author: KING, P.J.,

text:
    Robert E. BYRD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00814-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2003.

      Jack G. Price, McComb, attorney for appellant.
    Office of the Attorney General, Jean Smith Vaughan, attorney for appellee.
    Before KING, P.J, BRIDGES and LEE, JJ.
   KING, P.J.,

for the court.

¶ 1. Robert E. Byrd was found guilty in the Circuit Court of Walthall County, Mississippi of the unlawful sale of cocaine. He was sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections, to serve the first eight years and the last seven years to be served on post-release supervision and ordered to pay a fine and other court costs. Aggrieved by his conviction, Byrd has appealed and raised the following issues:

I. Whether the trial court erred in allowing the identification of Byrd in the courtroom based on the pre-trial viewing of photographs of Byrd.
II. Whether the verdict was against the weight and credibility of the evidence.

FACTS

¶ 2. On January 11, 2001, confidential informant Louis Pearley worked with Officer Arzetto Mark of the Walthall Tyler-town Narcotics Task Force to set up an “undercover buy” to purchase narcotics in the Walthall County area. Officers Chad McElveen and Brandon Bright participated by conducting surveillance of the “controlled buy.”

¶ 3. In preparation for the controlled buy, Pearley met with the officers at a pre-arranged location where he was searched. Officer McElveen put a body wire on Pearley and gave him forty dollars (money from Walthall Tylertown Task Force funds) to purchase the narcotics. Pearley used one of the law enforcement vehicles during the controlled buy. The officers placed a video camera and an audio transmitter in the vehicle. The officers conducted surveillance by listening to the audio transmitter when Pearley was no longer in sight.

¶ 4. Pearley testified that after he and the vehicle were searched, the officers followed him and:

[H]e drove down St. Paul Road and I seen [sic] Rabbit standing up under a[sic] oak tree, so I went down and made the loop and come [sic] in and parked, you know, where the video camera would catch him. He came up to me — -when I come [sic] up there I said “what’s up, you on,” and he said, “yeah, what you want.” I said “I want a forty,” that means forty dollars worth of crack cocaine. So he pulled out a little orange-looking pill bottle, unscrewed it, give [sic] me two rocks. I handed him forty dollars and I drove back to the pre-buy location, and at that time on the way back Agent Bright and them [sic] was [sic] behind me and they followed me all the way back to the pre-buy location.

¶ 5. When Pearley met with the officers at the pre-arranged location following the buy, he gave the substance to Officer McElveen who placed it in an evidence bag and gave it to Officer Bright. The substance was then sent to the Mississippi Crime Lab where it was later determined to contain cocaine.

¶ 6. On February 7, 2001, Byrd was indicted for the unlawful sale of cocaine. At a jury trial on April 12, 2001, Byrd denied having committed the crime and testified that he had been at his sister’s house on the afternoon of the alleged sale. Byrd was convicted of the unlawful sale of cocaine, and sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections, with the last seven years to be served on post-release supervision and ordered to pay a fine and other court costs.

ISSUES AND ANALYSIS

I.

Whether the trial court erred in allowing the identification of Byrd in the courtroom based on the pre-trial viewing of photographs of Byrd.

¶ 7. Byrd contends that the trial judge should not have allowed the in-court identification of him because of the improper pre-trial viewing of photographs. He maintains that Pearley viewed the photographs of him while they were “just laying” on the table during the trial and were not shown “in any sort of customary lineup” prior to trial.

¶ 8. This Court reviews a challenge to the admissibility of identification testimony by determining whether there is an absence of credible evidence to support the finding. Jackson v. State, 807 So.2d 467(¶ 8) (Miss.Ct.App.2001).

¶ 9. A review of the transcript shows that Pearley identified Byrd in the following manner:

Q. Let me ask you this question. Did you know Mr. Byrd prior to this date?
A. Yes, sir.
Q. And for the record, do you see Mr. Byrd in the courtroom today?
A. Yes, sir.
Q. Would you identify him?
A. Right there by Mr. Jack Price.

¶ 10. There was no objection made at that time regarding the identification of Byrd. Pearley stated that he had seen Byrd prior to the incident; however, he did not know Byrd’s real name. Pearley indicated that he knew Byrd by the nickname of “Rabbit.” While the description Pearley gave to the officers of the seller directly after the buy did not include information about the person having a mous-tache or goatee, Pearley testified that it was Byrd whom he purchased the substance from and that he gave a description of Byrd at the end of the videotape.

¶ 11. Additionally, Pearley testified that he had not seen the videotape of the buy recently but had seen the photographs of Byrd on the table at trial. The jury also heard identification testimony from others naming Byrd as the person on the video involved in the transaction. At trial, Pear-ley’s identification of Byrd is described as follows:

Q. Have you seen any photographs of Mr. Byrd?
A. When?
Q. Recently.
A. Except for the ones right there on the table.
Q. Okay. Who showed you those?
A. Didn’t nobody show them to me. I saw them. They had them setting [sic] on the table.
Q. And you haven’t looked at any pictures?
A. No, sir.
Q. Haven’t looked at the video?
A. No, sir, not since the day it happened.
Q. And there is no doubt in your mind who is sitting over there at that table?
A. The guy I bought crack cocaine from. Rabbit.
Q. Rabbit?
A. Yes, sir.

¶ 12. There was no objection made following this testimony to suppress the identification on the ground that the in-court identification was tainted or improper due to a pre-trial look at photographs. To preserve an issue for consideration on appeal, a defendant must raise a timely objection. Longmire v. State, 749 So.2d 366(¶ 5) (Miss.Ct.App.1999). Having failed to raise a timely objection, this issue is procedurally barred. Id.

II.

Whether the verdict was against the weight and credibility of the evidence.

¶ 13. Byrd contends that because the in-court identification lacked credibility, the verdict was not supported by the evidence, and a directed verdict should have been granted.

¶ 14. The standard of review for this Court regarding the weight and credibility of evidence is stated as follows:

[W]e must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Sheffield v. State, 749 So.2d 123 (¶ 9) (Miss.1999). Byrd asserts that the evidence was not credible.

¶ 15. Byrd maintains that in viewing the video and seeing just one set of photographs of him “what fair-minded juror could reasonably find that Pearley’s in-court identification was not tainted?” At trial, the State placed several photographs of Byrd in evidence to support the testimony of Officer Mark. Byrd’s attorney objected to the photographs based on “best evidence.” The following discussion of that objection transpired:

BY MR. GOODWIN (for the State): Your Honor, I would like to have these marked as an exhibit to his testimony.
BY MR. PRICE (for the Defendant): Your Honor, we would object. The best evidence, we would submit, would be Mr. Byrd himself. I believe the jury has had ample opportunity to observe him, and they can decide for themselves without the benefit of a photograph.
BY MR. GOODWIN: The problem, Your Honor, is that they are going to have the video camera and photograph, and they’re not going to be able to take Mr. Byrd back to the jury room when they’re looking, and I think for practical purposes the best evidence is these photographs, because that’s what they will have in the jury room.
BY THE COURT: All right. I think the photographs have probative value for the point of identifying Mr. Byrd, so these photographs will be received into evidence as Exhibit S-2, A B and C[sic],

¶ 16. Although the photographs were received into evidence, they were not the sole basis for the identification of Byrd. Pearley testified, without contradiction that he knew Byrd by the nickname of “Rabbit,” and that he purchased the drugs from Byrd. There existed sufficient credible evidence in the record upon which the jury could have found Byrd guilty. This allegation is without merit.

¶ 17. This Court notes that the trial court sentenced Byrd to a term of fifteen years in the custody of the Mississippi Department of Corrections, to serve the first eight years and the last seven years to be served on post-release supervision. Pursuant to Miss.Code Ann. Section 47-7-37 (Rev.2000), a period of post-release supervision shall not exceed five years. Ellis v. State, 748 So.2d 130(¶ 12) (Miss.1999). This Court therefore notes as plain error that portion of the sentence which imposes a period of post-release supervision of seven years.

¶ 18. We therefore affirm the conviction, but reverse and remand for the limited purpose of correcting that portion of the sentence which requires post-release supervision for a period in excess of five years.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF WALTHALL COUNTY OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT YEARS TO SERVE AND $5,000 FINE IS AFFIRMED. THAT PORTION OF THE SENTENCE IMPOSING SEVEN YEARS OF POST RELEASE SUPERVISION IS REVERSED AND REMANDED FOR CORRECTION OF SENTENCE CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALT-HALL COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ, CONCUR. GRIFFIS, J., NOT PARTICIPATING.


source: Caselaw Access Project

author: KING, P. J.,

license: Public Domain

text:
    Rodney NORWOOD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01772-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2003.

      Morris Sweatt, Columbia, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P. J.,

for the court.

¶ 1. Rodney Norwood was convicted of aggravated assault in the Jefferson Davis County Circuit Court. Norwood was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections with fifteen years to serve and the remaining five years conditionally suspended and five years of post-release supervision. Norwood was also ordered to pay restitution. Aggrieved by his conviction, Norwood has appealed and raised the following issues:

I. Whether the verdict was against the weight and sufficiency of the evidence.
II. Whether the trial court erred by denying Norwood’s motion for a mistrial and by allowing the case to go to the jury after it was tainted by inadmissible hearsay testimony.

