author: WALLER, Presiding Justice,

text:
    James Allen WALKER v. STATE of Mississippi.
    No. 2003-KA-00313-SCT.
    Supreme Court of Mississippi.
    Aug. 5, 2004.

      Bobby Taylor Vance, Batesville, attorney for appellant.
    Office of the Attorney General, by John R. Henry, attorney for appellee.
    Before WALLER, P.J., CARLSON and DICKINSON, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. James Allen Walker appeals from a jury verdict convicting him of possession of two precursor chemicals (pseudoephedrine and lithium), knowing that the precursor chemicals would be used to unlawfully manufacture a controlled substance (methamphetamine).

¶ 2. On June 12, 2001, an employee of Sam’s Club in Southaven called the Sou-thaven Police Department, reporting that a white male had bought large amounts of ephedrine. As the police arrived, a GMC pickup truck occupied by two white males was leaving the parking lot. The driver of the truck matched the description (white male, mid-30s, wearing a pullover shirt with three large stripes) given by the employee. The police proceeded to follow the truck and then noticed that the truck had no brake lights. They stopped the truck and informed the occupants, James Allen Walker and William Stanley Miller, that they had received a report about someone buying large quantities of ephedrine. The occupants verbally consented to a search of the truck. The police recovered several boxes of ephedrine and several packs of lithium batteries. Walker and Miller were arrested for possession of two or more precursors.

¶ 3. After a trial, Walker was found guilty and was sentenced to 20 years in the custody of the Mississippi Department of Corrections, with 10 years suspended conditioned on future good behavior. After considering the issues Walker raises on appeal, we affirm the conviction and sentence.

DISCUSSION

I. THE CONSTITUTIONALITY OF MISS. CODE ANN. § 41-29-313(l)(a)(ii).

¶ 4. Walker argues that Miss.Code Ann. § 41 — 29—313(1)(a)(ii) (Supp.2003), the statute under which he was convicted and sentenced, is unconstitutionally vague. The statute provides in pertinent part as follows:

(l)(a) Except as authorized in this section, it is unlawful for any person to knowingly or intentionally:
* * *
(ii) Purchase, possess, transfer or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance.
* * *
(3) The terms “listed precursor drug or chemical” means a precursor drug or chemical that, in addition to legitimate uses, may be used in manufacturing a controlled substance in violation of this chapter.... The following are “listed precursor drugs or chemicals”: ... (d) Ephedrine; ... (f) Lithium;....

Walker contends that:

[t]he reasonable person who sees legal and legitimate items for sale with no notice that the brand or name under which they are sold may contain an ingredient [that] is a precursor and that the purchase of two or more legitimate, legal items may subject the purchaser to criminal prosecution does not have notice and such lack of notice denies the American consumer of common household products constitutional due process.

¶ 5. “Legislative acts are ... cloaked with a presumption of constitutionality, and unconstitutionality must appear beyond reasonable doubt.” Mauldin v. Branch, 866 So.2d 429, 435 (Miss.2003) (citing In re Estate of Smiley, 530 So.2d 18, 21-22 (Miss.1988)). A statute’s validity is presumed:

We adhere here to the rule that one who assails a legislative enactment must overcome the strong presumption of validity and such assailant must prove his conclusions affirmatively, and clearly establish it beyond a reasonable doubt. All doubts must be resolved in favor of validity of a statute. If possible, a court should construe statutes so as to render them constitutional rather than unconstitutional if the statute under attack does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity.

Loden v. Miss. Pub. Serv. Comm’n, 279 So.2d 636, 640 (Miss.1973) (citations ’omitted). We must presume that the Legislature “intended to comply with the organic law, and the statute should be given a reasonable interpretation which is consistent with that presumed intent and which would permit the upholding of the act.” Mauldin, 866 So.2d at 435 (citing Berry v. Southern Pine Elec. Power Ass’n, 222 Miss. 260, 76 So.2d 212, 214 (1954)).

¶ 6. “[T]he wording of a statute does not necessarily offend the requirements of due process as long as the language provides a ‘sufficient warning as to the proscribed conduct when measured by common understanding and practices ....”’ Perkins v. State, 863 So.2d 47, 54 (Miss.2003) (citing Cassibry v. State, 404 So.2d 1360, 1368 (Miss.1981) (following Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957))).

¶ 7. We find that Walker has failed to overcome the presumption that the statute is constitutional. Walker’s argument that an ordinary person buying a box of decongestant would not know that he or she was committing a crime fails because the statute requires mens rea, i.e., either having known or should have reasonably known that the decongestant would be used in the manufacture of a controlled substance. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982) (“[A] scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.”). See also Tobacco Accessories & Novelty Craftsmen Merchants Ass’n v. Treen, 681 F.2d 378 (5th Cir.1982); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213 (11th Cir.1982).

¶ 8. This claim is without merit.

II. WHETHER THE POLICE OFFICER’S ACTS OF FOLLOWING WALKER’S TRUCK AND MAKING AN INVESTIGATORY STOP WERE BASED ON REASONABLE SUSPICION.

¶ 9. Walker claims that probable cause and/or reasonable suspicion did not exist because Officer Greg Smorowski, the first officer on the scene, began following Walker’s truck before Officer Smorowski was able to determine that Walker’s appearance matched that of the description given. Indeed, the record shows:

... Dispatch put out a call that there was a white male subject inside Sam’s attempting to purchase a large amount of ephedrine. So I told dispatch that I was in the area, and I pulled up onto the parking lot trying to locate the subjects or the vehicle.
At that time, they didn’t have a vehicle description. [A] blue pickup truck ... was leaving the parking lot as I was pulling up on the parking lot. It was occupied by two white males.... I looked down at it, and it didn’t have any brake lights on the vehicle. So I pulled in behind it and waited for traffic to clear.
When they got a break in traffic, the vehicle made a left turn out onto Goodman Road, and at that time, I made a left turn out on Goodman Road after the vehicle, and I was able to observe the driver of the vehicle. The driver of the vehicle, as the call was put out was supposed to be a white male wearing a striped shirt where the stripes ran up and down.

¶ 10. Walker is mistaken that probable cause was needed to (1) watch the truck because of the defective brake lights; (2) follow the vehicle after matching Walker’s description with that given by the Sam’s employee; and (3) make an investigatory stop. All that is needed for these activities is reasonable suspicion:

[T]he Fourth Amendment ... requires that in every situation the officer must make the intrusion into the person’s privacy as limited as reasonably possible. On the other hand, as aptly stated in United States v. West, 460 F.2d 374 (5th Cir.1972), “The local policeman ... is also in a very real sense a guardian of the public peace and he has a duty in the course of his work to be alert for suspicious circumstances, and, provided that he acts within constitutional limits, to investigate whenever such circumstances indicate to him that he should do so.”

Singletary v. State, 318 So.2d 873, 876 (Miss.1975). The constitutional requirements for an investigative stop and detention are less stringent than those for an arrest. An investigative stop of a suspect may be made so long as an officer has “a reasonable suspicion, grounded in specific and articulable facts, that a person he encounters was involved in or is wanted in connection with a felony.” (Floyd v. City of Crystal Springs, 749 So.2d 110, 114 (Miss.1999)). Put another way, the investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to conduct a brief investigative stop if the officer had a reasonable suspicion, based upon specific and articula-ble facts which, taken together with rational inferences from those facts, result in the conclusion that criminal behavior has occurred or is imminent. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889, 904-05 (1968).

¶ 11. We find that Officer Smorowski did have a reasonable suspicion to pick out Walker, to begin to follow him, and to make an investigatory stop. The officer knew that a white male had bought a large quantity of ephedrine. The Sam’s employee could not have called the police department until the person checked out because there was no way to determine what the person was purchasing until check-out. Therefore, the officer reasonably opined that the person would be in the parking lot by the time the officer arrived. He saw Walker’s truck with two white male passengers. At that point, it was reasonable to suspect that the white male who purchased the ephedrine could be one of the occupants of the truck. He noticed that the truck did not have brake lights, so, as the truck had stopped at the entrance to the parking lot in order to make a left-hand turn, the officer pulled in behind it. As the truck pulled out into traffic, the officer was able to see that the driver (Walker) of the truck had on a pullover shirt with three wide stripes, matching the description given by the Sam’s employee. The officer began to follow the truck and then made an investigatory stop.

