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

text:
    Farra L. (Cassidy) SHERIDAN, Appellant v. James P. CASSIDY Jr., Appellee
    NO. 2017-CA-00960-COA
    Court of Appeals of Mississippi.
    December 11, 2018 Rehearing Denied March 26, 2019
    ATTORNEYS FOR APPELLANT: RICHARD SHANE MCLAUGHLIN, NICOLE H. MCLAUGHLIN, Tupelo
    ATTORNEYS FOR APPELLEE: MARY MORGAN WHITFIELD, CHARLES J. SWAYZE JR., Greenwood
    EN BANC.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must determine whether the chancellor abused his discretion in modifying custody of the parties' minor children. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. On May 18, 2016, James Cassidy was granted a divorce from his wife, Farra (Cassidy) Sheridan on the ground of Farra's adultery. Pursuant to a child custody, support, and property-settlement agreement (PSA), Farra took physical custody of the couple's four minor children, and James agreed to pay rehabilitative alimony and child support.

¶ 3. On July 19, 2016, Farra petitioned the Lafayette County Chancery Court for permission to move the children to Benton, Arkansas. James countered, requesting that he be granted custody of the children. After a hearing, the chancellor granted James's motion for custody modification and ordered Farra to pay child support. Farra now appeals, asserting the following issues: (1) there was no evidence of a material change in circumstances resulting in an adverse effect on the children; (2) the chancellor misapplied several of the Albright factors; (3) the chancellor erred by not allowing their twelve-year-old son to state a preference; and (4) the chancellor erred by refusing to allow two of the children to testify.

FACTS

¶ 4. After the parties' divorce, Farra began a relationship with Eric Sheridan. At the time, Sheridan was married and living in Arkansas. Sheridan testified that his wife left him after seeing text messages between him and Farra. Farra and the children drove to Arkansas frequently to visit her family and Sheridan. Because she and the children visited Arkansas on the weekends, the children were sometimes checked out early from school on Fridays and were sometimes late arriving to school on Mondays, resulting in unexcused absences.

¶ 5. Sheridan and his wife divorced on January 10, 2017, and Farra and Sheridan married on February 3, 2017. Farra admitted that prior to her marriage to Sheridan, she spent multiple nights with Sheridan while the children were present. A clause in the PSA prohibited either party from exposing the children to overnight visits from adult members of the opposite sex. Farra had been prescribed three medications that she took regularly-two antidepressants and one muscle relaxer. She testified that she was also prescribed Trazodone during the summer of 2016 to help her sleep. Farra further admitted to drinking between two to four beers per day and conceded that she should not be drinking alcohol while taking these medications.

¶ 6. Natalie Byas, an employee at the local country club, testified that she observed Farra and the children's behavior at the club. Byas stated that Farra drank excessively and appeared intoxicated at least six or seven times. Byas further stated that the children were left unsupervised, which led to destructive behavior. As a result, Byas was tasked with monitoring the children's behavior and cleaning up after them. Byas testified that the club considered barring the children.

¶ 7. James testified that his relationship with the children had changed since the divorce. James said the children no longer told him that they loved him. James further stated that Farra had interfered with his visitation and had refused to discuss matters involving the children, such as extracurricular activities, medical appointments, and health insurance.

¶ 8. Additional facts, as necessary, are related during our discussion of the issues.

STANDARD OF REVIEW

¶ 9. "The standard of review in child[-]custody cases is limited. Reversal occurs only if a chancellor is manifestly wrong or applied an erroneous legal standard. This Court will not reverse a chancery court's factual findings, where there is substantial evidence in the record supporting [them]...." Floyd v. Floyd , 949 So.2d 26, 28 (¶ 5) (Miss. 2007) (citation omitted).

DISCUSSION

I. Modification

¶ 10. "[I]n modification cases, as in original awards of custody, we never depart from our polestar consideration: the best interest and welfare of the child." Johnson v. Gray , 859 So.2d 1006, 1013 (¶ 33) (Miss. 2003) (internal quotation marks omitted). However, modification issues are different from original custody determinations. In order to succeed on a request for modification, "the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child's welfare; and (3) that the child's best interests mandate a change of custody." Mabus v. Mabus , 847 So.2d 815, 818 (¶ 8) (Miss. 2003). In Riley v. Doerner , 677 So.2d 740, 744 (Miss. 1996), the supreme court held:

[W]here a child living in a custodial environment clearly adverse to the child's best interest, somehow appears to remain unscarred by his or her surroundings, the chancellor is not precluded from removing the child for placement in a healthier environment.... A child's resilience and ability to cope with difficult circumstances should not serve to shackle the child to an unhealthy home, especially when a healthier one beckons.

¶ 11. The chancellor found the following amounted to a material change in circumstances: Farra's involvement with a married man; her numerous violations of the PSA, including allowing her boyfriend to spend the night while the children were present; her decision to abuse alcohol while taking prescription medications; her poor financial decisions; her refusal to co-parent with James; her inciting the children to access private information on James's electronic devices; the children's school absences and tardies related to weekend trips to Arkansas; the children's living situation while visiting Arkansas; and issues with one child's failure to complete school assignments. The chancellor also had concerns about Farra's credibility.

¶ 12. We cannot find that the chancellor's findings regarding a material change in circumstances were manifestly wrong or clearly erroneous. We now look to whether the chancellor properly applied the Albright factors.

II. Albright Analysis

¶ 13. Farra argues that the chancellor erred in his Albright analysis. "Upon a finding of a material change in circumstances, a court is to apply the Albright factors to determine which parent should have primary custody." Pearson v. Pearson , 11 So.3d 178, 183 (¶ 14) (Miss. Ct. App. 2009).

¶ 14. The factors used to determine what is in the best interest of a child with regard to custody are: (1) the age, health, and sex of the child; (2) a determination of the parent who has had the continuity of care prior to the separation; (3) which parent has the best parenting skills and which has the willingness and capacity to provide primary childcare; (4) the employment of the parents and responsibilities of that employment; (5) the physical and mental health and age of the parents; (6) the emotional ties of the parent and child; (7) moral fitness of the parents; (8) the home, school, and community record of the child; (9) the preference of the child at the age sufficient to express a preference by law; (10) the stability of the home environment and employment of each parent; and (11) other factors relevant to the parent-child relationship. Albright v. Albright , 437 So.2d 1003, 1005 (Miss. 1983). "An Albright analysis is not a mathematical equation." Hall v. Hall , 134 So.3d 822, 827 (¶ 19) (Miss. Ct. App. 2014). "[T]his Court cannot reweigh the evidence and must defer to the chancellor's findings of the facts, so long as they are supported by substantial evidence." Id. at 828 (¶ 21).

¶ 15. The chancellor found that the first, third, fifth, sixth, and eighth factors were neutral; the second favored Farra; and the remaining factors favored James. In her appeal, Farra questions the chancellor's ruling on the following factors: physical and mental health; moral fitness; and preference of the child.

A. Physical and Mental Health

¶ 16. Farra argues that the proper use of prescription medications should not count against her. This is generally true. See Kimbrough v. Kimbrough , 76 So.3d 715, 724-25 (¶ 52) (Miss. Ct. App. 2011) (There was no evidence that mother was using poor judgment in her use of medications and no evidence that the use impaired her ability to care for the minor child.). But, Farra was admittedly not properly using her prescription medications. She was drinking alcohol while on these medications. And we have upheld the chancellor's findings in a similar situation. See Woodham v. Woodham , 17 So.3d 153, 158 (¶ 19) (Miss. Ct. App. 2009). There, the chancellor found this factor favored the father because the mother's decision to combine alcohol with antidepressants reflected poor judgment. Id. We cannot find the chancellor abused his discretion in this instance.

B. Moral Fitness

¶ 17. Farra also contends that the chancellor placed too much weight on her adultery in weighing this factor, including her pre-divorce behavior. The chancellor found this factor favored James because he found that Farra had "committed adultery while [she was] married." The chancellor further explained, "After you got your divorce, you started having intercourse with your boyfriend while he was married. And you let the children reside in the same house and locale."

¶ 18. After a thorough review of the record, we cannot find that the chancellor placed too much emphasis on Farra's decision to begin a relationship with a married man or on her pre-divorce behavior. Rather, the chancellor's chief concern was Farra's decision to disregard the PSA and allow her boyfriend to spend the night while the children were present. We cannot find the chancellor abused his discretion in finding that this factor weighed in James's favor.

C. Preference of the Child

¶ 19. Farra claims the chancellor erred in failing to allow their twelve-year-old son to state with which parent he preferred to live. We will discuss this issue in more detail below, but we do not find any error in this instance.

¶ 20. After reviewing the record, we cannot find the chancellor abused his discretion in modifying custody. This issue is without merit.

III. Preference of Twelve-Year-Old Son

¶ 21. Farra argues that the chancellor committed reversible error by refusing to allow her twelve-year-old son to state a preference. Mississippi Code Annotated section 93-11-65(1)(a) (Rev. 2013) provides that a child's preference may be taken into account in determining child custody:

[I]f the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child. The chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored.

(Emphasis added). "[T]he chancellor is not bound by the election of a minor child." Floyd , 949 So.2d at 30 (¶ 12). But, if a chancellor declines to follow a child's preference, he must place the reasons in the record. Id.

¶ 22. During the hearing, Farra asked that the twelve year old be allowed to state his preference. The chancellor declined this request, stating that based upon prior testimony, he believed the child had been coached by Farra. The chancellor allowed Farra to make a proffer regarding the twelve year old's testimony. The proffer was as follows:

The twelve year old loves his father, loves his mother, would love to spend time with his father. Would prefer to be in Arkansas where he has friends, where he has extended family, where he likes to do things in Arkansas in the proximity to other places that they can go in Arkansas, outside of Benton, Little Rock, etc. And all of the things that are available there that are not in Oxford.... He seems to think that there is a lot of stuff to do around Arkansas that is not available here.

¶ 23. In his Albright analysis, the chancellor stated that he did not allow the child to testify because he had concerns that Farra had coached the child on what to say. The chancellor further stated that although this child wanted to live with Farra (based upon the proffer), "the preference of the child in this situation [did] not have much bearing on the Court with all of the factors that I have gone over thus far." Considering that the majority of the Albright factors favored James, we find no abuse of discretion in this instance. This issue is without merit.

