author: hDAVID S. GORBATY, Judge. I .ARMSTRONG, C.J.,

text:
    Ben S. GRAVOLET v. FAIR GROUNDS CORPORATION. Ben S. Gravolet v. Fair Grounds Corporation.
    Nos. 2003-CA-0392, 2003-CA-0958.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 14, 2004.
    Rehearing Denied Aug. 13, 2004.

      James M. Garner, Timothy B. Francis, Joshua S. Force, Sher Garner Cahill Richter Klein McAlister & Hilbert, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    P.J. Stakelum, III, David R. Sherman, Stephen D. Marx, Julian R. Murray, Jr., Chehardy, Sherman, Ellis, Breslin, Murray & Recile, LLP, Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   ON REHEARING GRANTED

hDAVID S. GORBATY, Judge.

We granted rehearing in order to reconsider our original opinion in light of suggestions made in the appellee’s motion for rehearing. For the reasons set forth below, we reverse our original opinion and affirm the trial court’s judgment as to liability.

FACTS AND PROCEDURAL HISTORY

We refer to our original opinion, Gravolet v. Fair Grounds Corp., 2003-0392 (La.App. 4 Cir. 12/17/03), 865 So.2d 126, for a full discussion of the facts and procedural history in this matter.

DISCUSSION

ASSIGNMENTS OF ERROR BY THE FAIR GROUNDS CORPORATION (“FGC”):

FGC avers that the trial court erred in granting partial summary judgment on the issue of liability. Principles of fiduciary duty law preclude Gravolet from now enforcing the lease clause at issue against FGC because, in acquiring the property through exercise of FGC’s option to purchase the property, Gravolet breached his fiduciary duties to the FGC and assisted another in breaching his fiduciary duties to Uthe FGC. Additionally, FGC argues, there is a factual issue as to whether the Lease Extension Agreement bars Gravolet from enforcing the lease clause at issue.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Insurance Company v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/2000), 755 So.2d 226. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the mover. Board of Assessors of the City of New Orleans v. City of New Orleans, 2002-0691, p. 8 (La.App. 4 Cir. 9/25/02), 829 So.2d 501, 506, writ denied 2002-2633 (La.1/10/03), 834 So.2d 439. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his 1 ¡¡evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

A fact is material if it is essential to a plaintiffs cause of action under the applicable theory of recovery and if, without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4th Cir.1992), writ not considered 613 So.2d 986 (La.1993).

Thus, we apply a two-prong test to determine whether Mr. Gravolet’s motion for partial summary judgment as to liability should have been granted: (1) has he established that no genuine issues of material fact remain? (2) If so, does the record show that he is entitled to judgment as a matter of law?

The Louisiana Civil Code provides that “[cjontracts have the effect of law for the parties ... [and] must be performed in good faith.” La. C.C. art.1983. Consequently, a lease contract is the law between the parties and defines their respective rights and obligations. Corbello v. Iowa Production, 2002-0826, p. 4 (La.2/25/03), 850 So.2d 686; Carriere v. Bank of Louisiana, 95-3058, p. 8 (La.12/13/96), 702 So.2d 648, 665-66. Here, the Lease clearly and explicitly established the parties’ rights and obligations as to restoration of the premises at the end of the lease term.

|4Specifically, the Lease provided, “The Landlord, at his option, may require the building to be replaced in its original condition upon the termination or expiration of this lease.” (Emphasis added.) This provision obligated FGC, at Gravo-let’s option, to restore the premises to a Mexican restaurant as it had been before FGC converted it to an OTB. FGC does not dispute that the Lease contained this language or its meaning. Where a lease’s words are clear and unambiguous, a court must enforce its explicit terms. Brown v. Manhattan Life Ins. Co., 2001-0147, p. 4 (La.6/29/01), 791 So.2d 74, 77.

In Corbello, the Louisiana Supreme Court recently enforced a similar lease provision. The lease at issue provided that “upon termination of this lease, [the lessee] will reasonably restore the premises as nearly as possible to their present condition.” Corbello, 2002-0826, at p. 4, 850 So.2d at 694. The Supreme Court held that this provision clearly and explicitly obligated the lessee to reasonably restore the property to its condition at the beginning of the lease. Id.

FGC argues that Gravolet cannot enforce the “original condition” provision in the Lease because in executing the Lease Extension Agreement, the parties intended to permit either party to “walk away from the lease without further obligation.” FGC premises this argument upon the affidavit of William H. Kurtz.

The clear and explicit terms of the Lease Extension Agreement refute Kurtz’s affidavit, rendering it mere parol evidence and thus, irrelevant. The Lease Extension Agreement provided, in pertinent part:

Tenant shall have the right to terminate this Lease at any time during the Extended Term by giving the Landlord a nine (9) month written | .¡notice of his desire for an early termination; and all rights and obligations of both parties under the Lease shall cease upon the expiration of the aforementioned nine (9) month period.
* * *
EXCEPT AS HEREIN extended, modified, supplemented, or amended, all of the terms, covenants and conditions of the Lease shall remain in full force and effect as heretofore written, and the Lease as extended, modified, supplemented or amended by this Agreement is hereby ratified and confirmed in every respect. Any reference in the Lease to the Lease Term or Extended Term shall include this Agreement and any renewals or extensions hereof.

