text:
    Kobe JONES, Petitioner v. REBEL RAGS, LLC, Respondent
    No. 2017-M-01529-SCT
    Supreme Court of Mississippi.
    March 21, 2018
    EN BANC ORDER
    This matter is before the Court, en banc, on the Petition of Defendant Kobe Jones for Permission to Appeal Interlocutory Order Denying Motion to Sever and Transfer Venue and for Stay of Proceedings in Circuit Court. Rebel Rags, LLC, has filed a response. After due consideration, the Court finds the petition should be denied.
    IT IS THEREFORE ORDERED that the Petition of Defendant Kobe Jones for Permission to Appeal Interlocutory Order Denying Motion to Sever and Transfer Venue and for Stay of Proceedings in Circuit Court is hereby denied.
    SO ORDERED, this the 21st day of March, 2018.
    /s/ Michael K. Randolph
   MICHAEL K. RANDOLPH, PRESIDING JUSTICE FOR THE COURT

WALLER, C.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KING, J.

MAXWELL, J., NOT PARTICIPATING.

WALLER, CHIEF JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 1. I object to this Court's denial of Kobe Jones's petition for interlocutory appeal. This Court has held that issues pertaining to venue may be resolved via an interlocutory appeal. Forrest Cty. Gen. Hosp. v. Conway , 700 So.2d 324, 326 (Miss. 1997). "[W]e regard venue a right as valuable to the defendant as to the plaintiff. If in the end venue is improper, the court must honor timely objection and transfer to the correct venue, and, if it does not do so, we must reverse." Flight Line, Inc. v. Tanksley , 608 So.2d 1149, 1155 (Miss. 1992). I believe a substantial basis exists for a difference of opinion as to whether Jones is a properly joined defendant in this case. See Miss. R. App. P. 5(a). Furthermore, declining to resolve Jones's claim of improper venue at this early stage could result in the unnecessary expenditure of time and money litigating this case in an improper venue.

¶ 2. Jones is not a resident of Lafayette County, and the plaintiff does not allege that Jones made any defamatory statements in Lafayette County. Accordingly, venue would not be proper in Lafayette County if Jones were the only defendant named in the lawsuit. See Miss. Code Ann. § 11-11-3(1) (Rev. 2004). In addition, for Jones to be properly joined as a defendant in the plaintiff's action against Lindsey Miller, the plaintiff must show a "distinct, litigable event linking the parties." Miss. Crime Lab. v. Douglas , 70 So.3d 196, 200 (Miss. 2011). To satisfy this requirement, the plaintiff has alleged that Jones, Miller, and several unidentified John Doe defendants were engaged in a conspiracy to provide defamatory statements to the NCAA that the plaintiff had provided free merchandise to prospective University of Mississippi student athletes.

¶ 3. At the very least, this case presents the legal question of whether a civil conspiracy claim can serve as a "distinct, litigable event" supporting permissive joinder under Rule 20(a). This is because a conspiratorial agreement-the single event linking the defendants-is not an actionable tort on its own. Bradley v. Kelley Bros. Contractors, Inc. , 117 So.3d 331, 339 (Miss. App. 2013) (citing 15A C.J.S. Conspiracy § 7 (2012) ). The plaintiff also must prove that an overt act was committed in furtherance of the conspiracy. Gallagher Bassett Servs., Inc. v. Jeffcoat , 887 So.2d 777, 786 (Miss. 2004) ). "Appropriateness of joinder decreases as the need for additional proof increases .... [S]eparate proof will be required where there are several wrongful acts by several different actors." Ill. Cent. R.R. v. Gregory , 912 So.2d 829, 835 (Miss. 2005). In my view, there is a substantial question as to whether the plaintiff's claim of conspiracy in this case is an appropriate basis for joinder, because it requires proof that each of the named defendants committed separate wrongful acts at different times and in different places, all in furtherance of the same wrongful agreement. The agreement itself cannot result in liability.

¶ 4. Even assuming that a civil conspiracy claim can serve as the basis for permissive joinder of defendants, there remains a substantial question as to whether the plaintiff's general allegations of conspiracy are sufficient to support Jones's joinder in this case. See MS Life Ins. Co. v. Baker , 905 So.2d 1179 (Miss. 2005) (finding that the plaintiffs failed to satisfy the "same transaction or occurrence" requirement of Rule 20(a) by relying solely on general allegations rather than supporting those allegations with substantive evidence). In fact, the plaintiff's allegations, in their current state, arguably fail to satisfy our notice-pleading standard. See Penn Nat'l Gaming, Inc. v. Ratliff , 954 So.2d 427, 431 (Miss. 2007) ("Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss."). While the complaint generally alleges that two or more of the defendants conspired to give false statements to the NCAA, the plaintiff fails to present any facts linking Jones personally to this initial conspiracy, or that he and Miller-the venue-establishing defendant-were members of the same conspiracy from its inception. See Bradley , 117 So.3d at 339 (citing 16 Am. Jur. 2d Conspiracy § 51 (2009) ) ("For a civil conspiracy to arise, the alleged confederates must be aware of the fraud or wrongful conduct at the beginning of the agreement."). Jones presented evidence directly contradicting the plaintiff's conspiracy theory by submitting an affidavit stating that he had never met nor spoken with Miller. Given this fact, combined with the plaintiff's failure to support its general allegations of conspiracy with any substantive evidence, a substantial question exists as to whether Jones's joinder in this case was improper and that, as a result, Lafayette County is an improper venue for the plaintiff's claims against Jones.

¶ 5. For the foregoing reasons, I would grant Jones's petition for interlocutory appeal.

KING, J., JOINS THIS SEPARATE WRITTEN STATEMENT.

      The parties do not dispute that venue is proper in Lafayette County as to Lindsey Miller, because Miller provided statements to the NCAA in that county.


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Sonya CHAFFEE ON BEHALF OF Fredrick C. LATHAM, a minor v. JACKSON PUBLIC SCHOOL DISTRICT, Lonnie J. Edwards and Jackson Public School Board of Trustees
    NO. 2017-CA-01761-SCT
    Supreme Court of Mississippi.
    May 16, 2019
    ATTORNEY FOR APPELLANT: JERALD DEWAYNE CRAWFORD, Jackson
    ATTORNEY FOR APPELLEES: STEVEN LLOYD LACEY
    BEFORE KING, P.J., COLEMAN AND BEAM, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶1. Sonya Chaffee, on behalf of her minor child, Fredrick Latham, Jr., sued the Jackson Public School District; Lonnie J. Edwards, the School District superintendent in his official capacity; and Jackson Public Schools Board of Trustees (collectively, "the School District") on November 16, 2010, alleging negligence and res ipsa loquitur. The School District answered on March 3, 2011, raising as an affirmative defense sovereign immunity under the Mississippi Tort Claims Act ("MTCA"). After engaging in discovery, the School District filed its motion for summary judgment on March 1, 2016, which the Hinds County Circuit Court granted.

¶2. Aggrieved, Chaffee appeals. Finding no reversible error, this Court affirms.

FACTS AND PROCEDURAL HISTORY

¶3. On February 8, 2010, Fredrick was a student in Tracy Scott's first grade class at Woodville Heights Elementary School. While Scott was standing at the front of the classroom readying the students for lunch, Fredrick and another boy got out of line and ran to the back of the classroom to use the single restroom. Bernice Anderson, Scott's teaching assistant, was present at her desk in the back of the classroom nearer the restroom.

¶4. Fredrick was injured when his hand slipped off the door and his finger got caught in the crack of the door as the other boy was closing it. After hearing a student scream that Fredrick had smashed his finger, Scott went to the back of the classroom, wrapped Fredrick's finger in papers towels, and took him to the principal's office. Fredrick's mother was called, and he was taken by ambulance to the University of Mississippi Medical Center. Dr. Michael Angel performed surgery to reattach Fredrick's fingertip using a skin graft.

¶5. On November 16, 2010, Chaffee filed suit in the Hinds County Circuit Court asserting claims of negligence and res ipsa loquitur. The School District filed its answer and defenses on March 3, 2011. The parties engaged in discovery and agreed to a scheduling order, which was entered in October 2015. On March 1, 2016, the School District filed its motion for summary judgment. Chaffee filed her response, and the School District filed its rebuttal.

¶6. On September 25, 2017, a hearing was held on the summary-judgment motion. The trial court ruled,

In this instance after review of the pleadings, I don't believe and in my opinion there was a genuine issue of material fact as to whether the children were supervised and I believe that's the standard. The parties agree there were two adults in a supervisory capacity in the room which I believe is what the law as mandate and school policy requires. Some kids violated that. I'm not sure what the school district or the teacher or the administrative assistant could have done differently other than what they did for this aberrant injury in the bathroom.

¶7. The trial court later entered an order on November 29, 2017, stating,

Defendants provided adequate supervision .... Ms. Scott was in the front of the classroom, and Ms. Anderson was in the back of the classroom. The restroom is located in the back of the classroom. Ms. Scott instructed the students to form a line so they could go to lunch. The Plaintiff and another student ran to the back of the classroom to go to the restroom, there was no dispute between that [sic] parties that Ms. Scott instructed all students to get in a line. Therefore, the Court finds that no genuine issue of material fact has been shown to establish that the Defendants were negligent in failing to supervise the plaintiff.

¶8. As a result, Chaffee raises the following issues on appeal:

I. Whether the School District failed to pursue an affirmative defense of immunity pursuant to the discretionary function exemption of the MTCA and thereby waived any rights to this defense.
II. Whether the circuit court erred in granting the School District summary judgment as a matter of law.

¶9. This Court finds the first issue of waiver of the affirmative defense to be moot because the lower court did not make a finding on the applicability of the discretionary-function exemption. Accordingly, this Court limits its review solely to the motion for summary judgment regarding Chaffee's negligence claim against the School District.

LAW AND ANALYSIS

I. Whether the trial court erred in granting summary judgment to the School District.

¶10. After a review of the evidence, the trial court held that Chaffee failed to establish that the School District was negligent in failing to supervise its students. "The elements of a prima facie case of negligence are duty, breach, causation, and damages." Todd v. First Baptist Church of West Point , 993 So.2d 827, 829 (Miss. 2008) (citing Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc. , 519 So.2d 413, 416 (Miss. 1988) ). "Duty and breach must be established first." Id. (citing Strantz ex rel. Minga v. Pinion , 652 So.2d 738, 742 (Miss. 1995) ). "The elements of breach and proximate cause must be established by the plaintiff with supporting evidence." Id. (citing Simpson v. Boyd , 880 So.2d 1047, 1050 (Miss. 2004) ).