IV. Refusal to Allow Children to Testify

¶ 24. Farra also contends that the chancellor erred in summarily excluding testimony from the twelve-year-old son and the ten-year-old daughter. Farra argues that the chancellor was required to conduct a hearing pursuant to Jethrow v. Jethrow , 571 So.2d 270 (Miss. 1990). In Jethrow , the supreme court stated that "there can be no per se prohibition against a child witness testifying in a divorce case between his parents." Id. at 273. There, the mother wanted to call the parties' eight-year-old child "as a witness to testify to acts of violence against her by [the father]," but the chancellor refused. Id. at 271. The supreme court reversed, concluding that certain procedures should be followed in deciding whether to exclude "the testimony of a child witness of tender years in a divorce proceeding." Id. at 273. First, determine if the child is competent to testify and second, determine whether it is in the child's best interests to testify. Id. at 273-74.

¶ 25. Here, the chancellor did not conduct a Jethrow hearing, and neither party requested one. The chancellor did state that it was not in the children's best interest to testify because he thought pitting the children against the parents would be detrimental to the children. He stated, "That is not fair. This is not their fight, they didn't start it. They didn't cause the divorce, they are the victims of it." The chancellor further expressed his opinion that the children had been coached, so any testimony would be unhelpful. In this instance, we find no abuse of discretion by the chancellor.

¶ 26. AFFIRMED.

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

CARLTON, J., DISSENTING:

¶ 27. I respectfully dissent. The chancellor abused his discretion in failing to allow the twelve-year-old son to testify regarding his preference as to custody. Anderson v. Anderson , 961 So.2d 55, 59-60 (¶¶ 7-12) (Miss. Ct. App. 2007). In Anderson , this Court found that the chancery court abused its discretion in a child custody modification hearing when the chancellor failed to allow the children to testify as to their custodial preference, effectively preventing the mother from presenting her case-in-chief prior to the court entertaining the father's motion for an involuntary dismissal under Mississippi Rule of Civil Procedure 41(b). Id.

¶ 28. Similarly, the chancellor's failure to hear the testimony of the twelve-year-old child in this case not only prevented him from expressing his custodial preference, but also denied Farra the right to present her child as a witness regarding a material change in circumstances. I recognize that the version of section 93-11-65 in effect at the time Anderson was decided has since been revised to slightly weaken the child's right to choose his custodial parent. Relevant here, however, is that under either version of the statute, and under the applicable case law, a parent is entitled to present a child's testimony regarding parental preference for custody in order to demonstrate a material change in circumstances. Anderson , 961 So.2d at 59-60 (¶¶ 7-12) ; see also Boyd v. Boyd , 83 So.3d 409, 418 (¶ 29) (Miss. Ct. App. 2011) (mother allowed to present daughter's preference testimony).

¶ 29. In short, although under section 93-11-65 the chancellor does not have to honor the twelve-year-old child's preference, see, e.g. , Floyd , 949 So.2d at 30 (¶ 12), the mother has a right to present the evidence at the custody hearing. The chancellor abused his discretion in this case by declining Farra's request to present her twelve-year-old son's testimony on this issue. I maintain that this case must reversed and remanded due to the chancellor's abuse of discretion in refusing to allow the twelve-year-old son to state his preference on the record.

GRIFFIS, P.J., AND FAIR, J., JOIN THIS OPINION. TINDELL, J., JOINS THIS OPINION IN PART.

      At the time of the divorce, the children were eleven years old (son), nine years old (daughter), and eight years old (twin sons). By the time of the modification hearing, all four children were one year older.

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

      In Anderson , section 93-11-65 (Rev. 2004) provided that "any ... child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live." (Emphasis added). The current statute, also in effect at the 2016 child custody modification hearing in this case, provides that if the chancellor finds the two parties fit and proper, then "the chancellor may consider the preference of a child of twelve ... years of age or older as to the parent with whom the child would prefer to live in determining what would be in the best interest and welfare of the child." Miss. Code Ann. § 93-11-65 (Rev. 2013) (emphasis added). The statute further provides that "[t]he chancellor shall place on the record the reason or reasons for which the award of custody was made and explain in detail why the wishes of any child were or were not honored." Id.


source: Caselaw Access Project

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

license: Public Domain

text:
    Allan David COOPER, Appellant v. STATE of Mississippi, Appellee
    NO. 2018-CP-00021-COA
    Court of Appeals of Mississippi.
    December 18, 2018 Rehearing Denied April 9, 2019
    ATTORNEY FOR APPELLANT: ALLAN DAVID COOPER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    EN BANC.
   GREENLEE, J., FOR THE COURT:

¶ 1. This is an appeal from the DeSoto County Circuit Court's denial of Allan David Cooper's motion for post-conviction relief (PCR) as meritless. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Cooper was indicted in DeSoto County for obtaining over $35,000 with the intent to defraud in violation of section 97-19-39 of the Mississippi Code Annotated (Rev. 2006). The State later moved to amend his indictment to classify him as a section 99-19-81 habitual offender:

and the said ALLAN DAVID COOPER having been previously convicted of Bank Fraud in Case No. 2:96-CR-20197-001-TU in the United States District Court of the Western District of Tennessee and sentenced on June 19, 1997, to serve a term of six months imprisonment and three years of supervised release;
and the said ALLAN DAVID COOPER having been previously convicted of Theft of Property over $1000 in Case No. 03-05362 in the Criminal Court of Shelby County, Tennessee and sentenced on February 14, 2005, to serve a term of three years in a Tennessee Department of Corrections Workhouse;
and the said ALLAN DAVID COOPER thereby coming under Section 99-19-81, Mississippi Code 1972 Annotated, as amended, a Mississippi habitual offender statute, contrary to the form of the statute in such cases provided, and against the peace and dignity of the State of Mississippi.

See Miss. Code Ann. § 99-19-81 (Rev. 2015).

¶ 3. The court granted the motion, and Cooper pled guilty as a section 99-19-81 habitual offender using bank fraud and theft-of-property to establish that status. The DeSoto County Circuit Court accepted his plea and sentenced him to serve one day in the custody of the Mississippi Department of Corrections, with credit for time served, followed by nine years and 364 days of post-release supervision.

¶ 4. Four years later, Cooper pled guilty to wire fraud in the United States District Court for the Western District of Tennessee. The court sentenced him to serve twenty-seven months in federal prison followed by three years of supervised release.

¶ 5. The State of Mississippi then filed a petition to revoke Cooper's post-release supervision associated with the intent-to-defraud guilty plea on the basis that he had committed a new crime in violation of its terms. After Cooper was released from federal prison, the DeSoto County Circuit Court revoked his post-release supervision and sentenced him to five years' imprisonment.

¶ 6. Cooper moved for post-conviction relief. The circuit court ordered the State to respond to Cooper's motion in light of the Mississippi Supreme Court's holding in Martin v. State , 214 So.3d 217 (Miss. 2017). The State did so, and the court found Cooper's case distinguishable.

¶ 7. The court denied his motion, and Cooper appeals. He asserts that: (1) both the initial sentence and the resultant sentence from his post-release supervision violation were improper because they stemmed from a fatally deficient indictment; and (2) he received ineffective assistance of counsel. Finding no error, we affirm the circuit court's judgment.

DISCUSSION

¶ 8. "A circuit court's denial of a PCR motion is reviewed for abuse of discretion and will not be disturbed unless the circuit court's decision was clearly erroneous." Campbell v. State , 233 So.3d 904, 905 (¶ 3) (Miss. Ct. App. 2017) (citing Crosby v. State , 16 So.3d 74, 77 (¶ 5) (Miss. Ct. App. 2009) ).

I. Were Cooper's sentences improper because they stemmed from a fatally deficient indictment?

¶ 9. Cooper's initial indictment did not include the habitual-offender status. But his amended indictment did. Cooper now asserts that the amended indictment did not properly set forth the two qualifying felony convictions for that status. Specifically, he argues that his bank-fraud sentence of six months' imprisonment and three years' supervised release did not rise to the level of the one-year sentencing requirements of section 99-19-81 of our statutory law. But "the entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment."

Alford v. State , 185 So.3d 429, 431 (¶ 6) (Miss. Ct. App. 2016) (quoting Joiner v. State , 61 So.3d 156, 159 (¶ 7) (Miss. 2011) ). That waiver even incorporates "an indictment's failure to include habitual offender status ...." Joiner , 61 So.3d at 160 (¶ 10). For reasons discussed below, we find that Cooper waived the indictment's defects.

¶ 10. Generally, in Mississippi, "a voluntary guilty plea functions as a waiver." Joiner , 61 So.3d at 161 (¶ 15) (citing Brooks v. State , 573 So.2d 1350, 1353 (Miss. 1990) ). When Cooper petitioned the DeSoto County Circuit Court to enter a guilty plea to obtaining over $35,000 with the intent to defraud, his plea documents indicated that he was a college-educated man who retained his own counsel. In the plea, he acknowledged a maximum punishment of ten years' imprisonment and a $10,000 fine. Furthermore, the petition-which he signed-noted that "[i]t is [his] understanding that the District Attorney will recommend to the Court that [he] receive[s] a sentence as follows ... : 10 years post release supervision pursuant to section 99-19-81, 2 years reporting, fines, costs, and assessments, restitution ...." He also listed two prior felonies: bank fraud and theft-of-property.

¶ 11. At his sentencing, Cooper acknowledged that he had reviewed and signed the petition. He affirmed that his attorney had thoroughly discussed his case with him. His attorney reported to the court that he was satisfied that the State could prove the underlying convictions to establish Cooper as a habitual offender under section 99-19-81. Finally, Cooper agreed that he had "been convicted of ... underlying felonies which establish [him] as a Section 99-19-81 offender." Then, the following discussion occurred:

By the Court: All right. I will reluctantly approve Mr. Cooper's sentence. He'll be sentenced as a Section 99-19-81 habitual offender to ten years in the Mississippi Department of Corrections to be served one day incarceration, nine years, three hundred and sixty-four days post-release supervision, two of those years reporting, a 1,000-dollar fine plus court costs, $200.00 to Crime Victims Compensation Fund, as well as restitution ... totaling $52,719.00.
I understand that amount is by agreement of the parties. Is that correct, Mr. Thompson?
By Mr. Thompson: It is, Your Honor.
By the Court: Is that correct, Mr. Cooper?
By the Defendant: Yes, Your Honor.

