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

text:
    Kenneth Bernard WEBB, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00670-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2003.
    Rehearing Denied Dec. 16, 2003.
    Certiorari Denied July 12, 2004.

      Julie Ann Epps, Samuel H. Wilkins, Jackson, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   BRIDGES, J., for the Court.

¶ 1. The grand jury of Madison County indicted Kenneth Bernard Webb for burglary. He was tried and convicted on April 8, 2002, and was sentenced to serve twenty-five years with ten years suspended with five years’ post-release supervision and ordered to pay court costs. From that conviction and sentence he appeals to this Court. The issues are stated verbatim.

STATEMENT OF THE ISSUES

I. WEBB’S CONVICTION MUST BE REVERSED BECAUSE THE INDICTMENT FAILS TO CHARGE THE ESSENTIAL ELEMENTS OF THE CRIME OF BURGLARY.

II. WEBB’S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT ERRONEOUSLY DENIED WEBB’S REQUESTED INSTRUCTION D-5.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SUSTAINING THE STATE’S PEREMPTORY CHALLENGE TO JUROR JACKSON.

IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SUSTAINING THE STATE’S PEREMPTORY CHALLENGE TO JUROR SMITH.

V. THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S REVERSE-BATSON CHALLENGE TO JUROR WILLIAMS.

FACTS

¶ 2. Upon returning from church on Sunday April 11, 1999, Thelma Coleman discovered the door to her home opened and her VCR, computer and her daughter’s piggy bank stolen. Besides Ms. Coleman, the State presented at trial two witnesses, Tony Taylor and Quincy Jones, both of whom the State alleged to be accomplices of Webb in the burglary.

¶ 3. Taylor testified that he was with Webb during the burglary, and that he took the piggy bank and VCR while Webb took the computer. He also testified that on the very same day as the burglary, they went to the home of Quincy Jones with the stolen items. After going to the bank to withdraw money, Jones bought the computer for three hundred dollars which Taylor and Webb split evenly.

¶ 4. Taylor further testified that it was after his arrest on a different charge in 1999, he decided to cooperate with the police. While talking to Detective Albert Jones, with the Madison County Sheriffs Office, he made a voluntary statement relating the facts of the Coleman burglary. By the time of the trial, Taylor had pled guilty to the burglary and testified that he wanted to get his life together and go straight, that he was the one who approached Detective Jones about cooperating with the prosecution, and that nothing was promised to him in exchange for his cooperation.

¶ 5. Quincy Jones testified that Webb was involved with selling him the computer. He stated that three or four days after the burglary, Webb approached him and asked him if he knew of anyone who would buy the computer for three hundred dollars. Jones also identified Webb as the person who came to see him about the computer, which Jones had bought from Webb for three hundred dollars. While admitting that he did want to get out of the Hinds County Detention Center, Jones denied being offered anything by the prosecution for his testimony.

¶ 6. During trial, Webb chose not to testify in his own defense. Webb was found guilty and sentenced to twenty-five years, in the custody of the Mississippi Department of Corrections, with ten years suspended.

¶ 7. This case was remanded to the trial court for further findings by order of this Court dated March 31, 2003, filed April 1, 2003, and now that this Court has the findings of the trial judge, we proceed with our decision.

ANALYSIS

I. DID THE INDICTMENT FAIL TO CHARGE AN ELEMENT OF BURGLARY?

¶ 8. Webb argues that the indictment fails to allege the essential elements of the underlying offense of larceny. The State argues that because Webb never raised this issue before or during trial he is restricted from doing so on appeal. However, the Mississippi Supreme Court, in State v. Berryhill, stated:

This Court has squarely held that challenges to the substantive sufficiency of an indictment are not waivable. Thus, they may be first raised at anytime, including on appeal. See Copeland v. State, 423 So.2d 1333 (Miss.1982) (substantive failure of an indictment to charge a crime was not waivable and not subject to amendment). See also Burchfield v. State, 277 So.2d 623 (Miss. 1973); Monk v. State, 532 So.2d 592 (Miss.1988), superseded by rule on other grounds (objection to an indictment that failed to charge an essential element of the crime sought to be charged may be raised for the first time on appeal).

State v. Berryhill, 703 So.2d 250, 254(¶ 16) (Miss.1997).

¶ 9. The Mississippi Supreme Court also stated that although the exact language stated in the statute for a crime was not on the indictment, having the statute enumerated on the indictment and including facts, were sufficient to give the defendant notice of the crime he was being charged with, therefore, giving him an opportunity to prepare a defense. Williams v. State, 772 So.2d 406, 409(¶ 13) (Miss.2000).

¶ 10. The statute for burglary of an inhabited dwelling, Mississippi Code Annotated section 97-17-23, states as follows:

Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with the intent to commit some crime therein, shall be punished by imprisonment in the penitentiary not less than three nor more than 25 years.

Miss.Code Ann. § 97-17-23 (Rev.2000).

¶ 11. The exact language on the Madison County indictment reads as follows:

Tony Taylor and Kenneth Bernard Webb late of the county aforesaid, on or about the 11th day of April, 1999, in the county aforesaid and within the jurisdiction of this court, did willfully, unlawfully, feloniously, and burglariously break and enter the dwelling house of Thelma Coleman, located at 616 North Livingston Road, in Madison County, Mississippi, with the intent to commit a larceny therein, in violation of Mississippi Code Annotated § 97-17-23 (1972), as amended, against the peace and dignity of the State of Mississippi.

¶ 12. When the crime being prosecuted requires that it be committed in conjunction with some other crime, it is sufficient to enumerate the specific elements of the crime charged and then to name the additional crime. Stevens v. State, 808 So.2d 908, 920(¶ 35) (Miss.2002) (indictment sufficient for capital murder while committing an aggravated assault if it gives the elements of murder and then names the underlying offense of aggravated assault). The indictment charging Webb with burglary described each element of burglary, then named “larceny” as the crime intended to be committed after the breaking and entering. That is a proper indictment, as the elements of the larceny need not also be stated in the indictment. Therefore, this issue is without merit.

II.DID THE TRIAL COURT ERR IN FAILING TO GRANT JURY INSTRUCTION D-5?

¶ 13. Regarding this issue, Webb argues that the trial court erred in denying him jury instruction D-5, and such denial meant that no instruction was given regarding the care and caution given to the testimony of accomplices. Jury instruction D-5 referred to “an informer’s testimony” which had to be viewed with “great care and caution.”

¶ 14. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss. Ct.App.2002).

¶ 15. In Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990), the court held that a defendant was not entitled to an instruction which incorrectly stated the law, was without foundation in the evidence or was stated elsewhere in another instruction.

¶ 16. The record reflects that this proposed instruction was for “an informer’s testimony,” or for one who “for pay or for immunity from prosecution” provides evidence through his or her testimony. However, there is nothing in the record that illustrates that either Taylor or Jones received any pay or any immunity from prosecution. In addition, Taylor was not an informer but rather a co-defendant. Also, there is no evidence that either Taylor or Jones was impeached on cross-examination by any prior inconsistent statements, which was the basis of Ferrill v. State, 643 So.2d 501 (Miss.1994), the case relied upon by Webb. Instead the trial court granted a defense instruction which comprehensively dealt with factors to be considered when evaluating the credibility of witnesses. Therefore, jury instruction D-5 was properly denied.

