author: ROBERTS, J., for the Court.

text:
    Brian YOUNG, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-01446-COA.
    Court of Appeals of Mississippi.
    Oct. 20, 2009.
    Rehearing Denied Feb. 2, 2010.
    Certiorari Denied May 6, 2010.

      Robert A. Ratliff, Jon Allen Green, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J., for the Court.

¶ 1. Following a four-day trial in the Jackson County Circuit Court, Brian Young was found guilty of the murder of Lelie Coleman (Lelie) and given a life sentence in the custody of the Mississippi Department of Corrections (MDOC). On appeal, the supreme court affirmed Young’s conviction in Young v. State, 891 So.2d 813 (Miss.2005). The supreme court granted Young leave to proceed with his motion for post-conviction relief on January 18, 2006, and he filed his motion on July 31, 2008, in the Circuit Court of Jackson County. Finding no merit to Young’s claims of violation of his right to a speedy trial and ineffective assistance of counsel, the trial court denied relief. Aggrieved from the denial, Young appeals and raises the following issues, which we state verbatim:

I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR POST-CONVICTION RELIEF BASED UPON THE ABRIDGMENT OF HIS CONSTITUTIONAL RIGHT TO A FAST AND SPEEDY TRIAL.
II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR POST-CONVICTION RELIEF BASED UPON THE ABRIDGMENT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
III.THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST FOR AN EVIDEN-TIARY HEARING PRIOR TO DISPOSING OF HIS POST-CONVICTION [-] RELIEF MOTION.

Finding no error, we affirm.

FACTS

¶ 2. The facts set forth by the supreme court in Young, 891 So.2d at 816 (¶¶ 3-4) are sufficient, and we adopt them here. They are as follows:

Michael Coleman and his wife, Lelie Coleman, were living at the Budget Inn in Pascagoula, Mississippi. According to the testimony of hotel manager Leroy Hyatt, Lelie returned to the Budget Inn at approximately 5:00 a.m. on July 1, 2000. Shortly thereafter, around 7:00 a.m., Hyatt saw Michael leave the hotel room he shared with his wife and begin walking to his job at West Building Supplies. Hyatt further testified that, at approximately 7:15 a.m., he saw Brian Anthony Young arrive at the motel in a brown Cadillac, park in the rear of the motel, and go upstairs to Coleman’s room. Approximately one-half hour later, Hyatt saw Young leave in a hurry. When Michael returned to the Budget Inn around 11:30 a.m., he found his wife dead. Testimony at trial established that Young had been involved in an affair with Lelie Coleman.
Young was arrested on July 5, 2000, and charged with Lelie’s murder. He was not indicted until one year later, and his trial commenced on April 2, 2002. At the conclusion of the four-day trial, the jury found Young guilty of murder, and he was sentenced to life imprisonment. Young raise[d] six issues on appeal, including: denial of speedy trial, police officer’s improper opinion testimony that Young murdered Lelie, challenges to three jury instructions, and the jury’s verdict was against the overwhelming weight of the evidence.

As stated, the supreme court found no reversible error and affirmed Young’s conviction and sentence of life in the custody of the MDOC. We now address Young’s appeal of the trial court’s denial of his motion for post-conviction relief.

STANDARD OF REVIEW

¶ 3. When reviewing a lower court’s decision to deny a motion for post-conviction relief, we will not disturb the trial court’s factual findings unless we find them to be clearly erroneous. Bowling v. State, 12 So.3d 607, 609(¶ 4) (Miss.Ct.App.2009) (citing Lambert v. State, 941 So.2d 804, 807(¶ 14) (Miss.2006)). “However, where questions of law are raised, the applicable standard of review is de novo.” Id.

ANALYSIS

I. SPEEDY TRIAL

¶ 4. Young argues at length that his constitutional right to a speedy trial was violated when he was incarcerated for 366 days between his arrest and indictment. He further argues that his “liberty rights were materially and adversely affected” during the nine-month period between his indictment and trial. However, as noted in the circuit court judge’s order denying Young’s motion for post-conviction relief, the issue of a speedy-trial violation was addressed by the supreme court in Young’s direct appeal.

¶ 5. Given that this issue was raised on direct appeal and rejected by the supreme court following a thorough analysis, it is now procedurally barred from further consideration. Mitchell v. State, 886 So.2d 704, 713(¶ 32) (Miss.2004) (citing Miss.Code Ann. § 99-39-21(3) (Rev.2006)). Procedural bar notwithstanding, we briefly address the supreme court’s findings. Specifically, the supreme court found that “because Young was released on bond shortly after his indictment[,] there was no oppressive pretrial detention after Young was indicted.” Young, 891 So.2d at 817(¶ 10). The court went on to analyze the merit of Young’s speedy-trial-violation claim in regard to his pre-indictment incarceration under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and determined that Young’s speedy-trial-violation claim was without merit. Young, 891 So.2d at 818-19(¶ 14). Accordingly, this issue is procedurally barred.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 6. Young next raises the issue of ineffective assistance of counsel. A claim of ineffective assistance of counsel is judged by the standard stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland standard, the inquiries are whether counsel’s performance was deficient, and if so, whether that deficient performance was prejudicial in the sense that the defendant was deprived of a fair trial. Id. at 687, 104 S.Ct. 2052. “To show prejudice, the claimant must demonstrate that, but for his attorney’s errors, there is a reasonable probability that a different result would have occurred.” Watts v. State, 981 So.2d 1034, 1039(¶ 12) (Miss.Ct.App.2008). The claimant must overcome a rebuttable presumption that counsel’s performance falls within the broad spectrum of reasonable professional assistance. Walker v. State, 703 So.2d 266, 268(¶ 8) (Miss.1997) (citing Moody v. State, 644 So.2d 451, 456 (Miss.1994)). Young argues that his trial counsel failed to prepare for trial and arrange for witnesses, failed to discuss a plea offer, failed to pursue a speedy-trial claim, and failed to address a third-party-confession letter. We now address his claims.

A. Preparation for Trial and Decision to Call Witnesses

¶ 7. Young argues that his trial counsel failed to call Shawanda Green, whose testimony would have offered another motive for the murder of Lelie, and Jessie Leger, who would have served as a character witness for Young. Young has also provided a copy of an affidavit from another potential witness that states the witness would have “testified to Mr. Young’s good character as a loving nephew, law abiding citizen, and a person unwilling to commit a crime of murder.” The affiant further stated that she was prepared to testify that Young “found [Le-lie] already stabbed up [sic].” Young’s character was not at issue, and it is likely that such hearsay statements may have proven to be of no assistance to Young. Decisions of counsel to call or not to call certain witnesses fall within the ambit of trial strategy. Michael v. State, 918 So.2d 798, 805(¶ 13) (Miss.Ct.App.2005) (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)). Furthermore, counsel’s decisions are presumed reasonable. Id. (citing Burns v. State, 813 So.2d 668, 677(¶ 29) (Miss.2001)). Accordingly, this issue is without merit.

¶8. Young also argues to this Court that he desired to testify at his trial, but he claims that his trial counsel would not allow him to do so. Clearly, “[i]n all criminal prosecutions[,] the accused shall have a right to be heard by himself or counsel, or both.... ” Fannings v. State, 997 So.2d 953, 963(¶ 34) (Miss.Ct.App.2008) (citing Miss. Const. art. 3 § 26). We note that Young did not raise this issue on direct appeal, and he has provided nothing in the record to indicate that he presented this issue before the trial court or in his post-trial motion. Failure to raise an issue before the trial court creates a procedural bar that prohibits review of the issue on appeal. Glasper v. State, 914 So.2d 708, 721(¶ 30) (Miss.2005) (citing Smith v. State, 729 So.2d 1191, 1201(¶38) (Miss.1998)). Furthermore, Young has not provided this Court with a copy of the trial transcript, from which we may discern whether Young was advised of his right to testify and/or whether he waived such right. Young has presented nothing more than a cursory accusation that his trial counsel refused to put him on the witness stand, in disregard of Young’s desire to testify. This allegation lacks merit.

¶ 9. Young further alleges that his trial counsel failed to offer forensic evidence associated with the victim’s blood, and he claims that the failure to offer such evidence “allowed the jury to maintain the incomct impression that the blood-splatter pattern on [Young’s] slacks arose from the murder victim during the course of the murder.” (Emphasis added). Young avers to this Court that a “blood-splatter expert was prepared to testify that Young’s slacks represented a blood splatter consistent with holding a dying victim in [Young’s] arms.” Young claims that this expert opinion would have supported his story that the victim was already stabbed when he went to her room. Apparently, Young’s post-conviction-relief counsel has failed to carefully read the affidavit presented by the crime-scene analyst.

¶ 10. After stating his name, address, and credentials, the crime scene analyst stated the following:

On or about July 26, 2004; I was contacted by Brian A. Young to opine on the possibility of having been able to provide expert assistance to his original trial attorney....
As part of my analysis, I have been asked to opine on whether a bloodstain-pattern analyst would have been able to assist his attorney explain the presence of a drop of blood on his clothing.
The mere presence of blood of a victim on a defendant only indicates that the defendant came into contact with the victim’s blood while the victim was bleeding or had bled. In this case, there is a question as to whether it was an accidental transfer from a sexual act, a menstrfujating female[] or from a stabbing.
A bloodstain-pattern analyst may have been able to say if the blood on the defendant’s clothing came from a transfer (such as clothing to a blood spot), a cast off drop of blood or from another potential scenario.
In my opinion, the use of a person trained in bloodstain-pattern analysis would definitely have been able to assist in defense case preparation and advising the attorney of questions to ask of prosecution witnesses at trial. I would have expected the defense attorney to have petitioned the court for its own analyst prior to the trial and have that analyst present at court to advise him on the testimony given by the [S]tate. A defense analyst would have been able to structure questions for the trial for the defense attorney and point out additional and follow[-]up questions for the defense attorney to use in questioning the prosecution witness.

