she did" is not hearsay. See Thomas v. State , 195 So.3d 843, 847-48 (¶ 11) (Miss. Ct. App. 2016) (holding that a law enforcement officer's testimony about what an informant told him was admissible to explain the basis for the officer's investigation); Fullilove v. State , 101 So.3d 669, 675 (¶ 20) (Miss. Ct. App. 2012) ("Statements do not constitute hearsay when admitted to explain an officer's course of investigation or motivation for the next investigatory step by that officer."). Accordingly, other courts have held that testimony about an attorney's advice is not hearsay if it is offered to explain why the witness did what she did-i.e., as "circumstantial evidence of [the witness's] state of mind"-and not "to prove the truth of the matter asserted." States v. Scully , 877 F.3d 464, 474 (2d Cir. 2017). Moreover, a party "is competent to testify to the advice he received from counsel, even if his testimony is one-sided and self-serving." Id. at 475. Whether the testimony is credible is an issue for the fact-finder. Id.

¶ 32. In this case, Scarborough's testimony about her former attorney's advice obviously was not offered to prove the truth of the matter asserted. That is, her testimony was not offered as evidence that Harden might have absconded with Rhett or that Harden could not have been required to return Rhett without a court order. Rather, it was offered as evidence of Scarborough's "state of mind" and why she withheld visitation from Harden after she moved out of his house. Therefore, we find no abuse of discretion in the chancellor's ruling overruling Harden's objection.

¶ 33. Nor is reversal required because of the chancellor's remark about his prior experience with the deceased attorney. This comment was not part of the chancellor's ruling, and there is nothing to indicate that the chancellor's prior experiences played a role in his custody decision in this case. Accordingly, any error was harmless. Cf. Inge v. Inge , 227 So.3d 1185, 1190 (¶ 17) (Miss. Ct. App. 2017) (holding that an erroneous finding of fact was harmless because there was "no indication that the issue impacted [the chancellor's] ultimate decision"); Hill v. Johnson , 27 So.3d 426, 430 n.2 (Miss. Ct. App. 2009) (holding that erroneous findings of fact were "harmless error as they ha[d] no bearing on the ultimate disposition of the case").

IV. Limitations on Social Media and Visits to Rhett's Daycare and School

¶ 34. Harden also argues that the chancery court abused its discretion by enjoining the parties as follows:

Neither party shall post any photographs of the minor child on Facebook or any other social media, nor will they allow any person within the sphere of his or her influence to do so. Any actions of a third party shall be deemed to be the actions of the parents for the purposes of contempt.
....
Both parties agree that both parents shall be notified in advance and encouraged to participate in all school, recreational, extracurricular, and other activities of the child. Neither party shall routinely visit at any daycare or school, for lunch or otherwise, but both are welcome to participate in all parties, special events, or special occasions at the school or daycare and shall visit only if said parent has a specific purpose for such visit.

¶ 35. On this point, we agree with Harden. There is no evidence that either party or their families shared inappropriate photos of Rhett on Facebook or other social media. Nor is there any evidence that either party visited Rhett's daycare in a way that was disruptive or inappropriate. Finally, there is no evidence that Rhett was ever harmed or threatened with harm because either of his parents shared his photos on social media or visited his daycare. At most, there is some indication that these issues were a source of discord between Harden and Scarborough. However, "[i]n the absence of conduct harmful to children, ... a court cannot dictate what would normally be parental decisions about a child's health, education, and welfare." Deborah H. Bell, Mississippi Family Law § 12.05 at 368 (2d ed. 2011); cf. Cox v. Moulds , 490 So.2d 866, 868 (Miss. 1986) ("something approaching actual danger or other substantial detriment to the children-as distinguished from personal inconvenience or possible offense to middle class sensibilities-is required before a chancellor may restrict visitation"); Mord v. Peters , 571 So.2d 981, 983-86 (Miss. 1990) (similar). As to social media, Scarborough and Harden will just have to get along. As to visits to Rhett's daycare or school, they should follow the policy that the daycare or school sets for all parents. We reverse and render as to these provisions of the chancery court's final judgment.

V. Issues Raised in Scarborough's Brief

¶ 36. In Scarborough's brief on appeal, she argues that the chancellor erred by ordering the parties to change Rhett's surname to Harden on his birth certificate. We first note that this contradicts Scarborough testimony at trial. In response to questions from her own attorney, Scarborough specifically testified that she had no objection to a court order requiring that Rhett's name be changed to Harden. More important, Scarborough did not file a cross-appeal. "In order for the appellee to gain reversal of any part of the decision of a trial court about which the appellant brings no complaint, the appellee is required to file a cross-appeal." Watkins Dev. LLC v. Hosemann , 214 So.3d 1050, 1053 (¶ 13) (Miss. 2017) (quotation marks, alteration omitted). Therefore, we will not address this issue. Id.

¶ 37. Scarborough also argues that she is entitled to damages and attorney's fees under Mississippi Rule of Appellate Procedure 38 because Harden's appeal is frivolous. See M.R.A.P. 38 ("In a civil case if the Supreme Court or Court of Appeals shall determine that an appeal is frivolous, it shall award just damages and single or double costs to the appellee."). "[A]n appeal is frivolous under Rule 38 where the appellant has no hope of success." Harris v. Harris , 988 So.2d 376, 380 (¶ 16) (Miss. 2008). Harden's appeal was not frivolous. Therefore, Scarborough's request is denied.