III. DID THE TRIAL COURT ERR IN SUSTAINING PEREMPTORY CHALLENGES TO JUROR JACKSON?

IV. DID THE TRIAL COURT ERR IN SUSTAINING PEREMPTORY CHALLENGES TO JUROR SMITH?

¶ 17. “On review, the trial court’s determinations under Batson are afforded great deference because they are, in large part, based on credibility.” McGilberry v. State, 741 So.2d 894, 923 (¶ 118) (Miss.1999) (citing Coleman v. State, 697 So.2d 777, 785 (Miss.1997)). “This Court will not reverse any factual findings relating to a Batson challenge unless they are clearly erroneous.” Id. The Mississippi Supreme Court has held that the trial judge is afforded great deference in determining if the expressed reasons for exclusion of a venire person from the challenged party is in fact race neutral. Stevens v. State, 806 So.2d 1031, 1047-48 (¶ 70) (Miss.2001) (citing Tanner v. State, 764 So.2d 385, 393 (¶ 14) (Miss.2000)). In Stewart, the court held that “one of the reasons the trial court is granted such deference in a Batson issue is because the demeanor of the attorney making the challenge is often the best evidence on the issue of race neutrality.” Stewart v. State, 662 So.2d 552, 559 (Miss.1995).

¶ 18. Webb contends that the trial court erred when it sustained the State’s peremptory challenges on jurors Jackson and Smith. He believes the trial court erred because the reasons given by the State were suspect and the trial court did not make a sufficiently clear ruling as to why these reasons were considered “race neutral.” Webb also contends that the trial court erred when after counsel for Webb exercised three peremptory challenges, the prosecution raised a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) challenge, and then required defense counsel to state his reasons for his peremptory challenges. At the time, the State made no showing that Webb was exercising his challenges in a discriminatory manner.

¶ 19. The court in Davis v. State, 660 So.2d 1228, 1242 (Miss.1995), reiterated a list of reasons that are acceptable as race neutral. “Included among those reasons: age, demeanor, marital status, single with children, prosecutor distrusted juror, educational background, employment history, criminal record, young and single, friend charged with crime, unemployed with no roots in community, posture and demeanor indicated juror was hostile to being in court, juror was late, short term employment.” Id. The Mississippi Supreme Court has also accepted demeanor as a legitimate, race neutral basis for a peremptory challenge. Walker v. State, 671 So.2d 581, 628 (Miss.1995). However, while demeanor can be sufficient to support a claim that a peremptory strike was race neutral, the trial judge must assess all of the evidence before him. Stevens v. State, 806 So.2d at 1047-48.

¶ 20. We will not reverse a trial judge’s factual findings on this issue unless they appear clearly erroneous or against the overwhelming weight of the evidence. Walters v. State, 720 So.2d 856, 865(¶ 28) (Miss.1998). According to the record, the trial court’s findings on Webb’s challenges are not clearly erroneous nor against the weight of the evidence.

¶ 21. With regards to jurors Jackson and Smith, the record reflects that the trial court found that there was no pattern of racial discrimination on the part of the prosecution. In fact, the record shows that the prosecution had already accepted four black jurors when the defense objection was made. In addition, the trial judge required the State to recite its reasons for the strikes to make the record more complete and allow the trial court to analyze the State’s use of peremptory strikes to assure the trial court that the ruling that no pattern had been made was indeed correct.

¶22. The reasons given by the State for rejecting these jurors are that one lived in a high crime area and the other had an incomplete juror card (not employed). These reasons are included in the list of non-racial reasons given in the Davis case. In the trial judge’s findings of fact, he stated that the trial court paused after the State gave its reasons, which afforded Webb an opportunity to offer rebuttal to the State’s reasons for the strikes, but Webb did not and the court continued with jury selection. Webb neither made nor attempted to make a subsequent showing of a prima facie case.

¶23. Because the trial court required the State to give reasons for the use of peremptory strikes when a prima facie case had yet to be established, Webb was afforded more protection from the discriminatory use of peremptory strikes than is required under the current law. Therefore, we find this issue is without merit.

V. THE TRIAL COURT ERRED IN SUSTAINING THE STATE’S REVERSE-BATSON CHALLENGE TO JUROR WILLIAMS.

¶ 24. In discussing the final issue, it should be noted that the information provided in the appellant’s brief makes it impossible to determine which juror was involved. However, it is our interpretation and that of the State’s brief that the juror involved is, in fact, juror Christopher Howard and not juror Shirley Williams, as the appellant’s brief leads us to believe.

¶ 25. During voir dire, the defense wanted to strike Howard, and the reason given was because he worked as a director of finance for a state agency. Webb believes that the trial court erred in rejecting his reason as being non-discriminatory on the basis of race.

¶ 26. Webb cites Taylor v. State, in which the supreme court held that it was reversible error to require the defendant to give reasons for his peremptory challenges without first requiring the State to make a prima facie case of racial discrimination. Taylor v. State, 733 So.2d 251, 258-59 (¶ 32-34)(Miss.l999). The record reflects that the State did raise a Batson challenge for juror McKie and after that the judge required race neutral reasons from everyone, State and defense. At one point the trial judge wanted counsel to give reasons for accepting jurors also. As stated above, he required the reasons for the use of the peremptory strikes so as to have a clearer record.

¶ 27. As for the reason given for juror Howard, although employment is cited in the Davis case as being a race neutral reason, the judge is afforded great deference and he is in the best position to observe the attorneys as well as all the jurors. Stewart, 662 So.2d at 559. As stated in Stevens, a judge must look at all of the evidence before him. Stevens, 806 So.2d at 1047-48. Therefore, we find this issue is without merit.

¶ 28. We affirm as to all issues.

¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE TO TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE LAST TEN YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

IRVING, J.,

dissenting.

¶ 30. With respect for the majority, I must dissent. The majority finds that it is legally defensible for the trial judge to accept as race neutral the striking of a juror by the prosecution because of where the juror lives but reject as race neutral the striking of another juror by the defense because of where the juror works. What is even more perplexing is that the majority makes this finding while at the same time acknowledging that striking a juror because of the location of the juror’s residence (in a high crime area) and striking a juror because of the nature of the juror’s employment (director of finance for a state agency) are both recognized in the jurisprudence of this state as race neutral reasons for striking jurors in the face of a Batson challenge.

¶ 31. In my opinion, the majority, by affirming what happened in this case, has placed its stamp of approval on the arbitrary and capricious selection of jurors. To sanction what has been done in this case by resorting to the tired and worn legal jargon — the judge is afforded great deference and he is in the best position to observe the attorneys as well as all the jurors — is to deny substantive appellate review and, in the long run, is to diminish the public’s esteem for the judiciary, for this rationale is much too transparent.

¶ 32. Without a doubt, it cannot be said that a defendant has received a fair trial when he has been subjected to an uneven playing field in the jury selection process, one of the most important components in the whole process of trial by jury.

¶ 33. For the foregoing reasons, I respectfully dissent. I would reverse and remand this case for a new trial on a level playing field in the jury selection process.


source: Caselaw Access Project

author: SOUTHWICK, P.J., for the Court.

license: Public Domain

text:
    In the Matter of the ESTATE OF Mary M. PIGG, Deceased. Earl J. McClendon, Individually, and as Executor, Appellant, v. David L. McClendon, Hugh I. McCLendon, Myrtis M. Doyle and Sharon M. Wheetley, Appellees.
    No. 2002-CA-00980-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2003.
    Rehearing Denied Nov. 18, 2003.
    Certiorari Denied July 15, 2004.