FACTS

¶ 2. On May 23, 2000, Norwood went to the D & D Drilling work site in Jefferson Davis County seeking employment. He talked to Hilery MeCaskill who testified that Norwood “just barged up in my living quarters. I asked him to knock. He walked outside and knocked, come [sic] back in, had an attitude. He was looking for a job. I told him I didn’t have no [sic] openings.” An argument ensued between the two men and Norwood left the work site in a brown car. Afterwards, McCas-kill and one of his drillers, William Kim-ball, drove the company truck to a nearby store.

¶ 3. As MeCaskill and Kimball were approaching the work site on their return from the store, Norwood returned to the work site in a blue pick-up truck. According to MeCaskill, upon entering the work site, Norwood stopped on the company access road to talk to someone. MeCaskill indicated that he stopped his vehicle near Norwood’s vehicle and told Norwood that he “didn’t want any trouble.” Norwood then exited his vehicle. He stated that as he talked to MeCaskill, who remained seated in the truck, he “notice[d] on his right hand that Hilery had his hand on a gun.” Norwood testified that he reached back into his truck and grabbed his gun from the seat. MeCaskill testified that while seated in the truck, he grabbed his gun from between the seats but immediately put it back because it was not loaded. As the argument continued, MeCaskill exited his vehicle, at which point Norwood shot him.

¶ 4. Kimball went back to the work site to get assistance, and Norwood went home. The shooting was investigated by Sheriff Henry McCullum. Upon arrival at the scene, McCullum was informed that Norwood had shot MeCaskill. McCullum then went to Norwood’s house, where Nor-wood surrendered himself and the gun.

¶ 5. On July 26, 2000, Norwood was indicted on a charge of aggravated assault. On July 30, 2001, in a jury trial, Norwood was convicted of aggravated assault. On August 3, 2001, Norwood was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections with fifteen years to serve and the remaining five years conditionally suspended, with five years post-release supervision, and ordered to pay restitution.

ISSUES AND ANALYSIS

I.

Whether the verdict was against the weight and sufficiency of the evidence.

¶ 6. Norwood contends that the verdict was against the weight and sufficiency of the evidence. A challenge to the weight and sufficiency of the evidence is reviewed by this Court in the following manner:

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.

Herring v. State, 691 So.2d 948, 957 (Miss.1997).

The sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence ... must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

McClain v. State, 625 So.2d 774, 778 (Miss.1993) (citations omitted).

¶ 7. Norwood maintains that he proved at trial that the shooting was an act of self-defense. The defendant is not required to prove that he acted in self-defense, and, if a reasonable doubt of his guilt arises from the evidence, including evidence of self-defense, he must be acquitted. Smith v. State, 754 So.2d 1159(¶ 15) (Miss.2000). In this case, the jury was given an opportunity to consider self-defense. The jury received a self-defense instruction, but elected to return a verdict of guilty of aggravated assault.

¶ 8. In this case, there was conflicting testimony. Norwood testified that:

Hilery was getting out of that truck jawing at me. Steady jawing at me. And he went to waving his hand. When I seen [sic] his hand move, [sic] shot went off. And at that time, I seen [sic] Billy over there. Point-blank Billy had a gun. And I’m thinking two guns. I’m thinking Hilery has a gun, I’m thinking Billy has a gun, Billy has a gun now.

¶ 9. However, McCaskill testified that:

A. Well, I told him I didn’t want no trouble. I got out of the truck with my hands in the air. Told him I didn’t want no trouble, “go on and leave us alone, we’re out of town.”
Q. What happened then?
A. He just said he was ready for anything. Next thing I knowed [sic], I walked beside his truck, in between the trucks, turned around, and he shot me.
Q. Did you still have your hands in the air?
A. Yes, sir.
Q. Did you threaten him?
A. No, sir.
Q. Did you curse him?
A. No, sir.
Q. Did you try to hit him?
A. No, sir.
Q. Did you have a gun on your person?
A. In my truck.

Norwood said he acted in self-defense. McCaskill said that he did not pull a gun on Norwood and that he got out of the truck with his hands in the air. Kim-ball, an eyewitness who testified for the State indicated that “as far as I know, he didn’t have nothing in his hands. His hands was [sic] wide open and in the air like that.” The evidence was in conflict as to what had occurred. Conflicts in evidence are to be resolved by the trier of fact. Craig v. State, 777 So.2d 677 (¶ 10) (Miss.Ct.App.2000). Had the jury as trier of fact resolved the conflict in favor of Norwood, the evidence would have supported a not guilty verdict. Instead, the jury resolved the conflict in favor of McCaskill, and found Norwood guilty. There is sufficient evidence in the record to support this judgment.

¶ 10. Having determined that reasonable and fair-minded jurors could find Norwood guilty beyond a reasonable doubt and that the evidence was sufficient to support the verdict, this Court affirms the trial court’s decision.

II.

Whether the trial court erred by denying Norwood’s motion for a mistrial and by allowing the case to go to the jury after it was tainted by inadmissible hearsay testimony.

¶ 11. Norwood contends that the trial judge should have granted his motion for a mistrial after Kimball testified to inadmissible hearsay. Norwood maintains that the testimony regarding an unknown person on the road who was talking to Norwood about fighting was objected to and the objection was sustained. Therefore, he asserts that a mistrial should have been granted after the jury heard this testimony.

¶ 12. A review of the transcript reveals that the following took place:

Q. After the defendant finished his conversation, what did you all do?
A. Well, after he left, we was [sic] easing on up, and we stopped to talk to that guy that Rodney talked to, or something or other. And he said he was trying to get him to fight us, or something or other. And he said he didn’t want no part of that.
MR. SWEATT: We object to hearsay of this unknown, unnamed person on the road, Your Honor.
THE COURT: All right, sir. I’ll sustain as hearsay.

The trial judge then instructed the jury to disregard the testimony and asked the jury if it could in fact disregard the testimony, to which the jury responded affirmatively.

¶ 13. Norwood claims that the hearsay statement was “an inflammatory characterization” of him “as one who was picking a fight” and therefore a mistrial should have been declared.

¶ 14. Pursuant to URCCC 3.12, a motion for a mistrial may be granted where:

Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct by the party, the party’s attorneys, or someone acting at the behest of the party or the party’s attorney, resulting in substantial and irreparable prejudice to the movant’s case.
Upon motion of a party or its own motion, the court may declare a mistrial if:
1. The trial cannot proceed in conformity with law; or
2. It appears there is no reasonable probability of the jury’s agreement upon a verdict.

¶ 15. The decision to declare a mistrial is committed to the sound discretion of the trial court. Lenox v. State, 727 So.2d 753(¶ 24) (Miss.Ct.App.1998). When the court sustains objections to improper testimony of witnesses or improper remarks of legal counsel participating in a trial, it is presumed, unless otherwise shown, that the jury followed the directions of the trial judge to disregard such comment or testimony. Holifield v. State, 275 So.2d 851, 856 (Miss.1973). The supreme court has held that when the trial judge sustains an objection to testimony and directs the jury to disregard it, prejudicial error does not result. Weeks v. State, 804 So.2d 980(¶35) (Miss.2001). The jury is presumed to understand that the court disapproves of any testimony when an objection is sustained. Id. The trial judge took corrective action by instructing the jury to disregard the hearsay testimony. The record reveals no abuse of the trial judge’s discretion in this matter.

¶ 16. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIFTEEN YEARS TO SERVE AND THE REMAINING FIVE YEARS SUSPENDED ON POST-RELEASE SUPERVISION, AND ORDERED TO PAY RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON DAVIS COUNTY.

McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      . Jury Instruction Number 6: For you to find the shooting in this case to have been done in self defense, the evidence must show that Rodney Norwood was in either actual, present or urgent danger, or Rodney Norwood must have had reasonable grounds to apprehend a design on the part of Hilary [sic] McCaskill to kill him or do some great bodily harm to him, and in addition to that, Rodney Norwood must have had reasonable ground to apprehend that there was imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground on which the defendant acted.


author: THOMAS, J.,

text:
    Robert Davis and Teresa DAVIS, Appellants, v. PIONEER INC. and Vincent Oye, Appellees.
    No. 2001-CA-00045-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2003.

      John Griffin Jones, Jackson, Jay Boling, attorneys for appellants.
    Clifford B. Ammons, Thomas Y. Page, Walter James Brand, Amy C. Felder, Jackson, James Howard Thigpen, attorneys for appellees.
   MODIFIED OPINION ON MOTION FOR REHEARING

THOMAS, J.,

for the court.

¶ 1. The motion for rehearing by appel-lee, Pioneer Inc., is denied. The original opinion issued by this court is withdrawn and this opinion substituted therefor.

