text:
    Tammy H. RATLIFF A/K/A Tammy Hubbard, Appellant v. Dennis L. RATLIFF, Appellee
    NO. 2017-CA-00771-COA
    Court of Appeals of Mississippi.
    December 11, 2018
    ATTORNEY FOR APPELLANT: ALEXANDER J. SIMPSON III, Tupelo
    ATTORNEYS FOR APPELLEE: A. E. (RUSTY) HARLOW JR., KATHI CRESTMAN WILSON, Grenada
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. On December 1, 2009, the Yalobusha County Chancery Court granted Tammy Hubbard and Dennis Ratliff a divorce. In March 2016, Hubbard filed a contempt action against Ratliff. Ratliff counterclaimed for contempt; emancipation of the couple's minor child, SDR; and termination of child support. After conducting a trial in May 2016, the chancery court entered a judgment on June 13, 2017, finding that neither party should be held in contempt, that SDR was emancipated as of August 1, 2016, and that Hubbard must repay the child-support sums Ratliff paid after SDR's emancipation.

¶ 2. Although the chancery court set SDR's emancipation date at August 1, 2016, there is insufficient record evidence to support her emancipation on this date. Based on Hubbard's testimony, the chancery court understood that SDR took some summer classes after graduating high school. The start and end dates of these classes do not appear in the record. Whether SDR was enrolled as a full-time or part-time student is not apparent. What is clear from the record is that SDR joined the military in November 2016.

¶ 3. Emancipation, by statute, terminates the duty of support and occurs when the child "[j]oins the military and serves on a full-time basis ...." Miss. Code Ann. § 93-11-65(8)(a)(iii) (Rev. 2013). Therefore, Ratliff's child-support obligation terminated upon the minor child's emancipation in November 2016. Because the chancery court erroneously set SDR's emancipation date at August 1, 2016, we reverse the chancery court's judgment on that issue and render November 2016 as the effective emancipation date. In setting the emancipation date as November 2016, we must also modify those portions of the chancery court's judgment awarding repayment of the sums Ratliff paid. We affirm the chancery court's judgment in all other respects.

FACTS

¶ 4. In December 2009, the chancery court granted Hubbard and Ratliff a divorce on the ground of irreconcilable differences. Pursuant to the property-settlement and child-custody agreement, Hubbard was awarded sole legal and physical custody of SDR. The chancery court awarded visitation to Ratliff and ordered him to pay child support, maintain a life-insurance policy with SDR as the beneficiary, provide health insurance for SDR, and pay one-half of SDR's medical expenses not covered by insurance.

¶ 5. In March 2016, Hubbard filed a petition for contempt alleging that: Ratliff owed past-due child support; Ratliff failed to provide proof of a life-insurance policy with SDR as the beneficiary; Ratliff took SDR to unapproved places; and Ratliff refused to pay one-half of certain medical and educational expenses. SDR was eighteen and a senior in high school at the time Hubbard filed her contempt petition. Ratliff answered and filed a counter-petition alleging, among other things, that: Hubbard should be held in contempt of court for failing to comply with the visitation schedule, the court should declare SDR emancipated based upon her age and her discontinuation of school, and child support should be terminated. SDR graduated from high school in the spring of 2016. She then took some summer courses at her local community college. In November 2016, SDR was sworn into the United States Air Force.

STANDARD OF REVIEW

¶ 6. The standard of review in a domestic-relations matter is whether the chancery court's ruling was manifestly wrong or clearly erroneous, or if the chancery court applied the wrong legal standard. McKnight v. McKnight , 951 So.2d 594, 595-96 (¶ 5) (Miss. Ct. App. 2007). "The factual findings of the [chancery court] are reviewed to determine if the award is supported by substantial evidence or whether the decision reflects manifest error." Jackson v. Jackson , 114 So.3d 768, 773 (¶ 11) (Miss. Ct. App. 2013). We review questions of law de novo. Turnage v. Brooks , 213 So.3d 103, 105 (¶ 2) (Miss. Ct. App. 2016).

ANALYSIS

¶ 7. On appeal from the chancery court's judgment, Hubbard contends the chancery court erred (1) by declaring SDR emancipated without making findings of fact based on evidence in the record; and (2) by ordering a retroactive downward modification of child support and ordering her to repay child support paid after the effective date of SDR's retroactive emancipation.

I. Emancipation occurred in November 2016 upon SDR joining the Air Force.

¶ 8. This Court has defined emancipation of a child as freeing the child "from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent's legal obligation to support it." Setser v. Piazza , 644 So.2d 1211, 1217 (Miss. 1994) (quoting Caldwell v. Caldwell , 579 So.2d 543, 549 (Miss. 1991) ). A parent is not responsible for a child's support once the child is emancipated, either by reaching the age of majority or otherwise. Crow v. Crow , 622 So.2d 1226, 1230 (Miss. 1993). Mississippi Code Annotated section 93-11-65(8)(a) (Rev. 2013) provides that:

The duty of support of a child terminates upon the emancipation of the child. Unless otherwise provided for in the underlying child[-]support judgment, emancipation shall occur when the child:
(I) Attains the age of twenty-one (21) years, or
(ii) Marries, or
(iii) Joins the military and serves on a full-time basis, or
(iv) Is convicted of a felony and is sentenced to incarceration of two (2) or more years for committing such felony ....

This section of the statute uses the words, "emancipation shall occur when ...," and requires no use of discretion in the chancery court's judgment. Id .

¶ 9. Alternatively, Mississippi Code Annotated section 93-11-65(8)(b) (Rev. 2013) permissibly provides, in part, that: "[u]nless otherwise provided for in the underlying child-support judgment, the court may determine that emancipation has occurred and no other support obligation exists when the child: (i) [d]iscontinues full-time enrollment in school having attained the age of eighteen (18) years ...." (Emphasis added). The happening of this event does not automatically mandate emancipation. Burt v. Burt , 841 So.2d 108, 112 (¶ 10) (Miss. 2001). The language of this portion of the statute is permissive, and the determination of emancipation is left to the chancery court's discretion. Id. Thus, we examine the chancery court's permissive grant of emancipation looking for either substantial evidentiary support or manifest error.

¶ 10. In finding SDR emancipated, the chancery court stated at the hearing: "[p]robably the child was emancipated as of May, but ... I know the summer[-]school classes would have been over by July because school starts in August, so as of August 2016, the child is emancipated." The chancery court based this finding on Hubbard's testimony that after graduating high school, SDR started taking some summer classes. However, the chancery court went further than the evidence by assuming the summer classes ended in August. Without solid testimony from Hubbard regarding when the classes ended, and without a school transcript or other school records to show the start and end dates of SDR's full-time enrollment, the evidence was insufficient to make this finding.

¶ 11. In the present case, the testimony is clear that SDR left her mother's home sometime before November 2016 and was sworn into the Air Force by November 2016. At the hearing, Hubbard testified that SDR was, at that time, eighteen years old, lived in Port Hueneme, California, and was in the Air Force. Ratliff also testified that SDR was in the military. Consequently, Ratliff asked the chancellor to terminate his child-support and health insurance obligations retroactively to the date his daughter joined the military. Since there is no evidence of when SDR completed her classes, the date of emancipation must be when she joined the military in November 2016.

II. It was not error for the chancery court to award Ratliff credit for support payments made after SDR's emancipation.

¶ 12. Substantial evidence supports the chancery court's factual findings regarding the payments made by Ratliff in support of SDR. The record shows child-support payments consistently being subtracted from Ratliff's pay, and testimony supports the amounts of medical-insurance and dental-insurance payments also withdrawn twice a month. Further, the chancery court found Hubbard knew SDR was emancipated and yet allowed Ratliff's payments to continue.

¶ 13. The supreme court has permitted a credit for child-support payments made after a child's emancipation. See Dep't of Human Servs. v. Fillingane , 761 So.2d 869, 872 (¶ 13) (Miss. 2000) ; Sumrall v. Munguia , 757 So.2d 279, 284 (¶ 28) (Miss. 2000). In Fillingane , the chancery court reduced a father's arrearages to reflect the emancipation of his children. Fillingane , 761 So.2d at 870 (¶ 6). In Sumrall , the father argued that the chancery court erred when it failed to reduce retroactively his child-support payments to the date his son entered college. Sumrall , 757 So.2d at 284 (¶ 26). The Sumrall court agreed with the father's contention that the chancery court should have retroactively reduced his child-support payments to the date his son entered college and ordered a retroactive modification. Id. at 284 (¶ 28). Furthermore, the Sumrall court stated that non-custodial parents should be allowed to prove that they should receive credit for child-support payments made from "the point in time where the changes occurred. ..." Id. at 284 (¶ 27). "It would be unwise to unduly restrict a chancellor's ability to make an equitable ruling" when "child[-]support payments were made on behalf of a child subsequent to that child's emancipation." Fillingane , 761 So.2d at 872 (¶ 13).

