source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Anthony SNEED a/k/a Trigger; Anthony Smith a/k/a Sticky; Thomas German a/k/a Tommy C; Jamario Brady a/k/a Mario a/k/a Turtle and Johnny Bickham, Appellants, v. STATE of Mississippi, Appellee.
    No. 2007-KA-00381-COA.
    Court of Appeals of Mississippi.
    Aug. 25, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied March 25, 2010.

      Marcus D. Evans (Brady), Robert S. Little (Bickham), George S. Luter (Smith), Jane E. Tucker (German), and Glenn S. Swartzfager (Sneed), Jackson, Attorneys for Appellants.
    Office of the Attorney General by: Ladonna C. Holland, Attorney for Appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. A Coahoma County jury convicted Anthony Sneed, Anthony Smith, Thomas German, Jamario Brady, and Johnny Bick-ham of murder. The trial judge sentenced them each to life in the custody of the Mississippi Department of Corrections. The Defendants, each represented by separate counsel, now appeal raising several issues. Finding no error, we affirm their convictions and sentences.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of August 11, 2006, law enforcement officer Kenneth Davis responded to a call in Friars Point, Mississippi about an assault at the Yates Street apartments. Arriving on the scene shortly thereafter, Officer Davis found Herman Fair lying on his back at the bottom of the apartments’ outdoor stairs with his head in a pool of blood, dead. Based upon interviews and his investigation of the incident, Sneed (a/k/a “Trigger”), Smith (a/k/a “Sticky”), German (a/k/a “Tommy C.”), Brady (a/k/a “Mario” or “Turtle”), and Bickham (collectively the “Defendants” or “Appellants”) were all apprehended as suspects.

¶ 3. Earlier that evening, Smith’s mother, Leanna Smith (a.k.a. “Baddy”), had called the Friars Point Police Department and filed a complaint about an altercation involving herself and Fair. Rotandria Foster, an eyewitness to that incident and Leanna’s niece, testified that she called Smith to tell him that she had seen Leanna and Fair “get into it” in front of a club earlier that day. Foster had seen Leanna choking Fair, but Fair did not “do anything” to Leanna. Smith wanted to talk to Fair about the altercation with his mother, but Leanna stated, “[l]eave it alone.” He didn’t. After Foster called Smith, she and another individual met the five Defendants, and they all walked toward Fair’s apartment and waited at the bottom of the stairs for Fair to emerge from his upstairs apartment. Fair, who had been drinking alcohol and smoking marijuana that day, came out of his apartment, yelled, “Where that b* ⅜ * * a* * ‘Baddy’ at?” and descended the staircase. Smith punched Fair under the chin, knocking him to the ground. Foster stated all of the Defendants kicked Fair one time. She further testified that when Brady started hitting Fair hard in the head with a three-iron golf club, Smith tried to stop him and told Brady that they were not trying to kill Fair, just hurt him. The beating lasted five to ten minutes. Foster did not see the victim rise from the ground again. She claimed she and four of the defendants ran from the scene, leaving Brady still beating Fair with the golf club. Soon after the altercation, Foster heard Brady brag to the other defendants, “Yeah, I killed the b* * * *. I tried to kill him. My name is ‘Turtle Squirtle.’ ” When the police arrived at Kededria Hampton’s apartment, where the Defendants and Foster were assembled, all of the Defendants ran out of the back door. The police officers took Hampton and Foster to city hall to be interviewed. Foster admitted that she did not “tell everything” in her first statement to police. After spending the night in jail, Foster claimed she told law enforcement what actually happened.

¶ 4. All of the Defendants waived their Miranda rights and gave statements to Officer Mario Magsby, a criminal investigator with the Coahoma County Sheriffs Department. Brady gave a statement to Officer Magsby on August 12 stating he merely kicked Fair, but in a statement on August 14, Brady admitted he also hit Fair on the leg with the golf club. Also on August 14, Brady led law enforcement to a soybean field approximately one-half mile from the murder scene where the golf club was recovered. Officer Magsby reported that Smith claimed Foster had called him about Fair’s assaulting his mother. When Smith received the phone call, he and Brady were at Bickham’s house and had been drinking. Smith admitted when Fair came down the stairs at the Yates Street apartments, he punched Fair in the chin and knocked him down. Smith did not admit to kicking Fair. According to Officer Magsby, Sneed, German, and Bickham all admitted in their statements that they each kicked Fair one time in the right side.

¶ 5. At the preliminary hearing, the charges against the Defendants were reduced from capital murder to murder, as there was no evidence of robbery. A Coa-homa County grand jury indicted the Defendants “individually, or while aiding and abetting and/or acting in concert with each other” for deliberate-design murder pursuant to Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006). Before trial, Sneed, Smith, and German each filed a motion to sever their trials from all other defendants, claiming they would be denied a fair trial if tried together. A hearing was held on the motions, which were all denied. The trial judge ordered that evidence of the statements of the respective defendants, and the statements themselves, would not be permitted during the State’s case-in-chief, and “if admissible, [they] may be used only after the defendant who gave the statement takes the stand, in order to assure his availability for cross-examination by the other defendants.” The trial court then amended its order, stating that the Defendants’ statements could be used in the State’s case-in-chief, but only after they were redacted to delete reference to other defendants. The order included a cautionary statement to the State that “no witness or defendants’ statement may be utilized that refers to or in any way infers that others were involved with the defendant giving the statement.”

¶ 6. A four-day trial ensued on February 20, 2007. The State called four witnesses: Foster, Officer Davis, Officer Magsby, and forensic pathology expert Dr. Steven Hayne. Officer Magsby testified for the prosecution as to what each defendant said in his statement, but the trial judge instructed the jury before each statement that it was only to consider the statement as evidence against the defendant who gave the statement, not as evidence against any other defendant. Additionally, the shoes the Defendants had been wearing at the time of the incident, which were all tennis shoes, were admitted into evidence during Officer Magsby’s direct examination. The Defendants’ written statements were not introduced into evidence.

¶ 7. Dr. Hayne, having performed the autopsy on Fair, testified that the victim had external acute injuries. There were several scalp injuries ranging up to two inches in length that Dr. Hayne attributed to blunt force trauma to the head, consistent with being struck with a golf club. However, Dr. Hayne opined that the scalp injuries did not cause Fair’s death, as there were no internal brain injuries. Instead, he determined the cause of death to be blunt force trauma to the chest, and the manner of death to be homicide. Externally, Fair had significant chest bruising. Internally, Fair had a broken rib and over three quarts of blood in his chest cavity. Dr. Hayne also found bruises on Fair’s lungs measuring nearly four inches in some areas. Most significantly, Dr. Hayne reported tears of the right lung up to two and one-half inches in length, which were the sites of bleeding into the chest cavity that caused Fair’s death. Dr. Hayne ascribed the origin of the lung lacerations to “external compression of the chest pushing down and tearing the lungs.” He stated the chest injuries could be attributed to someone’s kicking or stomping Fair in the chest. He testified that the injury could have been inflicted even if the assailant wore tennis shoes.

¶ 8. None of the Defendants elected to testify in his own defense. The only defendant to call a witness was Sneed, who called Sheila Croom to the stand. Croom lives at the apartments where the altercation occurred, next door to Loretta Smith, with whom Fair sometimes stayed. Croom testified she was with Fair all day on August 11; Fair and an individual by the name of Dennis Thompson had an argument earlier that day at a barbecue. That evening while at her apartment, Croom had called Loretta to let her know Leanna and Fair had had an argument, and heard Fair’s voice in the background. Later that evening, Croom heard a thump outside. She looked out of her window and saw Thompson crouched over Fair’s prostrate body at the bottom of the steps, searching through Fair’s pants’ pockets; however, she did not see what happened to Fair. After 911 was called and law enforcement arrived on the scene, Thompson denied any involvement in Fair’s death.

¶ 9. During trial, counsel for Brady moved for severance twice, but each request was denied. At the close of evidence, Sneed, Smith, and German all renewed their motions to sever, which were denied. The jury received several instructions, including instructions for murder, aiding and abetting, and manslaughter. All of the Defendants were found guilty of murder and sentenced to life imprisonment. They each filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which were denied. The Defendants each timely appealed, raising several issues which we shall discuss in turn.

ANALYSIS

1. Severance (Brady, German, Smith, Sneed).

¶ 10. German, Smith, and Sneed filed separate pretrial motions to sever, which were denied. Brady’s counsel requested severance orally several times during trial; all of his requests were denied. Bickham never moved to sever. Accordingly, Brady, German, Smith, and Sneed all raise before this Court the propriety of the trial court’s denying their motions to sever.