¶ 12. The United States Supreme Court has stated that, as a general rule, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Floyd, 749 So.2d at 115 (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996)). Miss.Code Ann. § 63-7-13(3) (Rev.1996) provides that “every motor vehicle ... shall be equipped with at least one rear lamp mounted on the rear, which, when lighted, shall emit a red light plainly visible from a distance of five hundred feet to the rear.” Therefore, because Walker’s truck violated § 63-7-13(3), and a traffic violation had occurred, stopping the truck was reasonable. This issue is without merit.

III. WHETHER THE POLICE OFFICERS HAD PROBABLE CAUSE TO EFFECTUATE A SEARCH AND SEIZURE.

¶ 13. Walker contends that his consent to the search of his truck “was tainted, as a matter of law, by the unlawful detention during which it was elicited,” and that his “detention became unreasonable and unduly excessive in scope at the point when the officers shifted the focus of their investigation from the improper equipment to the possibility of locating contraband within the vehicle.” He further argues that the police officers could not have seen any contraband in plain view.

¶ 14. “The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution contain almost identical language expressing a person’s right to be secure from unreasonable searches and seizures.” Floyd, 749 So.2d at 114. The prohibition against unreasonable searches and seizures “applies to seizures of the person, including brief investigatory stops such as the stop of a vehicle.” Id.

¶ 15. A search is not unreasonable when it is based on probable cause. Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed, Godbold v. State, 731 So.2d 1184, 1189 (Miss.1999); Craig v. State, 739 So.2d 410, 412 (Miss.Ct.App.1999).

¶ 16. Two exceptions to the rule that a search cannot be conducted without probable cause are as follows: When a driver voluntarily consents to a search of his or her vehicle, there is no need for a search warrant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); Luton v. State, 287 So.2d 269, 272 (Miss.1973). “If police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (referencing the “plain view” doctrine).

¶ 17. Sergeant Steve Stewart of the Southaven Police Department testified that he pulled in after Officer Smorowski had stopped Walker’s vehicle:

While [Walker] was speaking with Officer Smorowski on the stop on the Krystal lot, I observed a Wal-Mart bag on the front passenger floorboard which contained several boxes of antihistamine] tab[let]s or ephedrine and possibly some batters in that pack. It seemed like multiple boxes.
I first explained to [Walker] why I was there because of the call that we had received and asked him did he have any Sudafed in the truck, and he advised that he had purchased several boxes for his store; and then I asked him would he mind if I looked, and he said, “Yeah, sure. Go ahead. That’s all I have in there.”

¶ 18. Walker testified that when he got out of his vehicle after Officer Smorowski pulled him over, he left the driver’s side door open. This testimony undermines Walker’s claim that Sergeant Stewart could not have seen anything inside the vehicle in plain view.

¶ 19. The Court of Appeals has recently addressed this exact factual situation: After an investigatory stop, the police officer observed a shopping bag containing ephedrine on the back seat. The driver consented to a search of the car. When a driver voluntarily consents to a search of his vehicle, there is no need for a search warrant. Burchfield v. State, — So.2d -, 2004 WL 1244746 *2 (Miss.Ct.App.2004) (citing Luton v. State, 287 So.2d 269, 272 (Miss.1973)). Here, Walker put on absolutely no evidence that he did not consent to the search. He only contends that the stop was unlawful. Because we find that the investigatory stop was based on a reasonable suspicion, we also find that, after the ephedrine was seen in plain view, the officers had probable cause to search the vehicle.

IV. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING EVIDENCE OF PRIOR CRIMES AND OTHER BAD ACTS.

¶20. Walker argues that receipts found in the vehicle were inadmissible because:

there was no chain of custody established, no predicate laid, there [was] no personal knowledge by the State and its witnesses as to who, what, when, where and how the receipts came to be in the vehide[,] no lab results obtained and no physical evidence of the pre-June 12, 2000 [the day of the search and seizure] receipts.

He cites no authority in support of this issue.

¶21. The court ruled that Walker “opened the door” to testimony about the receipts, and that Walker was charged with, among other things, knowingly possessing “precursor drugs or chemicals that, in addition to legitimate uses, may be used in manufacturing a controlled substance .... ” The receipts which were found in the driver’s side door pocket, showed purchases of lithium batteries, a small turner, a pitcher, two boxes of salt, one measuring cup, one spoon, one package of Sudafed, one large gallon container, and two cans of starting fluid. The items were purchased from several different stores. Sergeant Stewart testified as follows:

The salt is part of a process to cook the dope. [T]he container is used as a gas generator. When you pour professional Drano, when you mix it with salt, it causes a reaction, and it’s used to bubble off the dope. It’s called the gassing off process, and they use these containers to do that. The gallon jug would be used for a pill soak.... We’re seeing they want to use plasticware instead of glassware most of the time.

¶22. We find that the receipts were properly admissible because they were for items used in manufacturing methamphetamine and because the defense opened the door to the admission of the receipts. Further, we find that the receipts were within the immediate physical vicinity of Walker inasmuch as they were found in the driver’s side door pocket and Walker was driving the vehicle. The receipts were therefore under his immediate control and were properly linked to Walker. See Keys v. State, 478 So.2d 266, 267 (Miss.1985) (Constructive possession may be proved by showing a suspect had dominion and control over the location in which the contraband is found). We find that, even though because the products listed in the receipts were not found in the vehicle, the receipts were admissible because they tended to prove Walker’s intent to manufacture methamphetamine. United States v. Valencia-Amezcua, 278 F.3d 901, 910 (9th Cir.2002) (Conviction for production of methamphetamine amply supported by “powerful circumstantial evidence, the receipts for the purchase of household tools used in methamphetamine production, found in Amezcua’s possession at the time of the arrest and showing purchases from stores near Amezcua’s home.”). Finally, we find that no State Crime Lab authentication was needed for unopened boxes of ephedrine which were in unbroken blister packages. There was no evidence that the substance within the ephedrine boxes was anything but ephedrine. This issue is without merit.

V. JOHNNY COX’S TESTIMONY.

¶ 23. Johnny Cox testified as an expert in the field of methamphetamine investigative procedures. He testified that the items located in Walker’s truck and all of the items listed on the receipts located in the truck were consistent with the manufacture and production of methamphetamine. He also testified about clandestine laboratories, the methamphetamine manufacturing process, and the DEA’s formula of calculating the amount of finished product/yield produced with the number of pills and/or precursors that were in Walker’s possession at the time of the arrest.

¶ 24. Walker contends that this testimony was inadmissible because, prior to trial, the State stipulated that Walker was not a methamphetamine manufacturer and that it would not “introduce any evidence of manufacture in its case-in-chief.” This argument is not well taken. Walker was not charged with the manufacture of methamphetamine; he was charged with the possession of precursors with the intent that the precursors would be used in the manufacture of methamphetamine. This charge clearly does not state that Walker was the person who engaged in the manufacture of methamphetamine. However, it is very relevant to the charge of possession of precursors that someone with expertise testify as to the manufacture of methamphetamine so that the precursors which were found in Walker’s possession would be used in the manufacture of methamphetamine.

¶ 25. This claim is without merit.

VI. WHETHER THE CIRCUIT COURT ERRED IN REFUSING TO GIVE A JURY INSTRUCTION ON ENTRAPMENT.

¶26. Our standard of review for the grant or denial of jury instructions is:
[T]he instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.

Howell v. State, 860 So.2d 704, 761 (Miss.2003) (quoting Thomas v. State, 818 So.2d 335, 349 (Miss.2002) and Humphrey v. State, 759 So.2d 368, 380 (Miss.2000)).

¶ 27. Entrapment is the act of inducing or leading a person to commit a crime not originally contemplated by him, for the purpose of trapping him for the offense. The defense of entrapment is an affirmative defense and must be proved by the defendant. If the defendant already possessed the criminal intent, and the request or inducement merely gave the defendant the opportunity to commit what he or she was already predisposed to do, entrapment is not a defense. Hopson v. State, 625 So.2d 395, 399 (Miss.1993).