As the trial court found, the Lease Extension Agreement did not expressly “modify, supplement or amend the ‘original condition’ provision.” Moreover, under this agreement, the parties’ rights and obligations under the Lease did not cease on the date the parties executed the agreement, but only when the Lease actually terminated.

Gravolet and FGC entered into the Lease Extension Agreement on July 7, 1999, and less than three weeks later, FGC, not Gravolet, chose to terminate the Lease early. Subsequently, months before the Lease terminated, Gravolet exercised his right under the “original condition” provision and notified FGC of this election. Gravolet exercised this right before the Lease and the parties’ rights and obligations under it ceased. Thus, FGC was obligated to restore the premises to their “original condition” because the Lease Extension Agreement did not modify this provision, and Gravolet exercised his option before the parties’ rights and obligations under the Lease ceased.

FGC contends that principles of fiduciary duty law preclude Gravolet from enforcing the original condition provision. In support of this argument, FGC cites only jurisprudence holding that a fiduciary may not take advantage of its principal. FGC has failed to prove either that equitable principles under Louisiana law allow 14t to avoid its obligations under the Lease, or that Gravolet actually took advantage of FGC. FGC cites no statutory or jurisprudential authority for its argument that an alleged breach of fiduciary duty would allow it to avoid its contractual obligations under the Lease. Further, FGC’s summary judgment evidence documented only Gravolet’s acquisition of the property, not a breach of any fiduciary duty. Moreover, FGC’s actions over the last ten years constitute a tacit, if not express, ratification of Gravolet’s acquisition of the premises and right to act as landlord. We find that the trial court properly granted partial summary judgment on the issue of liability, and affirm that ruling.

FGC next contends that the trial court erred in awarding damages, in light of the fact that Gravolet entered into a new lease for a substantially higher rent and permitted his new tenant to make substantial renovations to the premises.

The Louisiana Supreme Court has recently noted that:

In determining damages, the trier of fact is accorded much discretion. The assessment of damages by the jury is a determination of fact. The role of an appellate court in reviewing an award of general damages is not to decide what it considers to be an appropriate award, but rather, to review the exercise of discretion by the trier of fact. The adequacy of the award should be determined by facts or circumstances particular to the case under consideration.

Corbello, 2002-0826 at p. 7, 850 So.2d at 696. This court has similarly held that the “standard of review in overturning damage awards requires that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or so low in proportion to the injury that it ‘shocks the conscience.’ ” Mossy Motors, Inc. v. Sewerage & Water Bd. of New Orleans, 2001-0486, pp. 2-3 (La.App. 4 Cir. 9/19/01), 797 So.2d 133, 136 (citation omitted).

FGC asserts that the trial court erred in awarding Gravolet the full amount of the construction costs estimated by construction expert William Bourgeois. |7Specifically, the inclusion of $137,280.00 for the replacement of the air-conditioning chiller was contrary to the evidence, as was the inclusion of approximately $40,000.00 for the cost of replacing or restoring the Mexican tile in the restrooms, FGC avers.

Both Gravolet and FGC presented expert testimony from local contractors, who provided cost estimates for restoring the premises to their “original condition.” William Bourgeois of Shamrock Construction Company (“Shamrock”) testified for Gravolet, and Michael Marsiglia of Marsig-lia Construction Company (“Marsiglia”) testified for FGC.

After hearing both witnesses testify and reviewing their reports, the trial court determined that Mr. Bourgeois was a “credible witness” and “accepted] and adopt[ed] the estimate provided by Shamrock of $880,470.00 for the cost to restore the premises to its ‘original condition.’ ” The trial court “noted similarities in the estimates provided by the general contractors for both parties,” but found that Marsig-lia’s estimate “failed to include: the cost for the replacement of the air-cooled chiller system; the architect’s fee for the reuse of the plans; and, the cost for installation of a fire alarm system.” In support of Mr. Bourgeois’s estimate, the trial court also heard testimony from his HVAC subcontractor, Kim Guzman, who prepared the HVAC portion of the estimate, including the air-cooled chiller system estimate.

This court has recognized that “[gjreat deference is accorded to the trial court’s factual findings, both express and implicit, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review of the trial court’s judgment.” Vignette Publications, Inc. v. Harborview Enters., Inc., 2000-1711, p. 7 (La.App. 4 Cir. 9/12/01), 799 So.2d 531, 536. Consequently, a “trial court’s findings of fact may not be reversed absent manifest, error, or .unless they are clearly wrong.” LaBove v. Raftery, 2000-1394, p. 7 (La.11/28/01), 802 So.2d 566, 572. The Supreme Court has further instructed that:

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion wag a reasonable one. The reviewing court must always keep in mind that “if the trial court’s or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if. convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”

Id. Importantly, “[wjhere a factfinder’s finding is based on its decision to credit the testimony of one of two or.more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Vignette Publications, 2000-1711, pp. 7-8, 799 So.2d at 536; see also Mossy Motors, 2001-0486, p. 4, 797 So.2d at 136.