      Nathan P. Adams, Greenville, Attorney for Appellant.
    John H. Cox, Mendenhall, Attorney for Appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   SOUTHWICK, P.J., for the Court.

¶ 1. The executor under a last will and testament appealed the decision of a chancery court jury finding in favor of those who challenged the will. We agree that there was insufficient evidence that testamentary capacity or undue influence had been exerted. We reverse and enter judgment that the will be admitted to probate.

FACTS

¶ 2. Mary McClendon Pigg died in July 2000 at the age of eighty. She executed a last will and testament on April 10, 1997. Throughout the first half of 1997, Mrs. Pigg suffered several emotional and physical setbacks. Her spouse of many decades died in January. Mrs. Pigg was diagnosed with breast cancer and underwent surgery for that condition. She suffered a serious bout of gastrointestinal bleeding and, finally, had back surgery.

¶ 3. The dispositive paragraphs of the will bequeathed certain items of personalty to named family members with the remainder of the estate liquidated and distributed in various percentages to her siblings of the half blood as follows:

(1) David McClendon, Frank McClen-don, Joe McClendon and Sharon McClendon Wheetley each received five percent, with the provision that if any should predecease Mrs. Pigg, that portion would be divided equally among all the remaining siblings.
(2) Delores McClendon Long, Annie Bell McClendon Murphy and Myrtis McClendon Doyle each received fifteen percent, with the provision for distribution in the event any should predecease Mrs. Pigg.
(3) Earl McClendon and his wife, Juanita, were given thirty-five percent with the survivor of the two taking the entire share in the event either predeceased Mrs. Pigg. Earl McClendon was also named executor of the estate with his wife as the alternate in the event Earl did not serve.

¶ 4. One sibling, Hugh McClendon, was omitted from the specific bequests completely.

¶ 5. The will was admitted to probate on July 20, 2000, and letters testamentary issued to Earl McClendon on July 25, 2000. David McClendon, Hugh McClen-don, Myrtis Doyle and Sharon Wheetley filed an objection and contest to probate, on August 3, 2000, claiming lack of testamentary capacity and undue influence by Earl McClendon.

¶ 6. The matter was tried before a chancery court jury. A total of fifteen witnesses testified and numerous exhibits were presented. After three days of testimony, the jury found in favor of the contestants. This appeal followed.

DISCUSSION

1. Admission of will into evidence

¶ 7. Earl McClendon argues the chancellor erred by refusing to admit into evidence the probated will in common form, along with the record of probate. These items were received by the court for identification only but not admitted into evidence on the ground that the jury would by that admission improperly believe that the will must be valid. The court allowed a conformed copy of the will to be admitted into evidence, in which the actual signatures did not appear.

¶ 8. The proponent of a contested will bears the burden of proving its validity in all respects. Harris v. Sellers, 446 So.2d 1012, 1014 (Miss.1984). A prima facie case of validity is made when the will and its record of probate are admitted into evidence. Id. The contestants then bear the burden of going forward with evidence to challenge the will’s validity. Id.

¶ 9. The estate is correct that it was error for the chancellor not to admit this probate record into evidence. The estate alleges reversible prejudice because the jury received only the conformed copy rather than being given a document signed and initialed on each page by the testator. Still, the estate was not found to have failed to make its prima facie case. Any concerns about juror confusion due to the appearance of the conformed copy of the will could have been rectified with testimony or an explanation during closing argument. This error does not cause reversal.

2. Motions for directed verdict

¶ 10. The estate made motions for a directed verdict at two stages of the trial based upon the argument that the contestants had failed to offer sufficient evidence to support a finding of either lack of testamentary capacity or of undue influence. The motions were denied. ' We would reverse on that basis only where the evidence of an element of the claim is so lacking that reasonable jurors could find only for the non-movant. Harrison v. McMillan, 828 So.2d 756, 764 (Miss.2002).

a. Testamentary capacity

¶ 11. Once the will proponents have established the prima facie case, the initial burden of proof has been satisfied. The obligation of going forward then falls to the contestants to provide evidence to support the factual basis of the challenge that they make.

¶ 12. Testamentary capacity is a necessary prerequisite to a valid will. Miss.Code Ann. § 91-5-1 (Rev.1994). We look to three factors measured on the date of the will to determine the issue of capacity: (1) Did the testatrix have the ability to understand and appreciate the nature and effect of her actions? (2) Did the testatrix have the ability to recognize the natural objects or persons of her bounty and their relation to her? (3) Was the testatrix capable of determining what disposition she desired to make of her property? Estate of Wasson v. Gallaspy, 562 So.2d 74, 77 (Miss.1990).

¶ 13. Other than Earl McClendon, who was called as an adverse witness, only two witnesses for the contestants were asked about Mrs. Pigg’s mental status, Myrtis Doyle and Mrs. Pigg’s physician, Dr. Blaylock, who testified via deposition.

¶ 14. Ms. Doyle testified that Mrs. Pigg was on many medications and experienced hallucinations during her April 1997 hospitalization. The witness qualified her statement by noting that “this was before she was transferred to DRMC to have her back surgery.” Mrs. Pigg’s back surgery occurred approximately one week prior to the date that she executed her will. Doyle testified that she was not present at all on April 10, 1997, and offered no evidence as to Mrs. Pigg’s capacity on that date.

¶ 15. In his deposition, Dr. Blaylock gave this opinion:

[Sjomeone [who] had that many multiple problems, certainly they felt bad, and I’m not sure that they would be thinking rationally. I’m thinking in general terms. If any of us have that many problems, I think, you know, maybe we just don’t — it’s difficult for us to make a decision. I’m thinking of four years ago, because I don’t remember. My note didn’t indicate anything other than she was uncomfortable.

¶ 16. Dr. Blaylock did not have any record of seeing Mrs. Pigg on April 10, 1997, only April 9 and April 11. By his own words, Dr. Blaylock was speaking only in the most general terms that someone in Mrs. Pigg’s physical condition might not be thinking rationally. He offered no opinion as to Mrs. Pigg’s actual mental status on April 10,1997.

¶ 17. Earl McClendon testified that Mrs. Pigg was in physical discomfort but remained rational.

¶ 18. At the close of their case, the contestants had produced no evidence that Mrs. Pigg failed to have sufficient mental capacity on the critical date of April 10, 1997. The medical records throughout her hospitalization indicated that Mrs. Pigg was alert and oriented, including an as- ' sessment completed just a few hours prior to the execution of the will and another one afterwards. The medical records and Dr. Blaylock’s testimony show that Mrs. Pigg received no pain medications until after eight o’clock P.M. on the date that she signed her will around noon.

¶ 19. More importantly, the proponent presented the testimony of Murray and Patricia Akers. Mr. Akers was the attorney who prepared the will. Mrs. Akers works occasionally in her husband’s law office. Both acted as witnesses to the execution of Mrs. Pigg’s will. Mr. Akers was first contacted by Earl McClendon about drawing up a will for Mrs. Pigg in March 1997. Mr. McClendon placed the call, but Mr. Akers spoke to Mrs. Pigg about her testamentary wishes. Several more conversations between attorney and client took place over the next few weeks during which Mrs. Pigg made known her wishes and Mr. Akers advised her how best to achieve those goals.

¶ 20. Both of the Akers testified that Mrs. Pigg appeared to be in physical discomfort on the morning in question. They also testified the meeting with Mrs. Pigg lasted approximately thirty minutes, during which time Mr. Akers went over the dispositive paragraphs of the will with Mrs. Pigg at least three times and Mrs. Pigg asked and responded to questions appropriately.