¶ 11. The decision to grant or deny a severance lies within the sound discretion of the trial court for non-death penalty cases. Sanders v. State, 942 So.2d 156, 158(¶ 10) (Miss.2006) (citing URCCC 9.03). Thus, we will reverse only for abuse of discretion. Id. The appropriateness and importance of joint trials has been recognized by the Mississippi and United States Supreme Courts: “[j]oint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling [a] more accurate assessment of relative culpability-advantages which sometimes operate to the defendant’s benefit.” Cavett v. State, 717 So.2d 722, 727(¶ 30) (Miss.1998) (quoting Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). Defendants who are “jointly indicted for a felony are not entitled to separate trials as a matter of right.” Sanders, 942 So.2d at 158(¶ 11) (citing Price v. State, 336 So.2d 1311, 1312 (Miss.1976)). When considering a motion to sever, the trial court must analyze the factors as set forth by the supreme court in Duckworth v. State, 477 So.2d 935, 937 (Miss.1985). These factors include: (1) whether the testimony of one defendant tends to exculpate that defendant at the expense of the co-defendant, and (2) whether the evidence of guilt introduced at trial preponderates more heavily against one defendant than another. Sanders, 942 So.2d at 159(¶ 15). “The overarching consideration when evaluating these factors is whether the defendants would be prejudiced by a joint trial.” Id. Unless prejudice can be shown, the trial court cannot be found to have abused its discretion. Id. at 158(¶ 12) (citing Hawkins v. State, 538 So.2d 1204, 1207 (Miss.1989)).

¶ 12. Brady did not file a pretrial motion for severance, but he moved for severance several times throughout trial: during the State’s case-in-chief during the cross-examination of Foster, at the conclusion of the State’s case-in-chief, and after closing argument by Bickham’s counsel. On appeal, Brady argues that he could not receive a fair trial joined with the co-defendants because only one defendant probably inflicted the fatal blow to Fair.

¶ 13. German, Smith, and Sneed all make similar arguments on appeal. They argue that the evidence weighs more heavily against Brady than them. Because of their association with Brady in a joint trial, they claim prejudice because there was little evidence to convict them. German contends that this disparity could have been cured by jury instructions, but it was not. German, Smith, and Sneed also argue a joint trial prevented them from introducing exculpatory evidence that could have been introduced had they been tried separately. They claim it also prevented them from cross-examining the co-defendants regarding their statements, even though the trial court limited the use of the defendants’ statements only to information that did not implicate any other defendant. Sneed specifically complains he wanted to bring forward his co-defendants’ respective culpability to assist his defense. However, at the time the trial court made this ruling, no defendant objected to this precautionary measure preventing a Sixth Amendment Confrontation Clause problem.

¶ 14. Regarding the first Duckworth factor, none of the Defendants testified at trial in his own defense; so one defendant’s testimony could not be used to exculpate him at the expense of a co-defendant. Therefore, the first Duckworth factor weighs in favor of a joint trial. Further, the trial judge was extremely cautious throughout the entire trial only to admit the portions of the Defendants’ statements to law enforcement during the State’s case-in-chief that included the specific defendant’s admission that he participated in the incident; no exculpatory information was introduced. The Defendants cannot now complain that their defense was limited because they were prohibited from introducing exculpatory information from the other defendants’ statements, which would have certainly created a Confrontation Clause problem, when they all agreed upon these precautionary measures at the outset to avoid this very problem.

¶ 15. Furthermore, Sanders explains that joint trials which violate this factor often involve co-defendants with inconsistent defenses. In Payton v. State, 785 So.2d 267, 269-70 (¶¶ 7-8) (Miss.1999), the supreme court did find that blame-shifting, rather than a defendant’s attempt to exculpate himself at his co-defendant’s expense, prejudiced the defendants and, thus, necessitated severance. Payton, however, involved defendants with completely inconsistent defenses. One defendant tried to shift as much blame as possible to the other defendant, who denied the allegations altogether. Id.

¶ 16. Payton is distinguishable. Here, none of the Defendants denied being involved in the beating. Additionally, the Defendants did not have a specific defense; they merely attempted, during cross-examination of the State’s witnesses, to shift more of the blame to Brady for the beating, while acknowledging that they participated in the beating. Only Sneed called a witness to the stand — Croom—who merely testified that she saw Thompson sifting through Fair’s pockets as he lay on the ground. The trial court properly recognized that because of Dr. Hayne’s medical testimony regarding Fair’s cause of death (kicks to the chest), blame could not be shifted solely to Brady because there was evidence all of the Defendants kicked Fair in the chest. Brady’s separate act of striking Fair with a golf club was found to have resulted only in non-fatal wounds.

¶ 17. The second Duckworth factor involves whether the balance of evidence involves one defendant over the others. Sanders, 942 So.2d at 159(¶15) (citing Duckworth, 477 So.2d at 937). Again, because Dr. Hayne’s testimony implicated all of the Defendants, not just Brady, as possibly having delivered the fatal injury to Fair, there is no imbalance in the evidence presented. Dr. Hayne did not attribute the blows to Fair’s chest to a golf club. Foster, the only eyewitness to the beating, could not identify where the Defendants kicked Fair, but she stated that all the Defendants kicked him. Further, Foster testified she only saw Brady hit Fair in the head area with the golf club, not in the chest. Brady, German, Smith, and Sneed failed to show that the balance of the evidence implicated one defendant over another.

¶ 18. In sum, neither Duckworth factor weighs in favor of a severance. There is no showing of prejudice by Brady, German, Smith, or Sneed; so the trial court did not abuse its discretion in denying their motions for severance.

2. Sufficiency of the Evidence (Bick-ham, Brady, German).

¶ 19. Bickham, Brady, and German contest the sufficiency of the evidence presented by the State to convict them of murder.

¶ 20. A directed verdict, peremptory instruction, and motion for JNOV all challenge the sufficiency of the evidence presented to the jury. Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). When reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Reversal can only occur when the facts point in favor of the defendant such that reasonable men could not have found, beyond a reasonable doubt, the defendant was guilty. Id. All credible evidence supporting the defendant’s guilt will be accepted as true. McClain, 625 So.2d at 778.

¶ 21. Bickham argues that the evidence did not show he had the deliberate design to kill Fail' as required under section 97-3-19. He claims the jury was instructed improperly in that when jury instruction C-13, which defined “deliberate design,” was combined with jury instruction C-10, it caused the jury to misinterpret the law. Bickham contends the evidence showed that he only lacked Fair one time in the side during the altercation; thus, he had no deliberate design to kill Fair. According to Bickham, this action equates with misdemeanor simple assault, a crime on which the jury was not instructed.

¶ 22. German also argues that the evidence showed he had no intent to kill Fair, only to hurt him. Further, he argues that Foster testified she only saw each defendant kick Fair once, but she testified Brady hit Fair with the golf club. German also contends that the jury convicted him on this alleged scant evidence because it was improperly instructed.

¶ 23. Brady specifically contends the testimonies of Foster and Dr. Hayne do not support his conviction of murder. He points out that Foster testified that he hit Fair in the head with a golf club, but only kicked Fair once. Because Dr. Hayne testified that the injuries to Fair’s head were not the cause of death, he claims his actions were not sufficient to support a conviction of murder.

¶ 24. In viewing the evidence in the light most favorable to the prosecution, we find ample evidence to convict all of the Defendants, including Bickham, Brady, and German, of murder. Deliberate-design murder is defined as “[t]he killing of a human being without the authority of law by any means or in any manner ... [wjhen done with deliberate design to effect the death of the person killed.... ” Miss.Code Ann. § 97-8-19(l)(a) (Rev.2006). The essential elements the prosecution is required to prove beyond a reasonable doubt are: “(1) the defendant killed the victim; (2) without authority of law; and (8) with deliberate design to effect his death.” Brown v. State, 965 So.2d 1023, 1030(1127) (Miss.2007) (citing Dilworth v. State, 909 So.2d 731, 736(¶ 18) (Miss.2005)). However, it is well established that “any person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an ‘aider and abettor’ and is equally guilty with the principal offender.” Jones v. State, 710 So.2d 870, 874(¶ 15) (Miss.1998) (quoting Hoops v. State, 681 So.2d 521, 533-34 (Miss.1996)). Regarding aiding and abetting, this Court has stated:

one who aids and abets necessarily enters into an agreement that an unlawful act will be done. He participates in the design of the felony.... [I]n order to be held criminally liable as an aider and abetter in the commission of a felony, one must “do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime.” And it has been further stated that “if two or more persons enter into a combination or confederation to accomplish some unlawful object, any act done by any of the participants in pursuance of the original plan and with reference to the common object is, in contemplation of law, the act of all.”

Scarborough v. State, 956 So.2d 382, 386(¶ 21) (Miss.Ct.App.2007) (internal citations omitted).

¶25. Dr. Hayne testified that Fair’s cause of death was external compression to the chest, which was consistent with being kicked or stomped with great force. Since, according to the testimonies of Foster and Officer Magsby, there is evidence that each defendant kicked Fair (even if only one time), and each defendant was present at the time of the beating, there is sufficient evidence to prove each defendant could be guilty of aiding and abetting in the murder of Fair, even if his particular kick did not cause the fatal injury. Further, there is no evidence that any defendant attempted to stop any of the co-defendants from kicking Fair. While there were scalp injuries attributable to blunt force trauma to Fair’s head, which would be consistent with being struck with a golf club, Dr. Hayne testified these injuries did not cause Fair’s death. According to the evidence presented, it is not known which defendant actually inflicted the fatal blows to Fair’s chest, or if all of their kicks contributed to his death. Therefore, in order to find any of the five defendants guilty of Fair’s murder, the jury had to find that, beyond a reasonable doubt, one of the individual defendants actually committed the blow which killed Fair, and that the particular defendants aided, counseled, or encouraged another in the commission of Fair’s murder.