(Emphasis added). Curiously, there is no mention of an “accidental transfer [of blood] from a sexual act” within the record presented to this Court, nor does such a scenario appear in the opinion of Young’s appeal. Presumably, Young’s assertion that the blood could have been caused by holding the dying victim in his arms is “another potential scenario” mentioned by the crime-scene analyst in his affidavit. Young claims that the failure of his trial counsel to call his own expert warrants a conclusion that the outcome of the trial would have been different. We disagree.

¶ 11. It is apparent that this crime-scene analyst was contacted more than four years after Young’s trial, and he did no more than respond to a possible scenario presented by Young. The analyst’s affidavit does not indicate that he “was prepared to testify that the slacks represented a blood splatter consistent with holding a dying victim in [Young’s] arms.” Moreover, when determining a trial strategy, a defense attorney is not required to procure the services of an independent analyst to structure questions or offer follow-up questions “for the defense attorney to use when questioning the prosecution witness.” A counselor’s decision whether to call an expert witness is presumptively viewed by this Court as a strategic and tactical decision. Williams v. State, 937 So.2d 35, 40(¶12) (Miss.App.2006). Young has not shown that his trial counsel’s decision pertaining to the procurement of an independent expert deprived him of a fair trial.

¶ 12. Young also claims that his trial counsel’s performance included other failures, such as: failure to investigate whether the victim was raped before her death, failure to determine whether any DNA or forensic evidence supported alternative perpetrators, and failure of counsel to object to the State’s crime lab’s forensic findings. As stated, Young has not adequately populated the record with a transcript of the proceeding before the trial court from which this Court can make a determination whether there is any merit to these accusations. As such, Young has presented mere assertions without any sound basis or substance to support his allegations, and mere assertions are insufficient to support his claim of ineffective assistance of counsel.

¶ 13. That being said, we note that even a cursory reading of Young’s direct appeal verifies that Young’s trial attorney was exercising discretion and judgment at trial. Young’s trial counsel objected to testimony given by at least one of the investigating police officers, even asking to be heard in the judge’s chambers and making a motion for a mistrial. Young, 891 So.2d at 819(¶ 15). Young’s attorney objected to numerous jury instructions, and Young’s attorney made a motion for a new trial because the overwhelming weight of the evidence was against the verdict. Id. at 819-20 (¶¶ 16-21). On appeal, Young’s attorney argued that: the State’s evidence was weak and circumstantial; there were two other men with motives; and the evidence presented by the State was subject to different interpretations. Id. at 821(1122). Young has not overcome the presumption that his trial counsel’s actions were reasonable and competent.

B. Failure to Discuss a Plea Offer

¶ 14. Young argues that his trial counsel withheld a plea offer from him, wherein he could have plead to a lesser-included offense. In his brief to this Court, Young states that, right before going to trial, his trial attorney made a “game-day exclamation that [Young] [was] going to trial even though a plea [was] offered.” Young states that he would have accepted a plea offer, even though he maintains his innocence. Be that as it may, Young’s allegation has not gone unchallenged.

¶ 15. In response to Young’s complaint, Young’s trial attorney furnished a letter to the Mississippi Bar Association Complaints Committee, which stated that he had no recollection of any plea offer. Young cavalierly states in his brief to this Court that, although his trial attorney “does not recollect any plea offer being made, ... he does not maintain a recollection that one was not made.” (Emphasis added). This argument is unpersuasive in that this issue is not dependent upon Young’s trial attorney’s memory alone.

¶ 16. Young fails to address an affidavit from an assistant district attorney that participated in the prosecution of Young. In his letter to the Mississippi Bar Association, Young’s trial attorney stated that he was also attaching an affidavit from one of the assistant district attorneys who had handled Young’s case, and he had requested yet another assistant district attorney to check the district attorney’s office’s files to verify whether there had been a plea recommendation offered. Indeed, the record includes an affidavit from Wendy Martin, who stated that “she was an assistant district attorney for Jacks on County from 1998 to 2002[,] and [she] aided in the prosecution of BRIAN YOUNG.” She went on to state that “to the best of [her] recollection ... NO PLEA OFFER was given to ... Young. [And][,] at the time ... Young was prosecuted, it was standard policy[,] if a murder case was strong[,] that no murder case was given a plea offer to any lesser-ineluded offense or for any time less than life.” The record simply does not support Young’s allegations that his attorney failed to tell him of a plea offer. Rather, the record indicates that no plea agreement was offered to Young. Accordingly, this issue is without merit.

C. Failure to Address a Third-Party Confession Letter

¶ 17. Young states that in September 2000, his trial counsel received a confession letter from the victim’s husband. He asserts that this “pivotal piece of evidence was immediately turned over to the police investigators,” but the letter was never examined by a laboratory. He argues that his trial counsel was ineffective by not objecting to the State’s explanation as to why the letter was not sent to a laboratory for examination, by not seeking an independent examination of the letter, and by never raising the issue of examination of the letter on appeal. Again, there is nothing in the record wherein we may ascertain what Young’s trial counsel’s reasons, thoughts, or decisions may have been pertaining to the “confession letter,” other than Young’s assertion of error.

¶ 18. Nevertheless, in his brief to this Court, Young details that “one of the principal detectives” explained at trial that the letter was not sent to a laboratory for examination because the State believed too many people had touched the letter. The supreme court has found that testimony regarding the impossibility of removing latent fingerprints from certain materials introduced into evidence does not constitute error. Bullock v. State, 391 So.2d 601, 610-11 (Miss.1980). In other words, it was not improper for the State to testify that fingerprints cannot be taken from all evidence. Recognizing this truth, we find that Young’s trial attorney’s decision not to seek independent examination of the letter or object to the detective’s testimony does not constitute ineffective assistance of counsel. As such, this issue is without merit.

D. Failure to Pursue Speedy-Trial Claim

¶ 19. Young argues that he filed a motion for a speedy trial on July 24, 2001, and a hearing was held to address his motions concerning a speedy trial, discovery, and bond. However, he claims the trial court did not rule on the motion to dismiss for a speedy-trial violation. Young asserts that his trial counsel did not address such inaction, and that his trial counsel just “let it go.” He argues that his trial attorney’s actions related to his motion for a speedy trial fell “below what is reasonably expected of defense attorneys.” This historical account is not completely accurate. We look to Young’s direct appeal in an attempt to discern what transpired before and during Young’s trial, given that the record includes no documents pertaining to Young’s motions to dismiss or for a speedy trial. The supreme court set forth the following:

Young was arrested on July 5, 2000. Charged with capital murder, he remained in jail, without bail. No mention is made in the record or the briefs that he made any attempt to obtain release, or to request a speedy trial during that time. In June 2001 Young filed a motion for bail, a petition for writ of habeas corpus and a motion to dismiss the charge for denial of his right to a speedy trial. On or about July 1, 2001, at the hearing on these motions, the State announced Young’s indictment. Young’s motions were then deferred by his attorney, pending a review of the indictment. Young did not pursue these motions to a ruling by the trial court. Instead, defense counsel asked the trial court for a recess so that the State could file the indictment. Young’s indictment was filed on July 6, 2001.
On July 2U, 2001, Young filed a motion for discovery and demand for a speedy trial, followed by an amended motion to dismiss the charge. It is unclear from the record whether a hearing was held on these motions, but, on August 19, 2001, the trial judge set bond upon the reduced charge of murder and, according to Young’s brief, denied the motion to dismiss. However, the trial court failed to enter an order on the original motion to dismiss or the amended motion to dismiss the charge. Young’s trial commenced on April 2, 2002, nine months after his indictment.

Young, 891 So.2d at 817 (¶¶ 6-7) (emphasis added).

¶ 20. It is evident from Young’s direct appeal, his trial attorney made two motions to dismiss the charge because of a speedy-trial violation in June and July 2001, and the trial judge did rule on his motion to dismiss. Also, the supreme court, when evaluating Young’s speedy-trial-violation claim, stated that “[tjhere was nothing in the record or in his brief to indicate that Young made any effort to request an attorney, seek bailf,] or demand a speedy trial prior to June 2001.” Id. at 818(¶ 13) (emphasis added). Likewise, there is nothing in the record in the instant case to determine when the attorney at issue became Young’s attorney or to determine how long he waited before seeking relief for a speedy-trial violation. Furthermore, there is nothing in the record that indicates Young’s trial attorney just “let [the matter] go.” In any event, the supreme court addressed Young’s speedy-trial-violation claim under the Barker factors and determined that he did not suffer prejudice from either his pre-indictment incarceration or the post-indictment period before trial, when he was released on bond.

¶ 21. Young also argues that his trial counsel failed to adequately populate the record on appeal. He relies on the opinion set forth by the supreme court in his direct appeal. When addressing Young’s speedy-trial-violation claim on appeal, the supreme court found that there was nothing in the record to indicate prejudice to Young by his post-indictment delay and stated “[o]ur law is clear that an appellant must present to us a record sufficient to show the occurrence of the error he asserts and also that the matter was properly presented to the trial court and timely preserved.” Young, 891 So.2d at 819(¶ 14). The supreme court stated that Young did not provide evidence that the State had delayed bringing Young to trial for any improper or prejudicial reason, and the only claim presented by Young was that he was incarcerated nearly 400 days; the supreme court found that this was insufficient to prove prejudice under the Barker factors. Id. This is insufficient to merit a finding of ineffective assistance of counsel.