¶ 12. It is apparent that Cooper pled knowingly and voluntarily as a section 99-19-81 habitual offender. This statement alone is sufficient to show that he has waived the assertion to a claim of an improper sentence. Also notable is that because Cooper willingly pled guilty to the enhancement as a habitual offender, the State was not forced to proceed to a trial on that issue, through which it could have discovered any issues with the sentences Cooper served and could have contested those arguments or adjusted the position of the State accordingly.

¶ 13. This determination conforms with our state's jurisprudence. In Martin , a jury found the defendant guilty of burglary, and the court sentenced him as a habitual offender with no objection to that status. Martin , 214 So.3d at 220 (¶ 4). But the Mississippi Supreme Court determined his sentence was illegal because one of his prior convictions did not result in a sentence of one year or more:

Martin's other cited conviction-a 1994 federal bank-fraud conviction from California-resulted in a sentence of only three months' imprisonment, with three years of supervised release. And when Martin violated the terms of that release, he was sentenced to only an additional five months' imprisonment. Even with the time tallied together, he was sentenced to less than one year on the federal conviction.

Id. at 221 (¶ 9). Thus, his prior convictions did not meet the requirements of section 99-19-81. Id. Like the circuit court, we too find that Cooper's case is distinguishable. Unlike in Martin , Cooper pled guilty as a habitual offender. In that vein, his case is more similar to Vanwey v. State , 149 So.3d 1023 (Miss. 2014).

¶ 14. There, our supreme court held that Vanwey had waived her objection to the habitual-offender sentence and also noted that she had negotiated a plea agreement from a potential sentence of 245 years in prison to forty-five years in prison-gaining a significant benefit. Vanwey , 149 So.3d at 1024 (¶ 4). Notwithstanding this significant benefit, the supreme court in Vanwey ruled that Vanwey had waived the issue by her plea. Id. at (¶ 3).

¶ 15. In the present case, Cooper acknowledged in his plea agreement that the maximum punishment that the circuit court could impose was ten years' imprisonment and a $10,000 fine, thereby waiving the right to later object to such punishment. See MRCrP 15.4(a)(2). Furthermore, spending nine years and 364 days out of jail rather than ten years in jail is clearly a significant benefit negotiated by Cooper's retained attorney. Cooper waived the assertion of receiving an improper sentence when he agreed that he was a habitual offender and that the court could sentence him to ten years' incarceration. His plea agreement with the State then resulted in a significant benefit to his sentence when Cooper pled guilty. The court then ordered that benefit to Cooper as agreed upon by him and the State.

¶ 16. Cooper had been convicted of bank fraud and theft-of-property, and here he pled guilty to obtaining over $35,000 with the intent to defraud as a habitual offender. Therefore, we affirm the circuit court's judgment under the abuse-of-discretion standard. Cooper's plea waived this attempt to undo his sentence.

II. Did Cooper receive ineffective assistance of counsel?

¶ 17. Cooper also asserts he received ineffective assistance of counsel. In its order denying Cooper's motion for post-conviction relief, the DeSoto County Circuit Court acknowledged that a guilty plea would not waive Cooper's effective-assistance-of-counsel constitutional right, but the court noted that Cooper "has not shown that his counsel's performance was deficient, nor that he was prejudiced by counsel's deficient performance." This remains true, as Cooper does not provide a statement by his attorney to document his assertion that he was not advised of the requirements for section 99-19-81 to apply or any other "proof that counsel's performance was objectively deficient ...," Bolton v. State , 243 So.3d 796, 803 (¶ 28) (Miss. Ct. App. 2018), as required by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 18. Cooper must produce "more than conclusory allegations on a claim of ineffective assistance of counsel." Pittman v. State , 192 So.3d 1147, 1149 (¶ 6) (Miss. Ct. App. 2016) (quoting Carpenter v. State , 899 So.2d 916, 921 (¶ 23) (Miss. Ct. App. 2005) ). "In cases involving [post-conviction] collateral relief, 'where a party offers only [his] affidavit, then [his] ineffective-assistance-of-counsel claim is without merit.' " Id. (quoting Watts v. State , 97 So.3d 722, 726 (¶ 12) (Miss. Ct. App. 2012) ).

¶ 19. Cooper has done none of these things. And, as stated previously, the sentencing transcript and a plethora of other documentation indicates that Cooper pled knowingly and voluntarily. He has failed to prove any deficiency on the part of his attorney. We, therefore, find his claim without merit under an abuse-of-discretion standard.

CONCLUSION

¶ 20. We find that the DeSoto County Circuit Court properly denied Cooper's PCR motion because his guilty plea waived the assertion of receiving an improper sentence and he has not shown his counsel's performance to have been deficient. Thus, we affirm the circuit court's judgment.

¶ 21. AFFIRMED.

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

IRVING, P.J., DISSENTING:

¶ 22. Our jurisprudence is clear: "[A] defendant has a right to be indicted as a habitual offender before he properly may be convicted and sentenced as a habitual offender." Joiner v. State , 61 So.3d 156, 158 (¶ 6) (Miss. 2011). And the majority is correct that a defendant waives his right to complain that he was sentenced as a habitual offender-without first being indicted as such-when he enters a knowing and voluntary guilty plea. Id. However, if a defendant has a right to be indicted as a habitual offender before he properly may be convicted and sentenced as such, it is counterintuitive to conclude that he waives that right even if he has not been properly indicted-unless the record affirmatively shows that he knew that he had not been legally indicted but decided to plead guilty anyway, despite the indictment's defect. The transcript of the plea colloquy between the circuit judge and Cooper does not make such a showing; therefore, I dissent.

¶ 23. First, I should note that prior to Cooper's guilty plea, it was the responsibility of the State to ensure that Cooper had been properly indicted as a habitual offender and if he had not been, to either properly amend the indictment or obtain an on-the-record, knowing and voluntary waiver from Cooper of his right to be indicted as a habitual offender. For sure, he had not been properly indicted, and there is nothing in the record to indicate that he was aware of that.

¶ 24. I reiterate what I said in the opening paragraph: Mississippi law provides that a defendant has a right to be indicted as a habitual offender before he properly may be convicted and sentenced as a habitual offender. It is not legitimately debatable that Cooper's indictment failed to allege the necessary prerequisites to adjudge him a habitual offender because, as to one of the predicate felonies, the indictment alleges that Cooper had been sentenced to only six months' imprisonment for that felony. The applicable habitual-offender statute, Mississippi Code Annotated section 99-19-81 (Rev. 2015), requires that the defendant must have been sentenced to one year or more for both predicate felonies.

¶ 25. Apparently, the majority agrees that the indictment charging Cooper as a habitual offender is defective because it does not attempt to make the case that Cooper was properly indicted as a habitual offender. Rather, it relies instead on the waiver argument, and apparently finds, by virtue of its affirmance of the judgment denying post-conviction relief, that the State obtained a valid waiver during the plea hearing.

¶ 26. Respectfully, I must say that what the majority finds as a waiver is nothing more than an abbreviated and perfunctory recitation or certain rights that are waived upon the entry of a guilty plea, and an affirmance by Cooper that he understood that. Conspicuously absent, however, from that colloquy is any discussion of the length of the sentences Cooper received for the predicate felonies. I quote the relevant portion of the plea colloquy:

Q. Mr. Cooper, do you admit that you committed the crime of false pretense as set forth in the only count in your [i]ndictment?
A. Yes, sir.
Q. Do you admit you've been convicted of these underlying felonies which establish you as a Section 99-19-81 habitual offender?
A. Yes, Your Honor.
Q. Is it your decision and your decision alone to plead guilty?
A. Yes, Your Honor.
Q. Are you asking me to accept that plea?
A. Yes, I am.

¶ 27. As noted, during the sentencing hearing, Cooper was asked this question: "Do you admit you've been convicted of these underlying felonies which establish you as a [s]ection 99-19-81 habitual offender?" Cooper answered affirmatively. The most that can be said of Cooper's answer is that he admitted he committed the felonies. Whether the felonies and sentences that he received for them propelled him into the habitual-offender sentencing stratosphere is a legal question.

¶ 28. It is clear that the question, as posed by the circuit court, erroneously and affirmatively asserted that the underlying felonies established that Cooper was a section 99-19-81 habitual offender. In other words, the court's question peremptorily instructed Cooper that he had been properly indicted as a section 99-19-81 habitual offender. Therefore, relying upon Cooper's answer, as does the majority, to establish that he was agreeing that he was a habitual offender begs the question. Nothing in the record allows us to reach the conclusion that Cooper knew the indictment was insufficient to charge him as a habitual offender and that he was pleading guilty anyway as a habitual offender. The circuit court certainly did not advise Cooper of the requirements-choosing instead to erroneously instruct through its question that the requirements had been met, and Cooper's counsel's statement to the circuit court that he "was satisfied the State could prove the underlying convictions establishing Mr. Cooper as an habitual offender pursuant to ... [s]ection 99-19-81" does not prove that counsel had discussed the indictment defect with Cooper.

¶ 29. Cooper's response to the judge's question is sufficient to conclude that Cooper pleaded guilty as a habitual offender, but it is not sufficient to conclude that Cooper knew that he had not been properly indicted as a habitual offender but agreed to plead guilty as a habitual offender anyway. Therefore, on these facts, it cannot be legitimately argued that Cooper's plea-as a habitual offender-was knowing and voluntary. I am at a loss to discern how Cooper could have pleaded knowingly and voluntarily as a habitual offender after being misled by the court into believing that his prior crimes established him as a habitual offender, when they did not. I cannot imagine that the majority means to suggest that Cooper knowingly pleaded guilty as a habitual offender because before he pleaded, the circuit judge had erroneously informed him that the predicate felonies in the indictment established him as a habitual offender. But that is the proposition that must be embraced to find, as does the majority, that Cooper knowingly and voluntarily pleaded guilty as a habitual offender.

¶ 30. For the reasons presented, I dissent.

BARNES AND WESTBROOKS, JJ., JOIN THIS OPINION.