¶ 26. Regarding Bickham’s and German’s arguments on their alleged lack of intent to kill Fair, the supreme court has acknowledged “that ‘deliberate design’ to take the life of another connotes intent to kill.” Jones v. State, 710 So.2d 870, 878(¶31) (Miss.1998) (citing Peterson v. State, 242 So.2d 420, 427 (Miss.1970)). However, “deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.” Brown, 965 So.2d at 1030(¶ 28) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)).

¶ 27. Further, this Court has affirmed murder convictions on the theory of aiding and abetting when the defendant did not even participate in the lethal beating, and did nothing to stop it. In McDowell v. State, 984 So.2d 1003, 1008 (¶¶ 1-2) (Miss.Ct.App.2007), this Court affirmed the conviction of depraved-heart murder by two defendants, Eric McDowell and McDowell’s mother, Barbara Chapman, in the beating death of Marlon Davis, Chapman’s former boyfriend, whom she accused of domestic violence. Both defendants went to the front of the victim’s apartment; McDowell beat Davis with a stick and stomped him while Chapman stood over the victim. Id. at 1009(¶ 9). Davis died of blunt force trauma to the head and a lacerated liver. Id. at (¶ 11). Chapman admitted that she “put her son up to it,” but she did not intend for Davis to die. Id. at 1011(¶22). On appeal, Chapman argued that the State failed to prove she had the intent to kill Davis; however, this Court found the evidence was sufficient to support the jury’s verdict on the theory of aiding and abetting. Id.

¶ 28. Here, the following evidence establishes Bickham’s, Brady’s, and German’s intent to kill Fair. All of the Defendants joined together once Smith found out his mother had been in an altercation with Fair. The group went together to Fair’s apartment complex, and waited under a stairwell for Fair to emerge from his apartment. Then, Smith punched Fair in the face. Everyone in the group kicked Fair as he lay on the ground, and Brady additionally beat Fair with a golf club. The beating lasted five to ten minutes.

¶ 29. At trial, the Defendants tried to characterize their actions as merely light kicks, but the medical evidence shows otherwise. On appeal, Bickham, Brady, and German stress that the evidence shows they only kicked Fair once. However, the medical evidence shows multiple internal and external injuries that do not support this contention. Dr. Hayne testified to Fair’s numerous external injuries to his body, although not lethal, including the numerous lacerations to Fair’s scalp, bridge of the nose, and ear, in addition to contusions on his chest that were over six inches in length. The fatal internal injuries to Fair’s chest indicated he was beaten so severely as to break his rib, to lacerate his lungs, and to cause over three quarts of blood to hemorrhage into his chest cavity — certainly sufficient evidence of intent to kill by all five Defendants.

¶ 30. As far as Bickham’s contentions about an improperly instructed jury, we note that there were no objections from any of the Defendants when jury instruction C-10 and C-13 were granted. Accordingly, Bickham is procedurally barred from contesting these instructions for the first time on appeal. Smith v. State, 989 So.2d 973, 986(¶ 48) (Miss.Ct.App.2008) (citing Harris v. State, 861 So.2d 1003, 1013(¶ 18) (Miss.2003)).

¶ 31. Moreover, the jury was given the option of convicting the Defendants of manslaughter or murder, and it found evidence beyond a reasonable doubt to convict the Defendants of deliberate-design murder. “Whether a homicide is classified as a murder or manslaughter is ordinarily an inquiry to be made by the jury.” Hodge v. State, 823 So.2d 1162, 1166(¶ 16) (Miss.2002) (citing Jackson v. State, 740 So.2d 832, 834(¶ 8) (Miss.1999)). We conclude the evidence, when viewed in the light most favorable to the prosecution, shows a rational fact-finder could have found the essential elements of deliberate-design murder beyond a reasonable doubt.

3. Weight of the Evidence (Bickham, Brady, German, Smith, Sneed).

¶ 32. Bickham, German, Smith, and Sneed argue that the jury’s verdict is against the overwhelming weight of the evidence, and the tidal court erred in denying their motions for a new trial.

¶ 33. This Court’s standard of review of a trial court’s denial of a motion for a new trial is an abuse of discretion. Johnson v. State, 904 So.2d 162, 167(¶ 11) (Miss.2005). “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we 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.” Bush, 895 So.2d at 844(¶ 18). The evidence is weighed in the light most favorable to the verdict. Id. All evidence “consistent with the defendant’s guilt is accepted as true together with any reasonable inferences that may be drawn from that evidence.” Young v. State, 891 So.2d 813, 821(¶ 21) (Miss.2005) (citing Heidel v. State, 587 So.2d 835, 838 (Miss.1991)). “Any factual disputes are properly resolved by the jury and do not mandate a new trial.” Moore v. State, 859 So.2d 379, 385(¶ 26) (Miss.2003) (quoting McNeal v. State, 617 So.2d 999, 1009 (Miss.1993)).

¶ 34. Bickham and German make the same argument as they did regarding the sufficiency of the evidence; they claim the evidence shows they did not have the intent to kill Fair. Smith and Sneed make this argument as well. Bickham points out that the element of deliberate design to kill was “disproven” by Foster, because she testified all of the defendants, except Brady, ran away when Brady began hitting Fair with the golf club. Bickham, German, and Sneed insist the evidence shows they only kicked Fair once and fled. Smith argues the evidence shows he only struck Fair, knocking him down, and kicked him once. Furthermore, Smith contends he asked Brady to stop hitting Fair with the golf club, claiming they only wanted to hurt, not kill, Fair.

¶ 35. Smith and Sneed argue they could only be convicted of murder through the theory of aiding and abetting their co-defendants. We note the jury was instructed on this theory; therefore, this well could have been the jury’s basis for their conviction of murder. Alternatively, Smith and Sneed argue the weight of the evidence supports a manslaughter conviction. Smith states he was enraged at Fair’s insults directed at his mother when Fair came out of the apartment yelling, “Where the b* * * * a* * ‘Baddy’ at?” Sneed agrees that Fair’s statement was grounds for provocation. However, as stated earlier, the jury was instructed on manslaughter and found the evidence weighed in favor of murder. We find no error in this regard.

¶ 36. Sneed contends Foster’s testimony is “uncontested.” We disagree; it is in direct conflict with Dr. Hayne’s medical testimony. Further, Foster could not remember where on Fair’s body the Defendants had kicked him. A conflict in the evidence creates a factual dispute which the jury resolves; it is not a ground for a new trial. Moore, 859 So.2d at 385(¶ 26). As discussed regarding the sufficiency of the evidence, the medical evidence established an intent to kill for each defendant. Moreover, intent is typically a jury issue, which will not be disturbed by the reviewing court as long as the record supports the jury’s finding of fact. Boyd v. State, 977 So.2d 329, 335-36(¶ 23) (Miss.2008). The jury obviously resolved any factual discrepancies against the Defendants, finding that the Defendants had the intent to kill Fair. After a careful review of the record, we are not persuaded that the jury verdict is contrary to the overwhelming weight of the evidence. This issue is without merit.

4. Jury Instructions (German, Smith, Sneed).

¶ 37. German, Smith, and Sneed all raise issues regarding various jury instructions on aiding and abetting. However, none of these jury instructions were objected to at trial by any of the Defendants’ trial counsel. Accordingly, German, Smith, and Sneed are procedurally barred from contesting these instructions for the first time on appeal. See Jones v. State, 776 So.2d 643, 653(¶35) (Miss.2000) (failure to object to jury instructions at trial procedurally bars the issue from appeal). Procedural bar notwithstanding, we find that their arguments are without merit.

¶ 38. The contested jury instructions are as follows:

Jury instruction C-10:
The Court instructs the Jury that if two or more persons are engaged in the commission of a felony, then the acts of each in the commission of such felony are binding upon all and all are equally responsible for the acts of each in the commission of such felony.
Jury instruction C-ll:
The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person acting in concert with, or aiding and abetting, another person or persons in a joint effort or enterprise.
If a defendant is acting in concert with or aiding and abetting another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such persons just as though the defendant had committed the acts or engaged in such conduct.
Before any defendant may be held criminally responsible for the acts of others it is necessary that the defendant deliberately associate himself in some way with the crime and participate with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either acted in concert or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instruction[s] was committed by some person or persons, and that a defendant voluntarily participated in its commission with the intent to violate the law.

