author: GRIFFIS, J., KING, C.J.,

text:
    In the Matter of the ESTATE OF Robert Wayne HALL, Deceased. Alice Mitchell, Appellant, v. David Poynor, Appellee.
    No. 2007-CA-01787-COA.
    Court of Appeals of Mississippi.
    June 16, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied April 8, 2010.

      George M. Mitchell, Eupora, attorney for appellant.
    Tina Marie Scott, Houston, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶1. On September 18, 2007, the Chancery Court of Calhoun County, Mississippi entered an order finding that Robert Wayne Hall (“Hall”) deceased, had the requisite mental capacity when he executed his Durable Power of Attorney and his Last Will and Testament, and that any presumption of undue influence in the execution of either Hall’s power of attorney or Hall’s will was rebutted by clear and convincing evidence. Alice Mitchell (“Mitchell”), who had contested the validity of the will and power of attorney executed by Hall, has now appealed that decision, identifying two assignments of error, which we state verbatim: (1) the trial court erred by not finding a lack of testamentary capacity at the time of execution of the will, as well as a failure to properly follow established procedures for the execution to be valid; and (2) the trial court correctly found a confidential relationship between Hall and David Poynor (“David”), but it erred when it ruled that this confidential relationship was overcome by clear and convincing evidence. We find no error and affirm.

FACTS

¶ 2. Hall died on May 5, 2003. He was survived by a full-blood sister, Mitchell; a half-blood sister; and two nephews, Joe and John David Mitchell. Hall was divorced and had no children.

¶ 3. In March 2001, Hall, a river boat engineer, became ill aboard a river boat, and he was admitted to Natchez Regional Medical Center. Upon admission, Hall was diagnosed with small cell lung cancer with metastases to the right frontal brain and supraclavicular lymph node area. After he was released from the hospital in April 2001, Hall moved to Eupora, Mississippi, where he resided in a house on Mitchell’s property. For the next four months, Hall lived in Eupora and received radiation and chemotherapy treatment at the North Mississippi Medical Center in Tupelo, Mississippi.

¶4. Mitchell testified that in August 2001, Hall moved to Big Creek, Mississippi to be closer to some of his friends and hunting buddies. In Big Creek, Hall requested the assistance of David, a longtime friend, to find a place to live. Hall was unable to find a place available in close proximity to David. As a result, David invited Hall to build a house or put a trader on his property. Hall purchased a trailer and moved onto David’s property.

¶ 5. Between August 2001 and December 2002, Hall continued to receive radiation and chemotherapy at North Mississippi Medical Center in Tupelo, during which time his cancer went into remission. When Hall traveled to Tupelo for treatments or other medical appointments, he was frequently accompanied by Melissa Poynor (“Melissa”), David’s wife.

¶ 6. On January 9, 2003, Hall was admitted to the hospital in Tupelo, where it was determined that his brain cancer had returned. In an effort to provide Hall some relief from the severe headaches associated with his illness, and possibly prolong his life, he was scheduled to undergo a craniotomy on January 16, 2003. Hall’s physicians informed him that there were significant risks associated with this type of surgery and advised him to get his affairs in order.

¶ 7. David testified that on January 10, 2003, Hall instructed him to contact the law office of Terry James (“James”) to obtain a power of attorney. David testified that he went to James’s office that afternoon and spoke with Charles Brown (“Brown”), James’s paralegal. Brown testified that David and his daughter, Christy Poynor Collum (“Christy”), arrived at the office just prior to closing. Because he knew David, Brown let them into the office. Brown testified that David explained that a power of attorney was required by a friend of his who had been told by physicians to execute a power of attorney quickly. Brown immediately prepared a durable power of attorney using a form from the office computer. He gave the power of attorney to David and explained the necessary steps for its execution. The durable power of attorney empowered David to make healthcare decisions for Hall should he be unable to do so and to conduct Hall’s business affairs.

¶ 8. David and Christy went to the hospital where Hall executed the power of attorney, which was then notarized by Christy. This power of attorney was filed with the Calhoun County Chancery Clerk and copies were provided to the hospital and BancorpSouth in Houston, Mississippi. Although Christy testified that she read the durable power of attorney to Hall, her testimony conflicts with David’s as to whether or not Hall read the power of attorney or whether it was read to him. Nevertheless, Christy stated that she notarized the power of attorney outside of David’s presence.

¶ 9. On the morning of January 13, 2003, David returned to James’s law office and told Brown that Hall was scheduled to have surgery within two to three days, and Hall needed to execute a will quickly. Brown testified that he or James had to talk with Hall about the contents of the will, and because James was not feeling well that day, Brown went with David to visit Hall in the hospital. That evening, after work hours, David drove Brown to Tupelo. Brown testified that he interviewed Hall about the will outside of David’s presence. Brown stated that the following day, he discussed his notes from the interview with James, created a draft of the will, and gave the draft to James to review. According to Brown, later that day when David came to the office to pick up the will, he gave David instructions on how to execute the will. David testified that later that evening he, Melissa, and his in-laws drove to Tupelo to have Hall sign the will. Gwendolyn Pannell Gibson and LaDonna Miller McCarley, who were nurses who had assisted in Hall’s care, testified that they witnessed Hall execute the will. However, neither of them knew if Hall read the will, had it read to him, or had it discussed with him. Mitchell testified that Hall was on medication that would have had some impact on his ability to read or understand the provisions of the will.

¶ 10. Hall underwent surgery on January 16, 2003, and was subsequently discharged from the hospital on January 24, 2003. Medical records indicate that Hall was discharged home to be cared for by the Poynors.

¶ 11. On April 21, 2003, during a followup visit to the oncologist, Hall was informed that the tumor had returned. Melissa testified that although the doctors offered Hall some medical options, he refused to undergo any additional treatment or surgery. David testified that on April 23, 2003, on Hall’s instruction he used the power of attorney to transfer $35,000 from a joint checking account, which Hall had with Mitchell at BancorpSouth in Houston to a separate checking account bearing Hall’s, David’s, and Melissa’s names. David testified that Hall instructed that David and Melissa were to use these funds to pay any expenses and outstanding debts which Hall incurred during his illness and to retain the balance for their personal use. Hall died on May 5, 2003. David and Melissa paid Hall’s funeral expenses of approximately $6,000, and they retained the balance of approximately $29,000 as a gift.

¶ 12. On June 24, 2003, Mitchell filed a petition styled as Petition for Grant of Letters of Administration, Appointment of Administratix, and other Relief and Caveat to Last Will and Testament of Robert Wayne Hall Prior to Filing for Probate, and Complaint for Determination of Ownership of Assets in Joint Bank Account and Recruitment of Assets until Ownership Adjudicated in the Calhoun County Chancery Court. The Calhoun County Chancery Court granted letters of administration to Mitchell on June 24, 2003. On June 25, 2003, David filed a petition to probate Hall’s last will and testament and for letters testamentary with the Chancery Court of Calhoun County and a motion to revoke Mitchell’s letters of administration. On June 26, 2003, the chancellor ordered the letters of administration granted to Mitchell suspended and all of Hall’s assets frozen.

¶ 13. On September 5, 2003, at the request of Mitehell, the chancellor set a hearing to determine whether Mitchell as administratrix of Hall’s estate or David as executor named in Hall’s will should manage the estate and protect its assets. The hearing was held on September 24, 2003. On December 4, 2003, the chancellor filed an order granting Mitchell authority to file notice of creditors; directing Hall’s life insurance policy in the amount of $8,000 be paid into the registry of the court and to be held until resolution of the estate; directing all assets of the estate especially those removed by David and Mitchell be frozen; directing the parties to work together to secure insurance on the mobile home; directing that neither of Hall’s vehicles be utilized or driven to prevent any wear or tear on the vehicles and because no insurance existed on the vehicles; and granting the parties the authority to access Hall’s medical records.

¶ 14. The chancellor heard the case on the merits on January 30 and 31, 2007. At the conclusion of the trial, the chancellor took the issues under advisement. On September 18, 2007, the chancellor ruled that the durable power of attorney and the will were valid. The chancellor opined that although a confidential relationship existed between Hall and David, David had overcome the presumption of undue influence by clear and convincing evidence. In addition, the chancellor ruled that David could retain the remaining portion of the $35,000 he had removed from Hall’s joint checking account with Mitchell. The chancellor further ruled that Mitchell could retain the remaining portion of the $6,500 she had removed from the joint checking account. Aggrieved, Mitchell timely filed a notice of appeal.

STANDARD OF REVIEW

¶ 15. “This Court will not disturb a chancellor’s findings of fact in a will contest unless the findings are clearly erroneous, manifestly wrong, or the chancellor applied an incorrect legal standard.” In re Estate of Thornton v. Thornton, 922 So.2d 850, 852(¶ 6) (Miss.Ct.App.2006). “Questions of law, however, are reviewed de novo.” Id.

ANALYSIS

I. Validity of the Will

¶ 16. Mitchell argues that the trial court erred in finding that Hall’s will was valid because Hall lacked the testamentary capacity to execute his will. Mitchell asserts that Hall’s illiteracy, his medical condition, the type and the amount of medication he was taking, all prohibited him from possessing the requisite mental capacity to execute the will on January 14, 2003. David offered medical records and the testimonies of Hall’s nurses, who witnessed him execute his will, to rebut Mitchell’s assertions.