¶ 22. Young has not shown how the outcome of his trial would have been different based upon a record that might or might not have been fully populated by his trial counsel or what might or could have been included in the record by his trial counsel. He merely asserts that his trial counsel “failed to establish a record for appeal.” This assertion does not overcome the presumption that his trial counsel acted reasonably. If “counsel is reasonably effective in the defense of an accused, he meets constitutional standards, irrespective of the client’s evaluation of his performance.” Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990). A defendant is not entitled to expert or errorless counsel, but only to reasonably effective assistance of counsel. Id. (citation omitted). This issue is without merit.

III. DENIAL OF AN EVIDENTIA-RY HEARING

¶ 23. In his final issue, Young asserts that the trial court erred in denying his request for an evidentiary hearing prior to denying his motion for post-conviction relief. “This Court has determined that leave to proceed in the trial court does not automatically grant the petitioner a hearing.” Townsend v. State, 892 So.2d 282, 284(115) (Miss.Ct.App.2004) (citing Sanders v. State, 846 So.2d 230, 235(¶ 15) (Miss.Ct. App.2002)). “Once under the jurisdiction of the trial court, pursuant to Mississippi Code Annotated section 99-39-19(1) (Rev.2000), that court [has] the authority to render an opinion mth or without an evi-dentiary heating.” Id. (emphasis added). Based upon a thorough review of the record and pursuant to the authority of Mississippi Code Annotated section 99-39-19(1) (Rev.2007) and Townsend, we determine that the trial court did not err in denying Young’s motion for post-conviction relief after finding that his claims lacked merit. Accordingly, we affirm the trial court’s denial of Young’s motion for post-conviction relief.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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

      . Mississippi Code Annotated section 99-39-21(3) states that: "The doctrine of res judica-ta shall apply to all issues, both factual and legal, decided at trial and on direct appeal.”

      . We are unable to determine the affiant’s name from the signature on the affidavit.

      . Article 3 Section 26 of the Mississippi Constitution of 1890 states in part:
      In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself....

      . "When an appeal involves post-conviction relief, the Mississippi Supreme Court has held, 'that where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.' ” Williams v. State, 752 So.2d 477, 479(¶ 5) (Miss.Ct.App.1999) (citing Lindsay v. State, 720 So.2d 182, 184(¶ 6) (Miss.1998)).

      . We give Young the benefit of the doubt that his trial attorney did not object to the testimony. However, given that Young has not populated the record with a copy of the trial transcript, it is not certain that Young’s trial attorney did not raise an objection to any testimony related to the "confession letter.”


source: Caselaw Access Project

author: IRVING, J., for the Court.

license: Public Domain

text:
    Lee JOHNSON, Appellant, v. Rita Frances Burford HERRON, John Cal Burford Jr., and Patricia A. Grantham, Appellees.
    No. 2008-CA-01418-COA.
    Court of Appeals of Mississippi.
    Oct. 27, 2009.
    Rehearing Denied Feb. 2, 2010.
    Certiorari Denied May 6, 2010.

      Sherry P. Thompson, James W. Amos, Hernando, Dan V. Little, attorneys for appellant.
    John T. Lamar, Jr., David M. Slocum, Jr., Senatobia, attorneys for appellees.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J., for the Court.

¶ 1. This appeal arises out of a complaint filed by Orville Lee Johnson against Rita Frances Burford Herron, John Cal Bur-ford Jr., and Patricia Grantham (collectively referred to as Burford unless context requires specificity) in the DeSoto County Chancery Court in 2005. After the completion of discovery, Burford filed a motion for summary judgment, alleging that judicial and equitable estoppel barred Johnson’s claims for relief. The chancery court granted the motion. Feeling aggrieved, Johnson appeals and contends that the chancery court erred in (1) employing an incorrect standard of review; (2) finding that there were no genuine issues of material fact; (3) awarding summary judgment and then overruling Johnson’s motion for reconsideration; (4) not granting Johnson partial summary judgment due to the validity of deeds to Burford and Herron; (5) finding that a settlement agreement between Johnson, Burford, and Herron dealt with all assets of the estate; (6) finding that Johnson benefitted from the settlement agreement; (7) finding that Johnson and Herron were adversarial parties; (8) finding that judicial estoppel bars Johnson’s claims; (9) finding that equitable es-toppel bars Johnson’s claims; (10) holding that Johnson’s father voluntarily abandoned his homestead; (11) finding that Herron did not intentionally mislead Johnson about various properties; (12) failing to find undue influence by Herron; (13) finding no presumption of undue influence; (14) finding that joinder of a spouse in deeds was not necessary; (15) failing to find that Johnson’s father was an omitted spouse; (16) failing to find that Herron had a conflict of interest; and (17) applying the doctrine of laches.

¶ 2. We find that there is no genuine issue of material fact as to whether Johnson’s recovery is barred due to judicial estoppel. This finding makes Johnson’s fourth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth issues moot. Johnson’s remaining issues will be discussed during our analysis of how judicial estoppel applies in this case.

¶ B. Since we find that judicial estoppel was properly applied, we affirm the chancery court’s grant of summary judgment.

FACTS

¶ 4. On August 31, 1958, Chester Johnson married Mary B. Rowland. Johnson is Chester’s son from a previous marriage; Chester and Mary had no children together. In May 1963, Mary conveyed a piece of property in DeSoto County that was titled solely in her name to herself and Chester. The record indicates that Chester and Mary lived in a house on the property as their marital home at the time of the conveyance. Thirteen years later, in December 1977, Mary executed her last will and testament. This will provided nothing for Chester; instead, it left everything to Burford and Herron, who are Mary’s nephew and niece, respectively. Shortly thereafter, on March 30, 1978, Chester and Mary reconveyed the DeSoto County property to Mary alone. In August 1986, Mary deeded the DeSoto County property and a piece of property in Tate County to Burford and Herron.

¶ 5. In May 1986, Mary was diagnosed with lung cancer. After a stay in the hospital, Mary moved to the property in Tate County. Also, in May 1986, Chester moved from the marital home in DeSoto County to an assisted-living facility in Memphis, Tennessee. In November 1986, Chester was committed to the Mississippi State Hospital at Whitfield. The record indicates that Chester never lived at the Tate County property with Mary, nor did he ever return to the property in DeSoto County. On December 27, 1986, shortly after Chester’s commitment, Mary died of lung cancer.

¶ 6. On January 20, 1987, Mary’s will was probated. Herron and Burford were appointed as coexecutors of Mary’s estate, in accordance with Mary’s will. On September 2, 1987, Herron was appointed as Chester’s conservator. The record reflects that Herron acted as conservator rather than Johnson because Johnson was unwilling to act as conservator for his father. In 1991, Johnson’s attorney, Dan Little, contacted Gaines Baker, an attorney for Chester’s conservatorship, to inquire about property in DeSoto County and to inquire about the use of conserva-torship funds. On January 5, 1998, the DeSoto County property was conveyed to Grantham by Herron and Burford. A little more than four months later, on May 23,1998, Chester died at Whitfield.

¶ 7. On March 14, 2001, Baker sent con-servatorship papers to Little and attempted to clarify what property had been owned by Chester. On May 14, 2002, Johnson and Herron were appointed as coadministrators of Chester’s estate. On August 1, 2001, Herron, Johnson, and Bur-ford entered into a settlement agreement to close Chester’s estate. The relevant terms of the agreement are as follows:

Whereas, O.L. Johnson is the only child and sole heir at law of Chester L. Johnson and under the laws of intestacy would be entitled to inherit 100% of all assets of Chester L. Johnson;
Whereas, Rita B. Herron has been serving as Conservator of the estate of Chester L. Johnson, beginning in 1987 and until his death and to the present time, and is the niece of Mary Burford Johnson, who was married to Chester L. Johnson at the time of her death in 1986;
Whereas, John Cal Burford, Jr.[,] is the nephew of Mary Burford Johnson;
Whereas, Rita B. Herron believes and claims that Chester L. Johnson had a Last Will and Testament, which has been lost, by which Will O.L. Johnson would have received an undivided one-half of his father’s estate and Rita B. Herron and John Cal Burford, Jr.[,] would receive the other one-half of his estate;
Whereas, there has been dispute and disagreement in regard to the distribution of the assets of Chester L. Johnson, but First and Second Parties desire to resolve their differences by a compromise agreement regarding the distribution of the assets of Chester L. Johnson;
Now, therefore, for good and valuable consideration, receipt of which is hereby acknowledged, and the mutual benefit to each, First Party and Second Party do hereby promise and agree as follows:
1) The following assets belonging to the estate of Chester L. Johnson shall be divided 60% to O.L. Johnson; 20% to Rita B. Herron; and 20% to John Cal Burford, Jr., to-wit:
Money Market Account ... and checking account ... in the amount of $27,659.22 as of February 6, 2001, together with any accrued interest, and the proceeds from Southern Farm Bureau Life Insurance Company policies 45248F and 116659, together with any accrued interest.
2) It is understood and agreed that Dan Little has been representing O.L. Johnson and C. Gaines Baker has been representing Rita Herron during the extended period of the disputes and disagreements and that O.L. Johnson shall be solely responsible for the attorney fees of Dan Little, and Rita B. Herron and John Cal Burford, Jr.[,] shall be solely responsible for the attorney fees of C. Gaines Baker.
3) It is further understood and agreed that a copy of this agreement may be used to send to Southern Bureau Life Insurance Company with the directions that the proceeds from the two policies as described above shall be paid 60% to O.L. Johnson, 20% to Rita B. Herron, and 20% to John Cal Burford, Jr.
4) It is further understood and agreed that pursuant to this agreement, Rita B. Herron shall distribute 60% of the bank proceeds as described above to O.L. Johnson; 20% to Rita B. Her-ron; and 20% to John Cal Burford, Jr.

