author: IRVING, J.,

text:
    Mary MARTIN, Appellant, v. Tammy WEATHERFORD and Richard Williams, Appellees.
    No. 2007-CA-01990-COA.
    Court of Appeals of Mississippi.
    Sept. 8, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Denied April 1, 2010.

      Eric T. Hamer, Jackson, Michael Verdi-er Cory, attorneys for appellant.
    William Noel Harris, attorney for appel-lees.
    Before MYERS, P.J, IRVING and ROBERTS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Tammy Weatherford filed an action in the Washington County Circuit Court to recover damages for injuries she sustained when Mary Martin rear-ended a vehicle in which Weatherford was a passenger. Martin did not contest liability. After a bench trial to determine damages, the trial judge awarded Weatherford $28,058.86 in medical expenses and $368,550 in past and future pain and suffering. Aggrieved, Martin appeals and asserts that the trial judge’s findings, in several respects, are not supported by substantial evidence. She also asserts that the trial judge erred in admitting into evidence life expectancy tables because they were not tendered to her prior to trial pursuant to the rules of discovery.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On January 9, 1998, Martin rear-ended a vehicle in which Weatherford was a passenger. Weatherford was not wearing her seatbelt at the time. Shortly after the accident, Weatherford sought treatment for head and neck pain at Delta Regional Medical Center (Delta Regional) in Greenville, Mississippi. While at the hospital, X-rays were taken of Weather-ford’s skull and facial series, and a study was made of her cervical spine. All of those test results were normal. However, she was diagnosed with a left scalp hema-toma and multiple sprains and strains.

¶ 4. A few days later, Weatherford visited Dr. Joe Pulliam, complaining of increasing spasms in her neck, as well as occasional numbness and tingling in her fingers and hands. Dr. Pulliam’s notes indicate that Weatherford’s neurological examination was normal. He recommended that she continue taking medications that she had been prescribed on the day of the accident. Weatherford saw Dr. Pulliam again in February 1998. On this visit, Dr. Pulliam concluded that the spasms in her neck had decreased significantly and that she had full range of motion. Weather-ford also had full range of motion again on March 17, 1998. At that time, Dr. Pul-liam noted that, due to her “chronic intermittent low back pain,” he planned to refer Weatherford to a specialist for further evaluation.

¶ 5. On April 13, 1998, Weatherford saw Dr. Michael Steuer, a pain management specialist. During this visit, Weatherford primarily complained of occasional headaches, shooting pain in her shoulders, and pain in her neck that radiated down into her lower back. Dr. Steuer diagnosed Weatherford with cervical and thoracic whiplash injury, myofascial syndrome, and mixed headache disorder. He also noted that Weatherford had trigger points located in the muscles adjacent to her thoracic spine. Weatherford saw Dr. Steuer on several occasions and exhibited only minimal improvement; therefore, Dr. Steuer decided to perform trigger point injections to see if Weatherford would receive any relief. Weatherford received her first trigger point injection on May 11 and returned for a follow-up visit with Dr. Steuer on May 19. On her return visit, she expressed that her lower back pain had decreased by sixty percent and did not complain of headaches on this visit. However, she complained of slight tension across the back of her shoulder blades.

¶ 6. Weatherford returned to Dr. Steuer on June 1,1998, complaining of upper back pain. As a result, Dr. Steuer performed trigger point injections in Weatherford’s right rhomboid muscle and her right shoulder blade. Dr. Steuer saw Weather-ford again on June 5, 1998. During this visit, Weatherford reported that her pain was essentially unchanged and that she was often awakened by it. Dr. Steuer increased her medication and suggested that she try physical therapy.

¶ 7. Then, on June 15, Weatherford reported that her back pain had improved by approximately fifty percent. Also, during this visit, she denied suffering from headaches. Weatherford reported significant improvement as it related to her back pain during a visit on July 21. Dr. Steuer recommended that she continue with physical therapy for another month and continue taking medications that he had previously prescribed.

¶ 8. Dr. Steuer did not see Weatherford again until September when she stated that the pain in her back had been reduced by approximately fifty percent but she also complained of right shoulder pain. Dr. Steuer prescribed her the same medications that she had previously been taking and recommended that she return in three weeks for trigger point injections. Thereafter, on October 1, 1998, Weather-ford reported that the pain in her back and shoulder had decreased by approximately sixty to sixty-five percent. On October 27, Weatherford complained of increased pain in the evenings but declined further trigger point injections, instead opting to continue physical therapy. Dr. Steuer last saw Weatherford on November 12, 1998. At this visit, her complaints remained the same as they had been on October 1 and October 27.

¶ 9. Dr. Steuer testified via deposition. He stated that he did not order any MRIs, CT scans or the like, because he elected “instead to treat her symptomatically [sic] and [would] only ... order an MRI if she failed considerably [sic] to treatment.” According to Dr. Steuer, Weatherford’s symptoms, if left untreated, would worsen.

¶ 10. Dr. Steuer was presented with Dr. Winston T. Capel’s medical notes, whom Weatherford saw on October 7, 2003. Dr. Steuer testified that Dr. Ca-pel’s notes indicate that, based on Weath-erford’s history and physical examination, he diagnosed her with cervical spondylitic myelopathy and recommended that she undergo a cervical myelogram and post-mye-logram CT. When Dr. Steuer was asked whether he agreed with Dr. Capel’s findings, Dr. Steuer stated that “[i]t is a diagnosis that I might make.”

¶ 11. Further, Dr. Steuer stated that Weatherford’s problems were not caused by weight and that her symptoms developed immediately following “the trauma.” As for his opinion as it relates to Weather-ford’s X-rays taken immediately after the accident, he stated that they were essentially useless as a “diagnostic modality” because they are “non-sensitive for making a diagnosis of cervical disk [sic] and/or facet pathology.” Dr. Steuer also stated that he thought that Weatherford’s complaint of right shoulder pain “is very likely related to the cervical spinal pathology” and that Weatherford’s headache disorder, whiplash injury, and myofascial syndrome are all casually related to the accident.

¶ 12. After leaving Dr. Steuer’s care, Weatherford presented herself at King’s Daughters Hospital and Delta Regional on numerous occasions over the years that followed for pain that she claimed was associated with the accident as well as for injuries and conditions that she did not relate to the accident. For example, on September 23, 2000, she went to King’s Daughters complaining of back and right arm pain and then on November 5, 2000, she went to Delta Regional after she was hit in the jaw with a fist while attempting to break-up a fight.

¶ 13. On March 28, 2003, Weatherford had an MRI taken of her cervical, thoracic, and lumbar spine. The cervical spine MRI results revealed the following: “suboptimal evaluation of the lower cervical cord secondary to motion artifact, an element of mild spinal stenosis must be considered at C5-6 and C6-7 levels. Cervical Myelo-gram with CT scanning may be of value to ascertain whether significant disease is present.” The examination of Weather-ford’s thoracic and lumbar spine showed “no evidence of disc herniation or spinal stenosis.”

¶ 14. On August 15, 2004, Weatherford went to King’s Daughters complaining of a shooting pain in her right arm and a history of back trouble. Then, on March 17, 2005, she had a second MRI of her cervical, thoracic, and lumbar spine. The impression from the MRI of her cervical spine reads as follows: “Mild to moderately significant midline disease at C4-5 through C6-7, this convex signal equivocal as to spondylosis or protruding disc. As mentioned above, better resolution on the axials would be very helpful utilizing the 1.5 tesler magnet.” The results of the examination of the thoracic spine revealed no abnormalities and the results of the examination of the lumbar spine revealed no positive findings. Weatherford had a final MRI on March 14, 2007. The results of the examination of her cervical spine revealed no significant findings. The results of the examination of her thoracic and lumbar spine were normal.

¶ 15. Weatherford was referred to Dr. Lenard Rutowski by Debbie Verble, a nurse practitioner at Delta Regional Rural Health Clinic. Weatherford saw Dr. Ru-towski on March 29, 2007. Like Dr. Steuer, Dr. Rutowski provided deposition testimony. He stated that Weatherford’s basic complaints were neck pain that extended to the shoulder area and down into the third and fourth fingers on her right hand. He further stated that Weatherford expressed that she had major problems with her right side. Dr. Rutowski performed a neurological examination which revealed that Weatherford’s strength and sensation were normal and that her reflexes were symmetrical. Dr. Rutowski also pointed out that Weatherford had difficulty moving her neck to the right side and that her range of motion was diminished on the right side. He also noted that the examination did not reveal any nerve dysfunction.

¶ 16. Dr. Rutowski testified that he reviewed an MRI that Weatherford brought with her when she came to him for treatment and that he diagnosed her with sten-osis. He also testified that the diagnosis of stenosis is significant because of Weath-erford’s age. Further, Dr. Rutowski was not certain whether he had reviewed the results of Weatherford’s 2003 or 2005 MRI; however, he was certain that he did not review the results of her 2007 MRI. When asked to give Weatherford’s prognosis as of March 2007, he stated responded in the following manner:

The problem I have in regards to giving you a prognosis is this. We’re dealing with '98 to '07. I don’t find anything on the exam indicating nerve dysfunction. All the symptomatology here is subjective. There’s no objective findings. The only objective finding on this evaluation is basically the films — are the films and the abnormality on the films.

