Mississippi Court of Appeals Opinions Hand Down Date: 2/8/05




TOPIC(S): Divorce: Irreconcilable differences - Child custody 

TRIAL JUDGE: Hon. Johnny Lee Williams

TRIAL COURT: Forrest County Chancery Court

ATTORNEY(S) FOR APPELLANT: S. Christopher Farris

ATTORNEY(S) FOR APPELLEE: William Lawrence Peebles, Eugene Love Fair

AUTHOR: Judge Griffis

FACTS:  Kimberly Funderburk and Charles Funderburk agreed to a divorce on the grounds of irreconcilable differences.  They submitted the issues of custody of their two minor children, child support, responsibility for medical insurance, equitable distribution of the marital assets, and alimony to the chancellor.  The chancellor awarded custody of the two children to Charles, and Kimberly appeals.

ANALYSIS: Kimberly argues that the chancellor abused his discretion and was manifestly wrong in his evaluation of the various Albright factors in determining the issue of custody.  These factors include the age of the children; the health and sex of the children; which parent had the continuity of care prior to the separation; which parent has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parents and their responsibilities in that employment; the physical and mental health and age of the parents; emotional ties between parent and child; the moral fitness of the parents; the home, school and community record of the child; the preference of the child if of sufficient age; the stability of the home environment and employment of each parent; and any other relevant factors.  The chancellor found no Albright factors to favor Kimberly but found continuity of care, employment of the parent and responsibilities of employment, moral fitness of parent, home, school and community record of the child, and stability of home environment to favor Charles.  The chancellor's findings are supported by credible evidence in the record.  The chancellor adequately stated the factual findings and legal conclusions that he relied on to find that the contested factors favored Charles.

HOLDING: Affirmed.



TOPIC(S): Divorce: Irreconcilable differences - Division of marital property - Marital debt

TRIAL JUDGE: Hon. Ceola James

TRIAL COURT: Washington County Chancery Court


ATTORNEY(S) FOR APPELLEE: William R. Striebeck

AUTHOR: Chief Judge King

FACTS:  Ramona Shoffner and Albert Shoffner, III were divorced on the grounds of irreconcilable differences.  The chancellor's final decree ordered Ramona to deliver a quitclaim deed for the marital residence Albert and to begin making payments of $150 on the fifth of every month to Albert until the marital debt in the amount of $6,486.04 was paid in full.  Ramona appeals.


Issue 1: Marital residence

Ramona argues that the chancellor erred by not awarding her any equity in the martial residence, because the chancellor did not consider her direct and indirect contributions to the marriage, the needs of the parties, or Albert's excessive drinking.  When dividing marital property, the court should consider economic and domestic contributions by each party to the marriage; expenditures and disposal of the marital assets by each party; the market value and emotional value of the marital assets; the value of the nonmarital property; tax, economic, contractual, and legal consequences of the distribution; elimination of alimony and other future frictional contact between the parties; income and earning capacity of each party; and any other relevant factor.  The record does not support Ramona's claim of having received no equity in the marital residence. The record clearly reflects that the chancellor determined that she was entitled to one-half of the equity in the marital home. However, the chancellor also determined that Albert was entitled to one-half of Ramona's retirement accounts.  Rather then having Ramona give Albert $19,168.81, from the retirement accounts, the chancellor chose to have the respective obligations completely off-set each other. 

Issue 2: Credit card debts

Ramona argues that the chancellor erred by requiring her to pay $6,486.04 of the credit card debts, because the debt was not marital debt.  There is no evidence in the record that the credit card debt was not marital debt.  In fact, Albert prepared extensive lists, delineating the charges made to the credit cards, which included: automobile maintenance, holiday gifts for the family, gasoline, meals for the family, etc.  Expenses incurred for the family, or due to the actions of a family member, are marital debt and should be treated as such upon dissolution of the marriage. 

HOLDING: Affirmed.