This Court reviews a trial court's grant or denial of a motion for summary judgment under a de novo standard. Harmon v. Regions Bank , 961 So.2d 693, 697 (Miss. 2007) (citing McKinley v. Lamar Bank , 919 So.2d 918, 925 (Miss. 2005) ). There must be no genuine issue of material fact when viewed in the light most favorable to the nonmoving party to sustain an order of summary judgment according to Mississippi Rule of Civil Procedure 56(c). "If any triable issues of material fact exist, the trial court's decision to grant summary judgment will be reversed." Harmon , 961 So.2d at 697. In situations where there is doubt as to whether a genuine issue of material fact exists, "the trial judge should err on the side of denying the motion and permitting full trial on the merits." American Legion Ladnier Post Number 42, Inc. v. Ocean Springs , 562 So.2d 103, 106 (Miss. 1990) (citing Ratliff v. Ratliff , 500 So.2d 981 (Miss. 1986) ; Brown v. McQuinn , 501 So.2d 1093, 1095 (Miss. 1986) ; Brown v. Credit Ctr., Inc. , 444 So.2d 358, 362 (Miss. 1983) ).

Todd , 993 So.2d at 829.

¶11. "[P]ublic schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment." Henderson ex rel. Henderson v. Simpson Cty. Pub. Sch. Dist. , 847 So.2d 856, 857 (Miss. 2003) (quoting L.W. v. McComb Separate Mun. Sch. Dist. , 754 So.2d 1136, 1143 (Miss. 1999), overruled on other grounds by Miss. Transp. Comm'n v. Montgomery , 80 So.3d 789, 797 (Miss. 2012) ).

¶12. The question is whether Chaffee produced sufficient evidence that the teachers breached the duty of ordinary care and thus caused Fredrick's injuries. Chaffee argues that the School District failed to supervise its students during lunch and bathroom breaks because Scott had not followed the usual procedure for restroom use on the day of the incident. Both parties concede that the classroom policy for restroom use allowed only one student to enter the restroom at a time, although the students were allowed to wait outside the restroom in a line.

¶13. On the day in question, Scott testified she was standing in the front of the classroom, readying the students for lunch, telling them to put away their books, and calling their tables group by group to line up. Fredrick concedes these facts.

¶14. Scott testified that when she began calling the groups to line up for lunch, a student asked to go to the restroom. While Scott acknowledged that it was not restroom time, she allowed that student to go to the restroom. Meanwhile, Fredrick and another student also ran to the back of the classroom. Scott stated that she had told Fredrick and the other students that they did not have permission to go to the back of the classroom, and she called for them to come back in line, which they did not do.

¶15. Although Fredrick testified that Scott had told the students that whoever needed to use the restroom should line up in the back of the classroom, it is undisputed that Scott was actively supervising the students and giving them directions about whether to line up in the front of the classroom or the back. Scott testified that she could see the restroom from where she was standing in the front of the classroom and that she was giving directions to the students to come back to the line.

¶16. Chaffee alleges that Scott was not adequately supervising the students because she did not see Fredrick smash his hand. While it is true that Fredrick's back was facing her, Scott acknowledged that her teaching assistant was in the back of the classroom nearer the restroom.

¶17. According to Chaffee, Fredrick's injuries were foreseeable based on the established classroom rule that only one child should be sent to the restroom at a time. In the recommendations portion of the accident form that Scott executed and signed, she failed to mention that Fredrick had not followed directions, but she did state that she would no longer allow students to line up outside the restroom. Like the trial court, we do not accept Chaffee's argument that adequate supervision can only be measured against the adherence to or failure to adhere to bathroom-use ordinary practices.

¶18. The School District maintains that because Scott was in the direct act of supervising the students, the School District cannot be held liable for an injury caused by one student to another. The School District asserts and this Court agrees that, even if Scott and Anderson were standing directly next to Fredrick at the time of the incident, it was not foreseeable that his hand would slip and that the teachers would have been able to prevent his injury.

¶19. Chaffee relies on the Court's ruling in Summers v. St. Andrew's Episcopal School , in which this Court reversed the grant of summary judgment to the school because an issue of fact existed about whether the teachers were supervising the children at the time of the incident and whether they could have prevented the incident. Summers v. St. Andrew's Episcopal Sch. , 759 So.2d 1203, 1214 (Miss. 2000). But Summers is dissimilar from this case and does not support Chaffee's argument.

¶20. "In the Summers case, the teachers assigned to playground duty were (1) away from the immediate area, (2) located where they could not observe the children and (3) unaware that the incident had occurred." Slade v. New Horizon Ministries, Inc. , 785 So.2d 1077, 1079 (Miss. Ct. App. 2001). Further, in Summers , the student had described other incidents to her teacher that "constituted notice and warning of the potential for future altercations ...." Summers , 759 So.2d at 1214 (citing Lang v. Bay St. Louis/Waveland Sch. Dist. , 764 So.2d 1234, 1237 (Miss. 1999) ).

¶21. Here, "[t]he record clearly establishes supervision of the children by [the teachers for the School District]. There are no facts offered which indicate that their supervision was inadequate. Nor are there facts offered which suggest that this incident was reasonably foreseeable and preventable by the taking of reasonable precautions." Slade , 785 So.2d at 1079 (citing Summers , 759 So.2d at 1212 ). "By all accounts, the injury to [Fredrick] occurred suddenly and accidentally." Id.

¶22. Even viewing the evidence in a light most favorable to Chaffee, this Court, like the trial court, finds that two teachers were in the classroom at the time of the incident and that no dangerous circumstances existed to have warranted additional supervision. Scott was in the front of the classroom and could see the restroom, and Anderson was in the back of the classroom nearer the restroom. Scott was actively giving directions to the students to line up in the front of the classroom for lunch or in the back of the classroom to use the restroom. "(A)bsent special, dangerous circumstances, a school district does not have the duty of providing constant supervision of all movements of pupils at all times." Levandoski v. Jackson Cty. Sch. Dist. , 328 So.2d 339, 341-42 (Miss. 1976) (alteration in original) (quoting 38 A.L.R. 3d 830, 842 (1971) ).

¶23. As the trial judge stated in his ruling, "I'm not sure what the school district or the teacher or the administrative assistant could have done differently other than what they did for this aberrant injury in the bathroom." "Under these circumstances, there is no issue for the jury to resolve on the question of the adequacy of supervision, nor is there any evidence that the injury to [Fredrick] was a foreseeable injury proximately related to inadequacy of supervision; therefore, summary judgment was proper." Slade , 785 So.2d at 1079

CONCLUSION

¶24. This Court finds that the trial court did not err in granting summary judgment to the School District. Taking Fredrick at his word, his injury occurred because his hand slipped in the mere seconds between one student's opening the restroom door and then closing it. Even if the teaching staff had been staring directly at Fredrick, or standing directly beside him, there was no way to predict that Fredrick's hand would slip. The School District, which took reasonable steps to appreciate various risks, is not liable for Fredrick's injuries.

¶25. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      The restroom in the classroom is designed for use by one person. While the record is not clear about whether the students could line up outside the restroom, the principal acknowledged that they could because a sink is in the rear of the classroom. When the children were seated, they were required ask permission of the teacher to go to the restroom. One student at a time was allowed to go.


author: CARLTON, J., FOR THE COURT:

text:
    Jessie T. BEAL a/k/a Jessie Beal, Appellant v. STATE of Mississippi, Appellee
    NO. 2018-CP-00007-COA
    Court of Appeals of Mississippi.
    September 11, 2018
    ATTORNEY FOR APPELLANT: JESSIE T. BEAL (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JACKSON
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. On May 27, 2009, Jessie Beal pleaded guilty to statutory rape in Madison County Circuit Court. He was sentenced to twenty-three years in the custody of the Mississippi Department of Corrections (MDOC). Beal now appeals the dismissal of his fourth motion for postconviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Beal was arrested for statutory rape of a child in violation of Mississippi Code Annotated section 97-3-65(1)(a) (Rev. 2014) on May 12, 2008. Beal's first indictment was nolle prosequied on June 30, 2008, and he was released on bond to await further action by the Madison County grand jury. A later indictment was brought on October 8, 2008. This indictment provides that the July 2008 grand jury was recalled on September 10, 2008. As found by this Court in addressing one of Beal's prior PCR motions, "the investigation was delayed because the victim was pregnant, and the State waited to indict until the baby was delivered and DNA tests could be performed to determine paternity."

Beal v. State , 118 So.3d 162, 165 (¶ 10) (Miss. Ct. App. 2012) ( Beal II ).

¶ 3. Beal pleaded guilty to the statutory rape charge on May 27, 2009. The State described the factual basis for Beal's arrest and statutory rape charge at his guilty-plea hearing as follows:

[O]n or about the 25th day of April, 2008, the Department of Human Services was notified about a minor child who at that time was [fifteen], but would have been [fourteen] at the time. She ... tested positive at the school for being pregnant. The Department of Human Services went to the school where they interviewed the minor child .... That female child ... related to the Department of Human Services that she had had sex with the defendant, that the defendant resided in the same home that she was residing, which at that time was with her aunt. At that time, the Canton Police Department was also notified, based upon statements made by the victim in this case. A warrant was issued for Mr. Beal's arrest. Mr. Beal ... would have been [thirty-five] years of age at the time that this child was conceived. That conception date would have been between October 1st, 2007, and October 31st, 2007.
A DNA sample was taken of the child once the child was born in July. That sample was compared with the beucle (phonetic) swab, which was retrieved from this defendant, Mr. Jessie Beal. The State, if this case went to trial, [it] would call Dr. Bo Scales. Dr. Scales would testify that, based upon the DNA testing that he performed, that the probability of paternity in this case is 99.99 percent as compared to an untested, unrelated man of the same race. So based upon the statements of the victim in this case and the DNA testing of the child that was conceived, the State would show that they did in fact have sexual intercourse between those dates listed in the indictment and that that sexual intercourse did occur in Madison County, and that this defendant was more than thirty-six months older than the victim.

By a sentencing order dated July 8, 2009, the trial court sentenced Beal to twenty-three years in the custody of the MDOC.

¶ 4. To date, Beal has filed four PCR motions. Beal filed his first PCR motion on December 28, 2009, alleging that he was denied his right to a timely initial appearance; his trial counsel was ineffective; and his guilty plea was involuntary. The trial court dismissed his motion. Beal appealed, arguing that his constitutional rights were violated when he was not given a timely initial appearance; his trial counsel was ineffective because he failed to raise this issue; and his guilty plea was involuntary because it was influenced by the timing of his initial appearance. This Court affirmed the trial court's judgment, finding that each of the issues Beal raised were without merit. Beal v. State , 58 So.3d 709, 710-11 (¶¶ 3-7) (Miss. Ct. App. 2011) ( Beal I ).

