author: GREENLEE, J., FOR THE COURT:

text:
    John H. MAGEE a/k/a John Henry Magee a/k/a John Magee, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00703-COA
    Court of Appeals of Mississippi.
    May 29, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, JACKSON, MS.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, JACKSON, MS.
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. A Harrison County jury convicted John Magee of the illegal transfer of a controlled substance in violation of Mississippi Code Annotated section 41-29-139(a)(1) (Supp. 2017), enhanced per section 41-29-147 (Rev. 2013), and as a habitual offender under section 99-19-81 (Rev. 2015). Magee appeals, asserting that the trial court erred by admitting evidence that $21,000 cash was in the trunk of his car, found pursuant to a search warrant. Finding no error, we affirm.

BACKGROUND

¶ 2. In 2015, two Gulfport Police Department narcotics detectives developed information that led them to believe that Magee was selling narcotics. On May 4, 2015, the detectives conducted a controlled purchase, in which Detective Larry McCook posed as an undercover buyer and presented himself to Magee in the parking lot of a retail store. Equipped with a concealed video camera and live audio transmitter, Detective McCook entered Magee's car and purchased four pills from Magee for $150. Testing later revealed three of the pills were oxymorphone and one was hydromorphone.

¶ 3. On May 20, 2015, law enforcement arrested Magee at his home, and pursuant to a search warrant, searched Magee's car. Over 100 dosage units of Schedule II narcotics and approximately $21,000 cash were found in the car. On November 9, 2015, a Harrison County grand jury indicted Magee on four counts: two counts of transferring a controlled substance, one count of trafficking a controlled substance, and one count of possession of a controlled substance with the intent to transfer or distribute. Magee moved to sever the counts, and the State agreed, electing to try count one, transfer of a controlled substance in violation of section 41-29-139(a)(1), with an enhanced penalty per section 41-29-147, and as a habitual offender under section 99-19-81.

¶ 4. In relation to the remaining charges, Magee filed a motion in limine requesting that the trial court exclude any evidence of other alleged drug sales as being more prejudicial than probative. The trial judge granted the motion. During trial, the State requested that Detective McCook be allowed to testify about Magee's arrest and the search of Magee's vehicle. As part of its request, the State sought to introduce testimony concerning the $21,000 cash found in Magee's car. The State contended that this testimony was necessary to tell the "complete story" of the crime because it was unusual for a person to have so much cash in his car. Magee's counsel argued that the specific dollar amount would be overly prejudicial. The trial judge ultimately allowed the testimony.

¶ 5. Velveda Harried, a forensic scientist, confirmed that the pills Detective McCook purchased were oxymorphone and hydromorphone, both Schedule II controlled substances. A video and audio recording of the transfer was played for the jury, and a still photograph of Magee's face, captured during the transfer, was entered into evidence.

¶ 6. Following trial, the jury found Magee guilty. On April 12, 2017, Magee was sentenced as a habitual offender to sixteen years in the custody of the Mississippi Department of Corrections. Magee timely appealed.

DISCUSSION

¶ 7. Magee argues Detective McCook's testimony specifying the amount of cash found in Magee's trunk was inadmissible under Mississippi Rule of Evidence 404(b)(1) and more prejudicial than probative.

¶ 8. We note that, although Magee argues on appeal that Detective McCook's testimony was inadmissible under Rule 404(b), Magee did not assert a specific objection under Rule 404(b) during trial. Magee has therefore waived that issue for review. See Tidwell v. State , 806 So.2d 1146, 1148 (¶ 8) (Miss. Ct. App. 2002). We thus turn to Magee's remaining argument: whether the admission of Detective McCook's testimony concerning the amount of cash found in Magee's trunk was more prejudicial than probative under Mississippi Rule of Evidence 403.

¶ 9. "The admissibility of evidence rests within the discretion of the trial court, ... and reversal is appropriate only when an abuse of discretion resulting in prejudice to the accused occurs." Irby v. State , 893 So.2d 1042, 1047 (¶ 20) (Miss. 2004) (citing Sturdivant v. State , 745 So.2d 240, 243 (¶ 10) (Miss. 1999) ). Further, "[u]nder Rule 403, the exclusion of prejudicial evidence is permissive; that is, if a trial court determines that the prejudicial effect of evidence substantially outweighs its probative value, it is not obligated to exclude the evidence, but may do so at its discretion." Ross v. State , 954 So.2d 968, 993 (¶ 44) (Miss. 2007).

¶ 10. We agree with the trial court that the admission of Detective McCook's testimony concerning the amount of cash found in Magee's car was not unduly prejudicial but probative. In considering whether to admit the testimony, the court heard arguments from both the defense and the State. Magee argued that the admission of the specific amount of cash found in his trunk was more prejudicial than probative because it implied that he was involved in other illegal drug transfers. The State contended the admission of the testimony was necessary to tell the complete story of the crime: the car was searched at the time of Magee's arrest at his home; the cash was found in the same vehicle Magee used to conduct the drug transaction; and the unusually large amount of cash, which was found in close proximity to the narcotics, was unexplained. See Jordan v. State , 158 So.3d 348, 351 (¶ 10) (Miss. Ct. App. 2014). Although the testimony concerning the cash was prejudicial, the trial judge was within his discretion to admit it, and the admission of the testimony did not unduly prejudice Magee to the extent requiring reversal. Further, even if the admission of the specific amount of cash had been error, such error was harmless because the overwhelming "weight of the evidence against [Magee was] sufficient to outweigh the harm done by allowing admission of the evidence." Webb v. State , 113 So.3d 592, 601 (¶ 30) (Miss. Ct. App. 2012). Magee's conviction and sentence are affirmed.

¶ 11. AFFIRMED.

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

      The record does not state the type of drug found in Magee's car.

      Under Mississippi Rule of Evidence 404(b)(1), "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character."

      Rule 403 states: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."


source: Caselaw Access Project

author: FAIR, J., FOR THE COURT: WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

license: Public Domain

text:
    KEESLER FEDERAL CREDIT UNION, Appellant v. Billy W. SAUCIER, Appellee
    NO. 2017-CA-00836-COA
    Court of Appeals of Mississippi.
    May 29, 2018
    ATTORNEY FOR APPELLANT: NICHOLAS VAN WISER, BILOXI
    ATTORNEY FOR APPELLEE: NO APPEARANCE
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Keesler Federal Credit Union appeals from a default judgment obtained against Billy Saucier stemming from two promissory notes. Keesler Federal contends that the circuit court should have required Saucier to pay its attorney's fees for collecting on the second contract. That point is well taken. We remand for the circuit court to reconsider the attorney's fees award in light of our decision. Otherwise, we affirm.

DISCUSSION

¶ 2. Keesler Federal sued on two promissory notes from Saucier. The first had been secured by a vehicle; the second was a personal loan. The deficiency following the sale of the vehicle was approximately $5,200, and the second loan had an outstanding principal balance of about $3,275. On the first loan, Keesler Federal requested and received attorney's fees at the maximum rate allowed under the contract, 15% of the outstanding principal, but the circuit court denied Keesler Federal's demand for attorney's fees on the second loan. Accumulated interest, late fees, and court costs were requested and awarded, also, though no post-judgment interest was added to those awards.

1. Attorney's Fees on the Second Contract

¶ 3. The circuit court's judgment stated that attorney's fees were not awarded on the second contract because "there is [no] contract provision ... concerning attorney's fees." On appeal, Keesler Federal points to a provision on the second page of the contract, which appears by itself near the center of the page and is set off by white space and horizontal lines that run the full width of the page. It states:

Collection Costs:
You agree to pay all costs of collecting the amount you owe under this Agreement, including court costs and reasonable attorney's fees.

¶ 4. Contract construction is reviewed de novo. See, e.g. , Epperson v. SOUTHBank , 93 So.3d 10, 16 (¶ 16) (Miss. 2012). We conclude that the contract unambiguously provides for reasonable attorney's fees and that the circuit court erred in finding otherwise. On this point, we reverse the judgment and remand for the circuit court to reconsider the demand for attorney's fees in light of our decision.

2. Interest on Attorney's Fees, Costs, Accumulated Interest, and Late Fees

¶ 5. Finally, Keesler Federal contends that the circuit court was required to award post-judgment interest at the contract rate on the awards of attorney's fees, court costs, accumulated interest, and late fees. It points to Mississippi Code Annotated section 75-17-7 (Rev. 2016), which provides in relevant part that "[a]ll judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered."