¶ 17. In order to execute a will in Mississippi, a person must be over eighteen years of age and be of sound and disposing mind. When there is a contest as to the validity of a will, the proponents of a will bear the responsibility of establishing its validity. O’Bannon v. Henrich, 191 Miss. 815, 821, 4 So.2d 208, 209 (1941). “The proponents of the will meet their burden of proof by the offering and receipt of the •will into evidence and the record of probate.” In re Estate of Holmes v. Holmes-Price, 961 So.2d 674, 679(¶ 13) (Miss.2007). “The proponents make a pri-ma facie case solely on this proof.” Id. at 679-80. Once the proponents make a pri-ma facie case, “[t]he burden then shifts to the contestants to overcome the prima fa-cie ease, but the burden of proof remains with the proponents to show by a preponderance of evidence that the testator had capacity.” Id. at 680. “Testamentary capacity requires that the testator/testatrix have the ability to understand and appreciate the nature and effect of his/her act.” In re Will of Wasson; Gallaspy v. Gallaspy, 562 So.2d 74, 77 (Miss.1990). “Such capacity requires that the testator/testatrix recognize the natural objects of his/ her bounty and their relation to him/her and that they be able to determine what disposition they desire to make of their property.” Id. We test the capacity to make a valid will as of the date of the execution of the will. Id.

¶ 18. Hall was born on January 29, 1946. He was fifty-six years old on January 14, 2003, the day he executed his will. Nurses Gibson and McCarley testified that they witnessed Hall execute his will and signed affidavits acknowledging that Hall was over eighteen years of age and was of sound and disposing mind when he executed his will.

¶ 19. Gibson stated that Hall’s severe headaches could have prevented him from thinking coherently, and one of his medications, Keppra, could have made Hall a little drowsy. Gibson testified that on January 14, 2003, she conducted three four-hour intervals neurological check assessments (at 8:00 p.m.; 12:00 midnight; and 4:00 a.m.) after she came on duty at 7:00 p.m. The neurological check assessments consisted of making a determination of whether Hall could recall his name, the date, where he was, the time, the level of limb movement and body strength. Gibson testified that although she did not recall what time she witnessed Hall’s execution of the will, Hall’s assessments remained unchanged throughout the night. Gibson stated that according to Hall’s medical records, the assessments made around the time the will was executed indicated that Hall was awake, alert, oriented, lucid, and coherent in thought, memory, and speech. Gibson also stated that there was nothing in her observation that indicated that Hall was not lucid or incoherent when he signed the will.

¶ 20. Hall’s admission records indicated that he had no barriers to learning, and his preferred learning methods were both written and verbal instruction. Hall’s medical records indicated that around the time Hall would have executed the will, Hall verbalized that he was not in any pain. Hall’s medical records also showed that whenever the hospital personnel had conducted a plan of care instruction, Hall had verbalized an understanding of his plan of care. MeCarley testified that she had no doubt that Hall was of sound and disposing mind when he executed the will.

¶ 21. The chancellor concluded that Hall’s will was valid. The chancellor held that “at all relevant times, the evidence unequivocally showed that Hall was awake, alert, oriented, and coherent in thought, memory, and speech.” This Court has previously held that “[t]he chancellor is the fact-finder and is charged with the obligation of resolving disputes between the parties and likewise is the sole arbiter of the credibility of the witnesses.” In re Estate of Volmer v. Volmer, 832 So.2d 615, 622(¶ 21) (Miss.Ct.App.2002). As the fact-finder, the chancellor determined that the nurses were credible witnesses. In this case, the chancellor held that “the proponent has shown by a preponderance of the evidence that [Hall] was of sound and disposing mind, i.e., possessing testamentary capacity, when he executed his will on January 14, 2003.” The chancellor opined that attempts to rebut the evidence included only vague testimony that Hall lacked testamentary capacity at the time the will was executed. The chancellor also stated that although Mitchell claims Hall was under the influence of strong medication at the time, the medical records revealed that Hall “was not taking any regularly prescribed pain medication; in fact, the overwhelming weight of the evidence at trial indicated that Hall was lucid, coherent and fully capable of understanding and appreciating the nature of his act.” We find that there was insufficient evidence in the record to support Mitchell’s claim of lack of testamentary capacity. Thus, the chancellor did not abuse his discretion in finding that Hall’s will was valid. Therefore, this issue is without merit.

II. Execution of the Will

¶ 22. While a party may be found to have the testamentary capacity to execute a will, if that will is found to be the product of undue influence, fostered by a confidential relationship, the will may still be found invalid. Estate of Lawler v. Weston, 451 So.2d 739, 743 (Miss.1984). Where it is found that a confidential relationship exists, the proponent of the will must overcome by clear and convincing evidence the presumption of undue influence. Id.

¶ 23. The chancellor held that a confidential relationship existed between Hall and David. The chancellor opined that aside from the parties not disputing that a confidential relationship existed, the following facts demonstrate the existence of a confidential relationship and create a presumption of undue influence: (1) the fact that Hall was taken care of by David and Melissa during his illness; (2) Hall maintained a close relationship with David for more than thirty-five years; (3) David and his family provided Hall transportation and food; (4) Hall shared a joint bank account with David and Melissa; and (5) Hall executed a durable power of attorney in favor of David.

A. Confidential Relationship

¶ 24. ‘Whenever there is a relationship between two people in which one person is in a position to exercise dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of the mind or body, or through trust, the law does not hesitate to characterize such a relationship as fiduciary in character.” Foster v. Ross, 804 So.2d 1018, 1022-23(¶ 15) (Miss.2002). “Stated otherwise, a confidential relationship exists when one has a dominant, overmastering influence over a person depen-dant upon him.” Id. at 1023(¶ 15). The factors to be considered in making the determination of whether a confidential relationship existed between the testator and beneficiary are:

(1) whether one person has to be taken care of by others,
(2) whether one person maintains a close relationship with another,
(3) whether one person is provided transportation and has their [sic] medical care provided for by another,
(4) whether one person maintains joint accounts with another,
(5) whether one is physically or mentally weak,
(6) whether one is of advanced age or poor health, and
(7) whether there exists a power of attorney between the one and another.

Thornton, 922 So.2d at 852-53(¶ 7).

¶ 25. David testified that he was aware that Hall had brain and lung cancer when he moved to Big Creek. David stated that he had promised Hall that he and his family would assist Hall in any way. David, Melissa, Christy, and Helen Lowri-more, a long-time family friend of the Poy-nor family, all testified that Hall often had breakfast and lunch in his mobile home, but Hall had dinner almost every night with the Poynor family. When Hall was not feeling well enough to join the Poynors in their home for dinner, a member of the Poynor family would take dinner to Hall. The witnesses testified that from August 2001, until his death, Hall spent all of his time, including all the holidays, with the Poynor family.

¶ 26. Melissa testified that she changed her work schedule to coincide with Hall’s medical appointments. Melissa also stated that she and Christy took Hall grocery shopping. However, Hall drove himself around town to pay his bills and to visit friends. Melissa testified that she cleaned Hall’s home and did his laundry the majority of the time especially when he became unable to do so. Christy testified that when Hall came home after the surgery, she cleaned and changed the dressings on Hall’s surgical incision. When Hall was no longer able to care for his personal needs, Melissa testified that she took greater responsibility in meeting Hall’s healthcare and personal needs.

¶ 27. David testified that after Hall was admitted to the hospital and told to get his affairs in order because of the seriousness of his impending surgery, he acted upon Hall’s instruction to contact James’s office to have a durable power of attorney and will drafted for Hall. David testified that he paid for the power of attorney and will and provided transportation for James’s paralegal, Brown, to the hospital in Tupelo to discuss the details of the will with Hall. David took the power of attorney and will to Hall to execute and then delivered the executed documents to the appropriate places.

¶ 28. In Hall’s medical records it was noted that upon Hall’s discharge from the hospital, Hall “would be discharged to home to the care of his friends, the Poynor family. He lives in a small home on the Poynor property and they check on him frequently.” The evidence established the existence of a confidential relationship between Hall and David.

B. Undue Influence

¶ 29. This Court has held that:

Where a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it, the law raises a presumption that the beneficiary has exercised undue influence over the testator, and casts upon the beneficiary the burden of disproving undue influence by clear and convincing evidence.

Thornton, 922 So.2d at 852(¶ 7). David is the beneficiary of all Hall’s property that was disposed of by will. David, Brown, and James all testified that David had a significant role in making certain that Hall had an executed will prior to undergoing major surgery.

¶ 30. The supreme court held in In re Will of Adams; Simm v. Adams, 529 So.2d 611, 615 (Miss.1988) that:

A presumption of undue influence is not raised merely because a beneficiary occupies a confidential relationship with the testator; something more is required, such as active participation by the beneficiary in the procurement, preparation or execution of the will or mental infirmity of the testator.... In other words, there must be some showing that the [beneficiary] abused the relationship either by asserting dominance over the testator or by substituting her intent for that of [the testator].
¶ 31. The supreme court also held that:
[U]ndue influence is the substitution of the will and intent of the beneficiary for that of the testator[.] The polestar consideration in [an appellate court’s] review of a will contest is to give effect to the intent of the testator. (When the intent of the testator has been ... ascertained, all minor, subordinate and technical rules of construction must yield to the paramount intent thus ascertained.) The effect of a charge of undue influence is to suggest that the will reflects the intent of the beneficiary and not of the testator. Undue influence in the matter of executing a will must be the substitution of another’s will for the will of the testator.

Gallaspy, 562 So.2d at 79 (internal citations and quotations omitted).

¶ 32. The evidence clearly supports a finding that David and his family were very supportive of Hall throughout his illness. Mitchell contends that although she was not accusing David of abusing his relationship with Hall, she found it suspicious that Hall made a will leaving his assets to David since Hall had previously told her that he was leaving everything to Mitchell and her sons.