¶ 5. Beal filed his second PCR motion on November 2, 2011, alleging that the State's pre-indictment delay prejudiced his defense and that his guilty plea was not knowingly and intelligently entered. The trial court dismissed Beal's second PCR motion as a successive writ. Beal appealed, arguing that his constitutional rights were violated due to the State's pre-indictment delay and that his guilty plea was invalid because he did not knowingly waive his right against self-incrimination. This Court affirmed the trial court's judgment, finding that Beal had no arguable basis for either of his claims, and thus his second PCR motion was not excepted from the successive-writ procedural bar. Beal II , 118 So.3d at 164-65 (¶¶ 3-12).

¶ 6. On February 2, 2015, Beal filed his third PCR motion, alleging that his indictment violated his rights against double jeopardy and that his trial counsel was ineffective because he did not raise this issue. The trial court dismissed Beal's third PCR motion as time-barred and as a successive writ. Also, in its order allowing Beal to proceed in forma pauperis on appeal, the trial court, in relevant part, placed Beal on notice of Mississippi Code Annotated section 47-5-138(3)(a) (Rev. 2011). The trial court warned Beal of possible forfeiture of any earned time he had accumulated should any of his future filings "be determined by the Court to be frivolous, malicious, or [warranting] dismiss[al] for failure to state a claim upon which relief could be granted."

¶ 7. Beal appealed the trial court's judgment, arguing that he was subjected to double jeopardy because he was indicted a second time for the same crime found in a prior indictment that had been nolle prosequied. He also argued that his trial counsel was ineffective because he failed to raise the double-jeopardy claim. This Court affirmed the trial court's judgment, finding no merit in Beal's double-jeopardy claim because the Mississippi Supreme Court has held that "the State can re-indict an accused for the same offense after an order of nolle prosequi has been entered." Beal v. State , 186 So.3d 943, 945 (¶ 8) (Miss. Ct. App. 2016) ( Beal III ) (quoting State v. Shumpert , 723 So.2d 1162, 1165 (¶ 16) (Miss. 1998) ). This Court also rejected Beal's ineffective-counsel claim as procedurally barred, as well as being without merit because it was based on his counsel's failure to raise the double-jeopardy claim, which the Court had already found was without merit. Id. at (¶¶ 10-11).

¶ 8. Beal filed his fourth PCR motion on November 21, 2017, alleging that there was no probable cause to arrest him in May 2008 on the statutory rape charge; that he was subjected to double jeopardy due to his indictment on the statutory rape charge that was in the prior indictment that had been nolle prosequied; and that he received ineffective assistance of counsel. The trial court dismissed Beal's fourth PCR motion as time-barred and as a successive writ, determining that Beal's motion did not fall within any exception to these procedural bars. In dismissing Beal's lawsuit, the trial court confirmed that in addition to reviewing Beal's fourth PCR motion and exhibits, the Court had also reviewed the files for Beal's three previous postconviction relief filings, each of which contain a copy of petitioner's criminal file, and the opinions rendered by the Mississippi Court of Appeals in relation to Beal's three previous postconviction relief filings, identified above as Beal I , Beal II , and Beal III.

¶ 9. The trial court also dismissed Beal's fourth PCR motion as frivolous and deemed it a "final order" for purposes of section 47-5-138(3)(a). The trial court found that Beal's fourth PCR motion asserted essentially the same issues as those asserted in Beal's prior PCR motions, these prior PCR motions had been dismissed by the trial court, and each of those dismissals had been affirmed by the Mississippi Court of Appeals. The trial court also confirmed that it had placed Beal on notice of section 47-5-138(3)(a) in Cause No. 45CIl:15-cv-00048-c after his third PCR motion.

¶ 10. Beal appeals the dismissal of his fourth PCR motion, asserting, pro se, that (1) his constitutional rights were violated because there was no probable cause to arrest him in May 2008; (2) he was subjected to double jeopardy when he was indicted a second time for the same crime found in a prior indictment that had been nolle prosequied; and (3) he received ineffective assistance of counsel because his counsel did not raise either of these issues.

STANDARD OF REVIEW

¶ 11. "When reviewing a trial court's decision to dismiss a petition for postconviction relief, this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Stokes v. State , 238 So.3d 631, 633 (¶ 7) (Miss. Ct. App. 2018). "However, where questions of law are raised, the applicable standard of review is de novo." Id.

DISCUSSION

I. Procedural Bars

¶ 12. In its order dismissing Beal's fourth PCR motion, the trial court found that the motion was both time-barred and barred as a successive writ. The Uniform Post-Conviction Collateral Relief Act (UPCCRA) provides that PCR motions must be filed within three years after entry of the judgement of conviction where a guilty plea has been made. Miss. Code Ann. § 99-39-5(2) (Rev. 2015); see Avery v. State , 102 So.3d 1178, 1180 (¶ 5) (Miss. Ct. App. 2012). Beal pleaded guilty to the statutory rape charge brought against him on May 27, 2009. The trial court's judgment of conviction was entered that same day, and on July 8, 2009, the trial court entered its sentencing order, sentencing Beal to twenty-three years in the MDOC. Beal's fourth PCR motion was not filed until November 21, 2017, over five years past the three-year limitations period. On its face, Beal's fourth PCR motion was untimely filed.

¶ 13. The UPCCRA also imposes a bar against successive writs. See Miss. Code Ann. § 99-39-23(6) (Rev. 2015) ("[A]ny order dismissing the petitioner's motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article."). This appeal concerns Beal's fourth PCR motion. The trial court dismissed Beal's three prior PCR motions, and each of those dismissals were affirmed by this Court. Beal's fourth PCR motion is successive.

¶ 14. We recognize that errors affecting fundamental rights are excepted from the UPCCRA's procedural bars. Rowland v. State , 42 So.3d 503, 507 (¶ 9) (Miss. 2010). However, "a mere assertion of a constitutional-right violation does not automatically preclude the application of the procedural bars." Stokes , 238 So.3d at 634 (¶ 10). In order to find an exception to a procedural bar, "there must at least appear to be some basis for the truth of the [movant's] claim[s]." Id. Beal, as the movant, bears the burden of proving an exception applies to the UPCCRA's procedural bars. Brandon v. State , 108 So.3d 999, 1004 n.3, 1006 (¶¶ 12, 23) (Miss. Ct. App. 2013). As detailed below, the record reflects that Beal failed to meet this burden.

II. Probable Cause for Beal's Arrest

¶ 15. Beal asserts that his constitutional rights were violated because there was no probable cause to arrest him in May 2008. As this Court explained in Beal I , "[u]pon the entry of a valid guilty plea, certain challenges are waived by the defendant." Beal I , 58 So.3d at 710 (¶ 3). These include constitutional challenges made under the Fourth Amendment, such as Beal's probable-cause challenge here, and his "untimely initial appearance" challenge in Beal I. See Battaya v. State , 861 So.2d 364, 365-66 (¶¶ 3-8) (Miss. Ct. App. 2003). Beal does not challenge the validity or voluntariness of his guilty plea. Just as this Court held that Beal waived his "untimely initial appearance" claim in Beal I upon entry of his guilty plea ( Beal I , 58 So.3d at 710 (¶ 3) ), so too did Beal waive his probable-cause challenge now before this Court. Battaya , 861 So.2d at 366 (¶¶ 7-8) ("From a constitutional ... perspective, the issue [of lack of probable cause] is ... waived by the entry of a guilty plea."); see also Swilley v. State , 93 So.3d 901, 904 (¶¶ 7-9) (Miss. Ct. App. 2012).

¶ 16. Even if Beal had not waived his probable-cause challenge, we observe that Beal points to no evidence in the record demonstrating that his arrest lacked probable cause. On the contrary, as set forth above, the record contains the State's recitation of the detailed factual basis supporting Beal's arrest and statutory rape charge presented at Beal's guilty plea hearing. We find no abuse of discretion in the trial court's determination that Beal failed to show that his probable-cause challenge constituted an exception to the UPCCRA's procedural bars.

III. Double Jeopardy

¶ 17. Beal asserts he was subjected to double jeopardy when he was indicted a second time for the same crime found in a prior indictment that had been nolle prosequied. Beal asserted this identical claim in Beal III. This Court rejected Beal's double-jeopardy claim there as follows:

Our supreme court has held that "the State can re-indict an accused for the same offense after an order of nolle prosequi has been entered." State v. Shumpert , 723 So.2d 1162, 1165 (¶ 16) (Miss. 1998) ; see also Beckwith v. State , 615 So.2d 1134, 1145-48 (Miss. 1992) (holding that a nolle prosequi order is not an actual acquittal or conviction on the merits to bar another prosecution).
Beal was not acquitted, nor was he even tried. He was not prosecuted a second time because of his guilty plea and resulting conviction. Nor did he receive multiple punishments. Thus, we find no merit to Beal's claim that his indictment subjected him to double jeopardy.

Beal III , 186 So.3d at 945 (¶¶ 8-9). This same holding applies to Beal's identical claim here.

IV. Ineffective Assistance of Counsel

¶ 18. Beal asserts that he received ineffective assistance of counsel because his counsel did not raise the probable-cause issue or the double-jeopardy issue at his guilty-plea hearing. We reject this assertion for the same reasons we rejected essentially the same assertion in Beal I and Beal III. First, Beal's ineffective-counsel claim is not excepted from the UPCCRA's procedural bars. See Beal III , 186 So.3d at 945 (¶ 10) ; see also Kirk v. State , 798 So.2d 345, 346 (¶ 6) (Miss. 2000) ; Gaulden v. State , 240 So.3d 503, 507 (¶ 9) (Miss. Ct. App. 2018).

¶ 19. Second, as we explained in Beal I , under Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), "Beal must allege facts showing his counsel's performance was deficient, and that the deficient performance prejudiced his defense." Beal I , 58 So.3d at 711 (¶ 5). Beal wholly failed to meet this requirement here, as he did not state with particularity how his counsel's performance was deficient, nor did he show any resulting prejudice.

¶ 20. Third, Beal's ineffective-counsel claim is based on his counsel's failure to raise the probable cause and double jeopardy issues at Beal's guilty-plea hearing. We have determined above that both of these claims fail on the merits. Beal's ineffective-counsel claim, based on these assertions, likewise fails. See Beal III , 186 So.3d at 945 (¶ 11). For each of these reasons, we affirm the trial court's determination that Beal's ineffective-counsel claim is not an exception to the procedural bars applicable here.