¶ 2. Robert Davis and Vincent Oye were both employees of Pioneer, Inc. in October 1997. Davis was the manager of information systems and Oye was the comptroller. On October 10,1997, Davis went into Oye’s office for the purpose of discussing how to reprint a computer-generated form. The two disagreed about the matter, and the disagreement ultimately resulted in a physical assault on Davis by Oye. Davis subsequently received workers’ compensation benefits for his injuries.

¶ 3. This appeal arises out of the personal injury action filed by Robert and Teresa Davis against Pioneer and Oye. Davis filed claims for assault and battery and alleged workplace intentional infliction of emotional distress. Davis’s wife, Teresa, asserted a derivative claim for loss of consortium. The Lauderdale County Circuit Court granted a motion for summary judgment in favor of Pioneer and Oye finding that the Davises were barred from maintaining the tort action by virtue of the exclusivity provision of the Mississippi Workers’ Compensation Act. Aggrieved, the Davises filed this appeal. We cite verbatim their issues on appeal:

A. Whether or not the Workers’ Compensation Act provides the exclusive remedy for intentional torts committed by a co-employee acting in the course and scope of the employment.
B. Whether or not the Circuit Court erred in granting summary judgment on the ground that the “second prong” of Miller v. McRae’s precludes recovery in a tort claim involving assault and battery.

¶ 4. Finding reversible error, we reverse and remand this case for further proceedings consistent with this opinion.

ANALYSIS OF ISSUES PRESENTED

¶ 5. This Court’s standard of review regarding summary judgments is well established. We employ a de novo standard and examine all of the evidence before the lower court in the light most favorable to the party against whom the motion has been made. If there is no genuine issue of material fact, then the moving party is entitled to judgment as a matter of law. Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (¶ 10) (Miss.2001).

¶ 6. The issues cited by the Davises have been combined for purposes of discussion and analysis. Robert Davis argues that the circuit court based its ruling that the exclusivity provision barred his suit in tort on language that was mere dicta in Miller v. McRae’s, Inc., 444 So.2d 368 (Miss.1984), and ignored the opinion’s true holding on the matter which he claims is found in the following quote:

However, where an injury is caused by the willful act of an employee acting in the course and scope of his employment and in the furtherance of his employer’s business, the Workmen’s Compensation Act is not the exclusive remedy available to the injured party.... As previously mentioned, it was never the intention of the Workmen’s Compensation Act to bar an employee from pursuing a common law remedy for an injury that is the result of a willful and malicious act.

Miller, 444 So.2d at 371.

¶ 7. Davis claims that there is nothing in the Act that would make recovery for intentional torts and compensation benefits mutually exclusive, but that, to the contrary, workers’ compensation was never intended to provide immunity for a willful or intentional injury. He argues further that the fact that intentional misconduct brought about a compensable injury does not absolve the actor or the employer from individual liability if the actor was in the course and scope of his employment. Additionally, Davis argues that the public policy underlying the workers’ compensation system is inconsistent with the public policy underlying recovery of compensatory and punitive damages to punish and deter intentional misconduct and employers and their agents should not be allowed to “hide behind the exclusive-of-liability provision of the Act.”

¶ 8. The circuit court ruled that section 71-3-9 of the Workers’ Compensation Act provides the exclusive remedy for compen-sable injuries sustained by an employee and bars suit by the employee against the employer. Section 71-3-9 reads as follows:

The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.

Miss. Code Ann. § 71-3-9 (Rev.2000).

¶ 9. The circuit court further found that the one exception to the exclusive remedy provision created by the Mississippi Supreme Court in Miller delineates two criteria that must be present in order for the exception to apply:

(1) the injury must have been caused by the willful act of the employer or another employee acting in the course of employment and in the furtherance of the employer’s business, and
(2) the injury must be one that is not compensable under the Act.

Miller, 444 So.2d at 371-72.

¶ 10. In September 2001, nine months after the trial court’s decision in this case, the Mississippi Supreme Court decided Blailock v. O’Bannon, 795 So.2d 533 (Miss.2001), which, in our opinion, is indistinguishable from our case. In Blailock, Wanda Blailock was working as a saleswoman at Dillard’s when Shirley O’Ban-non, a co-worker, grabbed her by the arm and began pulling her to an office for disciplinary action. Id. at (¶ 1). According to Blailock, this conduct constituted an intentional assault and battery and false imprisonment, causing her emotional distress. Id. As a result of this incident, Blailock sued O’Bannon and Blailock’s employer, Higbee Company d/b/a Dillard’s. The trial court granted O’Bannon’s and the employer’s motion to dismiss the complaint on the basis of the exclusivity provision of the Workers’ Compensation Act.

¶ 11. On appeal, our supreme court reversed, finding that the trial court’s dismissal of the complaint was reversible error because:

[p]art of the damages sought by Blailock (physical pain and suffering due to the alleged wrenching of her arm, emotional distress, loss of wages, special damages for the loss of the opportunity to compete in the Senior Olympics and punitive damages) are not compensable under the Act because they are alleged to have been caused by wilful and intentional acts, not the negligent or grossly negligent acts. The damages did not arise from an accidental injury or an accidental death. The allegations of Blailock’s complaint certainly meet the two criterial set out by the Court in Griffin. Blailock must prove that O’Bannon was working in the course and scope of her employment when she allegedly committed the intentional torts, that O’Ban-non’s alleged acts were committed with an actual intent to inflict injury, and that Blailock suffered injuries as a result, but the allegations of intentional acts certainly take Blailock’s non-compensable claims out of the jurisdiction of the WCC. Of course, a claim for her injuries that are compensable under the Act are still subject to the WCC.

Blailock, 795 So.2d at (¶ 6) (citations omitted).

¶ 12. In the case sub judice, the complaint alleged that:

On or about the 10th day of October, 1997, Defendant Oye, in his office on the premises of Defendant Pioneer, Inc. wil-fully assaulted and battered Plaintiff Robert Davis by lunging across his desk, grabbing the Plaintiff at his throat and slinging Plaintiff against a wall.
At all times Defendant Oye was Defendant Pioneer, Inc.’s agent, servant and employee and was acting in the furtherance of the business of the Defendant Pioneer, Inc.
% if! % ijc * if:
Plaintiff Robert Davis sustained the following damages: physical pain and suffering, past present and future; permanent physical injuries; medical treatment and expenses, past, present and future; emotional pain and suffering; embarrassment, humiliation; and loss of enjoyment of life.

¶ 13. As previously observed, the trial court determined that the second prong of Miller was not met because Davis’s injuries are compensable under the Act. Davis has not filed a petition to controvert with the Workers’ Compensation Commission. However, he has received workers’ compensation medical benefits. Although the procreant source of these benefits is not entirely clear from the record, apparently, he received these benefits as a result of the employer’s filing the statutory notice required by Mississippi Code Annotated section 71-3-67 (Rev. 2000). Nevertheless, in our opinion, receipt of these medical benefits does not preclude compensation for the damages that are not compensable under the Act because they are alleged to have been caused by wilful and intentional acts. The damages stemming from the assault and battery are not compensable under the Act because they stem from a wilful and intentional act, not a negligent or grossly negligent act. Blailock, 795 So.2d at (¶ 6). Of course, any claim for injuries that are com-pensable under the Act are still subject to the jurisdiction of the Workers’ Compensation Commission. Id.

¶ 14. We reverse the judgment of the Circuit Court of Lauderdale County and remand this ease for further proceedings consistent with this opinion.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS REVERSED AND THE CASE REMANDED FOR FURTHER PROCEEDINGS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

McMILLIN, C. J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.

      . Griffin v. Futorian Corp., 533 So.2d 461, 463 (Miss.1988).


author: IRVING, J.,

text:
    William Robert SHEPPARD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00453-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2003.

      John D. Watson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
   IRVING, J.,

for the court.

¶ 1. William Robert Sheppard was found guilty by a DeSoto County jury of felony driving under the influence. Feeling aggrieved, he has appealed and argues that the trial judge’s refusal to grant a mistrial was an abuse of discretion, and that reversible error occurred as a result of the trial judge’s refusal to grant a new trial or judgment notwithstanding the verdict.

FACTS

2. On November 20, 1999, Officer Shannon Beshears of the City of Horn Lake Police Department was traveling northbound on Tulane Street in Horn Lake, Mississippi. While driving, he observed a blue and white pickup truck traveling at a high rate of speed southbound on Tulane. A basketball goal was in the back of the truck and was thrown out of the truck as it turned on a curvature on the road. Officer Beshears turned on his blue fight to signal the truck to stop. The officer stopped the vehicle and approached the window. As the officer leaned into the truck window, he smelled alcohol.

¶ 3. The officer requested that the driver give his license and exit the vehicle. The driver was identified as William Robert Sheppard. Upon Sheppard’s exiting the truck, the officer asked him whether he suffered from any physical impairments. Sheppard responded, “No.” During this time, Officer Beshears continued to smell alcohol on Sheppard’s breath. The officer then instructed Sheppard to perform a series of tests designed to determine whether a person is under the impairment of alcohol or drugs. During the walk and turn test, Sheppard failed to keep his balance and consistently broke his heel to toe stance. Additionally, Sheppard performed a one leg stand test in which he constantly put his leg down to maintain balance.