¶ 28. Walker’s convoluted theory of entrapment is that the Sam’s employee who called the police:

... was acting as the agent of the Sou-thaven Police Department. Sometimes, however, police agents may “encourage” persons to engage in criminal behavior, by seeking to buy from them or to sell to them narcotics or contraband or by seeking to determine if public employees or officers are corrupt by offering them bribes.
* * *
What is even more egregious is that Sam[’]s offers for sale for monetary profit the very items that may subject it[s] customers to prosecution when without any notice that “Sam[’]s”, is watching and surreptitiously calling police to apprehend those that Sam[’]s determines to be committing “alleged crimes.”

Walker is in essence stating that he was entrapped because Sam’s sold him an ordinary household product which happened to be a precursor for the manufacture of methamphetamine and because Sam’s reported him to the police when he was merely doing what Sam’s had induced him to do.

¶ 29. The very nature of good citizenship in this country is to report any suspicious behavior to law enforcement. Pharmacies in particular have an additional responsibility to watch for signs of drug abuse and suspicious behavior. In Taylor v. Johnson, 796 So.2d 11, 14 (La.Ct.App.2001), a drugstore customer sued a pharmacist for the infliction of emotional distress. The pharmacist had called the police to report the customer’s suspicious behavior, resulting in the customer’s arrest. Dismissing the claim, a Louisiana appellate court found that the pharmacist’s actions were “logical” and “reasonable” under the circumstances.

¶ 30. A South Carolina United States District Court has discussed the public policy favoring pharmacists’ reporting suspicious behavior:

This Court together with all pharmacists, law enforcement officers and informed citizens are aware of the drug abuse problem in this country. Strict laws have been adopted relating to the dispensing of drugs, including Bipheta-mines, and the defendant Green would be shirking his responsibility as a pharmacist to close his eyes to circumstances which raise a suspicion that a prescription may be a forgery or that the drug laws may be violated through his filling of a prescription. Pharmacists have not only the right, but the duty to report any suspicious circumstances concerning drugs to the proper authorities, which is all that defendant Green did in the present case.

Hemmerle v. K-Mart Discount Stores, 383 F.Supp. 303, 307 (D.S.C.1974) (emphasis added).

¶ 31. Walker’s contention that Sam’s induced him to buy the ephedrine is patently absurd. Sam’s is a business and its primary purpose is to make money by selling to consumers. It had the duty to report suspicious behavior. We find that the proposed entrapment jury instruction did not have a proper evidentiary foundation. Walker’s claim is without merit.

VII. THE WEIGHT OF THE EVIDENCE.

¶ 32. A motion for new trial goes to the weight of the evidence. In determining whether a jury verdict is against the overwhelming weight of the evidence, we must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Hubbard v. State, 819 So.2d 1192, 1196 (Miss.2001); Grant v. State, 762 So.2d 800 (Miss.Ct. App.2000). The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is well settled. “[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Dudley v. State, 719 So.2d 180, 182 (Miss.1998). On review, the State is given “the benefit of all favorable inferences that may rea sonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). “Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Dudley, 719 So.2d at 182. The standard of review for denials of motions for directed verdict, judgment notwithstanding the verdict and a request for a peremptory instruction is the same. Jefferson v. State, 818 So.2d 1099, 1110-11 (Miss.2002). A directed verdict, judgment notwithstanding a verdict and a request for peremptory instruction all challenge the legal sufficiency of the evidence presented at trial. Id.

¶ 33. Accepting the State’s evidence as true, and/or giving the State the benefit of all favorable inferences that may reasonably be drawn from the evidence, we find that ample evidence supports the guilty verdict. Through the use of the receipts, the State showed that Walker had bought several everyday household items that could be used for the manufacture of methamphetamine. He bought a few of these items at each of several different stores. At the time of the investigatory stop and search, he was in possession of boxes of ephedrine and several lithium batteries. All of this evidence shows that he was in possession of precursors to the manufacture of methamphetamine, with the intent that these products would be used to manufacture methamphetamine.

¶ 34. Walker contends that his testimony that he bought these products for resale in the store that he owned was uncon-tradicted, and therefore the State did not prove each element of the charge beyond a reasonable doubt. The jury is the finder of fact, and it evidently believed the State’s witnesses more than Walker’s self-serving testimony. Besides, why would a store owner go to retail stores in another city to purchase products for resale when he could buy them wholesale? This issue is without merit.

CONCLUSION

¶ 35. For these reasons, we affirm the conviction and sentence imposed upon James Allen Walker.

¶ 36. CONVICTION OF POSSESSION OF TWO (2) OR MORE PRECURSOR CHEMICALS, AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAYMENT OF A FINE IN THE AMOUNT OF $1,000.00, RESTITUTION IN THE AMOUNT OF $100.00 TO THE SOUTHAVEN POLICE DEPARTMENT, WITH CONDITIONS, AND ALL COSTS, AFFIRMED. APPELLANT SHALL SERVE THE FIRST TEN (10) YEARS WITH THE REMAINING TEN (10) YEARS SUSPENDED PENDING FUTURE GOOD BEHAVIOR.

SMITH, C.J., COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . BY THE DEFENSE: It's your statement that quantity alone makes a legal substance illegal?
      BY SGT. STEWART: If it’s more than 250 pills or 30 milligrams ... of Sudafed, whether it's crushed or boxed or two or more precursors .., it can be illegal if you can establish its purpose for use; and I believe the purpose for use was established by the trail of receipts and other items ...


source: Caselaw Access Project

author:
MYERS, J.,
      GRIFFIS, J.,

license: Public Domain

text:
    Shelia DUPREE, Individually, and as Conservator of the Person and Estate of Annie Sanders, Appellant, v. PLANTATION POINTE, L.P., d/b/a, The Windsor Place, Appellee.
    No. 2002-CA-00556-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2003.
    Rehearing Denied Nov. 25, 2003.

      Tylvester Otis Goss, Jackson, Constance Slaughter Harvey, Forest, attorneys for appellant.
    James P. Streetman, Wade G. Manor, Jackson, attorneys for appellee.
   MYERS, J.,

for the Court.

¶ 1. Shelia Dupree sued Plantation Pointe, L.P. individually and on the behalf of her mother, Annie Sanders, after Sanders was sexually assaulted at Windsor Place nursing home, a business of Plantation Pointe. The trial judge granted a directed verdict on the issue of mental and emotional damages of Dupree. A jury verdict was returned in favor of Plantation Pointe on the other claims. After denial of the plaintiffs motion for a judgment notwithstanding the verdict and motion for new trial, Dupree perfected her appeal asserting:

1. THE TRIAL COURT ERRED IN DENYING THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND IN THE ALTERNATE MOTION FOR A NEW TRIAL;

2. THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY; AND

3. THE COURT ERRED IN EXCLUDING TESTIMONY CONCERNING MENTAL AND EMOTIONAL DAMAGES AND BY GRANTING A DIRECTED VERDICT ON THE ISSUE.

STATEMENT OF FACTS

¶2. Annie Sanders, a seventy-six-year-old female, was a resident of Windsor Place. Plantation Pointe, the defendant in the instant case, does business as Windsor Place. Uncontradicted testimony showed that Sanders was totally dependant and bedridden. She was unable to take care of or defend herself or communicate. She entered Windsor Place as a resident on November 15,1999.

¶ 3. On December 2, 1999, Otis Duff, a seventy-eight-year-old male, who was another Windsor Place resident was discovered in Sanders’ room. Duff was on top of Sanders with his pants down and penis exposed. Duff had spread Sanders’ legs apart and was moving his hips in a rocking motion. Duff had pinned Sanders’ arms down to prevent any possible resistance.

¶ 4. Duff had been admitted to Windsor Place on July 30, 1999. Duff was over six feet tall and weighed at least 170 pounds. During the early part of his stay at the Windsor Place, he had been temporarily moved to another facility due to his behavior. That facility was more secure and able to handle Duff. Sherry Davis, the nursing administrator for Windsor Place, testified that reports from Windsor Place showed Duff to be verbally and physically abusive to staff. Duff would try to kick and bite staff members. He had at one point threatened to kill the staff members.

¶ 5. Duff also tried to kiss some staff members and made crude references to sex on numerous occasions, including walking through the halls naked. On November 29, 1999, Duff made one such comment to a Windsor Place office worker that she should “come back later so [they could] f* * * because [he] love[s] big women.” Duff ended this remark by grabbing his penis and shaking it at her. Duff later made another similar comment to a dietary staff member. This time it was: “Come on in and let’s go to bed. It’s up and I’m ready to f* * *. Are you ready?”