      After the introductory portion of the indictment, it reads in relevant part:
      and the said ALLAN DAVID COOPER having been previously convicted of Bank Fraud in Case No. 2:96-CR-20197-001-TU in the United States District Court for the Western District of Tennessee and sentenced on June 19, 1997, to serve a term of six months imprisonment and three years of supervised release;
      and the said ALLAN DAVID COOPER having been previously convicted of Theft of Property over $1000 in Case No. 03-05362 in the Criminal Court of Shelby County, Tennessee and sentenced on February 14, 2005, to serve a term of three years in a Tennessee Department of Corrections Workhouse; and the said ALLAN DAVID COOPER thereby coming under Section 99-19-81, Mississippi Code 1972 Annotated, as amended, a Mississippi habitual offender statute, contrary to the form of the statute in such cases provided, and against the peace and dignity of the State of Mississippi.


author: TINDELL, J., FOR THE COURT:

text:
    Sharon LEE, Herbert Lee Jr., and Percy Toaster, Appellants v. The CITY OF BYRAM, Mississippi, Appellee
    NO. 2017-CA-01199-COA
    Court of Appeals of Mississippi.
    May 21, 2019
    ATTORNEY FOR APPELLANTS: JANE E. TUCKER, Jackson
    ATTORNEYS FOR APPELLEE: JOHN PRESTON SCANLON, JERRY L. MILLS, Ridgeland
    BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.
   TINDELL, J., FOR THE COURT:

¶1. Sharon and Herbert Lee and Percy Toaster (collectively, the Appellants) appeal the judgment of the Hinds County Circuit Court, First Judicial District, which dismissed with prejudice their bill of exceptions seeking judicial review of a rezoning decision by the mayor and board of aldermen (the Board) of the City of Byram (the City). The Appellants raise the following issues: (1) the circuit court erroneously dismissed as untimely their appeal from the Board's decision; (2) clear and convincing evidence failed to support the rezoning; and (3) the rezoning resulted in illegal spot zoning.

¶2. Upon review, we find the Appellants timely appealed the Board's rezoning decision. We therefore reverse the circuit court's dismissal of the appeal and bill of exceptions as untimely, and we remand this case so the circuit court may consider the merits of the arguments raised in the Appellants' bill of exceptions. Because we reverse and remand on this ground, we decline to address the Appellants' remaining arguments.

FACTS

¶3. On January 9, 2014, the Board approved Brett and Joni Huchins's application to rezone a small parcel of land on Siwell Road. The Hutchinses sought to rezone property located at 4149 Siwell Road from agricultural to neighborhood commercial to allow the construction of a dance studio. On January 17, 2014, the Appellants, who live near the rezoned parcel, filed a notice of appeal from the Board's decision. The Appellants also prepared a proposed bill of exceptions, which they attached as an exhibit to their notice of appeal. The Appellants delivered both documents to the city clerk with a letter asking that the clerk provide the bill of exceptions to the mayor for his review and signature and that the City provide the Appellants with copies of various specified documents for their appeal.

¶4. The Appellants stated in their proposed bill of exceptions that they incorporated by reference all proceedings conducted by the City and all documents filed with the City related to the rezoning application. After receiving all such documents and obtaining the mayor's signature, the Appellants asserted that they would file the bill of exceptions and its attached documents with the court clerk. On February 28, 2014, the City provided several of the requested documents to the Appellants. On March 7, 2014, the City provided the Appellants with the remaining requested documents.

¶5. The record reflects that the next filing in the matter occurred on September 25, 2015, when the City filed a motion to dismiss. The City argued that the Appellants failed to properly and timely file their bill of exceptions. The Appellants responded to the City's motion. In addition to their response, the Appellants filed a second bill of exceptions, this time with the circuit court. This second bill of exceptions was also unsigned by the mayor, and it recounted additional details about the matter that had occurred in the interim between the filing of the first and second bills of exceptions. The City subsequently filed a rebuttal in support of its motion to dismiss. As exhibits to its rebuttal, the City attached a certified copy of (1) the Board's January 9, 2014 meeting minutes; (2) the rezoning ordinance the Board adopted; (3) the notice of the public hearing before the Planning and Zoning Commission (the Commission) on the rezoning request; (4) the Commission's factual findings and written recommendation to the Board regarding the rezoning application; and (5) the Commission's meeting minutes.

¶6. Following a hearing on the City's motion to dismiss, the circuit court found the Appellants failed to timely file their bill of exceptions. The circuit court therefore dismissed with prejudice both the Appellants' notice of appeal and their bill of exceptions. The Appellants filed an unsuccessful motion for reconsideration. Aggrieved, they appeal.

STANDARD OF REVIEW

¶7. We review de novo the circuit court's grant of a motion to dismiss. Latham v. Johnson , 262 So.3d 569, 577 (¶39) (Miss. Ct. App. 2018).

DISCUSSION

¶8. The Appellants argue the circuit court erroneously dismissed as untimely their appeal from the Board's rezoning decision. At the time the Appellants filed their notice of appeal and proposed bill of exceptions with the city clerk, the Mississippi Supreme Court had not yet decided City of Jackson v. Allen , 242 So.3d 8 (Miss. 2018), which overruled Bowen v. DeSoto County Board of Supervisors , 852 So.2d 21 (Miss. 2003). In Bowen , the DeSoto County Board of Supervisors (the DeSoto Board) denied Bowen's request for a conditional-use permit. Bowen , 852 So.2d at 22 (¶1). Within ten days of the DeSoto Board's decision, Bowen filed a notice of appeal, but no bill of exceptions, with the circuit clerk. Id. Based on Bowen's failure to file a bill of exceptions pursuant to Mississippi Code Annotated section 11-51-75 (Rev. 2002), the DeSoto Board moved to dismiss Bowen's appeal. Id. The circuit court granted the dismissal, but on appeal to this Court, we reversed and remanded with the following instructions to the circuit court:

[P]ermit Bowen a reasonable time, as set by the court in the exercise of its sound discretion, to file the required bill of exceptions. In the event the bill of exceptions is filed within the mandated time, the court should proceed to resolve the issues presented by Bowen's appeal on the merits. In the event the bill is not timely filed, the court should consider dismissing the appeal, not for lack of jurisdiction, but for the appellant's failure to prosecute his appeal.

Bowen v. Desoto Cty. Bd. of Supervisors , 850 So. 2d 1156, 1158 (¶10) (Miss. Ct. App. 2002). After granting certiorari, the supreme court concluded that Bowen's properly and timely filed notice of appeal sufficed to vest jurisdiction of the matter with the circuit court. Bowen , 852 So.2d at 24 (¶9). As a result, the supreme court affirmed this Court's judgment. Id.

¶9. The supreme court's holding in Bowen remained good caselaw until 2018, when the supreme court explicitly stated in Allen that it overruled Bowen 's holding "that the bill of exceptions is nothing more than an optional vehicle for transmitting the record to the circuit court and that some other filing, such as a notice of appeal, can suffice to confer jurisdiction there." Allen , 242 So.3d at 22 (¶55). However, in clarifying the proper procedure for bill-of-exceptions-practice and overruling Bowen , the Allen court explained that "to restore fairness and sensibility to the bill[-]of[-]exceptions process, ... going forward , the ten-day deadline contained in the statute applies to the filing of the bill of exceptions with the clerk of the county or municipal board." Id. at (¶56). Based on such language, we find the Allen court intended its holding to apply prospectively rather than retroactively. See Mid-S. Retina LLC v. Conner , 72 So.3d 1048, 1052 (¶13) (Miss. 2011) ("Generally, all judicial decisions apply retroactively unless the Court has specifically stated the ruling is prospective."). We therefore find the change in caselaw brought about by Allen fails to apply to the appeal currently before us because the current appeal was pending at the time the supreme court decided Allen .

¶10. Furthermore, pursuant to Bowen , which still controlled at the time the Appellants filed their notice of appeal and proposed bill of exceptions, we find the circuit court erred by granting the City's motion to dismiss. At the time the Appellants sought judicial review of the Board's rezoning decision, Mississippi Code Annotated section 11-51-75 (Rev. 2012) provided in relevant part:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision , and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities.

(Emphasis added).

¶11. The record here reflects that the Appellants filed their notice of appeal and proposed bill of exceptions within section 11-51-75's ten-day deadline. Thus, as in Bowen , the Appellants properly and timely appealed from the Board's decision. See Bowen , 852 So.2d at 24 (¶9). We therefore reverse the circuit court's dismissal of their appeal as untimely. On remand, the circuit court should consider the merits of the arguments raised in the Appellants' bill of exceptions. At the time the circuit court heard the City's motion to dismiss, the court had before it not only the proposed bill of exceptions but also all the certified documents the City attached to its motion to dismiss. If on remand, though, the circuit court determines that the Appellants should file an amended bill of exceptions, the court should establish a reasonable time for the Appellants to do so and for the City to provide its proposed changes. See Bowen , 850 So.2d at 1158 (¶10). If the parties comply, the circuit court should then resolve on the merits the issues presented by the bill of exceptions. Id.

CONCLUSION

¶12. We find the Appellants timely appealed the Board's rezoning decision by submitting their notice of appeal and proposed bill of exceptions to the City within section 11-51-75's ten-day time limit. We therefore reverse the circuit court's dismissal of their appeal as untimely and remand so the circuit court may consider the merits of the arguments raised in the Appellants' bill of exceptions. Because we reverse the circuit court's judgment on this ground, we decline to address the Appellants' remaining assignments of error.

¶13. REVERSED AND REMANDED.

BARNES, C.J., CARLTON AN D J. WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

      We note that five justices fully joined the majority opinion's holding in Allen that "the bill of exceptions itself is a jurisdictional requirement for the circuit court to hear an appeal via Section 11-51-75 ...." Allen , 242 So.3d at 22 (¶54). However, five justices also fully joined Allen 's special concurrence, which concluded that a bill of exceptions is just "an optional procedural vehicle" and "simply is not a mandatory jurisdictional requirement." Id. at 30 (¶¶88, 90) (Chamberlin, J., specially concurring) (emphasis added).