Pertinent portion of jury instruction C-12:

If you find from the evidence in this case beyond a reasonable doubt that: ... on or about August 11, 2007, Herman Fair, was a living human being, and ... the defendants ... individually or while aiding and abetting and/or acting in concert with each other, did unlawfully, willfully and feloniously and without authority of law and with deliberate design to effect death, kill and murder Herman Fair ... by beating and/or kicking him to death ... while the said [defendants] were not acting in self-defense or the defense of others, then you shall find the defendants ... guilty of murder.
Jury instruction C-16:
The court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully and feloniously doing any act which is an element of the crime, or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense. In this case the State has charged that these defendants aided and abetted one another in the commission of the crime charged. Aiding and abetting requires some participation in the criminal act and may be evidence by word, overt act or deed. In order to be found guilty as aiders and abettors of a crime, those Defendants charged as aiders and abetters must possess the same intent as the person principally committing the crime charged. If you believe from the evidence, beyond a reasonable doubt, that [all of] the defendants ... or any one of them, did willfully, knowingly, unlawfully and feloniously do any act which is an element of the crime of murder or manslaughter as you so find, immediately connected with such crime, or leading to its commission, and that such defendant or defendants shared the same intent as the person principally committing the crime, then and in that event you should find such defendant or defendants guilty of murder or manslaughter, as you so find.

(Emphasis added.)

¶ 39. “When considering a challenge to a jury instruction on appeal, we do not review jury instructions in isolation; rather, we read them as a whole to determine if the jury was properly instructed.” Rubenstein v. State, 941 So.2d 735, 784 (¶ 224) (Miss.2006). Reversible error will not be found if, when read together, the instructions correctly state the law and create no injustice. Id. “In other words, if the instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.” Milano v. State, 790 So.2d 179, 184(¶ 14) (Miss.2001).

¶ 40. First, German argues that jury instruction C-12 improperly requires the jury to find all of the Defendants guilty of murder or all of the Defendants not guilty of murder. However, as the State points out, this jury instruction does not say this; it provides the elements of murder and states that if the Defendants “individually or while aiding and abetting and/or acting in concert with each other” beat or kicked Fair to death, they would be guilty of murder. Further, in making this argument, German does not consider the impact of the other jury instructions, thereby asking the Court to review instruction C-12 in isolation, which is improper. Other instructions that were given provide the jury must consider whether the State proved that some person, with whom a defendant voluntarily participated, committed every element of the crime charged — murder—or the lesser crime of manslaughter, and that to convict of murder, each defendant must have had the intent to bring about the crime. Since each defendant was charged with murder as either a principal or an aider/abetter, the jury was necessarily instructed that the acts of one may be found to be the acts of all.

¶ 41. Second, German also argues that the jury instructions do not make it clear that each defendant must have the required element of the intent to kill Fair. Specifically, he argues that instructions C-10, C-ll, and C-16 allow a defendant to be found guilty as an aider/abettor without sharing the requisite intent of the principal who committed the crime. We find no merit to German’s contention.

¶ 42. We find Milano instructive. There, the supreme court recognized the confusion generated by an aiding and abetting instruction which stated that the jury could find the defendant guilty if it believed “the evidence beyond a reasonable doubt” showed the defendant “did willfully, unlawfully and feloniously do any act ivhich is an element of (capital murder/kidnaping) with which he is charged.” Milano, 790 So.2d at 184(¶ 16). The Mila-no court found that, while erroneous, the grant of that instruction was harmless error, because other instructions informed the jury of the State’s burden of proof: that it must prove each element of the crime beyond a reasonable doubt. Id. at 184-85 (¶¶ 17, 22). To avoid further confusion, the Milano court adopted the United States Fifth Circuit Court of Appeals’ model jury instruction, which is similar to jury instruction C-ll on aiding and abetting now before us. See id. at 185(¶ 21).

¶ 43. We do not find that jury instructions C — 10, C-ll, and C-16, when read with the other instructions, allow a defendant to be convicted as an aider/abettor without the same intent required as the principal. While instruction C-10 may be a general instruction, C-ll states the defendant must “participate with the intent to bring about the crime”; C-12 announces the specific intent of “deliberate design to effect death”; and C-16 clearly states that in order to be guilty as an aider and abettor of murder, that the defendant must “share ... the same intent” of the principal who committed the murder. Moreover, we note that other given instructions stress the State’s burden to prove every material element of the crime charged. Additionally, a separate instruction was given defining the “deliberate-design” intent element of the crime of murder.

¶ 44. Third, German and Smith complain that C-ll merely requires the defendant have the intent to violate “the law,” which is too ambiguous. We find this argument is without merit as well. Instruction C-ll refers to the “offense as defined by these instructions,” which would mean either murder or manslaughter. Additionally, this Court has specifically rejected German’s argument in Davis v. State, 980 So.2d 951 (Miss.Ct.App.2007). There, the same language in an instruction was contested as “it did not confine the jury to a finding that [Josh] Davis intended to commit the specific crime of murder but rather if he intended to violate any law.” Id. at 957(¶ 12) (emphasis added). This Court rejected Davis’s argument, finding that the contested instruction was adopted in Mila-no and “intent to violate the law” language clearly referenced the charged crime when read together with the other instructions. Id. at 958(¶ 12).

¶ 45. Fourth, Smith and Sneed find fault with instruction C-16 pursuant to Berry v. State, 728 So.2d 568 (Miss.1999). In Berry, an aiding and abetting instruction was found improper because it “appears to give the jury an additional option of finding the defendant guilty if she committed only one element of the crime without even finding that the crime was ever completed.” Id. at 571 (¶ 9). The court concluded that granting the instruction amounted to plain error “because the jury was not fully instructed on the elements of the crime.” Id. at 571 (¶ 6). Sneed makes the same argument: that the grant of jury instruction C-16 constitutes plain error; thus, he contends this Court is not precluded by the procedural bar from reviewing this issue.

¶ 46. We do not find the Berry issue present in the case before us. The instructions do not give the jury the option of convicting the defendant without first finding the crime has been committed. In fact, C-ll is taken almost verbatim from the Fifth Circuit’s model instruction adopted by the Mississippi Supreme Court in order to “cure future problems regarding this issue.” See Milano, 790 So.2d at 185(¶ 21). Accordingly, Sneed’s plain-error argument is without merit.

¶ 47. In conclusion, we find the jury instructions, when read together, properly state the law and do not create an injustice.

5. Officer Magsby’s Statement (Brady).

¶ 48. Brady argues that the trial court erred in overruling his objections to alleged hearsay testimony presented by the State’s witness, Officer Magsby, as to what Brady said in his statements to law enforcement about the incident. On the stand, Officer Magsby testified that Brady, in his first statement, admitted that he kicked Fair and, after the assault, ran to Hampton’s apartment. In his second statement two days later to Officer Mags-by, Brady gave a slightly different statement that he kicked Fair and also hit him on the leg with the golf club. Brady now claims this statement prejudiced him, as “the jury was allowed to consider this testimony as fact.”

¶ 49. This Court’s standard of review for the admission or exclusion of evidence is an abuse of discretion. Ladnier v. State, 878 So.2d 926, 933(¶27) (Miss.2004). Reversal will not occur “unless the error adversely affects a substantial right of a party.” Id. (quoting Whitten v. Cox, 799 So.2d 1, 13(¶ 27) (Miss.2000)). Hearsay is an out-of-court statement offered by a declarant to prove the truth of the matter asserted. M.R.E. 801(c). However, admissions by a party-opponent offered against that party at trial are not hearsay. M.R.E. 801(d)(2)(A). “Extrajudicial state-merits by a criminal defendant, so long as the statements are relevant to the matter being tried, are admissible in evidence.” Cobb v. State, 734 So.2d 182, 185(117) (Miss.Ct.App.1999) (citing M.R.E. 801(d)(2)(A); Gayten v. State, 595 So.2d 409, 414 (Miss.1992)). Here, Officer Mags-by’s testimony about Brady’s admissions was not hearsay.

¶ 50. Brady also argues that Officer Magsb/s statement unfairly prejudiced him. Certain evidence, while relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” M.R.E. 403. We do not find the probative value of Officer Magsb/s testimony was outweighed by its prejudice. Therefore, the trial court did not err in overruling Brady’s objection to this testimony.

6. Cumulative Error (Brady, German).

¶ 51. Brady and German argue that due to the cumulative ■ effect of the errors, their convictions should be reversed. However, neither defendant raised this argument before the trial court; therefore, they are proeedurally barred from raising this issue on appeal. See Gibson v. State, 731 So.2d 1087, 1098(¶ 30) (Miss.1998).

¶ 52. Procedural bar notwithstanding, this issue is also without merit. Our supreme court has held: “Where there is no error in any one of the alleged assignment of errors, there can be no error cumulatively.” Hughes v. State, 892 So.2d 203, 213(¶ 29) (Miss.2004) (citing Davis v. State, 660 So.2d 1228, 1261 (Miss.1995)). Since Brady and German fail to show any individual errors, there can be no cumulative error.

CONCLUSION

¶ 53. After a careful review of the trial court record and the arguments raised by each of the defendants, we find no issue justifying reversal. Therefore, we affirm the Defendants’ convictions and sentences.

¶ 54. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR EACH APPELLANT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO APPELLANTS BICKHAM, BRADY, GERMAN, AND SMITH AND TO COA-HOMA COUNTY ON BEHALF OF APPELLANT SNEED.

KING, C.J., LEE and MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON and MAXWELL, JJ., CONCUR.

      . Brady also renewed his motion at the end of trial and after Bickham's closing argument.