¶ 6. Duff was also known to have gone into other residents’ rooms and wander the premises on numerous occasions. On November 18, 1999, Duff was found in another resident’s room wearing only a shirt. Davis admitted that one could assume that if Duff would hurt the staff he would hurt residents.

¶ 7. Davis’ testimony is quite confusing. At one point she was asked:

Q. My question was would you agree with me that the Windsor Place at least failed Ms. Sanders as it relates to this particular policy to provide safeguard against any kind of harsh or abusive treatment?
A. I don’t think that she received treatment, nor do I think that she was sexually abused at this point.

¶ 8. Later Davis admitted that sexual abuse was not tolerated at Windsor Place and the nursing home failed to protect Sanders from a sexual assault.

¶ 9. Davis testified that Windsor Place gave residents documents concerning dignity, respect, and safety. Upon reading the following mission statement for Windsor Place, Davis admitted that the nursing home violated the statement as it related to Sanders:

The facility is dedicated to offering to the public the finest in nursing and rehabilitation for the aged and convalescent. The Windsor Place also provides activities involving pets, children, plants and volunteers to promote emotional and physical well-being.

¶ 10. And upon reading the following resident abuse policy for Windsor Place, Davis admitted that the nursing home violated the policy of not tolerating abuse as it related to Sanders:

It is the policy of this facility to report all incidents of resident abuse to appropriate State and federal officials or agencies: 1. Resident abuse, whether physical or mental, will not be tolerated. Resident abuse is reported to authorities governing our facility.

¶ 11. Dee DaCosta, a charge nurse at the Windsor Place who was working at the time of the attack, testified that Sanders was attacked by Duff. She also testified that she had reported the attack anonymously to the Attorney General’s Office.

¶ 12. Debbie Porter and Kimberly Thompson, both certified nursing assistants working at the Windsor Place at the time of the attack, testified that they were told to clean Sanders after the attack. This was the nursing home policy for when residents had to be transported to a hospital. Both also testified as .to the abusive nature of Duff. Thompson testified as to Duffs sexual advances made to staff.

¶ 13. Crystal Harris, a certified nursing assistant working at the Windsor Place at the time of the attack, testified as to the abusive nature of Duff, including sexual advances toward employees and residents.

¶ 14. Sandra Stewart, a licensed practical nurse at the Windsor Place who was working at the time of the attack, testified that she was the one who discovered Duff in Sanders’ room. She also testified that Duff was known to have been combative toward staff.

¶ 15. Expert testimony was also presented. One of the plaintiffs experts testified as to the inappropriate measures the nursing home took in regard to Duff. Another expert testified as to Sanders’ mental and emotional state, although he was unable to give precise damages because of her already diminished capacity.

¶ 16. Dupree filed suit in the Circuit Court of Lauderdale County on March 13, 2000. The claim filed on her mother’s behalf alleged that Windsor Place had represented that quality care would be provided, specifically that no sexual abuse would occur. Dupree also claimed that she suffered mental and emotional distress when she learned of the assault.

¶ 17. Prior to trial, Plantation Pointe filed a motion in limine to exclude the testimony of mental and emotional distress of Dupree. The trial court granted the motion. The case was tried February 5 through February 7, 2002. At the conclusion of the plaintiffs case in chief, Plantation Pointe moved for a directed verdict on the issue of Dupree’s mental and emotional damages. The motion was granted. At the conclusion of the trial, the judge refused to grant a jury instruction offered by the plaintiff that would allow the jury to consider mental and emotional damages of Dupree. The jury returned a verdict, ten to two, in favor of Plantation Pointe. The plaintiff filed a motion for a judgment notwithstanding the verdict or in the alternate a new trial. The motion was denied. The plaintiff perfected the appeal.

LEGAL ANALYSIS

¶ 18. The statute states as follows:

A motion for j.n.o.v. is the equivalent of challenging the sufficiency of the evidence to support the jury’s verdict. A jury verdict can only be set aside when it is based on legally insufficient evidence or it is against the substantial weight of the evidence. Furthermore, we review “the evidence as a whole, taken in the light most favorable to the verdict” and will reverse only if “no reasonable, hypothetical juror could have found as the jury found.”

Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 615-16 (¶ 13) (Miss.2001) (citations omitted).

¶ 19. The motion for a new trial should only be employed in those rare cases when there would be injustice either in allowing the verdict to stand or in granting a JNOV C & C Trucking Co. v. Smith, 612 So.2d 1092, 1099 (Miss.1992). Mississippi Rules of Civil Procedure 59 authorizes a trial judge to set aside a jury verdict and to grant a new trial as justice requires. A new trial may be granted “when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result of bias, passion, and prejudice.” Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 132 (Miss.1989); Griffin v. Fletcher, 362 So .2d 594, 596 (Miss.1978). A trial judge’s denial of a request for a new trial will only be reversed when such a denial amounts to an abuse of the trial judge’s discretion. Bobby Kitchens, Inc., 560 So.2d at 132; Maxwell v. III. Cent. Gulf R.R., 513 So.2d 901, 908 (Miss.1987). We give substantial weight, deference, and respect to the decision of the trial judge. C. & C. Trucking Co., 612 So.2d at 1099.

¶ 20. It is apparent that the trial judge abused his discretion when he failed to grant a new trial. The testimony is uncontradicted. Sanders was a resident at the Windsor place. She was unable to care for or protect herself.

¶ 21. Duff was also a resident at the Windsor Place. He was known to wander into other resident’s rooms. He was known to be abusive, both with physical violence and crude sexual displays and comments. Uncontradicted testimony from current and former employees of the Windsor Place substantiate this.

¶ 22. Duff sexually assaulted Sanders in her room at the Windsor Place. The nursing home was to provide a safe residence for Sanders. The overwhelming weight of the evidence shows they were aware of the potential danger Duff posed and did not take action to prevent it. Davis admitted that if Windsor Place had taken some action in regard to the notice, the sexual assault on Sanders would not have occurred. It is for this reason we reverse and remand for a new trial on Sanders’ claim.

¶ 23. We decline to review the issue regarding the failure to give a proposed peremptory instruction. Since a new trial is granted, the issue is moot.

¶ 24. As for Dupree’s claim for mental and emotional damages, the law is clear. The factors important in determining whether a defendant should reasonably foresee injury to a plaintiff, thereby owing a duty of care are: (1) whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it; (2) whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Summers ex rel. Dawson v. St. Andrew’s Episcopal School, Inc., 759 So.2d 1203, 1210(¶25) (Miss. 2000). Dupree was not near the assault scene. While we agree it would be quite traumatic to receive news that your mother was sexually assaulted, the facts in this case do not lend themselves to third person recovery. Therefore, we affirm on the issue of Dupree’s claim for mental and emotional damages.

¶ 25. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. COSTS OF THIS APPEAL ARE TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.

KING, P.J., BRIDGES, THOMAS, IRVING, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY McMILLIN, C.J., AND SOUTHWICK, P.J. LEE, J., NOT PARTICIPATING.

GRIFFIS, J.,

CONCURRING IN PART AND DISSENTING IN PART:

¶ 26. I concur with the majority’s decision to affirm the trial court’s directed verdict of Ms. Dupree’s claim for mental and emotional damages.

¶ 27. However, I respectfully dissent to the majority’s decision to reverse and remand for a new trial. The majority properly states the standard for our review of the trial court’s denial of the motion for new trial, and I will not duplicate this statement of the law. I differ with the majority’s decision that the trial judge abused his discretion in denying the motion for new trial. I disagree with the majority’s characterization that the “testimony is uncontradicted.” Indeed, I am of the opinion that it was well within the sound discretion of the trial judge to deny the motion for new trial.

¶ 28. The majority does not state which portion of Mississippi Rule of Civil Procedure 59 it relies upon. Rule 59 allows a new trial if the verdict is against the overwhelming weight of the evidence, when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result of bias, passion, and prejudice. Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 132 (Miss.1989). Here, apparently, the majority finds that the trial judge abused his discretion in not granting a new trial because the jury’s verdict was against the overwhelming weight of the evidence.