¶ 14. Given the precedent that allows a chancery court the discretion to grant a parent credit for child support paid after a child's emancipation, we find the chancery court did not abuse its discretion in crediting Ratliff for the payments made after his obligation terminated. To hold otherwise would "unduly restrict a chancellor's ability to make an equitable ruling." Andres v. Andres , 22 So.3d 314, 319 (¶ 17) (Miss. Ct. App. 2009) (quoting Fillingane , 761 So.2d at 872 (¶ 13) ).

III. Our reversal on the effective date of emancipation requires modification of the chancery court's award of credit to Ratliff for support payments made subsequent to SDR's emancipation.

¶ 15. Following the supreme court's holding in Fillingane , the chancery court should have the discretion to "grant an obligor parent a credit for child-support payments which were made on behalf of a child subsequent to that child's emancipation." Fillingane , 761 So.2d at 872 (¶ 13) ; see also Caldwell v. Caldwell , 823 So.2d 1216, 1221 (¶ 19) (Miss. Ct. App. 2002). Although the chancery court specifically awarded Ratliff a judgment for nine months of reimbursement, that amount is hereby modified to six months of payments totaling $3,204. Sufficient support for these amounts are shown in Ratliff's employer payment summary for the child-support payments, and through Ratliff's sworn testimony for the medical and dental insurance paid monthly. We affirm the remainder of the chancery court's order.

¶ 16. AFFIRMED IN PART; REVERSED AND RENDERED IN PART AS MODIFIED.

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

      We use initials here to protect the minor's privacy.

      The reimbursable payments were made from November 2016 through April 2017, and that total of $3,204 equals $1,800 in child support, $1,236 for medical insurance, and $168 for dental insurance.


source: Caselaw Access Project

author: GREENLEE, J., FOR THE COURT:

license: Public Domain

text:
    Patrick REVETTE and Scott Revette, Appellants/Cross-Appellees v. Robert FERGUSON and Lillian R. Ferguson, Appellees/Cross-Appellees
    NO. 2017-CA-00075-COA
    Court of Appeals of Mississippi.
    December 11, 2018
    ATTORNEYS FOR APPELLANTS: LEE TURNER, ROBERT KASEY WELLS, WAYNESBORO
    ATTORNEYS FOR APPELLEES: TERRY L. CAVES, RISHER GRANTHAM CAVES, LAUREL
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. In March 2015, Patrick and Scott Revette filed a complaint against Robert and Lillian Ferguson in the Wayne County Chancery Court. In their complaint, the Revettes sought to confirm title to a 1.14-acre parcel of real property. The Fergusons responded with an answer and a counterclaim, alleging that they had acquired title to the property by adverse possession. During trial on February 24, 2016, the Revettes and Fergusons stipulated to Exhibit 7, which included a surveyed legal description of the Fergusons' record title property and showed the disputed 1.14 acres shaded in orange. The chancellor ultimately found that the Fergusons adversely possessed the disputed property. Prior to entering his final judgment, the chancellor ordered the Fergusons to obtain a survey of the disputed property. The Fergusons did so, and the chancellor attached the survey to his final judgment, marking it "Exhibit A." The Revettes appeal, arguing the chancellor erred in his adverse-possession finding and in using the Fergusons' survey. We affirm in part and reverse and remand in part.

BACKGROUND

¶ 2. This suit concerns ownership of a roughly 1.14-acre parcel of land in rural Wayne County. It is located along the top base of an old river channel of the Chickasawhay River, bounded on the northwest by thirty acres owned by the Fergusons and on the southeast by fifty acres owned by the Revettes. A natural bluff, twelve to fifteen feet high, separates the 1.14-acre parcel from the remainder of the Revettes' property.

¶ 3. The Fergusons purchased their property in 1987-and although their record title did not encompass the disputed parcel, the Fergusons believed they owned it. In fact, the disputed parcel belonged to the Revettes' predecessors in interest, Hallie Jo and Wanda Hutto. In 1998, the Huttos sold their land, including the disputed parcel, to Jennifer Rabourn Stanley. In 2006, the Revettes bought their fifty acres from Stanley.

¶ 4. After the Fergusons acquired their property in 1987, they, their family members, and guests began using the disputed parcel for hunting, fishing, camping, and riding horses. In 1989, they began pasturing cattle on it. As the disputed land can be considered a wetland or swamp, activity on the land was dependent on the water level and the time of year. In the fall and winter, when the water level was typically up, the Fergusons used the disputed parcel for hunting and fishing. During the spring and summer, when the land was drier, the Fergusons let their cattle graze to the bluff, which served to contain them. From 1987 to 1993, the Fergusons leased the disputed property to a hunting club. The club's members fished and hunted deer, duck, and rabbit on the disputed parcel. They also put up "no trespassing" signs and hunting stands.

¶ 5. In 2012, the Revettes bulldozed and destroyed part of the bluff that served as the natural barrier between the Ferguson and Revette properties. When one of the Fergusons' bulls escaped, the Fergusons put up a fence to contain their cattle. The Revettes tore the fence down, three more cows got out, and the Fergusons repaired the fence. The Revettes tore the fence down a second time, and the Fergusons repaired it again.

¶ 6. On March 17, 2015, the Revettes filed suit against the Fergusons in the Wayne County Chancery Court, seeking confirmation of title and boundary lines, alleging trespass, and seeking a declaratory judgment. On April 9, 2015, the Fergusons filed their answer and counterclaim against the Revettes for confirmation of title and confirmation of boundary lines, adverse possession, declaratory judgment, trespass, and preliminary injunction.

¶ 7. On February 24, 2016, a trial was held on the merits. During trial, the Fergusons introduced a surveyed legal description encompassing (1) the Fergusons' record title property and (2) the 1.14-acre parcel in dispute, colored in orange. The parties stipulated that the surveyed legal description be entered into evidence as Exhibit 7, and that the disputed 1.14 acres was colored in orange. On June 15, 2016, the chancellor entered his findings of fact and conclusions of law, granting the Fergusons' claim for adverse possession of the 1.14-acre parcel and denying all other claims for relief. The chancellor directed the Fergusons to procure a survey of the disputed property so a legal description could be included in the final judgment. The Fergusons subsequently engaged Saul Surveying and Mapping LLC (Saul) to prepare a plat of the legal description. Concerned that the Fergusons' survey was inconsistent with the chancellor's findings, the Revettes engaged Walker Mapping and Planning (Walker) to survey their property. On November 30, 2016, the Fergusons filed a motion for the entry of a final judgment, which included the Saul survey. On December 13, the Revettes filed their response and the Walker survey, arguing the Saul survey included an additional .08 acres of the river channel and was not in accordance with the chancellor's findings of fact and conclusions of law.

¶ 8. On December 14, 2016, the chancellor entered his final judgment. The Revettes have timely appealed, arguing the chancellor erred in: (1) finding that the Fergusons adversely possessed the disputed property; (2) utilizing and considering the Fergusons' survey without its admission into evidence; (3) alternatively failing to address the discrepancies between the competing surveys; and (4) using the portion of the Fergusons' survey that showed the Fergusons adversely possessed .08 acres of the Chickasawhay River. We affirm the chancellor's finding that the Fergusons adversely possessed the disputed parcel but reverse and remand so that the Revettes may have an opportunity to challenge the Fergusons' survey and may cross-examine the surveyor. Concerning the Fergusons' cross-appeal from the chancellor's judgment denying them recovery on trespass, compensatory and punitive damages, and attorney's fees, we affirm the chancery court.

STANDARD OF REVIEW

¶ 9. This Court employs a limited standard of review when examining and considering the decisions of a chancellor. Cook v. Robinson , 924 So.2d 592, 594 (¶ 9) (Miss. Ct. App. 2006). "When reviewing a chancellor's decision, we will accept a chancellor's findings of fact as long as the evidence in the record reasonably supports those findings." Id. In other words, we will not disturb a chancellor's findings unless they are clearly erroneous or an erroneous legal standard was applied. Id. "The chancellor, as the trier of fact, evaluates the sufficiency of the proof based on the credibility of the witnesses and the weight of their testimony." Id. We review questions of law de novo. Id.

ANALYSIS

I. Adverse Possession

¶ 10. On appeal, the Revettes argue that the chancellor erred in his application of the facts to the law by finding that the Fergusons satisfied their burden of proving adverse possession by clear and convincing evidence.

¶ 11. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) sets forth the following:

Ten (10) years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title[.]

To establish title by adverse possession, the Fergusons had to prove by clear and convincing evidence that their possession of the 1.14-acre parcel was "(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful." Roberts v. Young's Creek Inv. Inc. , 118 So.3d 665, 669 (¶ 7) (Miss. Ct. App. 2013). The chancellor found the Fergusons met their burden of proof as to each element. We review the chancellor's findings below.

1. Under Claim of Ownership

¶ 12. In determining whether the Fergusons staked a proper claim of ownership, the chancellor's inquiry was whether the Fergusons' possessory acts were sufficient to "fly [their] flag" and put the record title holder on notice that the land was being held under an adverse claim of ownership. Hill v. Johnson , 27 So.3d 426, 431 (¶ 19) (Miss. Ct. App. 2009). "The claim of ownership must have existed at the beginning of the statutory period of possession and not possession with the intent to claim as soon as the statutory period passed." Warehousing Mgmt. LLC v. Haywood Props. LP , 978 So.2d 684, 688 (¶ 22) (Miss. Ct. App. 2008).