      The Legislature amended section 11-51-75 after the Appellants filed their appeal. Miss. Code Ann. § 11-51-75 (Supp. 2018) ; 2018 Miss. Laws ch. 448. However, those amendments do not affect the Appellants' appeal. 2018 Miss. Laws ch. 448, § 2.


author: BARNES, C.J., FOR THE COURT: McCARTY, J., DISSENTING:

text:
    Wade Hampton BLACKWELL Jr. a/k/a Wade H. Blackwell Jr. a/k/a Wade Hampton Blackwell, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00865-COA
    Court of Appeals of Mississippi.
    May 21, 2019
    ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY, Gulfport
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, Jackson
    EN BANC.
   BARNES, C.J., FOR THE COURT:

¶1. A jury sitting before the Harrison County Circuit Court found Wade Hampton Blackwell Jr. guilty of two counts of touching a child for lustful purposes. Blackwell appeals and argues that (1) the prosecution should not have been allowed to amend the range of dates listed in the indictment; (2) a prosecution witness should have been precluded from testifying that Blackwell had molested him approximately twenty years earlier; (3) the prosecution made improper comments during its closing argument; (4) the circuit court should have granted his motion for a continuance after the victim gave unanticipated testimony; and (5) his convictions should be reversed based on cumulative error. Finding no error, we affirm the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶2. On January 19, 2015, twelve-year-old John revealed to his mother that Blackwell had been inappropriately touching him. John's parents took him to see therapist Jamie Varnado. After talking to John, Varnado told his parents that they should file a report with the Harrison County Sheriff's Department. The next morning, John's mother met with Investigator Alicia Stevison, who arranged a forensic interview.

¶3. On January 29, 2015, Tiffany Lizana conducted John's forensic interview. John reported that Blackwell had reached into John's pants and rubbed his penis and buttocks. John also said that Blackwell's inappropriate touching began during "the summer before last." John would have been ten years old at that time. Later that day, John's mother signed three affidavits that Investigator Stevison prepared and notarized. One affidavit stated that Blackwell had molested a ten-year-old sometime around May 30, 2013. Another stated that he molested an eleven-year-old between May 2013 and May 2014. The third one stated he molested an eleven-year-old between May 2014 and January 2015. Those affidavits resulted in a warrant for Blackwell's arrest.

¶4. Blackwell was later indicted and charged with two counts of touching a child for lustful purposes. See Miss. Code Ann. § 97-5-23(1) (Rev. 2014). Collectively, the indictment alleged that Blackwell lustfully touched John's penis and buttocks between January 1, 2014, and January 19, 2015. Blackwell pled not guilty and opted to go to trial.

¶5. On the day before Blackwell's trial began, the prosecution filed a motion to amend the indictment. More specifically, the prosecution sought to increase the range of dates alleged in the indictment so it covered inappropriate touching that occurred between January 1, 2013, and January 19, 2015. Blackwell filed a written response in opposition to the State's motion and requested a continuance. Blackwell also filed a motion in limine to preclude evidence of a number of things, including the anticipated testimony of a witness whom Blackwell had molested approximately twenty years earlier.

¶6. The parties convened on February 14, 2017, and the circuit court heard several pretrial motions. For purposes of this opinion, the significant events were the circuit court's decisions to grant the prosecution's motion to amend the indictment and to deny Blackwell's motion to prevent the prosecution from introducing evidence that Blackwell previously molested someone else. The remainder of the day was devoted to jury selection.

¶7. The next day, the prosecution called John as its first witness. According to John, Blackwell put his hands down John's pants and rubbed his "front and back privates." John explained that Blackwell had rubbed his buttocks "[s]everal" times, and Blackwell rubbed his penis the last time that Blackwell touched him inappropriately. Although John could not remember specific dates that Blackwell's inappropriate touching occurred, he did not deviate from his representation that Blackwell's inappropriate touching began during the summer of 2013. The video of the forensic interview was played during John's cross-examination testimony; so the jury heard John's January 2015 statement that the inappropriate touching began during "the summer before last."

¶8. After John testified, the prosecution called his mother and father, Varnado, Emmett Close, Investigator Stevison, and Lizana. All of the witnesses except Close testified regarding their roles in reporting or relaying John's allegations. Over Blackwell's objection, Close testified that Blackwell had molested him approximately twenty years earlier.

¶9. Blackwell chose not to testify, and he rested without calling any witnesses. Based on defense counsel's opening statement, cross-examinations, and closing arguments, Blackwell's defense theory was that John's allegations were not credible. More specifically, defense counsel suggested that John made up his allegations to get attention or he imagined them because he had been diagnosed with Tourette syndrome which, according to defense counsel, caused him to experience visual and auditory hallucinations.

¶10. The jury found Blackwell guilty of both counts. The circuit court sentenced Blackwell to fifteen years for the first offense and a consecutive ten-year sentence for the second. Blackwell appeals.

ANALYSIS

I. AMENDED INDICTMENT

¶11. Blackwell claims the circuit court erred when it allowed the prosecution to amend the dates alleged in the indictment shortly before trial. "Trial courts may amend indictments only to correct defects of form." Leonard v. State , 972 So.2d 24, 28 (¶ 12) (Miss. Ct. App. 2008) (citing Spears v. State , 942 So.2d 772, 774 (¶ 6) (Miss. 2006) ). Substantial defects "must be corrected by the grand jury." Id. "A change in the indictment is permissible if it does not materially alter facts [that] are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Id.

¶12. At the time of the offenses and Blackwell's trial, the Uniform Rules of Circuit and County Court still applied to criminal proceedings. Rule 7.06(5) required that an "indictment ... include ... [t]he date, and if applicable, the time at which the offense was alleged to have been committed." But "a specific date in a child sexual abuse case is not required so long as the defendant is fully and fairly advised of the charge against him." Jenkins v. State , 131 So.3d 544, 549 (¶ 14) (Miss. 2013) (internal quotation marks omitted).

¶13. Blackwell reiterates his position that the amendment prejudiced his defense that he never touched John inappropriately, especially not during the dates alleged in the indictment. Blackwell's attorney conceded that he was given a copy of John's forensic interview during discovery, and John had said that Blackwell began inappropriately touching John during "the summer before last," meaning the summer of 2013. Even so, defense counsel argued that because the beginning date in the indictment was January 1, 2014, he essentially had an affirmative defense before the amendment, and he lost that defense after the amendment.

¶14. Blackwell's position overlooks the fact that although John could not remember exactly when Blackwell touched him inappropriately, he said that it began during the summer of 2013 and continued afterward. The jury could have reasonably found Blackwell guilty for touching that occurred during the dates originally listed in the indictment. Plus, Blackwell's defense that he never touched John was equally available before and after the amendment. See Leonard , 972 So.2d at 28 (¶ 13). Further, Blackwell was not unfairly surprised by the amendment. The prosecution gave defense counsel a copy of John's forensic interview more than a year before Blackwell's trial; so defense counsel had ample notice of John's statement that Blackwell began touching him during "the summer before last," meaning the summer of 2013.

¶15. On a different note, Blackwell also argues that the amendment was improper because the grand jury had refused to charge Blackwell with inappropriately touching John before January 1, 2014. Blackwell's argument is based on the affidavits that John's mother signed on January 29, 2015. Blackwell assumes that the prosecution presented the affidavits to the grand jury and that the grand jury returned the two counts in the indictment based on the affidavits.

¶16. Defense counsel did not make this argument during the pretrial hearing on the prosecution's motion to amend the indictment. In fact, defense counsel did not make a similar argument to the circuit court until the next morning. Assuming for the sake of discussion that defense counsel's day-late argument was sufficient to preserve this claim, we would still find it meritless. There is no indication that Blackwell was given any information about what occurred during the grand jury proceedings. Aside from defense counsel's speculation and conjecture, nothing suggests that the prosecution presented the affidavits to the grand jury. Grand jury proceedings are generally secret. Miss. Code Ann. § 13-5-61 (Rev. 2012); URCCC 7.04. We do not know what the prosecution presented to the grand jury, and neither does Blackwell's attorney. Because the record simply does not support defense counsel's claim that the grand jury "refused" to charge Blackwell with conduct that occurred before January 1, 2014, we would find that this issue must fail even if it had been properly preserved.

II. PRIOR BAD ACTS

¶17. Next, Blackwell claims that the circuit court erred when it allowed Close to testify that Blackwell had touched him inappropriately approximately twenty years earlier. According to Blackwell, Close's testimony should have been precluded because he and John did not describe similar allegations, and Close's testimony was impermissible under Rules 404(b) and 403 of the Mississippi Rules of Evidence. Finally, Blackwell argues that the circuit judge did not adequately articulate his reasoning that Close's testimony was admissible. "We review the circuit court's admission or exclusion of evidence for abuse of discretion." Shoemaker v. State , 256 So.3d 604, 613 (¶ 35) (Miss. Ct. App. 2018).

¶18. The prosecution proffered Close's testimony during the pretrial hearing on Blackwell's motion in limine. Close said that he "grew up poor"; so he started working on Blackwell's shrimp boat during a summer break when he was around twelve years old. One night when Close was sleeping in his bunk, he woke up when Blackwell began rubbing his (Close's) thigh and masturbating. Close later moved into Blackwell's house. Close said that Blackwell continued to touch him inappropriately. More specifically, Close said that Blackwell touched his penis and his buttocks. Close never told anyone because he was embarrassed.

¶19. Before Close's proffer, the prosecution said that his testimony would show Blackwell's "sexual abuse was not an accident or a mistake. It also shows [Blackwell's] opportunity and his intent and plans." The prosecution later added:

This shows that this defendant preys on younger boys living in his home who he has contact with and access to. It also shows his intent and plan in this case with [John]. It shows his motive, his MO, so to speak, which 404(b) allows, is this desire to partake in pedophile sexual activities with young or developing male children.
It also shows his means to accomplish that on occasions took place in the home or away from the home on a boat where he had alone time with these children that were living in his house. And that the defendant is taking advantage of this ... relationship where the defendant is the one who should be leading these children and grooming them into adults in society and [he] takes advantage of that, takes advantage of his position.