¶ 29. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Herrington v. Spell, 692 So.2d 93, 103 (Miss.1997). The jury is the ultimate judge of the weight of the evidence and the credibility of the witnesses. Jackson v. Griffin, 390 So.2d 287, 289 (Miss.1980). “Because of the jury verdict in favor of the appellee, this Court will resolve all evidentiary conflicts in the appellee’s favor and will draw all reasonable inferences which flow from the testimony given in favor of the appel-lee.” Southwest Miss. Reg'l Med. Ctr. v. Lawrence, 684 So.2d 1257, 1267 (Miss.1996) (quoting Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 131 (Miss.1989)). This Court should not set aside the jury’s verdict unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herrington, 692 So.2d at 104. The basis for this high standard is our deference to the constitutional duty of the jury in rendering its verdict. Burrell v. State, 613 So.2d 1186, 1191 (Miss.1993).

¶ 30. In this negligence action, Ms. Sanders had the burden of producing evidence that was sufficient to establish that Windsor Place breached the traditional negligence elements of duty, breach of duty, proximate cause and injury. May v. V.F.W. Post No. 2539, 577 So.2d 372, 375 (Miss.1991). The jury considered the evidence and rejected Ms. Sanders’ claims.

¶ 31. There is nothing in the record that would indicate the jury did anything other than fulfill its sworn duty to resolve the disputed issues of fact, which necessarily included the issue of whether Ms. Sanders carried her burden of proof by a preponderance of the evidence that Windsor Place was negligent or that damages were proximately caused by any negligent act. There was substantial evidence presented that Windsor Place did not breach its duty to protect Ms. Sanders. As to the damages element of negligence, there was also significant evidence presented that an actual sexual assault had not occurred and that no injury had been sustained.

¶ 32. The trial judge had three separate opportunities to review the evidence presented and determine whether the jury should be allowed to render a verdict: (1) the motion for directed verdict after the plaintiff rested, (2) the motion for directed verdict after the close of evidence, and (3) the motion for judgment notwithstanding the verdict, pursuant to Mississippi Rule of Civil Procedure 50. The trial judge declined to do so at each of these three opportunities, allowed the jury to consider the case on the merits and allowed the jury’s verdict to stand. Then, after hearing the evidence and argument presented by both parties, the trial judge specifically rejected the motion for new trial. Thus, on four separate occasions, the trial court declined to direct a verdict or grant a new trial. Substantial deference should be given the trial judge’s decision. Odom v. Roberts, 606 So.2d 114, 118 (Miss.1992).

¶ 33. Contrary to the majority’s conclusion that the “testimony is uncontradict-ed,” I find that Ms. Sanders did not present uncontroverted evidence as to the negligence of Windsor Place or her damages. Although Ms. Sanders presented evidence in support of her claim, that Windsor Place owed a duty of care and that the duty was breached, there was also substantial credible evidence to the contrary. Additionally, there was no evidence presented to substantiate Ms. Sanders’ injuries or damages. A discussion of the evidence presented at the trial is necessary.

¶ 34. On December 2, 1999, a nurse employed at Windsor Place found Otis Duff, an Alzheimer’s patient in the nursing home, in Ms. Sanders’ room. Mr. Duff had his pants down and penis out, and he was in the bed on top of Ms. Sanders moving his hips in an up and down motion. Ensuing medical examinations did not reveal that an actual “sexual assault” had occurred. There was no evidence any sexual touching or rape of Ms. Sanders had occurred.

¶ 35. At trial, Sherry Davis, the administrator of Windsor Place, was called to testify by the appellants as an adverse witness. She testified that all residents, including Ms. Sanders, are protected to the best of the nursing home’s ability and that Windsor Place was not negligent in its care of Ms. Sanders. Ms. Davis further testified that the incident involving Ms. Sanders was reported, as required by statute, to the attorney general and was investigated by the Mississippi State Department of Health. Upon the completion of this investigation, the Mississippi State Department of Health found that Windsor Place was not negligent in its treatment and protection of Ms. Sanders.

¶ 36. Ms. Davis also testified to the duties owed to Mr. Duff and that despite their knowledge of Mr. Duffs sexual behavior, Windsor Place did not have the authority to transfer a nursing home resident to another facility. Only the resident’s family or treating physician may transfer a resident to another facility. See 42 C.F.R. § 483.40 (only a physician may admit an individual to another facility). Ms. Davis further testified that they discussed Mr. Duffs behavior with his physician and psychiatrist, who had the authority to transfer him, but they chose not to do so.

¶ 37. Ms. Dee DaCosta, a registered nurse, was on duty on the night of the alleged incident. Ms. Sanders’ counsel elicited testimony from Ms. DaCosta that in her opinion the nursing home was negligent. However, when she was asked to point out specific actions or inactions of the nursing home staff to substantiate such claim, she was unable to do so. Ms. Da-Costa, however, testified that on the night of the incident the nursing home was properly staffed. She testified that no member of the nursing home staff did anything improper in the treatment of Ms. Sanders and that every step was taken to protect the residents from Mr. Duff. Ms. DaCosta further testified that only a doctor had the power to restrain or transfer Mr. Duff and that the doctors did not do so.

¶ 38. Crystal Harris, a certified nurse’s aide at Windsor Place, testified that Windsor Place was not ignoring Mr. Duff in his care and supervision. Also, Kimberly Thompson, a certified nurse’s aide at Windsor Place, testified that she provided more of her attention to Mr. Duff when he was combative and paid close attention to Ms. Sanders.

¶ 39. Two additional registered nurses working on the night in question, Ms. Kimberly Thompson and Ms. Sheila Glover, testified that the nursing home did not deviate from the standard of care owed to Ms. Sanders. Ms. Glover even testified that Windsor Place made numerous unsuccessful attempts to have Mr. Duff transferred. Ms. Glover also testified to the countless number of conversations that the nursing staff had with the treating physicians regarding Mr. Duffs behavior. Lastly, Ms. Glover testified that neither she, any nursing staff, nor the administration had the authority to transfer Mr. Duff from the facility.

¶ 40. Sandra Stewart, a geriatric nurse for over twenty-two years, testified that Windsor Place provided appropriate care for both Ms. Sanders and Mr. Duff. She also recalled communicating with Mr. Duffs treating physicians regarding his behavior throughout his residency. She did not believe that anyone at Windsor Place was negligent in the care of Ms. Sanders, even in light of this unfortunate incident.

¶ 41. Kathleen Meyers testified as an expert witness for Ms. Sanders. Ms. Meyers offered testimony that she believed Windsor Place to have been negligent in two respects: failure to transfer Mr. Duff and failure to adequately assess and plan for Mr. Duffs care and treatment. However, on cross-examination, Ms. Meyers admitted that ordering the transfer of a resident is within the exclusive purview of the treating physician, not Windsor Place. Further, Ms. Meyers offered no testimony of proposed treatment that she believed would have prevented the incident. Ms. Meyers admitted that wandering in and out of other residents’ rooms was a common characteristic of Alzheimer’s and dementia patients, such as Mr. Duff. Further, she admitted that nursing homes were only allowed to restrain residents after those residents had met requirements outlined in state and federal regulations, which were not present here. See 42 CFR § 483.13(a) (resident has a right to be free from any physical or chemical restraints). Kathleen Meyers further testified that Ms. Davis, as an administrator, had no authority to override, change or substitute any doctor’s order. She testified that the Windsor Place employees were correct in documenting and communicating Mr. Duffs behavior with the doctors and in following the doctor’s orders.

¶ 42. In addition to liability, Ms. Sanders’ injuries and damages were also contested at trial. Dr. David Marion testified about Ms. Sanders’ injuries. Dr. Marion testified that he only observed Ms. Sanders on one occasion and that he did not review all of her medical records. On cross examination, Dr. Marion conceded that he could not testify to a reasonable degree of medical certainty as to how the alleged incident affected Ms. Sanders.

¶ 43. Ms. Kimberly Thompson and Ms. Debbie Porter, both certified nurse’s aides working on the night in question, testified that when they went into Ms. Sanders’ room after the incident. They testified that Ms. Sanders appeared to be calm and not agitated, as if nothing unusual had occurred.