CONCLUSION

¶ 38. We affirm the judgment of the chancery court except to reverse, render, and strike the above-quoted provisions limiting parental visits to Rhett's daycare or school and enjoining the parties from sharing photos of Rhett on social media. We deny Scarborough's request for damages and attorney's fees on appeal.

¶ 39. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

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

      See Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983).

      In 2000, the Legislature amended Mississippi Code Annotated section 93-5-24 to provide specifically that there "shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody." Miss. Code Ann. § 93-5-24(7) (Rev. 2013); see 2000 Miss. Laws ch. 453. Nonetheless, as recently as Smith (2016), the Mississippi Supreme Court has continued to discuss a tender years "presumption."

      Scarborough acknowledged that at times in the past Chandler stayed with her maternal grandparents "as much as she stayed with [Scarborough]" because Scarborough was working "at least ... three to four night shifts a week."


author: PER CURIAM. MURDOCK, Justice (dissenting). BRYAN, Justice (dissenting).

text:
    EX PARTE Zachary Blake WALDEN
    (In re: Zachary Blake Walden v. State of Alabama)
    1160233
    Supreme Court of Alabama.
    June 30, 2017
   PER CURIAM.

WRIT QUASHED. NO OPINION.

Stuart, C.J., and Bolin, Parker, Main, Wise, and Sellers, JJ., concur.

Murdock, Shaw, and Bryan, JJ., dissent.

MURDOCK, Justice (dissenting).

I respectfully dissent, and I join Justice Bryan's dissent.

To be admissible under Rule 404(b), Ala. R. Evid., evidence of a prior bad act must go to one of the issues prescribed in the second sentence of that rule, i.e., "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." But that alone is not enough. The prescribed Rule 404(b) issue to which the prior-acts evidence is relevant must actually be "at issue" in the present case. As Justice Bryan notes in his dissent, the fact of the prior bad act must be "probative... to some issue in the present case." 241 So.3d at 5. As to the so-called knowledge exception, one well known treatise puts it this way:

"There is ... a danger that the supposed inferences to knowledge will be obscured by the forbidden inference to propensity, particularly in cases in which the theory of knowledge is the probability that the defendant would have obtained knowledge in the course of repetitive involvement in criminal conduct. For this reason, it is important that there be a genuine issue of knowledge where introduction of other crimes evidence is sought on this theory."

22B Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure, Evidence § 5245 (2014) (emphasis added). Compare United States v. Garcia-Rosa, 876 F.2d 209, 221 (1st Cir. 1989) ("The defendant never put his knowledge of drugs at issue; admission of this evidence cannot be justified to rebut an issue that the defendant did not raise."), with United States v. Ramirez, 894 F.2d 565, 568-69 (2d Cir. 1990) ("When the defendant disavows awareness that a crime was being perpetrated, and the government bears the burden of proving the defendant's knowing possession as an element of the crime, knowledge is properly put in issue. On notice of the government's intention to offer the similar act evidence, Ramirez during direct examination denied any knowledge about the contraband concealed within the package. Ramirez's disclaimer, counterposed against the government's burden, put knowledge in issue; consequently, the district court allowed the evidence of his involvement in an attempted cocaine transaction for a proper purpose." (citations omitted)), and United States v. Rubio-Estrada, 857 F.2d 845, 847 (1st Cir. 1988) (admitting evidence of prior conviction because, "[d]uring, and just after, the government's presentation of its case, defendant's counsel, through cross-examination and comment, made clear that a major part of the defense would consist of a claim that the defendant lacked knowledge of the presence of cocaine or intent to commit the crime (which makes it unlawful to `possess [cocaine] with intent to distribute...' 21 U.S.C. § 841(a)(2) (1982))"). See also, e.g., United States v. Neary, 733 F.2d 210, 217 (2d Cir. 1984) (noting that knowledge exception will not justify admission of prior-acts evidence where the matter at issue is one "of common knowledge").

Here, as Justice Bryan points out, no evidence was introduced that the prior conviction involved marijuana. But even if it had, the only plausible reason for the introduction of evidence of Zachary Blake Walden's previous conviction would be to show that he knew what marijuana smelled like (because the police officer said that the smell of marijuana was emanating from the cooler that had been inside the car). But there is no issue in this case as to whether the defendant knew how marijuana smelled; the prior conviction had no probative value as to any actual issue in this case.

This case is indistinguishable, in my view, from Turner v. State, 929 So.2d 1041 (Ala. Crim. App. 2005).

BRYAN, Justice (dissenting).

I respectfully dissent.

This case arises from Zachary Blake Walden's convictions for unlawful possession of marijuana in the first degree and unlawful possession of drug paraphernalia. The facts were summarized in the Court of Criminal Appeals' opinion:

"On March 8, 2011, Elba Police Officer Alva Carlson received a complaint about a `reckless driver coming down [Highway] 29 from Andalusia towards Gantt; the report indicated that the driver was a black male and that he was driving a blue vehicle with a `helping schools' tag. Officer Carlson drove in that direction and saw a vehicle matching the description parked at a house on Deer Run Road. Officer Carlson pulled up behind the vehicle and noticed Walden sitting in the front passenger seat. Walden exited the vehicle and asked Officer Carlson if there was a problem. Walden then closed the passenger door, despite Officer Carlson's demands to leave it open. After Walden closed the door, the driver of the vehicle began to drive away without Walden. Officer Carlson ordered Walden to sit down and wait while he followed and stopped the vehicle.
"Officer Carlson yelled at the driver to stop several times and followed the vehicle onto a dirt road. As Officer Carlson followed the vehicle, he saw the driver throw a red cooler out the passenger side window. Officer Carlson turned on his lights and siren and noted that the `driver mashed the gas and refused to stop.' After a brief pursuit, the driver stopped the vehicle and fled the area on foot; he was subsequently apprehended with the assistance of another officer.
"After arresting the driver, officers retrieved the red cooler and discovered a large bag of what was later determined to be marijuana inside. Officer Greg Jackson with the 22nd Judicial Circuit Drug Task Force testified that he was able to smell marijuana coming from the cooler before opening it.[] The names `Walden' and `Jimmy Kirkland' were written on the outside of the cooler along with some other numbers. Officers later searched the vehicle and discovered a coffee can containing several bags of marijuana on the passenger-side floorboard.
"Officer Carlson transported the driver to the Covington County jail and then returned to the house on Deer Run Road. When Officer Carlson asked to speak to Walden, a woman who identified herself as Walden's mother informed him that Walden was not there anymore. Walden was later arrested.
"Before the State rested, it informed the circuit court that it intended to introduce evidence of two convictions - a 2009 conviction for first-degree possession of marijuana in Dale County and a 2009 conviction for the unlawful distribution of a controlled substance (marijuana) in Covington County - under Rule 404(b), Ala. R. Evid., in order to show that Walden had the intent to possess the marijuana seized in this case. Defense counsel objected to the introduction of the convictions. After a discussion with the attorneys and over Walden's objection, the circuit court ruled that the State could introduce evidence of Walden's conviction for the unlawful distribution of a controlled substance for the purpose of showing `intent and knowledge as part of that constructive possession charge.' The circuit court sustained Walden's objection to the introduction of his conviction for possession of marijuana in the first degree. The State then offered a certified copy of Walden's 2009 conviction for the unlawful distribution of a controlled substance and the warrant affidavit regarding that conviction.[]
"Later, the circuit court charged the jury and stated: `I charge you, ladies and gentlemen of the jury, that evidence of other crimes, wrongs, or acts is admissible to prove the defendant's intent and knowledge at the time of the alleged offense.'
"After both sides rested and the circuit court instructed the jury on the applicable principles of law, the jury found Walden guilty of unlawful possession of marijuana in the first degree and unlawful possession of drug paraphernalia."

Walden v. State, 241 So.3d 8, 9-10 (Ala. Crim. App. 2016) (record citations omitted). Walden appealed to the Court of Criminal Appeals, arguing that the circuit court erred by admitting evidence of his prior conviction for unlawful distribution of a controlled substance. A majority of the Court of Criminal Appeals disagreed and affirmed the circuit court's judgment. Judge Welch dissented, concluding that evidence of Walden's prior conviction should have been excluded and that the case presented "a textbook example" of why Rule 404(b), Ala. R. Evid., exists. 241 So.3d at 11 (Welch, J., dissenting). Walden then petitioned this Court for a writ of certiorari, and we granted that petition.

The issue in this case is whether, under Rule 404(b), the circuit court properly admitted evidence of Walden's prior conviction for unlawful distribution of a controlled substance. More specifically, the issue is whether, under Rule 404(b), that evidence was properly admitted to show that Walden knew that there was marijuana in the vehicle and that he intended to possess the marijuana. Whether Walden had knowledge of the marijuana and whether he intended to possess it were central to the State's theory that Walden constructively possessed the marijuana. In reviewing a circuit court's decision on the admissibility of evidence, this Court will reverse a judgment only upon a clear showing that the circuit court exceeded its discretion. Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000).

Rule 404(b) prevents the State from relying on a defendant's past acts to prove the defendant's present guilt. Rule 404(b) provides, in pertinent part:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...."

Evidence of a prior conviction, therefore, is admissible only to show something besides the character of the defendant in order to show action in conformity therewith - such as knowledge or intent. But for evidence of a prior conviction to be admissible to show knowledge or intent, that conviction must have a probative factual connection to the present case.

Ex parte Casey, 889 So.2d 615 (Ala. 2004), is illustrative. The Court first discussed the rationale for the exclusionary rule found in Rule 404(b):

"Long before the adoption and effective date of Rule 404(b) on January 1, 1996, the exclusionary rule was explained and followed in our caselaw. The adoption of Rule 404(b) did not abrogate our prior caselaw on the exclusionary rule. Hunter v. State, 802 So.2d 265 (Ala. Crim. App. 2000). Our caselaw explains the purpose of the exclusionary rule:
"`The general rule is that in criminal prosecutions, evidence of prior criminal acts is not admissible since the only facts to be laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, and which alone the defendant is called on to answer.
"`This rule, however, is subject to some well recognized exceptions. Evidence of other distinct criminal acts is admissible when relevant to the crime charged, as bearing on scienter, intent, motive, res gestae, or to establish the identity of the accused.... The authorities also recognize such an exception to show system or plan usually to identify the accused or to show intent. But even under the exceptions noted they or one of them is admissible only when the evidence is relevant to the crime charged.'"

889 So.2d at 617-18 (quoting Garner v. State, 269 Ala. 531, 533, 114 So.2d 385, 386 (1959)(emphasis added in Ex parte Casey)).