¶ 8. On September 11, 2002, Johnson and Herron filed a petition to close Chester’s estate and be discharged as administrators. The petition, which both Johnson and Herron signed, stated: “All parties, O.L. Johnson, your co-petitioner and sole heir of Chester Lee Johnson, Rita B. Her-ron, your co-petitioner ..., and John Cal Burford, Jr., ... have entered into a Settlement Agreement dated August 1, 2001[,] for the distribution of all assets of the estate.” (Emphasis added).

¶ 9. Also on September 11, 2002, Chester’s estate was closed and its assets were distributed according to the terms of the settlement agreement. The court order closing the estate specifically noted that “said Settlement Agreement is adequate and fair for the settlement of all assets of the estate.” (Emphasis added). At some point after the closing of Chester’s estate, his last will was discovered, wherein Johnson was intended to receive half of his estate, while Herron and Burford were entitled to the other half of the estate.

¶ 10. Almost three years later, on April 5, 2005, Johnson filed the complaint that gave rise to the present appeal. An amended petition was filed on December 2, 2005, in which Johnson asked: (1) that the deeds to the DeSoto County and Tate County properties be voided, making Johnson the sole owner of the properties; (2) that the court make a finding that Herron had violated her fiduciary duties to Johnson, thus entitling Johnson to a judgment in excess of one hundred thousand dollars; (8) that the court order that Johnson was entitled to half of Mary’s estate because Chester was a pretermitted spouse under the terms of Mary’s will; (4) that the court order that Grantham was not an owner of the De Soto County property or that her percentage of ownership be determined; and (5) that he be granted attorney’s fees, costs, legal interest, and any other monetary damages that the court found he was entitled to.

¶ 11. Burford and Herron responded to the complaint in separate answers on April 17, 2006. In their answers, Burford and Herron alleged counterclaims for' slander of title, requested damages, and asked that Johnson be ordered to pay for their reasonable attorney’s fees and expenses. On May 16, 2006, Johnson filed an answer to Burford’s and Herron’s counter-claims. In his answer, Johnson admitted that Mary had lived in Tate County after being diagnosed with lung cancer, and that Chester stayed “in a series of nursing care facilities in 1986.” The answer also admitted “that an Order to Distribute Estate Assets and Discharge Administrators was entered on September 11, 2002, Rita Burford Herron having failed to advise the court of the other assets rightfully belonging to Chester....” In addition to alleging that there was no merit to Burford’s and Herron’s claims, Johnson’s answer also contended that Burford and Herron possessed unclean hands.

¶ 12. On January 25, 2007, during a deposition, Johnson stated that he had no proof to support the claims in his complaint. When asked: “So what you’re telling me is, this is your [c]omplaint but you don’t have any proof to support it? You just don’t like it,” Johnson responded: “That would be a fair assumption of choice of words, yes.” When questioned as to what witnesses he planned on calling, Johnson stated that he had no witnesses to support his allegations. On August 7, 2007, Burford and Herron filed a motion requesting summary judgment against Johnson as to (1) his interest in the DeSo-to and Tate County properties, (2) any breach of Herron’s fiduciary duties, and (3) Johnson’s ownership interest in Mary’s estate. On November 20, 2007, Johnson filed a response and motion in opposition to Burford’s and Herron’s motion for summary judgment.

¶ 13. On April 9, 2008, the chancery court granted summary judgment on behalf of Burford and Herron. The court’s order incorporated oral findings that were issued by the chancellor on February 6, 2008. At the outset of the February 6 hearing, the court noted that “the evidence must be reviewed in the like [sic] most favorable to the party against whom the motion has been made. In other words, the defendant who filed this motion for summery [sic] judgment has a great hill to climb for this Court to grant a motion. ...” The chancellor further found at the February hearing that: “This Court believes that judicial estoppel precludes Orville Lee Johnson, plaintiff, from serving as coadministrator for his father’s [e]state, joining in the petition to close the [e]state, and now filing suit to contest assets that he agreed [sic] at the closure of the [estate.” The chancery court also found that equitable estoppel mandated the grant of summary judgment against Johnson.

¶ 14. On April 11, 2008, Johnson filed a motion for reconsideration or to set aside the court’s order. The motion alleged that the chancery court’s order was in error in finding that all assets of Chester’s estate had been properly distributed by the settlement agreement and ensuing order closing the estate. Johnson specifically contested the chancery court’s finding that he was estopped from making “later claims for later discovered assets.”

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 16. We find that the chancery court properly found that Johnson is judicially estopped because he acted as coadminis-trator of his father’s estate. As coadmin-istrator of his father’s estate, Johnson had an obligation to collect property that belonged to his father. When he assumed his role as coadministrator, Johnson took an oath that included the following: “he will make true and perfect inventory of the said goods, chattels, and credits and a just account wherein thereto required.” Furthermore, it is clear that Johnson ben-efitted from an expeditious closing of his father’s estate. In fact, had Chester’s missing will been discovered prior to the closing of the estate, Johnson presumably would have received ten percent less of his father’s estate.

¶ 17. Johnson argues that, prior to 1978, Chester: (1) received treatment for colon cancer, (2) developed an alcohol and drug dependency, and (3) began to suffer from mental disease and incompetency. However, there is no independent evidence in the record to corroborate the latter two of these statements. Johnson further argues that Chester’s incompetency invalidated his conveyance of the DeSoto County property back to Mary. Johnson also contends that the DeSoto County property was Chester’s homestead when Mary deeded the land to Burford and Herron. Finally, Johnson contends that Chester’s interest in the DeSoto County and Tate County properties was discovered after Chester’s estate had been distributed pursuant to an agreement to split the estate between Johnson, Herron, and Burford.

¶ 18. We apply a de novo standard of review when reviewing a grant of summary judgment. Guidant Mut. Ins. Co. v. Indemnity Ins. Co. of N. Am., 13 So.3d 1270, 1275(¶ 13) (Miss.2009). According to Rule 56(c) of the Mississippi Rules of Civil Procedure: “The judgment sought shall be rendered ... if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In considering the evidence that has been presented, a trial court “must carefully review all evidentiary matters in the light most favorable to the nonmoving party.” Guidant, 13 So.3d at 1275(¶ 13) (citing Wise v. United Servs. Auto. Ass’n, 861 So.2d 308, 311(¶ 6) (Miss.2003)). As we have already noted, the chancery court noted early in its ruling that it was bound to view the evidence in the light most favorable to the non-moving party, here Johnson.

Judicial Estoppel

¶ 19. We find all of Johnson’s contentions without merit due to judicial estop-pel. Our supreme court has discussed the concept of judicial estoppel in Dockins v. Allred, 849 So.2d 151, 154-55(¶¶ 7-8) (Miss.2003):

Because of judicial estoppel, a party cannot assume a position at one stage of a proceeding and then take a contrary stand later in the same litigation. Banes v. Thompson, 352 So.2d 812, 812 (Miss.1977). The statutory penalty is applied to both real and personal property. Miss.Code Ann. § 11-3-23. The heart of this issue is the amount in controversy on appeal. The trial court, at Allred’s urging, set the amount in controversy at 21.53% of the attorney’s fee. Allred stated, “the amount of cash in controversy is the difference between 28.47% and 50%.” Because of the firm’s argument at the hearing to set the amount in controversy, Allred cannot now assert that the amount in controversy was greater than the 21.53% of the fee the firm claimed. Judicial estoppel precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation. Dockins’s claim that the entire amount was in controversy (to the extent such a claim was made) does not face such a bar. “[W]hen the party making the prior statement, which is inconsistent with his position in the present action, has not benefitted by the assertion, the doctrine should not be applied.” Mauck v. Columbus Hotel Co., 741 So.2d 259, 265 (Miss.1999) (citing Thomas v. Bailey, 375 So.2d 1049, 1053 (Miss.1979)). Doc-kins did not benefit from his assertion that there was more than 21.53% of the fee in controversy. Allred, however, did benefit from its stance, and it is es-topped from asserting a contrary position in a later proceeding involving the same controversy.

(Emphasis added). Likewise, Johnson cannot now take a position that is opposed to his previous position, which was to his benefit at the time. The record reflects that Johnson was aware of the properties in DeSoto County and Tate County when he agreed to close his father’s estate, as shown by his inquiries about the properties, which he testified began in the late 1970s. As already discussed, the settlement agreement asserted that all of the assets of the estate had been determined and disbursed. Although the settlement agreement only referred to the then-known assets of the estate, the petition joined by Johnson over a year later affirmatively stated that it was for “all assets of the estate.” A reasonable assumption is that Johnson still had questions about other property when he entered into the settlement agreement, and that he then researched those questions over the course of the next year prior to signing the petition to close the estate. Furthermore, as the chancery court noted, all of the disputed deeds had been recorded years prior to this litigation. There is nothing in the record to suggest that Burford or Herron attempted to keep the deed hidden from Johnson or otherwise interfered with his inheritance.

¶ 20. Under the terms of the agreement reached in the estate closing, Johnson received sixty percent of the estate’s assets, while Burford and Herron split forty percent of the estate between themselves. The will that was later discovered, and that would have presumably been probated had it been discovered in time, granted Johnson only fifty percent of his father’s estate. Clearly, Johnson benefitted from the closing that was negotiated for the estate. Johnson cannot now ask the chancery court to undo the settlement agreement simply because it would be more profitable for him to do so.

¶21. Johnson contends that estoppel cannot apply in this case because judicial estoppel requires that the parties be involved in a prior adverse proceeding. See, e.g., In re Estate of Blanton, 824 So.2d 558, 563-64 (¶¶ 17-18) (Miss.2002). Johnson claims that he was not involved in a prior adverse proceeding with Burford and Herron. We note that, technically, both Johnson and Herron acted as coadminis-trators of Chester’s estate. However, we agree with the conclusion of the chancery court in this regard, which stated: “The parties were clearly adverse in the regards [sic] to the assets of the [e]state and the respective interest of the beneficiary. All parties were represented by counsel, and executed a settlement agreement to resolve their dispute ... and disagreement!,] which gave plaintiff sixty percent of the assets....”