¶ 33. To overcome this presumption of undue influence by clear and convincing evidence, the supreme court has looked to the following three-prong test:

1. The beneficiaries must have acted in good faith.
a. Who initiated the procurement of a will?
b. Where was the will executed and in whose presence?
e. What consideration was paid?
d. Who paid the consideration?
e. Was there secrecy or openness in the execution?
2. The testatrix must have had full knowledge and deliberation in the execution.
a. Was the testatrix aware of her total assets and their general value?
b. Did the testatrix understand who her natural inheritors were?
c. Did the testatrix understand how the change would legally effect prior wills?
d. Did the testatrix know that non-relative beneficiaries would be included?
e. Did the testatrix know who controlled her finances and by what method?
1. How dependent is the testatrix on those handling her finances?
2. How susceptible is she to influence by those handling her finances?
3. The testatrix must have exhibited independent consent and action.

In re Will of Smith; Smith v. Averill, 722 So.2d 606, 612(¶ 22) (Miss.1998).

¶ 34. The first prong to be considered is whether David acted in good faith. David played a major role in the preparation of Hall’s will. David testified that he contacted James to obtain a durable power of attorney and a will for Hall only after doctors informed Hall of the seriousness of his pending surgery and that he needed to get his affairs in order. Brown testified that on January 13, 2003, David came to James’s office and stated that Hall needed to execute his will quickly because he (Hall) was undergoing life-threatening surgery within the next two or three days. That afternoon, David drove Brown to the hospital in Tupelo to interview Hall. Brown and David testified that during their trip to Tupelo, they did not discuss the provisions of Hall’s will. Brown testified that David was not present when he interviewed Hall. The following day, David picked up the will from the law office, was given instructions by Brown on how the will was to be executed, took the will to the hospital for Hall to execute, and returned the executed document to James’s law office. David testified that he paid one hundred dollars for both the durable power of attorney and the will. However, James testified that he does not recall the amount, and Brown testified that he does not recall David paying at all. Hall executed the will in his hospital room in the presence of David, Gibson, and McCarley.

¶ 35. Testimonies of several witnesses indicated that David was aware of Hall’s deteriorating health and that David and his family acted unselfishly to lend their support to Hall by taking Hall to medical appointments, grocery shopping, and providing Hall a place at their dinner table every night for nearly two years. Evidence revealed that when Hall asked David to assist him in getting his affairs in order, David secured the services of an attorney to have the will drafted and without hesitation paid to have the will drafted. David then took the will to Hall, and at Hall’s request, he found two witnesses to sign the will. Clearly, the record contains sufficient evidence from which the chancellor might conclude that David acted in good faith.

¶ 36. In considering whether Hall had full knowledge of his actions and their consequences, the Court considers the following:

(a) his awareness of his total assets and their general value, (b) an understanding by him of the persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would legally affect that prior will or natural distribution, (c) whether non-relative beneficiaries would be excluded or included and, (d) knowledge of who controls his finances and business and by what method, and if controlled by another, how dependent is the grantor/testator on him and how susceptible to his influence.

Holmes-Price, 961 So.2d at 684(¶ 39).

¶ 37. The record indicated that Hall was aware of his assets. Brown testified that Hall stated he had no real property. The testimony of Martha Martin, the Calhoun County Chancery Clerk, substantiated this claim. Brown stated that Hall wanted his personal property, which consisted of a mobile home, two trucks, a bus, a boat, guns, dogs, and other items in his house to go to David. Brown stated that although Hall knew he was leaving David his personal property, he had made sure that Mitchell was provided for through his life insurance policy. Brown also testified that when he asked about bank accounts, Hall made reference to a joint checking account with Mitchell at BancorpSouth in Houston. Brown stated that Hall was aware that the joint checking account was a survivorship account and that it was not necessary to place the account as a provision in the will. Brown testified that Hall stated he was not married and had no children. Brown also stated that Hall wanted David to take care of his affairs if he died and for Mitchell to be named as the alternate executrix.

¶ 38. Testimonies from Mitchell, Melissa, David, and Robert Harrison, a friend of Hall’s, suggested that Hall controlled his own finances. Melissa testified that she never saw Hall’s bank statements, and she never assisted Hall in paying his bills or writing checks. Harrison testified that Hall always came in to Harrison’s business to pay his own bills himself. Mitchell testified that when she made a special trip to visit Hall to discuss his finances, need for a will, and Hall’s funeral arrangements, Hall refused Mitchell’s offer of assistance. Lastly, bank records indicate that Hall’s bank statements went to a post office box that he owned in Big Creek and that he conducted his own banking up until April 23, 2003.

¶ 39. The last prong is whether Hall exhibited independent consent and action. Brown testified that he conferred with Hall and obtained the information for the will when only the two of them were present. Brown testified that he took notes and prepared the will consistent with the directions of Hall. Brown was not involved in the execution of the will. Indeed, there is nothing in the record which suggests that any independent party reviewed the completed will with Hall to be sure that it appropriately addressed his desires. The record indicated that David, the named executor and sole beneficiary of the will picked up the will from James’s office, took it to Hall to be executed, asked Gibson and McCarley to serve as witnesses, and then returned the executed will to James’s office.

¶ 40. Given the evidence, this Court may well have reached a different conclusion from that of the chancellor if it were considering the case in the first instance. However, the record would appear to contain sufficient credible evidence from which the chancellor could and did conclude that the presumption of undue influence was overcome regarding the will. Therefore, we find that this issue is without merit.

III. Inter Vivos Gift

¶ 41. Mitchell argues that the chancellor erred when he did not set aside the alleged inter vivos gift to David and Melissa in the amount of $35,000. Mitchell contends that David did not overcome the presumption of undue influence by clear and convincing evidence that the $35,000 David transferred from a joint checking account Hall had with Mitchell was an inter vivos gift from Hall to David and Melissa.

¶ 42. As discussed above, this Court may well have reached a different conclusion from that of the trial court if it were considering the case in the first instance. However, the record cited above contains sufficient credible evidence to support the chancellor’s decision.

¶ 43. We note that Hall had almost four months after his January surgery to cancel or modify his power of attorney or will. There was no testimony that during this time, he was not fully competent. Hall returned to his home and resumed his normal routine. Hall’s medical records were clear that after his hospital stay ended on January 24, 2003, Hall was alert, lucid, coherent, and oriented to person, place, and time. The doctor’s notes indicated that there were no communication issues with Hall and that he understood the seriousness of his condition. Certainly, Hall could have terminated the power of attorney at any time after January 24th. The chancellor determined that it was reasonable to conclude that Hall was satisfied that he had properly settled his affairs.

¶44. David did not use the power of attorney to conduct business on behalf of Hall until April 23, 2003. On or about that date, David transferred $35,000 from Hall’s bank account on which Mitchell was listed, to a joint account in the names of Hall, David, and Melissa. This left a balance of approximately $6,500 in the account on which Mitchell was listed. David testified that he considered the $35,000 transfer to be solely Hall’s money until his death. David promptly paid Hall’s funeral expenses from those same monies.

¶ 45. Mitchell testified that her last visit to see Hall was about the same time as the transfer. She testified that she saw something from the bank reflecting the transfer while she was at Hall’s home. However, instead of asking Hall about it, she checked with the bank.

¶ 46. Before Hall’s death, on May 1, 2003, Mitchell withdrew $5,966.65 from the account, and a couple of days later wrote a check to “Cash” for $490. These transactions effectively closed the account. Mitchell testified that she made no inquiry regarding outstanding checks or drafts; she made no inquiry of Hall or David regarding the $35,000 transfer or her $6,456.65 withdrawal; she did not inform Hall of the withdrawal or attempt to make sure there were no outstanding drafts.

¶47. Thus, the chancellor had Mitchell’s testimony that she withdrew the $6,456.65 from her brother’s account without making inquiry or conferring with him, to compare with David’s testimony that he transferred the $35,000 to a joint account bearing David’s, Melissa’s and Hall’s names solely at the direction of Hall himself. David and Melissa testified that Hall wanted to make sure they had access to his money to help take care of him without having to spend their money. David further testified that Hall had specifically instructed him on the amount to transfer and the amount to leave remaining in the existing account, and Hall further instructed him to leave the account open. Clearly, the chancellor determined that David’s and Melissa’s testimonies were credible and trustworthy.

¶ 48. Charlie Brown, Bobby Harrison (“Bobby”), Jimmy Vance, and Chris Con-nelly testified about David’s reputation in the community for truth and veracity. Each of them testified that it was their opinion that David did not and would not take advantage of Hall. Bobby testified that Hall was lucid and fully competent each time he saw him, even following his January 16, 2003, surgery. Bobby also opined that Hall knew what he was doing and freely and voluntarily did what he wanted relative to the disposition of his worldly goods and property.

¶ 49. “When dealing with an inter vivos gift, we have held that a confidential relationship alone is sufficient to raise the presumption of undue influence.” Greenlee v. Mitchell, 607 So.2d 97, 105 (Miss. 1992). “[W]hen there is a fiduciary or confidential relation, and there is a gift or conveyance of dubious consideration from the subservient to the dominant party, it is presumed void.” Griffin v. Armana, 687 So.2d 1188, 1193 (Miss.1996). “This is not because it is certain the transaction was unfair; to the contrary, it is because the Court cannot be certain it was fair.” Id.

¶ 50. To overcome the presumption of undue influence as it relates to the receipt of an inter vivos gift, and to avoid having the gift declared void, the recipient must offer clear and convincing evidence that the gift was the result of the free and independent determination of the giver. The evidence that is sufficient to overcome the presumption that the gift was the product of undue influence and, therefore, void must be something more than the self-serving testimony of the recipient. See In re Estate of Smith; Irving v. Streater, 827 So.2d 673, 683(¶ 4) (Miss. 2002).