In Ex parte Casey, this Court held that the defendant's prior convictions for theft of property and unauthorized use of a credit card were inadmissible to prove either that he had knowledge of the presence of stolen items found in his girlfriend's apartment and car or that he intended to exercise control over those items. The Court stated:

"The record, which contains none of the factual specifics of the defendant's prior convictions, discloses no logical connection between his prior theft or his prior unauthorized use of a credit card and his knowledge of the presence, ownership, or stolen character of any of the items he was being tried for receiving in the case now before us. That is, the defendant's mere knowledge that the property he previously had been convicted of stealing or the credit card he had previously been convicted of using without authority belonged to some other persons would not, in the absence of some evidence of connecting facts, supply the defendant with knowledge of the presence, ownership, or stolen character of items found five years later in his girlfriend's apartment and car and would not enable him to differentiate between items there which were stolen and items there which were not stolen. In other words, the record reveals no identity or connection between what the defendant knew or learned in his prior crimes and what he knew or learned about the items in his girlfriend's apartment or car."

889 So.2d at 621. Notably, the Court in Ex parte Casey distinguished the facts in that case from those in Karr v. State, 491 So.2d 1073 (Ala. Crim. App. 1986), in which a defendant's prior receiving-stolen-property conviction was held to be admissible to prove scienter in a subsequent receiving-stolen-property case involving the same parties. Further, the Court distinguished Karr from Stephens v. State, 53 Ala.App. 371, 300 So.2d 414 (1974), in which a defendant's prior receiving-stolen-property conviction was inadmissible to show scienter because the then present charge against him involved different parties.

Turner v. State, 929 So.2d 1041 (Ala. Crim. App. 2005), is also illustrative. In that case, the defendant was on trial for possession of cocaine. As in the present case, the State argued that the defendant had constructively possessed the drug. There was evidence indicating that the defendant had driven a passenger to retrieve a bag of cocaine the passenger had earlier discarded while the two were fleeing from police. The trial court admitted evidence of the defendant's prior conviction for possession of cocaine. In the prior case, the defendant swallowed $200 worth of cocaine because he was afraid of being caught by the police with cocaine. The Court of Criminal Appeals concluded that the trial court erred in admitting the evidence of the prior conviction:

"The record discloses no logical connection between Turner's prior conviction and the present charge. That is, the defendant's prior conviction for possession of cocaine would not, in the absence of some connecting facts, supply the defendant with the knowledge of the presence of cocaine in his vehicle, the subject of the instant offense. Except for the tendency, condemned by Rule 404(b), `to show action in conformity therewith,' the record before us discloses no logical connection between the defendant's obvious knowledge of cocaine generally, as evidenced by his prior conviction, and his knowledge of the presence of cocaine in his vehicle, or his intent to possess that cocaine, which were the primary issues in the present case."

Turner, 929 So.2d at 1045.

Thus, for evidence of a prior conviction to be admissible under Rule 404(b), the conviction must have a probative factual connection to some issue in the present case. Such a connection was not established here.

The State contends that the circuit court properly admitted evidence of Walden's prior conviction to show knowledge of the presence of marijuana in the vehicle and the intent to possess it. Regarding knowledge, the Court of Criminal Appeals concluded that the prior conviction "showed that Walden was familiar with the smell of marijuana and that he had knowledge that there was marijuana inside of the cooler and coffee can when he sat in the passenger seat of the vehicle." 241 So.3d at 10. That determination seems to be based on an implicit conclusion based, in turn, on Officer Jackson's testimony. Officer Jackson testified that, when Officer Carlson handed him the cooler, which had been in some unspecified place in the vehicle before the driver threw it from the vehicle while fleeing, he could smell the packaged marijuana in the cooler before opening it. The implicit conclusion is that, based on Officer Jackson's testimony, there was evidence indicating that the smell of marijuana was present in the vehicle when Walden had been sitting in the parked vehicle. Thus, the reasoning goes, Walden's prior conviction is relevant to show that he recognized the smell of marijuana in the vehicle and, therefore, that he knew that it was there.

In my opinion, the admissibility of the prior-conviction evidence comes down to this key point: The only evidence of Walden's prior conviction actually submitted to the jury was the case-action summary stating that Walden had been convicted of unlawful possession of a controlled substance, but that case-action summary did not specify the identity of the controlled substance. The simple fact that Walden was convicted of possessing an unspecified controlled substance does not establish any factual connection relevant to whether he knew there was marijuana in containers in the vehicle. I reach the same conclusion regarding whether evidence of the prior conviction established the necessary factual connection relevant to Walden's intent to possess the marijuana. The Court of Criminal Appeals did not specifically discuss the intent exception in its analysis, as it did the knowledge exception. The mere fact of Walden's prior conviction is not relevant to whether he knew about the presence of the marijuana in the vehicle or whether he intended to possess it. The evidence before the jury contained no connecting facts making Walden's prior conviction relevant to the issues of Walden's knowledge and intent. Therefore, the circuit court erred by admitting the evidence of Walden's prior conviction.