      . The Sixth Amendment to the United States Constitution states, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him....” U.S. Const, amend. VI.

      . The Defendants’ written statements were not introduced; only Officer Magsby’s testimony about the statements was introduced.

      . Juiy instruction C-10 states: “if two or more persons are engaged in the commission of a felony, then the acts of each in the commission of such felony are binding upon all and all are equally responsible for the acts of each.”

      .While Brady mentions a “motion for a new trial,” which relates to the weight of the evidence, in the heading of his brief regarding the sufficiency of the evidence, he does not offer any legal authority or argument on the weight of the evidence. Appellate courts are under no duty to consider assignments of error when the appellant fails to make legal argument or cite authority in support of it. Walker v. State, 823 So.2d 557, 563(¶ 13) (Miss.Ct.App.2002) (citing Drennan v. State, 695 So.2d 581, 585-86 (Miss.1997)). Accordingly, while we have no duty to consider this issue for Brady, we do so through an exercise of our discretion.

      . On appeal, Smith and Sneed did not contest the sufficiency of the evidence, only the weight of the evidence.

      . Several of the defendants also state that the evidence before the jury shows they only kicked Fair lightly, in a "[g]et up. Come on. Let's fight” kind of kick; however, this phrase was actually Sneed’s defense counsel's words during the cross-examination of Foster.

      . German contests jury instructions C-10, C-11, C-12, and C-16; Smith contests C-16 in conjunction with C-l 1, as does Sneed.

      . While the defense attorneys did not object to this instruction at trial, the State did, arguing that once they produced evidence tending to show the defendant shared a “community of intent,” each specific defendant did not have to show intent. The trial judge overruled the State's objection.


author: KING, C. J.,

text:
    Cavin Earl REED, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00573-COA.
    Court of Appeals of Mississippi.
    Sept. 15, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied March 25, 2010.

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

for the Court.

¶ 1. Cavin Earl Reed appeals his conviction of murder and sentence of life in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole. Reed raises four assignments of error: (1) whether the evidence was legally sufficient; (2) whether the verdict is against the overwhelming weight of the evidence; (3) whether the trial court erred in sentencing Reed as a habitual offender; and (4) whether Reed’s constitutional right to a speedy trial was violated. Finding no error, we affirm.

FACTS

¶ 2. During the early morning hours of August 3, 2006, Reed and his girlfriend, Angeline Lawanna Combs, got into an argument at her apartment located at the Kessler Bay Villa Apartments in Biloxi, Mississippi. As a result of the argument, Combs sustained two gunshot wounds and cuts from either being pushed against or trying to escape through a window in Combs’s bedroom. Reed placed Combs in the passenger seat of her car. The car, containing Combs’s body, was found abandoned on Interstate 110.

¶ 3. Aisha Carson, a neighbor, who heard the commotion and witnessed some of the altercation, contacted the Biloxi Police Department. When the police arrived at the Kessler Bay Villa Apartments, they were alerted to the broken window in an upstairs apartment. As Patrolman Michael Brennan approached the stairwell to Combs’s apartment, he observed several drops of blood leading to the apartment. Seeing no signs of forced entry at Combs’s apartment door, Patrolman Brennan knocked loudly on the door several times and announced that it was the police. After getting no response, Patrolman Brennan checked the doorknob and entered the unlocked door. The officer found two small children, later identified as Combs’s daughters, asleep on the sofa in the living room. Patrolman Brennan followed the droplets of blood and pieces of blood-smeared glass to the master bedroom, where it appeared that a disturbance had occurred.

¶ 4. While investigating, officers were told by a resident that Reed and Combs had left in Combs’s car. A description of Combs’s car was given to patrol officers on duty who began patrolling the area in an effort to locate the vehicle. While traveling south on Interstate 110, Officer Eugene Palmer spotted a vehicle that fit the description of Combs’s car parked on the shoulder on the northbound side of the Interstate 110 drawbridge that connects D’Iberville and Biloxi. Officer Palmer approached the car, and found Combs’s body slumped backwards in the front passenger seat; Combs’s body was covered in blood.

¶ 5. At that point, the authorities began a search for Reed. Investigator Michael Brown with the Biloxi Police Department went to the home of Reed’s mother, Pearlie Mae Reed, to inquire as to Reed’s whereabouts. While Investigator Brown was at Pearlie Mae’s home, Reed telephoned his mother. Reed agreed to turn himself in to the authorities if Investigator Brown would come and get him. During the call, deputies with the Harrison County Sheriffs Department arrived at Reed’s location and took him into custody.

¶ 6. After being taken into custody, Reed was read his Miranda rights. Reed signed a waiver of rights form and spoke with the authorities. During his interview, Reed described the events of the night to the authorities as he remembered them. Reed also informed the authorities of the location of the gun that he had used in the shooting.

¶ 7. During the February 2007 term of court, a Harrison County grand jury indicted Reed for murder. On March 20, 2008, Reed was tried and convicted of murder and sentenced as a habitual offender to life in the custody of the MDOC without the possibility of parole. Reed filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV), which was denied. Aggrieved, Reed timely appeals.

ANALYSIS

I. Legal Sufficiency

¶8. Reed asserts that the State failed to prove that he acted with deliberate design to commit murder; therefore, he contends that at most he was guilty of manslaughter. Reed claims that when he shot Combs, he was acting in self-defense. Reed also contends that the trial court erred by not granting a directed verdict pursuant to Weathersby v. State, 165 Miss., 207, 147 So. 481 (1933). Reed claimed that he was the only eyewitness to Combs’s death and relies on the Weathersby Rule, which provides that:

[Wlhere the defendant or defendant’s witnesses are the only eyewitnesses to the homicide, then- version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the [Sjtate, or by the physical facts or by the facts of common knowledge.

Id. at 208, 147 So. at 482.

¶ 9. Reed was indicted for murder pursuant to Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006). Therefore, the State was required to prove that: (1) a person was killed without the authority of law, and (2) the killing was done with the deliberate design to effect the death of the person killed or of some other person.

¶ 10. The supreme court has previously stated that:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for a directed verdict or for [a] judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. However, this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Bush v. State, 895 So.2d 836, 843(1116) (Miss.2005) (internal quotations omitted). If the evidence favors the defendant as to any element of the offense such that a reasonable juror could not find the defendant guilty beyond a reasonable doubt, then the motion for a JNOV should be granted. However, if on the other hand the evidence is such that a reasonable juror could reach a different conclusion on every element of the offense, then the evidence is deemed to be sufficient. Edwards v. State, 469 So.2d 68, 70 (Miss.1985).

¶ 11. We find that there was sufficient evidence from which a jury might find Reed guilty of murder. Reed gave a videotaped statement, which was introduced at trial. Reed’s statement provided that Reed and Combs were watching a movie. After watching the movie for the second time, Reed went to the master bedroom at approximately 3:00 a.m. to smoke a cigarette and then go to bed. Combs followed Reed into the bedroom and began teasing him in a sexual manner. Because Combs would not engage in sexual intercourse, Reed left the bedroom in frustration and went to the living room. Having forgotten his cigarettes, Reed returned to the bedroom, but he found the door locked. Reed obtained a screwdriver and dismantled the door knob.

¶ 12. Reed told Combs he was going to get his cigarettes and leave. In response, Combs told him that only death would separate them and asked Reed if he remembered that she had two guns. Combs grabbed the screwdriver and lunged at Reed, cutting his finger. Reed started to leave, but Combs took a gun from a shoebox in the closet, placed it on the bed, and told Reed that he was not going anywhere. Shortly thereafter, Combs reached inside the closet again as if she was getting the second gun. Combs then turned toward Reed with one hand behind her back and the screwdriver in the other. Reed grabbed the first gun off the bed in order to put its safety on. At that time, Combs drew her hand from behind her back toward Reed acting like she was going to shoot Reed and said, “BOOM.” Reed claimed he instinctively fired one shot. However, when Combs lunged toward Reed with the screwdriver, he fired several more shots.

¶ 13. Reed stated that Combs then attempted to go out the bedroom window, but he pulled her back inside to take her to the hospital. On the way to the hospital, the car stopped and became inoperable. Reed got out the car to go for help, abandoning Combs. Reed hitched a ride to his nephew’s house to call for help. Reed stated that because there was no telephone available at the house, Reed took his nephew’s car to get help. However, while driving, the two front tires on the vehicle blew out, so he hitched a ride to his uncle’s house. He then telephoned his mother and his sister and explained what had happened. Reed stated that when he contacted his mother, Ms. Reed, she was already speaking to Investigator Brown about Reed’s whereabouts. Reed was arrested later that morning at his uncle’s home. Reed stated that because he was frustrated and had not taken his psychotropic medicine in several days before Combs attacked him, he snapped at that moment. He claimed that he did not recall exactly how many shots he fired after the first shot, and he did not remember where Combs was shot.

¶ 14. Carrissia Martin, a long-time acquaintance and friend of both Reed and Combs, testified that Reed came to her apartment twice, prior to the shooting, distraught over his relationship with Combs. Reed came to Martin’s apartment two weeks prior to Combs’s death and two days prior to Combs’s death. He stated that he was sick and tried of Combs cheating on him. Martin testified that during the second visit, Reed told her he was going to kill Combs.