Then, Dr. Rutowski was asked whether the abnormalities reflected on the film were significant. He answered by saying that:

It’s significant if, for the most part — not considering this case, but just looking at the MRI it is significant depending on symptomatology, what the findings are on the examination, and how much this interferes with the patient’s lifestyle. So in that sense it can be significant. The problem I have in this case is that here we’re nine years down the way. I can’t see it as overly significant considering the fact that there’s nothing on the exam that indicates there’s nerve dysfunction.”

As for surgery being an option for Weath-erford, Dr. Rutowski stated that “surgery is an option for her based on her sympto-matology. But in the context of the motor vehicle accident and whatever, I’m having a hard time putting that all together.” Dr. Rutowski testified that since the complaints are being made five years after the accident, he would have expected either numbness or weakness to show up on the exam or something neurological that would indicate to him that there is a significant abnormality.

¶ 17. Dr. Rutowski stated that the MRIs that were done in 2003 and 2005 were open MRIs. He explained that there is usually trouble with the quality of the film on open MRIs, as they are very sensitive and can be negatively impacted by deep breaths and movement, among other things. Dr. Rutowski explained that this is evidenced by the finding of suboptimal evaluation on the 2008 MRI and the finding on the 2005 MRI that “better resolution on the axials would be very helpful utilizing the 1.5 tesler magnet.”

¶ 18. Dr. Rutowski concluded that it is unlikely that the accident caused Weather-ford’s stenosis. Nevertheless, he testified that if Weatherford had a predisposition to spinal stenosis, then the trauma from the accident could have exacerbated the symp-tomatology. Dr. Rutowski noted that it is difficult to make a correlation between the accident and Weatherford’s symptoms because an MRI was not done within a reasonable time after the accident. Accordingly, he stated that had an MRI been done within a month or so of the accident that showed stenosis he could say that the stenosis was exacerbated by the accident. Dr. Rutowski stated that, despite the lack of an immediate post-accident MRI, he feels that there is “some correlation between the accident and [Weatherford’s] symptomatology.” According to Dr. Ru-towski, this finding is based on the fact that Weatherford’s history has remained consistent since the accident.

¶ 19. Weatherford filed an action on February 1, 1999, against Martin to recover damages for her injuries. The Washington County Circuit Court heard this case on May 17, 2007. Weatherford testified that pi’ior to the accident she had not had any muscular or nerve problems. However, she stated that she had been involved in motor vehicle accidents in either 1986 or 1987, in 1994, and in 2001. Weatherford stated that she rear-ended another vehicle in either 1986 or 1987. Weather testified that she did not receive any treatment following this accident. Then, in 1994, Weatherford was riding as a passenger in a vehicle when another driver ran a red light and hit the vehicle that she was riding in. According to Weatherford, she hit her head on the vehicle’s rear-view mirror. As a result, she went to the hospital where she was treated and released. Finally, in 2001, again while riding as a passenger in a vehicle, Weatherford was involved in a motor vehicle accident. She recalled that she suffered bruising and that she went to the emergency room where she was treated and released.

¶ 20. Weatherford also testified about how her life has changed since the 1998 accident and the steps that she takes to alleviate the pain that she experiences daily. Following the hearing, the circuit court, finding that Weatherford’s injuries and damages are uncontradicted by the record, awarded her $28,058.86 in medical expenses and $368,550 in past and future pain and suffering.

¶ 21. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 22. “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.” Brewer Constr. Co. v. David Brewer Inc., 940 So.2d 921, 925(¶ 19) (Miss.2006) (quoting Donaldson v. Covington County, 846 So.2d 219, 222[2] [(¶ 11)] (Miss.2003)). Also, it is well settled that an appellate court “will respect the [trial] court’s findings of fact when they are supported by reasonable evidence in the record and are not manifestly wrong.” Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992). Further, it is undisputed that a trial judge is charged with determining the credibility of witnesses when he sits as the finder of fact. Yarbrough v. Camphor, 645 So.2d 867, 870 (Miss.1994).

1. Substantial Evidence

¶ 23. Martin asserts that the judgment of the circuit court should be reversed because several findings made by the trial judge are not supported by substantial evidence. We address Martin’s argument as it relates to each instance separately.

(a) Dr. Rutowski

¶ 24. In her first issue, Martin asserts that the trial judge’s findings as they relate to Dr. Rutowski are not supported by substantial evidence. First, Martin contends that the trial judge erred in finding that Dr. Rutowski reviewed Weatherford’s MRI taken on March 14, 2007. The trial judge stated the following in his findings of fact:

On March 14, 2007, Ms. Weatherford received a third MRI. On March 29, 2007, this MRI was reviewed by Dr. Rutowski, a board certified neurologist. Dr. Rutowski determined that Ms. Weatherford suffered from “mild steno-sis” or bulging disk [sic] in her cervical spine at C5-6 and C6-7. According to Dr. Rutowski, 80-90% of similar cases are caused by genetics. Dr. Rutowski recommended that Ms. Weatherford have surgery, which she has yet to undergo.

As noted, Dr. Rutowski testified that he had reviewed either Weatherford’s 2003 or 2005 MRI but definitely not her 2007 MRI. Martin contends that this is significant because the 2007 MRI did not reveal any significant findings or abnormalities, while the 2003 and 2005 MRIs do reveal abnormalities and the presence of motion ai’ti-fact or suboptimal evaluation. Nevertheless, the trial judge determined that Dr. Rutowski found that Weatherford suffered from mild stenosis or a bulging disc even though the 2007 MRI did not reveal any abnormalities.

¶ 25. We conclude that Martin correctly points out that the trial judge incorrectly stated that Dr. Rutowski reviewed Weatherford’s 2007 MRI; however, we cannot conclude that Martin was prejudiced by this finding. As noted, the MRI that Dr. Rutowski reviewed revealed abnormalities, and although Dr. Rutowski noted that the findings of the MRIs may have been compromised, he nevertheless concluded that Weatherford suffered from stenosis. Further, although he could not conclusively say that the stenosis was caused by the accident, he still felt that there was some correlation between the accident and the stenosis. It is well established that “[n]o trial is free of error; however, to require reversal the error must be of such magnitude as to leave no doubt that the appellant was unduly prejudiced.” Fielder v. Magnolia Beverage Co., 757 So.2d 925, 928(¶ 9) (Miss.1999) (citing Davis v. Singing River Elec. Power Ass’n, 501 So.2d 1128, 1131 (Miss.1987)). We find the trial judge’s error harmless.

¶ 26. Martin also asserts that trial judge erred in finding that Dr. Rutowski was of the opinion that Weatherford suffered from stenosis or a bulging disc as a result of the accident. Again, Martin is correct, as Dr. Rutowski never conclusively found that Weatherford’s stenosis or bulging disc resulted from the accident. Instead, Dr. Rutowski repeatedly stated that he could not reach this conclusion with certainty because so much time had passed between the accident and the first MRI. However, Dr. Rutowski also clearly stated that although the accident may not have caused the stenosis, it could have exacerbated the stenosis if Weatherford was predisposed to developing stenosis. Although we agree that the trial judge erred in finding that Dr. Rutowski stated that the stenosis and bulging disc were caused by the accident, we find this error harmless, as Dr. Rutowski remained convinced that Weatherford suffered from stenosis that shared a correlation with the accident even though he noted that the 2003 and 2005 MRIs may have been compromised. Thus, the record contains sufficient evidence which supports the trial judge’s decision to award Weatherford medical expenses and damages for past and future pain and suffering. This issue lacks merit.

¶ 27. Martin also asserts that the trial judge erred in finding that Dr. Ru-towski recommended that Weatherford have surgery. Martin contends that the record does not bear out the trial judge’s conclusion. We agree, as the record reflects that Dr. Rutowski stated that surgery is an option that Weatherford can pursue, without specifically recommending that she have surgery. The following exchange occurred during Dr. Rutowski’s deposition:

Q. And if that is in fact the history, that she has consistently throughout complained primarily of right-sided pain, would that indicate to you, then, that the trauma sustained in the accident was more likely than not a contributing factor to the onset of her symptomatology and the problems she later developed with stenosis?
A. There can be a correlation with that if indeed, as I said before, we have documentation of no troubles prior to January of '98 and then we have symptomatology that is consistent over a period of time and documented well by individuals. The dilemma that I have, as a neurosurgeon, is that — and I think the other physicians too, because they didn’t — they can make a diagnosis just as well as I can of spinal stenosis which, based on symptomatology, could be a surgical lesion. They didn’t go the surgical approach primarily because they find examination abnormalities that they would have expected and I would have expected to show up to indicate this patient needs surgery and would be helped by the surgery.
Q. Right. The problem, as I understand it, is whoever was treating her at the time didn’t feel that it was necessary to do an MRI or, for whatever reason, didn’t see fit to do an MRI.
A. See, I guess that’s a judgment of the physician. It just becomes more of a legal issue than it is even from a physician point of view. We treat and do whatever we can. She may require surgical intervention as a last resort. That’s a possibility that she has available to her. The problem that a physician would have in doing surgery here is that we’re not dealing with the same success rate for neck surgery as would be the case if, one, it was done early; two, we had correlating symptoms or abnormalities on the films. And, like I said, we’re dealing with nine years down the way. The success rate goes down over that period of time. Once you have symptoms for that period of time, it becomes chronic. Once that diagnosis is put on, the likelihood of changing things positively go[es] down as time goes on.