¶ 6. We agree that all of these awards are "founded on contract" and that the statute makes the award of interest mandatory, but Keesler Federal fails to adequately brief the portion of its argument as to how the interest rate of the contract should be determined. The contracts at issue here specified a rate of interest-but on the principal only. Attorney's fees, costs, late fees, and the like were required to be paid by Saucier, but they had no interest rate specified. Thus it appears to us there is an open question as to what constitutes the "rate of the contract" as used in the statute. We are not inclined to decide what seems to be an issue of first impression when it has not been thoroughly argued; Keesler Federal just assumes that the rate of interest on the principal must govern the entire judgment. The trial court obviously disagreed, though the judge did not explain her reasons either.

¶ 7. The trial judge, however, enjoys the presumption of correctness. See Birkhead v. State , 57 So.3d 1223, 1231 (¶ 28) (Miss. 2011). As the appellant, Keesler Federal is required "to demonstrate some reversible error to [the appellate court]." Id. ; see M.R.A.P. 28(a)(6). Keesler Federal has not met that burden, and so we affirm the trial court on this point.

¶ 8. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

IRVING, P.J., GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., GRIFFIS, P.J., BARNES AND CARLTON, JJ.

WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 9. I concur in Part 1 of the majority opinion but dissent as to Part 2. "All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered." Miss. Code Ann. § 75-17-7 (Rev. 2016). In this case, Keesler Federal is entitled to attorney's fees under the "contract[s] evidencing the debt[s] on which the judgment ... was rendered." Id. Therefore, attorney's fees clearly are part of the judgment "founded on" those contracts. Id. The statute provides that the entire "judgment[ ] ... shall bear interest," id. -not just the part that represents the debt sued on. There is no basis in the statute's language for denying post-judgment interest on part of the judgment. The statute also clearly specifies the interest rate for the judgment: "the same rate as the contract evidencing the debt." Id.

¶ 10. The majority seems to agree "that the statute makes the award of interest mandatory," even on the part of the judgment that is attorney's fees. Ante at (¶ 6). Nonetheless, the majority says that Keesler Federal is not entitled to any interest on that part of the judgment because "Keesler Federal just assumes that the rate of interest on principal must govern the entire judgment." Id. The majority says that Keesler Federal has not "thoroughly argued" this "issue of first impression." Id.

¶ 11. I am less bothered by Keesler Federal's assumption. Like Keesler Federal, I assume that the interest rate on the principal applies to the entire judgment. That is what I understand the statute to say: the "judgment[ ] ... shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered." Miss. Code Ann. § 75-17-7. The contractual interest rate is clear, and I would not expect such contracts to provide for different post-judgment interest rates for attorney's fees, court costs, or late fees.

¶ 12. Nor do I fault Keesler Federal for not "thoroughly" arguing the issue. As the majority says, this appears to be an issue of first impression, so there are no on-point cases to cite. In addition, Saucier did not file a brief, so there were no counter-arguments for Keesler Federal to address. The Court can resolve this rather straightforward issue of statutory interpretation without additional argument. See The Federalist No. 78 (Hamilton) ("The interpretation of the laws is the proper and peculiar province of the courts .... It therefore belongs to them to ascertain ... the meaning of any particular act proceeding from the legislative body."); Bureau of Alcohol, Tobacco & Firearms v. Fed. Labor Relations Auth. , 464 U.S. 89, 98 n.8, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983) ("deciding what a statute means" is a "quintessential judicial function").

¶ 13. Raising this issue without resolving it will simply invite litigation. We should just go ahead and interpret the statute. I would hold that the entire judgment bears interest at the contractual rate. Therefore, I respectfully dissent as to Part 2 of the majority opinion.

LEE, C.J., GRIFFIS, P.J., BARNES AND CARLTON, JJ., JOIN THIS OPINION.


author: TINDELL, J., FOR THE COURT: FAIR, J., DISSENTING:

text:
    Chester L. GOSSETT IV, Appellant v. Tiffany Smith GOSSETT, Appellee
    NO. 2016-CA-00672-COA
    Court of Appeals of Mississippi.
    June 5, 2018
    ATTORNEY FOR APPELLANT: TONYA YEVETTE POWELL, Clarksdale
    ATTORNEYS FOR APPELLEE: NICK CRAWFORD, Greenville, VICKI L. GILLIAM, Clinton
    BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. Chester Gossett filed a complaint for divorce from his wife, Tiffany Gossett, on the grounds of adultery and cruel and inhuman treatment or, alternatively, irreconcilable differences. Tiffany answered and filed a counterclaim for divorce on the same grounds. The Washington County Chancery Court dismissed both Chester's complaint and Tiffany's counterclaim. On appeal, Chester argues the chancellor erroneously dismissed his divorce complaint because he presented sufficient evidence to establish both fault-based grounds.

¶ 2. Upon review, we find no manifest error in the chancellor's determination that Chester failed to sufficiently prove cruel and inhuman treatment. We therefore affirm that portion of the chancellor's judgment. As to Chester's adultery allegation, however, we find the chancellor misapplied the relevant legal standard. We therefore reverse the portion of the chancellor's ruling regarding Chester's adultery claim and remand the case for further proceedings consistent with this opinion.

FACTS

¶ 3. Chester and Tiffany met and began dating in 2005. Chester informed Tiffany that he had served thirteen years in prison before being released in 2004 and placed on lifetime supervised parole. The couple dated for almost two years before marrying in 2007. Their daughter was born in June 2011, and in May 2012, the couple bought a home just down the street from Chester's mother's home. Chester's mother, who was a retired teacher, often watched the parties' daughter while the parties worked.

¶ 4. The parties' marriage began to deteriorate in March 2014, leading to their eventual separation in December 2014. On March 25, 2015, Chester filed his divorce complaint, and on April 29, 2015, Tiffany answered and filed her counterclaim for divorce. Each party asserted the fault-based grounds of adultery and cruel and inhuman treatment or, alternatively, irreconcilable differences. On June 30, 2015, the chancellor entered an order granting Tiffany temporary custody of the parties' daughter and granting Chester scheduled visitation. Following a one-day trial, the chancellor entered a final judgment on March 9, 2016, that denied the parties' requested relief, dismissed their divorce filings, and terminated the temporary-relief order. Aggrieved by the dismissal of his divorce complaint, Chester appeals.

STANDARD OF REVIEW

¶ 5. In domestic-relations cases, this Court's review is limited. Williams v. Williams , 224 So.3d 1282, 1284 (¶ 5) (Miss. Ct. App. 2017). We leave the chancellor's factual findings undisturbed 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 will not reverse the decision on appeal. Smith v. Smith , 90 So.3d 1259, 1262 (¶ 7) (Miss. Ct. App. 2011). However, we review the chancellor's interpretation and application of the law de novo. Id. at (¶ 8).

DISCUSSION

¶ 6. Chester argues the chancellor erred by denying his divorce claim because he presented sufficient evidence to establish both adultery and cruel and inhuman treatment. We find no manifest error in the chancellor's ruling as to the issue of cruel and inhuman treatment. We therefore turn to Chester's claim regarding adultery.

¶ 7. To establish adultery, a party "must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination." Larson v. Larson , 122 So.3d 1213, 1215 (¶ 4) (Miss. Ct. App. 2013) (quoting Atkinson v. Atkinson , 11 So.3d 172, 177 (¶ 20) (Miss. Ct. App. 2009) ). "Establishing an 'adulterous inclination' requires proof of either the defendant's infatuation with a particular person or general adulterous propensity." Id. (citing Lister v. Lister , 981 So.2d 340, 344 (¶ 23) (Miss. Ct. App. 2008) ). The plaintiff may prove adultery by either direct evidence or, because of the conduct's inherently secretive nature, circumstantial evidence. Id.

¶ 8. Where a party relies on circumstantial evidence to prove an allegation of adultery, the Mississippi Supreme Court has explained:

[H]e or she retains the burden of presenting satisfactory evidence sufficient to lead the trier of fact to a conclusion of guilty. However, such evidence need not prove the alleged acts beyond a reasonable doubt[,] and the plaintiff is not required to present direct testimony as to the events complained of due to their secretive nature. Nevertheless, the burden of proof is a heavy one in such cases because the evidence must be logical, tend to prove the facts charged, and be inconsistent with a reasonable theory of innocence.

McAdory v. McAdory , 608 So.2d 695, 699 (Miss. 1992) (citations omitted). Our caselaw further recognizes that "[t]he chancellor must set forth specific findings of fact and conclusions of law with regard to an allegation of adultery." Larson , 122 So.3d at 1215 (¶ 4).