¶20. After the proffer, defense counsel argued that Close's anticipated testimony was unnecessary because John was capable of describing his allegations. Counsel also argued that Close and John did not describe similar abuse, and the probative value of Close's testimony did not outweigh its prejudicial effect. The circuit court held:

All right. 404(b), dealing with character evidence, evidence of a crime, wrongdoing[,] or other act is not admissible to prove a person's character in order to prove that on a particular occasion that person acted in accordance with their character. However, two, permitted uses, this evidence may be admissible for other purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
It does not have to be the exact type of activity in every regard, but it must pass through the filter of [ Rule] 403 because [it] says relevant evidence may be excluded if it is more prejudicial than probative. Court's finding that it is more probative than prejudicial.... It will be allowed in. You have your objection.

Close's subsequent testimony before the jury was consistent with his proffer, and he added some additional details that have no bearing on this issue.

¶21. Rule 404(b) prohibits the use of prior-bad-acts evidence to prove a person's character to show that he acted in conformity therewith. However, Rule 404(b) permits the use of such evidence to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Before admitting prior-bad-acts evidence, a trial judge should filter the evidence through Mississippi Rule of Evidence 403 and determine whether the evidence's probative value outweighs its prejudicial effect to the defendant. Where the evidence's probative value outweighs its prejudice, the trial judge may admit the evidence. In the context of child-sexual-abuse cases, even evidence of remote past sexual-abuse allegations may be admitted for a proper purpose under Rule 404(b), especially when coupled with an appropriate limiting instruction to the jury.

Shoemaker , 256 So.3d at 613-14 (¶ 36) (citations omitted).

¶22. In arguing that the circuit court erred when it allowed the prosecution to present Close's testimony, Blackwell relies heavily on what the Mississippi Supreme Court has recently described as this Court's "sharply divided" decision in White v. State , 228 So.3d 893 (Miss. Ct. App. 2017). The lead opinion reversed Curtis White's convictions for gratification of lust and statutory rape and remanded the case for a new trial because a circuit court "committed a plethora of reversible errors" and the "circuit court repeatedly abused its discretion and violated White's constitutional rights [to] due process and a fair trial by an impartial jury ...." Id. at 896-97 (¶ 1). Among the "plethora" of errors was the circuit court's decision that a witness could testify, over the defendant's objection, that nine years earlier she had an "affair with [the defendant that was]

based on ... 'mutual flirtation' ...." Id. at 901 (¶ 20). The defendant had been twenty-four years old at the time of the "affair," and the witness had been "between fifteen and seventeen." Id.

¶23. The lead opinion held that the defendant's "affair [was] ... not probative of his plan, motive, intent, or opportunity in regard to [the thirteen year-old victim]" and "[t]he two scenarios [we]re hardly factually similar ...." Id. at 902 (¶ 20). Consequently, the lead opinion held that "the circuit court abused its discretion in admitting ... highly prejudicial and minimally probative [evidence of a] nine-year-old statutory[ ]rape ...." Id. at (¶ 22). The lead opinion also held that the circuit court did not adequately explain its decision when it merely agreed with the prosecution that the witness's testimony was admissible under every contemplated basis in Rule 404(b) and said that the probative value of the evidence outweighed its prejudicial effect." Id. at (¶ 21-22).

¶24. Notwithstanding the outcome in White , it is well settled that "evidence of a sexual offense, other than the one charged, [that] involves a [different] victim" is not per se error "if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately[ ]drafted limiting or cautionary instruction to the jury." Derouen v. State , 994 So.2d 748, 756 (¶ 20) (Miss. 2008). "The purposes listed in Rule 404(b) are not exhaustive; they simply are examples of noncharacter purposes for which evidence of other crimes, wrongs, or acts may be admitted." Boggs v. State , 188 So.3d 515, 519 (¶ 11) (Miss. 2016) (quoting Green v. State , 89 So.3d 543, 549 n.12 (Miss. 2012) ). Prior abuse of a different victim may be admissible under Rule 404(b) if it demonstrates that the " 'defendant's means of accomplishing pedophilic sexual activities on past occasions bears substantial resemblance to each other and with the present offense,' which served as proof of motive and a common plan or scheme." Id. at (¶ 13) (quoting Gore v. State , 37 So.3d 1178, 1186 (¶ 18) (Miss. 2010) ). And " 'overwhelming similarities' between prior instances of sexual misconduct and the charged offense 'undeniably bring the testimony of these other victims within the purview of admissibility under Rule 404(b).' " Id. at (¶ 14) (quoting Green , 89 So.3d at 550 (¶ 17) ). The Mississippi Supreme Court has also held that a defendant's prior sexual abuse of a different victim may be "admissible to prove ... motive" in the form of a "seemingly uncontrollable desire to partake in pedophilic sexual activities with young and developing [similarly gendered] juveniles ...." Id. at 521 (¶ 18).

¶25. This case is not like the unique circumstances in White . As mentioned above, Blackwell's defense theory was to cast doubt on John's credibility. Counsel for Blackwell consistently suggested that John imagined that Blackwell had touched him inappropriately or that John made up the allegations to get his mother's attention. Close's testimony tended to prove that John was not mistaken about his allegations, and Blackwell had a common plan to take advantage of his proximity to a young developing boy and gratify his lust by touching the victim's penis and buttocks. The prosecution was also obligated to prove that Blackwell inappropriately touched John with lustful intent. See Miss. Code Ann. § 97-5-23(1). It was within the circuit court's discretion to find that Close's testimony was admissible for those purposes, and that its probative value outweighed its prejudicial effect. We further note that the circuit court gave an appropriate limiting instruction. Finally, we find that the circuit court's omission of an express, on-the-record analysis regarding admissibility under Rules 404(b) and 403 is harmless under the circumstances. See Alford v. State , 238 So.3d 11, 14 (¶ 9) (Miss. Ct. App. 2018) (quoting Archer v. State , 118 So. 3d 612, 625-26 (¶ 57) (Miss. Ct. App. 2012) ).

III. COMMENTS DURING CLOSING ARGUMENT

¶26. Blackwell claims the prosecution made improper and reversible comments during its closing argument. First, Blackwell says the prosecution should not have said that there was no evidence that John was angry at Blackwell because Blackwell would not let John have frozen yogurt. Second, Blackwell says the prosecution should not have referred to him as a child molester. But there was no contemporaneous objection to either comment. "As an appellate court, we have no original jurisdiction to review this issue." Gray v. State , 202 So. 3d 243, 261 (¶ 70) (Miss. Ct. App. 2015). Blackwell is procedurally barred from raising these claims for the first time on appeal. See Id. at 261-62 (¶ 70). And we do not find that the comments at issue were "so inflammatory that the trial judge should have objected on his own motion." O'Connor v. State , 120 So.3d 390, 399 (¶ 26) (Miss. 2013).

¶27. Procedural bar notwithstanding, Blackwell's claims are meritless. He first argues that it was improper for the prosecution to say that there was no evidence that John was angry because Blackwell would not let him have frozen yogurt for dessert-the suggestion seems to be that John retaliated against Blackwell by making up his allegations. Defense counsel argues that there could have been such evidence if the prosecution had called the witness who was expected to present it and the witness testified consistent with defense counsel's expectation. But the prosecution's comment was factually accurate; the jury did not hear any evidence that John was angry because he was denied frozen yogurt. The comment at issue was also in response to defense counsel's fruitless cross-examination of the prosecution's witnesses. In short, it was not improper for the prosecution to point out that the jury had not heard any evidence to support defense counsel's implication.

¶28. As for Blackwell's complaint about the prosecution's "child molester"

comment, he again relies heavily on White . That case held that reversible error also resulted from "the cumulative effect of the otherwise harmless" improper comments that the prosecution made "[t]hroughout [the] trial." White , 228 So.3d at 905 (¶ 30). Despite the lack of an objection to "a litany of prejudicial comments" during the prosecution's closing argument, the lead opinion held that cumulatively reversible-prosecutorial misconduct stemmed in part from the fact that the prosecution called the defendant a pedophile three times and referred to him once as a child molester. Id. at 910-11 (¶¶ 52-55). The lead opinion also said that calling the defendant a pedophile was "plain error that warrant[ed] reversal standing alone." Id. at 911 (¶ 55). But in Case v. State , 187 So.3d 177, 184 (¶¶ 24-25) (Miss. Ct. App. 2015), we held that an appellant who had been convicted of two counts of fondling a child was procedurally barred from arguing for the first time on appeal that the prosecution improperly called him a pedophile four times during its closing argument. And even if the claim had not been procedurally barred, it would have been meritless because "the prosecutor's comments, taken in context, show[ed] that the prosecutor was commenting on the facts presented in the evidence." Id. at (¶ 26).

¶29. Again, this case is different from White . Neither of the prosecutors ever called Blackwell a pedophile in front of the jury. Instead, one of the prosecutors said that Blackwell was "a child molester. He touched [John], rubbed ... his penis, rubbed his butt multiple times ...." Later, the prosecutor said:

In voir dire we talked about stereotyping people and you can't look at someone and say, ["]oh, this is a child molester["] because they come from all walks of life. But now that we've heard all the testimony and the evidence, I submit to you that, yes, look at this defendant, look at him. That's what [defense counsel] asked you to do in opening. This is a child molester.

"Attorneys on both sides are generally afforded broad latitude during closing arguments so long as counsel in his address to the jury keeps fairly within the evidence and the issues involved." Id. Viewed in appropriate context, the prosecution was arguing that Blackwell was guilty of the charges he faced-two counts of gratification of lust by improperly touching a child. Instead of using that language, the prosecution used a shorter, more familiar synonym for the crime. Said differently, the comments at issue were tethered to the legal and factual circumstances of the case, so they were "fair argument based upon the testimony and evidence ...." Divine v. State , 947 So.2d 1017, 1022 (¶ 12) (Miss. Ct. App. 2007) (upholding a decision denying a motion for mistrial after a prosecutor referred to a defendant as a sexual predator and a child molester during closing argument in a trial for sexual battery of a minor). Thus, we would find this issue meritless even if it were not procedurally barred.

IV. CONTINUANCE

¶30. During the forensic interview, John said that Blackwell's inappropriate touching occurred in Blackwell's living room. During John's direct testimony, he said that Blackwell's inappropriate touching occurred in the living room and "[i]n the house, just random places." On cross-examination, John testified that it occurred in the living room and in Blackwell's bedroom. When defense counsel asked John if he had ever told anyone about inappropriate touching in Blackwell's living room, John said that he had told one of the prosecutors that, but he could not remember when. Defense counsel told the circuit judge that he had "a motion," and he "ask[ed] permission to make it so we don't delay." The circuit judge responded: "At the appropriate time."