¶ 44. No other evidence as to damages allegedly suffered by Ms. Sanders was presented. The plaintiff presented no evidence to establish that Ms. Sanders incurred a physical injury or that she was conscious enough to know that the incident even occurred. There was no evidence of any bleeding, discharge, bruising, cuts, scratches or scraping to the skin of Ms. Sanders and no evidence of any sexual touching or penetration. Indeed, nothing was presented to establish that she was harmed or injured by the incident.

¶ 45. The Mississippi Supreme Court has held that “unless it is clear to this Court that the verdict is contrary to the overwhelming weight of the credible testimony, this Court will not set aside a jury verdict.” Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 618(¶ 18) (Miss.2001). The weight of the evidence is clearly not overwhelmingly contrary to the jury’s verdict. Keeping in mind all of the evidence presented, the jury’s verdict does not rise to the level that would shock one’s conscience. In fact, as stated above, there is substantial credible evidence in the record that supports the jury’s verdict. The jury considered this evidence, weighed it, and found in favor of Windsor Place. Questions of negligence are to be determined by the jury. Upchurch ex rel Upchurch v. Rotenberry, 761 So.2d 199, 204(¶ 21) (Miss.2000). The jury, in such cases, sits as the trier of fact responsible for determining issues of credibility and what weight and worth to assign to the various aspects of the proof submitted. Scott Addison Constr., Inc. v. Lauderdale County School Sys., 789 So.2d 771, 773(¶8) (Miss.2001).

¶ 46. Likewise, the trial judge was present throughout the trial, and he considered the evidence, weighed it and determined that there was sufficient evidence to deny the plaintiffs motion for judgment notwithstanding the verdict and for new trial. Therefore, I find that the trial judge did not abuse his discretion in denying a new trial and find that the jury’s verdict should be affirmed.

McMILLIN, C.J., AND SOUTHWICK, P.J., JOIN THIS SEPARATE OPINION.

      . Ms. Davis also testified that it is common for Alzheimer’s patients, especially men, to talk and act in a sexually suggestive manner. She also testified that Mr. Duff had never exhibited any behavior that would indicate he intended to act upon his sexual remarks nor did he indicate any propensity to attack another resident.


author: SOUTHWICK, P.J.,

text:
    Angela Leann GREGORY, Appellant, v. Daniel C. GREGORY, Appellee.
    No. 2001-CA-01978-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.
    Rehearing Denied March 16, 2004.
    Certiorari Denied Oct. 28, 2004.

      Jak McGee Smith, Tupelo, attorney for appellant.
    Will R. Ford, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Leann and Daniel Gregory were granted a divorce by the Pontotoc County Chancery Court. Mrs. Gregory appeals, alleging error in granting a divorce to her husband based on her alleged habitually cruel and inhuman treatment as opposed to basing the divorce on her husband’s alleged adultery, in permitting her husband to have unrestricted visitation with their son, and in requiring her to pay attorney’s fees. We agree that insufficient evidence was presented to prove habitual cruel and inhuman treatment. We reverse the judgment and remand for further proceedings.

STATEMENT OF FACTS

¶ 2. Leann and Daniel Gregory were married in June 1995. The couple separated three times. Their final separation began in May 1999. In July 2000, Mrs. Gregory filed for a divorce. She alleged as grounds adultery, habitual cruel and inhuman treatment, and in the alternative, sought a divorce based on irreconcilable differences. Mr. Gregory filed an answer and a counter complaint alleging adultery, habitual cruel and inhuman treatment, and irreconcilable differences.

¶ 3. The couple has two sons, the younger being born after the 1999 separation. Mrs. Gregory sought custody of the children. A temporary order granted her custody, and it allowed Mr. Gregory to have visitation.

¶ 4. During the separation, Mrs. Gregory testified that she began to suspect that her husband was sexually abusing their older son. The child was four years old at the time. .Mrs. Gregory claimed that the child began to touch her inappropriately after he would return from visits with his father. Mrs. Gregory took her son to the family doctor for an examination. She also made a report with the Department of Human Services. She stated that her son told her that Mr. Gregory had “put his finger up his booty.” After this statement in March of 2001 and allegedly on advice of counsel, she ended visitation between her son and his father.

¶ 5. Mr. Gregory was arrested and charged with sexual abuse. A guardian ad litem was appointed on behalf of the older son. During the divorce hearing, both parents presented evidence concerning this allegation of abuse. Mrs. Gregory presented testimony of Dr. Gary Moores. He has a Ph.D. in social work and testified as an expert. Based on interviews he conducted with the older Gregory son, he concluded that the child had been sexually abused. Mrs. Gregory was present when the.child told Dr. Moores that his father “put his finger up his booty.” Dr. Moores provided counseling to the child as a favor to a friend of Mrs. Gregory’s family.

¶ 6. Dr. Dale Wing, an expert in the area of family medicine also testified. He had conducted a physical examination on the child in December 2000. He found no physical evidence of sexual abuse. After seeing the child again in May of 2001, he concluded there had been sexual abuse. He did not do a physical exam and his conclusion was based on statements made by the child. Mrs. Gregory’s father had taken the child to the doctor and the statements were made in his presence.

¶ 7. Mrs. Gregory also presented testimony from Dr. Marilyn Snow. She is a “play therapist” with a Ph.D. in counseling. She was recognized as an expert in the area of counseling. She interviewed the boy and believed that he had been sexually abused. She stated that she always errs on the side of the child. Since this child had stated he had been abused, she assumed he had been.

¶ 8. Mr. Gregory called Dr. Louis Masur to testify as an expert on his behalf. Dr. Masur is a clinical psychologist. He had two interviews with the older Gregory son. The first was in April 2001. The boy stated in his mother’s presence that his father “put his finger up his booty.” Dr. Masur testified that the child could have confused a doctor’s examination with something that his father did. He also stated that the child could say what the mother wants him to say in her presence and what the father desired when in his presence.

¶ 9. The court ordered Dr. Masur to observe the child interact with Mr. Gregory. This took place in June 2001. During this visit, Dr. Masur observed no problems between the father and son. The child willingly sat on his father’s lap and led the conversation between the two for the majority of the visit. The doctor observed that the child seemed happy. He was not upset or concerned when Mrs. Gregory left the room. Dr. Masur thought the child did not notice who was coming in and out of the room because he was so absorbed with his father. Dr. Masur, while unable to give an opinion whether abuse had occurred, found that this was evidence that no abuse had occurred. He testified that the only evidence of abuse was the child’s statement.

¶ 10. The court granted a divorce to Mr. Gregory on the basis that his wife’s allegations of child abuse were intentionally false. According to the court, this constituted habitual cruel and inhuman treatment. The court found that the child was not sexually abused by Mr. Gregory.

¶ 11. Mrs. Gregory presented some evidence that Mr. Gregory had been unfaithful during the marriage. She claims that he was in a hotel with another woman and that he admitted to her that he was having an affair with this woman. A former Mend of Mr. Gregory testified that he knew of an affair between Mr. Gregory and another woman. Mr. Gregory stated that this relationship did not begin until after he and Mrs. Gregory were separated in May 1999. The chancellor found that since the adultery was not the cause for the separation, she would deny a divorce on this ground.

¶ 12. Mrs. Gregory was found in contempt of court for ending visitation. The court ordered that Mrs. Gregory pay her husband’s attorneys’ fees, which were found to total $9,013.98 including court costs. Mrs. Gregory was also ordered to reimburse Mr. Gregory $1,500 for the fees of the guardian ad litem. Mrs. Gregory has appealed.

DISCUSSION

1. Evidence of sexual abuse

¶ 13. We have already detailed the evidence about abuse. On fact-findings, the chancellor will be upheld unless the court’s actions were manifestly wrong, the court abused its discretion or it applied an erroneous legal standard. Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997).

¶ 14. The chancellor heard the contested testimony presented on the question. Based on this testimony, she concluded the child had not been sexually abused. There is evidence on the record to support this finding. Apparently the testimony of Dr. Masur was persuasive. Dr. Masur suggested explanations for the child’s statements and actions other than the occurrence of abuse.

¶ 15. This is the kind of difficult factual determination that chancellors are in a far better position to make than is an appellate court reviewing a cold printed record. We find no basis on which this determination should be disturbed.