¶ 9. In the present case, Chester testified the parties' marital problems significantly escalated in March 2014 after Tiffany grew increasingly secretive, distant, and argumentative. Chester stated that Tiffany began to frequently leave the house without telling him where she was going or what she was doing and that she would stay out until 3 or 4 a.m. two to three nights a week. When he asked Tiffany about her whereabouts, Chester testified that she became argumentative. Chester further stated that, even when home, Tiffany spent most of her time in a different room from him and their daughter and constantly talked or texted on her phone. To corroborate his testimony, Chester offered into evidence several videos he filmed that showed the date, the time, and Tiffany's absence from the home on those occasions. Although Tiffany claimed that she only stayed out until around midnight or 1 a.m., she corroborated Chester's testimony about her frequent absences. Tiffany further acknowledged that she often left the marital home at night because she "hated to be at home with [Chester]."

¶ 10. In addition to coming home at all hours of the night, Chester testified that Tiffany stopped showing him any affection or respect. According to Tiffany's own testimony, she began to sleep in a separate bedroom and refused to have sex with Chester for about a year before the parties separated. When Chester tried to come into her bedroom, Tiffany stated that she moved to the couch or to another bedroom.

¶ 11. The parties officially separated around December 2014 when Chester moved out of the marital home. Following the separation, Chester testified that he received a text-message alert around midnight on January 23, 2015. The alert indicated that $163 had been withdrawn from the parties' joint checking account at a local casino. According to Chester, this was the approximate amount needed to rent a room at the casino's hotel. After arranging for his mother to watch his daughter, Chester drove to the casino, where he discovered Tiffany's car in the parking lot. Around 8 a.m., Chester filmed Tiffany and a man leave the casino together. Chester identified the man as Marcus McElvane, a former customer of Tiffany's when she worked at Lowe's. Chester testified that McElvane drove Tiffany's car to McElvane's mother's house, where McElvane exited the car. Chester offered the video of Tiffany and McElvane into evidence to corroborate his accusations that the two were having an affair. According to Chester, McElvane carried two overnight bags, one of which was pink, to Tiffany's car. Chester testified that he recognized the pink bag as one that belonged to Tiffany.

¶ 12. During her cross-examination, Tiffany admitted that she was at the casino on the night in question, that McElvane was also present, and that, even though the parties were strapped for cash, she spent about $200 of their money. Tiffany denied, however, that she used the money she withdrew to rent a hotel room or that the pink overnight bag McElvane carried to her car belonged to her. Instead, Tiffany testified that she spent the entire evening gambling in the casino and never set foot in one of the casino's hotel rooms. Tiffany further explained that she allowed McElvane to drive her car the next morning because she was tired from gambling all night.

¶ 13. Along with the photos from the casino, Chester produced three photos of a package Tiffany received in March 2015. Although the parties were still married at the time, the package was addressed to Tiffany's maiden name. Furthermore, even though the package was actually shipped from Riverdale, Maryland, where McElvane lived, the package provided Tiffany's home address as the return address. On cross-examination, Tiffany testified that her aunt, who lived in the same area of Maryland as McElvane, had sent the package and addressed it as Tiffany instructed. Tiffany further stated that the package contained clothes for the parties' daughter.

¶ 14. In addition to observing Tiffany and McElvane leave the casino together, Chester testified that he had seen the two together "quite a bit." Chester stated that McElvane had "been coming and going from [the marital] house just like he's supposed to stay there[.]" As support for his claims, Chester offered the testimony of his mother, Evelyn Gossett, who stated that she saw someone leave the marital home one morning after the parties had separated and that she recognized the departing vehicle as McElvane's car. According to Evelyn, she was familiar with McElvane because she knew his mother and had known McElvane since he was a child. Chester also produced two photos taken in June 2015 that showed Tiffany and McElvane sitting and talking together at a club. Although Tiffany denied any wrongdoing when asked about these photos, she admitted that, at the time the pictures were taken, she and McElvane met at the club every Thursday evening.

¶ 15. Based on the evidence presented, the chancellor acknowledged that one could logically conclude Tiffany committed adultery with McElvane. Even so, the chancellor ultimately found the evidence did not support only a finding of guilt but could also be consistent with a reasonable theory of innocence. With regard to the casino incident, the chancellor reasoned that, because McElvane lived in Maryland, it was "not unreasonable for him to stay at a casino hotel, particularly if he planned on staying out late." The chancellor drew this conclusion even though McElvane's mother lived in the area and McElvane carried to Tiffany's car two overnight bags, one of which was pink. Though she found the pink overnight bag suspicious, the chancellor still concluded it was "not unreasonable for [McElvane] to have two overnight bags." The chancellor also reasoned that "[i]t [was] not unknown for people to gamble at a casino all night[,] and [it was] not unreasonable that a man would drive for a woman who ha[d] been up all night gambling[.]" With regard to Chester's remaining evidence, the chancellor found that much of it was uncorroborated and that Chester could not satisfy his burden merely with "he said, she said" testimony. As a result, without ever making a determination as to witness credibility, the chancellor concluded that Chester failed to sufficiently prove adultery.

¶ 16. Upon review, we find the chancellor misapplied the relevant legal standard to Chester's adultery allegation. The chancellor determined that Chester presented insufficient evidence of adultery because his proof did "not lead one only to the conclusion of guilty[.]" However, the chancellor's ruling failed to take into account that, as the factfinder, she possessed the authority to determine witness credibility, to resolve discrepancies in the evidence, and to interpret the evidence "where it is capable of more than one reasonable interpretation[.]" Betts v. Betts , 224 So.3d 94, 98 (¶ 16) (Miss. Ct. App. 2016) (quoting Trim v. Trim , 33 So.3d 471, 479 (¶ 20) (Miss. 2010)

).

¶ 17. Unlike the dissent sets forth, we do not find the chancellor applied an erroneous legal standard. Rather, as stated, we find the chancellor misapplied the correct legal standard. The dissent relies heavily on Mitchell v. Mitchell , 767 So.2d 1037, 1041 (¶ 12) (Miss. Ct. App. 2000), for the premise that proof of adultery in a circumstantial-evidence case must "lead one only to the conclusion of guilt[.]" However, such a holding would require an even higher evidentiary standard than that of beyond a reasonable doubt when, in cases such as this, the applicable standard is clear and convincing evidence. See McAdory , 608 So. 2d at 699. In McAdory , which Mitchell cites, the supreme court never stated that the proof in a circumstantial-evidence case must lead the factfinder only to a conclusion of guilt. Instead, McAdory provided that a party seeking to prove adultery must do so by clear and convincing evidence and to the exclusion of any reasonable theory of innocence. See id. To the extent that Mitchell implies otherwise, Mitchell misapplies the correct legal standard of clear and convincing evidence discussed in McAdory . See id.

¶ 18. As the chancellor here acknowledged, the parties' evidence might be capable of more than one reasonable interpretation. However, as discussed, such a fact does not automatically demonstrate a failure by Chester to present sufficient evidence of adultery. On remand, the chancellor should exercise her factfinding authority to assess witness credibility and to interpret the evidence. See Betts , 224 So.3d at 98 (¶ 16). In so doing, if the chancellor finds Tiffany to be more credible, then she may conclude that Chester did, in fact, fail to present sufficient evidence of adultery. However, if the chancellor determines Chester to be the more credible witness, then she may find he provided sufficient evidentiary support for his adultery claim.

CONCLUSION

¶ 19. We find no manifest error in the chancellor's determination that Chester presented insufficient proof of cruel and inhuman treatment. We therefore affirm that portion of the chancellor's judgment. However, with regard to Chester's adultery allegation, we find the chancellor misapplied the relevant legal standard. We therefore reverse that portion of the chancellor's judgment so that, on remand, the chancellor may exercise her factfinding authority. On remand, the chancellor should determine witness credibility and interpret and resolve conflicts in the evidence to determine whether Chester presented sufficient evidence of adultery.

¶ 20. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

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

FAIR, J., DISSENTING:

¶ 21. The majority reverses the chancellor's judgment based on its finding that the chancellor "misapplied" the legal standard for proof of adultery. In fact, the chancellor was quoting from one of our decisions, Mitchell v. Mitchell , 767 So.2d 1037, 1041 (¶ 12) (Miss. Ct. App. 2000), which the majority would overrule. In my judgment, Mitchell was just paraphrasing the rule followed by Mississippi Supreme Court for a hundred years. I can find no error in the legal standard, as the chancellor articulated or applied it, and I would affirm the chancery court's judgment.