¶ 21. The testimony of a subscribing witness is entitled to greater weight than that of witnesses who were not present at the time the instrument was executed or who did not see the testatrix on that day. Estate of Edwards v. Edwards, 520 So.2d 1370,1373 (Miss.1988).

¶ 22. There was no indication that Mrs. Pigg lacked testamentary capacity in the conversation as recounted by both Murray and Patricia Akers. On the contrary, she left her estate to the natural objects of her bounty, although not in the amounts some beneficiaries would have preferred. Given her specific bequests, instructions on liquidating the remainder of her assets and the precise percentages she sought to see distributed to her siblings, Mrs. Pigg was capable of determining the property disposition that she wished. Finally, her questions to Mr. Akers, including how to disinherit someone, shows she was cognizant of the nature of her actions.

¶ 23. It was error to give the issue of testamentary capacity to the jury.

b. Undue Influence

¶ 24. A will is said to be the product of undue influence when an adviser has been so importunate as to subdue the testator’s will and free agency. Long-tin v. Witcher, 352 So.2d 808, 811 (Miss. 1977). Such may be accomplished through a variety of methods, such as advice, arguments, or persuasion. Id. However, not all influence exerted is undue. The influence must have been so overwhelming that the resulting instrument reflected the will of the adviser rather than the testator. Greenlee v. Mitchell, 607 So.2d 97, 105 (Miss.1992).

¶ 25. If a confidential relationship existed between the testatrix and the other party, a presumption that there was undue influence arises which must be rebutted by clear and convincing evidence. Estate of Smith v. Averill, 722 So.2d 606, 611 (Miss. 1998). In the absence of such a relationship, no presumption exists. Greenlee, 607 So.2d at 105. Here, the contestants did not plead nor seek to prove a confidential relationship between Earl McClendon and Mary Pigg.

¶ 26. As discussed earlier regarding testamentary capacity, a prima facie case of the validity of a will is established with the record of probate. Thereafter, the contestants must present some evidence of the basis on which the will is being challenged. The contestants called Elsie Skelton and Lorraine Harper, who were friends of Mrs. Pigg. Harper testified that Mrs. Pigg spoke of her will a few weeks before her death in July 2000. According to Harper, Mrs. Pigg was “real disturbed” and “just unhappy” about her will, telling Harper that she had made a “bad mistake” with the will. Mrs. Pigg stated that she had not seen her will and did not know its contents, that Earl McClendon was “involved in the execution of the will,” and that Mrs. Pigg wanted her property divided equally among her siblings.

¶ 27. These statements regarding Mrs. Pigg’s knowledge of her will’s location in 2000 and her desire at that time to have all her property distributed equally are of no relevance to the issues of testamentary capacity and undue influence in 1997. Her statement that she had not seen her will cannot be stretched to imply that she had not seen it three years earlier, as indeed she signed it. At most, jurors could have concluded that in the year 2000, Mrs. Pigg had not seen her will recently, disagreed with what she remembered was on the will, and now wanted her property to go equally to her heirs. The only relevant information here was that Mrs. Pigg recalled in 2000 that Earl McClendon was involved in 1997 in the execution of the will.

¶ 28. Skelton also related comments made by Mrs. Pigg. She stated in 1997 that she had gotten tired of being “hounded” by Earl McClendon about the will and thus signed it. She did not then know the contents of her will; she wished to make a will in which all of her siblings shared equally.

¶29. The estate objected to the testimony of each witness because it was irrelevant, it was hearsay, and it was remote in time from the execution of the will. Out-of-court statements offered to prove the truth of their contents are excluded from evidence, absent an applicable hearsay exception. M.R.E. 802. One exception is for the admissibility of statements of memory or belief that relate to the execution, revocation, identification or terms of the speaker’s will. M.R.E. 803(3).

¶ 30. Harper did relevantly report Mrs. Pigg’s recollection that Earl McClendon was involved in the execution of the will. The remainder of the Harper testimony was irrelevant, remote, and hearsay not covered by any exception.

¶ 31. The Skelton hearsay was less remote. It apparently came from a conversation with Mrs. Pigg a few weeks or at most months after the will was executed. At one stage Skelton indicated that the conversation was after the year 1997, but jurors could find that the better interpretation of her testimony was that the statements were made not long after Mrs. Pigg returned home from the rehabilitation center about a month after the will was prepared in April 1997. Many of the statements are ambiguous, such as Mrs. Pigg’s stated lack of knowledge of the contents of her will. It is unclear from the testimony whether Mrs. Pigg meant she could not then remember the contents or that she had never known them. Similarly, the statements regarding wishing to make a will leaving her estate equally to her siblings merely expressed a current desire to change the terms of her will. There also is an apparent contradiction in the testimony-Mrs. Pigg was ignorant of the contents of her will but cognizant enough of the terms to know that she wished to change them.

¶ 32. The question now is whether the Skelton hearsay created a jury issue. Those 'contesting a will need not present sufficient evidence to prove undue influence. The contestants, however, must at least raise sufficient question to cause jurors to conclude that the proponents failed to prove that the will was free of improper influence:

At the outset the proponent bears the burden of producing evidence of due execution and testamentary capacity.... These offerings make out what is referred to as the proponent’s prima facie case, meaning only that in such a state of the record the proponent is entitled to survive the contestant’s motion for a directed verdict, in the event the case is heard before a jury, and that a jury verdict upholding the will may survive a motion for judgment notwithstanding the verdict. In the event no further proof is offered in a non-jury trial, the proponent will have carried its burden of persuasion sufficient to survive a motion to dismiss....
Once the proponent has shouldered his burden of production such that he has made out a prima facie case, the burden of production shifts to the contestants. What is critical for present purposes is that the burden of persuading the trier of fact on the issues of due execution and testamentary capacity rests on proponent throughout and never shifts to the contestants. That burden of persuasion is subject to the familiar preponderance of the evidence standard.

Clardy v. Nat’l Bank of Commerce of Miss., 555 So.2d 64, 66 (Miss.1989) (footnote and citations omitted).

¶ 33. In summary, those who would set the will aside need not prove that improper influence was brought to bear. The proponents still have the burden to prove that the will was the product of the free will of the testatrix. This is an almost imaginary distinction, though. The level of proof of due execution is one of preponderance of the evidence, i.e., somewhat more evidence of validity than in opposition to it. In a practical sense, it would be difficult for rational jurors to draw the line quite so fine such that even without finding a preponderance in favor of undue influence, they also would not find a preponderance in favor of the will’s proper execution. Still, this is the standard.

¶ 34. The Supreme Court addressed this nuance when it explained that since “it was incumbent upon the proponents, by a preponderance of the evidence, to reasonably satisfy the mind of the jury that the instrument was, in truth, the last will of the deceased,” then “if all the evidence in the case left it doubtful whether the instrument propounded was the true last will of the deceased, the jury should find against its validity....” Blalock v. Magee, 205 Miss. 209, 250-51, 38 So.2d 708, 714 (1949). A jury instruction which tried to explain the concept of being left in doubt might be confusing. The better practice was simply to inform the jurors that the validity of the will must be established by a preponderance of the evidence. Id., at 252, 38 So.2d at 714.