V. Dismissal of Beal's Fourth PCR Motion as Frivolous under Section 47-5-138(3)

¶ 21. The trial court also dismissed Beal's fourth PCR motion as frivolous under section 47-5-138(3) in light of (1) Beal's three prior PCR motions asserting essentially the same issues as those asserted here; (2) the trial court's dismissal of each of those motions; (3) this Court's affirmance of each of those dismissals in Beal I , Beal II and Beal III ; and (4) the trial court's determination that Beal's fourth PCR motion was also procedurally barred and lacked merit. As noted above, under section 47-5-138(3), an inmate can lose earned time if he files a motion that is frivolous, malicious, or fails to state a claim upon which relief can be granted. The trial court placed Beal on notice of section 47-5-138(3)'s ramifications in Cause No. 45CIl:15-cv-00048 relating to Beal's third PCR motion.

¶ 22. Beal does not raise any issue or argument in his appellant's brief concerning the trial court's dismissal of his fourth PCR motion as frivolous under section 47-5-138(3)(a). Beal, therefore, has waived this issue. In re B.A.H. , 225 So.3d 1220, 1239 (¶ 62) (Miss. Ct. App. 2016) (issues not raised in appellant's initial brief are waived); see Sanders v. State , 678 So.2d 663, 670 (Miss. 1996) ; Claverie v. State , No. 2017-CP-00433-COA, 261 So.3d 1120, 1129-30, 2018 WL 1281526, at *7 (¶ 33) (Miss. Ct. App. Mar. 13, 2018).

¶ 23. Even if Beal had not waived this issue, the Mississippi Supreme Court has held that a motion is "frivolous" for purposes of section 47-5-138(3) if the complaint does not have a "realistic chance of success"; fails to "present a sound basis in fact or law"; and no facts are shown "that would warrant relief." Dock v. State , 802 So.2d 1051, 1056 (¶ 11) (Miss. 2001) ; see Waddell v. State , 999 So.2d 375, 378-79 (¶¶ 13-14) (Miss. Ct. App. 2008). "A trial court's conclusion that a motion is frivolous is reviewed for abuse of discretion." Dock , 802 So.2d at 1056 (¶ 11). We agree with the trial court that Beal's arguments are both procedurally barred and without merit. Accordingly, we find no abuse of discretion in the trial court's determination that Beal's fourth PCR motion was frivolous for purposes of section 47-5-138(3).

¶ 24. AFFIRMED.

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

      Section 47-5-138(3) allows MDOC to forfeit an inmate's earned time upon receipt of a "final order," that is defined as "an order of a state or federal court that dismisses a lawsuit brought by an inmate while the inmate was in the custody of the Department of Corrections as frivolous, malicious[,] or for failure to state a claim upon which relief could be granted." Miss. Code Ann. § 47-5-138(3)(a). Section 47-5-138(3) also provides that on receipt of a "final order," an inmate shall forfeit: (1) sixty days of an inmate's accrued earned time based on the first final order received; (2) 120 days earned time if MDOC has received two final orders; and (3) 180 days of earned time if MDOC receives three or more final orders. Miss. Code Ann. § 47-5-138(3)(b).

      As noted above, under section 47-5-138(3), an inmate can lose accrued earned time if he files a lawsuit that is dismissed by a state or federal court as "frivolous, malicious[,] or for failure to state a claim upon which relief could be granted." Miss. Code Ann. § 47-5-138(3)(a).

      Beal did not file a reply brief.


author: TINDELL, J., FOR THE COURT:

text:
    Shamor BILLUPS a/k/a Shamor L. Billups a/k/a Shamar Billups, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01378-COA
    Court of Appeals of Mississippi.
    September 18, 2018 Rehearing Denied January 22, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, JACKSON
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. A Lowndes County grand jury indicted Shamor Billups for Count I, felony shoplifting, and Count II, unlawful possession of a firearm by a convicted felon. See Miss. Code Ann. § 97-23-93 (Rev. 2014); Miss. Code Ann. § 97-37-5 (Rev. 2014). A jury acquitted Billups of Count I but convicted him of Count II. On August 22, 2016, the Lowndes County Circuit Court sentenced Billups as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2014) to ten years in the custody of the Mississippi Department of Corrections (MDOC). On August 29, 2016, Billups's attorney filed an unsuccessful motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. On appeal, Billups's initial brief focused on the sufficiency and weight of the evidence, and the actual or constructive element of his crime-possession of a firearm by a felon. A supplemental pro se brief includes a list of other unsupported claims or procedurally barred claims. Finding no error, we affirm Billups's conviction and sentence.

FACTS

¶ 2. On March 13, 2015, two men approached the gun counter of K and S Outdoors (K & S) in Columbus, Mississippi. One asked to look at a pistol, and the other asked to look at a long gun. The K & S clerk, Chad Fortner, handed one of the men a pistol and the other a Ruger-SR-762 rifle. Both men then attempted to run from the store with the firearms. The man with the rifle successfully fled. Fortner tackled and secured the other man before the man could exit K & S. The stolen rifle was a .308 caliber Ruger-SR-762 rifle with a collapsible stock and a twenty-round magazine that retailed for $1,699. K & S identified the gun by its serial number.

¶ 3. A video of the March 13, 2015 incident at K & S shows a man wearing a maroon Mississippi State hoodie, camouflage pants, and a toboggan at the K & S gun counter holding a rifle. The video shows that same man, in the same clothes, running out of K & S with a rifle. Chris Berry, a K & S customer, and its manager, Carey Chaffin, also witnessed the man run out the door of K & S carrying a rifle.

¶ 4. Shortly after the events at K & S, Investigator Timothy Jenkins with the Columbus Police Department recovered a maroon Mississippi State hoodie, camouflage pants, and a blue toboggan about a block and a half east of K & S. Investigator Jenkins also interviewed the man who was earlier restrained while attempting to flee K & S.

¶ 5. The investigation led the Columbus police to 20th Street North. Approximately an hour and a half to two hours after the shoplifting incident at K & S, as Columbus police approached 1215 20th Street North, Billups came out of a shed at that address. Columbus police ordered Billups to the ground, and he complied. Investigator Jenkins learned the 1215 20th Street North property was owned by Billups's aunt, Connie Billups. Connie gave Jenkins consent to search her outbuildings. Officer Christopher Benton wore a body camera and participated in Investigator Jenkins's search of the shed Billups was seen leaving. A rifle was found upright in the front corner of the shed covered in a shirt. The shed was otherwise empty except for a bicycle and the stolen rifle. Police later identified the rifle by its serial number as the Ruger-SR-762 rifle taken earlier from K & S.

STANDARD OF REVIEW

¶ 6. Challenges to the sufficiency of the evidence require us to view the record evidence in a light most favorable to the State. The credible evidence consistent with Billups's guilt must be accepted as true. McClain v. State , 625 So.2d 774, 778 (Miss. 1993). Additionally, all inferences that may be reasonably drawn from the credible evidence of guilt are considered in the light most favorable to the State. Id. We may reverse on appeal only if, with respect to one or more elements of the offense, the evidence viewed in this manner would not allow reasonable and fair-minded jurors to reach any decision other than acquittal.

¶ 7. Challenges to the weight of the evidence require us to accept all the evidence supporting the verdict as true. Brown v. State , 825 So.2d 70, 76 (¶ 17) (Miss. Ct. App. 2002). Only when "the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice" will this Court reverse the verdict. Collins v. State , 757 So.2d 335, 337 (¶ 5) (Miss. Ct. App. 2000).

DISCUSSION

¶ 8. For a person to be convicted of unlawful possession of a firearm by a convicted felon, the State must prove: (1) the defendant was in possession of a firearm; and (2) the defendant had previously been convicted of a felony crime. Gunn v. State , 174 So.3d 848, 866 (¶ 63) (Miss. Ct. App. 2014). Because Billups's attorney stipulated to Billups's status as a felon, we necessarily focus our review on the element of possession. The State must prove the defendant actually or constructively possessed a weapon. Short v. State , 929 So.2d 420, 427 (¶ 21) (Miss. Ct. App. 2006). Constructive possession allows the State to establish possession when evidence of actual possession is absent. Christian v. State , 207 So.3d 1207, 1218 (¶ 54) (Miss. 2016).

¶ 9. Without evidence of actual or exclusive possession by Billups, and without evidence that Billups is the owner of the premises, the "State must prove some competent evidence connecting [Billups] with the [firearm]." Gavin v. State , 785 So.2d 1088, 1093 (¶ 17) (Miss. Ct. App. 2001) (quoting Powell v. State , 355 So.2d 1378, 1379 (Miss. 1978) ). Here, the State provided that competent evidence.

¶ 10. At trial, Investigator Jenkins testified that, based on his investigation, the police went to 20th Street North, which was thought to be the possible location of the man who stole the rifle from K & S. As police approached, and within less than two hours from the time of the shoplifting, Billups exited the shed on the property at 1215 20th Street North. Investigator Jenkins testified that he and Officer Benton handcuffed Billups, and thereafter they found the K & S rifle inside the shed Billups exited.

¶ 11. Thus, record evidence provided by Investigator Jenkins connects Billups to the firearm. Police saw Billups exit the shed in which, moments later, they found the K & S rifle. Further confirmation of this evidence comes from a police video of the interior of the shed. Police found the rifle propped up in the front corner of the nearly empty shed and only steps from the front door. After deliberation, the jury acquitted Billups of the shoplifting charge but found him guilty of the unlawful possession of a firearm by a felon.

¶ 12. What constitutes a "sufficient external relationship between [Billups] and the [rifle] to complete the concept of [constructive] possession is a question which is not susceptible of a specific rule." Curry v. State , 249 So.2d 414, 416 (Miss. 1971) (internal quotation marks omitted). It must be kept in mind that, upon review, it is "[t]he proper function of the jury to decide the outcome in this type of case ...," not the court. Brown v. State , 825 So.2d 70, 76 (¶ 17) (Miss. Ct. App. 2002) (quoting Smothers v. State , 756 So.2d 779, 786 (¶ 21) (Miss. Ct. App. 1999) ).

¶ 13. Support for affirming the jury's verdict is found in Peden v. State , 132 So.3d 631, 634 (¶¶ 5-6) (Miss. Ct. App. 2014). In Peden , this Court found sufficient evidence to convict the defendant of constructive possession because, while he was found in a motel room rented by another, Peden was within arm's reach of a bag of crack cocaine. Id. Further support is found in Lewis v. State , 112 So.3d 1092, 1096 (¶ 13) (Miss. Ct. App. 2013). Lewis was found to have constructive possession of a handgun found under the driver's seat of the car that Lewis was driving even though the gun was not in Lewis's actual physical possession. Id.

¶ 14. Viewing the evidence in the light most favorable to the State, our review of the evidence shows: Billups exited a shed; the shed was nearly empty; a rifle was just inside the shed's door; Billups was the only person in the shed; and Billups was within reach of the rifle. Thus, there was sufficient evidence to convict Billups of constructive possession of the rifle. We may reverse only if, with respect to one or more elements of the offense, the evidence viewed in the light most favorable to the State would not allow reasonable and fair-minded jurors to reach any decision other than to acquit. This evidence does not permit a reversal.