¶ 22. In particular, the majority finds objectionable the chancellor's holding that Chester's "proof did not lead one only to the conclusion of guilty." Ante at (¶ 16) (emphasis in original). That is nearly a word-for-word quote from Mitchell , 767 So.2d at 1041 (¶ 12), including the emphasis: "The circumstantial evidence presented by Eddie does not lead one only to the conclusion of guilt as required by case law." According to the majority, Mitchell should be overruled on that point because it erroneously applied the legal standard from McAdory v. McAdory , 608 So.2d 695, 699 (Miss. 1992), which Mitchell cited. In McAdory , the supreme court stated that the circumstantial proof of adultery must "be inconsistent with a reasonable theory of innocence ." McAdory , 608 So.2d at 699 (emphasis in original). Since one can only be innocent or guilty of adultery, and if the proof must be "inconsistent with a reasonable theory of innocence," it follows that sufficient proof must only lead to the conclusion of guilt. Mitchell , 767 So.2d at 1041 (¶ 12). In my judgment, the two statements are logically equivalent.

¶ 23. The particular articulation of the rule used in McAdory and Mitchell dates to at least 1918, when the supreme court held in Banks v. Banks , 118 Miss. 783, 788, 79 So. 841, 842 (1918), that the proof "must be inconsistent with a reasonable theory of innocence." It is instructive to read the supreme court's holding in Banks more fully, with my emphasis added:

Where an offense of this kind is sought to be proven by circumstantial evidence, the circumstances must be proven with reasonable certainty, and the circumstances so proven must be such that the conclusion sought to be established follows logically from the facts. If there are two or more reasonable theories which may be drawn from the facts proven, the proof will be insufficient because, to invest mere circumstances with the force of truth, the conclusion must not only be logical, and tend to prove the facts charged, but must be inconsistent with a reasonable theory of innocence.

Id. at 787-88, 79 So. at 842.

¶ 24. The majority actually concedes that "the parties' evidence might be capable of more than one reasonable interpretation." Ante at (¶ 18). If that is the case, then "the proof will be insufficient" under Banks because "there are two or more reasonable theories which may be drawn from the facts proven." Banks , 118 Miss. at 787, 79 So. at 842. The proof fails under McAdory because the evidence was not "inconsistent with a reasonable theory of innocence ." McAdory , 608 So.2d at 699 (emphasis in original). And the evidence "does not lead one only to the conclusion of guilt." Mitchell , 767 So.2d at 1041 (¶ 12) (emphasis in original). These are all just different ways of saying the same thing.

¶ 25. The majority also faults the chancellor for stating that "he said, she said" testimony is insufficient to meet the burden. This is also a quote from Mitchell : "[T]he burden remained on Eddie to prove his claim of adultery.... This burden cannot be met with only 'he said, she said' testimony alone." Mitchell , 767 So.2d at 1041 (¶ 12) (citing Dillon v. Dillon , 498 So.2d 328, 330 (Miss. 1986) ). I concede that there may be some potential for mischief in that choice of words, as Mitchell intended them to be a comment on the weight of the evidence required-clear and convincing-and not a statement that the chancery court lacks the authority to resolve conflicting testimony. But it is apparent to me that the chancellor knew better; she properly used the quote as a comment on the burden of proof. She wrote:

While the proof of an adulterous affair need not be beyond a reasonable doubt, and direct evidence is not required given the inherently secretive nature of adulterous relationships, the evidence must be clear and convincing, and inconsistent with a reasonable theory of innocence. The burden remains on the Plaintiff to prove his claim of adultery. This burden cannot be met with "he said, she said" testimony alone. Mitchell [, 767 So.2d at 1041 (¶ 12) ]. Although the conclusion that the Defendant committed adultery with Marcus may be logical, the circumstantial evidence presented by the Plaintiff does not lead one only to the conclusion of guilt as required by case law. Therefore, the court finds that the evidentiary basis for a finding of adultery on the part of the Defendant is insufficient.

¶ 26. I can see nowhere in the chancellor's opinion where she denied her authority to resolve conflicting testimony, and the majority points to no example of conflicting testimony that went unresolved. In fact, there does not appear to have been any conflicting testimony as to the circumstantial evidence of Tiffany's alleged adultery, as Chester's testimony as to finding his wife socializing with another man was accompanied by photographs, and Tiffany herself did not deny the socializing occurred. I can find no error here.

¶ 27. I would conclude that the chancellor followed well-established Mississippi law and that her judgment should stand in its entirety.

WILSON AND GREENLEE, JJ., JOIN THIS OPINION. WESTBROOKS, J., JOINS THIS OPINION IN PART.

      As necessary, we relay any additional facts during our analysis and discussion of the issues.

      The same language was included in McAdory , 608 So.2d at 700, and other cases. See, e.g. , Owen v. Gerity , 422 So.2d 284, 287 (Miss. 1982) ; Pool v. Pool , 989 So.2d 920, 925 (¶ 14) (Miss. Ct. App. 2008).


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

text:
    Renee Diane Thacker SELLERS, Appellant v. Nicholas Richard RINDERER, Appellee
    NO. 2016-CA-01536-COA
    Court of Appeals of Mississippi.
    June 5, 2018
    ATTORNEY FOR APPELLANT: BRANDON L. BROOKS, Hattiesburg
    ATTORNEY FOR APPELLEE: PHILLIP LONDEREE, Petal
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Renee Diane Thacker Sellers appeals the Lamar County Chancery Court's Albright analysis and award of physical custody to Nicholas Richard Rinderer ("Nick"). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Nick and Renee are the natural parents of Melanie, born in May 2013, and Paul, born in March 2014. Nick and Renee were never married. Both Melanie and Paul were born to the parties while Renee was married to another man, Michael Sellers. Renee and Michael were divorced November 24, 2014, and share a daughter, Sophia.

¶ 3. This action commenced on August 12, 2013, when Nick filed a "complaint for adjudication of paternity, custody, support and other matters," along with a complaint for emergency custody. A temporary order was entered August 21, 2013, which adjudicated Nick the natural father of Melanie, awarded joint legal custody to Nick and Renee, and temporary physical custody to Renee. Nick was awarded visitation two days per week. Additionally, the chancellor ordered Nick and Renee to meet with and be evaluated by Dr. John Pat Galloway. A guardian ad litem (GAL) was subsequently appointed by the chancellor.

¶ 4. A review hearing was held on October 3, 2013, wherein it was noted that Renee was pregnant and Nick was "believed by the parties to be the father" of the child. Nick's visitation with Melanie was increased to include overnight visitation. Additionally, the chancellor ordered the parties to undergo a psychological evaluation. Thereafter, Nick and Renee were evaluated by Dr. Beverly Smallwood.

¶ 5. During a hearing on August 25, 2014, the chancellor found that DNA testing confirmed Nick was Paul's natural father. The chancellor awarded Nick graduated visitation with Paul and ordered the parties to attend counseling.

¶ 6. On February 18, 2015, the Lamar County Department of Human Services filed a complaint for support and other relief against Nick regarding child support for Melanie and Paul. On February 1, 2016, the chancellor ordered Nick to pay $193 per month in child support and expanded Nick's visitation with the children to three full days per week, beginning 6:00 p.m. Tuesday to 6:00 p.m. Friday. Nick subsequently amended his "complaint for adjudication of paternity, custody, support and other matters" to include Paul.

¶ 7. Following a two-day trial, the chancellor entered an opinion and final judgment on August 5, 2016, wherein he adopted the findings, report, and recommendations of the GAL. "Based on the credible evidence and consideration of the [ Albright ] factors and findings," the chancellor awarded joint legal custody of Melanie and Paul to Nick and Renee, and physical custody to Nick, with Renee "having periods of visitation more than standard."

¶ 8. Renee moved for reconsideration, which the chancellor denied. Renee now appeals and argues the chancellor erred in his Albright analysis and decision to award physical custody to Nick.

STANDARD OF REVIEW

¶ 9. A "chancellor's findings will not be disturbed upon review unless the chancellor was manifestly wrong, clearly erroneous[,] or applied an incorrect legal standard." Irving v. Irving , 67 So.3d 776, 778 (¶ 11) (Miss. 2011). However, questions of law are reviewed de novo. Id.