¶ 51. The chancellor determined that all of the evidence considered together was sufficient to determine that Hall intended to make a cash inter vivos gift to Davis and Melissa. Based on the evidence presented, we may well have reached a different conclusion from that of the chancellor if we were considering the case in the first instance. However, the record would appear to contain sufficient credible evidence from which the chancellor could and did conclude that the presumption of undue influence was overcome regarding the inter vivos gift. Therefore, we find that this issue is without merit.

¶ 52. THE JUDGMENT OF THE CHANCERY COURT OF CALHOUN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

MYERS, P.J., ISHEE, CARLTON and MAXWELL, JJ., CONCUR. KING, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J. AND BARNES, J. IRVING AND ROBERTS, J., NOT PARTICIPATING.

KING, C.J.,

Dissenting.

¶ 53. I believe that the majority errs in affirming the alleged inter vivos gift of $35,000.

¶ 54. While I agree with the majority that the record contained sufficient credible evidence from which the chancellor could find that David overcame the presumption of undue influence as to the execution of the will, I cannot make that same statement as it relates to the inter vivos gift. David used the power of attorney executed by Hall to take $35,000 from the joint account of Hall and Mitchell. That money was first placed in an account in the names of Hall, David, and Melissa. The money was subsequently placed into an account without Hall’s name. This transfer by David of a significant amount of Hall’s money, $35,000 to David and Melissa, would at best be considered as an inter vivos gift.

¶ 55. The chancellor found that there was no undue influence in the execution of the power of attorney. I agree that there is sufficient evidence in the record which will support the chancellor’s finding that there was no undue influence in the execution of the power of attorney. And were our consideration of issues related to the $35,000 to end at this point, then the chancellor should be affirmed on this matter. However, the consideration of this issue does not end here.

¶ 56. We are also obligated to determine whether the power of attorney conveyed upon David sufficiently broad authority to make, on his own volition, a gift to himself of $35,000 of Hall’s money. The power of attorney authorized David to act on behalf of Hall with reference to “banking matters and transactions, including, but not limited to, drawing checks on my bank account in my name, and making withdrawals and deposits.” A reasonable reading of this language would not seem to allow David to make a $35,000 gift to himself of Hall’s money.

¶ 57. Since such a gift is not authorized by the power of attorney, then the one lawful way for David to have obtained the $85,000 was as an inter vivos gift. The law places upon an attorney-in-fact a very high fiduciary responsibility when acting for his principal. So high is the fiduciary responsibility that any degree of self-dealing is presumed void, unless: (1) there is a showing by clear and convincing evidence that the action was necessitated in the best interest of the principal, or (2) there is a showing by objective clear and convincing evidence that the action was done by or at the behest of the principal. See In re Estate of Bodman, 674 So.2d 1245, 1250 (Miss.1996); see also Griffin v. Armana, 687 So.2d 1188, 1196 (Miss.1996); Estate of Dykes v. Estate of Williams, 864 So.2d 926, 933(¶ 32) (Miss.2003).

¶ 58. “When dealing with an inter vivos gift, we have held that a confidential relationship alone is sufficient to raise the presumption of undue influence.” Greenlee v. Mitchell, 607 So.2d 97, 105 (Miss. 1992). “[W]hen there is a fiduciary or confidential relation, and there is a gift or conveyance of dubious consideration from the subservient to the dominant party, it is presumed void.” Griffin, 687 So.2d at 1193. “This is not because it is certain the transaction was unfair; to the contrary, it is because the Court cannot be certain it was fair.” Id.

¶ 59. To overcome the presumption of undue influence relating to the receipt of an inter vivos gift, and to avoid having the gift declared void, the recipient must offer clear and convincing evidence that the gift was the result of the free and independent determination of the giver. The evidence which is sufficient to overcome the presumption that the gift was the product of undue influence and, therefore, void must be something more than the self-serving testimony of the recipient. See In re Estate of Smith; Irving v. Streamer, 827 So.2d 673, 683(¶4) (Miss.2002). In the record before this Court, there is no objective evidence that Hall intended to make a cash inter vivos gift to Davis and Melissa. Indeed, in the record before this Court, the only evidence of any intent by Hall to make a cash inter vivos gift to David and Melissa is found in their self-serving testimonies. Their self-serving testimonies do not overcome the presumption of undue influence. Accordingly, the inter vivos gift is absolutely void. The self-serving testimonies from David and Melissa that Hall instructed David to transfer $35,000 from the checking account is in direct conflict with the testimony that Hall stated that the checking account was excluded from the will because the money in the checking account was to take care of his sister.

¶ 60. Also, material to the resolution of this issue is the fact that the transfer of this $35,000 to David and Melissa was not done by Hall; rather, it was done solely by David, acting in his fiduciary capacity using the power of attorney. That apparent breach of David’s fiduciary duty renders the action void and requires that the $35,000 be returned to the bank account held jointly by Hall and Mitchell to pass outside of the estate. As was noted in Griffin, 687 So.2d at 1193, this action is mandated not because the Court can be certain that the transaction was unfair, but rather, it is mandated because the Court cannot be certain that the transaction is in fact fair.

¶ 61. The chancellor’s finding that the presumption of undue influence, as it related to the inter vivos gift, was overcome by clear and convincing evidence is not supported by substantial evidence in the record. Therefore, I would find that the chancellor abused his discretion. Accordingly, I would reverse the chancellor’s finding of a valid inter vivos gift to David and render a judgment for Mitchell in the amount of $35,000, plus interest at the legal rate from the date that the funds were withdrawn from the checking account.

LEE, P.J., AND BARNES, J., JOIN THIS OPINION.

      . The name of the sister is omitted since she is not a party in this matter.

      . Mississippi Code Annotated section 91-5-1 (Rev.2004) provides: Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, heredit-aments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    Miguel Angel Solorzano BARTOLO, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00773-COA.
    Court of Appeals of Mississippi.
    Aug. 11, 2009.
    Rehearing Denied Feb. 9, 2010.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before KING, C. J., GRIFFIS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court.

¶ 1. On October 2, 2006, a Harrison County grand jury returned a two-count indictment charging Miguel Angel Solorza-no Bartolo with one count of felony theft of telecommunication services, in violation of Mississippi Code Annotated section 97-25-54(6)(a) (Rev.2006), and one count of murder, in violation of Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006). The charges stemmed from the killing of an active duty Naval Police Officer in Biloxi, Mississippi. Before trial, Bartolo moved to suppress his statements to law enforcement officers. After hearing testimony about the circumstances surrounding his statements, the court denied the motion to suppress. Bartolo proceeded to trial and was convicted on both counts. He was sentenced to ten years’ imprisonment on the theft of telecommunications services charge and life on the murder count. The sentences were ordered to run concurrently.

¶ 2. Aggrieved, Bartolo appeals asserting essentially four arguments: (1) the trial court erred in denying his motion to suppress his statements to law enforcement officers; (2) the evidence was sufficient to support an imperfect self-defense manslaughter conviction, but insufficient to support a murder conviction; (3) the trial court erred in admitting telephone records; and (4) insufficient evidence existed to support his conviction for felony theft of telecommunication services.

¶ 3. We affirm Bartolo’s murder conviction, but we find error and reverse his conviction for felony theft of telecommunication services, and remand with directions to the circuit court to enter judgment of conviction on the lesser-included offense of misdemeanor theft of telecommunication services, and remand for sentencing on the lesser-included theft offense.

FACTS AND PROCEDURAL HISTORY

¶ 4. Taking the facts in the light most favorable to the July’s verdicts as we are bound to do, the record shows that on or about February 16, 2006, Christy Ayala (Christy), an active duty Naval Police Officer, attended the grand opening of Club IP, a night club located inside of the Imperial Palace Casino (Imperial Palace) in Biloxi, Mississippi. Christy arrived at Club IP between 11:00 p.m. and midnight and met her friend Sadie Honguyen (Sadie). The two had a few drinks, socialized, and danced with people Sadie knew.

¶ 5. As the night continued, Sadie noticed that Christy had disappeared. She looked in the restroom and also tried to find Christy in one of the gambling areas. At approximately 2:30 a.m., Sadie reached Christy on her cellular telephone. Christy said she was outside, but the phone was disconnected during the call. When the club closed at 3:30 a.m., Sadie and another woman looked for Christy around the casino but could not find her. A little after 4:00 a.m., Sadie left the casino and traveled home.

¶ 6. At approximately 7:30 a.m., Officer Brad Smith, with the Biloxi Police Department, was notified that a body was found floating in the back bay behind Imperial Palace. Officer Smith and two other officers secured the scene and waited for investigators. A jacket was found floating on the shoreline near the body. Photographs of the crime scene were taken, and the three officers pulled the body of a dead female out of the water. There was no identification found on the body. The Gulfport Seabee Base contacted the Imperial Palace and reported that a twenty-four-year-old “troop member” named Christy Eileen Ayala was missing. Christy was later positively identified as the woman found floating in the bay.

¶ 7. Surveillance video documented that Christy and a Hispanic male left Club IP at 2:18 a.m. and were together at several different locations in the casino. Biloxi Police Department Investigator Susan Kimble reviewed Christy’s bank records and noticed two failed ATM withdrawal attempts that took place around 4:00 a.m. that morning. An incorrect pin number was used during the failed withdrawals. Christy’s official United States Navy badge was also found inside an Imperial Palace toilet drain in an area undergoing renovations.

¶ 8. A review of Christy’s cellular telephone records revealed that her cell phone was still being used. Records indicated that a call was placed from Christy’s phone to a Biloxi school. The school director identified the person who placed the call as Rossana Chavez. Chavez had borrowed the phone from an individual in the Imperial Palace break room. She identified this person as Bartolo, with whom she had been in recent communication.