¶ 15. Carson testified that at approximately 4:00 a.m., she heard a commotion coming from the bedroom in Combs’s apartment. Carson telephoned the police. During the call, Carson heard noise coming from' the balcony area, so she stepped outside onto her balcony. While standing on the balcony, Carson observed Combs being pushed in and out of her bedroom window a couple of times. Carson also testified that she heard Combs say, “I give in,” a couple of times. Shortly thereafter, Carson saw Combs’s car leaving the apartment complex.

¶ 16. Crime scene investigator, Michael Reid, recovered three Winchester .380 caliber casings in the master bedroom, one bullet on the floor just under the broken window in the master bedroom, a bullet fragment in the northwest corner of the bedroom, a bullet in the west wall of the master bedroom, a bullet in the back of the front door, four 9mm bullets underneath the mattress, and a shoebox on the top shelf inside the closet that contained a Makarov 9mm semi-automatic handgun. Investigator Reid testified that he also found a bullet in the living room door and a brass jacket of a bullet on the floor in front of the television in the living room.

¶ 17. The State also presented the results of Combs’s autopsy, which was performed by Dr. Paul McGarry, a forensic pathologist. Dr. McGarry testified that Combs had cut wounds on the soles of her feet, on the back of her wrists, and fingernails. Combs also had a bruise on the front of each shoulder, a one and one-half inch abrasion on her left knee, and a smaller abrasion on her left ankle where the skin was rubbed away as if she had fallen on a rough surface. Dr. McGarry stated that Combs sustained two gunshot wounds. “Wound A” was described as having been made by a bullet that entered Combs’s right cheek, traveled upward and backward, slightly rightward, and came out at the base of Combs’s ear. “Wound B” was described as having been made by a bullet that entered the back of Combs’s shoulder, went upward, came out the top of her shoulder, reentered her neck, and then exited Combs’s mouth. Dr. McGarry testified that the entry of Wound B indicated that the back of Combs’s right shoulder was toward the shooter. Dr. McGarry also stated that, although Wound B was considered more life threatening and was likely the cause of death, had Combs obtained proper medical treatment within an hour or sooner, it would have been possible to control Combs’s bleeding.

¶ 18. Reed’s version of the events is contradicted by the testimony of others and the physical evidence. Thus, a reasonable juror could have found beyond a reasonable doubt that Reed did not act in self-defense, but acted with deliberate design to commit murder. Therefore, this issue is without merit.

II. Weight of the Evidence

¶ 19. Reed argues that his murder conviction is against the overwhelming weight of the evidence.

¶ 20. “This Court will ‘only disturb a jury verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.’ ” Wilson v. State, 956 So.2d 1044, 1049(¶ 19) (Miss.Ct.App.2007). The Court stated that:

In determining whether a jury verdict is against the overwhelming weight of the evidence, the court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.... Thus, the scope of review on this issue is limited in that all evidence must be construed in the light most favorable to the verdict.

Boyd v. State, 754 So.2d 586, 590(¶ 11) (Miss.Ct.App.2000) (internal citations omitted).

¶ 21. Based on the evidence contained in the record before this Court, we find that the jury verdict is not against the overwhelming weight of the evidence. We have detailed the relevant evidence in the prior discussion on the sufficiency of the evidence; therefore, we will not repeat it here.

¶ 22. Reed chose to rest his case without calling any witnesses on his behalf. The only evidence presented at trial as to Reed’s theory of self-defense and his belief that he was at most guilty of manslaughter was his statement to the authorities. The jury was allowed to view the videotape during the trial. The jury was instructed on murder, manslaughter, and self-defense; however, the jury found Reed guilty of murder. Viewing the evidence in the light most favorable to the verdict, we find that the jury’s verdict is not against the overwhelming weight of the evidence. Therefore, this issue is without merit.

III. Habitual Offender

¶ 23. Reed argues that the State failed to prove that he had been sentenced to and actually served separate terms of one year or more on each of his prior felony convictions; therefore, he contends the trial court committed error in sentencing him as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2007).

¶ 24. Section 99-19-83 of the Mississippi Code Annotated, one of this state’s two habitual offender statutes, provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added).

¶ 25. On March 12, 2008, the State filed a motion to amend the indictment against Reed to allege habitual offender status pursuant to section 99-19-83. On March 13, 2008, the trial court conducted a hearing to determine whether to amend the indictment to allege that Reed was a habitual offender. During this hearing, the State offered three documents in support of its request to amend the indictment.

¶ 26. The first document was an order from the Second Judicial District of the Circuit Court of Harrison County, in Cause No.2000-86, dated October 2, 2000, indicating that Reed had entered a plea of guilty to a charge of possession of a controlled substance. Upon the State’s recommendation, the trial judge sentenced Reed to three years, but the judge reduced that to time served, followed by three years of probation.

¶ 27. The second document, styled as Post-Release Supervision from the Second Judicial District of the Circuit Court of Harrison County, dated April 21, 2003, indicated that Reed had entered a plea of guilty to the crime of simple assault upon a law enforcement officer in Cause No.2003-18 and was sentenced to serve a term of five years in the custody of the MDOC suspended for time served, which was approximately nine and a half months.

¶ 28. The third document was an order from the Second Judicial District of the Circuit Court of Harrison County dated January 8, 2004, revoking Reed’s probation on the charge of simple assault upon a law enforcement officer. The Circuit Court of Harrison County sentenced Reed to serve five years in the custody of the MDOC.

¶ 29. At the conclusion of the hearing, the trial court granted the State’s motion to amend the indictment to allege that Reed was a habitual offender pursuant to section 99-19-83. Deliberating after the trial, the jury returned a verdict of guilty of murder, which the trial court accepted and proceeded to conduct a sentencing hearing. The trial court inquired whether the State had the supporting documents to establish habitual offender status as alleged in the amended indictment. The prosecutor responded yes, and then stated:

[THE PROSECUTOR]: That on October 2, of 2000, Mr. Reed was convicted in the Circuit Court of Harrison County Second Judicial District, Cause Number 2000-86, a felony possession of a controlled substance. Mr. Reed was sentenced to a sentence of three years. That three years was suspended for time served. We have calculated that time he spent in jail as 16 months and 15 days.
Then also in April 2003 Mr. Reed was convicted in the Circuit Court of Harrison County Second Judicial District in Cause Number 2003-18 of the felony of simple assault on a law enforcement officer. And Mr. Reed was sentenced to a term of incarceration of five years.

¶ 30. The trial court received no further evidence, and it immediately sentenced Reed, as a habitual felon, to a mandatory life sentence, without parole, for the crime of murder. Reed offered no objection to the proof offered during the sentencing hearing or to the sentence.

¶ 31. On March 21, 2008, Reed filed a motion for a new trial or, alternatively, for a JNOV. While that motion raised several issues, it did not raise an issue as to the lack of proof to support habitual offender status pursuant to Mississippi Code Annotated section 99-19-83. As a general rule, this Court does not address issues that were not first submitted to the trial court. However, under the Mississippi Rules of Appellate Procedure, this Court retains the authority to address as plain error, matters not otherwise properly before the Court. M.R.A.P. 28(a)(3); Smith v. State, 984 So.2d 295, 307(¶ 43) (Miss.Ct.App.2007). Because Reed argues the illegality of his sentence, this Court deems it appropriate to address this matter as plain error.

¶ 32. We find that the trial court erred in sentencing Reed as a habitual offender pursuant to section 99-19-83, because the State failed to prove that Reed had served two separate terms of at least one year in a state or federal penal institution. However, we find this error to be harmless.

¶ 33. We find that the evidence was sufficient to find Reed to be a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007). Section 99-19-81 differs from section 99-19-83 in that it merely requires proof of conviction of two prior felony offenses, and it does not require proof that the time was actually served. Section 99-19-81 mandates that a person convicted as a habitual offender receives the maximum sentence, which shall not be subject to reduction, suspension, or parole. Mississippi Code Annotated section 97-3-21 (Rev.2006) provides a mandatory life sentence in a non-capital offense case for a conviction of murder. When that sentence is enhanced pursuant to section 99-19-81, it becomes a life sentence without the possibility of suspension, reduction, or parole. This is the sentence imposed upon Reed. Where a trial court reaches the correct result, even if for the wrong reason, this Court may still affirm its actions. McClurg v. State, 870 So.2d 681, 682(¶ 6) (Miss.Ct.App.2004). Therefore, we find that this assignment of error is without merit.

IV. Speedy Trial

¶ 34. Reed was arrested on August 3, 2006, and remained incarcerated until his trial on March 18, 2008. Reed argues that his constitutional right to a speedy trial was violated because more than twenty months passed between his arrest and trial. Reed contends that there was a 593-day delay in bringing him to trial, only 109 days of which are attributable to him.