¶ 4. After Sheppard faltered during these tests, Officer Beshears arrested Sheppard and took him to the police department where the officer administered a Breathalyzer test. Sheppard registered .152.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Denial of Motion for Mistrial

¶ 5. Sheppard asserts that the trial court erred in denying his motion for a mistrial after one of the chosen jurors failed to return to the jury box in a timely manner. On the day of trial, and before the jurors were sworn in, the trial judge discovered that juror number eighty was absent. At that time, this colloquy took place between Sheppard’s counsel and the judge:

BY THE COURT: When we went out there to put the jury in the panel, we find that one of the jurors that had been picked is not here. If she arrives before we actually start in the next few minutes, then she will go on the panel. But just in case, we need to go ahead and pick another juror. An alternate has already been accepted. I would suggest, unless there is some objection, that she be made the juror and we go pick another alternate in case 80 does not show up. Do you have any objection to that, Mr. Watson?
BY MR. WATSON: No, sir, Your Hon- or.
BY THE COURT: Tell me if you do. Would you rather 80 not be an actual juror? ■ Do you know anything about her? I will certainly give you an opportunity to strike her if you have a problem with her being an actual juror.
BY MR. WATSON: I don’t have a problem with 80 being a juror.
BY THE COURT: No. I’m not talking about 80. I’m talking about 117, the alternate 117.
' BY MR. WATSON: No, sir. She’s acceptable as a juror.
BY THE COURT: Anybody got any objections to 128?
BY MR: COUCH: No.
BY MR. WATSON: No, sir.
BY THE COURT: So 128 would now be the alternate, and 117 would be the juror, unless 80 comes walking in. -
BY MR. WATSON: That’s what I was going to say, Your Honor. If 80 shows up, she’s on, right?
BY THE COURT: She’s on if she shows up before we start, which is going to be in like two minutes.
BY MS. DARNELL: Please stand and raise your right hand. “Do each of you solemnly sear or affirm that you will truly try all issues and execute all writs of inquiry that may be submitted to you by the Court during the present term and true verdicts given accordingly to the evidence, so help you God?”
BY THE TRIAL JURY: (In Unison) I do.

At this point in the proceedings, juror number eighty entered the courtroom but was not seated on the jury panel. Because the trial judge refused to seat the juror, Sheppard’s counsel moved for a mistrial which was promptly denied by the trial judge. Sheppard asserts that the trial judge abused his discretion when he failed to grant the mistrial.

¶ 6. A trial judge’s denial of a motion for mistrial will only be disturbed where an abuse of discretion exists. Madere v. State, 794 So.2d 200, 219(¶ 74) (Miss.2001). In the case sub jvdice, no abuse of discretion existed because all parties agreed that juror eighty would be replaced if that juror failed to return in time. Moreover, we can hardly find reversible error in a case where defense counsel approves of both alternate jurors, one of which replaced the juror in question.

2. Denial of Post Trial Motions

¶ 7. Sheppard asserts in a single issue heading that the trial court erred in denying his motion for a new trial and his alternative motion for a judgment notwithstanding the verdict. However, he only discusses the evidence in light of the standard of review for a denial of a motion for judgment notwithstanding the verdict. Since a different standard of review apply to these two motions, we discuss them separately.

¶ 8. When reviewing at trial court’s denial of a motion for a JNOV, we must consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences which may be reasonably drawn from the evidence and reverse and render where the facts point so overwhelmingly in favor of the appellant that reasonable persons could not have found the defendant guilty. Baker v. State, 802 So.2d 77 (¶ 13) (Miss.2001). However, we must affirm where there is substantial evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions. Id.

¶ 9. Sheppard contends that his motion for JNOV should have been granted because the results of the Breathalyzer could be inaccurate. Sheppard supports this assertion by noting that Officer Beshears could not observe the appellant’s mouth while en route to the police station and Sheppard could have belched or regurgitated which would have made the Breathalyzer results incorrect.

¶ 10. Although Officer Beshears did state that a Breathalyzer test should not be administered to any person within twenty minutes after regurgitating or consuming any substance, Sheppard stated that he never took his eyes off of Sheppard while en route to the police department. Specifically, Officer Beshears testified that “[t]he defendant was observed by me completely the entire time from the time he stepped from his vehicle until the time that he blew into the Intoxilizer 5000. At no time did he have anything placed in his mouth. He had no cigarettes, no gum, no water or anything in his mouth the entire time.” The foregoing testimony proves that this argument lacks merit.

¶ 11. As previously observed, Sheppard also contends that the trial court erred in denying his motion for a new trial. When reviewing a denial of a motion for a new trial, this Court must determine whether the verdict was against the overwhelming weight of the evidence. Id. at (¶ 14). In doing so, we must accept as true the evidence which supports the verdict and will reverse only where there has been an abuse of discretion. Id. The verdict will only be disturbed and a new trial granted in 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. Id.

¶ 12. Our allowing the verdict to stand here would not render an unconscionable injustice in this case. Officer Beshears’s testimony was the only testimony heard by the jury. Therefore, accepting as true the evidence which supports the verdict, we must accept Officer Beshears’s testimony. From his testimony, the jury apparently deduced that Sheppard was pulled over for speeding in his truck, that Sheppard smelled of alcohol that he had consumed, that this consumption impaired his abilities to pass the tests given by the officer, and ultimately caused him to register a .152 on the Breathalyzer, well over the statutory limit for driving under the influence of alcohol. This issue lacks merit. We affirm the trial court in all particulars.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE OF ALCOHOL AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWO AND ONE HALF YEARS SUSPENDED AND FINE OF $2,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND CHANDLER, JJ., CONCUR. GRIFFIS, J„ NOT PARTICIPATING.


text:
    Patrick Evans CLARK a/k/a Patrick E. Clark, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01853-COA.
    Court of Appeals of Mississippi.
    Jan. 14, 2003.

      Patrick Evans Clark (Pro se), attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   KING, P.J.,

for the court.

¶ 1. Patrick Evans Clark perfected this appeal from an order dismissing his petition for post-conviction collateral relief entered by the Circuit Court of Panola County, Mississippi. On February 12, 1999, Clark pled guilty to a charge of capital murder and was sentenced as an habitual offender to a term of life imprisonment without the possibility of parole in the custody of the Mississippi Department of Corrections.

¶ 2. Clark filed a pro se petition for post-conviction collateral relief on March 30, 2001. On July 9, 2001, the petition was dismissed by the trial court. On appeal, Clark raises the following issues:

I. Whether Clark received ineffective assistance of counsel.

II. Whether Clark’s plea of guilty was knowingly, intelligently and voluntarily entered.

FACTS

¶ 3. On November 19, 1998, Clark was indicted for capital murder and burglary. Clark was represented by appointed counsel.

¶ 4. On February 12, 1999, Clark executed a petition to enter a plea of guilty on the capital murder charge. During the guilty plea hearing on February 12, 1999, the trial judge questioned Clark extensively to determine whether his plea to the charge of capital murder as an habitual offender was knowingly and voluntarily made. The trial judge asked Clark whether he understood the nature of the charges against him. Clark stated that he understood the charges and was in fact guilty.

¶ 5. The trial judge questioned Clark to determine whether he had ever been treated for any mental or emotional sickness. Clark indicated that he had not been treated for such. The trial judge informed Clark that pleading guilty would waive his right to a jury trial and other constitutional rights including the right to testify on his own behalf, or not to testify, as he chose. Clark indicated that he understood his waiver of these rights.

¶ 6. Additionally, the trial judge asked Clark’s attorney whether he felt as if he had been given adequate preparation time for this matter. Clark’s attorney stated that he did have adequate time to prepare for this case. The trial judge also asked Clark if he was satisfied-with the work and the services that had been furnished him by his attorney. Clark said, “yes.”

¶ 7. Consequently, the trial judge accepted Clark’s plea of guilty to capital murder.

¶ 8. The State then presented evidence which established Clark as an habitual offender pursuant to Mississippi Code Annotated Section 99-19-81 (Rev.2000). The trial judge sentenced Clark to life imprisonment on the capital murder charge and stated that the “defendant will be required to serve this as a mandatory sentence and will not be eligible for good time, parole or any other early release from the Mississippi Department of Corrections.”

¶ 9. In March 2001, Clark filed a petition for post-conviction collateral relief. That petition was dismissed as being without merit. From that denial of relief, Clark has perfected this appeal.

ISSUES AND ANALYSIS

I.

Whether Clark received ineffective assistance of counsel.

¶ 10. Clark contends that he was denied effective assistance of counsel. He maintains that his attorney refused to file motions requesting: (1) funds to hire a criminal investigator in preparation for his defense and (2) funds to provide for expert assistance and a psychiatric examination.

¶ 11. To establish an ineffective assistance of counsel claim, a party must show a deficiency of counsel’s performance that is sufficient to constitute prejudice to his defense. Walker v. State, 703 So.2d 266(¶ 8) (Miss.1997).