¶31. After the victim finished testifying, defense counsel complained that the prosecution had not given him notice that John would testify that some of the inappropriate touching had occurred in Blackwell's bedroom. According to defense counsel, John's unexpected testimony undermined his ability to argue that John's allegations were not credible because it would be unlikely for Blackwell to molest the victim in a public area like his living room; especially since the victim's two siblings and Blackwell's wife would have likely been in Blackwell's house at the same time as Blackwell and the victim. Defense counsel concluded by asking the circuit court to "begin the Box proceedings" so he could decide "whether ... [he] would move for a mistrial or a continuance ...."

¶32. The prosecutor responded that she did not remember the victim telling her that Blackwell had molested him in Blackwell's bedroom, and Box was moot because defense counsel had finished cross-examining the victim. The prosecutor also noted that when the forensic interviewer asked the victim whether Blackwell had touched him in any other places, it was unclear whether the victim understood that to mean other places on his body. Ultimately, the circuit court held:

The [S]tate cannot possibly give every word that's going to come out of the victim's mouth when [he] testif[ies]. The defendant is on notice of what the charges are. Simply saying it happened on the couch or it happened in the bedroom is all in the same home. This doesn't change anything. I don't even feel like it's a Box violation, much less a valid motion for a mistrial, so [there is] no violation and there is no mistrial. It's denied.

¶33. On appeal, Blackwell claims the circuit court committed reversible error "because a material discovery issue in which the known information was withheld from the defense, and when the violation occurred, the trial judge refused to follow the Box procedures ...." (Italics added). He also submits that "[i]t was an important part of the defense to argue that it was not likely that [Blackwell] would do something so offensive in a public place." Although Blackwell does not expressly argue that the circuit court should have granted a mistrial, we interpret that to be his position; especially since it would have been pointless for the circuit judge to grant a continuance after defense counsel finished cross-examining the victim. We review "a trial court's denial of a motion for mistrial for abuse of discretion." Hurst v. State , 195 So.3d 736, 744 (¶ 20) (Miss. 2016).

¶34. First and foremost, it is questionable whether defense counsel moved for a mistrial. He certainly complained about a perceived discovery violation, but he did not go so far as to move for a mistrial or even for a continuance. Even so, the circuit court interpreted defense counsel's complaints as a motion for a mistrial, because the circuit court ultimately found that defense counsel was not entitled to one.

¶35. In any event, the Box procedure does not apply to this case. At the time of Blackwell's trial, the Box procedure was still delineated in Rule 9.04(I) of the Uniform Rules of Circuit and County Court. It provided that if the prosecution attempts to introduce undisclosed evidence and the defense objects, the circuit court must:

1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

¶36. That procedure applies "when the State attempts to enter previously undisclosed evidence over the defendant's objection." Terrell v. State , 237 So.3d 717, 730 (¶ 51) (Miss. 2018). As the State notes, the prosecution did not introduce evidence that Blackwell's inappropriate touching occurred in his living room and his bedroom. Defense counsel elicited that testimony when he cross-examined the victim. And as the prosecution discussed at trial, the victim's forensic interview was ambiguous regarding whether his response that Blackwell had not touched him anywhere else referred to anywhere else on his body, or anywhere else in Blackwell's house. To the extent that Blackwell actually moved for a mistrial, it was within the circuit court's discretion to deny that request.

V. CUMULATIVE ERROR

¶37. Finally, Blackwell argues that his conviction should be reversed "especially with respect to the error of prosecutorial misconduct for which there was no contemporaneous objection" based on what he describes as the "cumulative error rule."

The cumulative error doctrine stems from the doctrine of harmless error which holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial. However, where there was no error in part, there can be no reversible error to the whole.

Jackson v. State , 263 So.3d 1003, 1018 (¶ 47) (Miss. Ct. App. 2018) (quoting Harris v. State , 970 So.2d 151, 157 (¶ 24) (Miss. 2007) ). Having found no errors, harmless or otherwise, there was no cumulative error. We affirm the circuit court's judgment.

¶38. AFFIRMED.

CARLTON AN D J. WILSON, P.JJ., GREENLEE, TINDELL, LAWRENCE AND C. WILSON, JJ., CONCUR. McCARTY, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS AND McDONALD, JJ.

McCARTY, J., DISSENTING:

¶39. With all due respect, I cannot agree with the majority's finding that the circuit court committed harmless error when it allowed Close's witness testimony and the State to call Blackwell a child molester during closing arguments.

¶40. This case perfectly represents exactly why we have the Mississippi Rules of Evidence-especially Rule 403-to guard against conviction by social pressure or disgust. Rule 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." M.R.E. 403. Allowing the witness's decades-old testimony was prejudice per se.

¶41. "Under Rule 404(b), evidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."

White v. State , 228 So.3d 893, 901 (¶ 16) (Miss. Ct. App. 2017). "[T]he prosecution may not introduce prior bad acts for the purpose of showing that the defendant had a propensity to engage in such conduct, that is, because he had done things like this before, he probably did it this time." Cole v. State , 126 So.3d 880, 885 (¶ 20) (Miss. 2013). "The reason for the rule is to prevent the State from raising the inference that the accused has committed other crimes and is therefore likely to be guilty of the offense charged." Mitchell v. State , 110 So.3d 732, 734 (¶ 10) (Miss. 2013).

¶42. There are exceptions in which a defendant's prior bad act may be admissible. These are when the State submits evidence in order to show one of the following: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. M.R.E. 404(b)(2). None of these exceptions apply in the present case. I can find no other reason to introduce Close's testimony other than to prejudice the jury. This is a classic example of inadmissible propensity evidence.

¶43. This case closely tracks White v. State , 228 So.3d 893 -no matter the attempts to distinguish it. In White , the State submitted witness testimony of a nine-year-old allegation of sexual offense by the defendant at his current trial. White , 228 So.3d at 901(¶ 18). On appeal, this Court held that the witness's testimony was not probative of the defendant's plan, motive, intent, or opportunity and therefore was inadmissible. Id. at 902 (¶ 22). The same result should be reached here today. Just as in White , the circuit court here abused its discretion by admitting highly prejudicial and minimally probative evidence of an uncharged twenty-year-old offense. I am certain that the jury convicted Blackwell due to the ancient allegations.

¶44. Just as in White , the trial court also failed to make on-the-record findings. "When the trial court admits other bad acts evidence under Rule 404(b), it should make an on-the-record Rule 403 finding that the probative value is not substantially outweighed by the danger of unfair prejudice." Id.

¶45. In White this court took issue with the circuit court neglecting to specify what, under 404(b), made the defendant's prior bad act admissible. Id. We said that the circuit court's general explanation of the rule was not adequate. Id. Just as in White , the circuit court here did not adequately explain its decision. It merely agreed with the prosecution and said the evidence was admissible under Rule 404(b).

¶46. "The proposition that an uncharged, factually dissimilar, and almost [two-]decade-old offense contains probative value that substantially outweighs the threat of unfair prejudice to the defendant's constitutional rights is certainly a stretch." White , 228 So.3d at 901(¶ 18).

¶47. In addition to the improper witness testimony, Blackwell's case also warrants reversal based on the State's wildly out-of-bounds closing argument. The majority finds no error because the State never referred to Blackwell as a pedophile. Technically, this is true. What happened was way worse because the State called the defendant a child molester not once, but twice:

But now that we've heard all the testimony and the evidence, I submit to you that, yes, look at this defendant, look at him. That's what they asked you to do in opening. This is a child molester.
....
And I'll tell you what, there is one explanation and it's a much simpler one. This defendant is a child molester.

¶48. This is the sort of statement that shocks the conscious and prevents a defendant from receiving a fair trial. Cases should be tried based on their facts-not innuendo or fearmongering.

¶49. For the forgoing reasons, I respectfully dissent.

WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION.

      We substitute a pseudonym for the victim's name.

      Blackwell is John's paternal grandfather. John often spent the night at Blackwell's house.

      Because Varnado is a mandated reporter, she also made "a report to DHS and ... contacted law enforcement." See Miss. Code Ann. § 43-21-353(1) (Rev. 2015).

      Notwithstanding defense counsel's suggestion, there was no evidence that Tourette's causes any form of sensory hallucination. John testified: "There's two different types of Tourette's. There's physical and verbal. I have the physical kind.... You twitch your body uncontrollably." John's mother also testified that John had "head tics and hand tics." John denied that he had ever seen or heard anything that did not actually exist.

      Blackwell was tried during February 2017, and the Mississippi Rules of Criminal Procedure became effective on July 1, 2017.

      Close was thirty-five years old when he testified. He did not know exactly how old he had been when Blackwell began touching him inappropriately. Once during his proffer, he said he had been between twelve and fourteen. He later said he had been twelve or thirteen. When he testified before the jury, he said he may have been eleven or twelve.

      McGrath v. State , No. 2017-KA-01184-SCT, 271 So.3d 437, ----, 2019 WL 1722890, at *8 (¶ 17) (Miss. Apr. 18, 2019). In White , one judge joined the author of the lead opinion, three judges concurred in part and in the result, and four judges dissented. One judge did not participate.

      As noted in White , "[i]t was unclear how old White was when the affair began, but the record show[ed] that it lasted for approximately two years, ending when [the witness] was seventeen years old." Id. at n.4.

      This ruling has drawn criticism that such a purpose is too close to propensity evidence. Id. at 525 (¶¶ 28-31) (Dickinson, J., dissenting).

      It was within the circuit court's discretion to find that Close's testimony was admissible despite the fact that he described abuse that had occurred around twenty years earlier. In Gore , 37 So.3d at 1186-87 (¶ 19), our supreme court approvingly discussed a number of decisions from other states that all stand for the general principle that evidence of prior abuse of a different victim was not inadmissible simply because it was relatively old. And in Young v. State , 106 So.3d 811, 814 (¶ 1) (Miss. Ct. App. 2011), this Court upheld a decision that a prior victim could testify about abuse that had happened approximately twenty years earlier. Similarly, in Harris v. State , 165 So.3d 473, 475-77 (¶¶ 6-10) (Miss. Ct. App. 2015), this Court upheld a decision that two prior victims could describe abuse that had happened approximately thirty years earlier.