¶ 22. Furthermore, we note that the only interest that Chester could have had in the DeSoto County property was a homestead interest. However, the chancellor properly found that Chester voluntarily abandoned any interest he had in the property when he moved to an assisted-living facility in Memphis, Tennessee, shortly before his commitment to Whitfield. As far as the Tate County property is concerned, Chester never lived there. There is nothing to suggest that the deeds conveying the property to Burford and Herron are invalid for any reason. Ultimately, there is no genuine issue of material fact to suggest that Chester had a homestead interest in either of the properties at issue.

¶ 23. When an administrator or executor undertakes to close an estate:

he shall take all proper steps to acquire possession of any part [of the estate] that may be withheld from him, and shall manage the same for the best interest of those concerned, consistently with the will, and according to law. He shall have the proper appraisements made, return true and complete inventories except as otherwise provided by law, shall collect all debts due the estate as speedily as may be, pay all debts that may be due from it which are properly probated and registered, so far as the means in his hands will allow, shall settle his accounts as often as the law may require, pay all the legacies and bequests as far as the estate may be sufficient, and shall well and truly execute the will if the law permit. He shall also have a right to the possession of the real estate so far as may be necessary to execute the will, and may have proper remedy therefor.

Miss.Code Ann. § 91-7-47(1) (Supp.2008). Our supreme court has discussed at length the standard of care that is to be exercised by an executor or administrator:

[T]he executor’s duties are “(1) to reduce to possession the personal assets of the testator; (2) to pay the testator’s debts; (3) to pay legacies; and (4) to distribute the surplus to the parties entitled thereto.” [(Quoting Yeates v. Box, 198 Miss. 602, 22 So.2d 411 (1945))]. Powers granted an executor are coextensive with the will and therein grounded. Ricks v. Johnson, 134 Miss. 676, 99 So. 142 (1924); Grant v. Spann, 34 Miss. 294 (1857).
The duly appointed executor shall carry out all of the provisions of the will that may be lawful. The will is the source and measure of the power of the executor. Ricks, 99 So. at 146. And in determining the powers of executors, the basis for all construction of language within the will is to determine first the intention of the testator as gathered from the whole will. Yeates ..., 198 Miss, at 602, 22 So.2d at 411.
One serving in the capacity of executor or administrator is an officer of the Court and holds a fiduciary relationship to all parties having an interest in the estate. A trust arises from the appointment of the executor or administrator. Schreiner v. Cincinnati Altenheim, 61 Ohio App. 344, 22 N.E.2d 587 (1939); 33 C.J.S., Executors and Administrators, § 3, p. 878 (1942).
Thus in answering questions of the powers, duties, and liabilities of executors, this Court applies the above Mississippi statutory and case law, as well as the expressed intent of the testamentary instrument itself.
In answering these questions[,] this Court must establish a standard of care chargeable to an executor in evaluating charges of maladministration. It appears proper that since a trust and fiduciary relationship is established by these connections, this Court holds that the same standard of care applicable to a general trustee applies to an executor or administrator. This standard is expressed as follows:
Ordinary care, skill, and prudence are normally required of trustees in the performance of all their duties, unless the trust instrument provides otherwise. The rule is “that trustees are bound in the management of all the matters of the trust to act in good faith and employ such vigilance, sagacity, diligence and prudence as in general prudent [persons] of discretion and intelligence in like matters employ in their own affairs.... ”
Bogert, Law of Trusts, § 93 (5th ed.1973). See also, Scott, Scott on Trusts, § 174 (3rd ed.1967).

In re Estate of Carter, 912 So.2d 138, 144-45(¶ 21) (Miss.2005) (quoting Harper v. Harper, 491 So.2d 189, 193-94 (Miss.1986)). Thus, Johnson had a duty to discover all of the assets of his father’s estate before he agreed to close the estate.

¶ 24. The record is clear that Johnson was aware of the existence of additional real property. A series of letters was exchanged between his attorney and Her-ron’s attorney, wherein the property was discussed, as was the ownership of the properties. Furthermore, as the chancery court noted in its ruling, “all the contested deeds were public record, and [have] been ... for an extended period of time.” Despite his awareness of the properties, Johnson did nothing to include these properties as assets when his father’s estate was closed. In fact, he asserted to the chancery court in his petition to close his father’s estate that “all” assets of the estate were ready for distribution. He cannot now try to undo that averment to the court.

¶ 25. We find that summary judgment was properly granted on the ground of judicial estoppel. Therefore, we affirm the judgment of the chancery court.

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

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

      . This piece of property was next door to Burford’s home. The record reflects that the property had been owned by the Burford family for a number of years.

      . Burford and Herron admit that Chester suffered from colon cancer at one point, but that he recovered prior to his commitment to Whitfield.


author: IRVING, J., for the Court. CARLTON, J.,

text:
    Christopher LAGARDE and Elizabeth Bosarge, Appellants, v. Alan LAGARDE and Lisa Lagarde, Appellees.
    No. 2008-CA-01480-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2009.
    Rehearing Denied May 4, 2010.

      Clement S. Benvenutti, Louis, attorney for appellants.
    Timothy Lee Murr, Gulfport, attorney for appellees.
   IRVING, J., for the Court.

¶ 1. This appeal arises out of a complaint for specific performance filed by Aan and Lisa Lagarde against the Estate of Mary Lagarde in the Hancock County Chancery Court. The chancery court found that a contract entered into by Mary’s son, Aan, and his wife, Lisa, to purchase a home from Mary was valid, as to its original terms, and that a gift of equity given to Aan and Lisa by Mary constituted an inter vivos gift and survived Mary’s death. Feeling aggrieved, two of Mary’s other children, Christopher Lagarde and Elizabeth Lagarde Bosage, appeal and assert: (1) that the chancellor used an improper legal standard and erred in finding that the gift of equity survived Mary’s death, (2) that the chancellor erred in finding that the gift of equity, given in the form of a letter, was symbolically delivered by Mary, (3) that the chancellor erred in finding that the gift equity letter became a valid and complete gift, (4) that the chancellor erred in granting specific performance, and (5) that the chancellor erred in awarding attorney’s fees to Aan and Lisa.

¶ 2. We affirm the chancellor’s judgment as it relates to the enforceability of the original contract. However, because we find that there was no delivery of the gift of equity to Aan and Lisa during Mary’s lifetime, we reverse and render the chancellor’s finding that Mary symbolically delivered $50,000 in equity to Aan and Lisa. Further, we reverse and remand for a determination of whether Aan and Lisa are prepared to purchase the home for the $250,000 purchase price as set forth in the original contract and without the benefit of the $50,000 gift of equity. We also reverse and render the chancellor’s award of attorney’s fees to Aan and Lisa.

FACTS

¶ 3. On July 28, 1958, Mary and her husband, Frank W. Lagarde, purchased a home located at 237 St. Charles Avenue in Bay St. Louis, Mississippi. Mary and Frank raised their nine children — Kevin, Frank Jr., Jules, Melissa, Robert, Alan, Christopher, Elizabeth, and Mary — in the home. Frank died in 1991, leaving Mary the sole owner of the residence. In 1994, Mary executed a holographic will. Pursuant to the terms of the will, Kevin, Christopher, and Elizabeth were to receive the family residence.

¶ 4. On October 24, 2003, Mary, concerned about her ability to properly manage the upkeep of the residence, wrote a letter to all of her children asking for guidance in this regard. Mary’s letter reads, in pertinent part, as follows:

I can see in the future I will be making some ... decisions such as: Will I stay in the house? Will I sell it? Will I bring in another lady to share the house with me? Will I bring in a small family to share the house? All of these things have been suggested and I’m hoping that whatever decision I make, it will be right.
I ask that each of you answer me in writing so I will know how you feel about all of the above.... PLEASE ANSWER ME AND GIVE ME YOUR IDEAS, FEELINGS AND SUGGESTIONS.

Thereafter, on November 6, 2003, Mary obtained a home-equity line of credit from Keesler Federal Credit Union (Keesler) in order to repair and renovate the residence. Then, in July 2004, Alan and his wife, Lisa, expressed interest in purchasing the family residence from Mary. An appraisal was ordered on July 19, 2004, which revealed that the house was worth $290,000.

¶ 5. On October 8, 2004, Alan, Lisa, and Mary entered into a written contract to sell the home to Alan and Lisa for $250,000. Closing was set for October 30, 2004. However, the closing was subsequently rescheduled. On November 9, 2004, Mary executed an instrument entitled “Gift Equity Letter” to Alan and Lisa, which reads as follows:

I, Mary C. Lagarde, do hereby certify the following:
a.) I am making a gift of equity, $50,000, to Alan & Lisa Lagarde. Whose relationship is: Mary is the mother of Alan Lagarde.
b.) This gift is to be applied towards the purchase of the property located at 237 St. Charles Street, Bay St. Louis, Mississippi 39520.
c.) No payment of the gift is expected or implied in the form of cash or by the future services of the recipient.
d.) The source of the gift is gift equity at the time of closing & funding for same subject property.

Two additional appraisals were conducted, one on December 1, 2004, and another on December 30, 2004. The house appraised for $257,000 on December 1, and $290,000 on December 30.