¶ 12. Clark claims that his attorney had no prior experience in defending capital murder cases. However, Clark does not show how this lack of prior experience constituted prejudice to his defense. Clark has not established that his attorney’s failure to file certain motions caused such ineffectiveness which would have resulted in a different outcome had the motions been filed. Clemons v. State, 732 So.2d 883(¶ 35) (Miss.1999). An attorney’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy. Scott v. State, 742 So.2d 1190(¶ 14) (Miss.Ct.App.1999).

¶ 13. In fact, Clark was asked by the trial judge whether he was satisfied with counsel’s services, to which he replied yes. He now tells this Court that he was in fact not satisfied with the services of his attorney. Indeed, in his amended petition for post-conviction collateral relief, Clark asserts that his attorney only spent approximately ten minutes with him in preparing for his case on the two occasions that he and his attorney met regarding the capital murder charge.

¶ 14. Having originally testified to satisfaction with his attorney’s services, Clark bears the responsibility of offering proof of facts to support his claim of ineffective assistance of counsel. Howard v. State, 785 So.2d 297(¶6) (Miss.Ct.App.2001). That proof is required to be more than Clark’s unsubstantiated statement. Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 15. This Court’s review of the record leads to the conclusion that he has failed to provide that proof.

II.

Whether Clark’s plea of guilty was knowingly, intelligently and voluntarily entered.

¶ 16. Clark contends that his guilty plea was not knowingly and voluntarily made. He maintains that he was pressured by his attorney against his will to plead guilty.

¶ 17. Rule 8.04(A)(3) of the Uniform Circuit and County Court Rules states:

3. Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

Swift v. State, 815 So.2d 1230(¶ 11) (Miss.Ct.App.2001).

¶ 18. In his brief, Clark does not establish that he was coerced or pressured into pleading guilty based on the record. He merely states that “he had no other choice but plead guilty” because his attorney failed to adequately prepare a defense for trial.

¶ 19. The trial judge asked Clark whether he had been mistreated or threatened by anyone in any way in order to plead guilty. Clark indicated that he had not been mistreated or threatened. The trial judge then asked Clark if, to his knowledge, anyone had used any form of trickery, deceit, or promised him leniency or mercy in exchange for a plea of guilty. Clark acknowledged that none of this had occurred. The trial judge asked the following as well:

Q. Tell me in your words what you think a plea of guilty is, Mr. Clark.
A. A plea of guilty is if the defendant feels that he’s guilty of such crime he’s been accused of and choose [sic] not to go to trial and will accept whatever the State offers him.
Q. And admit your guilt?
A. That is a plea of guilty.
Q. You admit your guilt?
A. Right.

¶ 20. After extensive inquiry, the trial judge determined that Clark’s guilty plea was knowingly, intelligently and voluntarily made. The trial court stated:

THE COURT: The Court will accept the offered plea of guilty to Count 3 of Patrick Evans Clark. Mr. Clark is alert. He’s responsive to my questions. I do not detect any mental or emotional sickness that would prevent him from making his decision. He appears to be well advised of his rights by his attorney, David Walker. And, in addition, he has petitioned the Court in his own handwriting for the Court to accept his plea. It is, therefore, accepted.

The record before this Court supports the finding of the trial court that Clark’s plea of guilty was a knowing, intelligent and voluntary act.

¶ 21. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT DISMISSING THE POST-CONVICTION RELIEF PETITION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

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

GRIFFIS, J., NOT PARTICIPATING.


author: HOUSTON, Justice.

text:
    David VANN and Brenda Vann v. FIRST COMMUNITY CREDIT CORPORATION.
    1010113.
    Supreme Court of Alabama.
    March 8, 2002.
    Rehearing Denied May 3, 2002.

      Jay E. Emerson, Jr., and Robert D. Lee of Higgs & Emerson, Huntsville, for appellants.
    Gary P. Wolfe and R.- Wayne Wolfe of Wolfe, Jones & Boswell, Huntsville, for appellee.
   HOUSTON, Justice.

The plaintiffs in this action, David Vann and Brenda Vann, appeal from the trial court’s order granting a motion by the defendant, First Community Credit Corporation (hereinafter “First Community”), to compel arbitration. We affirm.

The Vanns executed a note, along with an arbitration agreement, with First Community to purchase a 1995 Pontiac Grand Prix from an automobile dealer. The Vanns also purchased property insurance on the vehicle and credit-life insurance from First Community; the premiums for the policies for that insurance were included in the total amount due on the note and consequently on the monthly payments the Vanns were to make on the note. The Vanns claim that First Community’s agents represented that the amount of the premiums could be removed from the monthly payment amount if the Vanns later purchased equivalent insurance on their own.

Subsequently, the Vanns purchased property insurance on the vehicle from another source; they then requested that the property-insurance premiums for the policy purchased from First Community be deducted from the monthly payments. The Vanns claim that in response to their request First Community’s employees told them that the only way to remove the premiums from their payments would be to refinance the loan.

The Vanns sued First Community, claiming that First Community made the following fraudulent misrepresentations: (1) that the Vanns were required to purchase the insurance to secure the financing, (2) that the premiums would be deducted from the monthly payments the Vanns were to make on the note if the Vanns subsequently purchased separate insurance, and (3) that the Vanns had to refinance the note to remove the insurance premiums from their payments. The Vanns also claimed that First Community was estopped from refusing to remove the insurance premiums from their payments and that they suffered emotional distress from First Community’s intentional acts.

First Community submitted evidentiary exhibits and moved the trial court to compel arbitration. The Vanns objected to the motion and submitted evidentiary exhibits with their reply. The trial court granted the motion to compel arbitration. The Vanns appeal.

On October 1, 2001, Rule 4(d) of the Alabama Rules of Appellate Procedure became effective. Rule 4(d) provides that orders both granting and denying a motion to compel arbitration are reviewable by appeal. Previously, a party could obtain review of an order granting a motion to compel arbitration only by a petition for a writ of mandamus. Court Comment to Amendment to Rule 4(a)(1) and Adoption of Rule 4(d) effective October 1, 2001, Ala. R.App.P. Because the Vanns filed their notice of appeal on October 2, 2001, the amended rule allowing review by appeal governs this action.

“[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.” Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999). Furthermore:

“A motion to compel arbitration is analogous to a motion for summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. ‘After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.’ ”

Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (emphasis omitted)).

The Vanns maintain that the arbitration agreement they signed in conjunction with the note is unconscionable; therefore, they argue, the trial court erred in compelling arbitration. In determining whether a contract is unconscionable, courts look to four factors: “(1) whether there was an absence of meaningful choice on one party’s part, (2) whether the contractual terms are unreasonably favorable to one party, (3) whether there was unequal bargaining power among the parties, and (4) whether there were oppressive, one-sided or patently unfair terms in the contract.” Layne v. Garner, 612 So.2d 404, 408 (Ala.1992).

The pertinent portions of the arbitration agreement in this ease read as follows:

“[T]he borrower and [First] Community Credit Corporation, by executing this Agreement, waive their right to trial by jury of disputes, claims or controversies between themselves arising out of or relating to this Agreement or any agreements or instruments relating to this agreement, and the Borrower and [First] Community Credit Corporation agree that all such disputes, claims or controversies shall be resolved exclusively-by binding arbitration ... [A]ny dispute, claim, or controversy between the Borrower and [First] Community Credit Corporation, whether based in contract, tort or otherwise, in any way arising out of or relating to this Agreement or any agreements or instruments relating to this Agreement shall be resolved exclusively by binding arbitration ....
“No provision of, or the exercise of any rights under this paragraph shall limit the right of any party to exercise (in addition to its right to arbitrate) any self-help remedies or the right of set-off, to realize upon or foreclose against any personal or real property collateral or security whether pursuant to a power of sale or by judicial foreclosure or otherwise, or to obtain provisional or ancillary remedies such as injunctive relief, or the appointment of a receiver, or to seek or obtain any other traditionally equitable relief which does not claim money damages from any court, agency or tribunal before, after or during the pendency of any arbitration.”

The Vanns argue that the arbitration agreement in this case is unconscionable because, they say, (1) the scope of the arbitration agreement is too broad, (2) the agreement exempts First Community from the duty to arbitrate, and (3) they lacked bargaining power when they executed the agreement. The Vanns thus claim that their case is similar to American General Finance, Inc. v. Branch, 793 So.2d 738 (Ala.2000), a ease in which we found unconscionable an arbitration agreement executed in conjunction with a note. However, the facts in Branch are distinguishable from those in this case.

In Branch, we noted several indicia of unconscionability in the agreement at issue there, including: (I) the arbitration provision was very broad in scope; (2) it assigned the determination of threshold issues regarding arbitrability to the arbitrator; (3) it exempted the lender from the duty to arbitrate; and (4) it put a cap on the arbitrator’s award. Furthermore, we held. that the borrower proved that the bargaining power of the lender was overwhelming. Branch, 793 So.2d at 748-49.

Unlike the arbitration provision in Branch, the agreement in this case does not assign threshold determinations of ar-bitrability to the arbitrator, nor does it limit the amount of damages the arbitrator may award. Furthermore, although the agreement does exempt from arbitration certain traditionally equitable claims by either party, the agreement does not require that the Vanns arbitrate their claims while allowing First Community to pursue the same claims in court. In any event, the lack of mutuality of remedy, alone, is not sufficient to support a claim of uncon-scionability. Ex parte Parker, 730 So.2d 168, 171 (Ala.1999).