¶ 13. On appeal, the Revettes point out that the chancellor determined "[t]here was no evidence that the Fergusons ever put the Revettes on notice of their claim of title by adverse possession[.]" See Trotter v. Gaddis , 452 So.2d 453, 457 (Miss. 1984) ("[P]ossession must be sufficient to put another on notice, actual or imputable, of an adverse claim to his property. Without such notice, possession will never ripen into title."). After reviewing the record, we find this issue is moot because the Fergusons' actions provided sufficient notice to the Revettes' predecessors in interest. Robert testified that when he bought his property in 1987, he believed that his purchase included the disputed parcel. From that point on, the Fergusons treated the disputed parcel as their own. Robert and Lillian's daughter, Robbie, testified that since 1987, she and her family ran cattle, rode horses, hunted, fished, camped, and planted grass on the disputed property. From 1988 to 1993, the Fergusons leased the disputed parcel to a hunting club, which put up leaning and climbing deer stands and "no trespassing" signs that were visible from 300 to 400 feet. The Fergusons also gave Jennifer's son, David Stanley, permission to hunt on the disputed parcel. We hold that these activities provided sufficient notice to the Huttos and Stanley, the prior owners of the Revettes' property.

¶ 14. The Revettes also argue that the chancellor erred by not considering the Fergusons' failure to pay taxes on the disputed parcel. But "payment of taxes is simply one incident to possession and whether an adverse possessor has paid property taxes on the land in controversy is not dispositive of the claim of ownership." Nosser v. B.P. Buford , 852 So.2d 57, 61 (¶ 17) (Miss. Ct. App. 2002).

¶ 15. The Revettes additionally argue that the Fergusons' lack of record title to the disputed parcel undermines their claim of ownership. We find this argument is without merit. "[I]t does not matter whether land claimed under adverse possession [is] within or without the 'call of the title deeds.' " Pieper v. Pontiff , 513 So.2d 591, 594 (Miss. 1987).

¶ 16. We find there was sufficient evidence to support the chancellor's finding that the Revettes satisfied this element by clear and convincing evidence.

2. Actual or Hostile

¶ 17. "The actual or hostile occupation of land necessary to constitute adverse possession requires a corporeal occupation, accompanied by a manifest intention to hold and continue to hold the property against the claim of all other persons, and adverse to the rights of the true owner." Hill v. Johnson , 27 So.3d 426, 431 (¶ 23) (Miss. Ct. App. 2009). "Possession is defined as effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses." Roberts , 118 So.3d at 670 (¶ 10). "Possession is hostile and adverse when the adverse possessor intends to claim title notwithstanding that the claim is made under a mistaken belief that the land is within the calls of the possessor's deed." Id. (quoting Wicker v. Harvey , 937 So.2d 983, 993-94 (¶ 34) (Miss. Ct. App. 2006) ). "The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession." Roberts , 118 So.3d at 670 (¶ 10) (citing Apperson v. White , 950 So.2d 1113, 1118 (¶ 12) (Miss. App. 2007) ). But "once adverse possession has begun, the record title owner cannot stop the running of the period merely by granting permission." Taylor v. Bell , 87 So.3d 1134, 1138 (¶ 14) (Miss. Ct. App. 2012).

¶ 18. The Revettes argue the Fergusons' claim fails under this element because Robert asked Patrick for permission before installing a boundary-line fence to contain his cattle in the summer of 2012. Robert denied requesting permission, but even assuming he did ask to install the fence, this issue is of no consequence. The Fergusons began their adverse possession of the disputed parcel in 1987 without permission from the then-title owners, the Huttos. Thus, the conversation regarding the fence-presumably in 2011 or 2012-was more than ten years after the period for the adverse-possession claim began to run. Further, this Court has held that once title has been acquired by adverse possession, "it is not relinquished merely by the new owners indicating a belief in the former owner's title." Id. As previously discussed, the Fergusons hunted, fished, ran cattle, and planted on the disputed parcel. They also leased the property to a hunting club from 1988 to 1993. "A claimant giving permission to allow another to use the land is a factor weighing in favor of adverse possession." Webb v. Drewrey , 4 So.3d 1078, 1083 (¶ 18) (Miss. Ct. App. 2009). We hold that the Fergusons' possessory acts of hunting, fishing, running cattle, leasing the property, and planting on it were sufficiently hostile.

3. Open, Notorious, and Visible

¶ 19. "In addition to the requirements that possession be under a claim of ownership and hostile, possession must also be open, notorious, and visible." Roberts , 118 So.3d at 670 (¶ 13). The possessor "must unfurl his flag on the land, and keep it flying, so that the actual owner may see, and if he will, that an enemy has invaded his domains, and planted the standard of conquest." Id. (quoting Wicker , 937 So.2d at 994 (¶ 35) ). "[A]dverse possession of 'wild' or unimproved lands may be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands." Apperson , 950 So.2d at 1117 (¶ 8). As such, "the chancellor must look to the quality and not the quantity of the acts indicative of possession." Id.

¶ 20. The Revettes contend that the chancellor improperly classified the disputed property as "wild lands"; thus, they argue that the chancellor erroneously applied a lower burden of proof in determining the Fergusons adversely possessed the land. In particular, the Revettes argue the disputed property is not wild because of the close proximity of their camp house and adjacent erosion improvements. The chancellor visited the land and after observing its characteristics and topography, determined that it was wild. The chancellor noted that he inspected where the bluff had been cut, but was unable to inspect the remainder of the disputed property because it was too wet. The chancellor also found that the only improvements to the land included a small section of fencing halfway up the bluff and fencing on the Revettes' property. In reviewing the record, we find substantial evidence supports the chancellor's classification of the land as wild.

¶ 21. The Revettes also assert, for a second time, that they were not provided notice of the Fergusons' adverse-possession claim. Because we found earlier that sufficient notice was provided to the Revettes' predecessors in interest, we decline further discussion of this argument.

¶ 22. Next, the Revettes argue that the chancellor erred in not addressing the Fergusons' failure to mark their boundary lines with paint or flagging. The Revettes assert that under Woodall v. Ross , 317 So.2d 892, 895 (Miss. 1975), the actions a defendant fails to commit are "equally significant [to the actions a defendant commits] under the 'open, notorious and visible' element." We do not find that a fair reading of Woodall reflects this assertion. The court in Woodall found it "significant to note" that although the would-be adverse possessor surveyed his own land, he did not survey and mark the land he was claiming by adverse possession. Id. The Woodall court made this note after holding that the appellant's "few meager acts of ownership ... did not ripen into a legal title." Id. Woodall does not merit reversal of the chancellor's finding as to this factor.

¶ 23. The chancellor found that the testimony presented in this case proved by clear and convincing evidence that the Fergusons had unfurled their flag on the Revettes' land and kept it flying such that the Revettes would have actual or constructive knowledge of the Fergusons' presence. Since 1987, the Fergusons and their relatives have hunted and fished on the disputed land. They testified that they grazed as many as 300 cattle on the land. They also erected fences on the land, rode horses on it, and planted corn, milo, and rye on it. Further, the hunting club that leased the land from 1988 to 1993 put up "no trespassing" signs that were visible from 300 to 400 feet. We agree with the chancellor that these actions were open, notorious, and visible.

4. Continuous and Uninterrupted for a Period of Ten Years

¶ 24. Based on the record, the Revettes did not assert their claim of ownership until filing suit in 2015. So the Fergusons' possession of the disputed property was continuous and without interruption from 1987 until 2015, well in excess of the ten-year period required by the statute. We accordingly find there is substantial evidence to support the chancellor's finding that the Fergusons possessed the property continuously and uninterruptedly for ten years.

5. Exclusive

¶ 25. "Exclusive possession means that the possessor 'evinces an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant's conduct must afford an unequivocal indication that he is exercising the dominion of a sole owner.' " Roberts , 118 So.3d at 671 (¶ 15) (quoting Wicker , 937 So.2d at 995 (¶ 40) ). "It does not mean that no one else can use the property." Id. "Exclusivity, within the meaning of the statute, means that the adverse possessor's use of the property was consistent with an exclusive claim to the right to use the property." Id. (quoting Apperson , 950 So.2d at 1119 (¶ 15) ).

¶ 26. The Fergusons presented ample testimony regarding the actions that they, their invitees, and their lessees took on the disputed property. We agree with the chancellor's findings under this element.

6. Peaceful

¶ 27. "Simple disputes often arise between neighboring landowners, but do not rise to the level of destroying the peaceful existence between them." Apperson , 950 So.2d at 1119 (¶ 16). No evidence was presented establishing a non-peaceful existence between the Fergusons and the Revettes or their predecessors in interest. We agree with the chancellor's finding that the Fergusons satisfied this element.

¶ 28. The evidence presented before the chancery court clearly established each element of adverse possession by the Fergusons. The chancellor's findings of fact are supported by the record, and his conclusions of law are sound.