¶ 6. Mary died unexpectedly on January 11, 2005; therefore, the closing did not occur. Sometime after the execution of the contract and gift equity letter, handwritten changes were made to both documents. Specifically, the $250,000 purchase price listed on the contract was stricken through, and $256,000 was written in its place. Further, “$51,200” was handwritten on the contract to reflect the amount of the “cash down payment at closing.” Under the section that pertains to the closing costs, the contract has an “S” and a “B,” which represents seller and buyer, to the immediate left of the following provision: “Pays all other closing costs associated with this loan, including any inspections that lender requires.” The “S,” is circled and “$4,100” is written next to this provision. Also, on the gift equity letter, the $50,000 figure listed to reflect the amount of equity that Mary was conveying to Alan and Lisa, was stricken through and “$51,-200” was handwritten in its place. The record does not contain the original contract or the original gift equity letter or a copy of either document. Further, we note that there is a circle divided into four sections next to each of the handwritten changes. The initials “LL” are in the top right portion of the circle, and the initials “AL” are in the bottom right portion of the circle. Neither Mary’s initials or signature appear next to any of the changes made to either document.

¶ 7. Kevin, Christopher, and Elizabeth filed a petition to probate the will. On July 24, 2006, they were appointed as triexecutors of the estate. On September 15, 2006, Alan and Lisa filed a complaint for specific performance in chancery court, seeking to enforce the sale of the family residence. On January 7, 2007, Alan and Lisa filed an amended complaint. Christopher and Elizabeth filed an answer to the amended complaint on June 20, 2007, and asserted the following affirmative defenses: (1) that Alan and Lisa’s claims were barred by the statute of frauds, (2) that the contract had terminated by its own terms and conditions, (3) that the contract and gift of equity are the product of undue influence, (4) that the contract fails for lack of consideration, and (5) that the doctrines of waiver and estoppel bar Alan and Lisa from bringing their claim.

¶ 8. The chancery court heard the matter on August 27, 2007. All nine of Mary’s children testified at trial, and each stated that, even though she was eighty-one years old, Mary had no problem thinking and making decisions for herself and was active in her church and community. They acknowledged that Mary used a reading machine that magnified documents so that she could read them, that she was legally blind, and that she had a congenital heart problem. However, their testimonies remained consistent that Mary was very “sharp” during the last months of her life.

¶ 9. Alan testified that Mary had agreed to the changes and had planned to sign off on them at closing but that she died before she got the opportunity to do so. According to Alan, they all agreed to delay the closing per Mary’s request. According to Alan, Mary wanted to reschedule the closing date of October 30, 2004, to avoid having to reimburse Keesler for the closing costs of the Keesler loan. He also stated that Mary wanted to wait until after the holidays to settle the matter.

¶ 10. Alan also testified that, although not contained in the contract or the gift equity letter, he and Lisa had made an agreement with Mary that they would allow Mary to continue to live in the residence for the remainder of her life after they purchased the home. Alan testified that Mary registered no objection to closing outside of the October 30, 2004, closing deadline provided for in the contract and made no attempt to cancel or void the contract prior to her death.

¶ 11. The Lagarde family held a meeting the week after Mary’s death, and according to Alan, it was at this point that he informed all of his siblings that he and Lisa had entered into a contract with Mary to purchase the family residence. Alan testified that no one objected to his and Lisa’s purchase of the residence at that time. He stated that Christopher mentioned that he wanted to receive more of the proceeds of the sale. Although he initially expressed concern, Kevin agreed that the contract for the sale of Mary’s home should be enforced. With the exception of Christopher and Elizabeth, none of the other siblings objected to the enforcement of the contract and gift equity letter.

¶ 12. After considering all of the evidence before him, the chancellor found that the contract, as originally written, was valid and enforceable. The chancellor also found that Alan and Lisa failed to show consideration for the changes that were made to the contract and to the gift equity letter and found them unenforceable. The chancellor further found that Mary symbolically delivered the $50,000 gift of equity to Alan and Lisa. Also, the chancellor awarded Alan and Lisa eighty percent of their attorney’s fees that they had incurred to enforce the contract.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 14. “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous.” Sanderson v. Sanderson, 824 So.2d 623, 625-26(¶ 8) (Miss.2002) (citing Consol. Pipe & Supply Co. v. Colter, 735 So.2d 958, 961(¶ 13) (Miss.1999)). An appellate court will not “disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. (quoting Kilpatrick v. Kilpatrick, 732 So.2d 876, 880(¶ 13) (Miss.1999)).

1. Gift of Equity

¶ 15. Christopher and Elizabeth contend that the chancellor erred in several respects as to his finding that Mary symbolically delivered the $50,000 gift of equity to Alan and Lisa. Specifically, they assert that the chancellor erred in finding that the gift of equity survived Mary’s death and was validly and completely delivered to Alan and Lisa during Mary’s lifetime. Christopher and Elizabeth cite Gilder v. First National Bank of Greenville, 214 So.2d 681 (Miss.1968) for the proposition that in order for a gift to be considered a valid inter vivos gift, “the property proposed to be transferred by gift must have been delivered so that the donor surrendered all dominion over it during her lifetime.” In Mississippi, the requirements of a valid inter vivos gift are: (1) that the donor be capable of making the gift, (2) that the act is voluntary on the donor’s part, (3) that the donor intends to make the gift, (4) that the gift is complete with nothing left to be done, (5) that the property be delivered by the donor and accepted by the donee, and (6) that the gift be gratuitous and irrevocable. Jenkins v. Jenkins, 278 So.2d 446, 449 (Miss.1973) (citing McLean v. Green, 258 So.2d 247, 249 (Miss.1972)).

¶ 16. Further, in Meyer v. Meyer, 106 Miss. 638, 64 So. 420, 424 (1914), our supreme court held that:

To constitute a valid gift inter vivos, the purpose of the donor to make the gift must be clearly and satisfactorily established, and the gift must be complete by actual, constructive, or symbolical delivery without power of revocation. 20 Cyc. 1193. “A mere promise or declaration of intention to give, however clear and positive, is not enough to constitute a valid gift inter vivos. The intention must be consummated, and carried into effect, by those acts which the laiv requires to divest the donor and invest the done [sic] with the right of property. Complete and unconditional delivery is essential to the perfection of such a gift for when the donor retains dominion over the property, or where a locus poenitentiae remains in him, there can be no legal title and perfect donation, and this rule has been held particularly applicable to parol gifts, and is founded upon grounds of public policy and convenience, to prevent mistake, imposition, and perjury. Delivery to be effectual must be according to the nature and character of the thing given, and hence may be actual or constructive according to the circumstances. There must, however, be a parting by the donor with all present and future legal power and dominion over the property.” 20 Cyc. 1195; Thompson v. Thompson, 3 Miss. 737, 2 How. 737; Wheatley v. Abbott, 32 Miss. 343; Conner v. Hull, 36 Miss. 424; Young v. Power, 41 Miss. 197; Carradine v. Collins, 15 Miss. 428, 7 Smedes & M. 428.

(Emphasis added).

¶ 17. Here, the chancellor concluded that Mary had symbolically delivered the gift of equity when she signed the gift equity letter on November 9, 2004. The chancellor stated the following:

The Gift Equity letter makes it clear that Mary Lagarde intended to give a gift of equity to Alan and Lisa. Equity is intangible and cannot be physically delivered from one party to another. The letter acted as the symbolic delivery of the equity from Mary Lagarde to Alan and Lisa. Since it was to be used as consideration in the sale of property, it was directly attached and became a part of the contract for the sale of land upon its delivery to Alan and Lisa. The contract to sell the property is enforceable and the remedy for breach is specific performanee[;] therefore, Mary Lagarde relinquished all control over the equity when she delivered the Gift Equity Letter to Alan and Lisa. The Court finds the Gift Equity Letter was a valid and complete gift to Alan and Lisa and became part of the consideration for the contract.

¶ 18. We conclude that the gift equity letter did not survive Mary’s death, as we, unlike the chancellor, find that Mary did not symbolically deliver the gift of equity. We find that, even though Mary gave Alan and Lisa the gift equity letter, she retained dominion and control over the equity, because she died before she completed the transfer of equity to Alan and Lisa. Therefore, relying on Meyer, we conclude that Mary’s gift equity letter was more of a promise or declaration of her intention to give Alan and Lisa a gift of equity in the amount of $50,000, rather than a complete and unconditional delivery of the same. Alan and Lisa would have had no legal means of enforcing the terms of the gift equity letter had Mary decided to rescind her offer. Thus, we disagree with the chancellor’s finding that “Mary Lagarde relinquished all control over the equity when she delivered the Gift Equity Letter to Alan and Lisa.” The equity would have remained in Mary’s control until she turned it over to Alan and Lisa at the closing. For the reasons presented, we reverse and render the chancellor’s finding that the gift equity letter acted as symbolic delivery of the $50,000 in equity.

2. Specific Performance

¶ 19. Christopher and Elizabeth also contend that the chancellor erred in granting specific performance of the original contract. Christopher and Elizabeth argue that since the court found unenforceable the contract that Alan and Lisa were seeking to enforce, the chancellor essentially “created a new contract” and incorporated the gift equity letter into that “new contract.”