¶ 9. On February 27, 2006, Investigator Kimble orchestrated a recorded telephone call from a supervisor at Imperial Palace to Christy’s missing cell phone. The supervisor used a ruse that the casino owed Bartolo some money. Bartolo in turn called Chavez to verify that there was indeed a check waiting on him. Bartolo’s location was then traced to a Houston, Texas apartment, and on February 28, 2006, officers with the Houston Police Department made entry into the apartment with an arrest warrant for Bartolo. Bar-tolo was found on a couch under a blanket holding Christy’s cell phone in his hand. Bartolo gave the officers a fictitious name. He also told one of the investigators that the cell phone was his, and that he had owned it for over a year. A check of the cell phone’s voice mail feature revealed that it still had Christy’s voice on the greeting. Also, phone records listed Christy as the subscriber of the cell phone.

¶ 10. On March 1, 2006, Houston Police Department Homicide Investigator Jesus Sosa interviewed Bartolo. The interview was conducted in Spanish and a video recording device was used to capture the interview. Bartolo was advised in Spanish of his Miranda rights, which he waived and agreed to be interviewed. According to Investigator Sosa, Bartolo first denied any involvement with Christy, then admitted dancing with her at the club. Investigator Sosa testified that Bartolo next claimed that the two walked outside of the casino and a vehicle struck Christy and left the scene. At that point, Bartolo said he picked up Christy’s cell phone and put her in the water. He then claimed he went inside the casino to eat dinner and later went to bed.

¶ 11. Investigator Sosa testified that as the interview continued Bartolo admitted that there was a struggle. Bartolo then recounted slightly differing versions of how Christy was choking him because he would not have sex with her. Bartolo claimed that he in turn reacted and choked her around the neck with his hands. Bar-tolo demonstrated on Investigator Sosa the manner in which he choked Christy. According to Investigator Sosa, Bartolo said Christy passed out and fell next to him. Bartolo then admitted he dragged Christy to the water and threw her in the bay. Investigator Sosa also testified that Barto-lo confessed to stealing Christy’s cell phone and wallet and attempting to use her credit card. A partial transcript from the videotaped interview was admitted into evidence.

¶ 12. Dr. Paul MeGarry, a forensic pathologist, testified that he concluded “there was a violent struggle. That [Christy] had something around her neck to a point where she could not breathe, and then was immersed in water and was able to gasp some water into her lungs before she died.” Dr. MeGarry also testified that the injuries to Christy were “what [he] would expect from a ligature type of strangulation, something pulled against the neck like a piece of fabric or a piece of belt or something of that nature....” In Dr. McGarry’s opinion, Christy was “near death from the injuries and strangulation, but died from a combination of the strangulation and the intake of the water.”

DISCUSSION

I. Motion to Suppress Statements to Law Enforcement Officers

¶ 13. Bartolo contends he has the equivalency of an elementary education and did not understand his Miranda rights when they were read to him in Spanish. He suggests that these alleged limitations rendered his statements to police officers involuntary.

A. Standard of Review

¶ 14. When Miranda warnings have been given, the test is whether there has been under the totality of the circumstances, a knowing and voluntary waiver by the accused of his privilege against self-incrimination. Kniep v. State, 525 So.2d 385, 389 (Miss.1988) (citation omitted). The burden falls on the State to prove the voluntariness of the confession beyond a reasonable doubt. Carley v. State, 739 So.2d 1046, 1050(¶16) (Miss.Ct.App.1999) (citations omitted). This burden is met by offering the testimony of these individuals having knowledge of the facts that the confession was given without threats or coercion. Id. Great deference is afforded to the trial court’s findings because of the judge’s unique opportunity to observe the witnesses and to assess their credibility. Id. at (¶ 17). “Once the trial judge has determined at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.” Id. at (¶ 18) (citation omitted).

B. BaHolo’s Statements to Laiv Enforcement

¶ 15. During the suppression hearing, the State offered the testimony of law enforcement officers who interviewed Bar-tolo. Houston Police Department Homicide Investigator Richard Moreno testified that because Bartolo spoke Spanish, Investigator Moreno used a card that contained a Spanish version of the Miranda warning. Moreno explained that he read each of the five enumerated rights to Bartolo, one by one. At the end of each individual right, Moreno asked Bartolo, in Spanish, if he understood that particular right. After Bartolo acknowledged he understood the specific right, Investigator Moreno would then move to the next one. According to Investigator Moreno, Bartolo maintained that he understood his rights, waived them, and then gave him a statement.

¶ 16. Investigator Moreno interviewed Bartolo on a second occasion, this time at the Houston Police Department. During this interview, Moreno explained that “on number one ... [Bartolo] didn’t understand what I was telling him.” This first right listed on the card stated, “[y]ou have the right to remain silent and not make any statement at all and that any statement you make may be used against you and probably will be used against you at your trial.” To insure that Bartolo understood this right, Investigator Moreno explained “[t]hat was gone over in a more simpler definition, and, in fact, at some point [Bartolo] was actually giving me his own definition of his interpretation of the rights.... ” Moreno testified that in his opinion the interpretations given by Barto-lo were correct. Once more, Bartolo waived his rights, agreed to be interviewed, and gave a statement to Investigator Moreno. According to Moreno, after Bartolo’s initial question, Bartolo never invoked his right to remain silent, nor did he ask for an attorney. No promises, threats, or coercion were used during the interview.

¶ 17. The following day, March 1, 2006, Bartolo was interviewed by Investigator Sosa. Investigator Kimble was also present. Investigator Sosa used a similar Miranda warning card, and advised Bartolo of his rights in Spanish. Bartolo told Sosa that he did not understand the first right. Investigator Sosa re-read the first right to Bartolo, this time a bit slower, and Bartolo acknowledged that he understood it. Investigator Sosa then read the remaining Miranda rights to Bartolo, and Bartolo maintained that he understood them. Bartolo then waived his rights and agreed to be interviewed. During the videotaped interview, Bartolo initially denied the struggle with Christy, but he later confessed to choking her. He also admitted that he dragged her body about “six paces” to the bay and dumped her in the water. Bartolo also identified Christy through an autopsy photograph as the person he had choked. This interview lasted approximately one hour and fifteen minutes. At no point did Bartolo invoke any of his Miranda rights.

¶ 18. Bartolo called Joshua Abel Coll, who was incarcerated at the Harrison County Detention Center, as a witness during the suppression hearing. Coll testified that he helps serve as an interpreter for Spanish-speaking inmates. Coll reviewed a recording of Bartolo’s March 1, 2006, interview and testified that he did not believe Bartolo understood his rights and that he did not agree with Investigator Sosa’s interpretations. However, Coll admitted during cross-examination that he had not even reviewed the transcript of the interview to compare it to the audio portion of the interview. Perhaps most importantly though, Coll also testified that like Investigator Sosa, he too was able to communicate with Bartolo in Spanish.

¶ 19. In his brief, Bartolo cites a number of cases concerning the exclusion of statements of defendants who were questioned in languages other than their own. See, e.g., United States v. Garibay, 143 F.3d 534, 538 (9th Cir.1998); United States v. Guay, 108 F.3d 545, 549 (4th Cir.1997); United States v. Short, 790 F.2d 464, 469 (6th Cir.1986). However, we find these cases inapplicable because they concern defendants who did not speak English, but were questioned in English. This issue is not before the Court because Bartolo, a Spanish speaker, was questioned in Spanish. And though Bartolo’s attorney argues that he spoke Zapotee, a dialect of Spanish, there was no testimony during the suppression hearing or at trial to support this allegation.

¶ 20. Even if this were the case, other courts have confronted and rejected similar claims. In Perri v. Director, Department of Corrections, 817 F.2d 448, 449, 452-53 (7th Cir.1987), the Seventh Circuit Court of Appeals, in addressing a similar claim of inadequate translation, held that a Miranda warning administered in an Italian dialect different from the defendant’s dialect, was sufficient to effectuate a valid waiver. Also, in United States v. Hernandez, 913 F.2d 1506, 1510 (10th Cir.1990), the Tenth Circuit Court of Appeals followed the Eleventh Circuit’s logic that “[although language barriers may inhibit a suspect’s ability to knowingly and intelligently waive his Miranda rights, when a defendant is advised of his rights in his native tongue and claims to understand such rights, a valid waiver may be effectuated.” (Citing United States v. Boon San Chong, 829 F.2d 1572, 1574 (11th Cir. 1987)).

¶ 21. Here, the trial court heard evidence that Bartolo’s native language was Spanish. As Investigator Sosa put it, “[Bartolo] spoke the common Spanish language I’m accustomed to speaking myself.” Investigator Sosa also pointed out that it did not appear Bartolo had any problems understanding Spanish and that his answers were responsive to Investigator Sosa’s questions. Even Bartolo’s jailhouse interpreter, Coll, who admittedly did not speak the Zapotee dialect, testified that he too was able to communicate with Bartolo in Spanish.

¶ 22. Bartolo also contends his unfamiliarity with the criminal process favored suppression of his statements. But the trial judge found it interesting, as do we, “that the defendant understood the situation and the questions well enough to ask how many years he was going to get for this. He seemed to be worried about that.”

¶ 23. Finally, Bartolo claims his lack of a formal education required the suppression of his statements. Investigator Moreno testified that Bartolo told him he had the equivalency of an elementary education and could not read or write. However, the supreme court has held that “mental weakness in and of itself will not invalidate a confession unless it is shown that the weak[-]minded person has been overreached.” Stevens v. State, 458 So.2d 726, 729 (Miss.1984) (citing Williamson v. State, 330 So.2d 272, 276 (Miss.1976)). “In each case, the totality of the circumstances must be considered to determine whether the mentally-deficient defendant has been exploited.” Id. (citing Neal v. State, 451 So.2d 743, 756 (Miss.1984)).