II. Use of the Fergusons' Survey

¶ 29. The Revettes argue that the chancellor should not have considered the Saul survey, "Exhibit A," in his final judgment because they did not have the opportunity to challenge that survey at a hearing or cross-examine the surveyor and it was not admitted as evidence. Although the Fergusons argue that the Revettes waived this issue, we find the Revettes preserved their objection by responding to the Saul survey and attaching their own competing survey, the Walker survey. We hold that it was error for the chancellor to consider a survey without proof being taken and upon the Revettes' objection; therefore, we reverse and remand this issue to the chancery court.

¶ 30. In order to have a survey properly admitted into evidence, the surveyor needs to be called to explain and be subject to cross-examination. White v. Usry , 800 So.2d 125, 131 (¶ 26) (Miss. Ct. App. 2001). In Abercrombie v. Carter , 73 So.3d 561, 562-63 (¶¶ 8-11) (Miss. Ct. App. 2011), we held it was error for a chancellor to consider a survey that was properly excluded at a hearing as hearsay under Mississippi Rule of Evidence 802, noting that the parties were not allowed to challenge the survey at the hearing or cross-examine the surveyor. We find the chancellor committed error in this case for similar reasons. The Revettes did not have the opportunity to cross-examine the Fergusons' surveyor, and the survey was not admitted into evidence for the chancellor's consideration. Further, a comparison of "Exhibit A" with Exhibit 7, which the parties stipulated to, reveals inconsistencies. Notably, the thalweg of the Chickasawhay River and the approximate water line differ in both exhibits; as do the call lines of the land adversely possessed. We therefore reverse and remand this matter to the chancellor so that the Revettes may challenge the survey in "Exhibit A," may cross-examine the surveyor, and may offer their Walker survey for use by the court.

III. Cross-Appeal

¶ 31. On cross-appeal, the Fergusons argue the chancellor committed manifest error and abused his discretion by dismissing their claims for trespass, compensatory damages, punitive damages, and attorney's fees. The Fergusons ask this Court to reverse and remand the chancellor's decisions as to these issues. Alternatively, the Fergusons ask that the chancellor's decisions concerning trespass and nominal damages be reversed and remanded.

¶ 32. In his conclusions of law, the chancellor found that because the Fergusons' adverse possession claim extended only to the land at the base of the bluff, the Revettes, as record titleholders, had the right to remove dirt from the top and sides of the bluff. The chancellor also found that following the cut the Revettes made to the bluff, the Fergusons erected a fence halfway up the side of the bluff, on the Revettes' property. The record supports these findings. Thus, we uphold the chancellor's dismissal of the Fergusons' trespass claim because the actions the Fergusons complain of did not occur on the land they adversely possessed. See Reeves v. Meridian S. Ry. LLC , 61 So.3d 964, 968 (¶ 19) (Miss. Ct. App. 2011) ("A trespass to land is committed when a person intentionally invades the land of another without a license or other right." (Emphasis added) ). Absent proving trespass, the Fergusons were not entitled to damages or attorney's fees; therefore, we find the chancellor was correct in refusing to award them.

CONCLUSION

¶ 33. The chancellor found that the Fergusons established their adverse-possession claim by clear and convincing evidence. Reviewing the record, we find that the chancellor had sufficient evidence to correctly apply the facts to the law and reach his conclusion, and he did not abuse his discretion. Accordingly, we affirm the chancellor's holding that the Fergusons acquired the disputed land designated in Exhibit 7 by stipulation. But after trial, the chancellor used a survey to delineate the exact boundaries of the stipulated area of land without giving the Revettes an opportunity to challenge the survey at a hearing, after opposition and a conflicting survey was proffered by the Revettes. We reverse and remand for the court to hear the Revettes and Fergusons on the issue of the appropriate legal description and survey to be utilized by the court. We affirm the chancellor's dismissal of the Fergusons' trespass claim and his refusal to grant damages and attorney's fees for trespass.

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

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

      The Fergusons' property is described as "all that part of the North half of Section 12, Township 6 North, Range 6 West, lying North and East of the Chickasawhay River, containing thirty (30) acres, more or less." The Revettes' property is described as "all that part of the South half of Section 12, Township 6 North, Range 6 West, which lies South and East of the Chickasawhay River, containing fifty (50) acres, more or less."

      The chancellor found that the fence was not located on the disputed property because it was erected halfway up the bluff and the Fergusons only claimed to adversely possess the land up to the base of the bluff.

      The Revettes list two other issues on appeal involving the differences between their survey and the Fergusons' survey. Because we find this issue dispositive, we need not address the Revettes' remaining issues.


author: FAIR, J., FOR THE COURT:

text:
    Dennis Jerome BEAL A/K/A Dennis Beal, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CA-01445-COA
    Court of Appeals of Mississippi.
    December 11, 2018
    ATTORNEYS FOR APPELLANT: JOHN PRINCE MARTIN, C. R. MONTGOMERY, Canton.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS
    BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Dennis Beal was convicted of the sale of 0.10 gram worth of cocaine for thirty dollars and sentenced to serve sixty years as a habitual offender without eligibility for parole. The trial court also imposed a $2,000,000 fine. This Court affirmed Beal's conviction on direct appeal. Beal v. State , 134 So.3d 383, 387 (¶ 21) (Miss. Ct. App. 2014).

¶ 2. After the filing of Beal's direct appeal, however, the supreme court reversed the bribery conviction supporting Beal's habitual-offender enhancement. Beal v. State , 86 So.3d 887, 889-90 (¶¶ 1-8) (Miss. 2012) (reversing conviction for bribery arising out of the same underlying drug sale incident). The State did not retry the charge. Beal later sought leave to file a post-conviction relief (PCR) motion, and the supreme court granted the request for leave to proceed in circuit court. After a hearing, the circuit court granted Beal's PCR motion. The circuit then held a resentencing hearing and removed the habitual-offender enhancement. Nevertheless, the court resentenced Beal to serve sixty years in the custody of the MDOC, reducing the fine and making no mention of parole or other statutes allowing reduction of incarceration.

¶ 3. However, because the circuit court failed to make specific findings of fact and conclusions of law relating to each issue presented in accordance with Mississippi Code Annotated section 99-39-23(5) (Rev. 2015), we must reverse and remand for resentencing with the required discussion of the errors asserted in Beal's PCR motion.

STANDARD OF REVIEW

¶ 4. It is well settled that when reviewing judgments regarding PCR motions, "[w]e will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Mann v. State , 2 So.3d 743, 745 (¶ 5) (Miss. Ct. App. 2009). Questions of law are reviewed de novo. Id.

DISCUSSION

¶ 5. Section 99-39-23(5) provides that:

If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the conviction or sentence under attack, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented.

(Emphasis added).

¶ 6. Beal's PCR motion asserted that: (1) the reversal of one of the two prior convictions supporting his habitual-offender enhancement voids it for purposes of his "little habitual" sentencing enhancement; (2) the State cannot rely upon other purported convictions to support his habitual-offender enhancement, as failure to list such convictions in the indictment constitutes a fundamental defect; and (3) Beal is entitled to resentencing wherein he shall not be subjected to a mandatory maximum sentence as a habitual offender, will receive a proportionality review, and will be eligible for parole. During the hearing, the circuit judge stated the following:

All right. I'm familiar with the proceedings. The bottom line is [ ] that [ ] Beal was tried and convicted of sale of cocaine, as a subsequent drug offender and as a habitual offender; and the basis of your motion for relief is that one of the two convictions that the State used to charge [Beal] as a habitual offender was a bribery conviction, that was subsequent to the trial on sentencing in this case, was reversed on appeal, so the issue was back before the court ... as it related to the habitual offender portion and to resentence him as a non-habitual offender ....
I don't believe the State, although he had other felony convictions ... could come back and amend the indictment post-trial, post-appeal, to include in the charging instrument a charge that wasn't there originally ... I believe that, based upon my understanding of the law, that because the [bribery] conviction was set aside, the post-conviction matter is well taken ....

The circuit judge later signed an order prepared by Beal's counsel, but striking a portion thereof, as follows:

[T]he Court hereby GRANTS post-conviction relief, and will issue specific findings of fact and conclusions of law to follow entry of this Order. Further, this Court will hold a new sentencing hearing wherein Beal shall not be sentenced as a habitual offender ... Beal's Motion should be and hereby is, GRANTED, with this court to issue specific findings of fact and conclusions of law following entry of this Order.

The struck-through areas were initialed by the circuit judge.

¶ 7. The court held a resentencing hearing one month later. Following the hearing, both the previously signed order granting Beal's PCR motion and the resentencing order were filed. The circuit court never addressed, on the bench or in either of its orders, Beal's third issue-specifically his request to receive a proportionality review. In accordance with section 99-39-23(5), we find the court's failure to do so amounts to reversible error. Thus, we reverse and remand so that the circuit court can address Beal's request for a proportionality review.

¶ 8. REVERSED AND REMANDED.