(Emphasis added).

While we conclude that the trial judge erred in finding that Dr. Rutowski recommended that Weatherford have surgery, again, we find this error harmless.

(b) Continuous pain and lifestyle changes

¶ 28. Martin contends that the trial judge erred in finding that “as a result of the January 9, 1998, accident, Ms. Weatherford sustained significant injury to her neck, right shoulder, right arm, and back and has suffered almost continuous pain in her neck, shoulder, and arm.” According to Martin, Weatherford’s deposition impeaches her testimony at the hearing. We note at the outset that we have scoured the record and are unable to find Weatherford’s deposition. Therefore, it is impossible for us to address this issue in any detail except to point to Weatherford’s trial testimony wherein she testified that she was in constant pain following the accident:

Q. And when you have this pain that you’re talking about, how would you deal with it; what did you do?
A. I’d try to either stop what I was doing and lay [sic] down or change positions or whatever I needed to do, take medication; take over-the-counter medications, whatever at the time that I had. Or, if at all, as a last resort I would go to the hospital or get an injection, depending on whether or not I was seeing a pain specialist at the time.
Q. Okay. Now, we’re talking about after you were seeing [Dr.] Steuer; so I’ll just say you didn’t get anymore pain injections.
A. Right.
Q. And you’re [sic] testimony is that the pain continued?
A. Yes.
Q. And it continued from that point in time up till today?
[OBJECTION]
Q. And what would you do as far as dealing with the pain on those occasions when you weren’t under the care of a physician?
A. I would take over-the-counter medication and try to stop what I was doing to make the pain go away, lay [sic] down, if possible, if I wasn’t working; sit down if I was at work; take a break if I was at work; take my lunch hour if I was working; whatever I was able to do to stop the pain at the time.
Q. What would typically bring these— this onset of pain when you would have your good days and then go to a bad day. Was there anything that occurred or—
A. It would be just mostly being in a certain position. It could be being at work all day long; and, you know, the pain increased the longer that I was there. So with tiredness, with bagging and working and using my arm, using my neck looking down at papers; I had a lot of voids and different things that I had to approve and paperwork dealing with the money; so all of that.

¶ 29. Also, Weatherford testified that she was in pain while testifying at the hearing:

Q. Now, I’ve noticed as you’ve been sitting here testifying this morning that you’ve been sitting with your weight primarily on your left side, your left arm. Is there a reason for that?
A. Yes, sir.
Q. And what is that?
A. My right side usually is hurting. I can’t prop-up on my right side because it starts my hand to tingling. I just usually sit — it’s been so — I’ve done it for so long now, it’s just normal for me to sit this way.

As evidenced by the colloquy quoted above, Weatherford testified that she has consistently suffered from pain since the accident. Furthermore, while she receives some relief from physical therapy, injections, and other treatment, the record is clear that she is never totally pain free and experiences pain on a daily basis. This issue lacks merit, despite Martin’s assertions to the contrary.

¶ 30. Martin also argues that substantial evidence does not exist to support the trial judge’s finding that Weatherford made lifestyle changes as a result of the accident. The record contains sufficient evidence to support a finding that the pain that Weatherford experienced was either caused or exacerbated by the accident. Further, it cannot reasonably be disputed that Weatherford modified her daily activities because of the pain that she experiences. This issue lacks merit.

¶ 31. Martin also asserts that Weather-ford’s medical records do not reflect that she has consistently complained of pain in her neck and shoulders since the accident. Weatherford testified at trial that she did not complain of neck and shoulder pain on every doctor visit because “at the time, [she] did not realize [the pain] was coming from [her] neck.” We also note that Dr. Steuer’s testimony reveals that Weather-ford consistently complained of or made reference to back pain, during the time that he treated her, on some occasions stating that the pain had improved. This suggests that although the pain was better than it had previously been, it had not completely subsided. Also, as noted, Weatherford’s medical records clearly indicate that she complained of shoulder, neck, and arm pain while under the care of Drs. Steuer and Rutowski. Accordingly, we find no merit to this issue, as we conclude that substantial evidence exists to support the trial judge’s finding.

(c) Pain and Suffering Award

¶ 32. Martin argues that the trial judge’s award of $368,550 for past and future pain and suffering is not supported by substantial evidence. Martin contends that the trial judge’s award is based on erroneous findings made by the trial judge. We have already found that the trial judge’s findings are supported by substantial evidence and based on the record in its totality, the $368,550 award is also supported by substantial evidence. This issue lacks merit.

2. Life Expectancy Tables

¶ 83. In her final issue, Martin asserts that the trial judge erred in admitting life expectancy tables compiled by the United States Department of Vital Statistics into evidence because they were not produced prior to trial. At trial, Martin objected to the admission of the life expectancy tables. Then, Weatherford argued that the tables would be introduced as self-authenticating documents pursuant to Rule 902 of the Mississippi Rules of Evidence. Thereafter, the trial judge allowed the tables to be admitted into evidence. We conclude that any error committed by the trial judge was harmless, as the trial judge was permitted to take judicial notice of the information found in the tables even if they had not been admitted into evidence. See Churchill v. Pearl River Basin Dev. Dist., 757 So.2d 940; 945(¶ 19) (Miss.1999) (citing Stewart v. State, 394 So.2d 1337, 1339 (Miss.1981)). Rule 201(b) of the Mississippi Rules of Evidence provides that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably be questioned.”

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . The trial judge also awarded Richard Williams, the driver of the vehicle, $4,601.84 in medical expenses and $22,500 in past and future pain and suffering. However, Martin only appeals the trial judge's judgment as it relates to Weatherford.

      . Actually, Martin raises eight issues for our review; however, we consolidate all of the issues wherein she asserts that substantial evidence does not exist to support the trial judge’s findings.

      .At the time of the accident, Weatherford was employed as a cashier and video department manager at Bing’s Food Store in Green-ville, Mississippi. She continued to work at Bing’s for a while; however, at the time of the hearing she was unemployed.

      . Weatherford saw Dr. Capel at the Central Mississippi Medical Center. The record does not reflect Dr. Capel’s specialty, if any. Dr. Capel stated the following regarding the MRIs that had previously been taken:
      There are open MRI studies with very limited resolution. MRI of [the] cervical spine shows diffused degenerative disease. There is some suggestion of stenosis at C5-C6-7 segments although the resolution on the axial cuts are quite poor. MRI of the lumber spine shows no evidence of degenerative disc disease or compressive pathology. She does have some facet arthropathy present at L3-4, L4-5 and L5-S1. Sagittal T2 image of the thoracic spine is unremarkable.

      . The record also reflects that Weatherford received treatment for sleep apnea and high blood pressure.

      . The record does not reflect Dr. Rutowski's specialty, if any.

      . Weatherford was thirty-six years old when she saw Dr. Rutowski.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Shawn Lawan McLAURIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00814-COA.
    Court of Appeals of Mississippi.
    Nov. 17, 2009.
    Rehearing Dismissed April 6, 2010.

      J. Christopher Klotz, Attorney for Appellant.
    Office of the Attorney General by Billy L. Gore, Attorney for Appellee.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Shawn Lawan McLaurin was indicted by a Hinds County grand jury for the rape of L.E. pursuant to Mississippi Code Annotated section 97-3-65 (Rev.2006). He was tried and convicted of rape by a jury in the Hinds County Circuit Court. The trial court sentenced him to serve life in the custody of the Mississippi Department of Corrections [MDOC]. Aggrieved by his conviction and sentence, McLaurin appeals arguing that: (1) he received ineffective assistance of counsel; (2) the trial court erred in denying McLaurin to cross-examine the victim about his alleged gunshot wound; (3) the trial court erred in overruling McLaurin’s objection to a comment made by the prosecutor; (4) McLaurin was prejudiced by the trial court’s failure to conduct a balancing test as to evidence regarding McLaurin’s prior criminal acts; (5) the photographic lineup procedures were so suggestive as to unconstitutionally taint the identification of McLaurin; and (6) cumulative error warrants reversal. Finding no error, we affirm.

FACTS

¶ 2. In 1997, L.E. knew the defendant, McLaurin, as Brian McDaniels. The two had been friendly acquaintances for approximately three years. L.E. testified that she had met McLaurin through a friend of McLaurin’s, who was dating L.E.’s cousin.

¶ 3. L.E. testified that on January 16, 1997, she placed a call to McLaurin from her dormitory room at Tougaloo College. The two agreed that McLaurin would pick up L.E. that night at her dormitory. At approximately 7:30 that night, McLaurin picked up L.E. at her dormitory in a black Mazda pickup truck with an “outlaw” sticker on its back window.