CONCUR IN PART AND IN RESULT: Presiding Judge Bridges joined by Presiding Judge Lee and Judges Griffis and Barnes



COKER v. STATE, NO. 2003-CP-01531-COA

TOPIC(S): Post-conviction relief - Ineffective assistance of counsel - Mental evaluation - Out-of-time appeal

TRIAL JUDGE: Hon. Andrew C. Baker

TRIAL COURT: Tate County Circuit Court


ATTORNEY(S) FOR APPELLEE: Office of the Attorney General: W. Glenn Watts

AUTHOR: Judge Griffis

FACTS:  Danny Coker was convicted of making fraudulent statements and submitting fraudulent documents to a governmental agency.  He was sentenced to four years.  He filed a motion for post conviction relief which was denied.  He appeals.


Issue 1: Ineffective assistance of counsel

Coker argues that he received ineffective assistance of counsel, because his counsel led him to believe that by waiving his right to appeal, the judge would show leniency.  However, the record shows that prior to waiving his right to appeal, Coker was fully informed by the judge that his sentence could not be reduced because of his status as a convicted felon. The judge informed Coker of his maximum sentence and advised him of the consequences of waiving his right to appeal.  Coker also argues his counsel was deficient because he failed to properly investigate the case and failed to request discovery. Coker provides no evidence to establish that his counsel failed to investigate his case and his assertion that his counsel did not request discovery is contradicted by the court file.

Issue 2: Mental evaluation

Coker argues that his due process rights were violated by the court's refusal to grant a mental evaluation.  There is no abuse of discretion in denying a mental evaluation where there has been no proof presented to the trial judge that such an examination is needed.  The record shows that Coker was alert and understood the nature of the proceedings and the circumstances and consequences surrounding his actions.

Issue 3: Out-of-time appeal

Coker argues that he should have been granted an out-of-time appeal.  A defendant who desires an out-of-time appeal must show that the failure to timely perfect an appeal was through no fault of his own.  The record indicates that Coker voluntarily abandoned his right to appeal.

HOLDING: Affirmed.


SMITH v. STATE, NO. 2003-KA-01063-COA

TOPIC(S): Fondling a child & Sexual battery - Admission of statement - Weight of evidence - Cross-examination of witnesses - Lesser included offense instruction - Closing argument

TRIAL JUDGE: Hon. George B. Ready

TRIAL COURT: Desoto County Circuit Court


ATTORNEY(S) FOR APPELLEE: Office of the Attorney General: Jean Smith Vaughan

AUTHOR: Judge Chandler

FACTS:  Kenneth Smith was convicted of fondling a child and of sexual battery to a child between the ages of fourteen and sixteen.  He was sentenced to twenty years for the battery conviction, with five years suspended, and to fifteen years for the fondling conviction, with the sentences to run concurrently.  Smith appeals.



Issue 1: Admission of statement

Smith argues that the court erred in allowing a detective who investigated the case to testify that Smith made a statement to the effect that anything between him and the girls was consensual, because Smith made the statement in the absence of Miranda warnings.  With sexual crimes involving children, consent is not an element that the State must prove, and in this case, the jury did not consider the issue of consent. It is therefore extremely unlikely that the jury's verdict would have been any different without the admission of this statement.  There is no evidence that Smith was prejudiced by the testimony.  Smith also argues that his right against self- incrimination was violated, because the testimony led him to testify since he need to explain the statement. However,  Smith gave no indication that he wished to testify for the sole purpose of explaining the testimony. Smith's direct-examination was primarily devoted to his efforts to deny that he ever acted inappropriately towards the victims and to discredit the victims' testimony.

Issue 2: Weight of evidence

Smith argues that the verdict is against the overwhelming weight of the evidence because the testimonies of the victims were considerably impeached.  The credibility of the witnesses is one for the jury to resolve.  The jury assessed the witnesses' respective testimonies and concluded that the testimony was sufficiently credible to warrant a conviction.