ANALYSIS

¶ 10. In all child-custody cases, the primary consideration is the best interest and welfare of the child. Albright , 437 So.2d at 1005. When conducting an Albright analysis, the following factors are to be considered:

(1) age, health, and sex of the child; (2) a determination of the parent that has had the continuity of care prior to the separation; (3) which has the best parenting skills and which has the willingness and capacity to provide primary child care; (4) the employment of the parent and responsibilities of that employment; (5) physical and mental health and age of the parents; (6) emotional ties of parent and child; (7) moral fitness of the parents; (8) the home, school and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) stability of home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship.

Mitchell v. Mitchell , 180 So.3d 810, 815 (¶ 9) (Miss. Ct. App. 2015). "When reviewing the [chancellor]'s application of the Albright factors, the appellate court reviews the evidence and testimony presented at trial under each factor to ensure the [chancellor]'s ruling was supported by [the] record." Id. at 816 (¶ 10) (internal quotation mark omitted).

¶ 11. Here, the record shows the chancellor addressed and considered each Albright factor. Renee claims the chancellor erroneously applied five of the Albright factors: age, health, and sex of the child; continuity of care; parenting skills and the willingness and capacity to provide primary child care; physical and mental health and age of the parents; and other factors relevant to the parent-child relationship. We address each of these factors separately.

I. Age, Health, and Sex of the Child

¶ 12. The chancellor noted the age, health, and sex of both children and found this factor to be neutral. Renee asserts "there is still a presumption that a mother is generally better suited to raise a young child" and argues that "[d]ue to the age of the children and the fact that [Melanie] is a baby girl, the chancellor should have found this factor in favor of [her] ...." However, as properly noted by the chancellor, "our supreme court has significantly weakened the once strong presumption that the mother is generally best suited to raise a young child. Now, our high court sees age and sex of the child as merely factors to be considered under Albright ." Carter v. Escovedo , 175 So.3d 583, 586 (¶ 11) (Miss. Ct. App. 2015) (citation and internal quotation marks omitted). "Mississippi law does not support [Renee]'s argument that a child's mother, as opposed to the father, is the best caregiver by default." Mitchell , 180 So.3d at 816 (¶ 12). Accordingly, we find no manifest error by the chancellor.

II. Continuity of Care

¶ 13. Renee asserts the chancellor found this factor to be neutral and argues, "[w]ithout question, this factor should have favored [her]." However, the record clearly shows that both the GAL and the chancellor found this factor favored Renee. Thus, as noted by Nick, "[t]his issue appears to have been raised in error."

III. Parenting Skills and Willingness and Capacity to Provide Primary Child Care

¶ 14. The GAL found this factor to be neutral. However, the chancellor ultimately concluded this factor favored Nick. We find the chancellor's findings are supported by the record.

¶ 15. The chancellor noted that "both parties describe that they are the ones who provide for the child's needs in bathing, meals, dressing, etc., while the children are in their care." Renee argues this "go[es] against the testimony at trial," which showed that Nick's parents assisted in the child-care duties and shared those duties of primary caregiver with Nick. Renee claims that because she "had much more involvement in the children's care than [Nick]," this factor should favor her.

¶ 16. However, the record shows Renee's parents also assisted in caring for the children. Indeed, at the time of trial, Renee lived with her parents, who assisted in the child-care duties while Renee was at work. Thus, it appears multiple people including the children's parents and grandparents were involved in the children's care. Simply because Renee claims to have had "more involvement" is insufficient to reverse the chancellor's conclusions on this issue.

¶ 17. Renee further argues that Nick's failure to pay child support until ordered to do so should have been a negative reflection of his parenting skills. She cites no authority in support of her argument.

¶ 18. In Hollon v. Hollon , 784 So.2d 943, 948 (¶ 16) (Miss. 2001), the chancellor found that "neither parties['] parenting skills, willingness[,] [or] capacity to take care of the child, [wa]s greater than the other." On appeal, the supreme court disagreed and found the mother held an advantage over the father. Id. at (¶ 18). The supreme court noted that the father "had not paid his child support obligations regularly, forcing [the mother] to garnish his wages." Id. at (¶ 16) (emphasis added).

¶ 19. Here, unlike in Hollon , there is no evidence that Nick failed to pay his child-support obligations. Instead, the record shows once the child-support payments were determined and ordered, Nick executed a withholding order to have those payments automatically withheld from his paycheck. Additionally, the record shows that prior to the court-ordered child support, Nick provided for the children while in his custody. Moreover, text messages between the parties indicate Nick requested copies "of what [Renee thought he] owe[d]." However, according to Nick, he never received the requested copies. Nick testified that he never received a copy of a bill for the children and declined to pay it. We find Renee's argument regarding child support fails.

¶ 20. Importantly, while not mentioned or addressed by Renee, the record reflects that the chancellor was very concerned about photographs admitted into evidence that showed the children's condition while in Renee's care. The chancellor found that the photographs were "compelling as to the care given the children while with Renee when compared to that given by Nick" and stated "this factor impacts the parenting skills testimony offered by each parent and favors Nick."

¶ 21. The photographs, which were taken beginning in February 2014, show bruises, cuts, scrapes, scars, rashes, and bug bites on the children. The chancellor found that the photographs were "troubling ... as to their continuance over an extended period of time while the children [were] with Renee."

¶ 22. At trial, the GAL, who had reviewed a copy of the photographs, also expressed concern "as to the vastness and the regularity and the consistency of the injuries and the rashes and the type of abrasions that do not seem of the norm for regular child's play." The GAL explained:

[c]hildren that age can get scars, but, again, I think every-all of the injuries and issues that those pictures depict collectively are certainly of a concern. Whether it be an issue of a lack of supervision, I don't know; but, ultimately, it raises concerns as to how it's happening so regularly and so consistently.

¶ 23. When questioned about the photographs, Renee simply stated that "at least 50 percent of [the bruises, cuts, scrapes, rashes, etc.] occurred at Nick's house." However, she admitted that she had no support for her claim.

¶ 24. Overall, we determine that the chancellor's findings regarding this factor are supported by substantial evidence in the record. Renee's claim that this factor should favor her is without merit.

IV. Physical and Mental Health and Age of the Parents

¶ 25. The GAL found, and the chancellor agreed, that this factor favored Nick. Renee argues "the only evidence offered at trial that [she] suffered from any mental-health issues were the reports from Dr. Smallwood and Dr. Galloway, who[ ] also stated that [Nick] suffered from the same issues." Thus, it appears Renee claims this factor should have been neutral. We disagree and find the GAL and chancellor's concern over Renee's mental health is supported by the record.

¶ 26. Dr. Smallwood conducted a psychological evaluation on the parties and found that "Nick and Renee have the very same traits related to the potential personality disorders of histrionic, compulsive, and narcissistic." Additionally, Dr. Galloway noted that both parties had mental-health issues that may interfere with their taking care of a minor child. However, Dr. Galloway opined that "Renee presented many symptoms of having more severe mental[-] health issues but that her diagnoses was underdetermined at that time." Thus, while Dr. Smallwood found Nick and Renee "ha[d] the very same traits," Dr. Galloway determined Renee had more significant mental-health issues.

¶ 27. In her report, the GAL also expressed concern over Renee's mental health. Specifically, the GAL noted "Renee's admission to a suicide attempt and her extreme paranoid thoughts." These paranoid thoughts included Renee's belief that "she had been implanted with a device in her arm that evidenced a blue light when she lifted her arm over a dish mat [that] Nick [had] purchased."

¶ 28. At trial, Nick discussed Renee's paranoid thoughts. He acknowledged Dr. Smallwood's opinion regarding "the same traits" but noted:

I don't have a history of the things that [Renee] does; and even though a multiple[-]choice test might put us categorically in the same area, I don't have the same history that she does. I've never kept bladed scalpels around my kids. I've never torn up my car looking for cameras, I never thought that people were bugging my house, and I have never thought people were following me.

¶ 29. Additionally, the record shows Renee often gave conflicting testimony and made uncorroborated claims against Nick. Renee blamed Nick for her financial situation and advised the GAL that her financial issues, including her Chapter 7 bankruptcy, were Nick's fault because he was abusive. Moreover, Renee testified that every one of Nick's witnesses lied. However, when asked if she had any evidence to support that statement other than her own testimony, Renee responded, "Unfortunately, I don't ...."

¶ 30. Renee acknowledged at trial that aside from the counseling and evaluations ordered by the chancellor, she had not undergone any treatment for any mental-health issues. Instead, she claimed her paranoia and mental-health issues were no longer a problem since her separation from Nick.

¶ 31. The GAL testified at trial that "as of today" she had no concerns about the mental health of either party. However, she stated that, based on the trial testimony, she would not modify her Albright findings or her "ultimate conclusion of the Albright factors."