¶4. L.E. testified that while they were out McLaurin told her that he needed to stop at his sister’s house. The two pulled up to a white house and entered the house with a key that McLaurin had on his person. After entering the house, the two went to the back bedroom where they began watching television. After watching television for approximately thirty minutes, McLaurin turned to L.E. and suggested that they have sex. She recalled seeing a condom in McLaurin’s hand. L.E. denied McLaurin’s suggestion and requested that he take her back to her dormitory room. She said McLaurin then became aggressive and insisted that they have sex. L.E. attempted to leave the bedroom, but McLaurin blocked the doorway. McLaurin then walked out of the bedroom, and according to L.E., he returned with either a shotgun or a rifle. He pointed the gun at her and told her to strip off her clothes. Fearful for her life, L.E. complied with McLaurin’s demands and removed her clothing. L.E. testified that McLaurin blindfolded her and handcuffed her to the bed, and he then raped her.

¶ 5. Shortly after the rape occurred, L.E. heard a car pull up to the house. McLaurin uncuffed L.E., told her to clothe herself, and instructed her not to say anything. The two exited the house and got back into McLaurin’s truck. McLaurin placed the blindfold back on L.E. and began driving around telling her he was going to kill her. A short time later, McLau-rin pulled over on a street near Touglaoo and pulled out a small handgun. He told L.E. that he was going to be watching her, and that if she told anyone what had occurred, he would kill her. L.E. went back to her dormitory and informed her roommate about what occurred. L.E. was then taken to the hospital.

¶ 6. Dr. George Ellis was working the emergency room when L.E. was brought to the hospital. He testified that the ex-animation revealed no semen and no indication of an assault. He testified that no semen would likely have been found if the perpetrator had used a condom, which L.E. testified McLaurin used while raping her. On cross-examination, Dr. Ellis was asked whether his examination of L.E. revealed forcible entry. Dr. Ellis said he could not say that the physical examination proved it. On redirect, the State asked Dr. Ellis if there was anything about the examination that disproved L.E. was raped. Dr. Ellis said, “Nothing disproves it.”

¶ 7. L.E. gave a statement to the police that night at the hospital and again a couple of days later. At that time, as indicated by the record, the police, together with L.E., attempted to find the house where the raped had occurred and to locate the individual L.E. knew as Brian McDaniels, but they were unsuccessful.

¶ 8. In June 1998, while at a nightclub with her cousin, L.E. spotted McLaurin. She reported this to an off-duty police officer who was working security for the nightclub. McLaurin was then arrested. A few days after the arrest, L.E. was shown a photographic lineup; she selected McLaurin as the perpetrator.

¶ 9. Velma Johnson with the Jackson Police Department testified that L.E. eventually identified McLaurin’s mother’s house as the house where the rape had occurred.

¶ 10. Norris Jernigan, the off-duty police officer who was at the nightclub when McLaurin was arrested, testified that when he made the arrest, McLaurin told him his name was Brian McDaniels.

¶ 11. During the defense’s case-in-chief, Rechelle Williams, the mother of McLau-rin’s children, McLaurin’s sister, and McLaurin’s mother all testified that McLaurin was with Williams on the night of the rape. They each told a similar story that McLaurin and Williams were at his mother’s house on the night of the rape, and they left only to visit his sister. McLaurin did not testify.

¶ 12. James Chappell, a parole officer, testified for the State as a rebuttal witness. He told the jury that Williams had contacted him and stated that McLaurin had been threatening and harassing her. Chappell stated that McLaurin was trying to get Williams to lie at his trial and to state that they were together on the night of the rape.

¶ 13. The jury found McLaurin guilty of rape. The trial court sentenced him to serve a term of life in the custody of MDOC. McLaurin thereafter filed a motion for a judgment notwithstanding the verdict, or in the alternative, for a new trial, which the trial court denied. The supreme court allowed McLaurin to file an out-of time appeal alleging six assignments of error.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 14. McLaurin raises twenty-three allegations of ineffective assistance of counsel. Without exhaustively listing each of McLaurin’s assertions, we summarize his allegations using his own words: “defense counsel did little to avail himself of the evidence in the custody of the State, ... much less conduct an independent investigation.”

¶ 15. Mississippi Rule of Appellate Procedure 22(b) states:

Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

¶ 16. “Where the record is insufficient to support a claim of ineffective assistance, ‘the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.’ ” Wynn v. State, 964 So.2d 1196, 1200(¶ 9) (Miss.Ct.App.2007) (citing Aguilar v. State, 847 So.2d 871, 878(¶ 17) (Miss.Ct.App.2002)).

¶ 17. Several of McLaurin’s allegations are based upon facts that are not fully apparent from the record: defense counsel failed to file a direct appeal or a motion for post-conviction relief after accepting a retainer and asserting the defense he was going to file the appeals; defense counsel did not review an incriminating photograph of McLaurin used at trial and did not file a motion to exclude the photograph; defense counsel failed to sufficiently investigate potential witnesses and relevant medical records; and defense counsel did not submit any jury instructions. The record contains no medical records, nor does it contain any statements by potential witnesses. Thus, we cannot address these issues on direct appeal. Because we cannot address several of McLaurin ineffective assistance of counsel allegations on direct appeal, we find that McLaurin’s ineffective assistance claim would be more appropriately brought in a petition for post-conviction relief, if he chooses to do so. Accordingly, we deny relief on this issue without prejudice.

II. Opportunity to Cross-examine

¶ 18. McLaurin argues that by the trial court’s refusal to allow him to cross-examine L.E. regarding a gunshot wound that he allegedly had on his leg at the time of rape denied him his constitutional right to confront a witness. “We review the trial judge’s limiting of cross-examination under an abuse of discretion standard.” Hampton v. State, 966 So.2d 863, 867(¶ 15) (Miss.Ct.App.2007) (citing Jefferson v. State, 818 So.2d 1099, 1109(¶ 24) (Miss.2002)).

¶ 19. McLaurin’s theory of the case was that this was an instance of mistaken identity, and that on night of the rape, he was recovering from a gunshot wound to the upper thigh. Yet, there was no mention of these wounds in the initial police reports. According to the witnesses called on McLaurin’s behalf during the defense’s case-in-chief, McLaurin was using crutches to walk around at the time the alleged rape occurred, could not drive his standard-shift pickup truck, and had a wound on his upper thigh that would have been clearly visible. McLaurin argues that when his defense counsel attempted to ask L.E. about these wounds, the trial court prohibited his inquiry.

¶ 20. We disagree. L.E. was the first witness called by the prosecution. On cross-examination, the following exchange occurred between L.E. and defense counsel:

Q: Okay. Was there anything unusual about him at that point?
A: During that night?
Q: Well, during that time anything unusual about his person or anything like that?
A: No, there wasn’t.
Q: Okay. So if he was shot in the right leg with a .38 caliber pistol and under a doctor’s care, you would [have] know[n] that. You wouldn’t have .the opportunity to have seen that?
A: At that time I didn’t realize anything like that, no.
Q: Okay. Did that come up in conversation that [he] had been shot in November of '96 and was finally released from the doctor’s care on 12-21-96, about two weeks before the event?

¶ 21. The State objected to this question on the ground that there was no evidence or documentation entered regarding McLaurin being under a doctor’s care for a gunshot wound during this time period. The trial court sustained the objection.

¶ 22. We find that the trial court did not abuse its discretion in sustaining the objection because there was no evidence yet submitted to show that McLaurin was under a doctor’s care for the alleged leg injury. See Vickers v. State, 994 So.2d 200, 221(¶ 82) (Miss.Ct.App.2008) (upholding the trial court’s refusal to allow the defendant to question the witness when the question assumed facts not in evidence).

¶ 23. Further, Rule 611(a) of the Mississippi Rules of Evidence provides the trial court the discretion necessary “to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence.” Rule 611(b) of the Mississippi Rules of Evidence, indeed, permits wide-open cross-examination. M.R.E. 611 cmt. But, the comment to the rule also states that “under Rule 611(a) the judge may still limit cross-examination to serve one of the purposes therein stated.” Id. One such purpose is to prevent the needless waste of time. M.R.E. 611(a).

¶ 24. Despite McLaurin’s argument to the contrary, the record clearly reveals that L.E. let it be known to the jury that she did not notice a gunshot wound to McLaurin’s leg. This argument is without merit.