¶ 35. To determine if Reed’s constitutional right to a speedy trial has been violated, this Court applies a four-factor test developed by the United States Supreme Court. “First, the length of delay is considered; secondly, the reasons for the delay; thirdly], whether the defendant asserted his right to a speedy trial; and last[ly], whether the defense suffered any prejudice from the delay.” Manix v. State, 895 So.2d 167, 175-76(¶ 16) (Miss.2005) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). A delay of more than eight months is considered presumptively prejudicial; thus, it triggers an inquiry into the other three factors. However, this Court considers the totality of the circumstances when determining whether there was a speedy-trial violation. Muise v. State, 997 So.2d 248, 250(¶ 8) (Miss.Ct.App.2008).

¶ 36. In this case, the record indicates that Reed did assert a demand for a speedy trial, but he failed to obtain a pretrial ruling on his motion for a speedy trial. The supreme court has held that:

[A] party is obligated to seek a ruling on an objection or motion. A party making a motion must follow up that action by bringing it to the attention of the judge and requesting a hearing upon it. The movant bears the responsibility to obtain a ruling from the court on motions filed by him....

Craft v. State, 832 So.2d 467, 471(¶10) (Miss.2002) (internal citations and quotations omitted). “Thus, though a defendant has made a written speedy-trial motion, the defendant’s failure to bring the motion to the attention of the trial court and request a hearing results in a waiver of the issue for appeal.” Muise, 997 So.2d at 252(¶ 10).

¶ 37. The record indicates that on August 21, 2006, Reed filed a motion styled “Demand for Speedy Trial.” On March 11, 2008, Reed filed a motion to dismiss the charges pending against him because his constitutional right to a speedy trial was violated. However, Reed neither brought his motion to the attention of the trial court, nor did he request a hearing to obtain a ruling on whether his constitutional rights had been violated according to the Barker analysis. Therefore, Reed is procedurally barred from raising this issue for the first time on appeal.

CONCLUSION

¶ 38. There exists sufficient contradictory evidence to Reed’s version of the events of that night from which a reasonable juror could find that Reed did not act in self-defense, but he intended to cause Comb’s death. Examining the evidence in the light consistent with the verdict, we do not find that the verdict is against the overwhelming weight of the evidence. This Court finds that the trial court lacked sufficient evidence to sentence Reed as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83, but it had sufficient evidence to sentence Reed as a habitual offender pursuant to section 99-19-81. However, because the resulting sentence, whether under section 99-19-81 or section 99-19-83, would be the same, this Court finds the error to be harmless. Based on the foregoing analysis, we affirm the judgment of the trial court.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Section 97 — 3—19(1 )(a) states: "The killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed, or of any human being.”


author: ROBERTS, J.,

text:
    Joel D. HOLLOWAY, Appellant, v. Twyla M. HOLLOWAY, Appellee.
    No. 2008-CA-00676-COA.
    Court of Appeals of Mississippi.
    Oct. 27, 2009.
    Rehearing Denied Feb. 2, 2010.

      Thomas T. Buchanan, Laurel, John D. Smallwood, attorneys for appellant.
    Terry L. Caves, Laurel, Jerry Dean Sharp, attorneys for appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. This appeal follows Twyla Holloway’s successful counterclaim for a divorce based on Joel Holloway’s uncondoned adultery. On appeal, Joel claims the Jones County Chancery Court erred when it ordered him to pay Twyla $1,400 per month in child support. Joel also claims the chancellor erred when he ordered him to pay Twyla approximately $11,000 in attorneys’ fees. After careful consideration, we affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

¶ 2. Joel and Twyla were married on August 26, 1988. They had three children during their marriage. Their marriage deteriorated, and Joel and Twyla separated in June 2006. They had been living in Jones County at that time.

¶ 3. Joel filed a complaint for divorce and a motion for temporary relief. Joel claimed he was entitled to a divorce based on Twyla’s alleged cruel and inhuman treatment. Alternatively, Joel claimed that he and Twyla should divorce because they had irreconcilable differences.

¶ 4. Twyla filed an answer to Joel’s complaint. She also filed a counterclaim for a divorce based on uncondoned adultery or habitual cruel and inhuman treatment. Alternatively, Twyla also requested a divorce based on irreconcilable differences.

¶ 5. On June 12, 2007, the chancellor conducted the first part of what would be a bifurcated trial. The first part of the bifurcated proceedings involved Joel’s complaint for divorce and Twyla’s counterclaim for divorce. The testimony and other evidence that was introduced during the first part of the bifurcated proceedings will be discussed in greater detail as necessary. Suffice it to say, the chancellor did not find that Joel was entitled to a divorce based on Twyla’s alleged cruel and inhuman treatment, but the chancellor did find that Twyla was entitled to a divorce based on Joel’s uncondoned adultery.

¶ 6. The parties reconvened on August 7, 2007, and announced that Joel and Twyla had agreed on the division of their marital property. After presenting evidence on the remaining issues, including Joel’s child support obligation and Twyla’s request that Joel pay her attorneys’ fees, the chancellor took the remaining matters under advisement.

¶ 7. On February 7, 2008, the chancellor issued his findings of fact and conclusions of law. The chancellor found that Joel’s adjusted gross monthly income was $6,403.41. The chancellor then noted that Joel was obligated to pay Twyla 22% of that figure each month to support the children. Additionally, the chancellor recognized that because Joel’s gross annual income was more than $50,000, it was necessary to make written findings regarding whether it was reasonable to apply the statutory child support guidelines. The chancellor detailed that one of the children had been diagnosed with Attention Deficit Disorder (ADD). Joel and Twyla had enrolled that child in Heidelberg Academy, a private school, so she would receive more individual attention in a smaller classroom setting. The other two children also attended Heidelberg Academy. Based on the expenses that accompanied attending Heidelberg Academy, the chancellor found that “it [was] appropriate to deviate from the guidelines in this case based upon the special needs of [the child], [and] the extra expense of Heidelberg Academy which the parties agreed for the children to attend.”

¶ 8. The chancellor also addressed Twy-la’s request that Joel pay her attorneys’ fees. The chancellor noted that Joel did not object to the statement prepared by Twyla’s attorneys. Accordingly, the chancellor ordered Joel to pay Twyla $11,071.72 in attorneys’ fees. Aggrieved, Joel appeals.

STANDARD OF REVIEW

¶ 9. This Court leaves a chancellor’s findings of fact undisturbed when those findings are supported by substantial evidence unless the chancellor abused his discretion or was manifestly wrong. Flechas v. Flechas, 791 So.2d 295, 299(¶7) (Miss.Ct.App.2001). Additionally, we will also reverse the chancellor’s decision if the chancellor applied an erroneous legal standard. Id. However, we conduct a de novo review of questions of law. Morreale v. Morreals, 646 So.2d 1264, 1267 (Miss.1994).

ANALYSIS

I. CHILD SUPPORT

¶ 10. Joel finds fault in two aspects of the chancellor’s decision regarding his child support obligation. First, Joel claims the chancellor erred by incorrectly calculating his adjusted gross income. Second, Joel claims the chancellor erred in finding certain facts that influenced the chancellor’s child support determination.

A. CALCULATION METHODOLOGY

¶ 11. Mississippi Code Annotated section 43-19-101(3)(a)-(b) (Rev.2004) provides the parameters for determining a party’s adjusted gross income for child support purposes in the following manner:

(a) Determine gross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self[-]employment; income from commissions; income from investments ...; interest income and income on any trust account or property; absent parent’s portion of any joint income of both parents; ... annuity and retirement benefits ...; any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income....
(b) Subtract the following legally mandated deductions:
(i) Federal, state and local taxes. Contributions to the payment of taxes over and beyond the actual liability for the taxable year shall not be considered a mandatory deduction;
(ii) Social security contributions;
(iii) Retirement and disability contributions except any voluntary retirement and disability contributions[.]

¶ 12. The chancellor calculated Joel’s income by extrapolating figures from Joel’s pay stub for the week beginning May 30, 2007, and ending June 6, 2007. That pay stub indicated that Joel had been paid $31,912 over the course of the twenty-two weeks that had passed at that point in 2007. The chancellor stated that “[according to [Joel’s] wage statement through June 6, 2007, his annual adjusted gross income projected over 52 weeks was $76,840.92. This figure divided by 12 equals $6,403.41 per month as his adjusted gross income. Child support guidelines for three children calls for 22% which equals $1,408.75 per month.”

¶ 13. The chancellor did not specifically state how he reached his conclusion regarding Joel’s projected annual income. As best we can tell, the chancellor divided Joel’s year-to-date income of $31,912 by twenty-two weeks, and then multiplied the result by fifty-two weeks. However, when we perform that calculation, our result is a projected gross annual income of $75,428.36, rather than the chancellor’s projected “annual adjusted gross income” of $76,840.92.

¶ 14. In any event, it is important to note that Joel’s year-to-date earnings of $31,912 as of June 6, 2007, were his gross earnings, and none of the mandatory deductions set forth in section 43-19-101(3)(b) were subtracted from that figure. The pay stub that the chancellor used to form his calculations clearly indicated that Joel’s gross earnings up to that date were $31,912, and it also clearly reflected that, as of that date, Joel had paid a total of $6,904.65 in federal and state taxes, social security, and Medicare payments. The chancellor did not deduct those figures from Joel’s gross income of $31,912. The failure to do so is clear error, as section 43 — 19—101(3)(b) requires that those figures be deducted from a non-custodial parent’s gross income.