¶ 20. As noted, the contract was executed on October 8, 2004, for a purchase price of $250,000. It is clear that, a little over a month later, Mary executed a gift equity letter wherein she agreed to give a gift of equity in the amount of $50,000 to Alan and Lisa to be used as a down payment to purchase the home. On the contract, “$51,200” is handwritten following the phrase “cash down payment at closing.” The record does not contain a contract wherein $50,000 is listed to represent the amount of the down payment due at closing. Based on Alan’s testimony on cross-examination, it is reasonable to conclude that a down payment of $50,000 was never listed in the contract that was signed by Mary. We quote the relevant portions of Alan’s testimony below:

Q. Okay. What was the original amount in the figure at paragraph 1-a-excuse me, 2-a?
A. $250,000.
Q. I can see that. The line below that, 2-a.
A. Oh, I’m sorry. $51,200.
Q. That figure was changed, wasn’t it.
A. From the Exhibit D?
Q. Well, I don’t know whether it was— I mean, I — as far as I can tell, Exhibit D and this document are identical, and I’m trying to ask—
A. It was not changed on this document. It was changed on the gift equity letter.
Q. Well, didn’t you tell me that the figure in 2-a had been changed from another figure from when your mother originally signed the document?
A. No. I told you that in Exhibit J the gift equity amount had been changed from $50,000 to $51,200. It never did refer to the signed contract about that change, just about the gift equity letter.
Q. Well, isn’t it true, sir, that the original contract on line 2-a would have called for $50,000 cash down at closing to correspond with the equity letter? &
A. Are you referring to the equity letter, or are you referring to the contract?
Q. Well, I’m referring to both. Okay? <o
A. Restate your question, please. i>
Q. All right. Well, let’s start with looking at the contract itself, paragraph 2, subparagraph A; not the equity letter now, the contract, agreement to purchase or sell. cO
Yes. >
All right. You see where it’s handwritten? <0
$51,200. t>
Yes, sir. And all of the other portions of the terms of the agreement when initially signed by your mother were typed, right, or printed from a computer? <o
Yes; uh-huh. <1
And, in fact, the 2-a line was $50,000 when your mother signed it on October 8th, 2004? O'
A. On the copy that I have, it’s $51,200.
Q. That’s what’s written there on that date, sir. And we’ve established that other portions of this contract had been signed — had been modified after October 8th, 2004, haven’t we?
A. I believe so.
Q. Yes, sir. The $250, 000 sales price changed to $256, 00. Right?
A. That’s a change, yes.
Q. Yes, sir. And then the $51,200 figure as a gift, that didn’t exist — until your mortgage broker struck out that number and asked you to make the modification on it, right — or initial it?
A. I believe so.
Q. All right. So how could the gift on October 8th, 2004, be $51,200 when that figure didn’t exist in anybody’s mind?
A. If I’m not mistaken — Let me just make sure here. Steve, on the copy that I have, December [sic] 8th, 2004, it’s $51,200.
Q. Yes, sir.
A. So I don’t know what you’re trying to imply or trying to get at here. Looking at — I think what you’re doing is marrying — -trying to marry two different documents—
Q. Yes, sir.
A. —an equity document and a signed contract that my wife and I had with my mother—
Q. Yes, sir.
A. —with the full knowledge of both Liz and Chris.
Q. All right. So it’s your testimony under A- — oath that on October 8th, 2004, line 2 — a had the figure of $51,200.
A. Line 2 — a of what document?
Q. On page 3 of Exhibit J, the document that’s titled Agreement to Purchase or Sell.
A. To the best of my knowledge, $51, 200 was on there. Yes, to the best of my knowledge.
Q. All right. So on October 8th—
THE COURT: Did your mother sign Exhibit D in your presence?
THE WITNESS: The signed contract, Judge?
THE COURT: Yes.
THE WITNESS: Yes, sir.
[ATTORNEY FOR APPELLANTS]:
Q. So let me get this straight, Alan. This is your testimony. On or about November 15th 2004, Rob with Prime Lending faxed to you Exhibit J giving you instructions to initial two documents, right?
A. Correct.
Q. One was the contract, and one was the gift equity letter, right?
A. Yes.
Q. And on that date is when he made the changes to change the gift equity from $50,000 to $51, 200, right?
A. That’s what it appears to be, yes.
Q. All right. On about November 15th when he faxed this to you, right? So that would have been the date on which, at least from your perspective, your mother was now going to give you $51,200 as opposed to $50,000 before—
A. That would be—
Q. —before that date?
A. It appears that way, yes.
Q. All right. So somehow or another before that date you never knew that your mother was going to give you $51,200 as a gift?
A. No, actually, we talked about that as early as October 1st because that’s when she signed the gift equity letter. I’m sorry. That’s when it was prepared. She signed it November 9th.
Q. November 9th, but the gift at that time was $50,000, not $51,200, right?
A. That’s a difference of $1,200, yes.
Q. Well, regardless of the amount, it was a difference, right?
[ATTORNEY FOR APPELLEES]: Your Honor, he’s asked this question about three times.
THE COURT: He’s on cross-examination.
[ATTORNEY FOR APPELLEES]: Yes.
A. There was a change in the amount of gift equity.
[ATTORNEY FOR APPELLANTS]:
Q. And that change added $1,200, and that change occurred on November 15th, 2004, right?
A. Yes.
Q. But somehow mysteriously that figure did not exist before November 15th, 2004, but it was put on the original contract on November 8th, 2004[sic]; that’s your testimony?
A. The figure of $51,200 is on the signed contract dated October 8th. Q. And it was on there when your mother signed the contract on November 8th, 2004[sic]?
A. It’s very possible that the lender— And I don’t know why he would have marked out the $50,000 and put in $51,200. Let’s be real clear — I’d like the Court to be real clear, the change on this is very, very minor, you know, like I said, $1,200.

¶ 21. Paragraph seventeen of the contract provides that:

This contract incorporates all prior agreements between parties, contains the entire and final agreement of the parties, and cannot be changed except by their written consent. Neither party shall be bound by any terms, conditions, oral statements, warranties, or representations not herein contained. Each party acknowledges that he has read and understands the contract. The provisions of this contract shall apply to bind the heirs, executors, administrators, successors and assigns of the respective parties hereto. When herein need, the singular includes the plural, the masculine includes the feminine, as the context may require.

(Emphasis added).

¶22. The chancellor enforced the contract as to its original terms and stated the following:

Although testimony was provided stating the parties mutually agreed to the modifications, Mary Lagarde never signed off on those modifications. The modified contract is silent as to what further consideration was given for the modifications to be valid. Since Mary Lagarde never signed the contract, there is no evidence the modifications were the result of any bargained for return promise. The Court finds Alan and Lisa failed to show consideration to support the modifications of the initial contract making the modifications unenforceable.

¶ 23. Despite Alan’s testimony to the contrary, we find the evidence insufficient to support the conclusion that the handwritten insertion of $51,200 as the cash down payment was included in the contract when it was executed by Mary on October 8, 2004. In fact, there is no evidence that Mary agreed on October 8, 2004, to give Alan and Lisa $50,000 since the letter of gift equity was not executed until November 9, 2004. We also agree with the chancellor that Mary never agreed to the handwritten changes in writing as required by the contract and, therefore, cannot be enforced.

¶ 24. As stated, the chancellor found that the modified contract was unenforceable because Mary did not agree to the modifications in writing. However, the chancellor enforced the contract without the modifications. We find that the chancellor was correct in doing so, as the contract specifically provides that its provisions “shall apply to bind the heirs, executors, administrators, successors and assigns of the respective parties.” Thus, on remand, if Alan and Lisa are prepared to purchase the family residence for $250,000 without the benefit of the $50,000 gift of equity, the chancellor shall order the estate to proceed with the sale.

3. Attorney’s Fees

¶ 25. Christopher and Elizabeth assert that the chancellor erred in awarding attorney’s fees against them. They contend that because Alan and Lisa did not prevail on the specific issue presented to the chancellor—whether the contract with the handwritten changes was enforceable— they should not have been ordered to pay Alan and Lisa’s attorney’s fees. We agree.

¶ 26. It is well settled in Mississippi that “[i]n breach of contract cases, attorney's] fees generally are not awarded absent provision for such in the contract or a finding of conduct so outrageous as to support an award of punitive damages.” Garner v. Hickman, 733 So.2d 191, 198(¶ 23) (Miss.1999) (citing Greenlee v. Mitchell, 607 So.2d 97, 108 (Miss.1992)).

¶ 27. The contract provides as follows under the provision entitled breach of contract: “If it becomes necessary to insure the performance of the conditions of this contract either party to initiate litigation,[sic] then the losing party agrees to pay reasonable attorney[’s] fees and court costs in connection therewith.” We conclude that because Alan and Lisa initiated litigation and did not prevail in their effort to get specific performance of the contract, as modified, they are not entitled to have Christopher and Elizabeth pay their attorney’s fees. Accordingly, we reverse and render the chancellor’s decision ordering Christopher and Elizabeth to pay Alan and Lisa’s attorney’s fees.

¶ 28. The separate opinion argues that we err by enforcing the original contract because it had expired at the time of Mary’s death. It is obvious that the separate opinion means that the time specified for closing in the contract had expired, as the contract says nothing about its duration. We agree that the date specified in the contract had expired prior to Mary’s death. However, it is not appropriate to end the analysis at this point.

¶ 29. When Mary executed the gift equity letter on November 9, 2004, the date specified in the contract had expired nine days earlier. The gift equity letter is signed by Mary and by both of the purchasers, Alan and Lisa. Clearly the execution of the letter, which was designed to facilitate the closing, nine days after the closing date had expired is evidence of the parties’ written consent to extend the closing date. They must have known that the date specified in the contract had already expired. In this regard, we note that the contract specifies in section 13 that “time is of the essence of this contract....” and in section 17, that the “contract ... contains the entire and final agreement of the parties, and cannot be changed except by their written consent.” Notwithstanding these provisions, the parties did not specify the manner in which the “written consent” had to be expressed. In other words, the parties did not specify that the written consent had to be affixed to the contract via an addendum to the contract. We find that the gift equity letter, executed nine days after the closing date had expired is sufficient evidence of the parties consent to change the closing date to some unspecified date in the future.