The trial court heard sufficient evidence to support its award regarding the air-cooled chiller system. Mr. Bourgeois testified that he included the replacement of the air-cooled chiller system in his estimate based upon his subcontractor’s determination that the system was not operational although it had been at the, beginning of the Lease. The trial court also heard testimony from Mr. Guzman, who has thirty years of experience with large retail HVAC systems for buildings, shopping centers and hotels, including the service, installation and design of air-cooled chiller systems. Mr. Guzman inspected the system at issue and testified that it was in a “state of disrepair,” had not been in operation for a number of years, and suffered from a lot of corrosion and deterioration of its structural cabinetry and piping. Mr. Guzman further opined that this system had been in a state of disrepair for approximately five to ten years, and the damage could not have occurred in only two years. Finally, Mr. Guzman described what work would have to be done to restore the chiller system and the cost for that work.

1 ¡)FGC’s complaint about the award for ceramic tile actually involves the plumbing estimate for restoration of the restrooms, the cost for which Mr. Bourgeois and his subcontractor estimated at $15,000.00. FGC’s plumbing contractor estimated a cost of $500.00 for maintenance for these bathrooms. FGC ascribes all of this difference to removing sheetrock and replacing tile and contends it should not be responsible for this work because the new tenant allegedly sheetrocked over the tile. Mr. Bourgeois testified, however, that the plumbing work in the bathrooms also included the cost of installing piping. It should be noted that Mr. Bourgeois’s estimate for ceramic tile was actually lower than that of Mr. Marsiglia.

FGC argues that the trial court’s award of full restoration costs to Gravolet “results in an inequitable ‘windfall’ ” by not reducing those costs to account for depreciation. However, Corbello refutes this proposition.

In Corbello, the plaintiffs leased property to Shell Oil Company (“Shell”). Under the lease, Shell “agree[d] that upon termination of this lease it will reasonably restore the premises as nearly as possible to their present condition.” Id. at p. 4, 850 So.2d at 694. On writ of certiorari to the Louisiana Supreme Court, Shell argued that “the legal principles that restrain immovable property damages in tort and specific performance cases to the market value of the property should also apply in cases of damages for breach of contract.” Id. at p. 2, 850 So.2d at 692. These principles limit recovery in a variety of ways, including to “the cost of replacement new, less depreciation, if the value before and after the damage cannot be reasonably determined, or if the cost of repairs exceeds the value of the thing damaged.” Id. at p. 5.

The Supreme Court rejected this argument, holding that the “measure of damages in breach of contract cases is governed by the four corners of the | ^contract.” Id. The Supreme Court observed, “[T]he contractual terms of a contract, which convey the intentions of the parties, overrule any policy considerations behind such a rule limiting damages in tort cases.” Id.

In light of Corbello and the clear and explicit terms of the Lease, the trial court correctly awarded Gravolet the full restoration costs. The four corners of the Lease required FGC to restore the premises to their “original condition” and did not provide any deduction for depreciation. As such, we find that the trial court did not abuse its discretion in awarding $880,470.00 in restoration damages. Further modification of this award will be discussed below.

FGC additionally argues that the trial court erred in awarding Gravolet $168,000.00 for loss of rents during the six months it would have taken to restore the premises.

FGC contends that Gravolet waived any claim for lost rent during the restoration period by permitting his new tenant to renovate the premises, or alternatively, that Gravolet fully mitigated the loss. This argument lacks merit. Gravolet had an obligation to try to mitigate his losses, and he satisfied that obligation by re-letting the premises. Gravolet could not lease the premises to any new tenant without allowing it to renovate the premises, because the premises were configured as an OTB, and only FGC could operate an OTB there. Regardless, the new tenant did not restore the premises to a restaurant, which is what Gravolet testified he wanted, and what the Lease obligated FGC to do.

FGC asks that this court reduce the lost rent from $28,000.00 to $13,125.00 per month for six months. Such a reduction is necessary because the trial court intended to award Gravolet the monthly rent FGC was paying at the end of the lease, according to FGC.

In At the end of the Lease, FGC’s rent was $13,125.00 per month. At the time of trial, the rent owed by Gravolet’s new tenant was $28,000.00 per month. The trial court in its Reasons for Judgment stated that “at most, the revenue costs would be six months of rent at the rate paid by FGC when it terminated the lease, $28,000.00 per month.” Based upon this statement, it appears that the trial court intended to award Gravolet six months of rent based upon FGC’s rent at the end of the Lease. It erroneously used the wrong figure to calculate that amount, mistakenly utilizing the amount of rent paid per month by Gravolet’s new tenant. Under the reasoning articulated in the Reasons for Judgment, the trial court should have awarded past lost rent in the amount of $13,125.00 per six months, bringing the total amount of lost rent to $78,750.00. We find that this assignment of error has merit and hereby amend the trial court’s judgment to reflect this amount for lost rent.