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


text:
    Charlotte DAILEY, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee
    NO. 2017-CC-01473-COA
    Court of Appeals of Mississippi.
    December 11, 2018
    ATTORNEY FOR APPELLANT: WILLIAM LEDYARD WILLIAMSON,
    ATTORNEY FOR APPELLEE: ALBERT B. WHITE, MADISON.
    BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Charlotte Dailey appeals the decision of the Circuit Court of Yalobusha County, which affirmed the decision of the Board of Review of the Mississippi Department of Employment Security (MDES) denying her unemployment benefits. The Board of Review adopted the MDES administrative law judge's (ALJ) determination that Dailey voluntarily resigned her employment without good cause, which disqualified her eligibility to receive unemployment benefits. On appeal, Dailey asserts that: (1) the ALJ erred in declining to admit her employer's board minutes; (2) substantial evidence did not support the Board of Review's findings; and (3) the Board of Review applied the incorrect law. Finding that substantial evidence supports the Board's decision, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Dailey worked for the Grenada Tourism Commission. She was buying several items for her employer at Walmart when her employer's credit card was denied. Dailey then called her supervisor, Larry Harges, and he drove to Walmart with another employee.

¶ 3. Harges confronted Dailey about her purchases, and a verbal disagreement ensued, during which, though disputed, Dailey may have offered to resign. Harges, without the authority to accept a resignation, placed Dailey on administrative leave the next day. However, Dailey did work at a previously scheduled Grenada Tourism event several days later.

¶ 4. Shortly after the event, the Grenada Tourism Commission's board (board) met without Dailey present. They telephonically called her from the meeting, and at that meeting, they accepted her resignation. The board informed Dailey of the decision.

¶ 5. Dailey filed for unemployment benefits several days later. The Claims Examiner determined that she did not show good cause for resigning her employment and was, therefore, disqualified from benefits.

¶ 6. Dailey appealed to the ALJ, who also found that Dailey was disqualified from unemployment benefits. The Board of Review upheld the ALJ's decision. She then appealed to the circuit court, which affirmed the decision of the Board of Review.

¶ 7. In her appeal to this Court, she asserts that: (1) the ALJ erred in declining to admit the Grenada Tourism Commission's board minutes; (2) substantial evidence did not support the Board of Review's findings; and (3) the Board of Review applied the incorrect law.

STANDARD OF REVIEW

¶ 8. "An agency's conclusions must remain undisturbed unless the agency's order: (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates a statutory or constitutional right of the complaining party." Miss. Dep't of Emp't Sec. v. Good Samaritan Pers. Servs. , 996 So.2d 809, 812 (¶ 6) (Miss. Ct. App. 2008). "A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise." Sprouse v. Miss. Emp't Sec. Comm'n , 639 So.2d 901, 902 (Miss. 1994). "[T]his Court must not reweigh the facts of the case or insert its judgment for that of the agency." Alexander v. Miss. Dep't of Emp't Sec. , 998 So.2d 419, 425 (¶ 15) (Miss. 2008).

DISCUSSION

I. Did the ALJ err in declining to admit the Grenada Tourism Commission's board minutes?

¶ 9. Dailey argues that in declining to admit the Grenada Tourism Commission's board minutes, the ALJ failed to include evidence that could have significantly altered the case in her favor. Noting that a board speaks through its minutes, she asserts that the minutes would have shown that the board fired her for "disruptive behavior," and not because of the alleged resignation.

¶ 10. In the conversation during the telephonic hearing, Dailey asked that the minutes be entered into evidence, which we quote verbatim:

ALJ: ... Any additional documents that you, uh in this that would be relevant, ma'am?
DAILEY: Um ... the um ... agenda and the minute meeting for last year. Um ... (Phone Button Pushed)
ALJ: Ah ... but now ...
DAILEY: (Inaudible Crosstalk)
ALJ: I'm looking at those. (Background Noise) How are they relevant to your separation, ma'am?
DAILEY: Ongoin' personnel issues. They didn't show any personnel issues bein' discussed with me over the past year.
ALJ: Okay. And as, as far as right now as again, (Papers Shuffled) have your testimony. I'll go back and redirect on that, but those would not be relevant either.

¶ 11. The ALJ did not admit the minutes because Dailey had already testified to the ongoing personnel issues. But Dailey now asserts that the minutes show something entirely different, and she has included those purported minutes in her brief to this Court. However, they are not properly before this Court.

¶ 12. "[I]t is well established that formal rules of practice, procedure, and evidence are more relaxed in proceedings before administrative agencies than in courts of law ...." Alston v. Miss. Dep't of Emp't Sec. , 247 So.3d 303, 311 (¶ 29) (Miss. Ct. App. 2017). Still, "ideas of fundamental fairness should prevail." SkyHawke Techs. LLC v. Miss. Dep't of Emp't Sec. , 110 So.3d 327, 330 (¶ 9) (Miss. Ct. App. 2012). And "[a]s a practical matter, an ALJ must have some discretion to control the presentation of evidence." Id. The ALJ asked Dailey why the minutes should be admitted. Dailey answered, and the ALJ determined that her assertion had been competently made with other evidence; so the ALJ declined to admit the minutes. Furthermore, Dailey did not provide the minutes; therefore, they were not in the record. Accordingly, they are not before us because we cannot review what is not in the record. Goolsby Trucking Co. v. Alexander , 982 So.2d 1013, 1021 (¶ 24) (Miss. Ct. App. 2008). We find that the ALJ did not act arbitrarily or capriciously in the declination.

II. Did substantial evidence support the Board of Review's findings?

¶ 13. During the hearing in front of the ALJ, Dailey testified that she told Harges at Walmart, "If I was as unprofessional as [you], I would resign right now." Harges, however, testified that Dailey said, "You'll have my resignation as of tomorrow afternoon at 5:00." Dailey insists that neither statement constitutes a resignation. Furthermore, she asserts that because she worked after being placed on administrative leave, she could not have resigned. Therefore, Dailey claims that substantial evidence does not support the Board of Review's findings.

¶ 14. "To affirm the MDES's denial of benefits, we must find its decision was supported by substantial evidence and was not arbitrary or capricious."

Gladney v. Miss. Dep't of Emp't Sec. , 146 So.3d 1036, 1039 (¶ 9) (Miss. Ct. App. 2014). "Substantial evidence is that which is relevant and capable of supporting a reasonable conclusion, or is more than an scintilla of evidence." Id. (internal quotation marks omitted).

¶ 15. However, Dailey fails to discuss much of the evidence presented to the ALJ, including her own contradictory testimony. There may have been a dispute as to what Dailey precisely said to Harges at Walmart. But at the hearing, Dailey admitted, "[T]o be honest, Judge, I may have told him I would be giving him my resignation, but I never gave it." It is also clear that Harges did not have the authority to accept Dailey's resignation, only the board had that authority. Her working after being placed on administrative leave but before the board could accept her resignation does not indicate that she never resigned. Furthermore, the board called Dailey from their meeting. During that conversation, according to Harges, Dailey offered to resign and the board accepted her resignation. From a review of the record, Dailey has not contested Harges's testimony on that occurrence.

¶ 16. Because the Board of Review's decision was supported by substantial evidence and was neither arbitrary nor capricious, we decline to disturb it.

III. Did the Board of Review apply incorrect law?

¶ 17. Dailey asserts that "[t]here has been no evidence presented in this case to conclude the Claimant voluntarily left her position with the Employer." Therefore, she alleges the Board of Review should have applied a different standard and burden of proof.

¶ 18. As noted above, the record shows that there was sufficient evidence presented to the ALJ that indicated that Dailey resigned, despite the conflicting testimony. "Unemployment benefits are available for employees who leave work involuntarily, through no fault of their own." Daniels v. Miss. Emp't Sec. Comm'n , 904 So.2d 1195, 1197 (¶ 8) (Miss. Ct. App. 2004). "The burden of proof of good cause for leaving work shall be on the claimant ...." Miss. Code Ann. § 71-5-513(A)(1)(c) (Rev. 2011). "The Board's finding that an employee has quit work voluntarily without good cause is a question of fact that will be affirmed if supported by substantial evidence." Daniels , 904 So.2d at 1197 (¶ 8). The correct law was applied, but Dailey did not meet the proper burden of proof. And substantial evidence supported the finding.

CONCLUSION

¶ 19. We find that substantial evidence supports the denial of Dailey's claim. She has not overcome the rebuttable presumption in MDES's favor. We also find that the ALJ did not err in denying the admission of her employer's board minutes and that those minutes are not before us for review. Substantial evidence supports the Board of Review's findings, and the Board of Review applied the correct law. Therefore, we affirm.

¶ 20. AFFIRMED.

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


text:
    Marcus Rommel FOSTER a/k/a Marcus Foster, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KM-01533-COA
    Court of Appeals of Mississippi.
    December 11, 2018
    ATTORNEY FOR APPELLANT: MARCUS ROMMEL FOSTER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON
    BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Following a trial de novo, the Chickasaw County Circuit Court found Marcus Rommel Foster guilty of speeding, driving eighty-two miles per hour in a sixty-five miles-per-hour zone, and sentenced him to pay a fine of $200 plus court costs. We affirm.