The Vanns also assert that, like the borrowers in Branch, they lacked bargaining power because they were sent to the defendant by the automobile dealer and because of their limited educations. The Vanns, however, presented no evidence indicating that they were unable to find an alternate lender or that the dealer required them to use First Community. Furthermore, the Vanns’ lack of education does not relieve them of their contractual obligations. “ ‘[A] person who signs an instrument without reading it, when he can read, can not, in the absence of fraud, deceit, or misrepresentation, avoid the effect of his signature, because [he is] not informed of its contents....’” Mitchell Nissan, Inc. v. Foster, 775 So.2d 138, 140 (Ala.2000) (holding that the plaintiff could “not avoid his contractual obligation” because he read at only a sixth-grade level) (quoting Beck & Pauli Lithographing Co. v. Houppert, 104 Ala. 503, 506, 16 So. 522, 522 (1894)).

The Vanns had the burden of proving that the arbitration agreement was unconscionable. Parker, 730 So.2d at. 171. They have not put forth substantial evidence demonstrating that the terms of the agreement are grossly favorable to First Community or that First Community had overwhelming bargaining power. Therefore, the trial court did not err in failing to hold that the agreement was unconscionable.

Finally, the Vanns claim that the arbitration agreement does not cover their claims because, they argue, the alleged fraudulent misrepresentations occurred after the note was executed, and thus, they argue, they did not agree to arbitrate those claims. On the contrary, the agreement states that the parties will arbitrate any claim “in any way arising out of or relating to this Agreement or any agreements or instruments relating to this Agreement.” This Court has held, as the Vanns concede, that the phrase “any controversy or claim arising out of or relating to” in arbitration agreements covers a broad range of disputes. Ex parte Crisona, 743 So.2d 452, 456 (Ala.1999); Beaver Constr. Co. v. Bakehouse, L.L.C., 742 So.2d 159, 165 (Ala.1999); Reynolds & Reynolds Co. v. King Auto., Inc., 689 So.2d 1, 2-3 (Ala.1996). The Vanns’ claims “arise” from conduct and representations that allegedly occurred in the execution of the note or that “relate to” conduct and representations by First Community’s agents regarding the payment and the insurance component of the payment. Therefore, the language of the arbitration agreement covers the Vanns’ claims.

The trial court properly granted First Community’s motion to compel arbitration; therefore, we affirm its order.

AFFIRMED.

SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.


author: HARWOOD, Justice.

text:
    CITY OF BIRMINGHAM v. John Charles SUTHERLAND. John Charles Sutherland v. City of Birmingham.
    1001327 and 1001458.
    Supreme Court of Alabama.
    March 29, 2002.
    Rehearing Denied May 17, 2002.

      James D. Love and John'M. Edens, asst, city attys., for appellant/cross-appellee City of Birmingham.
    Linda L. Cole and Carey W. Spencer, Jr., Birmingham, for appellee/cross-appel-lant John Charles Sutherland.
   HARWOOD, Justice.

The City of Birmingham (hereinafter referred to as “the City”) appeals the trial court’s denial of its preverdict and postver-dict motions for judgments as a matter of law as to certain claims that had been asserted against it by John Charles Sutherland. Sutherland cross-appeals the trial court’s judgment as a matter of law in favor of the City on other claims that he asserted. We reverse and remand as to the City’s appeal and affirm as to Sutherland’s cross-appeal.

On December 22, 1998, Sutherland sued the City, seeking to recover damages on claims of false imprisonment, “public ridicule” and defamation, and assault and battery arising from a June 27, 1997, incident at a Colonial Bank (hereinafter referred to as “the bank”) located in Birmingham, in which Sutherland was accused by the bank’s manager, Mark Renda, of passing two counterfeit checks. After an initial confrontation with Renda, Sutherland left the bank; he returned soon thereafter to discuss the accusation with Renda. When Sutherland returned, Renda was reporting to the University of Alabama at Birmingham (“UAB”) Police Department, by telephone, his suspicion that Sutherland had passed counterfeit checks. The UAB Police Department then sent a radio dispatch to the Birmingham Police Department stating that there was a forgery suspect at the bank.

A “plain-clothes” police officer, Michael Wooten, was the first officer to arrive at the bank. When he arrived, Renda was still in his office and Sutherland was standing outside the office. Officer Wooten went to Renda’s office, and Renda identified Sutherland as the suspect. Officer Wooten then arrested Sutherland by drawing his handgun, pointing it at Sutherland, and instructing him not to move. When additional officers arrived, Sutherland was handcuffed and seated in the bank lobby. He was later taken to the Birmingham Police administration building, where he was questioned and released within an hour; no charges were ever filed against him as a result of the arrest.

On January 20, 1999, the City filed an answer that asserted numerous defenses to Sutherland’s complaint, including immunity under §§ 6-5-338 and 11-47-190, Ala. Code 1975. The City also asserted that there was no basis for liability on its part because, it argued, Wooten had probable cause to arrest Sutherland. Following discovery and court-ordered mediation, the City filed a motion for a summary judgment on August 11, 2000, with a supporting brief and exhibits. On August 29, 2000, Sutherland filed a response and a memorandum in opposition to the City’s motion for a summary judgment, with attached exhibits. On October 31, 2000, the trial court entered, an order on its case action summary that stated, in pertinent part:

“The City[’s] ... motion for summary judgment is granted as to all claims except those set out in Alabama Code Section 11-47-190 for neglect, carelessness or unsMllfulness. Section 6-5-338, supra, establishes immunity for (a) police officers and (b) their governmental unit for discretionary functions. Insufficient facts are before the Court to establish discretionary immunity. While [Sutherland’s] case may be subject to a judgment as a matter of law, [the City’s] motion for summary judgment is overruled as to negligence claims.”

On November 6, 2000, the City filed a motion requesting that the trial court reconsider its motion for a summary judgment; on January 8, 2001, it filed what it termed a “supplemental reply” to its motion to reconsider. On January 17, 2001, the City filed a motion to stay the trial of the case, which was set for January 22, 2001, to await a ruling by this Court on a writ of mandamus the City had also filed on January 17, 2001, in regard to the trial court’s denial of a summary judgment to the City on all of Sutherland’s claims. On January 22, 2001, this Court entered an order denying the City’s petition for writ of mandamus.

The trial of the case began on January 22, 2001. At the close of Sutherland’s case-in-chief, the City filed a motion for a judgment as a matter of law; the trial court denied that motion. The trial transcript shows that the City again made a motion for a judgment as a matter of law at the close of all evidence, and the trial judge granted it as to Sutherland’s false-imprisonment claim, stating, in pertinent part: •

“The Court is going to find as a matter of law that ... Officer Wooten had probable cause and acted within his authority to make the arrest; therefore, the temporary detention was also justified. I find as a matter of law and a matter of fact that you can do something legally but do it in an illegal way.
“So I find that they can proceed to the jury on negligence, assault and battery, and the subpart, excessive use of force, which is part of that assault and battery.”

On January 25, 2001, the jury returned a verdict for Sutherland in the amount of $115,000. Those damages were reduced by $50,000, the amount of a pro tanto settlement paid by Colonial Bank and Ren-da. (See footnote one of this opinion.) On February 23, 2001, the trial court entered a judgment against the City in the amount of $65,000. On that same day, the City filed a renewed motion for a judgment as a matter of law, or in the alternative, a motion to vacate the verdict, or a motion for a new trial; on March 9, 2001, the City amended its postjudgment motions to include additional grounds supporting its argument that it was entitled to a judgment as a matter of law based on the defenses of probable cause and discretionary immunity, and to include additional grounds supporting its argument that it was entitled to a new trial. On March 27, 2001, the trial court denied the City’s renewed motion for a judgment as a matter of law and other postjudgment motions. On April 23, 2001, the City filed a notice of appeal; Sutherland filed a notice of cross-appeal on May 7, 2001.

In its appeal, the City argues that the trial court erred by not entering a summary judgment for it on all claims and by not granting its preverdict or postverdict motions for a judgment as a matter of law, on the grounds (1) that § 6-5-338, Ala. Code 1975, provides immunity to the City for what, it says, was Officer Wooten’s exercise of a discretionary function; (2) that § 11-47-190, Ala.Code 1975, provides the City substantive immunity because, it says, Officer Wooten did not act negligently; (3) that the defense of probable cause is a defense to its liability, citing Couch v. Sheffield, 708 So.2d 144 (Ala.1998); and (4) that Couch v. Sheffield, supra, provides the City with immunity against the intentional acts of Officer Wooten that constitute willful or malicious conduct or acts taken in bad faith.

Sutherland cross-appeals the trial court’s judgment as a matter of law for the City on his claim of false imprisonment. Sutherland argues that the trial court erred because, he says, the evidence concerning Officer Wooten’s actions in making the arrest was in dispute.