Finally, FGC avers that the amount of attorneys’ fees awarded by the trial court should be set aside. FGC explains that it was error for the trial court to fix the amount of attorney’s fees awarded in light of the stipulation entered into at trial by the parties that the amount of such fees would be determined by a subsequent rule.

The trial court awarded Gravolet $349,490.00 as attorney’s fees based on a clause in the Lease that obligated the tenant to pay the landlord’s reasonable expenses, including attorneys’ fees. The court then noted that Gravolet was represented by counsel pursuant to a contingency fee contract under which his attorney was entitled to one-third of any recovery. The award fixing the attorneys’ fees was contrary to the following stipulation that was entered at the conclusion of plaintiffs case:

liJTHE COURT: Well, we’ve got one witness today. That was productive. Plaintiff rests?
MR. GARNER: Subject to — We’ve worked this out, Your Honor. As you know, we have a claim for attorneys’ fees, which were provided under the lease, and costs. And we’d like to hold the record open. We’re gonna sit down with P.J. and Steve to finalize that evidence. But we’re gonna sit down and work that out, assuming you enter a ruling in our favor, which we pray for. MR. STAKELUM: I thought what we had talked about was that, you know, you’ve already put on your liability evidence regarding attorneys’ fees and that if the Court were to award attorneys’ fees, the judgment would simply say plus reasonable attorneys’ fees. And then we would do it by a separate rule. MR. GARNER: That’s fine, That’s what I was trying to say.
THE COURT: All right.

We find that, based upon the stipulation referred to above, it was improper for the trial court to have fixed the amount of the attorneys’ fees in his judgment. As such, we reverse the portion of the judgment awarding attorneys’ fees, and remand this matter for a hearing to determine the amount of attorneys’ fees that should be awarded in this case.

ANSWER TO THE APPEAL

Gravolet answered FGC’s appeal and filed a separate appeal that was consolidated with the instant appeal.

Gravolet argues that the trial court erred in not awarding him the full rent, property taxes, and insurance he has lost/ will lose as a result of defendant’s breach of the lease, from the date the lease was terminated up through and including the period of reconstruction.

The trial court stated in his Reasons for Judgment:

Future rents are too speculative to be awarded. Gravolet’s damages were mitigated by rental to the tenant. Once renovation costs had been expended, 11 «there would be no future damage. All relevant testimony was consistent that renovation would take approximately six months to complete. The court finds at most the revenue costs would be six months of rent at the rate paid by FGC when it terminated the lease ...”

We find no error in these conclusions of the trial court and deem them to be supported by the evidence and testimony adduced at trial. We conclude that the award of six months lost rent is appropriate under the circumstances to compensate Gravolet. We do not deem it necessary to amend the trial court’s award to include future lost rent, property taxes, and insurance. We also reference the issue of the amount of lost rent as more fully discussed above.

Gravolet contends that he should be awarded the amount of income tax he will have to pay on the award for restoration costs. The fact that the Fair Grounds will pay damages, as opposed to restoring the premises to the original condition as required by the lease, creates a taxable event for Gravolet that he would not have incurred otherwise. Thus, the restoration costs should be “grossed up” to $1,600,855.00 to account for the tax burden, he argues.

Section 109 of the Internal Revenue Code provides that:

Gross income does not include income (other than rent) derived by a lessor of real property on the termination of the lease, representing the value of such property attributable to buildings erected or other improvements made by the lessee.

26 U.S.S. § 109. Under § 109, if FGC had restored the premises to a restaurant, as the Lease required, Gravolet would not have had to pay income taxes on those improvements at the termination of the Lease. However, Gravolet will be required to pay income taxes on the trial court’s award of restoration costs. The trial court’s award of restoration costs should have taken this additional damage into account. It abused its discretion by failing to “gross up” the restoration costs award to compensate for the state (6%) and federal (39%) taxes Gravolet will have to pay on |14the award. To determine the full award for restoration costs, we must calculate fifty-five percent of the gross income needed to equal $880,470.00. Therefore, we find that the full award for restoration costs should be $1,600,855.00 (i.e. $1,600,855.00 — (0.45 x 1,600,855.00)= $880,470.00). Awarding Gravolet these additional damages is the only way to ensure that the after-tax award will be sufficient to cover the actual cost of restoration. As such, this portion of the trial court’s judgment is amended, and the award of restoration costs is increased by $720,385.00 to $1,600,855.00.

Gravolet next argues that the trial court erred in not awarding him pre- and post-judgment interest on damages awarded.

FGC concedes that ordinarily a party is entitled to interest from the date of breach. However, as L & A Contracting Co. v. Ram Indus. Coatings, Inc., 1999-0354, p. 27 (La.App. 1 Cir. 6/23/00), 762 So.2d 1223, 1238-39, noted, pre-judgment interest is meant to fully compensate the injured party for the use of the funds to which he is entitled but does not enjoy because the defendant has maintained control over the funds during the pendency of the action. In the instant case, Gravolet sought to have his property returned to the condition it was in immediately prior to the inception of the lease in 1989. Although he claimed that FGC should have returned the property to this condition in 2000, the evidence he presented at trial consisted of Bourgeois’s estimate, which represented what Bourgeois would have charged to do the work at the time of trial in 2002. Similarly, the estimate of Marsig-lia, FGC’s expert, was based upon what he would have charged to do the work at the time of trial. Thus, any added cost for the difference between what it would have cost to do the work in July 2000 and what it hgwould have cost to do the work at trial a little over two years later was already built into both expert’s estimates.