III. Prosecutor’s Comments

¶ 25. McLaurin argues that the prosecutor made improper and unconstitutional comments on McLaurin’s failure to call a medical witness regarding his alleged gunshot wound. While cross-examining McLaurin’s mother, the prosecutor asked several questions about who had treated McLaurin for his alleged gunshot wound and why the defense did not call the treating doctor as a witness. During closing arguments, the prosecutor made another comment about McLaurin’s failure to call his treating doctor for his gunshot wound as a witness. McLaurin argues these comments violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

¶ 26. McLaurin cites to Brown v. State, 200 Miss. 881, 887, 27 So.2d 838, 840 (1946), for the proposition that it is generally improper for the prosecution to comment on the failure of the defendant to call a witness equally accessible to both parties. Based on the record in this case, however, McLaurin’s reliance on Brown is misplaced. In Ross v. State, 603 So.2d 857, 864 (Miss.1992), the supreme court explained the Brown rule as follows:

The concept of “equal” accessibility constitutes a crucial concept in applying this rule. In the 1946 Brown case, this Court held that the rule barring comment did not apply where a witness, while technically accessible to both parties, stood more available to the complaining party. Brown, 200 Miss, at 888-89, 27 So.2d at 841. Where a defendant fails to call a witness more available to him and presumptively in a closer relationship with him, the [S]tate is fully entitled to comment on the party’s failure to call the witness. Id.

¶ 27. Through his alibi witnesses, McLaurin attempted to contradict the State’s ease with testimony that McLaurin was on crutches at the time of the alleged rape due to a recent gunshot wound to his leg; therefore, he could not have been the perpetrator. Both Williams and Margaret, the defendant’s mother, mentioned in their testimonies that McLaurin was under a doctor’s care for the injury. During cross-examination, the State asked Margaret who was McLaurin’s treating physician. The witness responded that she believed it was a “Dr. Fisher,” but added that she was not sure.

¶ 28. There is no indication anywhere in the record that the State was informed prior to trial that McLaurin was being treated for a gunshot wound at the time of alleged incident, much less, by whom. Pursuant to the Brown rule, the State properly queried Margaret on cross-examination on this point, and during its summation, the State appropriately argued the logical inference taken from the defendant’s failure to produce his treating physician at trial. This issue is without merit.

IY. Prior Bad Acts

¶29. McLaurin argues the trial court erred by not sua sponte conducting a Mississippi Rule of Evidence 403 balancing test on testimony regarding McLaurin’s prior bad acts. Officer Richard Lowery, with the Jackson Police Department, testified that he had seen McLaurin’s pickup truck with the “outlaw” sticker on its back window during his investigation of another criminal matter. Lowery testified that, when the truck was impounded following McLaurin’s arrest at the night club, a rifle and a handgun were found inside the vehicle. McLaurin claims the trial court should have conducted a hearing to determine whether the probative value of this evidence outweighed its prejudice.

¶ 30. However, McLaurin’s counsel admittedly did not object to this testimony. Our supreme court has consistently held that the failure to make a contemporaneous objection to testimony which a defendant finds objectionable constitutes waiver of the issue on appeal. Wells v. State, 698 So.2d 497, 514 (Miss.1997) (citations omitted). The reason for the rule is to allow the trial court to correct an error Avith proper instructions to the jury whenever possible. Morris v. State, 963 So.2d 1170, 1177(¶ 26) (Miss.Ct.App.2007) (citing Gray v. State, 487 So.2d 1304, 1312 (Miss.1986)). Procedural rule notwithstanding, the law does not require the trial court to conduct a Rule 403 balancing test sua sponte. Cf. Brown v. State, 890 So.2d 901, 913(¶ 36) (Miss.2004) (supreme court expressly overruled Smith v. State, 656 So.2d 95, 100 (Miss.1995), which had held that the trial court was required to issue a sua sponte 404(b) limiting instruction). The Brown court held that Mississippi Rule of Evidence 105 clearly places the burden of requesting a Mississippi Rule of Evidence 404(b) limiting instruction upon counsel. The Brovm court reasoned as follows:

“The trial court has the discretion to determine if the Rule 404(b) limiting instruction is appropriate given the totality of the circumstances. Otherwise, it is fundamentally unfair to place the burden on the trial judge absent an affirmative request on behalf of a party that such an instruction be given. Simply because the judge did not issue the instruction is not a reason for a mistrial; accordingly, there was no error in the trial below.”

Brown, 890 So.2d at 913(¶ 37).

¶ 31. We read Brown’s, holding as placing the onus on the parties to make a request unto the trial court that a Rule 403 balancing test be conducted with regard to relevant evidence which may otherwise be excluded for the reasons stated within the rule. Accordingly, this argument is without merit.

V. Lineup

¶ 32. McLaurin argues that the photographic lineup given to L.E. was “im-permissibly suggestive as to taint” the identification of McLaurin. McLaurin claims the photographic lineup was suggestive because L.E. had seen him at the nightclub two days before the lineup was administered, which made the image of his face fresh in her memory during the photographic lineup. He also claims that the photographs in the lineup were “substantially dissimilar” from McLaurin, making McLaurin’s photograph stand out from the others.

¶ 33. We cannot determine the merit of McLaurin’s claim as the photographic lineup has not been made part of the record on this appeal. Our supreme court had stated that “we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot, know them.” Mason v. State, 440 So.2d 318, 319 (Miss.1983). Accordingly, we cannot address this issue as McLaurin failed to make the photographic lineup part of the record.

VI. Cumulative Error

¶ 34. McLaurin argues that the trial court’s error and the prosecution’s misconduct resulted in a cumulative error that requires reversal and a new trial.

¶ 35. “This Court may reverse a conviction and sentence based upon the cumulative effect of errors that independently would not require reversal.... However, where ‘there was no reversible error in any part, there is no reversible error to the whole.’ ” Bright v. State, 894 So.2d 590, 596(¶ 31) (Miss.Ct.App.2004) (quoting Coleman v. State, 697 So.2d 777, 787 (Miss.1997)). Since McLaurin has failed to show any individual errors, we find no cumulative error that would necessitate reversal of his conviction. Accordingly, this issue is without merit.

¶ 36. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF RAPE AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: LEE, P.J.,

text:
    In the Matter of the Termination of Parental Rights: J.J., Appellant v. Ann SMITH and Bill Smith, Appellees.
    No. 2009-CP-00210-COA.
    Court of Appeals of Mississippi.
    March 23, 2010.
    Jennifer Lynn Blair, attorney for appellant.
    Ann Smith, Appellee, pro se.
    Bill Smith, Appellee, pro se.
    Before LEE, P.J., IRVING, and BARNES, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. An order granting emergency temporary custody of J.J.’s son, C.J., was granted to Ann and Bill Smith in the Chancery Court of Forrest County. The Smiths claimed that they were concerned about J.J.’s mental stability, and they requested that J.J.’s parental rights be terminated. They also sought to adopt C.J. J.J. objected and requested that the child be returned to her custody.

¶ 2. A guardian ad litem (GAL) was appointed. C.J.’s biological father was given notice of the hearing, but he did not respond. Evidence was presented that he had never acted as a father to the child, and the chancellor terminated his parental rights. The chancellor also found that it was in the best interest of the child to terminate J.J.’s parental rights.

¶ 3. J.J. now appeals, asserting the following issues: (1) the chancellor erred in finding there was clear and convincing evidence to terminate her parental rights; (2) the chancellor erred by failing to summarize the qualifications and report of the GAL and by failing to state why he did not follow the recommendations of the GAL; and (3) the chancellor erred in relying on the GAL’s report because it did not include a full investigation. We will limit our discussion to issue one, as we find it dispositive. Finding error, we reverse and render the decision of the chancellor terminating J-J.’s parental rights. We remand this case to the chancellor for a determination of custody and visitation. The portion of the chancellor’s order terminating the father’s parental rights was not appealed and, therefore, remains unaltered by this Court’s opinion.

FACTS

¶ 4. J.J.’s son, C.J., was eleven years old at the time of the hearing to terminate J.J.’s parental rights. C.J. was born sixteen-weeks premature in 1996 and is described as a special-needs child. C.J. has a hearing impairment and attends a school which specializes in hearing and language disorders. He was enrolled in this school by J.J. while he was under her care. J.J. drove him to school and picked him up daily. The school administrators’ main concern while C.J. was under J.J.’s care was excessive tardies. The tardies continued after C.J. went to live with the Smiths. The school administrators were also concerned that C.J. did not have cochlear implants. C.J. wore hearing aids, and his teachers emphasized the importance of him wearing them constantly.

¶ 5. Testimony was presented that J.J. did not make C.J. wear the hearing aids at all times while in her care. C.J. saw an audiologist in 2003, and J.J. was given information about cochlear implants. J.J. testified that she was concerned about the procedure because he had been under anesthesia numerous times, and she feared the procedure could be harmful.

¶ 6. For nearly two years prior to the hearing, C.J. resided with the Smiths and had no contact with J.J. Ann Smith (Ann) is J.J.’s niece and C.J.’s cousin. Ann testified that she and J.J. were practically raised as sisters because of their closeness in age. After the emergency custody order was granted, Ann had the cochlear implants implanted into C.J.’s ears. The school officials who testified stated that they saw an improvement in C.J.’s progress since he had been in the Smiths’ care. Ann instructed the school not to give any information about C.J. to J.J. if she attempted to contact the school. J.J. testified that her family would not let her see C.J. However, family members testified that they have never stopped her from seeing C.J., and J.J.’s older son goes to the Smiths’ house on occasion to visit C.J.