Our review of the trial court’s rulings on the City’s preverdict and postver-dict motions for a judgment as a matter of law is dispositive of this case. See Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994)(“Ordinarily, any issue as to the denial of [a] summary judgment motion would be moot, because the sufficiency of the evidence at trial would be the significant question on appeal.”). Our review of the grant or denial of a motion for a judgment as a matter of law is governed by the following standard:

“ ‘The standard of review applicable to a motion for directed verdict ■ or judgment notwithstanding the verdict [now referred to as preverdict and postverdict motions for a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying the motions initially. Thus, when reviewing the trial court’s ruling on either motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the non-mov-ant.’ ”

Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998) (quoting Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988)).

The City first argues that § 6-5-338, Ala.Code 1975, provides it immunity for what, it says, was Officer Wooten’s exercise of a discretionary function in arresting Sutherland. Section 6-5-338 states, in pertinent part:

“(a) Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state,- whether appointed or employed as such peace officer by the state or a county or municipality thereof, or by an agency or institution, corporate or otherwise, created pursuant to the Constitution or laws of this state and authorized by the Constitution or laws to appoint or employ police officers or other peace officers, and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.
“(b) This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers. No immunity is extended hereby to any private nongovernmental person or entity, including any private employer of a peace officer during that officer’s off-duty hours.”

(Emphasis added.) This Court has stated that “subsection (b) makes it clear that this immunity is extended to ‘governmental units or agencies authorized to appoint [law-enforcement] officers.’ ” Telfare v. City of Huntsville, [Ms. 1000357, January 18, 2002] — So.2d -, - (Ala.2002).

In Telfare, supra, this Court further observed:

“In Ex parte City of Gadsden, 781 So.2d 936 (Ala.2000), we squarely addressed the issue of a municipality’s liability for a police officer’s conduct. In Ex parte City of Gadsden we stated: ‘[W]e must first determine whether [the officer] was engaged in performing a discretionary function.’ 781 So.2d at 938. Discretionary functions are those as to which ‘there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice involving what is just and proper under the circumstances.’ Wright v. Wynn, 682 So.2d 1, 2 (Ala.1996). Generally, arrests and attempted arrests are classified as discretionary functions.
“ ‘A State agent shall be immune from civil liability in his or her capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“ ‘(4) exercising judgment in the enforcement of the criminal laws of the State, including, but not limited to, law-enforcement officers’ arresting or attempting to arrest persons .... ’
“Ex parte Cranman, 792 So.2d 392, 405 (Ala.2000)(second emphasis added).”

— So.2d at -. “This Court has also held, however, that acts taken in bad faith, or willful or malicious conduct, will not be considered discretionary in nature.” Ex parte City of Montgomery, 758 So.2d 565, 569 (Ala.1999)(citing Couch v. City of Sheffield, 708 So.2d 144, 153 (Ala.1998); see Wright v. Wynn, 682 So.2d 1 (Ala.1996); Barnes v. Dale, 530 So.2d 770 (Ala.1988); DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1981)).

As a law-enforcement officer, Officer Wooten’s power to arrest is governed by the laws of this State. This power is recognized in § 6-5-338(a), and the laws of this State provide reasonably well-defined rules governing when an officer may make a warrantless arrest — such as Officer Wooten’s arrest of Sutherland. Rule 4.1(a), Ala. R.Crim. P., and § 15-10-3, Ala.Code 1975, provide the limited circumstances under which an officer may make a war-rantless arrest. Rule 4.1(a) states:

“(a) Arrest by a Law Enforcement Officer.
“(1) A law enforcement officer may arrest a person without a warrant if:
“(i) The law enforcement officer has probable cause to believe that a felony has been committed, or is being committed, and that the person to be arrested committed it, or
“(ii) Any offense has been committed in the law enforcement officer’s presence or view, or
“(in) The arrest is otherwise authorized by statute, such as Ala.Code 1975, §§ 32-5-171, 32-5A-191, 15-10-3.
“(2) The law enforcement officer shall inform the person arrested of the officer’s authority and the cause of the arrest, except when the person is arrested in the actual commission of the offense or during pursuit immediately thereafter.”

(Emphasis added.) Similarly, § 15 — 10— 3(a), Ala.Code 1975, states:

“(a) An officer may arrest a person without a warrant, on any day and at any time in any of the following instances:
“(1) If a public offense has been committed or a breach of the peace threatened in the presence of the officer.
“(2) When a felony has been committed, though not in the presence of the officer, by the person arrested.
“(3) When a felony has been committed and the officer has reasonable cause to believe that the person arrested committed the felony.
“(4) When the officer has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed.
“(5) When a charge has been made, upon reasonable cause, that the person arrested has committed a felony.
“(6) When the officer has actual knowledge that a warrant for the person’s arrest for the commission of a felony or misdemeanor has been issued, provided the warrant was issued in accordance with this chapter. However, upon request the officer shall show the warrant to the arrested person as soon as possible. If the officer does not have the warrant in his or her possession at the time of arrest the officer shall inform the defendant of the offense charged and of the fact that a warrant has been issued.
“(7) When the officer has reasonable cause to believe that a felony or misdemeanor has been committed by the person arrested in violation of a protection order issued by a court of competent jurisdiction.
“(8) When an offense involves domestic violence as defined by this section, and the arrest is based on probable cause, regardless of whether the offense is a felony or a misdemeanor.”

(Emphasis added.)

We, therefore, apply these rules to our initial determination of whether Officer Wooten had the discretion to make a warrantless arrest of Sutherland. We note that these rules do not afford an opportunity to exercise discretion under certain circumstances (i.e., no probable cause to believe that a felony has been committed and that the person arrested committed it, or if no offense has been committed in the officer’s presence). If the initial criteria for making a warrantless arrest were satisfied in this case, we would conclude that Officer Wooten’s choices as to whether to make a warrantless arrest, and how to effect that arrest, represent discretionary functions. Accordingly, we consider whether Officer Wooten had probable cause to make a warrantless arrest of Sutherland.

Section 15-10-3(a) provides guidance in determining whether Officer Wooten had probable cause to arrest Sutherland. We note that our consideration of probable cause is also critical to Sutherland’s cross-appeal, because the trial court’s finding that Officer Wooten had probable cause for the arrest was the basis of its judgment as a matter of law for the City on Sutherland’s claim of false imprisonment. Therefore, we will address both the discretionary-immunity subpart of the City’s argument on appeal and Sutherland’s cross-appeal.

The Court of Criminal Appeals, in Owen v. State, 418 So.2d 214 (Ala.Crim.App.1982), equated the term “probable cause” with “reasonable cause,” as that latter term is used in § 15-10-3. In Owen, the Court of Criminal Appeals observed:

“ ‘An officer may arrest without a warrant when “a felony has been committed and he has reasonable cause to believe that the person arrested committed it.” Section 15-10-3, Code of Alabama 1975. The rule of reasonable or probable cause is a “practical, nontechnical conception.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). As defined in Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959):
“ ‘ “Probable cause exists where ‘the facts and circumstances within their (the arresting officers’) 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 committed.... ” (Citations omitted)
“ ‘In determining whether there is probable cause to arrest, it is not necessary that the officer have before him evidence that would support a conviction for the offense. He need only have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the accused committed or was committing an offense.’ ”

418 So.2d at 220 (quoting Tice v. State, 386 So.2d 1180, 1183 (Ala.Crim.App.1980)). See also Ex parte City of Montgomery, 758 So.2d at 570.

The record in this case shows that Officer Wooten went to the bank as a result of a dispatch sent out by the UAB Police Department. At trial, Rose Marie Sanders, the communications supervisor at the UAB Police Department who was the custodian of the department’s radio logs and audiotapes, testified as follows concerning the dispatch sent out to the Birmingham Police Department to which Officer Wooten was responding when he arrived at the bank:

“Q. When you picked up the tape for the ladies and gentlemen of the jury, after they had cut it off, when you picked it up from me, didn’t the tape start out saying they want some more information?
“A. Just now, it started out they were asking for further description information.
“Q. Further information. And people started talking about forgery; right?
“A. Yes, sir.
“Q. Felony; correct?
“A. Yes, sir.
“Q. And you contacted the City of Birmingham; correct?
“A. Yes, sir.
“Q. To the best of your knowledge, we went there; correct?
“A. Yes, sir.”

Officer Wooten further testified as follows at trial, after a recording of the dispatch tape had been played:

“Q. Officer Wooten, were you in car 346 that day?
“A. Yes, sir, that was my number.
“Q. And that was your voice on that tape?
“A. Yes.
“Q. And did you hear on your dispatch ‘Suspects at Colonial Bank suspected of a forgery ring.’
“A. Yes, sir.
“Q. And you responded to that?
“A. Yes, sir.
“Q. Did you believe that was a felony?
“A. Yes, sir.
“Q. And you were responding to that felony?
“A. Yes, sir.”

Renda, the manager of the bank, also testified at one point that Officer Wooten, when he arrived at Renda’s office, identified himself to Renda as a police officer, but later testified that Officer Wooten did not identify himself as a police officer, but that Renda assumed he was. In any event, it is undisputed that Renda then identified Sutherland to Officer Wooten as the suspect.