Further, the admission of the evidence was prejudicial. The jury heard evidence that could only be used to draw the improper inference that, because Walden had previously committed a crime, he committed the crime charged in the present case. This is precisely the type of evidence Rule 404(b) is intended to keep out. Moreover, the limiting instruction given by the circuit court to the jury did not eliminate the prejudicial effect of the admission, as Judge Welch observed in his dissent below:

"The majority states that the prejudice alleged by Walden `was alleviated by the circuit court's instruction to the jury.' 241 So.3d at 11. The circuit court instructed the jury `that evidence of other crimes, wrongs, or acts is admissible to prove the defendant's intent and knowledge at the time of the alleged offense.' The instruction eliminated none of the prejudice. In Ex parte Casey, 889 So.2d 615 (Ala. 2004), the Alabama Supreme Court held that evidence of Casey's prior convictions for theft and the unauthorized use of a credit card should not have been admitted during his trial on a charge of receiving stolen property because the evidence should have been excluded under Rule 404(b). The Court further held that the evidence served only to suggest that, because Casey `had harbored the dishonest intent that constituted essential elements of his prior crimes, he must have harbored the dishonest intent that constituted essential elements of the crimes' for which he was then on trial. Id. at 621. The Alabama Supreme Court held that the error was not harmless because, the Court said, the evidence tended only to show that he probably committed the crime for which he was being tried because he had committed a similar crime previously. `The erroneous admission of the defendant's prior convictions into evidence substantially increased the likelihood that he would be convicted on at least some of the numerous counts then being tried, as he was.' Id. at 622. The Alabama Supreme Court then discussed the jury charge on the prior bad act:
"`The "limiting" instruction given by the trial court to the jury did not ameliorate the prejudicial effect of the erroneous admission of the defendant's prior convictions. Indeed, the instruction contradicted itself and exacerbated the prejudice. While the trial judge told the jurors they could not consider the prior convictions "as evidence that [the defendant] committed the now-charged crimes," the trial judge, in the same breath, told the jurors they could consider the prior convictions "as evidence of the elements of knowledge and intent" (emphasis added) of the now-charged crimes, and, thus, in legal and practical effect, that they could consider the prior convictions "as evidence that [the defendant] committed the now-charged crimes." In other words, considering the prior convictions as evidence of the elements of "the now-charged crimes" is the same as considering the prior convictions as evidence of the commission of "the now-charged crimes.'"
"Id.
"The trial court's charge in this case also allowed the jurors to consider Walden's prior conviction as evidence of the elements of knowledge and intent, both of which were necessary to prove the charges for which he was on trial. As in Ex parte Casey, the erroneous admission of Walden's prior conviction cannot be considered harmless error...."

Walden, 241 So.3d at 14-15 (Welch, J., dissenting) (record citations omitted).

Thus, the circuit court should not have admitted evidence of Walden's prior conviction, and the admission of that evidence prejudiced Walden. Therefore, I respectfully dissent.

Murdock and Shaw, JJ., concur.

      The judgment in Garcia-Rosa was vacated, on other grounds, sub nom. Rivera-Feliciano v. United States , 498 U.S. 954, 111 S.Ct. 377, 112 L.Ed.2d 391 (1990).

      Officer Carlson retrieved the discarded cooler, which he later gave to Officer Jackson. Officer Jackson testified that, as soon as Officer Carlson handed him the cooler, he could smell the marijuana in the cooler before opening it.

      The case-action summary admitted into evidence indicated that Walden previously had been convicted of unlawful distribution of a controlled substance, but it did not identify that controlled substance. The State also attempted to have admitted a warrant affidavit that specified that Walden had been convicted of distributing marijuana. The circuit court did not allow that warrant affidavit to go to the jury, but the circuit court stated that the warrant affidavit would become part of the record for the limited purpose of providing documentation for the arguments made regarding the admissibility of the prior-conviction evidence.

      I note that, even if evidence of a prior conviction falls within one of the exceptions found in Rule 404(b), the evidence still may be inadmissible. To be admissible, the probative value of the evidence must outweigh its potential prejudicial effect by being reasonably necessary to the State's case and by being plain, clear, and conclusive. Ex parte Jackson , , 1285 (Ala. 2009). However, it is unnecessary to discuss this additional hurdle in light of the analysis above.


author: PER CURIAM. WELCH, Judge, dissenting.

text:
    Zachary Blake WALDEN v. STATE of Alabama
    CR-15-0577
    Court of Criminal Appeals of Alabama.
    October 21, 2016 Rehearing Denied December 9, 2016
   PER CURIAM.

The appellant, Zachary Blake Walden, was convicted of unlawful possession of marijuana in the first degree, a violation of § 13A-12-213, Ala. Code 1975, and unlawful possession of drug paraphernalia, a violation of § 13A-12-260, Ala. Code 1975. The circuit court sentenced Walden to 97 months' imprisonment for the unlawful-possession-of-marijuana conviction and 1 year in jail for the unlawful-possession-of-drug-paraphernalia conviction. Walden was further ordered to pay $2,000 in fines, $100 to the Crime Victims Compensation Fund, $100 to the Department of Forensic Sciences, a $2,000 drug-demand-reduction fee, and court costs.

Walden does not challenge the sufficiency of the evidence on appeal. Therefore, a brief recitation of the facts is all that is necessary in this case. On March 8, 2011, Elba Police Officer Alva Carlson received a complaint about a "reckless driver coming down [Highway] 29 from Andalusia towards Gantt"; the report indicated that the driver was a black male and that he was driving a blue vehicle with a "helping schools" tag. (R. 37.) Officer Carlson drove in that direction and saw a vehicle matching the description parked at a house on Deer Run Road. Officer Carlson pulled up behind the vehicle and noticed Walden sitting in the front passenger seat. Walden exited the vehicle and asked Officer Carlson if there was a problem. Walden then closed the passenger door, despite Officer Carlson's demands to leave it open. After Walden closed the door, the driver of the vehicle began to drive away without Walden. Officer Carlson ordered Walden to sit down and wait while he followed and stopped the vehicle.