The amount awarded by the trial court was sufficient to return the property to its 1989 condition based on construction costs at the time of trial. None of the cases cited by Gravolet involve instances in which a court was asked to award prejudgment interest on a damage award that was based on costs measured as of the time of trial. To allow additional interest from August 1, 2000 to the present would amount to an impermissible double dip. As such, we find that the trial court did not err in failing to award pre-judgment interest.

FGC does not dispute that the trial court judgment should include post-judgment interest from the date it was signed. As such, this matter is remanded to the trial court for the calculation and addition of post-judgment interest.

Finally, Gravolet requests that this court modify the trial court’s award of attorneys’ fees, because of defendant’s appeal, and award his attorneys forty percent of his damages, as provided for in his contingency fee agreement.

As discussed above, we find that, in light of the stipulation entered into by the parties, the trial judge erred in awarding attorneys’ fees in the judgment. We thus remand this matter for a full hearing on the issue of the amount of reasonable attorneys’ fees.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, and amended in part. This matter is remanded for the trial court for further proceedings as discussed herein.

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART; REMANDED.

ARMSTRONG, C.J., CONCURS IN PART AND DISSENTS IN PART.

I .ARMSTRONG, C.J.,

CONCURS IN PART AND DISSENTS IN PART, WITH REASONS.

We granted rehearing in order to reconsider our original opinion in light of suggestions made in the appellee’s motion for rehearing. Because I believe the appellant’s allegations of breach of fiduciary duty raise issues of material fact that make summary judgment inappropriate in the present posture of this case, I respectfully dissent from that portion of the opinion that affirms the trial court’s judgment granting a summary judgment on the issue of liability.

It is clear that Mr. Gravolet is correct in his contentions that the Fair Grounds Corporation (FGC) knowingly and voluntarily agreed in its original lease agreement with Mr. Keyworth to return the property to its original condition. In order to protect its sizeable investment in the improvements to the property, FGC received an option to purchase the property for a fixed price. It is equally clear that FGC had the right to rely on its agents, Messrs. Gravolet and Roussel and on Mr. Roussel in his additional capacity as their counsel, to act, as provided for in the corporate resolution authorizing their agencies, “for AND ON BEHALF OF” FGC. If FGC can prove its allegations at trial, then the trier of fact could conclude that the alleged actions of Messrs. Gravolet and Roussel in exercising FGC’s option to purchase for Mr. Gra-volet’s own account effectively eliminated FGC’s ability to protect its investment in improvements to the leased property. The material fact to be determined is whether once Mr. Gravolet purchased the property, FGC effectively was deprived of the benefit of the lease provision allowing FGC to purchase the property on favorable terms.

Based on the documentary evidence adduced at the hearing on the motion for summary judgment, there exist genuine issues of material fact as to whether the alleged actions of these agents constituted a breach of their fiduciary duties as agents to their principal. These facts are material as they affect the validity of the exercise of the option by the agent, rather than by the corporation on whose behalf he was authorized to act. Absent a valid exercise of the option to purchase, Mr. Gravolet has no right to enforce the obligations of the lease.

The appellee argues that FGC’s actions in signing an extension of the lease in effect ratified the agents’ alleged actions. However, FGC claims that at the time it paid rent to Mr. Gravolet and agreed to the extension of the lease, it was unaware of the alleged breaches of the agents’ fiduciary duties as agents and as attorney for FGC. FGC claims that once it became aware of the basis of its allegations of breach of fiduciary duty affecting the validity of Mr. Gravolet’s exercise of the option to purchase, it amended its answer to include these allegations. These are genuine issues of material fact that require determination at a full trial on the merits.

I concur with the majority’s scholarly and lucid discussion of the attorney’s fee and quantum issues, should liability be found.


source: Caselaw Access Project

author: WALLER, Presiding Justice, EASLEY, Justice, RANDOLPH, Justice,

license: Public Domain

text:
    Freddie WALKER v. STATE of Mississippi.
    No. 2002-KA-00652-SCT.
    Supreme Court of Mississippi.
    May 27, 2004.
    Rehearing Denied Aug. 12, 2004.
    Thomas M. Fortner, Jackson, Phillip Broadhead, Columbia, Carl D. Gordon, attorneys for appellant.
    Office of Attorney General by W. Glenn Watts, attorney for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Freddie Walker was convicted of statutory rape and sentenced to serve two concurrent life sentences in the custody of the Mississippi Department of Corrections. The trial court denied Walker’s request for a new trial or in the alternative judgment notwithstanding the verdict. On appeal, he raises three issues: (1) that the trial court erred in admitting into evidence a towel containing semen which had not been scientifically identified as his; (2) that the trial court erred in admitting recordings of his telephone conversations with the victim; and (3) that the verdict was based on insufficient evidence and was contrary to the weight of the evidence.