¶ 15. As to the weight of the evidence, we may only reverse and grant a new trial if the verdict is so contrary to the overwhelming weight of the evidence "that to affirm would be to ignore an unconscionable injustice." Mosley v. State , 930 So.2d 459, 462 (¶ 11) (Miss. Ct. App. 2006). Addressing this assignment of error, the facts of the case reflect that the police observed Billups exiting a shed. Billups was the only person inside the shed in which little aside from an identifiable and recently-stolen long firearm was found. This firearm was found only steps from the door through which Billups exited in the plain view of police. A review of the evidence in this matter convinces us to affirm Billups's conviction and sentence.

¶ 16. Beyond his arguments regarding sufficiency and weight of the evidence, in a supplemental pro se brief, Billups adds to his counsel's claims of trial court error. He argues additionally that: (1) his indictment as a habitual offender along with the imposed sentence enhancement together constitute double jeopardy; (2) the trial court's failure to give an advisory jury instruction on the separate theories of actual versus constructive possession violated his due process and equal protection rights; (3) he received ineffective assistance of counsel; (4) the State failed to prove he constructively possessed a firearm; (5) improper identification testimony violated his Confrontation Clause rights; and (6) the "[j]udge was in error on a matter presented to him on poss. of actual or constructive." These additional claims are procedurally barred or without merit.

¶ 17. Two of Billups's additional claims concern the "possession" element of the crime of unlawful possession of a firearm by a convicted felon. He argues generally that the trial judge was in error on the issue of actual or constructive possession, and that the State failed to prove constructive possession. As to these claims, our opinion regarding the sufficiency and weight of the evidence thoroughly reflects no error in the trial court's handling of the proof presented to the jury on the element of possession.

¶ 18. Billups argues that his indictment as a habitual offender along with the imposed sentence enhancement together constitute double jeopardy. Time and time again this Court and the Supreme Court have addressed this issue. Sentencing under Mississippi Code Annotated sections 97-37-5 and 97-37-37(2) present no double-jeopardy concern. Taylor v. State , 137 So.3d 283, 288 (¶ 17) (Miss. 2014) ; Lewis v. State , 112 So.3d 1092, 1097 (¶ 15) (Miss. Ct. App. 2013) ; Mayers v. State , 42 So.3d 33, 45 (¶ 50) (Miss. Ct. App. 2010).

¶ 19. Billups's claim that an advisory jury instruction on constructive possession was required is procedurally barred. The record shows that Billups failed to object to the instructions provided, and that Billups failed to offer to the trial court, for consideration, the jury instruction he now requests in his appeal. As such, this issue is procedurally barred. Daniels v. State , 9 So.3d 1194, 1198 (¶ 4) (Miss. Ct. App. 2009). Under Mississippi Code Annotated section 97-37-5, the State must prove that Billups was in possession of a firearm and that he had previously been convicted of a felony crime. Hartzog v. State , 240 So.3d 462, 466 (¶ 14) (Miss. Ct. App. 2017). The pertinent jury instruction given in Billups's trial stated in relevant part:

[I]f you find from the evidence in this case beyond a reasonable doubt that:
1. the Defendant, Shamar Billups;
2. did on or about March 13, 2015;
3. unlawfully, willfully and feloniously;
4. possess a firearm;
5. and has been previously been convicted of a felony ... then you shall find the Defendant guilty of Convicted Felon in Possession of a Firearm as charged in Count 2.

This reflects, as required, that the trial court fairly announced the law defining the crime of unlawful possession of a firearm by a convicted felon. Hartzog , 240 So.3d at 466 (¶ 14).

¶ 20. Billups's ineffective assistance of counsel claim raised in this direct appeal is a claim typically reserved for consideration via the appropriate postconviction proceedings. We will address such a claim only when the record affirmatively shows ineffective assistance of constitutional proportions, or when the parties stipulate that the record is adequate to allow us to make an ineffective assistant of counsel finding. Colenburg v. State, 735 So.2d 1099, 1101 (¶ 5) (Miss. Ct. App. 1999). Finding neither in the record, we decline to address this claim on direct appeal.

¶ 21. Billups lastly claims the Confrontation Clause was violated in two instances: (1) when an officer testified that he spoke to a co-defendant and therefrom effected an identification of Billups; and (2) when one of the officers assigned to investigate his case was unable to appear at trial. This issue is meritless and procedurally barred. Billups fails to point to any portion of the trial transcript where anyone testified to identifying Billups based upon the hearsay testimony of a co-defendant.

He also fails to point to any portion of the trial transcript where any testimonial statements of the absent officer were offered into evidence, documentarily, orally, or otherwise. Further, Billups fails to cite any legal authority to show a Confrontation Clause violation. When an appellant fails to cite any legal authority or to offer any record evidence in support of a claim of error, the issue is procedurally barred, and this Court will not consider that issue on appeal. Haskins v. State , 159 So.3d 1222, 1224 (¶ 8) (Miss. Ct. App. 2015).

CONCLUSION

¶ 22. The jury's verdict of conviction of possession of a firearm by a felon and the trial court's sentence of ten years in the MDOC's custody are therefore affirmed.

¶ 23. AFFIRMED.

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

      The contents of this interview are not available, and the co-defendant was not called as a witness. However, based upon this interview, police began a search for Billups.

      This officer, Corporal Chris Smith, was deployed to the Middle East during the time of Billups's trial.


text:
    Justin S. HILL a/k/a Justin Scott Hill a/k/a Eckstien a/k/a Justin Hill, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00143-COA
    Court of Appeals of Mississippi.
    September 18, 2018
    ATTORNEY FOR APPELLANT: JUSTIN S. HILL (PRO SE)
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT, JOSEPH SCOTT HEMLEBEN, JACKSON
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. Justin Hill appeals the Alcorn County Circuit Court's denial of his petition for postconviction relief (PCR). Finding no error, we affirm.

FACTS

¶ 2. On May 7, 2009, a grand jury indicted Hill in cause number CR09-066 of Count I, the depraved-heart (second-degree) murder of William Marion, and Count II, leaving the scene of an accident. See Miss. Code Ann. §§ 97-3-19(1)(b) (Rev. 2006), 63-3-401 (Rev. 2004), 63-3-405 (Rev. 2004). As part of a plea agreement, Count I was reduced to culpable-negligence manslaughter. On November 1, 2010, Hill pled guilty in cause number CR09-066 to both culpable-negligence manslaughter and leaving the scene of an accident. The circuit court sentenced Hill to twenty years in the custody of the Mississippi Department of Corrections (MDOC) for Count I and to a consecutive five-year sentence for Count II. The circuit court fined Hill $1,000 for each count. On the same day, Hill also pled guilty by criminal information in cause number CR10-302 to DUI mutilation arising out of the same car accident for injuries suffered by William's wife, Susan Marion. For the DUI-mutilation charge, the circuit court sentenced Hill to twenty-five years in MDOC's custody, with the sentence to run consecutively to Hill's prior sentences.

¶ 3. On October 22, 2013, Hill filed his first PCR petition, which the circuit court denied. On October 7, 2016, Hill filed a "Petition for Correction of Sentence," in which he asserted that his sentences in cause numbers CR09-066 and CR10-302 violated his right against double jeopardy. In its December 13, 2016 order, the circuit court treated Hill's filing as a PCR petition. The circuit court found Hill's instant PCR petition was both successive-writ barred and time-barred. Notwithstanding these procedural bars, the circuit court found no merit to Hill's double-jeopardy claim. The circuit court therefore denied Hill's PCR petition.

¶ 4. Aggrieved, Hill appeals.

STANDARD OF REVIEW

¶ 5. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Bass v. State , 237 So.3d 172, 173 (¶ 4) (Miss. Ct. App. 2017) (quoting Purnell v. State , 126 So.3d 949, 951 (¶ 4) (Miss. Ct. App. 2013) ).

DISCUSSION

¶ 6. Hill's instant petition is procedurally barred as both untimely and a successive writ. Hill contends, however, that his sentences subjected him to double jeopardy, and "the protection against double jeopardy is a fundamental right." Johnston v. State , 172 So.3d 756, 759 (¶ 6) (Miss. Ct. App. 2012). "[E]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Postconviction Collateral Relief Act (UPCCRA) ]." Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010). Thus, notwithstanding the procedural bars, we address the merit of Hill's double-jeopardy claim.

I. Procedural Bars

¶ 7. The UPCCRA "provides a [petitioner] with three years to file a PCR [petition], and failure to do so within the three years is a procedural bar." Duncan v. State , 226 So.3d 127, 129 (¶ 8) (Miss. Ct. App. 2017). Following his convictions in 2010, Hill filed his first unsuccessful PCR petition in 2013. Hill filed his present petition in 2016-five years after his conviction. As a result, Hill's instant PCR petition is time-barred.

¶ 8. "In addition to the time bar, 'under the UPCCRA, any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion.' " Duncan , 226 So.3d at 129 (¶ 9) (quoting Stokes v. State , 199 So.3d 745, 748 (¶ 7) (Miss. Ct. App. 2016) ). Because the instant PCR petition is Hill's second, it is also barred as a successive writ.

II. Double Jeopardy

¶ 9. Hill claims his three convictions arising from the same car accident subjected him to double jeopardy. Because the vehicle Hill drove was involved in all three charges against him, he argues there can really only be one charge. Specifically, Hill asserts he has "been charged with both 'aggravated DUI' and 'culpable[-]negligence manslaughter' in violation of the [Fifth] Amendment[,] which protects the Appellant against ... multiple punishments for the same crime."

¶ 10. Our caselaw is well settled that double jeopardy protects a defendant against multiple punishments for the same offense. Sanders v. State , 149 So.3d 541, 544 (¶ 10) (Miss. Ct. App. 2014). "A conviction can withstand a double-jeopardy analysis only if each offense contains an element not contained in the other. If they do not, the two offenses are, for double-jeopardy purposes, considered the same offense, barring prosecution and punishment for both." Id. (citations and internal quotation marks omitted).

¶ 11. In the present case, Hill first pled guilty to the culpable-negligence manslaughter of William. Relevant to this charge, our caselaw establishes:

A defendant is guilty of culpable-negligence manslaughter if he or she kills another through "negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and this shall be so clearly evidenced as to place it beyond every reasonable doubt."

Hull v. State , 174 So.3d 887, 898 (¶ 31) (Miss. Ct. App. 2015) (quoting Jones v. State , 678 So.2d 707, 710-11 (Miss. 1996) ); see also Miss. Code Ann. § 97-3-47 (Rev. 2006) (defining culpable-negligence manslaughter).