¶ 30. Since the parties did not specify a new closing date in the gift equity letter, the law would presume that the new date would have to be a reasonable one. Leach v. Tingle, 586 So.2d 799, 803 (Miss.1991). The evidence is that Mary did not want to close by the date specified in the contract because doing so would cause her to have to pay back the closing costs which had been waived by the bank when she procured the equity loan. According to Alan’s testimony, the terms of the equity loan that Mary had made several months earlier provided that if it the loan was repaid within a year, the closing costs would be recouped by the bank. Alan further testified that because of the fast approaching holidays (Thanksgiving, Christmas, and New Year’s Day), Mary decided to stay put and wait until the holidays had passed. We find that both the explanation for the delay and the date that ultimately was set for the closing (January 9, 2005) are reasonable in light of this testimony. This, of course, leads us to the final conclusion and finding that the parties consented in writing to change the closing date to some unspecified future date and that the date that ultimately was chosen was reasonable. Therefore, we hold that the original contract survived Mary’s death and must be enforced in accordance with another provision of section 17, which provides that “this contract shall apply to and bind the heirs, executors, administrators, and assigns of the respective parties hereto.”

¶ 31. THE JUDGMENT OF THE CHANCERY COURT OF HANCOCK COUNTY IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS AND ONE-HALF TO THE APPELLEES.

LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J.

CARLTON, J.,

Concurring in Part, Dissenting in Part.

¶ 32. The closing date specified in the contract passed, but no closing occurred. Therefore, the contract expired by its own terms, and in my view, the contract was therefore unenforceable. I do not find the gift-equity letter sufficient in its terms to constitute an extension of the contract. Hence, I respectfully dissent as to the majority’s affirmance of specific performance of the contract.

¶ 33. I do, however, agree with the majority that the gift-equity letter fails to constitute a completed inter vivos gift, since the equity in the home was never transferred to complete the asserted intended gift.

¶ 34. Therefore, I concur in part and dissent in part.

KING, C.J., Joins this Opinion.

      . The testimony revealed that the original documents were destroyed in Hurricane Katrina.

      . The document signed by Mary regarding the home-equity line of credit with Keesler provides that: "If the [Home-Equity Line of Credit] amount under this ‘NO CLOSING COST’ promotion is paid off within the first year of opening the plan, the member will be required to reimburse the credit union ALL of the closing costs that were paid on [her] behalf.”

      . Exhibit D is the contract.


author: ROBERTS, J., for the Court:

text:
    Anthony ADAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01615-COA.
    Court of Appeals of Mississippi.
    April 27, 2010.

      John Hubert Anderson, attorney for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
   ROBERTS, J., for the Court:

¶ 1. Anthony Adams was convicted in the Circuit Court of Covington County for attempting to cause or purposely or knowingly causing bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm, in violation of Mississippi Code Annotated section 97-3-7(2) (Supp.2009). Adams was subsequently sentenced to seventeen years in the custody of the Mississippi Department of Corrections. Adams now appeals and raises the following issue:

WHETHER THE TRIAL COURT ERRED IN OVERRULING ADAMS’S MOTION FOR A DIRECTED VERDICT DUE TO INSUFFICIENT EVIDENCE TO PROVE AN ESSENTIAL ELEMENT OF THE CRIME

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Officer Cindy Hall responded to a call at apartment 21 at the Collins Apartments, and upon her arrival, she found a woman screaming. After entering the apartment, Officer Hall found Derrick Lockett lying on the floor, bleeding, and gurgling in his own blood. Lockett was lying underneath a fallen entertainment rack. Officer Hall testified to the surroundings of the apartment through use of photographs including: the damage made to the entry door and frame; the chair Dorothy Fairly used to block the door; and the shooting victim lying on the blood-soaked floor.

¶ 3. Officer Eric Banks also received a call to respond to a shooting at apartment 21 at the Collins Apartments. Officer Banks’s report reflects that Adams allegedly shot Lockett. Officer Banks testified regarding the search he and other police officers performed to locate Adams, but he testified that Adams was not located until November 27, 2006, sixteen days after the shooting had occurred.

¶ 4. Lockett, the shooting victim, testified regarding the events of November 11, 2006, and the events that led up to the shooting. Lockett met Fairly approximately one week before the shooting when he went to Collins, Mississippi for the first time. Lockett was later asked by Fairly and her sister if he would come to Collins again on November 11, 2006.

¶ 5. On the evening that Lockett went to Collins, at the request of Fairly and her sister, he attended a party with Fairly. After the party, they returned to Fairly’s apartment. It was approximately 2:30 a.m. or 3:00 a.m. when Lockett heard two “big booms,” the second of which got him out of bed. Lockett testified that:

By then, the door flew open in the bedroom, and I was actually bending over putting my boxers on and did not have time, and I seen (sic) the defendant right here, Anthony Adams, run (sic) through the door with a gun pointing at it. And ... when he attacked me with the gun, I put my hand up and blocked the first, because I guess he was going to try to pistol whip me and I blocked it. And he shoved me. When he pushed me, I went back into the bed. And then I got shot, you know. And when I got shot, I dropped to my knees. And when I dropped to my knees, I touched my side and I said, you shot me. And then he’s trying to pull the trigger again, and supposedly, I guess it jammed on him or, you know, whatever, and then he took off with it, you know running.

¶ 6. Lockett testified that he has never owned a weapon of any sort, and he did not have a gun on the night he was shot. Lockett also stated that he incurred serious injuries from the gun wound, and although he underwent several surgeries, he still suffers from kidney and liver injuries.

¶ 7. Adams took the stand as the sole witness on his behalf. Adams first testified that he was living in apartment 21 at the Collins Apartments with Fairly and their two-month-old daughter. However, Adams later testified that he was living with his mother; but he still had a key to Fairly’s apartment, which he used to gained access to the apartment on the night of November 11, 2006. Though he denied being broken up with Fairly at the time, he did testify that he was staying at his mother’s house rather than the apartment he had shared with Fairly for three years, because things had recently changed between them. Upon his arrival at Fairly’s apartment, Adams testified that he saw a bathroom light on. Adams went to the bedroom door, and he saw a naked man, who turned out to be Lockett, running at him with a gun. Adams testified he neither gave Lockett permission to be at his home, nor had he ever invited Lock-ett there before. Adams testified that he assumed Lockett had broken into his house. Adams proceeded to fight with Lockett over the gun, but after the gun went off, Adams fled from the scene.

¶ 8. Adams testified that he returned to his mother’s house after the tussle over the gun. He explained to his mother that there was a man in his apartment with a gun. He also stated Fairly and his child were nowhere to be found.

ANALYSIS

¶ 9. Adams contends he merely tried to pistol whip Lockett, not shoot him. Therefore, Adams argues the State failed to prove a significant element of the crime, by failing to prove that he knowingly and purposefully caused bodily injury to Lock-ett. However, “there is apparently no specific intent requirement” that the State is obligated to prove. McGowan v. State, 541 So.2d 1027, 1029 (Miss.1989). Indeed, merely proving that a defendant attempted to cause, or knowingly or purposefully did cause, bodily injury with a deadly weapon is sufficient to warrant a conviction for aggravated assault. Miss.Code Ann. § 97-3-7(2).

¶ 10. Our standard of review of a denial of a motion for a directed verdict is clear. If upon our review 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,” then we will not hesitate to affirm a trial court’s denial of a motion for a directed verdict. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The question is not whether this Court believes that the evidence is sufficient to support the defendant’s conviction, but 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.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 11. Pursuant section 97-3-7(2), “[a] person is guilty of aggravated assault if he ... b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]” As stated in Russell v. State, 924 So.2d 604, 609 (¶ 9) (Miss.Ct.App.2006), in order to meet its burden of proof, the State must prove beyond a reasonable doubt that the defendant purposely or knowingly caused or attempted to cause “bodily injury” to another with a deadly weapon. On the night in question, the evidence shows that Adams shot Lockett after a tussle over the gun had transpired. Regardless of whether Adams was attempting to pistol whip or shoot Lockett, there is still sufficient evidence to show that Adams knowingly and purposely caused bodily injury to Lockett by using a deadly weapon.

¶ 12. Adams relies on Jenkins v. State, 913 So.2d 1044 (Miss.Ct.App.2005), and Russell; however, these cases do not aid his argument that pistol whipping an individual does not constitute aggravated assault. In Jenkins, the defendant used a pistol to strike a victim in the head, rather than shoot him. Jenkins, 913 So.2d at 1046 (¶ 4). Even though no shooting occurred, Eddie Jenkins was found to have used the pistol as a deadly weapon in a manner likely to produce death or serious bodily injury. Id. at 1049 (¶ 16). Therefore, his conviction was affirmed. Id. at 1053 (¶ 32). Also, in Russell, the defendant was found to have purposely and knowingly caused serious bodily injury by striking the victim with a pipe. Russell, 924 So.2d at 607-08 (¶6). Not only do these cases fail to support Adams’s argument, they in fact weigh against him.

¶ 13. Furthermore, although he does not mention self-defense or defense of others in his appellate brief, it is clear from Adams’s testimony that his theory of the case at trial was that he had stumbled upon a break-in at his home, and he was attempting to protect Fairly and his child. Specifically, Adams stated: “I felt like he done (sic) broke in my house, done (sic) raped my old lady[,] and did something to my two-month-old daughter.” However, Lockett’s testimony as to the events of that night, and which man possessed the gun, differed. It is well settled that “[w]hen evidence is in conflict, the jury is the sole judge of both the credibility of a witness and the weight of his testimony.” Payton v. State, 897 So.2d 921, 940 (¶ 57) (Miss.2003). Given the jury’s verdict, it is clear which version of events the jury decided to believe.

¶ 14. Given that the evidence before the jury was more than sufficient to sustain a finding of guilty of aggravated assault when viewed in a light most favorable to the prosecution, we find that the circuit court did not err in denying Adams’s motion for a directed verdict. As such, Adams’s only issue is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF COVINGTON COUNTY OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF SEVENTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COV-INGTON COUNTY.

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

      . Fairly was Adams former girlfriend. She lived at the apartment at the time of the assault. However, she did not testify at Adams's trial.