¶2. Finding that the admission of the towel violated the M.R.E. 403 unfair prejudice standard, we reverse and remand for a new trial.

FACTS

¶ 3. Freddie Walker ran a nightly janitorial services business in Jackson. In January of 1999, he met “Mother” and they developed a friendship, which was both professional and intimate. “Mother”, a widow since 1995, cared for her four children in addition to providing nightly cleaning services. Because of his positive rapport with the children, Walker and “Mother’s” relationship evolved to a point where he was furnished a key to their home, which he frequented.

¶ 4. In mid-April 2000, school officials contacted “Mother” and informed her of rumors circulating that Walker had sexually assaulted M.M., her thirteen-year-old daughter. When confronted, both Walker and M.M. denied that such attacks occurred. Nevertheless on April 21, 2000, “Mother” had M.M. examined by Dr. Harriet Hampton, a specialist in pediatric and adolescent gynecology. The examination proved inconclusive as to vaginal penetration. Dr. Hampton testified that during this visit she was informed by M.M. that she had been previously sexually abused by her older brother (“Brother”) who lived in the house during the period that the offenses, which are the subject of this appeal, were alleged to have occurred. Believing the rumors untrue, “Mother” and Walker continued their relationship.

¶ 5. In August of 2000, “Mother” became concerned about her children’s activities, especially those of “Brother”, and “bugged” the family telephone line. To her dismay, she incidentally recorded several sexually suggestive conversations between Walker and M.M. Immediately, “Mother” contacted the Jackson Police Department and had M.M. examined by a physician. On August 23, 2000, Dr. James Cloy conducted a pelvic examination and found evidence of vaginal penetration and no intact hymen. Walker was questioned by the authorities and subsequently arrested.

¶ 6. Walker, 45, was prosecuted on two counts of capital rape. However, he allegedly sexually assaulted M.M. six times from May of 1999 until August 15, 2000. During the trial, several witnesses testified for the prosecution, including: Mother, M.M., Dr. Cloy, Dr. Hampton, and Detective Kim Harrison of the JPD child protection unit.

¶ 7. The prosecution’s most critical pieces of evidence were the recorded conversations and a towel, which allegedly had Walker’s semen on it. In the recorded conversations, Walker told M.M. that she was “sexy” and “appealing” and discussed kissing her. Prior to trial, the trial court denied Walker’s motion in limine to exclude the taped conversations.

¶ 8. With regards to the towel, the prosecution received it from “Mother” in August of 2000. It was alleged that following one the attacks in the family’s living room, Walker used the towel to clean himself. Seeing this, M.M. went upstairs only to return after Walker had left. M.M. then retrieved an additional towel from “Mother’s” bedroom, which she wrapped the soiled towel in and held until giving it to “Mother” in August of 2000. This incident was alleged to have occurred in August of 1999, but was not made part of the indictment.

¶ 9. Prior to trial, Walker filed a motion to suppress the towel. He argued that, without any confirmation that the semen was his, there was no connection between the towel and him and that its admission would violate his right to a fair trial. After due consideration, the trial court denied the motion.

¶ 10. Walker raises several issues on appeal.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY ADMITTING A TOWEL AS EVIDENCE OF AN ALLEGED PRIOR BAD ACT PURSUANT TO M.R.E. 401, 402, 403 AND 404(B).

¶ 11. Relying on M.R.E. 404(b), the State argues that the towel was admitted because as evidence to a similar, prior offense it corroborated the charges in the indictment; showed Walker’s lustful disposition toward M.M.; and showed the probability that he committed the crime. Further, the State maintains that the probative value outweighs any prejudicial effect and that therefore there is no M.R.E. 403 violation.

¶ 12. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Jefferson v. State, 818 So.2d 1099, 1104 (Miss.2002) (quoting Fisher v. State, 690 So.2d 268, 274 (Miss.1996)). See also Hill v. State, 774 So.2d 441, 444 (Miss.2000); Crawford v. State, 754 So.2d 1211 (Miss.2000); Gilley v. State, 748 So.2d 123, 126 (Miss.1999); Hughes v. State, 735 So.2d 238, 269 (Miss. 1999).

¶ 13. M.R.E. 404 provides, in part:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 14. The decision of the trial court to admit the towel was based on Crawford v. State, 754 So.2d 1211, 1220 (Miss.2000); Hicks v. State, 441 So.2d 1359 (Miss.1983); and Barbetta v. State, 738 So.2d 258 (Miss.Ct.App.1999), which stand for the general rule that in the prosecution of sexual offenses, evidence of prior sexual acts between the accused and the victim is admissible to show the accused’s lustful, lascivious disposition toward the particular victim, especially in circumstances where the victim is under the age of consent. See Crawford, 754 So.2d at 1220; Hicks, 441 So.2d at 1361; Barbetta, 738 So.2d at 260.