¶ 35. The evidence for this jury was that Earl McClendon had been involved in the execution of the will. By itself, evidence of involvement creates no basis on which to choose between proper assistance and improper influence. There was evidence that at some time after the date of the will, Mrs. Pigg was dissatisfied with its distribution of property. Changes in testamentary disposition are frequently made between the time of an initial will and death; the desire for such changes does not call into question the validity of the initial will. Earl McClendon was said to have “hounded” Mrs. Pigg regarding the instrument. The word “hounded” is pregnant with a variety of meanings, most of which would not rise to domination. What did that mean: hounded to write a will but not to make any particular distribution, hounded to leave more to him than to others but without her desires being overridden, or actually being unduly influenced? To rephrase her statement to fit the issue, it is as if Mrs. Pigg was quoted to say “maybe I was unduly influenced, and maybe I was not.”

¶ 36. The jurors had to decide if the inferences of undue influence made the quantum of evidence in support of due execution less than a preponderance. The best evidence on the issue was the testimony of the subscribing witnesses and others who were present during the execution. From no one contemporaneously involved, as.a party in interest, as the attorney, or as a bystander, was there any suggestion that Mrs. Pigg was unaware of what she was doing or that her personal desires had been overwhelmed by someone else. Doubts about due execution that arise solely from speculation are insufficient. That would be too light a counterweight to the evidence of proper execution.

¶ 37. Had it been the contestants who were to carry the burden of proving undue influence, the proof would have had to rise to the level of a probability:

When the inquiry is upon an issue whether a certain alleged fact existed or happened in the past, it is not sufficient to prove only or no more than a possibility, however substantial the possibility may be, so long as it is only a possibility. There the proof must establish the fact as a probability, using that word in its ordinary and common acceptation.

Gulf Ref. Co. v. Williams, 183 Miss. 723, 185 So. 234, 236 (1938). Since instead it was the proponents of the will who had the burden of proof, the contestants at least had to introduce enough so that reasonable jurors could conclude that it was improbable that the will was written free of undue influences. To reach that conclusion, they had evidence from those present at the execution, offset by the word “hound” and Mrs. Pigg’s complaints a month or more later about the property distribution. Only speculation could have placed such weight on these inherently ambiguous words so as to leave the evidence of due execution at less than a preponderance. This was not sufficient evidence to make the question of undue influence one for the jury.

¶ 38. We therefore reverse, order that the will be admitted to probate, and remand for such further proceedings as are necessary to implement our mandate.

¶ 39. THE JUDGMENT OF THE CHANCERY COURT OF WASHINGTON COUNTY IS REVERSED, THE WILL IS FOUND TO BE VALID AND IS ADMITTED TO PROBATE. THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES..

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

      . Some older cases placed the burden of proving undue influence on the will's challenger:
      The complainants assume the burden of showing by clear and convincing testimony that Miss Caraway was mentally incapacitated to execute a deed or that the conveyance was procured by undue influence. In this case there was no confidential or fiduciary relationship between the parties now contesting. Therefore:
      "Primarily, the person alleging that a contract, deed, gift, or will was procured through the exercise of undue influence has the burden of proving that fact. * * * The proof must be clear and convincing." Black on Rescission and Cancellation, vol. 1, par. 253.

        Gillis v. Smith, 114 Miss. 665, 75 So. 451, 452-53 (1917). In light of the more recent precedents that we cite, we find such rules have been displaced as to wills regardless of whether they might still apply to the contest of deeds.


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

text:
    Gloria PARTLOW, Personal Representative of the Heirs of the Estate of Sonya L. Partlow, Deceased, Appellant, v. Rickey McDONALD, Appellee.
    No. 2002-CA-01309-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2003.
    Rehearing Denied Dec. 16, 2003.
    Certiorari Denied July 15, 2004.

      Brian H. Neely, Tupelo, attorney for appellant.
    Brian Douglas Mayo, and Wade G. Man- or, Jackson, attorneys for appellee.
    Before KING, P.J., MYERS and GRIFFIS, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Sonya Partlow was struck by a vehicle operated by Rickey McDonald and subsequently died. The heirs of Partlow’s estate filed a wrongful death action. In a bench trial, the lower court granted McDonald’s motion for directed verdict on the issue of liability. Finding no error, we affirm.

FACTS

¶ 2. On the evening of August 10, 1998, Rickey McDonald left his employment and traveled toward his home. He turned onto the entrance ramp to Highway 45 and, while he was about to merge into traffic on Highway 45, McDonald’s van struck Sonya Partlow.

¶ 3. Gloria Partlow, as the personal representative of Sonya Partlow’s estate, filed a wrongful death action in the Circuit Court of Lee County. The plaintiff alleged that McDonald was negligent because he failed to yield the right-of-way to a pedestrian, to keep a proper lookout, to exercise reasonable care, and to maintain control of his vehicle. The plaintiff also alleged that McDonald violated various traffic laws and that his acts were wilful, wanton and reckless. A bench trial was held on May 1, 2002.

¶ 4. Preston “Buddy” Irving, the Tupelo police officer who responded to the scene, testified that McDonald was at the scene when he arrived and that his van was parked on the shoulder of the highway. Officer Irving testified that the area of impact was in McDonald’s lane of traffic. Further, the officer testified that he observed some skid marks in the north and south lanes of traffic, but could not say for sure that McDonald’s vehicle had made them. Officer Irving testified that there were no other witnesses to the accident and that McDonald tested negative for alcohol or drug use. He also testified that the speed limit on Highway 45 was 65 miles per hour and that no speed limit was posted on the entrance ramp. Based on his investigation, Officer Irving testified that McDonald was traveling at a speed of 55 miles per hour.

¶ 5. McDonald testified that he was going about 45 miles per hour on the entrance ramp to Highway 45. McDonald testified that his headlights were on, and he saw nothing in front of him on the entrance ramp. When he got to the top of the ramp, McDonald testified that he turned his head to the left to view the oncoming traffic in preparation to merge. When he turned his head back around, McDonald said he saw “the image of a hand. And as soon as I seen it, it hit my windshield.” McDonald further testified that after his van made contact with the decedent’s body, his finger got caught in the steering wheel and he lost control of his van. McDonald’s van crossed the median into the other lane of traffic before he regained control.

¶ 6. After McDonald presented his case, Partlow made a motion for a directed verdict on liability. McDonald countered with his own motion for directed verdict asserting that Partlow had failed to make a prima facie case for negligence. The judge granted McDonald’s motion for directed verdict. Aggrieved, Partlow has appealed to this Court. Partlow assigns several errors to the lower court; however, we find the only issue dispositive of this appeal is whether or not it was proper for the trial court to grant McDonald’s motion for directed verdict.

STANDARD OF REVIEW

¶ 7. In a non-jury trial, such as this case, the appropriate motion is not a motion for directed verdict pursuant to Mississippi Rule of Civil Procedure 50; instead, the correct motion is a motion for involuntary dismissal pursuant to Mississippi Rule of Civil Procedure 41(b). Buelow v. Glidewell, 757 So.2d 216, 220(¶ 12) (Miss.2000). In Mississippi Real Estate Commission v. Geico Financial Services, Inc., 602 So.2d 1155, 1156 n. 1 (Miss.1992), the Mississippi Supreme Court reasoned:

Technically and procedurally, the court granted a dismissal on the merits pursuant to Miss.R.Civ.P. 41(b) since this was a non-jury trial. A directed verdict under Miss.R.Civ.P. 50 is limited in use to “cases tried to a jury with a power to return a binding verdict.” Comment, Miss.R.Civ.P. 50; Mitchell v. Rawls, 493 So.2d 361, 362 (Miss.1986).