¶ 7. According to Ann, C.J.’s primary caretaker while he lived with J.J. was his sister, who was approximately ten years older than him. He referred to her as “Mama,” and he referred to J.J. by her first name. The sister passed away in 2005.

¶ 8. J.J. was diagnosed with bipolar disorder in 1994. She began receiving social security benefits based on that diagnosis in 2003. She has undergone treatment and has been involuntarily committed to mental hospitals on at least three occasions. At the time of the hearing, she was receiving treatment at Pine Belt Mental Healthcare Resources. Her caseworker testified that from her observations, J.J. was capable of caring for C.J. as long as she was taking her medication.

STANDARD OF REVIEW

¶ 9. “The chancellor’s findings of fact are viewed under the manifest error/substantial credible evidence test.” S.N.C. v. J.R.D., Jr., 755 So.2d 1077, 1080 (¶ 7) (Miss.2000) (quoting Vance v. Lincoln County Dep’t of Pub. Welfare, 582 So.2d 414, 417 (Miss.1991)). As long as there is credible evidence to support the chancellor’s findings of fact, we must affirm the decision. K.D.F. v. J.L.H., 933 So.2d 971, 976-77 (¶ 20) (Miss.2006).

DISCUSSION

¶ 10. J.J. argues that the chancellor erred in terminating her parental rights. The Smiths filed no brief in response. When the appellee fails to file a brief, we have two options:

The first alternative is to take the appel-lees’ failure to file a brief as a confession of error and reverse. This should be done when the record is complicated or of large volume and “the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error.” The second alternative is to disregard the appellees’ error and affirm. This alternative should be used when the record can be conveniently examined and such examination reveals a “sound and unmistakable basis or ground upon which the judgment may be safely affirmed.”

Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 7) (Miss.2002) (internal citations omitted). The record in this case is not complicated or of large volume. Upon examination of the record, this Couit cannot find a sound and unmistakable basis upon which the judgment can be safely affirmed. For the reasons to be discussed, we find that insufficient evidence was presented to terminate J. J.’s parental rights.

¶ 11. In order to terminate parental rights, the chancellor must find “by clear and convincing proof that the parent or parents are within the grounds requiring termination of parental rights.... ” Miss. Code Ann. § 93-15-109 (Rev.2004). Mississippi Code Annotated section 93-15-103(3) (Rev.2004) contains a list of factors on which parental rights may be terminated. The chancellor considered the following factors from section 93-15-103(3) in terminating J.J.’s parental rights:

(b) A parent has made no contact with a child ... three (3) years of age or older for a period of one (1) year; or
(c) A parent has been responsible for a series of abusive incidents concerning one or more children; or
(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child;
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment....

The chancellor also considered Mississippi Code Annotated section 93-17-7 (Rev. 2004), which discusses causes for termination of an unfit parent’s parental rights.

¶ 12. At the hearing, the Smiths alleged that J.J. had a diagnosable condition unlikely to change which made her unable to assume acceptable care of C.J. The following witnesses testified for the Smiths: Olivia Farish, an instructor at C.J.’s school; Jennifer Jenkins (Jennifer), Ann’s aunt and J.J.’s sister; and Nicole Jenkins (Nicole), Ann’s mother. The Smiths also testified, and J.J. was called as an adverse witness.

¶ 13. Farish testified that she had been C.J.’s teacher for nearly two years. She testified that C.J. was doing very well in school. She expressed concern that C.J. did not receive cochlear implants at a young age. Farish testified that children should wear the highest-level technology in hearing aids possible, which was cochlear implants. She stated that: “The amplification should be put on in the morning, worn all day, and other than taking a bath and going to sleep, then the amplification should be worn, and that’s critical to letting the child develop the language and the speech skills 24 hours a day....” She went on to testify that “the rule of thumb with deaf education is that you get the best amplification as soon as possible, that the better the amplification, the better progress the child is going to make.” Also, it is best to make use of the amplification “as soon as possible because you want to take maximum advantage of those earlier learning years.” Regarding the excessive tardies, Farish testified that for the 2005-06 school year, C.J. was tardy thirty-five times. Farish testified that:

All children need to be in school the maximum amount of time, but for a hearing-impaired child ... it makes a difference in their outcome for life because you are not just teaching academics in a book. You are trying to equip the child with the social skills to speak and communicate.... [I]t is critical that he have as much time in the class as possible....

¶ 14. Finally, Farish testified that in August 2006, the staff at the school became concerned because C.J. came to school without his hearing aids or notebook, which was specially made for him by his teachers. A school official spoke with Jennifer, who told the school representative that she was unable to find them. Jennifer stated that C.J. was temporarily living with her because J.J. was not doing well. Around the same time, the school was notified that C.J. was having behavioral problems at home. Farish testified that she did not see these behavioral issues at school. In late August or early September 2006, J.J. began providing transportation again for C.J. to and from school. On September 18, 2006, the school received an e-mail from Jennifer notifying them that J.J. had dropped C.J. off at her house, and she had not seen J.J. since then. Farish attempted to contact J.J. to confirm this information, but she was unsuccessful. Farish testified that after C.J. moved in with the Smiths, Ann requested a meeting with Farish to discuss what she could do at home to help C.J. Farish stated that since that time, C.J.’s language skills had expanded, and it was clear that he was learning at home.

¶ 15. Jennifer testified that at one point before the Smiths had custody of C.J., J.J. dropped him off with Jennifer and her mother and disappeared for approximately six months. It was at that point that the family sought to provide a more stable environment for C.J., and he went to live with the Smiths. Jennifer stated that she believed C.J. was happy and in a stable environment.

¶ 16. Nicole testified that when J.J. took her medication, she could take care of herself. However, she testified that J.J. “goes through periods where she won’t take [the medicine], and then she starts getting manic or starts — everything speeds up, her thought processes, her speech and everything, and she eventually starts getting psychotic, and then she actually has breaks with reality.” She testified that on one occasion, C.J. was dropped off at her mother’s house wearing clothes that were wet and several sizes too small. She testified that J.J. could not be found. J.J. testified that she had no recollection of dropping C.J. off wearing wet clothes or clothes that were too small. Nicole believes that C.J. is “a totally different child” since he began living with the Smiths. She stated: “When he was with J.J., he was a one-man train wreck.” Nicole testified that she could only recall one reference C.J. made to J.J. over the last two years. She stated that she felt it would be “detrimental” for C.J. to be reunited with J.J.

¶ 17. Steve Headrick, the GAL, testified that the Smiths were providing a better, more “language-rich environment” for C.J. Headrick testified that he did not have “any question [J.J.] is a good, loving mother and decent person.” He testified that his concerns were “things beyond what [J.J.] is really able to control herself because of the recurring stuff that — mentally that has apparently gone on for like 15 years or so and it — it may just be beyond her control[.]” Headrick agreed that C.J. should remain with the Smiths on a custodial basis. When asked about his recommendation regarding the termination of parental rights, Headrick responded:

This is a — such a tough situation because, again, of [C.J.]’s special needs.... Now, it is a significant leap to terminate parental rights, as we as attorneys know. I have heal’d enough today about the consistency of the condition of [J.J.] that may well indicate that. I’m not — I’m evidently not quite prepared to make that leap, but probably enough evidence is here that the Court might could find that way, but that is such a condition and so consistent that it may well call for termination of parental rights.

¶ 18. In September 2008, the chancellor entered an order allowing the record to be reopened for the GAL to make additional findings after the death of C.J.’s half-brother, who was killed in an automobile accident. The Smiths requested that the record be reopened to evaluate any changes in J.J.’s mental health and stability since the death of her son. Headrick found that J.J. only complained of occasional depressive symptoms and trouble sleeping. Her mental-status examination revealed nothing negative. J.J. was working approximately thirty hours a week at a grocery store and pursuing a degree from a vocational technology school. She told Headrick that she was taking three prescriptions and was properly following the dosing instructions. Headrick also spoke with Ann, who told him that C.J. “went to pieces” over fear he would see J.J. at his half-brother’s funeral. Ann stated that C.J. was afraid he would have to stay with J.J. and would not be able to continue living with Ann and her husband. Head-rick also questioned Ann about their recent filing for bankruptcy, and she replied that it had not affected their ability to provide for C.J.

¶ 19. After taking the testimony into consideration, the chancellor found that:

The evidence would reflect that, when not in the thrall of her disability (which controls her behavior when she voluntarily abandons medication or treatment regimen), she is a loving, caring mother, somewhat capable of performing [sic] the responsibilities of a normal child, but still lacking the ability to deal with this special child.

The chancellor noted that J.J. had not purposefully relinquished her parental rights nor had she abandoned the child by intentionally failing to see him for more than a year.

¶ 20. We agree with the chancellor that J.J.’s mental illness has affected her ability to care for her child. However, we cannot find that clear and convincing evidence was presented to prove that J.J.’s condition made her “unable to assume minimally, acceptable care of the child.” Miss. Code Ann. § 93-15-103(3)(e)(i). J.J.’s psychiatric reports dated August 2007 to September 2008 state that she suffered from bipolar disorder, occasional depressive symptoms, and has trouble sleeping. However, the reports consistently indicate that her insight and judgment were good; her attitude was cooperative; and her motivation for ongoing treatment was good. The reports also indicate that her bipolar disorder was being controlled by medication. Emmie Brunner, J.J.’s caseworker, testified that there were times in the past where J.J. had not been compliant with her treatment, but more recently, she had complied and attended all of her scheduled appointments.