Issue 3: Cross-examination of witnesses

Before the trial took place, Smith's attorney attempted to interview the victim witnesses about their allegations. The girls chose not to speak with Smith's attorney.  At trial, Smith's attorney requested that the judge allow questioning about their refusal to speak with him but the court refused.  Smith argues this was error.  The exclusion of information which is either wholly extraneous to the charges laid in the indictment and/or unprovoked by the witness' direct testimony lies within the discretion of the judge.  Smith's attorney wished to cross-examine the victim witnesses on matters that were not elicited in the witnesses' direct-examination testimony, for the sole purpose of impeaching these witnesses. The judge's decision to limit the scope of cross-examination was therefore within his sound discretion.

Issue 4: Lesser included offense instruction

Smith argues that the court erred in refusing his instruction on contributing to the delinquency of a minor which was intended as a lesser included offense of the charge of sexual battery of a minor. Smith is entitled to have jury instructions on his theory of the case presented, even if the evidence that supports it is weak, inconsistent, or of doubtful credibility.  Here, there is no evidence that would allow the jury to convict Smith for contributing to the delinquency of a minor instead of sexual battery and fondling. Smith's crime in giving cigarettes to the girls was a separate occurrence from Smith's sexual crimes.  Contributing to the delinquency of a minor is not a lesser included instruction for sexual battery and fondling.

Issue 5: Closing argument

Smith argues that the prosecutor's statement during closing argument that criminals commit horrible acts but sometimes put on a coat and tie to look like the rest of the world was prejudicial. The judge is in the best position to weigh the consequences of the objectionable argument.  Here, there is no reason to believe that the jury was prejudiced by the State's improper comment.

HOLDING: Affirmed.


HAYES v. STATE, NO. 2003-KA-01577-COA

TOPIC(S): Murder & Felon in possession of firearm - Weight of evidence

TRIAL JUDGE: Hon. Kenneth L. Thomas

TRIAL COURT: Bolivar County Circuit Court


ATTORNEY(S) FOR APPELLEE: Office of the Attorney General: Jeffrey A. Klingfuss

AUTHOR: Judge Irving

FACTS:  Michael Hayes was convicted of murder and of being a felon in the possession of a firearm. Hayes was sentenced to a term of life imprisonment for the murder conviction and three years for the felon in the possession of a firearm conviction.  Hayes appeals.

ANALYSIS: Hayes argues that verdict was against the overwhelming weight of the evidence, because he acted in self-defense and his version of the events of the shooting were not contradicted in material particulars by the prosecution.  Dr. Steven Haynes, who performed an autopsy on the victim's body testified that the shooter had to be standing at almost a ninety

degree angle from the victim. This was contrary to Hayes's testimony which implicitly placed him and the victim face to face.  Another witness testified that Hayes was angry about the fight with the victim and was waving a gun around threatening to get even with the victim.  Hayes himself gave contradictory testimony. The jury heard Hayes's testimony, inconsistencies and all, and did not believe that Hayes possessed a reasonable apprehension of great bodily harm at the hands of the victim which would justify the shooting in self-defense. It is the jury's duty to determine the reasonableness of the ground upon which the defendant acts and whether the defendant acted in self-defense.

HOLDING: Affirmed.


WILKS v. STATE, NO. 2003-KA-02445-COA

TOPIC(S): Aggravated assault - Weight of evidence

TRIAL JUDGE: Hon. Stephen B. Simpson

TRIAL COURT: Harrison County Circuit Court


ATTORNEY(S) FOR APPELLEE: Office of the Attorney General: Scott Stuart

AUTHOR: Presiding Judge Bridges

FACTS:  Edward Wilks was convicted of aggravated assault and sentenced as an habitual offender to life without parole.  He appeals.