PROCEDURAL BACKGROUND

¶ 2. Foster was charged with speeding on July 19, 2015. On October 14, 2015, the Chickasaw County Justice Court convicted him of speeding. Foster appealed to the Chickasaw County Circuit Court, which held a trial de novo on October 3, 2017. Following trial, the court found Foster guilty of speeding and fined him $200 plus court costs. Foster timely appealed.

FACTS

¶ 3. At approximately 2 p.m. on July 19, 2015, Mississippi Highway Safety Patrol Officer Matthew Eller observed Foster's vehicle traveling southbound on Highway 45, in Chickasaw County, Mississippi. Officer Eller's radar indicated that Foster's vehicle was traveling in excess of the sixty-five miles-per-hour speed limit at rate of eighty-two miles per hour. Officer Eller proceeded to stop Foster's vehicle and issued Foster a speeding citation. During trial, Officer Eller testified that he received appropriate training to use his radar detector and that he had properly calibrated it on the day he stopped Foster.

DISCUSSION

¶ 4. Although unclear, Foster's various arguments on appeal are seemingly premised on his claim that the State failed to prove he committed the crime of speeding. Foster also claims that the laws of this State do not apply to him.

¶ 5. Foster is incorrect in arguing that the laws of this State do not apply to him. Our Legislature is vested with the power to create and define criminal offenses within the State of Mississippi. Wilcher v. State , 227 So.3d 890, 897 (¶ 28) (Miss. 2017). And, "[t]he Legislature has to the power to define and punish any act as criminal unless limited by constitutional provisions." Id.

¶ 6. In accordance with its power, the Legislature has enacted Mississippi Code Annotated section 63-3-501 (Rev. 2013), which states, in pertinent part, that "[n]o person shall operate a vehicle on the highways of the state at a speed greater than sixty-five (65) miles per hour." Violation of section 63-3-501 constitutes a misdemeanor. Miss. Code Ann. § 63-9-11(1) (Rev. 2013). These statutes are congruent with Mississippi's long-standing rule that the operator of an automobile who drives his vehicle at a dangerous or unlawful rate of speed in disregard of the rights and safety of others should be held to strict liability, both civilly and criminally, for his wrongful conduct. Ulmer v. Pistole , 115 Miss. 485, 491, 76 So. 522, 524 (1917).

¶ 7. Here, Officer Eller's direct testimony was sufficient to prove Foster violated section 63-3-501 by driving in excess of sixty-five miles per hour on Highway 45.

¶ 8. Foster additionally argues that there was no evidence of his presence within Mississippi and therefore, he should not be subject to Mississippi's laws. During trial, Foster similarly challenged the trial court's jurisdiction, and the trial court used Officer Eller's testimony as a basis to take judicial notice that Foster was stopped in Chickasaw County, Mississippi:

Q: I believe you indicated this happened near Egypt?
A: The Community of Egypt, yes, sir, between County Road 406 and Mississippi Highway 245; but it's on 45 Alternate.
....
Q: That's in Chickasaw County, Mississippi?
A: Yes, sir.

Considering Officer Eller's testimony, we find that the court properly concluded that Foster's speeding citation occurred in Chickasaw County, Mississippi. We also find that the trial court correctly took judicial notice. See M.R.E. 201(b) ; Russell v. State , 126 So.3d 145, 147 (¶ 6) (Miss. Ct. App. 2013) ("Proof of venue ... may be shown by direct or circumstantial evidence.").

¶ 9. Finding the State sufficiently proved that Foster violated section 63-3-501 by exceeding the speed limit on a Mississippi highway, we affirm.

¶ 10. AFFIRMED.

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

      Foster argues that "a true crime requires the violation of a legal right" and that absent such a violation, the circuit court lacked subject matter jurisdiction over his case. He also claims his offense was "unfit for adjudication." Foster cites no Mississippi cases for those propositions. Instead, he cites cases from other jurisdictions that do not bear upon the issues he raises. Therefore, we find no merit to these claims with respect to Foster's case. See Satterfield v. State , 158 So.3d 380, 382-83 (¶ 6) (Miss. Ct. App. 2015).


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

text:
    John Edward DENNIS A/K/A John E. Dennis A/K/A John Dennis, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00584-COA
    Court of Appeals of Mississippi.
    December 11, 2018 Rehearing Denied May 7, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: PHILLIP BROADHEAD
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY TAYLOR GERBER
    BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Edward Dennis was convicted of burglary of an automobile. The trial court sentenced him to serve seven years as a habitual offender in the custody of the Mississippi Department of Corrections (MDOC) without parole. Dennis appeals. Finding no error, we affirm.

FACTS

¶ 2. On the morning of July 28, 2014, Stephen Tapper sat in his gray 2013 Ford F-150 truck, parked in front of his house in D'Iberville, Mississippi. As he sat in his truck, he realized that his center console had been moved and several items were missing: a laptop, laptop bag, laptop cords, a thumb drive with family photos on it, a Harley Davidson gym bag, gym clothes, headphones, and some cookies.

¶ 3. Tapper called the police. Officer Terry Joiner arrived at the Tapper residence, obtained Tapper's statement, and then examined the vehicle for evidence. Officer Joiner attempted to lift fingerprints but could not. While interviewing neighbors, he noted that some residents reported seeing individuals in the nearby wooded area; one neighbor believed his vehicle had been burglarized. Situated nearby was an unclaimed bicycle.

¶ 4. Tapper, owner of a security surveillance company, reviewed his own surveillance footage from the previous night, and saw a man entering his truck and removing several items. Tapper posted the surveillance video on Facebook asking for help identifying the individual. Fellow Facebook users responded with calls and texts identifying the defendant as John Dennis. In one response Tapper received an image of a Facebook photo of Dennis.

¶ 5. That afternoon, Officer Lee Donald went back to the Tapper residence to retrieve the surveillance video as evidence. He also took another statement from Tapper because he had possible suspect information. After the initial report was completed, Detective Marty Griffin was given the case to investigate further. On July 29, 2014, Detective Griffin started gathering information about the potential suspect. After receiving two photographs of the suspect from Tapper, he sent out a press release to the local media outlets in hopes that someone would recognize him. According to Detective Griffin, these results also indicated Dennis was the suspect. That same day, Detective Griffin participated in Dennis's arrest.

DISCUSSION

¶ 6. On appeal, Dennis argues that the trial court erred by denying his motion for a judgment notwithstanding the verdict (JNOV), and in the alternative, he claims that the trial court erred by denying his motion for a new trial because the jury's verdict was against the overwhelming weight of the evidence. Dennis further argues that the trial court erred in allowing the State's witnesses to identify Dennis in the surveillance video. Finally, Dennis also urges that the trial court erred when it refused Dennis's request for a circumstantial-evidence jury instruction.

A. JNOV

¶ 7. "When reviewing a challenge to the sufficiency of the evidence, this Court will reverse and render only if the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty." Hughes v. State , 983 So.2d 270, 275-76 (¶ 10) (Miss. 2008) (internal quotation marks omitted). "This Court considers the evidence in the light most favorable to the State." Id. at 276 (¶ 11). "The [S]tate receives the benefit of all favorable inferences that may reasonably be drawn from the evidence." Id.

¶ 8. Considering the evidence in the light most favorable to the State, we find that there was sufficient evidence to convict Dennis. Dennis asserts the State did not prove that he was the person who committed the crime. At trial, several witnesses identified Dennis in the courtroom. Officer Joiner testified that he reviewed the video. He saw the suspect gain entry to the vehicle, and he saw the interior light turn on, "which actually illuminated his face and his facial features in the video." Officer Joiner was also able to determine distinct tattoo markings on the suspect, his clothing, and his facial features.

¶ 9. Tapper's testimony about the surveillance video was similar. He testified that the video showed a white male with dark hair and a "real clear six-point tattoo" enter his vehicle through the driver's-side door, rummage through the vehicle, and take various items. In addition, Tapper explained that when he posted the surveillance video to Facebook, people started "blowing [his phone] up" with calls and texts, which all identified the suspect as Dennis. Tapper also identified Dennis in the courtroom.

¶ 10. Detective Griffin testified that the information he received as a result of the press release was consistent with the information Tapper received-that the suspect was Dennis. Detective Griffin, who was present during the arrest, testified that he observed Dennis without his shirt on. He physically ascertained that Dennis not only had the distinctive tattoo but also had the same characteristics such as height, weight, build, and facial features as the suspect seen in the video. He identified Dennis in the courtroom.

¶ 11. On cross-examination, Detective Griffin confirmed that after the arrest they searched the premises, and Detective Griffin did not find the articles of clothing that the person in the video was wearing, namely black shoes and shorts. The officers did not find any of the items reported stolen from the truck. The record is clear that weight and credibility were established during cross examination. The jury could have legitimately believed Detective Griffin to be credible including his identification of Dennis. Officer Donald testified that he also compared still photographs taken from the surveillance video to a Facebook photograph of Dennis, and they appeared to depict the same person-Dennis.