¶ 21. Unless it is proven otherwise, it is presumed that the best interest of the child will be served by remaining with his or her parents. Carter v. Taylor, 611 So.2d 874, 876 (Miss.1992). While allowing custody of C.J. to be returned to J.J. may be unsuitable because of her mental condition, we find that terminating J.J.’s parental rights was not supported by the evidence. The testimony showed that while on her medication, J.J. is a loving and caring parent. The testimony also showed that she has made improved efforts toward her recovery, and she has made attempts to stay in contact with C.J., such as calling and sending gifts. Further, the GAL was unsure in his assessment of whether to terminate parental rights. Ultimately, the GAL stated that he was “evidently not quite prepared to make that leap” to recommend terminating parental rights.

¶ 22. Based on the testimony, we find that consideration of permanent alternatives to terminating J.J.’s parental rights would have been appropriate. We find this case analogous to In re V.M.S., 938 So.2d 829, 837 (¶ 17) (Miss.2006). In In re V.M.S., the supreme court found that termination of a mother’s parental rights was not supported by the evidence where the mother had a history of drug abuse and bipolar disorder, but she was attempting to stay in contact with the child and making an effort at rehabilitation. Id.

¶ 23. Therefore, we reverse and render the chancellor’s judgment as to the termination of J.J.’s parental rights. We also remand this case for a determination of child custody and visitation. However, as stated by the supreme court in In re V.M.S.: “Notwithstanding our remand for this purpose, we in no way make any inference as to the appropriate decision concerning visitation.” Id. at 837 (¶ 19). Decisions regarding custody and visitation are appropriately left to the chancellor. Id. The portion of the judgment terminating the father’s parental rights remains unaltered by this Court’s opinion.

¶ 24. THE JUDGMENT OF THE FORREST COUNTY CHANCERY COURT TERMINATING THE NATURAL MOTHER’S PARENTAL RIGHTS IS REVERSED AND RENDERED, AND THIS CASE IS REMANDED FOR A DETERMINATION OF CHILD CUSTODY AND VISITATION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. MYERS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . In order to protect the identity of the minor child, the child's name and names of family members have been substituted with initials or fictitious names.


text:
    Joseph D. GREGG, Appellant v. Patricia M. GREGG, Appellee.
    No. 2008-CA-02025-COA.
    Court of Appeals of Mississippi.
    March 23, 2010.

      Paul M. Moore, Jr., Calhoun City, Tina Marie Dugard Scott, Houston, attorneys for appellant.
    J. Tyson Graham, Columbus, attorney for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Joseph Gregg (Joe) and Patricia Gregg (Pat) were married in 1994. Joe filed for divorce in 2007 in the Chancery Court of Webster County, and the parties consented to a divorce based on irreconcilable differences. The issues of equitable distribution and alimony were submitted to the chancellor.

¶ 2. The chancellor divided the couple’s property as follows:

1. Joe was ordered to pay Pat $20,000, which represented one-third of the increased value of Joe’s pre-marital home in Webster County, Mississippi;
2. Pat was awarded two pieces of property in Starkville, Mississippi that were purchased during the marriage;
3. Pat was awarded a one-half interest in thirty acres in Webster County purchased during the marriage. Joe was given the option of buying the interest for $20,000 or selling the property and equally dividing the proceeds;
4. Pat was awarded a one-half interest in the increased value of Joe’s retirement funds; and
5. Pat’s home in Starkville owned prior to the marriage was found to be Pat’s separate property.

Other property was distributed by the chancellor, but only the five items listed above are disputed by Joe. Therefore, the remaining distributions will not be discussed.

¶ 3. Joe now appeals the distribution by the chancellor, asserting the chancellor erred by: (1) awarding Pat a one-third interest in his pre-marital home without deducting one-third of the remaining debt; (2) awarding Pat a one-half interest in his retirement fund when all but one year’s contributions were made prior to the marriage; (3) awarding Pat the two Starkville lots and a one-half interest in the thirty-acre parcel of land in Webster County when the land was purchased with commingled funds; and (4) failing to appropriately consider his contribution to the marital estate. Finding no error, we affirm the judgment of the chancellor.

FACTS

¶ 4. Joe and Pat resided in Joe’s home in Webster County until they separated in 2007. Both parties were over the age of sixty at the time of the divorce, and both are in relatively good health. They each receive social security benefits. The couple had no children together. Prior to their marriage, Pat lived in Starkville, where she owned a home. Joe was retired from the military and worked for the United States Post Office. He continued to work at the post office for one year after the couple married. His retirement income was deposited into the couple’s joint account. Prior to the marriage, Joe’s retirement account was valued at approximately $38,000. At the time of the divorce, it was valued at approximately $86,000. Pat owned a gift store in Stark-ville prior to the marriage. Pat’s income from this business was deposited into, the couple’s joint account. In 1998, Pat opened a second location of the business in Oxford. Joe helped operate the second location. The Oxford store was sold in 2002, and the Starkville store was sold in 2004.

¶ 5. The couple renovated and added on to Joe’s home where the couple resided during the marriage. Pat rented out her former home in Starkville for $1,250 a month. The rental income was placed into a joint account. Pat also received an inheritance of $300,000 from her father while she was married to Joe. Approximately $20,000 of this amount was left at the time of the divorce. Most of the inheritance was spent on renovating the marital home and for other marital expenses. At the time of the hearing, Joe testified that his monthly income was $3,600. Pat’s only source of income was the rental income from the home in Starkville, which she planned to move into after the divorce. Thus, Pat had no income at the time of the divorce.

¶ 6. During the marriage, the couple purchased two lots in Starkville and thirty acres of land in Webster County adjacent to land that Joe had inherited. Joe took out a home-equity loan on his house in Webster County to purchase the land. A significant portion of the home-equity loan was paid off by the sale of Pat’s businesses and Pat’s inheritance.

STANDARD OF REVIEW

¶ 7. An appellate court “employs a limited standard of review for the division and distribution of property in a divorce proceeding.” Phillips v. Phillips, 904 So.2d 999, 1001 (¶ 8) (Miss.2004) (citing Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997)). The chancellor’s findings of fact will not be disturbed “unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. (citing Owen v. Owen, 798 So.2d 394, 398 (¶ 10) (Miss.2001)).

DISCUSSION

¶ 8. Appellate courts “look to the chancellor’s application of the Ferguson factors when reviewing questions of equitable distribution.” Id. (citing Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994)). In Ferguson, the Mississippi Supreme Court set forth factors that chancellors must consider when equitably dividing a marital estate. Id. The Ferguson factors are:

(1) contribution to the accumulation of property, (2) dissipation of assets, (3) the market or emotional value of assets subject to distribution, (4) the value of assets not subject to distribution, (5) the tax and economic consequences of the distribution, (6) the extent to which property division may eliminate the need for alimony, (7) the financial security needs of the parties, and (8) any other factor that in equity should be considered.

Hults v. Hults, 11 So.3d 1273, 1281 (¶ 36) (Miss.Ct.App.2009) (citing Ferguson, 639 So.2d at 928-29).

I. THE MARITAL HOME

¶ 9. Joe argues that the chancellor erred in awarding Pat a one-third interest in the appreciated value of the home he owned prior to the marriage without deducting a corresponding amount of debt.

¶ 10. Joe’s home was valued at approximately $50,000 when the couple married. After adding on to the home and making other improvements, the appraised value of the home at the time of the divorce was $110,000. In March 2001, the couple took out a home-equity loan on the home for $88,764. The loan was used to purchase the two lots in Starkville, an investment note, and one-third of the thirty-acre parcel of land in Webster County. In 2004, when Pat sold her business in Starkville, the proceeds were used to pay off the home-equity loan. The couple paid approximately $77,000 toward the home-equity loan from the proceeds of Pat’s business. Pat also used money from her inheritance to make renovations to the home, which contributed to its increase in value.

¶ 11. Joe contends that the income from Pat’s businesses was commingled because Pat deposited it into the couple’s joint account. Therefore, he argues that the sum Pat paid on the home loan was from marital funds, which rendered any equity on the home subject to the remaining debt. Joe also argues that the chancellor’s award to Pat ignored his contribution to the marital home.

¶ 12. The chancellor found that Pat’s businesses remained her separate property despite the commingling of the proceeds from the businesses. Joe argues that the businesses were not separate property because he did maintenance and helped run the stores. The chancellor noted that while Joe made contributions to the Stark-ville and Oxford stores, they were not significant enough to convert the property to marital property. The chancellor noted that the stores were sold during the marriage, and both parties benefitted from the proceeds.