Officer Carlson yelled at the driver to stop several times and followed the vehicle onto a dirt road. As Officer Carlson followed the vehicle, he saw the driver throw a red cooler out the passenger side window. Officer Carlson turned on his lights and siren and noted that the "driver mashed the gas and refused to stop." (R. 39.) After a brief pursuit, the driver stopped the vehicle and fled the area on foot; he was subsequently apprehended with the assistance of another officer.

After arresting the driver, officers retrieved the red cooler and discovered a large bag of what was later determined to be marijuana inside. Officer Greg Jackson with the 22nd Judicial Circuit Drug Task Force testified that he was able to smell marijuana coming from the cooler before opening it. The names "Walden" and "Jimmy Kirkland" were written on the outside of the cooler along with some other numbers. (R. 44, 67.) Officers later searched the vehicle and discovered a coffee can containing several bags of marijuana on the passenger-side floorboard.

Officer Carlson transported the driver to the Covington County jail and then returned to the house on Deer Run Road. When Officer Carlson asked to speak to Walden, a woman who identified herself as Walden's mother informed him that Walden was not there anymore. Walden was later arrested.

Before the State rested, it informed the circuit court that it intended to introduce evidence of two convictions - a 2009 conviction for first-degree possession of marijuana in Dale County and a 2009 conviction for the unlawful distribution of a controlled substance (marijuana) in Covington County - under Rule 404(b), Ala. R. Evid., in order to show that Walden had the intent to possess the marijuana seized in this case. Defense counsel objected to the introduction of the convictions. After a discussion with the attorneys and over Walden's objection, the circuit court ruled that the State could introduce evidence of Walden's conviction for the unlawful distribution of a controlled substance for the purpose of showing "intent and knowledge as part of that constructive possession charge." (R. 118-19.) The circuit court sustained Walden's objection to the introduction of his conviction for possession of marijuana in the first degree. The State then offered a certified copy of Walden's 2009 conviction for the unlawful distribution of a controlled substance and the warrant affidavit regarding that conviction.

Later, the circuit court charged the jury and stated: "I charge you, ladies and gentlemen of the jury, that evidence of other crimes, wrongs, or acts is admissible to prove the defendant's intent and knowledge at the time of the alleged offense." (R. 141.)

After both sides rested and the circuit court instructed the jury on the applicable principles of law, the jury found Walden guilty of unlawful possession of marijuana in the first degree and unlawful possession of drug paraphernalia. This appeal followed.

Walden's sole contention on appeal is that the circuit court erred when it allowed evidence in violation of Rule 404(b). Specifically, Walden argues that the circuit court committed reversible error when it allowed the State to present evidence of his prior conviction for unlawful distribution of a controlled substance.

"The admission or exclusion of evidence is a matter within the sound discretion of the trial court." Taylor v. State, 808 So.2d 1148, 1191 (Ala. Crim. App. 2000), aff'd, 808 So.2d 1215 (Ala. 2001). "The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000). This is equally true with regard to the admission of collateral-act evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala. Crim. App. 1998); see also Irvin v. State, 940 So.2d 331, 344-46 (Ala. Crim. App. 2005). In a discussion of collateral-act evidence, this Court stated: "If the defendant's commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than by showing of bad character, then proof of such other act is admissible." Saffold v. State, 494 So.2d 164 (Ala. Crim. App. 1986).

Rule 404(b), Ala. R. Crim. P., provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

In the instant case, Walden's knowledge of the presence of marijuana was central to his charge and to the State's theory of constructive possession. See Poole v. State, 645 So.2d 330, 332 (Ala. Crim. App. 1994)("When relying on constructive possession, the state must show the defendant had knowledge of the presence of the drugs at the place from which they were seized."). Furthermore, Walden placed his connection and knowledge of the marijuana at issue through his cross-examination of the State's witnesses. (R. 76.) Walden's previous conviction was for the unlawful distribution of a controlled substance, specifically marijuana. This conviction showed that Walden was familiar with the smell of marijuana and that he had knowledge that there was marijuana inside of the cooler and coffee can when he sat in the passenger seat of the vehicle.

However, the fact that evidence of a prior bad act may fit into one of these exceptions will not alone justify the admission of that evidence.

"`"Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government's case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.'" Averette v. State, 469 So.2d 1371, 1374 (Ala. Crim. App. 1985), quoting United States v. Turquitt, [557 F.2d 464] at 468-69 [(5th Cir. 1977)]."

Ex parte Jackson, 33 So.3d 1279, 1285 (Ala. 2009)(quoting Robinson v. State, 528 So.2d 343, 347 (Ala. Crim. App. 1986).

Although, the evidence of Walden's previous conviction was prejudicial, it was necessary to the State's case. The certified copy of Walden's previous conviction was plain, clear, and conclusive. Therefore, the probative value of the evidence substantially outweighed any danger of unfair prejudice. See Rule 403, Ala. R. Evid. Furthermore, the alleged prejudice to Walden was alleviated by the circuit court's instruction to the jury. Accordingly, the circuit court did not err in determining that evidence of Walden's previous conviction for the unlawful distribution of a controlled substance.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

Windom, P.J., and Burke and Joiner, JJ., concur; Welch, J., dissents, with opinion; Kellum, J., not sitting.