Therefore, we will consider this appeal based on the correct standard of review, which under Rule 41(b) is different than the standard of review applicable to a motion for a directed verdict under Rule 50. Century 21 Deep South Properties, Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992); Mitchell v. Rawls, 493 So.2d 361, 362-63 (Miss.1986); Davis v. Clement, 468 So.2d 58, 61-62 (Miss.1985). In considering a motion for involuntary dismissal under Rule 41(b), the trial court should consider “the evidence fairly, as distinguished from in the light most favorable to the plaintiff,” and the judge should dismiss the case if it would find for the defendant. Corson, 612 So.2d at 369 (emphasis added). On appeal, we must apply the substantial evidence/manifest error standard to an appeal of a grant or denial of a motion to dismiss pursuant to Mississippi Rule of Civil Procedure 41(b). Id.

I. Whether the trial court erred in granting McDonald’s motion to dismiss under Rule 1.1(b).

¶ 8. Partlow argues that the trial court erred in granting McDonald’s motion based on Smith v. Walton, 271 So.2d 409, 409 (Miss.1973). In Smith, a man was struck and killed by an automobile as he was walking on the right shoulder of the highway with his back to traffic. Id. A judgment was rendered for the defendant and the plaintiff appealed. Id. The Mississippi Supreme Court reversed and remanded for a new trial because of an erroneous jury instruction. Id. In reaching this conclusion, the court analyzed the law regarding the duties and rights of drivers and pedestrians along Mississippi’s highways. The court noted the following:

In the absence of a statute to the contrary, a pedestrian has the right to use and travel upon any portion of a public highway at any time of the day or night, and his rights and the rights of one operating a vehicle thereupon are mutual, reciprocal, and equal. The operator of a motor vehicle owes to pedestrians walking along the highway the duty to exercise reasonable or ordinary care to avoid injuring them.

Id. at 413 (quoting Layton v. Cook, 248 Miss. 690, 696, 160 So.2d 685, 687 (1964)). The court in Smith also cited Mississippi Code Annotated section 63-3-1112 (Rev. 1996) which provides:

Notwithstanding the provisions of this section every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.

¶ 9. Partlow argues that McDonald failed to pass a three-prong test cited in Smith regarding the liability of a driver towards a pedestrian along the highway. The three parts of this test include: (1) the driver must have kept a reasonable lookout; (2) the driver must have been traveling at a reasonable and proper rate of speed under the prevailing weather conditions; and (3) he must have given warning of his approach if found to be reasonably necessary. Smith, 271 So.2d at 413-16.

¶ 10. Under the first prong of Smith, Partlow argues that McDonald failed to keep a proper lookout because Sonya Part-low was walking on the side of the road, and McDonald had a duty to be on the lookout for pedestrians on the shoulder. She also claims that McDonald breached his duty to keep a proper lookout because he turned to see if there was oncoming traffic. Partlow points to the fact that after impact the decedent’s body was lying on the shoulder of the road. This is the only evidence presented by Partlow to support her claim that the decedent was walking on the shoulder of the highway.

¶ 11.- After reviewing the record, we find the evidence presented does not support Partlow’s contention. Officer Irving, a Tupelo police officer and accident recon-structionist, testified that the point of impact was in McDonald’s lane of traffic. He also testified that the decedent’s body was thrown one hundred five feet after impact. Partlow offered no evidence to dispute this testimony. In reviewing the entirety of the record and the evidence presented, the only conclusion that can be drawn is that the decedent was in McDonald’s lane of traffic when she was struck. Nothing in the record supports Partlow’s contention that the decedent was walking on the shoulder of the highway.

¶ 12. Partlow also relies on McDonald’s own testimony to support her claim that he failed to keep a proper lookout. McDonald testified that when he got to the top of the entrance ramp, he “turned back to the left and turned back, [to the front].” He testified that “it wasn’t three or four seconds I had my head back to the left. I turned around and that’s when I seen a hand.” The plaintiff claims this admission by McDonald proves he breached his duty to keep a proper lookout.

¶ 13. We disagree. The duty to keep a proper lookout also includes looking out for other cars on the road. See Dennis v. Bolden, 606 So.2d 111, 113-14 (Miss. 1992); Jobron v. Whatley, 250 Miss. 792, 798, 168 So.2d 279, 280 (1964). When a driver is merging into oncoming traffic, it is necessary to turn and look for other cars already on the highway before merging. See Miss.Code Ann. § 63-3-805 (Rev. 1996). The trial court properly found that McDonald was acting as a reasonably prudent driver, and we see no error in its decision.

¶ 14. For the second prong of Smith, Partlow contends that McDonald’s speed on the acceleration ramp could not have been reasonable because there was no posted speed limit. McDonald testified he was traveling about 45 miles per hour. Officer Irving testified that he estimated McDonald’s speed to be approximately 55 miles per hour. The posted speed limit on Highway 45 is 65 miles per hour. The purpose of the entrance ramp is to allow a car to accelerate to the appropriate speed to merge with oncoming traffic. The lower court was correct in determining that McDonald’s speed was reasonable and that he breached no duty to the decedent.

¶ 15. As to the final prong of Smith, the duty to give a warning of approach if necessary, Partlow fails to describe how this element was violated. Therefore, we cannot say the trial court erred in determining McDonald breached no duty to the decedent. Furthermore, sufficient evidence existed to support the lower court’s ruling.

¶ 16. The relevant facts of this case present several duties by both the pedestrian and the driver. Mississippi Code Annotated section 63-3-1105 (Rev.1996) provides: “Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.” This statute, considered concurrently with the supreme court’s ruling in Smith, establishes that while the driver of a vehicle has a duty to exercise ordinary care on highways and watch for pedestrians walking along the side, pedestrians also have a duty to yield the right-of-way to oncoming traffic if they wish to cross a highway.

¶ 17. In Hornburger v. Baird, 508 F.Supp. 84 (N.D.Miss.1980), the federal district court agreed with this conclusion. In Homburger, the decedent was walking in the middle of a road in Inverness, Mississippi. Id. at 85. A truck driven by the defendant approached the decedent from the rear and a collision occurred. Id. The court found that the defendant negligently operated his truck at a greater rate of speed than was proper. Id. at 86. However, relying on Mississippi Code Annotated section 63-3-1105, the court found the decedent negligent as well and determined:

The decedent was at or near the center of the road when he either fell into or was struck by the left front fender of defendant’s truck. The collision occurred at a point in the roadway where there was not a marked crosswalk or an intersection. Under such circumstances, decedent owed a duty to yield the right-of-way to defendant’s truck. Decedent failed to perform this duty and was negligent in that regard. This negligence proximately contributed to his injuries and death.

Id. at 86-87. The court found the negligence of the defendant and decedent combined to bring about the injury and death of the decedent and found they were guilty of negligence in equal degrees. Id.

¶ 18. Applying this legal analysis to the case at bar, we find McDonald breached no duty to the decedent. He was traveling at a proper rate of speed, and ascertained that the road was clear before he began to merge onto Highway 45. He then looked for oncoming traffic and in that instance the decedent crossed the road striking McDonald’s vehicle. The judge in the lower court stated, “[T]he defendant in this case did not in fact breach his duty. He acted within what this court considers to be a reasonable fashion under the circumstances.” We find substantial evidence existed to support the lower court’s conclusion that McDonald acted as a reasonable, prudent driver under the circumstances. The judgment of the lower court dismissing the action against McDonald is affirmed.