      During his opening statement, defense counsel said that the jury would hear evidence that John said Blackwell had touched him inappropriately after Blackwell did not let John have frozen yogurt for dessert. Defense counsel expected a prosecution witness to present that testimony, but the prosecution ultimately chose not to call that witness and defense counsel did not attempt to call him.

      Box v. State , 437 So.2d 19, 23-24 (Miss. 1983) (Robertson, J., specially concurring); see also URCCC 9.04(I) (supplanted by MRCrP 17.9(b) ).


author: BOLIN, Justice.

text:
    EX PARTE Sherryl PALMORE
    (In re Alabama State Personnel Board v. Sherryl Palmore)
    1171069
    Supreme Court of Alabama.
    September 14, 2018
   BOLIN, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Civil Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

Stuart, C.J., and Shaw, Wise, and Sellers, JJ., concur.


text:
    ALABAMA STATE PERSONNEL BOARD v. Sherryl PALMORE
    2170090
    Court of Civil Appeals of Alabama.
    August 3, 2018 Certiorari Denied September 14, 2018
    Alabama Supreme Court 1171069


author: STUART, Chief Justice.

text:
    ESTATE OF Ray Wendell WILLIAMS v. Kimberly LOVELESS
    1170392
    Supreme Court of Alabama.
    September 14, 2018
    John A. Tinney, Roanoke, for appellant.
    Chad Lee, Wedowee, for appellee.
   STUART, Chief Justice.

The estate of Ray Wendell Williams appeals the judgment of the Randolph Circuit Court ordering it to make a monthly payment of $1,000 to Williams's daughter Kimberly Loveless pursuant to a provision in Williams's will directing WTW Enterprises, Inc. ("WTW"), a trucking business operated by Williams before his death, to commence paying Loveless a monthly salary of "no less than $1,000" upon his death. We dismiss the appeal.

On July 17, 2015, Williams died in Roanoke; he was survived by his second wife Kathy Williams ("Kathy") and her son Jeff Mitchell, as well as by Loveless, the only child of his first marriage to Sheila Boyd. During his lifetime, Williams had operated WTW with assistance from Kathy and Mitchell, and "Item Seven" of his will provided as follows regarding his wishes for WTW following his death:

"I am the owner of the stock of [WTW]. My wife, Kathy, and her son, [Mitchell], are currently employed there. I bequeath 51 percent of my stock in [WTW] to my wife, Kathy, 24.5 percent of my stock in WTW to my daughter [Loveless], and 24.5 percent of my stock in WTW to Jeff Mitchell. This conveyance of stock to these three individuals is subject to the following restrictions and directives:
"(1) I direct that the maximum salary which may be paid to Kathy by WTW in any year shall not exceed $75,000.
"(2) I direct that the salary paid to her son, [Mitchell], in any year shall not exceed the sum of $60,000.
"(3) I further direct that neither my wife, Kathy, nor her son, [Mitchell], be paid any bonus above their salary which would diminish the net income available for distribution to my wife, Kathy, and my daughter, [Loveless].
"(4) I direct that my daughter, [Loveless], be paid no less than $1,000 salary per month by WTW.[ ]
"(5) Each year, after all salaries and expenses have been paid, should the parties not have a specific need for expansion of the business, I direct that the net income after payment of all expenses and taxes shall be paid to the stockholders according to their respective interests in the company.
"Payment of this dividend, if any, should be done within 45 days after completion of all calculations sufficient to allow the net income of the business to be determined.
"(6) I direct that should either Kathy or [Loveless] desire to sell all or any portion of their stock interest in WTW the same shall first be offered to the other owner before being sold to an outside third party. Any such sale of the stock by either Kathy or [Loveless] should result in the stock being sold for its fair market value."

In accordance with Item Seven of the will, WTW commenced making $1,000 monthly payments to Loveless shortly after Williams's death.

On August 20, 2015, Kathy, the residuary legatee named in Williams's will, petitioned the Probate Court of Randolph County to admit Williams's will to probate and to appoint her administratrix of the estate. Loveless objected to the appointment of Kathy as administratrix, however, arguing that Kathy had shown poor judgment since Williams's death and that she was incapable of handling the affairs of the estate in a fair and equitable manner. On September 14, 2015, the probate court nevertheless granted Kathy's petition and appointed her administratrix of Williams's estate.

On October 22, 2015, Loveless petitioned the probate court to remove the administration of the estate to the Randolph Circuit Court, arguing that "this is a complicated matter involving substantial assets that will be more efficiently resolved in circuit court." That same day, the probate court granted Loveless's petition, entering an order declaring that the administration of the estate was transferred to the circuit court and directing that the court file and all documents previously filed in the probate court be transmitted to the circuit court. It appears that the circuit court thereafter took over administration of the estate because the next filing in the record is a November 5, 2015, notice of appearance filed by Loveless's attorney in the circuit court.

In the meanwhile, a dispute arose regarding whether Williams in fact owned 100% of the stock in WTW at the time of his death or whether his first wife Boyd held a 50% interest in the company; this dispute ultimately resulted in WTW ceasing to make the monthly payments of $1,000 to Loveless directed in Williams's will. Loveless thereafter moved the circuit court to compel the resumption of those payments, and the circuit court ultimately granted her motion, entering a judgment against the estate, Kathy, and WTW, directing them to make up the missed back payments and to thereafter pay Loveless $1,000 by the first of each month. The estate now appeals that judgment, arguing both that the circuit court erred by ordering it and Kathy to make the monthly payments to Loveless Williams directed WTW to make and that Williams had no authority to direct WTW to make any monthly payments following his death because he was not, the estate alleges, the majority shareholder of WTW at the time of his death. For the reasons that follow, we dismiss the appeal.

In DuBose v. Weaver, 68 So.3d 814 (Ala. 2011), this Court considered an appeal involving the administration of an estate by the Washington Circuit Court in which the appellant challenged the subject-matter jurisdiction of that court because, he argued, the court had never formally removed the matter from the Washington Probate Court; rather, the Washington Probate Court had purported to transfer the case to the Washington Circuit Court. In holding that subject-matter jurisdiction was lacking, this Court explained:

"[E]ven were we to conclude that the administration of the estate was pending in the probate court when the Washington Circuit Court purported to assume jurisdiction over it, it does not appear that [the heirs that sought to remove the administration of the estate to the circuit court] filed their transfer/removal petition in the circuit court, and at no time did the circuit court enter an order purporting to remove the administration of the estate from the probate court. The estate administration arrived in the Washington Circuit Court based upon an order from the probate court purporting to transfer proceedings to the circuit court. As noted above, however, see notes 3 and 4, the filing of a petition for removal in the circuit court and the entry of an order of removal by that court are prerequisites to that court's acquisition of jurisdiction over the administration of an estate pursuant to § 12-11-41[, Ala. Code 1975 ]. See Ex parte Terry, [957 So.2d 455, 457-58 (Ala. 2006) ] ; Nelson v. Nelson, 10 So.3d 603, 604 (Ala. Civ. App. 2008) ; see also Ex parte Boykin, 611 So.2d 322, 326 (Ala. 1992) (' " 'Unless expressly authorized so to do, a court has no authority to transfer a cause from itself to another court, and thereby give the other court possession of the case to hear and determine it, although the other court would have had jurisdiction of the cause if it had come to it by due process.' 21 C.J.S., Courts, § 502, p. 769 ...." ' (quoting Allen v. Zickos, 37 Ala. App. 361, 364, 68 So.2d 841, 843 (1953) ) )."

68 So.3d at 822.

The procedural history in the instant case is essentially the same -- a party petitioned the probate court to transfer the administration of an estate to the circuit court; the probate court granted that petition and took action purporting to transfer administration of the estate to the circuit court; and the circuit court thereafter took over administration of the estate without entering an order of its own authorizing the removal. For the reasons explained in DuBose, such a transfer is improper, and the circuit court never properly acquired subject-matter jurisdiction over the administration of Williams's estate. See also McElroy v. McElroy, 254 So. 3d 872, 877 (Ala. 2017) ("[T]he administration of [the decedent's] estate was not properly removed from the probate court; therefore, the circuit court never obtained jurisdiction over the administration of [the] estate."). Accordingly, all actions the circuit court purported to take in this case -- including the judgment the estate has appealed concerning the validity of the directive in Williams's will requiring WTW to pay Loveless a $1,000 monthly salary -- are void due to the lack of subject-matter jurisdiction, and the appeal must therefore be dismissed.

APPEAL DISMISSED.

Bolin, Shaw, Wise, and Sellers, JJ., concur.

      Although the will characterizes the $1,000 monthly payment to be made to Loveless as "salary," there is no evidence indicating that she had been an employee of WTW, and she is not required to provide any services in return for the payment.

      In his will, Williams had appointed a friend to be executor of his estate; however, that friend renounced his appointment following Williams's death. See § 43-2-27, Ala. Code 1975 ("If no person is named in the will as executor, or if named executors, one or more, all renounce ..., the residuary legatee ... is entitled to letters of administration, with the will annexed ....").

      Kathy and Boyd eventually reached a settlement whereby Boyd agreed to transfer any interest she had in WTW to Kathy and to release any related claims in exchange for a cash settlement, the amount of which remained confidential.

      The estate remains open, and the jurisdictional basis for this appeal is unclear; it does not appear that a final judgment has been entered, and no statute or rule that would otherwise establish jurisdiction has been cited. See Hamilton v. Connally, 959 So.2d 640, 642 (Ala. 2006) (" 'An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.' Palughi v. Dow, 659 So.2d 112, 113 (Ala. 1995). For a judgment to be final, it must put an end to the proceedings and leave nothing for further adjudication. Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala. 2001)."). However, it is ultimately unnecessary to resolve this jurisdictional issue inasmuch as there is another jurisdictional defect that requires the dismissal of this appeal.

      The estate also argues that the circuit court erred by entering a judgment against Kathy and WTW because they were never served and they were not, the estate argues, parties to the case. However, neither Kathy nor WTW has filed a notice of appeal.