WELCH, Judge, dissenting.

The majority affirms Zachary Walden's convictions for first-degree unlawful possession of marijuana, a violation of § 13A-12-213, Ala. Code 1975, and for unlawful possession of drug paraphernalia, a violation of § 13A-12-260, Ala. Code 1975, over Walden's argument that the trial court erred when it admitted evidence of Walden's prior conviction for the unlawful distribution of a controlled substance - marijuana - for the purpose of showing intent and knowledge as to the possession charge for which he was being tried. The evidence was inadmissible, the error in its admission was not harmless, and Walden is entitled to a reversal of his conviction.

This case presents a textbook example of the reason Rule 404(b), Ala. R. Evid., was created. Evidence of Walden's prior conviction for marijuana distribution was irrelevant to the charges of marijuana possession and possession of paraphernalia for which Walden was tried; the evidence was admitted solely to prove Walden's bad character and to show that he had acted in conformity with that bad character; and even if the evidence had any probative value - and it did not - the evidence should not have been admitted because any probative value would have been outweighed by its prejudicial effects, see Rule 403, Ala. R. Evid. Based on the evidence that was properly admitted, the State had virtually no chance of obtaining convictions because guilty verdicts would have been based on a pure speculation.

Although the trial court has substantial discretion when determining the admissibility of evidence, "[e]vidence of prior or subsequent collateral bad acts and crimes is generally inadmissible." Bailey v. State, 75 So.3d 171, 183 (Ala. Crim. App. 2011). Rule 404(b), Ala. R. Evid., provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The basis for this rule of limited admissibility is that evidence of prior crimes has almost an irremediable impact on the jurors and their deliberations. E.g., Ex parte Billups, 86 So.3d 1079, 1084 (Ala. 2010). Even if a collateral act has some relevance or probative value toward proof of an element of the charged crime, further analysis is required before that evidence is properly admitted. Rule 403, Ala. R. Evid., provides, in pertinent part, that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...."

The majority presents a brief summary of the facts because, as it correctly notes, Walden does not challenge the sufficiency of the evidence. However, the testimony of the officer Alva Carlson, who had the initial contact with Walden, is highly relevant to this issue. Officer Carlson testified on direct examination that he had responded to a report of a blue car with one occupant being driven recklessly. Officer Carlson found a car fitting the description several minutes later, and he had stopped behind the car while it was parked in Walden's mother's yard. Walden had stepped out of the passenger's side, closed the door, and walked toward the house. The driver then drove away and Officer Carlson pursued him. Officer Carlson testified that he saw the driver throw a cooler out of the passenger's window, and that a coffee can was found on the passenger's floorboard after the driver was apprehended. The cooler and the coffee can contained marijuana. Officer Carlson testified on cross-examination, in relevant part, as follows:

"Q. [DEFENSE COUNSEL] What is Mr. Walden's connection to this marijuana?
"A. [OFFICER CARLSON] Well, he was in the vehicle that the marijuana was found inside.
"Q. Stop. Let me ask about that. So, you told us a while ago that the officer did see one person in that vehicle, and when you come up there, Mr. Walden was sitting in the car in front of his mama's house.
"Right?
"A. Correct.
"Q. Okay. So the fact that Mr. Walden sat down in that car makes it his marijuana, some how?
"A. It is constructive possession.
"Q. Is it?
"A. Yes.
"Q. Well, in order for Mr. Walden to be in constructive possession of the marijuana in that can, wouldn't he have had to have known what is in that can?
"A. He was in the vehicle where the marijuana was located.
"Q. My question is, wouldn't he have to have known what was in the can in order to be in constructive possession of it?
"A. No, sir.
"Q. He wouldn't have?
"A. (Witness nods.)
"Q. So, if Mr. Walden didn't know what was in the can or didn't know that the marijuana was in the can, if he had the can, he is guilty of possession of marijuana? Is that what you are telling me?
"A. Yes.
"Q. Yes?
"A. Are you asking me?
"Q. I am asking you.
"A. Do we have a statute book?
"Q. I do, but that is all right.

(R. 73-75.)

On further cross-examination of the officer with regard to the coffee can, the prosecutor asked, "Where was that can at when this car was parked up in front of Mr. Walden's house?" (R. 75.) Officer Carlson answered, "That I don't know." Id.

The prosecutor also questioned Officer Carlson about the cooler:

"Q. You told us that this cooler come out on the right side of that car while it was going down the road. Right?
"A. Correct.
"Q. Now, where was this - where was this cooler at when that car was parked up in front of Mr. Walden's mother's house?
"A. That, I don't know.

(R. 75.)

Officer Carlson testified that he did not know where in the car the cooler had been before the driver threw it out of the passenger window. The cross-examination continued:

"Q. You don't know if the defendant had it in the back seat or whatever, and got it and was trying to throw it out do you?
"A. I do not.
"Q. Then, how do you know that Mr. Walden even knew about the marijuana?
"A. That, I don't know.
"Q. You don't know that he knew about it?
"A. I don't know.
"Q. Okay. Well, that is what I am asking you.
"A. Okay."

(R. 76-77.)