¶ 24. Here, the record reflects there was no overreaching, and the trial court carefully weighed the testimony of each witness as well as the totality of the circumstances surrounding Bartolo’s waiver of his Miranda rights and his subsequent statements to law enforcement and found that the statements were voluntarily given. “Such findings are treated as findings of fact made by a trial judge sitting without a jury as in any other context.” Hunt v. State, 687 So.2d 1154, 1160 (Miss. 1996) (citation omitted). The supreme court instructs that even when faced with contradictory evidence, we must generally affirm the trial court’s findings in suppression hearings. Id. (citation omitted). Of further importance is the fact that neither the video nor the complete transcript of the interview with Investigator Sosa were offered into evidence during trial. Instead, Bartolo and the State arrived at an agreement to enter one page of the transcript of the videotaped interview, which contained a Spanish to English translation. Accordingly, based on the totality of the circumstances including the testimony from the investigators and Bartolo’s own interpreter that Bartolo spoke Spanish, we find that Bartolo fails to show that his Miranda waiver was involuntary and likewise fails to meet his heavy burden of persuading us that the trial court erred in denying his motion to suppress. This issue is without merit.

II. Legal Sufficiency of the Evidence to Support Bartolo’s Murder Conviction

¶ 25. Next, Bartolo attacks the sufficiency of the evidence supporting his murder conviction. He claims the State fell short of proving he acted with deliberate design and that the evidence established, at most, that he was guilty of imperfect self-defense manslaughter.

¶ 26. In a deliberate-design murder case, the State must prove the following elements. beyond a reasonable doubt: (1) the defendant killed the victim, (2) without authority of law, and (3) with deliberate design to effect her death. Dilworth v. State, 909 So.2d 731, 736(¶ 18) (Miss.2005). “[D]eliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.” Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995) (citation omitted).

¶ 27. In considering the sufficiency of the evidence to support a criminal conviction, “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.” Moore v. State, 996 So.2d 756, 760(¶12) (Miss.2008) (citations omitted). Further, the court accepts “as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and ... disregards evidence favorable to [the defendant].” Id. (quoting Anderson v. State, 904 So.2d 973, 977(¶8) (Miss.2004)).

¶ 28. At trial, Bartolo’s counsel argued that Bartolo acted in self-defense and only choked Christy because she was the aggressor. The trial court granted Bartolo an “imperfect self[-]defense instruction,” which directed the jury to reduce the crime of murder to manslaughter if it found Bartolo killed Christy “without malice and under a bonafide belief, but without reasonable cause [and that] it was necessary for him to do so in order to prevent Christy Ayala from inflicting death or great bodily harm upon him.... ” However, the jury rejected this theory.

¶ 29. Bartolo alternatively argues that because he was the only witness to Christy’s death, the Weathersby rule applied, and his version of the events must be accepted, which at most establishes imperfect self-defense manslaughter.

¶ 80. In 1988, the Mississippi Supreme Court in Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933), held that where a “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 [S]tate, or by the physical facts or by the facts of common knowledge.” (Citations omitted). At trial, Bartolo did not testify, and he called no witnesses in his case-in-chief. Because he rested without offering proof, he failed to put on his version of the homicide. Nevertheless, Bartolo attempts to trigger Weathersby by claiming that his version of the events was elicited through the testimony of the two investigators and by the admission of a partial transcript of one of his statements.

¶ 31. However, no appellate court in Mississippi has ever held that unsworn statements to law enforcement may be used for purposes of a Weathersby analysis. Garrett v. State, 921 So.2d 288, 291(¶ 14) (Miss.2006); see also Carter v. State, 221 Miss. 111, 113-14, 72 So.2d 231, 232 (1954). Accordingly, because Bartolo did not establish his version of Christy’s death through his own testimony or by offering witnesses at trial, he may not invoke the Weathersby rule.

¶ 32. We also note that additional direct evidence of Bartolo’s deliberate design to murder Christy can be gleaned from the testimony of the pathologist, Dr. McGarry. He testified that he concluded “there was a violent struggle. That [Christy] had something around her neck to a point where she could not breathe, and then was immersed in water and was able to gasp some water into her lungs before she died.” Dr. McGarry testified that the injuries to Christy were “what [he] would expect from a ligature type of strangulation, something pulled against the neck like a piece of fabric or a piece of belt or something of that nature.... ”

¶ 33. The supreme court has held that 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.” Brown v. State, 965 So.2d 1023, 1030(¶ 28) (Miss.2007) (citing Wilson v. State, 936 So.2d 357, 364(¶ 17) (Miss.2006)). Based on Dr. McGarry’s testimony, it was reasonable for the jury to infer that instead of using his hands, Bartolo used some sort of instrument to strangle Christy. Such evidence also directly contradicts his testimony that he choked her with his hands. For these reasons, we reject Bartolo’s claim that the evidence presented was legally insufficient to support his deliberate-design murder conviction.

III. Admission of Christy’s Cell Phone Records

¶ 34. Bartolo contends that Christy’s cell phone records were improperly admitted at trial because the State did not offer a custodian from Sprint to sponsor the documents. Business records, such as telephone billing information, are typically admitted under what is known as the business-records exception. Mississippi Rules of Evidence 803(6) provides an exception to the hearsay rule for records “made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make” the record.

¶ 35. At trial, the State sought to admit cell phone records through Investigator Kimble. Bartolo’s attorney objected to their admission, and the following exchange occurred:

Defense Attorney: Judge, the State’s Exhibit number 8 is a faxed copy from Sprint. I think the original—we don’t have an original. It is a copy. And on top of it being a copy, it’s a fax copy, your Honor. So we would object to State’s Exhibit number 8 coming in.
Prosecutor: Your Honor, the best-evidence rule allows that a fax copy is admissible, just as the original.
The Court: All right.
Defense Attorney: Judge, if I can respond to that. The original is the best evidence not a fax copy of a copy, so we would object, still hold our objection to State’s Exhibit number 8.
The Court: Objection is noted and overruled. They will be admitted and marked in evidence.

We review a trial court’s admission or exclusion of evidence for abuse of discretion. Juarez v. State, 965 So.2d 1061, 1065(¶ 9) (Miss.2007) (citation omitted).

¶ 36. It is clear from the record that Bartolo’s counsel objected to the admission of the cell phone records because they were copies—not because the documents did not fall within the business-records exception. It is also evident that Bartolo did not contest their admission based on the State’s failure to offer a proper sponsoring record custodian.

¶ 37. “An objection on one or more specific grounds constitutes a waiver of all other grounds.” Spicer v. State, 921 So.2d 292, 316(¶ 49) (Miss.2006) (citations omitted). “And a party having specifically objected at trial, cannot present different grounds for the objection on appeal.” Walden v. State, 29 So.3d 17(¶ 14) (Miss. Ct.App.2008) (citing Williams v. State, 971 So.2d 581, 589(¶ 27) (Miss.2007)). These later asserted grounds were not before the trial judge for his consideration and, therefore, were not properly preserved for our review and are procedurally barred.

¶ 38. In addressing Bartolo’s objection on the ground that the cell phone records were merely faxed copies, it is well settled that duplicates or copies of original documents are at times admissible at trial. Mississippi Rule of Evidence 1003 provides that “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Here, Investigator Kimble testified that she received the cell phone records pursuant to a subpoena served on Sprint and that the records were sent directly to her attention at the Biloxi Police Department. While the mere fact that documents were obtained by subpoena does not in and of itself establish their admissibility, Barto-lo’s attorney neither questioned the authenticity of the phone records nor did she assert why it would be unfair to admit them. Therefore, we see no reason to require the original records in this instance. Accordingly, we find that the trial court did not abuse its discretion in admitting copies of Christy’s cell phone records.

IV. Bartolo’s Conviction for Felony Theft of Telecommunication Services

¶ 39. Bartolo was also convicted of felony theft of more than $50 in telecommunication services, in violation of Mississippi Code Annotated section 97-25-54(6)(a). Mississippi Code Annotated section 97 — 25—54(6)(a) provides:

A person shall be guilty of theft of telecommunications services if, having control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto. Theft of telecommunications services when the value of the services obtained or diverted is less than Fifty Dollars ($50.00) shall be a misdemeanor. Theft of telecommunications services when the value of the services obtained or diverted is Fifty Dollars ($50.00) or more shall be a felony and shall be punished by a fine not to exceed Ten Thousand Dollars ($10,-000.00), or commitment to the custody of the State Department of Corrections for a period not to exceed ten (10) years, or both.

¶ 40. At trial, Bartolo moved for a directed verdict claiming that the State offered insufficient evidence to prove he unlawfully diverted more than $50 of phone services to his use during this time period charged. He renews this claim on appeal and argues that at most he is guilty of the lesser-included offense of misdemeanor theft of telecommunication services.

¶ 41. “In analyzing the sufficiency of the evidence, ‘[t]he 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.’ ” Moore, 996 So.2d at 760(¶ 12) (quoting Jones v. State, 904 So.2d 149, 158-54(¶ 12) (Miss.2005)).

¶42. Here, the State presented the jury with limited cellular telephone records consisting of one billing information sheet obtained from Sprint as well as call logs documenting incoming and outgoing telephone calls from Christy’s cell phone. In viewing these documents in a light most favorable to the State, the subscriber information indicates a base monthly charge of $69.99 from Sprint to Christy and a total amount due of $97.14. Also, the records of incoming and outgoing phone calls show that over sixty telephone calls were made to or from Christy’s phone, after her death, from February 19, 2006, through February 21, 2006.

¶ 43. We note that the trial judge struggled with the sufficiency of the State’s evidence on this charge. In deciding whether to dismiss this count at the close of the State’s case, he admitted:

I have some problems with Count 1.... The indictment and the statute requires that the use of the telephone service exceed $50 in value, and I have reviewed the bill that came into evidence, and it has a base monthly charge of $60 [sic], $59.99 [sic] and a total charge of $97, I think. And I don’t think that it has been shown or proven that $50 of that $94 was the result of the usage of the phone by the defendant.