ANALYSIS: Wilks argues that the verdict is contrary to the overwhelming weight of the evidence, because the State failed to prove every element of the crime for which he was indicted and to present any evidence, other than the testimony of the victim, that proves his guilt beyond a reasonable doubt.  The jury, sitting as finders of fact, is vested with the sound discretion regarding questions of credibility as to any witness, including the victim, as well as what weight or worth to assign to any witness's testimony.  If the jury finds the testimony worthy of belief, the uncorroborated testimony of the victim of a crime alone is sufficient evidence to sustain a conviction.  Here, the victim's testimony that Wilks cut her neck with the box cutter was unequivocal.

HOLDING: Affirmed.

WINSTON v. STATE, NO. 2003-CP-02708-COA

TOPIC(S): Post-conviction relief - Summary dismissal

TRIAL JUDGE: Hon. C. E. Morgan, III

TRIAL COURT: Grenada County Circuit Court


ATTORNEY(S) FOR APPELLEE: Office of the Attorney General: John R. Henry

AUTHOR: Presiding Judge Bridges

FACTS:  Robert Winston pled guilty to sexual battery.  While under post-release supervision, Winston was arrested for simple assault, thereby violating the terms of his probation. Consequently, he was required to serve the remainder of his sentence.  He filed a motion for post-conviction relief which was denied.  He appeals.

ANALYSIS:  Winston lists the following as the grounds for which he is entitled relief: ineffective assistance of counsel; involuntary plea; newly discovered evidence; unlawful revocation of probation; and violation of due process rights.  Summary dismissal of a petition for post-conviction relief is proper if it plainly appears from the record that the movant is not entitled to any relief.  Winston failed to include with his petition the statutorily required affidavits and documents, and the explanation he offered, that he was incarcerated, does not demonstrate good cause for the purpose of excusing such failure.

HOLDING: Affirmed.



TOPIC(S): Post-conviction relief - Voluntariness of plea - Proof of guilt - Ineffective assistance of counsel

TRIAL JUDGE: Hon. V. R. Cotten

TRIAL COURT: Leake County Circuit Court


ATTORNEY(S) FOR APPELLEE: Office of the Attorney General: Scott Stuart

AUTHOR: Chief Judge King

FACTS:  Stephen Carpenter pled guilty to statutory rape.  He was sentenced to three years, with two years to serve, followed by five years of post-release supervision.  Carpenter filed a motion to vacate sentence and judgment which the court considered to be a post-conviction relief motion and denied.  Carpenter appeals.


Issue 1: Voluntariness of plea

Carpenter argues that his guilty plea was involuntary, because the court never actually asked him each of the questions regarding the waiver of his constitutional rights.  The judge specifically asked Carpenter questions regarding his understanding of the waiver of his constitutional rights. Carpenter indicated that he understood these rights and the waiver of these rights.  Because the record shows that reasonable steps were undertaken to insure that Carpenter's plea was voluntary, this issue is without merit.

Issue 2: Proof of guilt

Carpenter argues that the State failed to establish his guilt beyond a reasonable doubt. The failure to prove Carpenter's guilt beyond a reasonable doubt is not the proper subject matter for post-conviction relief.  In addition, the entry of a guilty plea operates to waive the defendant's privilege against self-incrimination, the right to confront and cross-examine the prosecution's witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.

Issue 3: Ineffective assistance of counsel

Carpenter argues that he was denied effective assistance of counsel because his attorney failed to accurately advise him of the maximum and minimum penalty for statutory rape, failed to investigate the case, and failed to advise him of parole eligibility/ineligibility.  The record that the petition signed by Carpenter noted the maximum penalty for the offense as 30 years and $10,000.  Additionally, the court informed Carpenter of the sentence for the crime of statutory rape.  As to the failure to investigate, Carpenter admitted that he committed the offense of statutory rape.  Carpenter has not suggested any specific facts that would have shown that an investigation might yield any information that would impact the issue of guilt.  Carpenter has also failed to show that he received or relied upon inaccurate information on his parole eligibility in deciding to enter a plea of guilty.

HOLDING: Affirmed.