¶ 12. Finally, the jury was able to view the surveillance video. The jury made its own conclusions of whether Dennis was indeed the person in the video. The video depicts the crime being committed. Taking the evidence in the light most favorable to the State, a rational trier of fact could have found, beyond a reasonable doubt, that Dennis was the person who committed the crime. Accordingly, this claim is without merit.

B. New Trial

¶ 13. In Robinson v. State , 227 So.3d 423, 425 (¶ 10) (Miss. App. Ct. 2017) we explained that:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, this Court will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. As such, our scope of review is limited in considering challenges to the weight of the evidence. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will constitute an unconscionable injustice.

(citations and internal quotations marks omitted).

¶ 14. Dennis argues that law enforcement disregarded evidence that may have led to other suspects. For example, Dennis asserts that law enforcement should have (1) investigated the bicycle that was found in Tapper's yard, (2) followed up on the report of "transient individuals" in the nearby wooded area, (3) investigated the other reported automobile burglary, (4) followed up on the "anonymous tip," and (5) obtained surveillance footage from the carwash.

¶ 15. The State submits it is not obligated "to present proof of the breadth of its investigation." We agree. "It is necessary but also sufficient that the State present proof that the defendant committed the crime." Bryant v. State , 853 So.2d 814, 820 (¶ 21) (Miss. Ct. App. 2003). Here, the State presented sufficient proof that Dennis committed the crime. As discussed above, the surveillance video clearly shows Dennis committing the crime. Tapper testified under oath that he received overwhelming responses to his Facebook query that all indicated Dennis. Detective Griffin was able to physically observe Dennis at his arrest within days of the video surveillance tape. The jury was free to accept or reject the witnesses' testimony. Beasley v. State , 136 So.3d 393, 404 (¶ 36) (Miss. 2014).

¶ 16. Furthermore, defense counsel was able to question law enforcement regarding the investigation. At trial, Officer Joiner was asked about the "transient" people camping nearby and he explained that "they had no issues with those individuals." Detective Griffin was asked about the bicycle and he explained that he did not feel that it was relevant to the investigation. Detective Griffin also testified that there was no case file opened for the other auto burglary reported because no other information was received.

¶ 17. Sergeant Zackery Grady with the D'Iberville Police Department testified that he received information from an anonymous tipper concerning a "Kenneth" as another possible suspect and emailed the information to Detective Griffin. Detective Griffin testified that he could not follow up on the tip but believed "Kenneth" and Dennis could have been the same person because he was advised that both individuals lived on Jean Street.

¶ 18. Dennis also takes issue with the fact that none of the stolen items were found in his possession, and that the fingerprints on the laptop were not his. However, Detective Griffin testified that Dennis was not arrested at his primary residence. The laptop and computer bag were recovered at Coastal Car Wash in Gulfport, Mississippi. Investigator Christopher Baker testified that he processed the computer for fingerprints, and found two sets; however, none matched Dennis. Investigator Baker also testified that it was not uncommon for someone to handle an object and not leave any analyzable fingerprints. When asked about the video footage from the car wash, Baker admitted not obtaining it. Officer Joiner also confirmed that lifting fingerprints from the console in the truck was not possible due to the "texture of the surface and road dust that was on the vehicle."

¶ 19. The record is replete with explanations from law enforcement addressing why it did some things and not others. "[C]onflicts in the evidence, its strengths or weaknesses, are for the jury's consideration. It is the sole judge of the weight and worth of testimony and has the duty to determine the evidence it will accept as true or that which it should reject as untrue." Whittington v. State , 377 So.2d 927, 929 (Miss. 1979).

¶ 20. Assessing witness credibility, weighing evidence, and resolving any conflicts in the evidence was the jury's responsibility. Most recently the Supreme Court of Mississippi clarified, "that neither this Court nor the Court of Appeals ever acts as 'juror' on direct appeal. We sit as an appellate court, and as such are ill equipped to find facts. Even if we wanted to be fact finders, our capacity for such is limited in that we have only a cold, printed record to review." Little v. State , 233 So.3d 288, 291 (¶ 15) (Miss. 2017) (citation and internal quotation marks omitted). We cannot find the jury's verdict contrary to the overwhelming weight of the evidence.

C. Identification

¶ 21. Dennis claims that the trial court erred in overruling his objection to the State allowing witnesses to identify Dennis as the suspect in the video in court. Specifically, Dennis asserts that the State's witnesses that identified him at trial as the suspect in the video did not have any more prior familiarity with him than a typical juror and that solely the jurors should have determined whether or not the suspect in the video was Dennis.

¶ 22. Dennis contends that the State's use of witnesses to prove his identity was inadmissible. Dennis cites to Mississippi Rule of Evidence Rule 701, which states:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Dennis argues that the Rule excludes opinion testimony by occurrence witnesses based on mere speculation, conjecture, and assumption because it falls outside of the Rule's requirement of personal observation and familiarity.

¶ 23. Dennis cites Lenoir v. State , 222 So.3d 273 (Miss. 2017), for the proposition that the type of lay opinion testimony given during his trial should have been excluded since the witnesses were not sufficiently familiar with Dennis. In Lenoir , a witness was presented to give his opinion of whom he believed was portrayed in a surveillance video of an armed robbery. Id. at 275 (¶ 6). The trial court admitted the witness testimony because he was familiar with Lenoir and specifically the way he walked. Id. The witness opined that it was Lenoir in the surveillance video. Id. The supreme court upheld the admission of the testimony and held that "Lenoir's claims of lack of sufficient familiarity with how he walked and bias against him were weight-and-credibility issues for him to expose on cross-examination, and not reasons for this Court to reverse the trial court's evidentiary ruling." Id. at 278 (¶ 18).

¶ 24. At the outset, we point out that Dennis only made one contemporaneous objection with respect to Officer Joiner's in-court identification. At trial, when asked, if he saw the person in the courtroom, Officer Joiner stated that it was "the male sitting at the defendant's table with the white shirt on." At this time, Dennis objected to "speculation" and the objection was overruled. On appeal, Dennis refers to all of the State's witnesses; however, the record indicates only one objection was lodged for the State witness's in-court identification. "The failure to object to testimony at trial waives any assignment of error on appeal." Ross v. State , 16 So.3d 47, 57 (¶ 21) (Miss. Ct. App. 2009) (internal quotation mark omitted).

¶ 25. With respect to Officer Joiner's testimony being allowed, the standard of review of the trial court's decision regarding admission or exclusion of evidence is abuse of discretion. Clark v. State , 891 So.2d 136, 139 (¶ 11) (Miss. 2004). This Court will reverse the trial court only when the error adversely affects a substantial right of a party and the party claiming error raises an objection at trial. Busick v. St. John , 856 So.2d 304, 308 (¶ 9) (Miss. 2003).

¶ 26. Officer Joiner's overall testimony with respect to his role in the investigation is not at issue. Instead, we evaluate whether his in-court identification of Dennis as the suspect in the video falls within the purview of Mississippi Rule of Evidence 701. We find that it does not, and therefore allowing it was error. However, given the weight of the evidence, we find it was harmless. The Mississippi Supreme Court has held that "errors involving a violation of an accused's constitutional rights may be deemed harmless beyond a reasonable doubt where the weight of the evidence against the accused is overwhelming." Clark , 891 So.2d at 142 (¶ 29) (citing Riddley v. State , 777 So.2d 31, 35 (¶ 12) (Miss. 2000) ).

¶ 27. Here, as stated above, in addition to Officer Joiner, the jury heard from another officer who was present during Dennis's arrest and unequivocally believed that, based on his features, the person that was arrested for the burglary was the same person in the video and in the courtroom. In addition, Tapper testified that his social media inquiry identified only Dennis. And finally, the police independently published a press release to the general public for help, and this inquiry also led to Dennis. Here, if error there be, it does not adversely affect Dennis's substantial right. Furthermore, and perhaps most crucial to the State's case, the jurors were given the opportunity to see the surveillance video footage of the criminal activity, see Dennis, and conclude for themselves, basing on the footage alone, if Dennis was the person in it. Here, as in Lenoir , the identification made by the other witnesses raised issues of weight and credibility which are within the province of the jurors to decide. We find if there was error, it was harmless.

D. Jury Instructions

¶ 28. Dennis claims the trial court erred in refusing his proposed circumstantial evidence and two-theory jury instructions and takes issue with the given direct-evidence instruction. Our review of jury instructions is well-established.

In reviewing the grant or denial of jury instructions, this Court considers the jury instructions given as a whole. The trial court may refuse to grant jury instructions that incorrectly state the law, are covered fairly elsewhere in the instructions, or are without foundation in the evidence. If the jury instructions given fairly announce the law and create no injustice, no reversible error will be found.

Dora v. State , 20 So.3d 46, 50 (¶ 16) (Miss. Ct. App. 2009) (internal citations omitted). This Court has held that a defendant is entitled to these instructions only if the case against him is based "purely or wholly" on circumstantial evidence, as opposed to direct evidence. Jordan v. State , 158 So.3d 348, 350 (¶ 6) (Miss. Ct. App. 2014). Thus, if there is any direct evidence, neither instruction must be given.