Even though he had concerns, the trial judge denied the defendant’s motion for a directed verdict and allowed the felony charge to go to the jury.

¶ 44. Mississippi appellate courts have not previously addressed section 97-25-54(6). Therefore, we start with a review of the statute. To sustain a conviction for the felony portion of section 97-25-54(6), the State must offer sufficient evidence to prove beyond a reasonable doubt that: (1) the defendant had control over the disposition of services of another, to which he was not entitled; (2) he knowingly diverted such services to his own benefit or to the benefit of another not entitled thereto; and (3) the value of the services obtained or diverted was at least $50.

¶ 45. Here, the only element at issue is the third element — the value of the services obtained or diverted. In criminalizing the theft or diversion of “telecommunication services,” this section makes it a felony “when the value of the services obtained or diverted” is more than $50.00. Miss.Code Ann. § 97-25-54(6)(a) (emphasis added). Section 97-25-54(l)(b) (Rev. 2006) defines “[telecommunication service” as “any service provided for a charge or compensation to facilitate the origination ... or reception of ... signals ... of any nature by telephone, including cellular telephones[.]” In determining the value of the services at issue, we fully appreciate the benefit to Bartolo of having access to a cellular telephone while on the run. However, section 97-25-54(6)(a) looks to the value of the “services obtained or diverted,” not the subjective benefit received by the offender. Here, the State was required to prove that the value of Sprint’s services obtained or diverted by Bartolo was in excess of $50. We find that they failed to do so.

¶ 46. The State did not call any telephone company representatives to establish the value of the stolen services, and the records alone offer little help to support the State’s argument. The one page of subscriber information did not provide any indication of the beginning or ending date of the billing cycle. Also, while there are a number of calls that Bartolo made from the phone, the State offered no evidence to establish that Christy’s plan with Sprint charged her a specific rate per call that could be aggregated to reach the $50 threshold. The State attempted to elicit testimony from a police investigator that after the minutes of the base plan were exhausted, subsequent calls not covered by the plan might add up to the $50 statutory minimum. But when asked how many additional calls were made outside of the base plan, the investigator admitted, “I’m not sure.” Alternatively, the State argues that if Bartolo used the cell phone on just one day of the next billing cycle, he should be held accountable for the entire $69.99 monthly charge. However, the records alone do not define the dates of the billing cycle. The investigator did testify that she believed the ending period for the billing cycle was February 20, 2006, but the document itself did not support her testimony. While evidence may have existed to support the enhanced charge, the State failed to offer it at trial.

¶ 47. There is sufficient evidence, however, to support a conviction for the lesser-included offense of theft of less than $50 in telecommunications services. This Court has the authority to affirm a conviction for the lesser-included offense, while at the same time reversing the greater offense if such a result is warranted. Craig v. State, 520 So.2d 487, 493 (Miss. 1988); Drane v. State, 493 So.2d 294, 300 (Miss.1986); Neal v. State, 936 So.2d 463, 470(22) (Miss.Ct.App.2006). Accordingly, Bartolo’s judgment of conviction of felony theft of telecommunication services is reversed. We hereby remand with directions to the circuit court to enter judgment on the lesser-included offense of theft of less than $50 of telecommunication services, and we remand this case to the trial court to sentence Bartolo on this lesser-included offense.

¶ 48. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT II, MURDER, AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED; AND THE JUDGMENT OF CONVICTION OF COUNT I, FELONY THEFT OF TELECOMMUNICATIONS SERVICES, AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS REVERSED AND REMANDED FOR ENTRY OF JUDGMENT ON THE LESSER-INCLUDED OFFENSE OF MISDEMEANOR THEFT OF TELECOMMUNICATIONS SERVICES AND FOR SENTENCING. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . A suspect who has been advised of his rights against self-incrimination "may waive effectu-ation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Investigator Moreno testified that he was certified by the City of Houston as a "Spanish speaker.”

      . Coll admitted during testimony that he is a ten time convicted felon.


author: LEE, P.J., for the Court.

text:
    Charles R. NELSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01614-COA.
    Court of Appeals of Mississippi.
    Sept. 15, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied April 8, 2010.

      Erin Elizabeth Pridgen, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, Attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J., for the Court.

PROCEDURAL HISTORY

¶ 1. On August 12, 2008, a jury in the Washington County Circuit Court found Charles R. Nelson guilty of Count I, uttering a forgery; Count II, conspiracy; Count III, uttering a forgery; and Count IV, conspiracy. Nelson was sentenced to ten years with five years suspended on Count I, five years with two and one-half years suspended on Count II, ten years with five years suspended on Count III, and five years with two and one-half years suspended on Count IV. The sentence in Count II was ordered to run consecutively to Count I; the sentence in Count III was ordered to run consecutively to Counts I and II; the sentence in Count IV was ordered to run concurrently with the sentences imposed in Counts I, II, and III. All sentences were ordered to be served in the custody of the Mississippi Department of Corrections.

¶ 2. Nelson filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court subsequently overruled Nelson’s post-trial motion. Nelson now appeals, asserting that the trial court erred in failing to grant his motion for a JNOV as the evidence was not sufficient to support his convictions.

FACTS

¶ 3. Christine and Derek Thompson, owners of Thompson Management Services, Inc., discovered that two unauthorized checks had been written on their business accounts. These checks were kept locked in a desk drawer in their office. The Thompsons notified the Green-ville Police Department that unauthorized checks were drawn from these two accounts. One check was made payable to Larry Turner in the amount of $916. The account holder on this check was listed as Thompson Management Services. The second cheek was made payable to Larry Turner in the amount of $700.50. The account holder on this check was County Housing RHED, a nonprofit group of which Derek is on the board. The Thomp-sons contracted with County Housing RHED to manage apartments for low income families in Greenville, Mississippi. The Thompsons did not know Turner, nor did they recognize the signature on the checks.

¶ 4. Sometime after the two stolen checks had been cashed, Turner was arrested by the police during an attempt to pass another forged check. Turner was found in the car with Nelson; however, Nelson was not arrested for any wrongdoing at the time. Upon questioning by the police about the two forged checks, Turner admitted to cashing the checks and said he had received the checks from a man named “William.” According to Turner, William approached Turner and sought his help in cashing checks. William told Turner that he obtained the checks from the company he worked for and did not have identification to cash the checks. William then drove Turner on two separate occasions to cash each check. Each time Turner cashed the check, he gave the money to William and received $150 in cash for his help. The police presented Turner with a photographic lineup, and Turner identified Nelson as the man he knew as “William.” Turner also identified Nelson in court as the man who gave him the checks to cash. Nelson is Christine’s cousin and worked for Thompson Management Services as the head of property maintenance. Nelson was subsequently arrested.

DISCUSSION

¶ 5. In his only issue on appeal, Nelson argues that the trial court erred in failing to grant his motion for a JNOV as the evidence was insufficient to support his convictions of uttering a forgery and conspiracy. A motion for a JNOV challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). “[T]he 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.’ ” Id. (citation omitted). If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime existed, this Court will affirm the denial of the motion for a JNOV. Id. If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient. Id. Furthermore, the jury is responsible for weighing any conflicting evidence, “evaluating the credibility of witnesses, and determining whose testimony should be believed.” Ford v. State, 737 So.2d 424, 425(¶ 8) (Miss.Ct.App.1999).

1. Uttering a Forgery

¶ 6. Nelson argues that the State failed to prove the elements of uttering a forgery. According to Duhart v. State, 927 So.2d 768, 775(¶15) (Miss.Ct.App.2006):

It is clear from [Mississippi Code Annotated section 97-21-59 (Rev.2006)] that in order to sustain a conviction of uttering forgery, the State must have proved beyond a reasonable doubt (1) that the defendant published or uttered as true (2) a forged, altered or counterfeit instrument, (3) knowing the instrument to be forged, altered or counterfeited, (4) with intent to defraud.

Nelson’s chief contention is that the State failed to provide evidence that Nelson presented the forged checks as true documents. Nelson claims that only Turner presented the checks to be cashed. Although Nelson did not physically cash the checks, he is guilty of uttering a forgery as a principal because he acted in concert with Turner. Ross v. State, 914 So.2d 814, 816(1111) (Miss.Ct.App.2005). Turner, who was an admitted drug user, testified that Nelson sought his help in cashing some checks. Turner stated that Nelson told him the checks came from Nelson’s place of business, but Nelson did not have the proper identification needed to cash the checks. Nelson took Turner to cash the two checks, both of which were made payable to Turner. We find that there was sufficient evidence for the jury to find that Nelson possessed the forged checks and attempted to pass these checks off as true.

¶7. In regard to the second element, Christine testified that she was certain the instrument was forged. Christine stated that they print all their business ehecks using a computer program, and the forged checks were filled out using a typewriter. Christine and Derek testified that the signature on the checks was not theirs. The Thompsons further testified that Nelson did not have permission to use the business checks. As to the third element, the jury could reasonably infer that Nelson knew the checks were forged. In regard to the final element, if Nelson made the utterance with knowledge of the forgery, the jury could reasonably infer that he did so with the intent to defraud. See Duhart, 927 So.2d at 775(¶ 16). Viewing the evidence in the light most favorable to the State, we find that reasonable, fair-minded jurors could have concluded that Nelson was guilty of uttering a forgery.

2. Conspiracy

¶ 8. Conspiracy is a combination of two or more persons who conspire to commit a crime. Miss. Code Ann. § 97-1-1 (Rev.2006). “Conspiracy agreements need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts and conduct of the alleged conspirators.” Echols v. State, 759 So.2d 495, 499(¶16) (Miss.Ct.App. 2000). Furthermore, the offense can be complete without showing an overt act in furtherance of the conspiracy. Davis v. State, 485 So.2d 1055, 1058 (Miss.1986).