¶ 12. Second, Hill pled guilty to leaving the scene of an accident. Relevant to this charge, section 63-3-401(1) states:

The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of [s]ection 63-3-405.

Section 63-3-405 requires the driver to provide his name, address, and vehicle registration number and to render the victim "reasonable assistance."

¶ 13. Finally, as to Hill's third charge involving the DUI mutilation of Susan, Mississippi Code Annotated section 63-11-30(5) (Supp. 2007) provides:

Every person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables[,] or destroys the tongue, eye, lip, nose[,] or any other limb, organ[,] or member of another shall, upon conviction, be guilty of a separate felony for each such death, mutilation, disfigurement[,] or other injury ....

¶ 14. Our caselaw clearly establishes "a defendant may be convicted for multiple offenses when that defendant drives under the influence [of an impairing substance] and injures multiple people in a single collision." Sills v. State , 105 So.3d 1189, 1191 (¶ 9) (Miss. Ct. App. 2013). Here, Hill was involved in a single car accident that resulted in three separate crimes with two different victims. Because each crime Hill committed contained different elements from the other two, his charges failed to subject him to double jeopardy. As a result, we find his argument lacks merit.

CONCLUSION

¶ 15. Hill's PCR petition is both time-barred and successive-writ-barred. In addition, Hill's assertion that his constitutional rights were violated by double jeopardy lacks merit and fails to overcome the procedural bars. We therefore affirm the circuit court's denial of Hill's instant PCR petition.

¶ 16. AFFIRMED.

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


author: WESTBROOKS, J., FOR THE COURT:

text:
    Tamira PEOPLES a/k/a Tamira Yvonne Peoples a/k/a Tamira Sullivan, Appellant v. STATE of Mississippi, Appelle
    NO. 2017-KA-00431-COA
    Court of Appeals of Mississippi.
    September 18, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: BENJAMIN ALLEN SUBER, GEORGE T. HOLMES, MOLLIE M. MCMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE, Jackson
    BEFORE IRVING, P.J., WESTBROOKS AND TINDELL, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Tamira Yvonne Peoples was indicted by the Grand Jury of Forrest County for murder in violation of Mississippi Code Annotated section 97-3-19 (Rev. 2014) and aggravated assault in violation of Mississippi Code Annotated section 97-3-7 (Rev. 2014). Following a jury trial, Peoples was convicted on both counts and sentenced to life imprisonment for murder and twenty years for aggravated assault, with the sentences to run consecutively. Peoples filed a motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, which the trial court denied. Peoples appeals and asserts that the evidence was insufficient to support her murder conviction, the verdict was against the overwhelming weight of the evidence, the trial court erred in not granting a mistrial, and the State failed to preserve evidence. After review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. At trial, testimony showed that Rotanda Gholar and her daughter, Samina, lived next door to Peoples in an apartment complex in Forrest County, Mississippi. Rotanda and Samina were involved in an ongoing conflict with Peoples. Rotanda stated that she contacted "code enforcement" on Peoples because Peoples's inoperable car was taking up a parking spot. Rotanda also complained about Peoples's loud music and hammering, testifying that she requested to change apartments but was denied. Robert Sybert, an officer with the Hattiesburg Police Department (HPD), testified that Rotanda filed charges against Peoples for allegedly keying her car in their apartment complex.

¶ 3. In November 2012, a person using an unknown number repeatedly called only to hang up when Rotanda answered. Peoples testified she repeatedly called Rotanda and Samina because she was upset at their poor treatment of her and her son. Peoples stated that she received a text message stating that she would contact the police if the calls did not stop. Later that day, Rotanda and Samina were leaving to go look at another apartment in a different apartment complex when Peoples shot Rotanda as she was walking out of her front door. Rotanda was able to run to safety down the street from her apartment. Peoples stated that she shot Samina as she was running up the stairs because she believed Samina had a weapon. But, evidence later showed that Samina had been shot in the head. Moreover, no weapon was ever retrieved from their apartment.

¶ 4. Kendall Walker, a neighbor in the same apartment complex, testified that he heard gunshots and walked outside to investigate the noise. Walker stated that he saw Peoples holding a gun and her son walking out of Rotanda's apartment. Walker also stated that he followed the blood trail and encountered Rotanda. Rotanda then asked Walker to go to her apartment and check on Samina. When he arrived at Rotanda's apartment, Walker testified that Samina appeared to be dead. Walker also saw Peoples flee in Rotanda's car and wave the gun in the air. Peoples later drove the car to Ohio and was apprehended after an alert was issued for the whereabouts of Rotanda's car. Deputy Jeff Smith, a deputy with the Lorain, Ohio Police Department, testified that he discovered Rotanda's car abandoned in a Wal-Mart parking lot.

¶ 5. At trial, Peoples testified that someone was coming into her apartment at night, raping her and beating up her three-year old son, but she did not provide any proof to substantiate her claims. Milan Hoze, the former director of the Hattiesburg Housing Authority, testified that Peoples had lived in another apartment complex and made similar accusations. Members of the Hattiesburg Police Department confirmed that Peoples had filed police reports with similar accusations.

¶ 6. Peoples was convicted of aggravated assault and murder and was sentenced to life in prison for murder and twenty years for aggravated assault. Peoples's JNOV motion, or motion for new trial, was denied by the circuit court and she timely appeals.

DISCUSSION

I. Whether there was sufficient evidence to support Peoples's guilty verdict.

A. Murder Conviction

¶ 7. Peoples challenged the sufficiency of the evidence in her motion for a directed verdict at the end of the State's case and later in her post-trial JNOV motion. "On review of the sufficiency of the evidence, this Court considers the trial court's ruling at the last time the sufficiency of the evidence was challenged."

Warren v. State , 187 So.3d 616, 627 (¶ 29) (Miss. 2016). Further, "[i]n reviewing the denial of a motion for JNOV, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at (¶ 30) (internal quotation mark omitted). Accordingly, we review the trial court's denial of Peoples's JNOV motion.

¶ 8. Peoples argues that the evidence is insufficient to support her murder conviction because the State failed to present evidence of the necessary element of "malice aforethought" beyond a reasonable doubt.

¶ 9. Under Mississippi Code Annotated section 97-3-19(1)(a), "[t]he killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being, shall be first-degree murder." Further, this Court has held:

Deliberate design is synonymous with malice aforethought. Deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent. Deliberate-design connotes an intent to kill and may be inferred through the intentional use of any instrument which, based on its manner of use, is calculated to produce death or serious bodily injury." Id. ; see Hawthorne v. State , 835 So.2d 14, 22-23 (¶¶ 38-41) (Miss. 2003) (inferring deliberate design from the use of deadly weapon).

Hogan v. State , 89 So.3d 36, 39 (¶ 12) (Miss. Ct. App. 2011) (citations and internal quotation marks omitted).

¶ 10. Rotanda testified that she and Samina received numerous phone calls the day of the shooting; however, the caller would hang up when they answered. Rotanda stated that Samina informed the caller that she would call the police if the harassment did not stop. Peoples, however, testified that she called Rotanda and Samina several times that morning because she was mad about the alleged harassment she had endured. The jury heard testimony that Peoples shot Samina with a gun that she purchased a few months earlier. Walker, the neighbor, testified that moments after he heard gun shots, he saw Peoples walk out of Rotanda's apartment. He went to help Rotanda and, shortly after, he discovered Samina had been shot inside the apartment. Peoples testified that shortly after the shooting, she grabbed Rotanda's keys, whatever was at the front door, her son, and drove to Ohio in Rotanda's car. Lastly, Peoples stated that she shot both Rotanda and Samina because Rotanda was going to sign a warrant against her, and she was in fear that her son would be taken and abused.

¶ 11. Furthermore, Dr. Erin Barnhart, former Chief Medical Examiner with the State of Mississippi Crime Lab and Medical Examiner's Office, testified that Samina died of a fatal gunshot wound to the head and that the manner of death was homicide. We find that the evidence was sufficient to enable a reasonable jury to convict Peoples of murder beyond a reasonable doubt. Accordingly, this issue is without merit.

B. Aggravated Assault Conviction

¶ 12. Although it does not appear that Peoples challenges her aggravated assault conviction in her brief before this Court, we will briefly discuss the sufficiency of the evidence for the conviction.

¶ 13. Under Mississippi Code Annotated section 97-3-7(2)(a)(ii), "a person is guilty of aggravated assault if he ... attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm."

¶ 14. The State presented evidence that Peoples intended to cause bodily harm to Rotanda when she shot at her multiple times while she exited her apartment. Jessica Dykes, a paramedic at the scene, testified that Rotanda was shot in the right shoulder, hand, and that the bullet grazed Rotanda's right side. Peoples stated that she believed that Rotanda was upset with her and harassing her. Therefore, applying the same standard of review, we find that the evidence was sufficient to enable a reasonable jury to find Peoples guilty of aggravated assault.

II. Whether the jury verdict was against the overwhelming weight of the evidence.

¶ 15. Peoples also attacked the weight of the evidence by filing a motion for a new trial, which the trial court denied. "A motion for a new trial is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict." Warren , 187 So.3d at 628 (¶ 32). "The [reviewing] court must weigh the evidence in the light most favorable to the verdict." Id.

¶ 16. Without reiterating the facts, the evidence presented at Peoples's trial was in favor of the verdict. The State presented evidence that showed that Peoples deliberately shot Samina to cause her death, and deliberately shot Rotanda to cause bodily harm and injury. Therefore, we find that the verdict was not against the overwhelming weight of the evidence for both convictions.

III. Whether the trial court erred in not granting Peoples's motion for a mistrial.

¶ 17. Peoples maintains that the circuit court erred in failing to declare a mistrial during Rotanda's outburst during direct examination. At trial, Rotanda was shown a picture of Samina and exclaimed, "That's my baby. That's my baby." The circuit court ordered Rotanda to be placed in a witness room away from the jury. The court then dismissed the jury for lunch and entertained Peoples's motion for a mistrial based on Rotanda's outburst and the photo, which the defense argued was prejudicial.

¶ 18. "Whether to grant a motion for mistrial is within the sound discretion of the trial court." Pilcher v. State , 57 So.3d 8, 10 (¶ 6) (Miss. Ct. App. 2010). "The standard of review for denial of a motion for mistrial is abuse of discretion." Id.

¶ 19. The Mississippi Supreme Court affirmed the denial of a mistrial based on an outburst in Bell v. State , 631 So.2d 817 (Miss. 1994). Bell was on trial for murder and the victim's mother exclaimed "he cold-blooded killed my child." Id. at 819. The trial court sent the jury out and removed the victim's mother from the courtroom, and the Supreme Court found that "[a]ny harm flowing from the woman's outburst was removed by the trial judge's proficient handling of the matter." Id. at 820.