¶ 15. Though M.M. testified regarding how she retrieved the towel, the prosecution’s failure to positively connect the semen on the towel to Walker renders the towel inadmissible. To simply admit such a towel, without employing the available scientific means for authentication, fails the unfair prejudice standard set forth in M.R.E. 403, infringed upon Walker’s right to a fair trial, and served only to bolster the testimony of the prosecution’s witnesses. See generally Crawford, 754 So.2d at 1220 (Rule 403 is an ultimate filter through which all otherwise admissible evidence must pass). With no direct link to the accused, a soiled towel would tend to mislead, confuse, and incite prejudice in the jury, especially in a capital rape trial involving a 13-year-old victim.

¶ 16. Furthermore, the towel was not properly authenticated. M.R.E. 901(a) provides:

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

“Under M.R.E. 901, authentication and identification are conditions precedent to admissibility. Generally these serve simply to establish that a matter is what it is claimed to be.” Jones v. State, 798 So.2d 592, 593 (Miss.Ct.App.2001); See also Robinson v. State, 733 So.2d 333, 335 (Miss.Ct.App.l998)(“Testimony that a particular material is a controlled substance is of no relevance unless the State also proves the defendant’s connection to that particular substance.”) Without confirming whether the semen on the towel indeed belonged to Walker, the prosecution submitted the towel as a towel stained with his semen.

¶ 17. Not addressed by either party or the trial court was this Court’s opinion in Winston v. State, 754 So.2d 1154 (Miss. 2000). On certiorari, this Court affirmed in part and reversed and rendered in part a decision by the Court of Appeals affirming the conviction of capital rape. See also Winston v. State, 726 So.2d 197 (Miss.Ct. App.1998). Relevant to the instant appeal is that though there was no physical evidence collected by the rape kit or otherwise linking Winston to the victim, the conviction was affirmed based on the testimony of .the victim, her relatives, the responding policeman and the examining doctor. Winston, 754 So.2d at 1156. Like our decision in Winston, we do not suggest today that physical evidence is needed to uphold a conviction of capital rape. Winston, 754 So.2d at 1156.

¶ 18. In Winston, the child testified she stopped by Winston’s home because he was supposed to provide her lunch. While eating, Winston began fondling her and carried her off to his bedroom, where he forced her to engage in various sexual acts. At some point, members of the victim’s family, including her mother, came to his home looking for the child. Winston initially claimed that the child was no longer there, however after the child’s voice was heard from the back of the house, he produced the girl. Because she was crying and her clothes were disheveled, the mother was suspicious and asked the victim if Winston had touched her. Though she initially denied it, after being slapped by her mother the victim admitted to her family members that he had molested her. At this time, the police were called to Winston’s home. As did the members of the victim’s family, the officer later testified that the victim’s pants and shirt were open and that her breasts were exposed. The officer drove the victim to the hospital where the emergency room physician administered a rape examination kit. The doctor testified that from the examination he determined that the victim had engaged in intercourse within the two preceding hours.

¶ 19. In Winston, the results from the crime lab tests on the rape kit did not link Winston to the victim. Winston, 754 So.2d at 1155. Unlike Winston, no rape kit was conducted on M.M. because of the time lapse between the alleged molestation and the time it was reported. Other than the testing for semen, no lab tests were conducted on the towel.

¶20. Detective Kim Harrison, the lead investigator, testified that the Jackson Police Department Crime Lab received both the towel and samples of blood taken from Walker. Detective Harrison testified that no blood samples were taken from other individuals. Katina Robins, who specializes in forensic serology at the JPD crime lab, testified that she secured a sample of the semen present on the towel and placed it in a freezer pack to be preserved for further serological testing. However, neither witness could provide a reason why, despite their efforts to obtain and preserve samples from the defendant and the towel, that no further serological testing was conducted.

¶ 21. We are not faced with a situation where the victim was found in the suspect’s house under suspicious conditions, coupled with his suspicious conduct, and then immediately driven by a police officer to the hospital where a rape kit was administered. Though the rape kit did no disclose physical evidence to link Winston to the rape, the physician concluded, based on his examination, that the victim had engaged in intercourse within the preceding two hours. See id. Here there was no immediate investigation of the reported incidents.

¶22. In the instant case, the need for scientific testing is clear. First, there was testimony that at one point the child claimed to have been sexually assaulted by her older brother. Second, the sexual attacks charged in the indictments allegedly occurred in June and August 2000. However, the semen on the towel resulted from a sexual attack in August of 1999.

¶ 23. Because the prosecution failed to link the semen on the towel to Walker, we find that the admission of the towel violated M.R.E. 403 and reverse. In accordance with the suggestions of the prosecution’s criminologist, further scientific testing is necessary.

II. WHETHER THE TRIAL COURT ERRED BY REFUSING TO GRANT WALKER’S MOTION IN LIMINE SEEKING TO PROHIBIT THE INTRODUCTION OF AUDIOTAPE CONVERSATIONS IN VIOLATION OF M.R.E. 401, 402, AND 403.