¶ 13. We cannot find that the chancellor was manifestly wrong in awarding Pat a one-third interest in the appreciated value of the home. The couple lived in the home for fourteen years. The home was clearly marital property. Pat contributed significantly to the increase in value of the home. Therefore, we find that the award was appropriate. As to Joe’s argument that the chancellor’s ruling ignored the debt owed on the home, we find that the chancellor made clear that the goal of the division of property was to eliminate the need for alimony. Holding that Pat was not responsible for the outstanding debt on the home was a way to reduce the need for alimony. This issue is without merit.

II. RETIREMENT FUNDS

¶ 14. Prior to the marriage, Joe’s retirement funds were valued at approximately $38,000. During the marriage, Joe withdrew $13,000 from his IRA to make a payment on the thirty-acre parcel of property in Webster County purchased by the couple. At the time of the divorce, Joe’s retirement funds were worth approximately $86,000. He concedes that the $13,000 he withdrew during the marriage was correctly identified as marital property. However, he argues that the remaining amount was separate property because it was a passive increase in funds.

¶ 15. Joe argues the chancellor should have considered the retirement account in the same way as Pat’s former home. During the marriage, Pat’s home in Starkville increased in value from $80,000 to $169,000. The increase was categorized as separate property. Joe argues that the IRA required no maintenance. The home, however, required maintenance, such as painting and a new roof, which were paid for out of the joint account.

¶ 16. Marital property was defined in Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994) as “any and all property acquired or accumulated during the marriage.” The retirement income which was acquired and accumulated during the marriage is marital property. Pat’s former home, on the other hand, was acquired before the marriage, and the chancellor determined that Joe presented no credible evidence to prove that the home was commingled as such to make it marital property. The chancellor noted that, while Joe argued that he performed maintenance on the home, any contribution Joe made to Pat’s home was minimal. Further, Pat testified that her retirement account was spent on expenses while the couple traveled the country in a RY. Therefore, Pat had no retirement savings. This issue is without merit.

III. LAND

¶ 17. Joe argues that the chancellor erred in awarding Pat the two Stark-ville lots and a one-half interest in the thirty acres in Webster County purchased during the marriage. He argues that in order to be equitable, the chancellor should have awarded Pat the lots in Stark-ville and awarded the thirty-acre parcel of land in Webster County solely to him.

¶ 18. The two lots in Starkville were valued at $50,000, and the thirty-acre parcel was valued at $40,000. The two Stark-ville lots and one-third of the land in Webster County were paid for with a portion of the $88,764 home-equity loan. The second one-third of the price of the land in Webster County was paid with proceeds from Joe’s IRA, and the final payment was made from the joint checking account. In 2004, when Pat sold her business, the proceeds were used to pay $77,000 toward the home-equity loan. Therefore, Pat paid one-third; Joe paid one-third; and the couple jointly paid one-third of the purchase price of the thirty-acre parcel of land. We find that the chancellor correctly reasoned that since each party contributed to one-half of the total purchase price, the land should be divided equally. The chancellor took into consideration that Joe would have more of an emotional attachment to the thirty acres because it is adjacent to property owned by his family. Thus, the chancellor awarded Joe the property and Pat a one-half interest in the property.

¶ 19. We find that the chancellor did not err in her distribution of the land. The funds used to purchase the Starkville property were Pat’s separate property, and each party contributed equally to the purchase of the Webster County property. Therefore, we find this issue is without merit.

IV. CONTRIBUTION TO THE MARITAL ESTATE

¶ 20. Finally, Joe argues that the chancellor failed to consider his contributions to the marriage. Joe points out that he contributed money to the couple’s joint account when he worked for the post office; he contributed money to the joint account from the sale of timber on the land he had inherited; he used part of his IRA to pay for the thirty-acre parcel of land in Webster County; he ran the second location of Pat’s gift store from 1996-2001; he did carpentry work at the Starkville store; he performed maintenance on Pat’s former home; he helped set up a mobile home for Pat’s father so he could be near them; and he performed the yard work and other labor on the marital home.

¶ 21. The chancellor found that Pat’s testimony was credible and noted that she produced documentary evidence to support her contentions. Based on the documentary evidence provided by Pat, the chancellor found that the source of the majority of the funds used to purchase marital assets came from her inheritance and profits from the sale of her businesses. The chancellor found that most of Pat’s $300,000 inheritance was used to purchase marital assets or to pay Joe’s outstanding line of credit. The chancellor found Joe’s testimony regarding the value of the assets and the source of funds to acquire the assets was not credible. The chancellor recognized that while Joe performed some chores on Pat’s former home, there was no credible evidence to prove that the house became commingled such as to lose its separate identity. The chancellor also noted that Joe worked at the Starkville and Oxford stores. However, Pat testified that over the course of the marriage, Joe worked no more than a week to a week- and-a-half at the stores. Further, the chancellor found that because the stores were sold during the marriage and the proceeds deposited into a joint account, the proceeds benefitted both parties.

¶ 22. We find that the chancellor’s division of the property was not manifestly wrong or clearly erroneous. The chancellor thoroughly considered each of the Ferguson factors in reaching her decision, and the division was made in a way as to avoid the need for alimony. Joe’s issues on appeal are without merit. The decision of the chancellor is affirmed.

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

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE AND MAXWELL, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.


author: GRIFFIS, J.,

text:
    Billy Ray ROBINSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00414-COA.
    Court of Appeals of Mississippi.
    April 6, 2010.

      Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, Jr., Jackson, attorney for appellee.
    Before LEE, P.J., IRVING, GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. On October 10, 2007, Billy Ray Robinson was convicted in Simpson County Circuit Court of the sale of cocaine. He was sentenced to ten years in the custody of the Mississippi Department of Corrections. Robinson filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new "trial, which the court denied. From this conviction, Robinson now appeals. We find no error and affirm.

¶ 2. On October 19, 2005, Mississippi Bureau of Narcotics agents met with a confidential informant named Stacy James. At the meeting, James agreed to participate in an undercover operation to buy illicit drugs from drug dealers in Magee, Mississippi. James’s car was outfitted with audio-video recording equipment and the agents gave James a body wire to wear and official state funds with which to purchase drugs. James left-the meeting with the agents and drove to Magee.

¶ 3. James stopped his car in front of a yard on North Raleigh Street in Magee, and Robinson approached the passenger side of James’s vehicle. James asked Robinson for drugs. Robinson got into James’s vehicle and sat on the passenger side. Robinson gave James directions. Robinson directed James to an area where Robinson could buy drugs.

¶ 4. James asked Robinson to purchase crack cocaine and gave him $20. Robinson left the car. He brought back a crack cocaine rock for James. The video surveillance recorded the exchange of the crack cocaine between James and Robinson.

¶ 5. James returned to the agents and gave them the alleged crack cocaine and the audio-video recording equipment. When tested, the substance contained 0.2 grams of cocaine. Robinson was arrested on November 1, 2006, and was charged with the unlawful sale of cocaine.

¶ 6. Robinson’s counsel filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss.2005). Robinson has not filed a pro se supplemental brief.

¶ 7. Pursuant to Lindsey, it is the appellate counsel’s responsibility to determine that his client’s case presents no arguable issues on appeal; to file a brief showing that counsel has thoroughly reviewed the record and has found nothing to support an appeal; and, to send his client a copy of the brief, informing his client that he found no arguable issue for appeal and advising him of his right to file a pro se supplemental brief. Id. at 748 (¶ 18). If the defendant raises any arguable issue in his pro se brief or if the appellate court finds any arguable issues upon its independent review of the record, the appellate court must, if circumstances warrant, require counsel to file a supplemental brief of the issue. Id.

¶ 8. Here, Robinson’s attorney indicated that he diligently searched the procedural and factual history of this action and scoured the record searching for any arguable issues that could be presented in good faith, but he found none. Robinson’s attorney asserted that he examined: (1) the reason for the arrest and the circumstances surrounding the arrest of Robinson; (2) any possible violations of Robinson’s right to counsel; (3) the entire transcript and content of the record; (4) all rulings of the trial court; (5) possible procedural misconduct; (6) all jury instructions; (7) all exhibits, whether admitted into evidence or not; (8) possible misapplication of the law in sentencing; (9) the indictment and all the pleadings in the record; (10) any possible ineffective assistance of counsel issues; and (11) whether the verdict is supported by the overwhelming weight of the evidence.

¶ 9. Robinson’s counsel requested that this Court allow an additional forty days for Robinson to file a pro se supplemental brief, should he so desire. Robinson’s counsel stated that he sent a copy of his brief and correspondence informing Robinson that he found no arguable issues in the record and that Robinson had a right to file a pro se brief.

¶ 10. As of this date, this Court has not received any supplemental filing by Robinson. Furthermore, after thoroughly reviewing the record, we have found no arguable issues for our review. Therefore, in lieu of any error which warrants reversal, we must affirm. McClain v. State, 928 So.2d 210, 211 (¶ 8) (Miss.Ct.App.2006) (citing Eaton v. State, 913 So.2d 413, 416 (¶ 6) (Miss.Ct.App.2005)).

1111. THE JUDGMENT OF THE CIRCUIT COURT OF SIMPSON COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SIMPSON COUNTY.

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