¶ 20. Peoples maintains that her case is similar to the facts in Fuselier v. State , 468 So.2d 45 (Miss. 1985). In Fuselier , the victim's daughter sat at the counsel's table and exhibited emotion after having testified. Id. at 53. The Supreme Court held that "[the daughter's] presence at counsel table and open display of emotion presented the jury with the image of a prosecution acting on behalf of the [victim]" and that "it constituted an inflammatory and prejudicial element." Id. Furthermore, the trial court in Fuselier took no curative action after the outburst occurred.

¶ 21. Peoples also references the facts in Craft v. State , 970 So.2d 178 (Miss. Ct. App. 2007). In Craft , "[a]n emotional outburst occurred during the playing of [a] 911 tape." Id. at 184 (¶ 22). After a brief recess, "no special instructions were requested or given to the jury [regarding the outburst]." Id. at (¶ 23). This Court found no error and held that "[t]he trial court was in the better position to assess the impact of the moaning and found a recess was all that was warranted." Id. at 186 (¶ 30).

¶ 22. Here, the trial court removed the jury from the courtroom, took a recess, and allowed Rotanda to compose herself after the remarks were made. Furthermore, the trial court did not allow the admission of the photo into evidence and marked the photo for identification purposes only. Therefore, we find that any harm flowing from Rotanda's outburst was removed by the trial court's proficient handling of the matter.

¶ 23. Accordingly, we find no abuse of the discretion and find that this issue is meritless.

IV. Whether the State failed to preserve evidence.

¶ 24. Peoples maintains that her due-process rights were violated and that she is entitled to a new trial because the State allegedly lost or destroyed bags of evidence recovered from the home where she was arrested.

¶ 25. At trial, Deputy Smith testified that he seized "several bags-three bags, I believe." The State responded by saying that the police report stated that only one bag and its contents were placed into evidence. Where a defendant claims that his or her due-process rights have been violated because the State lost or destroyed evidence, this Court employs the following three-part test:

(1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; (2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and (3) the prosecution's destruction of the evidence must have been in bad faith.

Tillis v. State , 176 So.3d 37, 52 (¶ 46) (Miss. Ct. App. 2014).

¶ 26. As to the first prong of the test, Deputy Smith testified that he believed there were three bags; but the State only submitted one bag, and its contents were placed into evidence. As a result, the State found that Deputy Smith misspoke. Moreover, the State acknowledged that at the time in which the police report was written, Deputy Smith stated that only one bag and its contents were seized as evidence. As a result, the evidence does not satisfy the first prong of the test since the State never possessed evidence with an apparent exculpatory value that it failed to preserve. Moreover, Peoples fails to support her assertion that the State acted in bad faith, and the record reflects no evidence that the State acted fraudulently.

¶ 27. Furthermore, the record supports that Peoples did not file a motion to compel discovery. As a result, we find that Peoples fails to meet the burden set forth in the aforementioned test to show that the State violated her due-process rights by losing or destroying evidence with exculpatory value. Accordingly, we find this issue meritless.

CONCLUSION

¶ 28. After review of the record, we find no error in the denial of Peoples's JNOV motion, or in the alternative, for a new trial.

¶ 29. AFFIRMED.

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

      At trial, Rotanda alleged that Peoples damaged her car using a key. Peoples testified that Rotanda and Samina called her son names and abused him. Peoples stated that she and Rotanda also had issues because they were involved with the same man. Peoples further testified that she and Rotanda had a conflict because she accused Rotanda's cousin of assaulting and harassing her and that Samina called her son a derogatory name.


text:
    Deidi RODRIGUE, Appellant v. Mitchell RODRIGUE, Appellee
    NO. 2017-CA-00499-COA
    Court of Appeals of Mississippi.
    September 18, 2018
    ATTORNEYS FOR APPELLANT: MAURA DELANEY MCLAUGHLIN, LEE PARTEE GORE
    ATTORNEYS FOR APPELLEE: JOHN D. SMALLWOOD, THOMAS T. BUCHANAN, LAUREL
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. On August 31, 2012, the Forrest County Chancery Court granted Mitch and Deidi Rodrigue a divorce. Following Deidi's timely appeal, this Court affirmed in part and reversed and remanded in part the chancellor's judgment. Rodrigue v. Rodrigue , 172 So.3d 1176, 1178 (¶ 1) (Miss. Ct. App. 2014) ( Rodrigue I ). After conducting a second trial on remand, the chancellor entered an amended opinion and final judgment on January 4, 2017. On appeal from the chancellor's amended opinion and final judgment, Deidi argues the chancellor erred (1) in his equitable distribution of the marital estate, (2) in his determination of alimony, (3) by not awarding Deidi attorney's fees, and (4) by not awarding Deidi the costs she incurred in pursuing the first appeal.

¶ 2. In Rodrigue I , we assessed all costs of the appeal to Mitch. Id. at 1190 (¶ 54). On remand, Deidi introduced into evidence a bill showing she incurred $1,543.40 in pursuing the appeal. Because the chancellor erroneously denied these costs, we reverse and render that part of the chancellor's judgment and order Mitch to pay the costs associated with the first appeal. As to the remaining issues regarding the equitable distribution of the marital home, the alimony award, and the denial of Deidi's attorney's fees, we find no error. We therefore affirm in part and reverse and render in part the chancellor's judgment.

FACTS

¶ 3. Deidi and Mitch separated on July 15, 2010, after twenty-one years of marriage. On November 4, 2011, the chancellor entered a temporary order on the issues of custody, visitation, child support, and spousal support. Pursuant to the chancellor's temporary order, Mitch received responsibility for paying the marital debt associated with the marital home, including the mortgage, interest, and taxes.

¶ 4. On August 31, 2012, the chancellor entered a final judgment that granted Deidi a divorce on the ground of uncondoned adultery and awarded her custody of the parties' two minor children. The chancellor ordered Mitch to pay $1,112.66 in monthly child support. With regard to alimony, the chancellor stated:

[T]he [c]ourt finds the payment by Mitch of Deidi's car note on the Honda Pilot ($329.95 per month with a balance of $13,562.41 as presented at trial), of which she will have exclusive use, ownership[,] and possession, to be an appropriate amount of lump[-]sum alimony paid over time. Mitch is obligated to make at least the minimum payments due on the loan until the loan is paid in full. If he chooses to pay the loan off at an accelerated rate, and thus satisfy the obligation in a shorter amount of time and by paying less interest, he will be deemed to have also satisfied his obligation to Deidi as to alimony.

¶ 5. In dividing the parties' marital property, the chancellor ordered them to sell the marital home and divide the equity. The chancellor granted Deidi use and possession of the marital home and ordered Mitch to pay the mortgage, including taxes and insurance, for one year or until the sale, whichever occurred first. The chancellor further ordered that Mitch "be allowed to claim the interest paid on the home mortgage as a deduction on his tax return until the home [was] sold." From the sale proceeds, the chancellor granted Mitch priority for the reimbursement of the mortgage payments he made between the entry of the November 4, 2011 temporary order and the entry of the August 31, 2012 final judgment.

¶ 6. Following the entry of the chancellor's judgment, Deidi filed an unsuccessful posttrial motion. Aggrieved, she appealed. In Rodrigue I , this Court affirmed in part and reversed and remanded in part the chancellor's judgment. Id. at 1178 (¶ 1). In remanding the case for further proceedings on the issues of equitable division and alimony, we stated the chancellor could also revisit the issues related to child support, attorney's fees, private-school tuition, college education, and life insurance. Id. at 1189 (¶¶ 47, 50).

¶ 7. In reversing and remanding the chancellor's judgment as to the marital home, this Court stated:

[I]t appears that the chancellor intended for Mitch to receive the mortgage-interest deduction on his tax return. However, there is nothing in the judgment that would indicate that the chancellor viewed this as alimony or that the chancellor intended for Deidi to incur taxable income for the payment as alimony. The chancellor did not designate the mortgage payment as alimony.
Nevertheless, we are compelled to find that the chancellor failed to "consider the estimated amount of income taxes the respective parties must pay on their incomes when determining the provisions of a divorce agreement." Ivison [v. Ivison ], 762 So.2d [329,] 337 (¶ 29) [ (Miss. 2000) ]. We therefore reverse the chancellor's judgment as to the marital home and remand this matter for the chancellor to consider the proper income-tax consequences that flow from the payment of the mortgage.

Id. at 1184-85 (¶¶ 27-28).

¶ 8. We also reversed the chancellor's alimony award after finding the decision constituted an abuse of discretion. Id. at 1189 (¶ 45). The chancellor's findings had clearly shown Deidi's entitlement to alimony, but the chancellor only awarded Deidi $13,562.41 in lump-sum alimony in the form of a motor vehicle with 100,000 miles on it. Id. Finding such an award to be unjust and grossly inadequate based on the chancellor's findings, we reversed the alimony award and remanded for further consideration of an appropriate lump-sum or periodic alimony amount. Id. at (¶ 46).

¶ 9. On remand, the chancellor held a trial on August 25, 2016, and entered an amended opinion and final judgment on January 4, 2017. In first addressing equitable distribution of the marital property, the chancellor determined "the date of divorce used at the first trial" marked the proper cut off for the accumulation of marital assets. See Collins v. Collins , 112 So.3d 428, 431-32 (¶ 9) (Miss. 2013) ("The law in Mississippi is that the date on which assets cease to be marital and become separate assets-what we refer to herein as the point of demarcation-can be 'either the date of separation (at the earliest) or the date of divorce (at the latest).' " (quoting Lowrey v. Lowrey , 25 So.3d 274, 285 (¶ 27) (Miss. 2009) ) ). The chancellor found that Mitch and Deidi had sold the marital home on May 10, 2013. Pursuant to the August 31, 2012 judgment, Deidi had reimbursed Mitch for the mortgage payments he made between the entry of the temporary order and the sale, and then the parties divided the remaining equity. The chancellor found this resulted in each party receiving $35,796.65 from the sale of the home. The chancellor reaffirmed this division of the marital home as equitable. In addition, the chancellor stated that "the house payments made by Mitch pending the sale of the home did not constitute an alimony payment to Deidi and that Mitch was entitled to the mortgage interest[-]tax deduction and the property[-]tax deduction associated with the marital home."

¶ 10. The chancellor next noted that Mitch's monthly net income at the time of the first trial amounted to $5,546.30, which was roughly four times Deidi's monthly net income at that time of $1,344.67 (not including the child-support payments she received). In determining the parties' marital debt, the chancellor excluded from consideration two loans Deidi had received from her mother and sister for attorney's fees. The chancellor assigned Mitch $39,097.18 of the parties' marital debt, including their daughter's private-school tuition. He assigned Deidi $31,767.07 of the parties' marital debt. The chancellor further stated that any debt Mitch or Deidi thereafter incurred on their assigned debts would be the responsibility of the incurring party.