Under these circumstances, we conclude that Officer Wooten had probable cause to believe that a felony had been committed and that Sutherland had committed it. Thus, he was performing a discretionary function when he chose to make a warrantless arrest and a discretionary function when he chose the manner in which he would effect the arrest. Cran-man, supra. Sutherland further failed to specifically allege, or to present any evidence tending to prove, that Officer Wooten’s actions were taken in bad faith, or that his conduct was willful or malicious. The gist of the allegations made by Sutherland was that Officer Wooten negligently had exceeded his authority in effecting the arrest. Allegations of negligence are not sufficient to remove the immunity the City is provided for Officer Wooten’s performance of a discretionary function. City of Montgomery, supra.

Thus, the trial court erred in not finding that the City had discretionary-function immunity, i.e., immunity from tort liability arising out of Officer Wooten’s conduct in the performance of a discretionary function within the line and scope of his law-enforcement duties in accordance with § 6-5-338, Ala.Code 1975, as a matter of law. The judgment of the trial court is therefore reversed, and the cause is remanded for the trial court to enter a judgment as a matter of law for the City on Sutherland’s negligence and assault-and-battery claims. As to Sutherland’s cross-appeal, we affirm the trial court’s judgment as a matter of law for the City on Sutherland’s false-imprisonment claim based on its finding, supported by the record, that Officer Wooten had probable cause to arrest Sutherland.

1001327 — REVERSED AND REMANDED.

1001458 — AFFIRMED.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur.

      . Under § 13A-9-3, Ala.Code 1975, passing a counterfeit check constitutes the crime of forgery in the second degree. Section 13A-9-3 states, in pertinent part:
      "(a) A person commits the crime of forgery in the second degree if, with intent to defraud, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
      "(1) A deed, will, codicil, contract, assignment or a check, draft, note or other commercial instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; ...

      "(b) Forgery in the second degree is a Class C felony."

      (Emphasis added.)


author: WOODALL, Justice.

text:
    Rose HARSHAW v. NATIONWIDE MUTUAL INSURANCE COMPANY.
    1010114.
    Supreme Court of Alabama.
    May 3, 2002.

      J. Barton Warren, Huntsville, for appellant.
    Jeffrey G. Hunter of Crosslin, Slaten & O’Connor, P.C., Montgomery, for appellee.
   WOODALL, Justice.

Rose Harshaw appeals from a judgment entered on a jury verdict for Nationwide Mutual Insurance Company in an action against that insurer for uninsured-motorist benefits. We reverse and remand.

I.

On September 14, 1998, Rose Harshaw was lawfully stopped at a red light at an intersection in Huntsville. While stopped, Harshaw’s vehicle was struck from the rear by a vehicle driven by Raymond Dennis, an uninsured motorist. The impact caused minor damage to the rear bumper cover of Harshaw’s vehicle, as well as some minor damage to the front of Dennis’s vehicle.

Harshaw did not see or hear Dennis’s vehicle before the accident. After the accident, she spoke with Dennis, and she smelled the odor of alcohol on his breath and noticed that his speech was slurred. After speaking with Harshaw, Dennis left the scene of the accident.

While the accident was being investigated by a police officer for the City of Huntsville, Dennis returned to the accident scene. The officer testified that when she spoke to Dennis she detected the odor of alcohol on him, and that, in her opinion, Dennis was under the influence of alcohol.

Harshaw told the investigating officer that “she had hurting pains to her neck and that she would go and get it checked out later.” Harshaw later sought medical treatment for problems with her neck, which she alleged were caused by the accident.

II.

On June 12, 2000, Harshaw sued Dennis. The complaint included claims alleging negligence and wantonness. It averred that Harshaw had sustained personal injuries as the proximate result of Dennis’s negligence or wantonness, and it demanded both compensatory and punitive damages.

On August 24, 2000, Harshaw amended her complaint to add Nationwide Mutual Insurance Company, her insurer, as a defendant, and to assert against Nationwide a claim for uninsured-motorist benefits, which she alleged were due as the result of the September 14, 1998, accident. On October 17, 2000, Nationwide answered the amended complaint, admitting the existence of the uninsured-motorist coverage, but denying the other material averments.

When Harshaw’s claim against Nationwide was tried before a jury, the trial court instructed the jury regarding Dennis’s alleged negligence and regarding the compensatory damages claimed by Har-shaw. However, the trial court did not instruct the jury regarding Dennis’s alleged wantonness or Harshaw’s claim for punitive damages.

The jury returned a verdict for Nationwide. Harshaw filed a motion for a new trial, claiming “that the trial court erred in dismissing the wantonness claim asserted by [her]” (emphasis added). Also, she claimed that the jury’s verdict was against the weight of the evidence. The trial court denied the motion for a new trial, and Harshaw appealed.

III.

It is fundamental that a “jury’s verdict is presumed to be correct.” Flemister v. General Motors Corp., 723 So.2d 25, 28 (Ala.1998).

“As to [a] contention that the jury’s verdict was against the weight of the evidence, ... we will not reverse an order denying a motion for a new trial on this ground unless, after allowing all reasonable presumptions of its correctness, we conclude that the preponderance of the evidence against the verdict is so decided as to clearly convince us that the verdict was wrong and unjust.”

Marks v. Intergraph Corp., 740 So.2d 1066, 1067 (Ala.1999).

This is the standard we must apply in reviewing the trial court’s denial of Har-shaw’s motion for a new trial insofar as the motion alleged that the jury’s verdict was against the weight of the evidence.

IV.

Nationwide admitted that it provided uninsured-motorist coverage to Har-shaw. It also admitted that Dennis was an uninsured motorist at the time of the accident. Therefore, the jury merely had to decide whether Harshaw was “legally entitled to recover damages” from Dennis, as required by the uninsured-motorist statute. See § 32-7-23(a), Ala.Code 1975. The term “legally entitled to recover damages” has been interpreted to mean that “ The insured must be able to establish fault on the part of the uninsured motorist, which gives rise to damages, and must be able to prove the extent of those damages.’ ” Quick v. State Farm Mut. Auto. Ins. Co., 429 So.2d 1033, 1035 (Ala.1983) (quoting State Farm Mut. Auto. Ins. Co. v. Griffin, 51 Ala.App. 426, 431, 286 So.2d 302, 306 (1973)) (emphasis added in Quick).

Harshaw offered unrefuted evidence that Dennis was at fault, that is, that he was negligent. First, she proved, without dispute, that Dennis had driven his vehicle into the rear of her vehicle, which was lawfully stopped. In so proving, she established that Dennis was prima facie guilty of negligence. See Gribble v. Cox, 349 So.2d 1141, 1144 (Ala.1977) (“the rule in Alabama” is that “one who drives his auto into the rear of another who is stopped in obedience to a traffic light is prima facie guilty of negligence”). Of course, the defendant may present evidence to rebut the plaintiffs prima-facie case. See Jones v. Baltazar, 658 So.2d 420 (Ala.1995). However, Nationwide presented no evidence to rebut Harshaw’s proof.

Harshaw also offered undisputed evidence that Dennis was operating his vehicle while he was under the influence of alcohol. Driving under the influence of an intoxicant has been held to be negligence per se, also referred to as negligence as a matter of law. See Wise v. Schneider, 205 Ala. 537, 88 So. 662 (1921).

If the jury based its verdict for Nationwide upon a finding that it was not reasonably satisfied by the evidence that Dennis was guilty of negligence, then its verdict was against the decided preponderance of the evidence, and clearly its verdict was wrong and unjust. Therefore, we must consider whether the jury was entitled to conclude that Harshaw had not proven to its reasonable satisfaction that she had sustained any injury as the proximate result of Dennis’s negligence. If the jury was not so entitled, the verdict for Nationwide cannot stand. See Ex parte Waples, 781 So.2d 179 (Ala.2000).

Nationwide argues on appeal that “Har-shaw has failed to show, by a preponderance of the evidence, [that] this accident was the proximate cause of her alleged injury.” Brief of Appellee, at 8. However, that argument is directly contrary to Nationwide’s stipulation at trial that “as a proximate result of the September 14,1998 wreck ... Rose Harshaw sustained personal injuries requiring medical treatment.” In light of that stipulation that Harshaw sustained some injuries requiring medical treatment, the jury’s responsibility was to determine the extent of such injuries and then to determine the appropriate amount of compensatory damages. Therefore, we must conclude that the trial court erred in denying Harshaw’s motion for a new trial, because the preponderance of the evidence is so decidedly against the verdict as to clearly convince this Court that the verdict was plainly and palpably wrong and unjust.

V.

Harshaw argues that the trial court erred by failing to instruct the jury on wantonness and punitive damages, because, she says, there was substantial evidence of wantonness. However, because this case must be remanded for a new trial of all issues, and because Nationwide, in the trial court, never challenged the sufficiency of the evidence of wantonness, we decline to address this argument, the only argument Harshaw made regarding the trial court’s instructions to the jury.

The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

      . Harshaw was unable to obtain service of process upon Dennis. All claims against Dennis were dismissed on August 28, 2001.