¶ 19. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

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

IRVING, J.,

DISSENTING:

¶ 20. The majority finds that the trial court did not err in dismissing Partlow’s lawsuit under Rule 41(b) of the Mississippi Rules of Civil Procedure. I note that the trial court actually granted a directed verdict. However, I agree with the majority that since this case was tried to the judge and not a jury, procedurally, the motion at the close of Partlow’s case should have been a motion to dismiss. My point of disagreement with the majority, however, stems from its finding that the trial court did not err in dismissing Partlow’s case at the conclusion of the presentation of her evidence.

¶ 21. McDonald offered no defense. At the conclusion of Partlow’s case, Partlow moved for a directed verdict on the issue of liability, and McDonald counter-moved for a directed verdict. The trial court granted McDonald’s motion. In sustaining McDonald’s motion, the trial court stated: “In this case, the Court having heard all of the evidence in this case, is of the opinion that the Defendant [McDonald] in this case did not in fact breach his duty. He acted within what this Court considers to be a reasonable fashion under the circumstances.”

¶22. The trial court, in considering a motion for an involuntary dismissal under Rule 41(b), is required to “consider the evidence fairly and to give it such weight and credibility as the trial judge finds is appropriate.” Buelow v. Glidewell, 757 So.2d 216, 220(¶ 12) (Miss.2000). Appellate courts apply the substantial evidence/manifest error standard of review of the trial judge’s decision. Stewart v. Merchants Natl Bank, 700 So.2d 255, 259 (Miss.1997). Therefore, the question here is whether there is substantial evidence to support the trial judge’s finding that McDonald did not breach a duty owed to Partlow’s decedent. Because I believe there is a lack of substantial evidence to support that finding, I am compelled to the conclusion that the trial judge did not consider the evidence fairly. Consequently, I respectfully dissent.

¶ 23. The evidence in this case included the deposition and trial testimony of the only known eyewitness to the accident, the Appellee Rickey McDonald. I believe that a fair consideration of the totality of his testimony points to one inescapable conclusion, that he failed to keep a proper lookout as he entered the entrance ramp and proceeded toward Highway 45. A review of his deposition and trial testimony reveals a stark contradiction that can only be explained as a conscious effort by him to alter the facts to allow him to escape responsibility for the accident. I review that testimony.

Deposition testimony

A. And I proceeded to go on up the ramp. As I got nearly to the top of the ramp, I thought, well, I’ve seen other cars coming northbound with no headlights on.
Q. Okay.
A. So I said, look, make sure that you seen a vehicle. So I turned around and glanced and when I turned back around, I seen an image of a hand.
Q. Okay. Now, let’s stop right there. Now, you were going up the ramp. You had seen some cars coming from the south going north that—
A. One car.
—did not have headlights? <©
Well, I didn’t know if it had headlights or not. i>
}J: ;*{ if;
Now, as you were coming up the ramp and watching as you merged in, when did you turn your head back forward again? O’
I turned my head back as I seen a image of a hand.
Where was the hand? <y
Up in the air.
Okay. Was it on your windshield or off to the side or? &
No, it was close to the windshield whenever I seen it.
Okay. <3
Real close. <j
Okay. What happened then? c?
I automatically steered my wheel left and hit my brake. <i
To try to avoid a collision? d1
Right. <3
That would have taken you more on to the highway? <3
Right. <3
Did you stay on the highway or did you go all the way across? c?
Whenever I felt — whenever I steered my way over left, I felt — I felt my van, it started leaning.
Okay. <£>
So I knowed [sic] if I didn’t counter react, I was going to turn my van over. >
Going to flip? «O
Right. í>
I understand. <f0
And after I got back right, my finger got tangled up in the steering wheel. í>
All right. p
And I went across the median. p*
So you lost control of the vehicle. p
Right.
I understand. And it careened across the median? p
Right. £>
Were you able to regain control of it? p
Yeah.
Okay. Before you struck the median barrier?
Right.
I understand. ■ Then what happened? <p
I stopped it on the southboiond lane.
Okay. I understand again. So you had gone over? p
Right.
You went all the way over?
Right.
I understand, okay. And was your vehicle facing southbound or northbound?
Northbound. i>
Okay, I understand. And now, did you feel any type of impact? p
Yeah.
You did feel an impact?
Right.
From what?
From Sonya.
I understand. Was it a heavy impact or light impact?
No, it was very heavy.
Okay. Did you hear anything?
No.
Q. By the time of the collision, about how fast were you going?
A. 55.
Was that at the very top of the ramp? y
Right. !>
I understand. A
Right. !>
Okay. Now, after the impact and you lost control of the vehicle and got back control of it, what did you do then? ©
I automatically stopped.
All right. Now, one thing I just want to make clear. Now, right— did you see the hand upon impact or just right before impact? <©
Right before. <3
And is that what caused you to jerk? &
Right. <3
Okay. And then you felt the impact? y
Absolutely. <3
Okay. Let me ask you this. Now, you know, like I said, I’m not trying to trick you or anything like that. Are you contending that Ms. Part-low jumped out in front of you or anything like that? y
No. <!
Are you contending that she was in the road when you hit her? C?
Yes, sir, she was.
How far in the road? &
About two and a half feet. <!
About two and a half feet over the white line, the outside line? O’
Well, she was in the right lane, northbound, right lane about two and a half feet.
* * * *.
Q. I understand, sir. I understand. But the entire accident happened on the ramp?
A. On — well, not on the ramp.
Q. Right at the end?
A. Right at the tip.
Q. Right. Okay. I mean—
A. Right on Martin Luther King Boulevard.
Q. Right. Right when you’re about to get onto the highway?
A. Right.

Trial testimony

Q. Okay. I want to direct your attention to August 10th, 1998. I’m sure you remember that date, don’t you?
A. Yes, sir, I do.
Q. All right. And what was you driving?
A. An '87 — 1987 Ford van.
Q. Did you have your lights on?
A. Yes, sir.
Q. Could you see in front of you?
A. Yes, sir.
Q. All right. .Did you see anybody in front of you?
A. No, I did not.
Q. Okay. Was there anything on the ramp that obstructed your view?
A. No, there was not.
Q. Okay. Were there any cars in front of you?
A. No, there was not.
Q. Clear ramp, right?
A. Clear ramp.
Q. All right. Now when you went up the ramp, what did you do?
A. Got up to the top of the ramp and turned my head to the left, and when I turned 'back around, I seen the image of a hand. And as soon as I seen it, it hit my windshield.
I understand that. The body of Ms. Sonya Partlow hit your windshield? O
Right. <1
And where was that contact made, do you remember? Was it at the top of the ramp or was it on the highway? Where was it? O
It was on the highway, 15 Highway. ¡>
Which side of your truck did you see the hand on? Did you see it on your right hand or — right hand left-hand side? £>
Right hand side. <3
So it’s the side where the — off away from traffic, right? O’
Yes. «3
All right. It would' have been where the — it would have been where the service part of the road would be, right? Ó
No, it was not. >>
Where was it? <©
It was in the right lane. It was in the highway. í>
All.right. Let me ask you this, Mr. McDonald. When you had this accident, you only saw a brief glimpse? O’
Right. >
You didn’t see — you never saw her body other than after you hit her, right? <©
Absolutely. >
And that was when her hand hit your windshield and her body rolled over your car, right? <£>
Right. {>
That’s the first time you ever saw this woman, right? <©
That’s a fact.