¶ 32. We find that although the GAL did not express any current concern, there is substantial evidence in the record to support the GAL and chancellor's overall concern for Renee's mental health. Thus, there is no manifest error in the chancellor's findings on this factor.

V. Other Factors Relevant to the Parent-Child Relationship

¶ 33. The GAL found "Renee's current living conditions [were] not ideal for the two children" and noted that the two children "share a [bed]room with Renee, which includes another person when their half-sibling, Sophia, stays during Renee's visitation periods." The GAL concluded that the parties' living environments favored Nick. The chancellor agreed and recognized that although "a home need not be an expensive or lavish one to meet the needs of raising children," there are serious concerns about Renee's home environment "including cleanliness, space, furnishings, and supervision."

¶ 34. Renee claims she was "unfairly punished" and "improperly sanctioned ... for the incorrect belief that she shared a bedroom with the children." Renee argues "this factor should have been held as neutral." We disagree.

¶ 35. The chancellor's findings regarding this factor were based on more than a shared bedroom. While Renee addressed the chancellor's concern over the shared bedroom, she failed to address the chancellor's other concerns regarding cleanliness and supervision. Moreover, even though the children no longer share a bedroom with Renee, the record shows that Renee and the two children live in a three-bedroom, two-bath home with four other people (Renee's parents, her brother, and her daughter, Sophia). We find the chancellor's conclusions regarding Renee's living environment are relevant to the parent-child relationship and supported by the record.

CONCLUSION

¶ 36. "An Albright analysis is not a mathematical equation." Mitchell , 180 So.3d at 816 (¶ 10). The chancellor "is in the best position to listen to the witnesses, observe their demeanor, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses." Id. at (¶ 14) (internal quotation mark omitted). We "cannot reweigh the evidence and must defer to the [chancellor]'s findings of facts, so long as they are supported by substantial evidence." Id. at (¶ 10). "When a chancellor properly applies and considers [the Albright factors], there is no manifest error." Id. at 819 (¶ 31).

¶ 37. We find the chancellor properly applied and considered the Albright factors. The chancellor's award of physical custody to Nick is supported by substantial evidence in the record. We therefore affirm.

¶ 38. AFFIRMED.

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

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

      For privacy purposes, we substitute fictitious names for the minor children.

      Paul had not yet been born.

      The chancellor's supervision concerns were related to the photographs discussed above.


author: CARLTON, J., FOR THE COURT:

text:
    Elias GUNN a/k/a Elias Scott Gunn, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00753-COA
    Court of Appeals of Mississippi.
    June 5, 2018
    ATTORNEY FOR APPELLANT: ELIAS GUNN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Elias Gunn was arrested and indicted for possession of cocaine while he was on probation for armed robbery. The State petitioned to revoke his probation, listing Gunn's cocaine-possession indictment as a violation of the terms of Gunn's probation. Gunn filed a motion for postconviction relief (PCR) in the Madison County Circuit Court, seeking to have his probation reinstated based upon alleged defects and errors occurring at his revocation hearing. The circuit court found that this was Gunn's second PCR motion challenging the same probation-revocation decision and dismissed Gunn's PCR motion as a successive writ.

¶ 2. On appeal, Gunn seeks reversal of the circuit court's dismissal of his second PCR motion, asserting that he was denied due process at his revocation hearing because he was not provided with the evidence relied upon to revoke his probation. Gunn further asserts that the cocaine-possession indictment against him was an insufficient basis for revoking his probation.

¶ 3. We find no error in the circuit court's dismissal of Gunn's second PCR motion as a successive writ, and we further find, based upon our review of the record and the applicable law, that Gunn has raised no error affecting his fundamental constitutional rights that would serve as an exception to the successive-writ procedural bar. We therefore affirm the circuit court's dismissal of Gunn's second PCR motion.

FACTS AND PROCEDURAL HISTORY

¶ 4. On November 16, 2001, Elias Gunn pleaded guilty to armed robbery. After accepting Gunn's guilty plea, the Madison County Circuit Court sentenced Gunn to serve a 20-year sentence in the custody of the Mississippi Department of Corrections (MDOC), with the last eight years suspended on conditions specified in the Judgment of Conviction and Sentence Instanter, and with five years of probation to begin at the expiration of the unsuspended portion of the sentence.

¶ 5. On May 4, 2015, while he was on probation, Gunn was arrested for possession of cocaine in Hinds County, Mississippi, and was indicted on that charge on February 26, 2016. On March 29, 2016, the MDOC probation department filed a petition for revocation based on that indictment. The record contains the petition for revocation, which was acknowledged and signed by Gunn on April 7, 2016.

¶ 6. A revocation hearing was held on May 16, 2016. Gunn was represented by counsel. Gunn's counsel also set for hearing Gunn's motion for disclosure of evidence seeking an order for the State to disclose its evidence against Gunn concerning the cocaine-possession charge, which was the basis for the State's petition for revocation. After hearing argument on the motion for disclosure of evidence, the circuit court proceeded with the revocation hearing.

¶ 7. The State's witness was Gunn's probation officer, Officer Rico Mazique, who testified that he was supervising Gunn when he was arrested for possession of cocaine on May 4, 2015. The hearing transcript further reflects that Officer Mazique filed his petition for revocation after he found out about Gunn's February 2016 indictment on the cocaine-possession charge. A copy of the indictment was entered as an exhibit at the revocation hearing.

¶ 8. After Officer Mazique's direct examination, the circuit court addressed Gunn's motion for disclosure of evidence, first stating that in the petition for revocation, the probation department "alleged that the Defendant [Gunn] had been indicted in Hinds County cause No. 16-121JAW for the new crime of possession of [a] controlled substance, that being cocaine." The circuit court observed that the State was moving forward only on that violation as the basis for revocation and then stated that Officer Mazique, who testified about the cocaine-possession violation, was present for the defense to cross-examine. Defense counsel stated that he had no questions for Officer Mazique. The circuit court denied the motion for disclosure of evidence to the extent Gunn sought additional evidence, holding that the State had disclosed the evidence against Gunn supporting the revocation petition relating to the cocaine-possession indictment through the testimony of Officer Mazique.

¶ 9. Gunn then took the stand at his revocation hearing. Gunn testified that he understood what was charged against him under the indictment, but he denied that he committed the crime. The defense did not put on any other witnesses or evidence.

¶ 10. After hearing the testimony and the argument of the parties, the circuit court observed on the record that the applicable standard for revocation is whether it is more likely than not that the defendant violated one of the terms and conditions of his probation. The circuit court held that "an indictment, which is a finding of probable cause, is sufficient." In its order of revocation, the circuit court also found that it had jurisdiction over the defendant and the subject matter of the proceeding; that Gunn had been timely served with true copies of the petition for revocation, the supporting affidavit, and a disclosure of the evidence; that Gunn was fully advised of and understood the allegations, as well as the evidence, against him; and that the allegations contained in the petition were supported by substantial evidence to prove that Gunn committed the following acts and omissions constituting a violation of his probation: an indictment in Hinds County Case Number 16-121 JAW for committing the new crime of possession of cocaine. The circuit court found that the petition for revocation should be granted; fully revoked Gunn's probation, allowing 21-days credit for pre-hearing detainment; and ordered Gunn to pay court costs, fees, and assessments. The order of revocation was entered on May 19, 2016.

¶ 11. Gunn filed his first PCR motion in Madison County Circuit Court on September 15, 2016, in Civil Action No. 45CIl:16-cv-00183-c. Gunn argued that his due process rights were violated under the order of revocation because his suspended sentence was imposed; and because revocation was imposed before Gunn was lawfully convicted of the cocaine-possession charge against him. Based upon its review of the May 16, 2016 revocation hearing transcript, as well as the petitioner's criminal file (Cause No. 2001-0009-C), the circuit court determined that Gunn was not entitled to any relief under his first PCR motion. The circuit court summarily dismissed Gunn's first PCR motion under Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) by judgment entered October 10, 2016. Gunn did not appeal the circuit court's judgment dismissing his first PCR motion.

¶ 12. On April 17, 2017, Gunn filed a second PCR motion in Madison County Circuit Court before the same judge that heard his first PCR motion. Gunn again challenged the circuit court's revocation of his probation. Gunn claimed that his due process rights were violated because he was "coerced" into signing a waiver of his preliminary hearing; the cocaine-possession indictment was defective and was an insufficient basis for revoking his probation; he was not provided evidence supporting revocation of his probation; and he was denied the opportunity to present witnesses or documentary evidence at his revocation hearing.