¶ 15. This Court dealt with a similar calculation error in Lee v. Stewart ex rel. Summerville, 724 So.2d 1093, 1097(¶ 9) (Miss.Ct.App.1998). In Lee, this Court held that, because a chancellor did not subtract the mandatory deductions from a non-custodial parent’s gross income, it was appropriate to reverse the chancellor’s award of child support and remand the matter to the chancery court for a recalculation of the child support obligation. Id. Having been unable to duplicate the chancellor’s calculations or determine that the chancellor subtracted the mandatory statutory deductions from Joel’s gross income, we remand this matter to the chancery court for a recalculation of Joel’s child support obligation. As Joel’s testimony indicated that he had sources of income aside from his primary employment on an off-shore oil platform, no portion of this analysis should be construed as a limitation of the sources of Joel’s income that the chancellor may consider or a directive that the chancellor is strictly limited to Joel’s June 6, 2007, pay stub or any other particular evidence including the evidence presented at the earlier court dates.

B. CHILD SUPPORT GUIDELINES

¶ 16. Joel claims the chancellor improperly deviated from the statutory child support guidelines. Joel raises issues regarding whether it was necessary for the three children to continue to attend Heidelberg Academy and whether the chancellor erred in finding certain facts. Additionally, a portion of Joel’s argument can also be described as an invitation to render a bright-line rule regarding the proper application of the child support guidelines and the statutory requirement that the chancellor make written findings as to whether following the statutory child support guidelines is reasonable when a non-custodial parent has an adjusted gross income greater than $50,000. See Miss. Code Ann. § 43-19-101(4) (Rev.2004). This is evident from the following excerpt from Joel’s brief:

Some courts deem the $50,000.00 amount as a hard cap and will set child support based upon that amount and will only deviate if a party provides a valid reason to do so. In other courts, the judges will apply the child support percentage upon the total adjusted gross income of a party and will deviate only if someone can pi’ovide a valid reason to do so. The ambiguity of the statute has left open the various applications by our courts. It would behoove both bench and the bar of this state for this Court to resolve the ambiguity so that a uniform application could be administered statewide.

¶ 17. We decline to render a.bright-line rule under the present circumstances. First and foremost, as we have remanded the chancellor’s calculation of child support, this issue is moot. As for Joel’s arguments regarding where the children attend school and his claims that the chancellor erred in finding certain facts, we decline to make any comments on the chancellor’s reasoning because any such comments may be unintentionally taken as directions on remand. Accordingly, we do not consider Joel’s arguments under this heading.

II. ATTORNEYS’FEES

¶ 18. As previously mentioned, the chancellor ordered Joel to pay Twyla $11,071.72 in attorneys’ fees. Joel claims the chancellor erred in that decision because Twyla did not present sufficient evidence that she could not pay her attorneys’ fees. According to Joel, because the chancellor awarded her the entire balance of her retirement account, Twyla had sufficient funds to pay her own attorney. Joel cites the Mississippi Supreme Court’s decision in Crowe v. Crowe, 641 So.2d 1100, 1105 (Miss.1994) for the proposition that if “a party is financially able to pay [his or] her attorney, an award of attorneys’ fees is not appropriate.”

¶ 19. “Generally the award of attorney’s fees in a divorce case is left to the discretion of the trial court.” Cheatham v. Cheatham, 537 So.2d 435, 440 (Miss.1988). We cannot find that the chancellor abused his discretion. As Twyla notes, the Mississippi Supreme Court has held that a chancellor does not abuse his or her discretion when he or she awards a former wife attorneys’ fees where, if she were to pay such fees herself, she would severely deplete her savings. Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Additionally, Twyla testified that she was unable to pay her attorneys’ fees and that she had to borrow money from her mother to pay a portion of her attorneys’ fees.

¶ 20. What is more, Joel’s numerous deceptions throughout the proceedings forced Twyla to incur additional attorneys’ fees. Joel unsuccessfully claimed that he was entitled to a divorce from Twyla because of her cruel and inhuman treatment of him. The basis of Joel’s claim was that Twyla did not give him what he considered to be sufficient attention, did not want to go out to eat, did not go to bed until he went to bed, and had not had sex with him for a year prior to their separation. However, most of Joel’s allegations do not rise to the level of cruel and inhuman treatment, and his claim that Twyla had not had sex with him for a year prior to the separation was contradicted by Twyla’s testimony.

¶ 21. Additionally, Twyla accused Joel of having an adulterous affair with Tracy Pryor. During the discovery process, Twyla asked Joel to admit that he had an extramarital affair, but Joel denied that he had. Joel maintained his denial in his responses to Twyla’s interrogatories. At trial, Joel denied that he had sex with anyone other than Twyla during their marriage. When asked whether he had sex with Tracy during the time he was married to Twyla, Joel evasively responded, “[tjhere’s no proof of it.” However, Tracy testified and admitted that she and Joel had sex while Joel was married to Twyla. Kathy Loper testified that she owned a tanning business and that Joel and Tracy frequently locked themselves in the same room. Those meetings took place during Joel’s marriage to Twyla. Again, Twyla was forced to incur additional legal expenses because of Joel’s lies and general obstinate evasiveness.

¶ 22. Joel was asked whether he was an alcoholic. Joel evasively responded, “not that I know of.” Despite his characterization that he was not an alcoholic, Joel testified that: (1) he attended Alcoholics Anonymous meetings; (2) he drinks “[t]wo or three times” each week; (3) he “gets drunk” approximately once a week, and he drinks “[pjrobably a good case” of beer to become drunk; (4) his drinking caused problems in his and Twyla’s marriage; (5) he “probably drank a couple [beers] before [one of the kid’s] ball game[s]”; (6) he had previously wrecked a car while under the influence of alcohol; (7) one week prior to the June 2007 hearing, he had been arrested for driving under the influence of alcohol; (8) “once or twice” he had driven with the children in his truck after he had been drinking; (9) his oldest daughter had to get him to pull his truck over so she could drive because she believed he was intoxicated; and (10) he had been admitted in a facility to treat an alcohol dependence. Again, Twyla was forced to incur additional attorneys’ fees to demonstrate a fact that Joel evasively denied in the face of overwhelming evidence. As the chancellor noted, “[b]eing untruthful to the Court has its penalties.”

¶ 23. We find no error in the chancellor’s decision to award attorneys’ fees. Twyla testified that she could not pay her attorneys’ fees. Joel did not object to the amount of fees that were requested. Twy-la persuasively argues that she would not have had to incur a portion of her fees if Joel had been truthful in many instances. Joel lied when he testified that he did not have an adulterous affair. He lied when he testified that he was not an alcoholic. Joel made an unfounded claim that he was entitled to a divorce based on Twyla’s cruel and inhuman treatment. That claim was dismissed pursuant to Mississippi Rule of Civil Procedure 41(b) after Joel rested his case. Accordingly, we find no merit to Joel’s argument on appeal.

III. ATTORNEYS’ FEES ON APPEAL

¶ 24. Twyla filed a motion for attorneys’ fees on appeal. Generally, this Court has awarded attorneys’ fees on appeal “in the amount of one-half of what was awarded in the lower court.” Lauro v. Lauro, 924 So.2d 584, 592(¶ 33) (Miss.Ct.App.2006). In Lauro, this Court granted the former wife’s request for attorneys’ fees despite the simultaneous finding that it was necessary to remand a separate matter regarding visitation. Id. at (¶ 35). Consequently, the fact that we are remanding the appropriate calculation of child support does not, in and of itself, preclude the possibility that we award attorneys’ fees on appeal. Accordingly, we grant Twyla’s motion for attorneys’ fees on appeal and award Twyla $5,535.86 — one-half of $11,071.72.

1125. THE JUDGMENT OF THE JONES COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE PARTIES.

KING, C.J., LEE AND MYERS, PJJ., GRIFFIS AND BARNES, JJ., CONCUR. IRVING, ISHEE AND MAXWELL, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Additionally, Twyla requested temporary relief. After a hearing, the chancellor entered a temporary order giving Twyla temporary primary physical custody of the children and ordering Joel to pay temporary child support.

      . Joel testified that when he was not working off-shore, he sometimes worked for his brother-in-law’s metal roofing company. Joel testified that he earned $350 in one week and that he was paid in cash. When asked about that income, Joel testified as follows:
      Let me clarify this for you. Get it straight right here. I want to nip it in the bud. Whenever I come home from work, I went and helped them the last time I was home for one week. I helped him a little bit yesterday. I do that because I want to.
      Joel also testified that the money he earned working for his brotber-in-law was “for [his] benefit and [his] benefit only” and that it was "money [he] made for [him]self to benefit [him]." When asked whether he was going to report that income on his tax returns, Joel said, "I doubt it.” When Twyla’s attorney asked whether Joel planned to continue to earn extra money working for his brother-in-law, Joel testified, "I don’t think that's none [sic] of nobody [sic] else’s business” and that "you just keep digging and digging and digging; and that’s burning me up.”