¶ 24. Officer Preston Irving of the Tu-pelo Police Department investigated the accident. He was not qualified as an expert nor did he testify as an expert. He testified that when he arrived on the scene, he found the victim “lying on the shoulder of the highway just north of the on ramp where it intersects Highway 45 off East Main Street.” However, his testimony regarding the point of impact and how he determined the point of impact is far from clear. He first testified as follows:

Q. Did you take any measurements when you were on the scene?
A. Yes, sir, I did.
Q. Did you find any of her personal items when you were on the scene?
A. Yes, sir.
Q. What type of measurements did you take?
A. I measured — there was some — first of all there were some skidmarks visible from the area of impact over to the median. I measured those, also the tire marks what are known as furrow marks going across the grass median. And there’s also some short skidmarks over in the southbound lane.
Q. Okay. Did you observe skidmarks going all the way across the four ■ lane median into the other lane of traffic.
A. Yes, sir, I did.
Q. Did you find any of Ms. Partlow’s personal items on the scene?
A. Yes, sir, I did.
Q. Where were they located?
A. Personal items ivere lying where the on-ramp intersects Highway 15 in the acceleration lane, not the primary inside and outside lane of traffic, but I’m referring to what’s known as the acceleration lane. They were lying in the acceleration
lane just north of where the ramp intersects the highway.
Q. Okay, And did you determine where the point of impact was?
A. Yes, sir. The area — what we call the area of impact, I measured exactly on the northbound point of where the on-ramp intersects the highway up to where her purse was found was 180 feet.
Q. Okay. How far was Ms. Partlow’s body from the point of impact?
A. Right from the area of impact up to where her body was about 10b feet.
Q. And the items that you found, what distance were they from the area of impact as you recall them?
A. Well, they were in the area of impact.

¶ 25. On cross-examination, Officer Irving testified as follows:

Q. Okay. Now I noticed you kept referring to the areas of impact. Can you tell us the exact point of impact?
A. No, sir, I cannot.
Q. Okay. And the items or articles that you found are the purse, sunglasses, the hair piece, a sock and a shoe. These were in the area of impact, though, in the lane of traffic?
A. Yes, sir, it was.

Also, on cross-examination, Officer Irving testified that when he came on the scene, McDonald’s vehicle was parked on the shoulder of the highway, approximately fifty feet north of where the victim was lying. On re-cross, Officer Irving testified that the area of impact was very close to the area where the ramp intersects with Highway 45.

¶ 26. Misty Jane Harmon, a passing motorist, arrived at the scene shortly after the accident occurred. When she arrived she saw the victim “laying on — -just off the side of the road face down.” She and a nurse rolled the victim over to get her face up. They then administered CPR to the victim. It was her opinion that the victim’s body was lying approximately two feet “off the side of the road.”

¶ 27. When the testimony of the witnesses, along with the physical evidence, is carefully scrutinized and fairly evaluated, a rather convincing case of circumstantial evidence emerges that McDonald’s inattentiveness caused this accident and his story of how it occurred does not add up. In fact, the evidence shows a clear conflict between Officer Irving and McDonald as to where the collision or point of impact occurred.

¶ 28. I first note that, according to McDonald’s version of what happened, he undoubtedly moved his vehicle a great distance after the accident occurred. I make this deduction from his ever-changing testimony and the testimony of Officer Irving. In his deposition testimony, McDonald testified that the collision occurred at the very top of the on-ramp, not the acceleration lane, which intersects with the northbound lanes of Highway 45. He also testified that the victim was approximately two and one half feet inside the northbound lane, not the acceleration lane. He further testified that, in an effort to avoid the collision, he traveled all the way across the two northbound lanes of Highway 45, across the median, and stopped, heading north, in the southbound lane. This meant he had to travel in an easterly or northeasterly direction away from the area where the victim’s body was found. However, when Officer Irving arrived on the scene, he found McDonald’s vehicle parked on the shoulder of the highway approximately fifty feet north of the victim’s body. According to Officer Irving, the victim’s body was found on the east shoulder of the acceleration lane approximately 284 feet north of where the on-ramp intersects Highway 45. Accordingly, if the point of impact was where McDonald placed it, he traveled more than 330 feet after striking the victim. This distance is calculated by adding the distances measured and estimated by Office Irving.

¶ 29. -As previously noted, Officer Irving testified that he could not pinpoint the point of impact. However, he considered the point of impact to be where the victim’s personal items were found which was 180 feet from where the on-ramp intersects Highway 45. The victim’s body was found 104 feet north of where the personal items were found, indicating that the victim was knocked that distance.

¶ 30. McDonald’s testimony was that he never saw the victim before the impact. He only saw a hand in his windshield. This testimony is incredulous and preposterous. First, if the hand was in his windshield, it had to be attached to the victim’s body. The hand could not have been in the windshield without the victim being there. Further, the hand could not have been in the windshield without the victim being in front of the vehicle unless the victim was standing to the side of McDonald’s vehicle with an outstretched arm.

¶ 31. What is more logical is that McDonald struck the victim not at the point where the ramp intersects the highway but 180 feet down the acceleration lane. But, even if one takes McDonald’s version to be correct, it is still obvious that he was negligent, even if the victim also may have been negligent. His testimony was that nothing obstructed his view, no other cars were on the ramp, and his lights were on. Under this fact scenario, it cannot be said that one is not negligent if he is keeping a proper lookout and fails to see a pedestrian who is two and one half feet inside his lane of travel. And if the accident occurred in the acceleration lane, the same holds true regarding McDonald’s negligence because again, one cannot be keeping a proper lookout in an unobstructed lane of travel and not ever see a pedestrian before striking him if the pedestrian was standing some 180 feet north of the beginning of the acceleration lane and two and one half feet inside the lane in which the motorist is merging.

¶ 32. It is no defense of the judge’s decision here to say that there were no eyewitnesses to this tragic accident other than McDonald. It does not follow that his version must be accepted as true when it is contradicted by the physical facts. In criminal cases, we do not automatically accept a defendant’s version of an incident even when he is the sole witness to it. If the physical facts contradict the defendant’s version of what happened, the defendant is still held accountable. See, e.g., Roberson v. State, 838 So.2d 298 (¶¶ 28-29) (Miss.Ct.App.2003). I see not reason why the rule ought to be different in civil cases of this nature. Moreover, there is some significance to the fact that McDonald apparently moved his vehicle a good distance after the accident since he initially stopped his vehicle in the southbound lane of traffic. The question must then be asked why did he just not move his vehicle out of the southbound lane of traffic and leave it in the median if he was not attempting to hide something.

¶ 33. For the reasons presented, I believe that the trial judge failed to fairly consider the evidence in this case. Therefore, I would find that the involuntary dismissal of Partlow’s case was error.

KING, P.J., JOINS THIS SEPARATE WRITTEN OPINION.

      . The comment to Mississippi Rule of Civil Procedure 50 states that “Rule 50 applies only in cases tried to a jury with a power to return a binding verdict. It does not apply to cases tried without a jury nor to those tried to the court with an advisory jury.”

      . Both Partlow and McDonald referred to their respective motions as a motion for a directed verdict even though, as previously stated, this case was tried to a judge.

      . Officer Preston Irving is not related to the author of this separate writing.