¶ 13. The circuit court summarily dismissed Gunn's second PCR motion as a successive writ on April 24, 2017, as follows:

[T]he Court being aware that petitioner previously filed a Motion for Post-Conviction Collateral Relief in Civil Action No. 45CIl:16-cv-00183-c that was dismissed on October 10, 2016, the Court finds that the petition does not fall within the exceptions to [section] 99-39-23(6) and should be dismissed as a successive writ.[ ]

¶ 14. In this appeal concerning the circuit court's dismissal of his second PCR motion, Gunn asserts that his due process rights were violated when his probation was revoked because (1) he was not provided with the evidence relied upon to revoke his probation; and (2) the cocaine-possession indictment against him was an insufficient basis for revoking his probation.

STANDARD OF REVIEW

¶ 15. "When reviewing a circuit court's denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are clearly erroneous; however, we review the circuit court's legal conclusions under a de novo standard of review." Berry v. State , 230 So.3d 360, 362 (¶ 3) (Miss. Ct. App. 2017).

DISCUSSION

I. Successive-Writ Procedural Bar

¶ 16. In its order dismissing Gunn's second PCR motion, the circuit court held that the motion was barred as a successive writ. The Uniform Post-Conviction Collateral Relief Act (UPCCRA) 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."). The UPCCRA, however, provides a number of exceptions to the successive-writ bar, including, in relevant part, "those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked." Id. Gunn, as the movant, bears "the burden of proving by a preponderance of the evidence that his claim[ ] [is] not barred as [a] successive writ[ ]." Grogan v. State , 89 So.3d 617, 621 (¶ 10) (Miss. Ct. App. 2011) (internal quotation mark omitted).

¶ 17. Gunn asserts that his probation was unlawfully revoked in this case, but he did not raise this point before the circuit court or this Court as an exception to the successive-writ bar as provided by section 99-39-23(6). He therefore waived this issue. Fluker v. State , 17 So.3d 181, 182-83 (¶¶ 4-5) (Miss. Ct. App. 2009).

¶ 18. Even if he had raised this issue, however, a review of Gunn's first PCR motion in Civil Action No. 45CIl:16-cv-00183-c shows that Gunn challenged the same revocation decision that he now attacks in his second PCR motion. As the Mississippi Supreme Court unequivocally recognized in Fluker v. State , 170 So.3d 471, 475 (¶ 10) (Miss. 2015), "a second or subsequent challenge to the same revocation decision is barred as a successive motion under Section 99-39-23(6)." Applying that principle to the case before it, the Court held that, although based upon different grounds, "Fluker's second post-conviction challenge to the same revocation decision that he attacked in his first motion for PCR was barred as a successive pleading under Section 99-39-23(6)." Id. The same principle applies here. Based upon the record and the applicable law, we affirm the circuit court's determination that Gunn's second PCR motion challenging the same revocation decision that he challenged in his first PCR motion was procedurally barred as a successive writ under section 99-39-23(6).

II. Fundamental Rights Exception to the UPCCRA's Procedural Bar

¶ 19. 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) ; see Fluker , 170 So.3d at 475 (¶ 11). "[O]nly four types of 'fundamental rights' have been expressly found to survive PCR procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws." Salter v. State , 184 So.3d 944, 950 (¶ 22) (Miss. Ct. App. 2015). Gunn, 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). The record reflects that Gunn failed to meet this burden.

¶ 20. Based upon the foregoing, we affirm the circuit court's dismissal of Gunn's second PCR motion because it is barred as a successive writ.

¶ 21. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      In the circuit court's order that is the subject of this appeal, the circuit court relied on Gunn's first PCR motion in dismissing Gunn's second PCR motion as a successive writ. Upon this Court's order, the record was supplemented with the pleadings from Civil Action No. 45CIl:16-cv-00183-c on April 5, 2018.

      The circuit court also found that "in relation to petitioner's guilty plea and sentencing for armed robbery on November 16, 2001, the Court finds that the petition does not fall within the exceptions to [section] 99-39-5(2) and should be dismissed as time-barred." Gunn does not address this holding on appeal; we therefore do not address it in our opinion.

      See Miss. Code Ann. § 99-39-23(6) ; Fluker , 170 So.3d at 475 (¶ 10).


text:
    Christopher Lee THOMPSON a/k/a Christopher Thompson a/k/a Christopher L. Thompson, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00555-COA
    Court of Appeals of Mississippi.
    June 12, 2018
    ATTORNEYS FOR APPELLANT: LUANNE STARK THOMPSON, ABERDEEN, TIFFANY LEIGH KILPATRICK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Christopher Lee Thompson was convicted of manslaughter in violation of Mississippi Code Annotated section 97-3-35 (Rev. 2014). On appeal, he argues that the trial court erred in denying his motion for a directed verdict pursuant to the Weathersby rule. We find no error and affirm.

FACTS

¶ 2. Around 5:30 a.m. on March 4, 2014, Thomas James called 911 and reported that he believed that his brother-in-law, Thompson, had killed someone. The dispatcher later testified that Thompson told James that "[Thompson] thought he killed [Thomas Harlow because] he had pushed his eyes into the back of his head." James gave the dispatcher Thompson's address, and authorities were dispatched. Deputy Wayne Wilbanks went to Thompson's house and questioned him. Meanwhile, Deputy Patrick Chism was dispatched to the scene of the crime at Harlow's sister's trailer. Upon his arrival, Deputy Chism entered the trailer and found Harlow's dead body. He was later joined by Investigator Brandon Davis.

¶ 3. Davis testified that the body was found in a bedroom where it was evident that Harlow had been badly beaten and an altercation had taken place. Harlow was "black and blue" and had blood running from his head and eyes. Potted plants had been overturned, and there was an overturned television on the ground near Harlow's body. After investigating the crime scene, Davis interviewed Thompson at the police station.

¶ 4. During the interview, Thompson said that he and his wife had been out drinking with Harlow until the early morning of March 4. After leaving a bar, the three went to Harlow's sister's trailer to continue drinking and listen to music. When Thompson suggested it was time to go home, Harlow offered to let Thompson and his wife sleep in a spare bedroom to avoid driving home drunk. Thompson agreed, and everyone went to sleep.

¶ 5. Thompson testified that at about 2:00 a.m., he was awoken by someone pulling off his underwear and performing oral sex. Thompson initially thought it was his wife, but he soon discovered that it was Harlow. It was undisputed that an altercation followed, but the precise events varied to some extent when Thompson relayed them to people.

¶ 6. Thompson's brother-in-law, James, encountered Thompson not long after the incident. According to James, "[Thompson] said he hit [Harlow]. They were scuffling. [Thompson] said he grabbed [Harlow's] head and shoved his thumbs in his eyes. [Thompson] picked up a TV and hit [Harlow] with it. And after that [Thompson] said he realized [Harlow] wasn't moving [anymore] and [Thompson and his wife] left." James stated that he told Thompson that they needed to call the police and have someone check on Harlow, but Thompson declined. James then secretly called 911 and the dispatcher sent officers to Thompson's house and ultimately to the scene of the crime at Harlow's sister's trailer.

¶ 7. Thompson's account to Wilbanks was slightly different. Thompson told Wilbanks that after Harlow woke him up, he started punching Harlow and screaming for his wife to turn on the lights. The lights came on and he heard Harlow fall on the floor. Thompson told Wilbanks he "thought he had knocked [Harlow] out because he heard [Harlow] moan." Thompson and his wife then left. Thompson did not mention the television or gouging Harlow's eyes.

¶ 8. During Davis's interview, Thompson said that when he discovered that it was Harlow who was performing oral sex, Thompson grabbed Harlow's hair and punched him three or four times and told his wife to turn on the light. Thompson stated that he and Harlow ended up on the floor and Thompson elbowed Harlow. By the time that Thompson's wife turned on the light, Harlow was knocked out, so Thompson and his wife left the scene. During the interview, Thompson denied hitting Harlow with anything other than his fists, including the overturned television set. He also stated that he did not believe that Harlow needed medical attention or that he had gouged Harlow's eyes. Davis swabbed Thompson's penis. Testing later confirmed the presence of Harlow's DNA. This evidence was admitted during trial and the recorded interview was played for the jury.