¶ 11. In discussing the parties' retirement accounts, the chancellor found Mitch's retirement funds amounted to $148,849.61. The chancellor awarded Deidi half the value of Mitch's retirement funds ($74,424.81) minus half the value of her retirement funds ($4,120.84), which amounted to $70,303.97. Because the chancellor's previous judgment had already awarded Deidi $60,852.60 of Mitch's retirement funds, the chancellor ordered the remaining $9,451.37 to be distributed to Deidi through a qualified domestic-relations order.

¶ 12. After distributing the marital property, the chancellor considered an alimony award. The chancellor reaffirmed the findings from his prior judgment on both the Armstrong and Cheatham factors and again determined Deidi was entitled to alimony. The chancellor ordered Mitch to pay Deidi $600 a month in periodic alimony, with the award to terminate upon either party's death or Deidi's remarriage.

¶ 13. The chancellor next considered Deidi's requests for attorney's fees related to both the divorce proceeding and the contempt action. After finding that a total of four hours were attributable to Deidi's contempt action, the chancellor ordered Mitch to pay Deidi $800 for the attorney's fees she incurred in pursuing the contempt action. As to Deidi's request for attorney's fees related to the divorce action, however, the chancellor found Deidi failed to meet her burden of proving the McKee factors and did not plead for appeal costs and fees. As a result, the chancellor denied Deidi's request for attorney's fees for the divorce action.

¶ 14. Following the entry of the chancellor's judgment, the parties each filed posttrial motions. Relevant to this appeal, the chancellor amended his final judgment with regard to Deidi's request for attorney's fees and costs on appeal. After reviewing the pretrial order, the chancellor acknowledged "that appeal costs and attorney['s] fees are listed as an issue at trial on remand." The chancellor found, however, that Deidi presented no evidence at the remand trial as to her appeal costs. The chancellor further found the only evidence Deidi presented of her attorney's fees on appeal was the information "generally included in [her] itemized attorney['s] fee billings." Because the chancellor found Deidi failed to establish at trial either the reasonableness or necessity of those charges, he reaffirmed his denial of her request for costs and attorney's fees on appeal.

¶ 15. Aggrieved, Deidi appeals.

STANDARD OF REVIEW

¶ 16. This Court's review of domestic-relations cases is limited. Turnage v. Brooks , 213 So.3d 103, 105 (¶ 2) (Miss. Ct. App. 2016). We do not disturb a chancellor's factual findings unless the chancellor was manifestly wrong or clearly erroneous or applied an incorrect legal standard. Id. Where substantial evidence supports the chancellor's findings, we lack authority to disturb them. Id. However, we review questions of law de novo. Id.

DISCUSSION

I. Equitable Distribution

¶ 17. Arguing the chancellor erred in his equitable distribution of the marital estate, Deidi asserts the following:

The repayment of the house notes paid by Mitch should not have been reimbursed to Mitch in toto because the house payments were in part support of the children[,] and Deidi owned a one-half interest in the house. Deidi's interest may have been, in part, non-economic. She was penalized for not making the house payments directly. Further, Mitch's attorney's fees were characterized as a marital debt while Deidi's were not.

¶ 18. This Court will affirm the chancellor's distribution of marital assets when supported by substantial credible evidence. Proctor v. Proctor , 143 So.3d 615, 618-19 (¶ 11) (Miss. Ct. App. 2014). In Rodrigue I , the only reason this Court reversed the chancellor's judgment as to the marital home was because "the chancellor failed to 'consider the estimated amount of income taxes the respective parties must pay on their incomes when determining the provisions of a divorce agreement.' " Id. at 1185 (¶ 28) (quoting Ivison , 762 So.2d at 337 (¶ 29) ). We therefore remanded so the chancellor could consider the proper income-tax consequences that flowed from Mitch's payment of the mortgage. Id. On remand, the chancellor considered the issue and determined that Mitch's mortgage payments did not constitute alimony and that he was entitled to the tax deductions associated with the marital home. Because substantial credible evidence supports the chancellor's equitable division of the marital estate, we find Deidi's argument lacks merit.

II. Alimony

¶ 19. Deidi next challenges the adequacy of the chancellor's alimony determination on remand. " 'In the case of a claimed inadequacy of alimony, the appellate court will interfere only where the decision is seen as so oppressive, unjust[,] or grossly inadequate as to evidence an abuse of discretion.' " Proctor , 143 So.3d at 620 (¶ 18) (quoting Armstrong v. Armstrong , 618 So.2d 1278, 1280 (Miss. 1993) ). Here, the chancellor originally ordered Mitch to pay the note on Deidi's vehicle, which amounted to a lump-sum amount of $13,562.41, or $329.95 a month. On remand, the chancellor awarded Deidi $600 in monthly periodic alimony. However, because Deidi remarried on May 14, 2014, her periodic-alimony payments terminated as of that date. See Stroh v. Stroh , 221 So.3d 399, 412-13 (¶ 44) (Miss. Ct. App. 2017) ("[Periodic alimony] has no fixed termination date but automatically terminates upon the remarriage of the recipient or death of the payor.").

¶ 20. On appeal, Deidi asserts the chancellor's new alimony determination resulted in her only receiving $12,300 in periodic alimony. Because this amounted to less than the original lump-sum award of $13,562.41, Deidi argues the chancellor clearly erred. Although we acknowledge the total amount of periodic alimony Deidi received may have been less than the original lump-sum award, we find this alone fails to constitute an abuse of discretion. On remand, the chancellor properly considered the Armstrong factors as required by caselaw and determined Deidi was entitled to alimony. See id. at 413 (¶ 44). Based on his findings, the chancellor then awarded Deidi $600 in monthly periodic alimony. Because substantial credible evidence supports the chancellor's decision, we find no merit to Deidi's argument.

III. Attorney's Fees

¶ 21. Deidi next asserts the evidence clearly showed both her inability to pay her own attorney's fees and a disparity in the parties' relative financial positions. As a result, Deidi argues the chancellor erred by not awarding her the attorney's fees she incurred for both the original appeal and the current appeal. In addition, Deidi contends the chancellor erred by excluding a witness who planned to testify about the reasonableness of her attorney's fees. We review both a chancellor's denial of attorney's fees and exclusion of evidence for abuse of discretion. See Heisinger v. Riley , 243 So.3d 248, 259 (¶¶ 45-46) (Miss. Ct. App. 2018).

a. Exclusion of Witness Testimony

¶ 22. At trial, Deidi attempted to call Michael Ratliff, a local attorney, to testify about the reasonableness of her attorney's fees in accordance with the McKee factors. Mitch objected that Deidi neither designated Ratliff as an expert witness in discovery nor provided the expert opinions to which Ratliff planned to testify. Although the pretrial order listed Ratliff as one of Deidi's witnesses, the chancellor noted that neither party designated any experts. As a result, the chancellor sustained Mitch's objection and excluded Ratliff's testimony. After the chancellor exited the courtroom, Deidi made a proffer of Ratliff's testimony.

¶ 23. "Under the discovery rules, a party must disclose the name and content of any expert witness that it may call to testify." Estate of Baxter v. Shaw Assocs. Inc. , 797 So.2d 396, 400 (¶ 15) (Miss. Ct. App. 2001) (citing M.R.C.P. 26(b) ). In addition, Uniform Chancery Court Rule 1.10(A) provides that, "[a]bsent special circumstances[,] the court will not allow testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial." Because Deidi failed to designate Ratliff as an expert witness as required, we find no abuse of discretion in the chancellor's decision to exclude Ratliff's testimony.

b. Denial of Attorney's Fees

¶ 24. With regard to an award of attorney's fees, this Court recently stated:

Generally, attorney's fees should only be awarded where the moving party has demonstrated an inability to pay. A trial court abuses its discretion by awarding attorney's fees without first finding that the party is unable to pay the fees. Chancellors are instructed to apply the McKee factors in granting or denying attorney's fees. The McKee factors include:
(1) relative financial ability of the parties; (2) the skill and standing of the attorney employed, (3) [the] novelty and difficulty of [the] issues in the case, (4) the responsibility required in managing the case, (5) [the] time and labor required, (6) the usual and customary charge in the community, and (7) whether the attorney was precluded from undertaking other employment by accepting the case.

Black v. Black , 240 So.3d 1226, 1235 (¶ 27) (Miss. Ct. App. 2017) (citations and internal quotation marks omitted).

¶ 25. Without Ratliff's testimony, the only evidence Deidi presented regarding her attorney's fees included three invoices from her attorney and her own testimony about her inability to pay the fees.

In his amended opinion and final judgment, the chancellor concluded this evidence failed to sufficiently prove both Deidi's inability to pay and all of the McKee factors. Because we cannot say the chancellor's decision resulted in an abuse of discretion, we decline to reverse. We therefore find this assignment of error lacks merit.

IV. Appeal Costs

¶ 26. Deidi next argues the chancellor erred by failing to award her the costs she incurred from the previous appeal. " Mississippi Rule of Appellate Procedure 36 governs appeal costs. Rule 36(a) provides for the taxation of costs of appeal to the losing party unless otherwise agreed upon by the parties or ordered by the appellate court." Blake v. Estate of Clein ex rel. Clein , 37 So.3d 622, 627 (¶ 12) (Miss. 2010). In Rodrigue I , this Court assessed to Mitch all costs related to the first appeal. Id. at 1190 (¶ 54). On remand, Deidi introduced into evidence a bill showing she incurred $1,543.40 in pursuing the first appeal. Upon review, we find the chancellor erred by failing to award Deidi those appellate costs. We therefore reverse that portion of the chancellor's judgment and render a decision in Deidi's favor.

CONCLUSION

¶ 27. Because we find the chancellor erred by failing to award Deidi the appellate costs she incurred in Rodrigue I , we reverse that portion of the chancellor's judgment and render a decision in Deidi's favor. With regard to the remaining issues on appeal, however, we find no error. We therefore affirm the chancellor's judgment as to the equitable division of the marital home, alimony, and attorney's fees.

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

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

      During their marriage, the parties had three children. By the time of the first divorce hearing, the parties' eldest child had reached the age of majority.

      The parties sold the marital home on May 10, 2013, which occurred prior to the one-year deadline established in the chancellor's August 31, 2012 final judgment.

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

      Cheatham v. Cheatham , 537 So.2d 435, 438 (Miss. 1988).

      McKee v. McKee , 418 So.2d 764, 767 (Miss. 1982).

      In previously remanding the case, we stated the chancellor was free to revisit his decision to not award Deidi attorney's fees. Rodrigue I , 172 So.3d at 1189 (¶ 47).