¶ 9. According to Turner’s testimony, Nelson approached him and offered him money to cash checks from Nelson’s employer. Turner stated that he agreed to help Nelson because he needed money for drugs. Nelson gave Turner $150 each time Turner cashed a check for him. When Turner was arrested for attempting to pass another forged check, Nelson was waiting in the car for Turner. The jury could reasonably conclude that Nelson and Turner were involved in a common scheme to cash forged checks. Although Nelson exercised his constitutional right to not testify on his behalf, the supreme court has held that the testimony of a co-indictee or a co-conspirator, if not improbable, or self-contradictory, or “substantially impeached,” is sufficient to sustain a conviction. Fairchild v. State, 459 So.2d 793, 798 (Miss.1984). Turner was an admitted drug addict, but his testimony was not self-contradictory or thoroughly impeached. Viewing the evidence in the light most favorable to the State, we find that reasonable, fair-minded jurors could have concluded that Nelson was guilty of conspiracy.

¶10. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, UTTERING A FORGERY, AND SENTENCE OF TEN YEARS WITH FIVE YEARS SUSPENDED; COUNT II, CONSPIRACY, AND SENTENCE OF FIVE YEARS WITH TWO AND ONE-HALF YEARS SUSPENDED; COUNT III, UTTERING A FORGERY, AND SENTENCE OF TEN YEARS WITH FIVE YEARS SUSPENDED; AND COUNT IV, CONSPIRACY, AND SENTENCE OF FIVE YEARS WITH TWO AND ONE-HALF YEARS SUSPENDED; WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I; WITH THE SENTENCE IN COUNT III TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS I AND II; AND WITH THE SENTENCE IN COUNT IV TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS I, II, AND III, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY RESTITUTION IN THE AMOUNT OF $916 TO THOMPSON MANAGEMENT SERVICES AND $700.50 TO COUNTY HOUSING RHED GRANT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: GRIFFIS, J.,

text:
    Steven EASON, Appellant, v. Christopher EPPS, Alicia Box and Ronald King, Appellees.
    No. 2008-CP-01499-COA.
    Court of Appeals of Mississippi.
    Oct. 20, 2009.
    Rehearing Denied Feb. 2, 2010.
    Certiorari Denied April 15, 2010.

      Steven Eason (Pro Se), attorney for appellant.
    Office of the Attorney General by Jane L. Mapp, attorney for appellees.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Steven Eason appeals the judgment of the Greene County Circuit Court affirming the Mississippi Department of Corrections’ (“MDOC”) calculation of his sentences. We find no error and affirm.

FACTS

¶ 2. Eason was convicted of four counts of sexual battery of a minor under the age of fourteen pursuant to Mississippi Code Annotated section 97-3-95(l)(d) (Rev. 2006). The Perry County Circuit Court sentenced him to thirty years in the custody of the MDOC for each of the first three counts, with the sentences to run consecutively. On the fourth count, the circuit court imposed a thirty-year sentence to run consecutively with the first three counts, with ten years to serve and the remainder of the sentence suspended pursuant to five years of post-release supervision.

¶3. Eason subsequently petitioned the circuit court for bond pending appeal. On June 28, 2007, the circuit court denied the motion. The section of the order describing Eason’s sentences states the following: “[Eason] was sentenced to thirty (30) years in each count for a total of one-hundred twenty (120) years in the custody of the Mississippi Department of Corrections with said sentences to run consecutively with ten (10) years to serve and the remainder suspended pursuant and in conformity with the Post-Release Supervision set out and authorized in Miss.Code Ann. § 47-7-34 (1972), as amended.” On direct appeal, this Court affirmed Eason’s convictions and sentences. Eason v. State, 994 So.2d 785 (Miss.Ct.App.2008), cert. denied, 998 So.2d 1010 (Miss.2008).

¶4. On March 5, 2008, Eason filed a request for administrative remedy -with the MDOC through its Administrative Remedy Program (“ARP”). Eason argued that the circuit court’s denial of his motion for bond pending appeal clarified the terms of his sentences so that the clause that suspended all but ten years of his sentence for count four applied to the entire sentence. Eason requested that the MDOC recompute his sentences so that he would serve ten years instead of one hundred years pursuant to that interpretation of the circuit court’s order denying bond. The MDOC denied his request, concluding that his sentences were properly computed as one hundred years to serve, and twenty years suspended pursuant to five years of post-release supervision.

¶ 5. Having exhausted his administrative remedies, Eason appealed the MDOC’s ruling to the Greene County Circuit Court. The circuit court affirmed the ARP’s denial of his grievance and ruled that the MDOC’s decision was not arbitrary or capricious, was supported by substantial evidence, and was not in violation of Eason’s rights. Eason now appeals the judgment of the circuit court.

STANDARD OF REVIEW

¶ 6. “This Court cannot disturb the decision of an administrative agency, here the MDOC, unless the decision was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers or violated the constitutional or statutory rights of the aggrieved party.” Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss.Ct.App.2007) (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss.2001)).

ANALYSIS

Whether the MDOC erroneously determined that Eason was sentenced to serve one hundred years in custody.

¶ 7. Eason, citing Thompson v. State, 734 So.2d 210 (Miss.Ct.App.1999), argues that his sentencing order is ambiguous and must, therefore, be construed in his favor. He further claims that the MDOC is subjecting him to cruel and unusual punishment by arbitrarily changing the amount of time he is to serve from ten years to one hundred years.

¶ 8. Eason was convicted and sentenced on four separate counts of sexual battery of a minor under the age of fourteen. The penalty imposed by statute for each offense ranges from twenty years to life in prison. Miss.Code Ann. § 97-3-101(3) (Rev.2006). It is well within the authority and discretion of the trial judge to impose penalties within the statutory range, and sentences for multiple offenses may run concurrently or consecutively as determined by the trial judge. Miss.Code Ann. § 99-19-21 (Rev.2007). The longstanding rule in Mississippi is that a sentence imposed within the statutory maximum does not give rise to an inference of dispropor-tionality and will not be disturbed on appeal. Kidd v. State, 793 So.2d 675, 680(If 22) (Miss.Ct.App.2001).

¶ 9. Eason’s sentencing order states:

IT IS, THEREFORE, ORDERED AND ADJUDGED that the Defendant, STEVEN WALTER EASON, for his offense of SEXUAL BATTERY in Count One of the Indictment, for which he has been found guilty by the jury, is hereby sentenced to serve a term of THIRTY (30) years in the Mississippi Department of Corrections.
IT IS FURTHER ORDERED AND ADJUDGED that the Defendant, STEVEN WALTER EASON, for his offense of SEXUAL BATTERY in Count Two of the Indictment, for which he has been found guilty by the jury, is hereby sentenced to serve a term of THIRTY (30) years, said sentence to run consecutive[Iy] to the sentence in Count One.
IT IS FURTHER ORDERED AND ADJUDGED that the Defendant, STEVEN WALTER EASON, for his offense of SEXUAL BATTERY in Count Three of the Indictment, for which he has been found guilty by the jury, is hereby sentenced to serve a term of THIRTY (30) years, said sentence to run consecutive[ly] to the sentences in Count One and Count Two.
IT IS FURTHER ORDERED AND ADJUDGED that the Defendant, STEVEN WALTER EASON, for his offense of SEXUAL BATTERY in Count Four of the Indictment, for which he has been found guilty by the jury, is hereby sentenced to serve a term of THIRTY (30) years, said sentence to run consecutive[ly] to the sentences in Count One, Count Two, and Count Three, with Ten (10) years to serve in the custody of Mississippi Department of Corrections and the remainder suspended pursuant [to] and in conformity with the Post-Release Supervision set out and authorized in Miss.Code Ann. § 47-7-34 (1972), as amended, and Defendant shall be placed on Post-Release Supervision upon the following terms and conditions for a period of five (5) years:....

¶ 10. Eason argues that the sentencing order is ambiguous and that the language in count four, stating that he has ten years to serve, applies to his entire sentence. However, the only ambiguity as to Eason’s sentences was created by the circuit court’s order denying bond. As the State argues, Eason has no legal support for his argument that the MDOC should have interpreted his sentences based on the order denying bond instead of his actual sentencing order.

¶ 11. Furthermore, pursuant to Mississippi Code Annotated section 99-7-2(3) (Rev.2007), “[w]hen a defendant is convicted of two (2) or more offenses charged in separate counts of an indictment, the court shall impose separate sentences for each such conviction.” Eason’s argument that he is to serve only ten years would completely suspend and invalidate his sentences imposed for counts one, two, and three.

¶ 12. We find that Eason’s sentencing order is not ambiguous: it plainly states that he is to serve the sentence for each count consecutively; only the sentence in count four is reduced to ten years to serve with twenty years suspended pursuant to five years of post-release supervision. We find that the ARP interpreted Eason’s sentences correctly and that the Greene County Circuit Court did not abuse its discretion in affirming the MDOC’s decision. Accordingly, this argument has no merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF GREENE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Eason was convicted and sentenced by the Perry County Circuit Court. This appeal was brought in the Greene County Circuit Court because Eason is now housed at the South Mississippi Correctional Institution located in Greene County.

      . We note that Eason's motion titled “Petition for a Writ of Habeas Corpus” is treated by this Court as an appeal from the MDOC’s administrative review of his time to serve. It is not considered a motion for post-conviction collateral relief because Eason is contesting the MDOC’s computation of time and not the validity of his convictions and sentences. See Guy v. State, 915 So.2d 508, 510 (¶ 5) (Miss.Ct.App.2005).