¶ 9. At trial, Thompson himself testified that after he discovered it was Harlow, he grabbed Harlow by the hair and screamed for his wife to turn on the lights. Thompson testified that because Harlow was significantly larger than him and attempting to get to his feet, Thompson pushed Harlow backward into a dresser, knocking off the items that were on top of the dresser in order to escape. Thompson stated he tried to escape the still pitch-black room by throwing the television out of his way. According to Thompson, he and Harlow got tangled up again on the floor with Thompson on top. Thompson stated that in order to escape, he elbowed Harlow twice and unknowingly pressed his fingers into Harlow's eyes. By this time, Harlow's grip loosened, the lights came on, and Thompson and his wife fled the trailer.

¶ 10. The jury also heard from Dr. Mark Levaughn, the chief medical examiner for the state of Mississippi. He testified that he performed Harlow's autopsy, and Harlow's death resulted from "multiple blunt traumatic injuries." He described Harlow's injuries as follows:

[S]tarting from the head to the toe, there was a large contusion, about ten centimeters, which is about four or five inches, on the left [side of Harlow's] forehead. There was an abrasion or scrape mark and a small laceration or a tear along the left eye on the cheek bone. There was contusion on the lips and the mouth. There was massive hemorrhage in both eyes. There were two separate areas of bruising in the back of the neck. There were abrasions on the elbows and there were some abrasions on the left chest, the abdomen area. Internally there was bleeding of the surface of the brain and there was actually a tearing of a small area of the brain tissue itself.

Dr. Levaughn went on to testify that since fingers and televisions are blunt objects, he agreed with the State that the hemorrhaging on the surface of the eyes could be consistent with fingers pushing into the eyes and that the head injuries could be consistent with a television. However, he also stated that a television is not the only thing that could have caused the head injuries. Regardless, Dr. Levaughn ultimately concluded that Harlow's injuries were not consistent with "one or two blows."

¶ 11. The jury heard and considered these accounts of what happened from numerous witnesses including Thompson himself, as well as the conclusions from Dr. Levaughn. The circuit court also instructed the jury on Thompson's claim of self-defense. Thompson was convicted of heat-of-passion manslaughter and sentenced as a nonviolent habitual offender to serve twenty years, day-for-day with credit for time served, in the custody of the Mississippi Department of Corrections. Thompson was ordered to pay a $1,000 fine and restitution of $6,500 to the Mississippi Crime Victim's Compensation Fund and $938 to Harlow's sister, Sheila Randle.

ANALYSIS

¶ 12. Thompson argues that the trial court erred in denying his motion for a directed verdict pursuant to the Weathersby rule. On appeal he argues that because he was the only eyewitness presented at trial able to testify to the events surrounding Harlow's death, and his account was uncontradicted by any material particulars, either from other witnesses that testified at trial or physical evidence, his account must be accepted as true in accordance with the Weathersby rule.

Therefore, Thompson argues that his conviction must be overturned.

¶ 13. In a criminal proceeding, in order to determine whether the evidence was sufficient to sustain a conviction in the face of a motion for a directed verdict, "the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed." Bryant v. State , 232 So.3d 174, 178-79 (¶ 7) (Miss. Ct. App. 2017). "Where the evidence fails to meet this test, it is insufficient to support a conviction." Id. at 179 (¶ 7). "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." Jones v. State , 904 So.2d 149, 153-54 (¶ 12) (Miss. 2005).

¶ 14. In Weathersby , 165 Miss. at 207, 147 So. at 482, the Mississippi Supreme Court held that:

where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

The supreme court has recognized that:

[t]his rule simply makes it mandatory for the court and jury to accept the testimony of the defendant who testifies that the defendant acted in self-defense where there is no testimony to contradict his version of the homicide, and where there are no physical facts or evidentiary circumstances on which a contrary finding could be reasonably predicated.

Johnson v. State , 346 So.2d 927, 929 (Miss. 1977).

¶ 15. "[T]he rule is used as a guide for whether a judge should grant a directed verdict, and a defendant who meets the Weathersby standard is entitled to a directed verdict of acquittal." Brown v. State , 176 So.3d 1, 13 (¶ 35) (Miss. 2015). "The applicability of the Weathersby rule is a determination for the court...." Johnson v. State , 987 So.2d 420, 425 (¶ 10) (Miss. 2008). However, "[t]he rule is not applicable where the defendant's version of the story is unreasonable or contradicted by physical facts." Brown , 176 So.3d at 13 (¶ 35). Stated differently, "[w]here the physical facts and circumstances in evidence materially contradict the defendant's version of what happened, the Circuit Court is not required to direct a verdict under Weathersby . Rather, the matter then becomes a question for the jury." Buchanan v. State , 567 So.2d 194, 197 (Miss. 1990).

¶ 16. On appeal Thompson contends that none of the testimony or physical evidence presented at trial materially contradicted his recitation of events of the night that Harlow died. The State submits that Thompson's testimony was materially contradicted by the physical evidence and the various statements he made prior to trial. In rebuttal, Thompson argues that "[t]he State has not presented substantial contradictions in material particulars." We disagree with Thompson.

¶ 17. Thompson seems to ignore Dr. Levaughn's testimony. Dr. Levaughn testified that Harlow's injuries were inconsistent with one or two blows-which contradicts Thompson's testimony as discussed in further detail below. Rather, Dr. Levaughn opined that Harlow's death was a homicide caused by multiple instances of "severe blunt force trauma" or "beating" with "the most significant injuries [being] the injuries to the head, which caused brain injury and ultimately death." He indicated that hemorrhaging on Harlow's brain and eyes could have at least caused "severe visual impairment" or blindness while Harlow was still alive and was "very consistent" with fingers being pushed forcefully into the eyes. These findings clearly contradict Thompson's testimony. Thompson conceded as much when asked whether it was "clear that there were a great many more injuries to [Harlow] than [he] described to either [Davis] or on the stand[.]"

¶ 18. Likewise, as highlighted previously, the versions of events that Thompson testified to at trial was inconsistent with accounts that he gave to Wilbanks, Davis, and James; as each of their versions also vary from each other. In other words, Thompson's account varied from witness to witness.

¶ 19. At trial, James testified that Thompson told him just hours after Harlow's death that Thompson hit Harlow with the television and gouged Harlow's eyes. Thompson mentioned the television during his testimony, but only in the context of moving it out of his way so that he could exit the room. Meanwhile, Thompson denied using the television in his interview with Davis and failed to mention the television at all when speaking with Wilbanks.

¶ 20. During his testimony, Thompson stated that he elbowed Harlow while struggling to escape. He told Wilbanks that he punched Harlow after he discovered that Harlow was performing oral sex on him, and he and his wife left after she turned on the light. During his interview with Davis, Thompson stated that he hit Harlow with his elbow and knocked Harlow out, and then he and his wife left. He denied hitting Harlow with anything other than his fist. He also denied that he had gouged Harlow's eyes.

¶ 21. Thompson's own account and the versions of his accounts from other witness, as well as Dr. Levaughn's testimony, were materially contradicted by each other especially when considering the severity of Harlow's injuries. In the similar case of McElwee v. State , 255 So.2d 669, 671 (Miss. 1971), the supreme court stated:

It is true that [the] appellant was the only eyewitness to the shooting, but his own voluntary statement to the sheriff and the investigator to some extent contradicted his testimony given at the trial. These contradictions together with the fact that [the] appellant immediately left the scene and never reported the incident to the sheriff or anyone else, were sufficient to take the case out of the Weathersby rule.

Likewise, Thompson's statements to Wilbanks and Davis, as well as his brother-in-law, James, to some extent contradict his trial testimony. Additionally, Thompson fled the scene of the crime and did not report the incident to the police. In fact, he declined James's recommendation that he do so, which prompted James to call 911.

¶ 22. The Weathersby rule "is inapplicable when the defendant's conduct and statements following the killing are inconsistent with his version of the events as recounted at trial." Parvin v. State , 212 So.3d 863, 871 (¶ 18) (Miss. Ct. App. 2016) (internal quotation mark omitted). Therefore, we find that Thompson was not entitled to a directed verdict based on the Weathersby rule due to several material contradictions throughout his trial. The trial court properly denied the motion for a directed verdict pursuant to Weathersby , as Thompson's trial testimony was inconsistent with the physical evidence and the various accounts that he gave to others.

¶ 23. Since the Weathersby rule has no application in this case, the matter was correctly placed in the hands of the jury without giving a jury instruction regarding the Weathersby rule. See Thomas v. State , 818 So.2d 335, 349-50 (¶¶ 48-50) (Miss. 2002). This issue is meritless.

¶ 24. AFFIRMED.

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

      Weathersby v. State , 165 Miss. 207, 147 So. 481 (1933).