2. Habitual cruel and inhuman treatment

¶ 16. Having found that no abuse of the child had occurred, the chancellor then found that the charges were made without foundation. The husband’s assertion that this claim constituted habitual cruel and inhuman treatment was sustained. Divorce was granted on this basis.

¶ 17. We have upheld that chancellor’s fact-findings regarding the abuse. What we do not find supported in the record is meaningful evidence that even if the claim was untrue, that it was a fabrication by Mrs. Gregory intended in a cruel and inhuman way to injure her husband. Dr. Mas-ur’s testimony, which was supportive of the position that no abuse occurred, was not supportive of the belief that the instigator of the story was Mrs. Gregory. For example, the child’s statement that his father had improperly touched him was found just as likely to have been confusion by the four year old boy with a rectal exam that had been performed by a physician.

¶ 18. There is at least one precedent in which false allegations of sexual abuse were found to be so groundless as to qualify them as being habitual cruel and inhuman treatment. Richard v. Richard, 711 So.2d 884, 887 (Miss.1998). There, older teenage children denied that any abuse had ever occurred, yet the wife continued to accuse the husband of abuse. Id. at 889. If there was evidence, even if only circumstantial, that Mrs. Gregory created the story and coached her son regarding what to say, a basis for a divorce might be shown.

¶ 19. Opinions of reputable doctors and specialists were that the boy had been abused, and that the child had not been instructed on what to say. Mrs. Gregory became concerned when her four year old son began to behave strangely and make strange comments. We conclude that since the chancellor found that the incorrect claim of abuse was habitual cruel and inhuman treatment, that the chancellor found that Mrs. Gregory must have concocted the entire matter.

¶ 20. This Court will not reverse a chancellor’s decree of divorce unless it is manifestly wrong as to law or fact. Bland v. Bland, 620 So.2d 543, 544 (Miss.1993). There was insufficient evidence, direct or circumstantial, that Mrs. Gregory made knowingly false claims of abuse. Further, we hold as a matter of law that honestly made claims, even when later found to have been erroneous, do not constitute habitual cruel and inhuman treatment. Though Mrs. Gregory may have willingly caused trouble for her husband which led to his arrest, the obligation of a parent to confront reasonably suspected abuse cannot become cruelty or inhumanity.

¶ 21. We set aside the divorce based on this ground. Having urged this course, Mrs. Gregory also has argued that we should now grant her a divorce based on her husband’s adultery. The chancellor rejected this basis for a divorce as she found that the only credible proof established the adultery occurred after the May 1999 separation. Therefore, the court concluded adultery could not have been the cause of the end of the marriage. We note, though, that the allegations of child abuse also did not occur until after the May 1999 separation. It has recently been determined that it is not necessary for a divorce based either on adultery or cruel and inhuman treatment, that the conduct have occurred before the parties’ separation. Talbert v. Talbert, 759 So.2d 1105, 1110-11 (Miss.1999). The court should consider the offending conduct, even if it occurred during separation, and its impact on the other spouse. A separation need not be final. Something that occurs during separation could factually be found to have eliminated whatever opportunity might have existed that the spouses could be reconciled over the initial cause of the separation. Id. at 1110. Any absolute rule that conduct during a separation is to be ignored may reject the factually convincing cause of the parties’ final and permanent separation, as opposed to their initial and temporary separation.

¶ 22. Mrs. Gregory presented evidence that Mr. Gregory had been unfaithful during their marriage. There was contrary evidence and explanations. We will not become fact-finders on appeal. We remand that issue for consideration by the lower court.

¶ 23. Both parties alleged irreconcilable differences as an alternative grounds for divorce in their respective complaints. It might be argued that since both parties want a divorce, that once we have found insufficient support for one of the fault-based grounds for divorce, we should just decree a divorce based on irreconcilable differences. However, under this statute, all matters concerning child custody, child support and the settlement of all property rights must first be addressed. The parties must either enter into a “written agreement for the custody and maintenance of any children of that marriage and for the settlement of any property rights between the parties,” or submit to the court for resolution what cannot be agreed. Miss.Code Ann. § 93-5-2(2) (Rev.1994). The Supreme Court has found the statutory provision for a written agreement on such matters to be mandatory. Cook v. Cook, 725 So.2d 205, 207 (Miss.1998). The Court has also found that when both spouses denied in their complaints that the other spouse was entitled to a divorce based on irreconcilable differences, this negates the needed mutual consent for a divorce on this basis. Massingill v. Massingill, 594 So.2d 1173, 1178 (Miss.1992). Such a denial was made in each of the complaints by the Gregorys.

3. Visitation

¶ 24. Since we have upheld the chancellor’s finding that no abuse of the child had occurred, we find no error in the permitting of liberal visitation to the father. However, the divorce itself has been set aside. On remand, visitation will again need to be addressed if a divorce is granted.

Jp. Payment of father’s legal expenses

¶ 25. The chancellor required that the mother pay approximately $9,000 in legal fees and expenses incurred by the father. We will examine the grounds on which this was done.

¶26. The chancellor used this statute as authority for awarding attorney’s fees:

If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in responding to such allegation.

Miss.Code Ann. § 93-5-23 (Rev.1994). These charges were not shown, to use the statutory language, to have been “without foundation.”

¶ 27. Another statute cited by the chancellor is this:

Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification, or that the action, or any claim or defense asserted, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceedings by other improper conduct including, but not limited to, abuse of discovery procedures available under the Mississippi Rules of Civil Procedure.

Miss.Code Ann. § 11-55-5(1) (Rev.2002). Here, too, the extreme nature of the conduct required for this statute to be invoked has not been shown.

¶ 28. Besides relying on these statutes, the chancellor found Mrs. Gregory to be in contempt of court for violating the temporary order on visitation. When a party is held in contempt for violating a valid judgment of the court, attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment. Varner v. Varner, 666 So.2d 493, 498 (Miss.1995). The visitation order that Mrs. Gregory violated was a temporary order of October 2000. Visitation between the father and the son occurred until March 2001. In the latter month, the child allegedly told his mother that Mr. Gregory “put his finger up his booty.” On advice from her attorney, Mrs. Gregory terminated visitation.

¶ 29. The chancellor never made a finding that Mrs. Gregory had fabricated the charges and had in some manner convinced the child to make the statements that he did. That may be a factor in addressing the significance of the contempt. What might also be a factor is that Mrs. Gregory filed a motion within days of allegedly hearing her son make this claim, seeking an end to the unsupervised visitation. By seeking the immediate assistance of the court, Mrs. Gregory was pursuing what remedy was available. Nonetheless, we find that an award of some amount of fees incurred by Mr. Gregory allocable to enforcing the visitation order may be supportable. A finding of contempt must first be made. We reverse the award made so far, which is based on a greater range of inappropriate conduct than we are sustaining, and remand for further consideration.

¶ 30. THE JUDGMENT OF THE CHANCERY COURT OF PONTOTOC COUNTY IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS ARE ASSESSED TO THE APPELLEE.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author:
MYERS, J.,
      KING, P.J.,

text:
    Rece VAUGHN, Appellant, v. Richard AMBROSINO and Ellen Ambrosino, Appellees.
    No. 2002-CA-00927-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2003.
    Rehearing Denied Feb. 10, 2004.

      James L. Powell, Richard A. Courtney, Jackson, and Matthew Ivan Hetzel, attorneys for appellant.
    Stephen L. Thomas, Margaret Oertling Cupples, Jackson, and James William Manuel, attorneys for appellee.
    Before McMILLIN, C.J., LEE and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Rece Vaughn appeals the decision of the Madison County Circuit Court asserting as error the following issues:

1. DID THE TRIAL COURT ERR IN CREATING AND GIVING JURY INSTRUCTION 16; AND

2. DID THE TRIAL COURT ERR IN REFUSING TO GRANT PLAINTIFF’S JURY INSTRUCTION 15?

STATEMENT OF FACTS

¶ 2. Vaughn was a full-time housekeeper at the Ambrosinos’ residence. As part of her employment, she lived in a furnished apartment above the garage. She was also paid $125 a week salary. The Ambro-sinos were not required to have workers’ compensation coverage because they did not employ the requisite number of employees.