The foregoing testimony reveals no evidence that Walden had knowledge of the presence of coffee can or the marijuana in the coffee can. The testimony reveals no evidence that Walden had knowledge of the presence of the cooler or the marijuana in the cooler. The majority explains that, after the State presented evidence of the arrests of the driver and Walden, and of the discovery of what was determined to be marijuana:

"[T]he circuit court ruled that the State could introduce evidence of Walden's conviction for the unlawful distribution of a controlled substance for the purpose of showing `intent and knowledge as part of that constructive possession charge.' (R. 118-19.) The circuit court sustained Walden's objection to the introduction of his conviction for possession of marijuana in the first degree."

241 So.3d at 9.

The majority's analysis on the issue is brief:

"Walden's previous conviction was for the unlawful distribution of a controlled substance, specifically marijuana. This conviction showed that Walden was familiar with the smell of marijuana and had knowledge that there was marijuana inside of the cooler and coffee can when he sat in the passenger seat of the vehicle."

241 So.3d at 10. (Emphasis added.) I strongly disagree.

Absolutely nothing about the prior conviction for the distribution of marijuana showed that Walden had knowledge that the coffee can and cooler were inside the car, and it certainly did not show that Walden had knowledge that the cooler and the coffee can contained marijuana. The prior conviction would have shown that Walden had knowledge of the smell of marijuana, but that knowledge was not relevant to the proof of the crimes with which he was charged. More importantly, that Walden was familiar with the smell of marijuana can not be stretched to the lengths to which the majority has attempted to have it reach - and that is to somehow establish that he knew that the cooler and coffee can were in the car, and that he knew that marijuana was in the cooler and the coffee can. Most telling of all is the absence of any discussion in the memorandum opinion regarding any link between the prior conviction for distribution of marijuana and Walden's intent to possess the marijuana and paraphernalia that had been in some unknown location in the car while he was sitting in it.

Walden's convictions should be reversed for the same reasons this Court reversed a conviction for unlawful possession of a controlled substance, cocaine. Turner v. State, 929 So.2d 1041 (Ala. Crim. App. 2005). Over Turner's objection on Rule 404(b) grounds, the trial court allowed the State to present evidence of Turner's prior conviction for cocaine possession. This Court stated:

"In this case, the admission of evidence of Turner's 1997 conviction violated the general exclusionary rule of Rule 404(b). The record discloses no logical connection between Turner's prior conviction and the present charge. That is, the defendant's prior conviction for possession of cocaine would not, in the absence of some connecting facts, supply the defendant with the knowledge of the presence of cocaine in his vehicle, the subject of the instant offense. Except for the tendency, condemned by Rule 404(b), `to show action in conformity therewith,' the record before us discloses no logical connection between the defendant's obvious knowledge of cocaine generally, as evidenced by his prior conviction, and his knowledge of the presence of cocaine in his vehicle, or his intent to possess that cocaine, which were the primary issues in the present case."

929 So.2d at 1045.

As in Turner, this Court should hold that evidence of Walden's prior conviction was inadmissible, and we should reverse Walden's convictions.

Because the evidence was irrelevant and inadmissible, considerations of whether the probative value of the evidence is outweighed by its prejudicial value is unnecessary. The trial court's instruction to the jury about its consideration of the prior conviction is also unnecessary, but I address the matter here because I disagree with the majority's discussion of the instruction. The majority states that the prejudice alleged by Walden "was alleviated by the circuit court's instruction to the jury." 241 So.3d at 11. The circuit court instructed the jury "that evidence of other crimes, wrongs, or acts is admissible to prove the defendant's intent and knowledge at the time of the alleged offense." (R. 141.) The instruction eliminated none of the prejudice. In Ex parte Casey, 889 So.2d 615 (Ala. 2004), the Alabama Supreme Court held that evidence of Casey's prior convictions for theft and the unauthorized use of a credit card should not have been admitted during his trial on a charge of receiving stolen property because the evidence should have been excluded under Rule 404(b). The Court further held that the evidence served only to suggest that, because Casey "had harbored the dishonest intent that constituted essential elements of his prior crimes, he must have harbored the dishonest intent that constituted essential elements of the crimes" for which he was then on trial. Id. at 621. The Alabama Supreme Court held that the error was not harmless because, the Court said, the evidence tended only to show that he probably committed the crime for which he was being tried because he had committed a similar crime previously. "The erroneous admission of the defendant's prior convictions into evidence substantially increased the likelihood that he would be convicted on at least some of the numerous counts then being tried, as he was." Id. at 622. The Alabama Supreme Court then discussed the jury charge on the prior bad act:

"The `limiting' instruction given by the trial court to the jury did not ameliorate the prejudicial effect of the erroneous admission of the defendant's prior convictions. Indeed, the instruction contradicted itself and exacerbated the prejudice. While the trial judge told the jurors they could not consider the prior convictions `as evidence that [the defendant]
committed the now-charged crimes, the trial judge, in the same breath, told the jurors they could consider the prior convictions `as evidence of the elements of knowledge and intent' (emphasis added) of the now-charged crimes, and, thus, in legal and practical effect, that they could consider the prior convictions `as evidence that [the defendant] committed the now-charged crimes.' In other words, considering the prior convictions as evidence of the elements of `the now-charged crimes' is the same as considering the prior convictions as evidence of the commission of `the now-charged crimes.'"

Id.

The trial court's charge in this case also allowed the jurors to could consider Walden's prior conviction as evidence of the elements of knowledge and intent, both of which were necessary to prove the charges for which he was on trial. As in Ex parte Casey, the erroneous admission of Walden's prior conviction cannot be considered harmless error, and his convictions should be reversed.

For all of the foregoing reasons, I dissent.