¶ 29. Dennis argues they must be given since the video does not constitute direct evidence. We disagree. In Golden v. State , 860 So.2d 820 (Miss. Ct. App. 2003), this Court held that "[v]ideotape evidence submitted to the jury of an accused's unlawful acts constitutes direct evidence." Golden , 860 So.2d at 823 (¶ 15) (citing Haynes v. State , 744 So.2d 751, 753 (Miss.1999) ). In Golden , casino officials discovered that a casino worker's drawer was short over $19,000. Id. at 821 (¶ 2). The State presented video footage showing Golden taking the money out of her drawer and delivering it to her sister. Id. Here, as in Golden , the footage showed the actual crime being committed. In Moore v. State , 247 So.3d 1198, 1202 (¶ 19) (Miss. 2018), the supreme court recognized that a video capturing the "nefarious misdeeds" is tantamount to direct evidence.

¶ 30. Dennis attempts to distinguish his case from Golden by arguing that Golden's identity was not at issue. Dennis suggests that absent proper identification of Dennis, the video merely depicts the crime occurred and not who did it-which is circumstantial. We disagree. The video clearly depicted Golden taking money from his employer just as the video in this case clearly depicted John Edward Dennis burglarizing Trapper's vehicle. The jury had the right to view the video footage and draw its own conclusions. Testimony provided by various witnesses identifying Dennis as the suspect-Facebook posts, public inquiry, officers' testimony-supported the decision of the trial court allowing the direct-evidence instruction and denying circumstantial evidence and two-theory instructions.

¶ 31. AFFIRMED.

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

WILSON, J., DISSENTING:

¶ 32. The evidence presented at trial was insufficient for a rational juror to find that the State proved its case beyond a reasonable doubt. Accordingly, the conviction should be reversed and rendered. I respectfully dissent.

¶ 33. The only evidence tying Dennis to the burglary of Tapper's truck is the surveillance video of the crime. Police did not recover any fingerprints from the truck. They did recover three latent prints from Tapper's stolen computer, which was found at a carwash two days later. However, none of the prints was a match for Dennis, and the carwash had no apparent connection to Dennis. No other stolen items were recovered, and there was no physical evidence linking Dennis to the crime.

¶ 34. Of course, a surveillance video that clearly shows the defendant committing the crime would be sufficient evidence to sustain a conviction. And in its brief on appeal, the State asserts that this "video clearly shows Dennis committing the crime." Having carefully reviewed the video, I cannot agree. The man in the video generally resembles Dennis, but given the quality of the video and the distance from which it was taken, all I can say is that the man in the video might or might not be Dennis. I cannot agree that a rational juror could find beyond a reasonable doubt that the man is Dennis.

¶ 35. The State emphasizes that Dennis has a six-point star tattoo on his left shoulder, and the man in the video appears to have such a tattoo. However, I never could have concluded that the man in the video had such a tattoo based on the video alone. From a distance, the tattoo could be a six-point star, but that is all I can say. Moreover, there is no evidence that a six-point star is a unique or unusual tattoo.

¶ 36. The State also emphasizes that Tapper and three police officers opined that Dennis was the man in the video. However, these witnesses had no "greater familiarity with the defendant's appearance than the jury could possess." Lenoir v. State , 222 So.3d 273, 276 (¶ 13) (Miss. 2017) (affirming a conviction where three witnesses who knew and were familiar with the defendant identified him in a surveillance video of a robbery). The opinions of Tapper and two officers were based solely on their comparisons of the video to photos of Dennis. One officer (Griffin) participated in the arrest of Dennis and testified that he saw Dennis's tattoos, but that one encounter did not give him any special familiarity with Dennis. Nor did it give him any comparative advantage vis-a-vis the jurors, who were provided with closeup photos of Dennis's tattoos.

¶ 37. Finally, there was hearsay testimony from Tapper and Griffin that other unidentified tipsters identified Dennis as the man in the video. However, none of these tipsters testified, and the record does not disclose the content or basis of their identifications. This hearsay adds nothing to the strength of the State's case.

¶ 38. "When this Court reviews the sufficiency of evidence supporting a guilty verdict, we view the evidence in the light most favorable to the State and decide if rational jurors could have found the State proved each element of the crime." Id. at 279 (¶ 25). But even under this relatively limited standard of review, there must be some evidence of such quality that "a fair-minded, rational juror could find that the State proved its case beyond a reasonable doubt ." Id. at (¶ 28) (emphasis added). The evidence presented by the State in this case does not permit such a finding. If there were some other evidence linking Dennis to the crime, then Dennis's resemblance to the man in the video certainly could serve as corroborating evidence. But there is no other evidence. The whole case turns on the video. I cannot say that the man in the video is Dennis. Indeed, if I were shown a non-suggestive photo lineup that included the man in the video, I would not be able to identify him with any degree of confidence. Nor do I believe that a rational fact-finder could find, beyond a reasonable doubt , that the man is Dennis. Rather, there is a substantial risk that the jury reached that conclusion only because three police officers asserted that the man in the video was Dennis. Neither the video itself nor the officers' opinions is sufficient to sustain the conviction. Accordingly, I respectfully dissent.

GRIFFIS, P.J., JOINS THIS OPINION.

      According to Tapper, the car wash is about sixteen to seventeen miles away from Tapper's residence.

      One of the prosecutors made this point in closing argument, stating: "[Defense counsel] is right about one thing. It comes down to the video. And the film does not lie." Thus, this actually is not a case in which "we have only a cold, printed record to review." Ante at ¶ 20. Nor are we asked to assess the credibility of witnesses or to resolve "conflicts" in the evidence. Id. Indeed, there are no material credibility issues or conflicts in the evidence. For all practical purposes, the video is the evidence, and the video simply is what it is, regardless of what any witness said about it. The only question for this Court is whether the quality of the video is such that a rational juror could find, beyond a reasonable doubt, that Dennis is the man shown in the video.


text:
    Keith La'Dale PORTER a/k/a Keith Porter, Appellant v. STATE of Mississippi, Appellee
    NO. 2018-CP-00324-COA
    Court of Appeals of Mississippi.
    December 11, 2018 Rehearing Denied April 16, 2019
    ATTORNEY FOR APPELLANT: KEITH LA'DALE PORTER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
    BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Keith Porter pleaded guilty to armed robbery and unlawful possession of a firearm by a convicted felon. For his armed-robbery conviction, the court sentenced him to twenty-five years, with twenty years suspended and five years to serve, in the custody of the Mississippi Department of Corrections (MDOC). As for the unlawful-possession-of-a-firearm conviction, the court sentenced him, as a habitual offender, to serve ten years in the custody of the MDOC. The circuit court also sentenced Porter to five years of post-release supervision and ordered his sentences to run consecutively.

¶ 2. Since his conviction, Porter has filed four motions for post-conviction relief (PCR). In his fourth PCR motion-the subject of this appeal-he attacks his guilty plea to possession of a firearm as a convicted felon. Finding the petition successive-writ barred, the circuit court dismissed the petition without an evidentiary hearing. Porter now appeals. Finding no error in the circuit court's dismissal, we affirm.

STANDARD OF REVIEW

¶ 3. A circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief ...." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). And "this [C]ourt will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim is procedurally alive substantially showing the denial of a state or federal right." Pinkney v. State , 192 So.3d 337, 341-42 (¶ 13) (Miss. Ct. App. 2015) (internal quotation marks omitted).

¶ 4. "[T]he right to an evidentiary hearing is not guaranteed." Id. at 341 (¶ 12). "A [circuit] court enjoys wide discretion in determining whether to grant an evidentiary hearing." Id.

DISCUSSION

¶ 5. To determine whether the circuit court erred in summarily dismissing Porter's petition, this Court must look to the merits of the petition. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), the dismissal of a PCR motion is a final judgment and acts as a bar to a second, or successive, motion raising the same issue or issues. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). "Essentially, [a movant] is granted one bite at the apple when requesting post-conviction relief." Dobbs v. State , 18 So.3d 295, 298 (¶ 9) (Miss. Ct. App. 2009). Because Porter previously filed two PCR motions attacking his guilty plea to possession of a firearm as a convicted felon, his current claim is successive-writ barred.

¶ 6. We acknowledge that "errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA." Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010). "Only four fundamental-rights exceptions have been expressly found to survive procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws." Carter v. State , 203 So.3d 730, 731 (¶ 7) (Miss. Ct. App. 2016) (internal quotation mark omitted). The Mississippi Supreme Court has clarified that "merely asserting a constitutional-right violation is insufficient to overcome the procedural bars." Fluker v. State , 170 So.3d 471, 475 (¶ 11) (Miss. 2015). Additionally, "there must at least appear to be some basis for the truth of the claim of a fundamental-constitutional-rights violation." Evans v. State , 115 So.3d 879, 881 (¶ 3) (Miss. Ct. App. 2013) (internal quotation marks omitted).

¶ 7. Porter's claims do not implicate any fundamental-constitutional-rights violations. Thus, the circuit court did not abuse its discretion in dismissing Porter's PCR motion.

¶ 8. AFFIRMED.

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