¶ 3. On June 26, 1999, Vaughn was seriously injured when she fell from a ladder while cleaning the twelve foot high kitchen cabinets. She was using the ladder to reach the upper cabinets.. She was standing midway up the ladder, when the Am-brosinos’ dog ran under the ladder. Vaughn did not see the dog hit the ladder, she felt the dog impact the ladder. The ladder and Vaughn fell. Vaughn suffered a wound to her head and a crushed heel bone in her foot, which required surgery. There was conflicting testimony whether the Ambrosinos instructed Vaughn to clean the cabinets that day and whether or not they allowed her to block off any area of the house from the dog. Vaughn alleged that the Ambrosinos specifically instructed her to clean the cabinets that day, that they told her that she would just need to be careful when cleaning the cabinets, and that she was not to shut the dog out of any part of the house. The Ambrosinos alleged that they did not tell Vaughn to clean the cabinets on her own and that it was her prerogative to close off the dog.

¶ 4. Vaughn sued the Ambrosinos in the Circuit Court of Madison County on June 26, 2000, seeking almost $2 million. The case was tried on February 4th through the 6th, 2002. A jury verdict in favor of the Ambrosinos was returned on February 6 and filed on record on February 20. Vaughn filed a motion for a new trial on March 1 and it was heard and denied on April 30. Vaughn perfected her appeal on May 28.

LEGAL ANALYSIS

1. THE TRIAL COURT ERRED IN CREATING AND GIVING JURY INSTRUCTION 16; AND

2. THE TRIAL COURT ERRED IN REFUSING TO GRANT PLAINTIFF’S JURY INSTRUCTION 15.

¶ 5. Since both issues deal with the denial of plaintiffs jury instruction 15 and the judge’s creating and granting of jury instruction 16, we shall address the two issues as one. A jury instruction must contain a correct statement of the law and the instruction must be warranted by the evidence. Nolan v. Brantley, 767 So.2d 234, 239 (¶ 13) (Miss.Ct.App.2000). There is considerable discretion regarding the form and substance of jury instructions and we review the instructions as a whole Coho Resources, Inc. v. McCarthy, 829 So.2d 1, 22 (¶ 69) (Miss.2002).

¶ 6. Vaughn’s Instruction Number 15 which was rejected stated:

If you find from a preponderance of the evidence in this case that
1. The defendants were in possession or control of the premises at 781 Mannsdale Road, Madison, Mississippi as the owners, and
2. the plaintiff was an invitee of the defendants, and
3. the defendants’ own negligence caused the defendants’ dog not to be restrained from plaintiffs work area on the premises, which was a dangerous condition on the premises, and
4. the plaintiff was injured by the defendants’ dog causing the ladder to fall with the plaintiff, and
5. the defendants’ negligence was a contributing proximate cause of the plaintiffs accident and injuries
then you shall find for the plaintiff. However, if you believe that the plaintiff has failed to show any one of these elements by a preponderance of the evidence in this case, then your verdict shall be for the defendant.

The trial courts Instruction Number 16 which was given stated:

If you find from a preponderance of the evidence in this case that
1. the plaintiff was an invitee of the defendants and
2. the defendants owned the property or premises and
3. the defendants not restraining their dog while plaintiff was working created a dangerous condition which was not readily apparent upon the defendants’ property and
4. the defendants failed to keep their property or premises in a reasonably safe condition or warn the plaintiff of a dangerous condition, not readily apparent, of which the defendant had knowledge and
5. the defendants’ failure to keep their property or premises in a reasonably safe condition or warn the plaintiff of a dangerous condition, not readily apparent, was a proximate contributing cause of plaintiffs injuries.
then you shall find for the plaintiff and against the defendants.
However, if you believe that the plaintiff has failed to show any of these elements by a preponderance of the evidence in this case, then your verdict shall be for the defendants.

¶ 7. We begin our analysis of the given instruction by noting that there is no question that Vaughn was an invitee on the Ambrosinos’ premises. An invitee is one who goes upon the premises of another in answer to expressed or implied invitation of the owner or occupant for their mutual advantage. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1003 (Miss.2001) (¶ 9). In Lumbley v. Ten Point Co., 556 So.2d 1026, 1030 (Miss.1989), the supreme court found that a hunting camp carekeeper and his wife, both of whom were provided lodging on the premises as part of their compensation, were considered invitees. Vaughn’s and the Ambrosinos’ situation is similar in that it provided both parties with advantages.

¶ 8. The landowner’s duty to an invitee is to take care that the property is “reasonably safe” and to warn the invitee of “hidden dangers” that are not “plain and open.” Little by Little v. Bell, 719 So.2d 757, 760 (¶ 16) (Miss.1998). There is no duty to warn of dangers that should be obvious to the invitee. Nolan, 767 So.2d at 240(¶ 15). Based on this, we hold that the given instruction accurately conveys the law.

¶ 9. The question now comes down to whether, by not restraining the dog, the Ambrosinos created a danger to Vaughn, their invitee, which was not readily apparent. Since Vaughn lived at the residence, and had worked there for some time, the dog’s size and nature were familiar to her. There was even evidence that the dog had almost knocked over the ladder the night before. Therefore, the possibility of the dog knocking over the ladder was readily apparent to her on the day of the accident. This is made evident by the fact that Vaughn claims to have told Mr. Ambrosino of the first near-accident.

¶ 10. Further, evidence was presented that the use of the ladder was entirely up to Vaughn. The Ambrosinos provided Vaughn with “extension handles” she could use to reach the cabinets while standing on the floor. It was not necessary for her to use a ladder at all. Therefore, even if failing to restrain the dog created a dangerous condition, Vaughn is at least partly at fault for using the ladder when a safer alternative was available.

¶ 11. We find this situation to be analogous to that in Nolan. There, Nolan agreed to cut the grass on his mother’s property. While using a riding lawn mower, Nolan slid into a ditch or washed-out area that he knew existed and was injured. Id. at 237. We ruled that Mr. Nolan knew of the dangerous condition and chose to proceed anyway. Id. at 241. In the instant case, Vaughn, based on her experience the prior night, knew that the dog could possibly bump into the ladder and cause it to tip over. Vaughn had a safer option, the extension handles, but chose to use the ladder instead. We will not hold the Ambrosinos liable for Vaughn’s choice.

¶ 12. We find that the trial court’s jury instruction accurately reflects the law, and that it was warranted given the evidence presented. Therefore, we affirm the verdict from the trial court.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., AND SOUTHWICK, P.J., THOMAS, LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES AND IRVING, JJ.

KING, P.J.,

Dissenting.

¶ 14. With appropriate respect for the majority, I believe that the trial court should have granted instruction 15 rather than 16.

II15. As given instruction 16 reads:

If you find from a preponderance of the evidence in this case that
1. the plaintiff was an invitee of the defendants and
2. the defendants owned the property or premises and
3. the defendants not restraining their dog while the plaintiff was working created a dangerous condition which was not readily apparent upon the defendants’ property and
4. the defendants failed to keep their property or premises in a reasonably safe condition or warn the plaintiff of a dangerous condition, not readily apparent, of which the defendants had knowledge and
5. the defendants’ failure to keep their property or premises in a reasonably safe condition or warn plaintiff of a dangerous condition, not readily apparent, was a proximate contributing cause of plaintiffs injuries, then you shall find for the plaintiff and against the defendants.
However, if you believe that the plaintiff has failed to show any of these elements by a preponderance of the evidence in this case, then your verdict shall be for the defendants.

¶ 16. It is the use of the phrase “not readily apparent” which causes me concern about instruction 16, and leads me to believe it to be inconsistent with the evidence. Mrs. Vaughn testified that notwithstanding her request, the Ambrosinos refused to allow her to restrain or confine the dog.

¶ 17. Likewise, notwithstanding this refusal, Mrs. Vaughn was expected to perform duties. It is the supposed refusal of the Ambrosinos to allow confinement of the dog, while requiring that she perform her duties as housekeeper, which created the dangerous situation and lead to Mrs. Vaughn’s injury.

¶ 18. Instruction 16 would not allow the jury to consider the refusal of the Ambro-sinos to allow confinement of the dog. Instead, it placed the responsibility solely on Mrs. Vaughn, by inclusion of the phrase “not readily apparent.”

¶ 19. That I believe to be inconsistent with the evidence. For that reason, I dissent.

BRIDGES AND IRVING, JJ., JOIN THIS OPINION.