¶ 24. Walker claims that during the trial the prosecution played'several irrelevant tape recorded conversations which unfairly influenced the jury and prejudiced the defense. Relying on our decision in Ragin v. State, 724 So.2d 901 (Miss.1998), Walker maintains that prosecution failed to satisfy M.R.E. 401’s relevancy requirement and that the evidence violated unfair prejudice limitation set forth under M.R.E. 403. The Court disagrees.

¶ 25. In Ragin, we affirmed the trial court’s decision to admit audio tapes and transcripts concerning a drug sale. 724 So.2d at 903-04. Discussing the two requirements for the admissibility of the audio tapes, the Court stated:

We have announced that the prosecution must prove the recordings are relevant pursuant to Miss. R. Evid. 401 as well as authentic as required by Miss. R. Evid. 901 before they are deemed admissible. In Middlebrook v. State, 555 So.2d 1009 (Miss.1990) we held the prosecution is required to lay a substantial predicate before a tape recording may be received into evidence. First, the recording must pass the relevancy test of Rule 401; i.e., it must have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Miss. R. Evid. 401.

Id. at 903. As to the second requirement, the Court noted that M.R.E. 901 will be “satisfied if evidence is introduced which is ‘sufficient’ to support a finding that the matter in question is what its proponent claims.” Id.

¶ 26. Here, the recorded conversations, laden with sexual overtones, are clearly relevant as evidence of Walker’s disposition towards M.M. This satisfies the M.R.E. 401. As for M.R.E. 901, Walker tacitly authenticated the conversations himself.

¶27. When questioned by the authori-. ties, Walker explained through his conversations with M.M. he sought to raise her self-confidence and by telling her that she was “sexy” and “appealing” he wanted her to know that others found her attractive. In light of such explanation, the Court finds that the tapes are what they were purported to be (i.e. conversations between Walker and M.M.) and we reject his challenge to their authenticity.

¶ 28. Whether the evidence presented satisfies Rules 401 and 901 is a matter left to the discretion of the trial judge. M.R.E. 104(a). See also Ragin, 724 So.2d at 903. Without an abuse of discretion, his decision will be upheld. Id. (citing Stromas v. State, 618 So.2d 116, 119 (Miss. 1993)). See Butler v. State, 592 So.2d 983, 984 (Miss.1991).

¶ 29. For these reasons, this issue is without merit.

III. WHETHER THE TRIAL COURT ERRED BY DENYING A DIRECTED VERDICT OR IN THE ALTERNATIVE DENIED A MOTION FOR NEW TRIAL AND J.N.O.V. BECAUSE THE EVIDENCE WAS NOT SUFFICIENT TO SUSTAIN A JURY VERDICT.

¶ 30. Because issue one is dispositive, we need not address this issue.

CONCLUSION

¶ 31. Because the prosecution failed to connect the semen on the towel to Walker, we find that the towel’s probative value was substantially outweighed by the danger of unfair prejudice. We reverse the trial court’s judgment and remand this case for a new trial consistent with this opinion.

¶ 32. REVERSED AND REMANDED.

SMITH, C.J., CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY COBB, P.J. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN JOINED BY COBB, P.J., AND EASLEY, J. DIAZ, J., NOT PARTICIPATING.

EASLEY, Justice,

Dissenting:

¶ 33. In my view, the majority totally ignores the overwhelming evidence in this case. Therefore, I respectfully dissent.

I.

¶ 34. Walker contends that the trial court erred by admitting into evidence a towel with his alleged semen on it. He asserts various arguments, such as, (1) the testimony concerning the towel is uncorroborated; (2) the towel is not linked to him; (3) the trial court failed to make an on the record finding that the testimony was more probative than prejudicial pursuant to M.R.E. 403; (4) the towel was not admitted into evidence under a specific exception of 404(b); and (5) the trial court failed to sua sponte instruct the jury of the limited admissibility of the evidence. After hearing arguments from the defense and prosecution, the trial court ruled that the towel could be admitted into evidence.

¶ 35. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Jefferson v. State, 818 So.2d 1099, 1104 (Miss.2002) (quoting Fisher v. State, 690 So.2d 268, 274 (Miss. 1996)).

¶ 36. Walker’s argument is without merit. The trial court heard arguments concerning the relevancy of the towel and whether the admission of the towel was more probative than prejudicial. Included in these arguments was the assertion that the testimony about the towel was uncorroborated and the towel was not linked to Walker. Relying on legal arguments and case law analysis, which the trial judge considered, cited at length and applied to the facts of this case, he determined that the towel was relevant and more probative than prejudicial. Contrary to Walker’s assertion, the State cited specific reasoning pursuant to M.R.E. 404(b) for the admission of the towel. It is true that the trial court failed to sua sponte instruct the jury on the limited admissibility of the evidence. However, the trial court did give an instruction on the weight and credibility of witnesses and evidence. Walker, also, did not request a limiting instruction by the trial court. The error, if any, is harmless.

¶ 37. At a pre-trial suppression hearing a detective and serologist testified about the towel. The towel came from the girl’s house and allegedly was used by Walker to wipe himself after ejaculation following an unindicted incident that occurred in August 1999. The girl told Detective Harrison about the towel. While the girl was unable to state the number of incidents, she described a few occasions of vaginal and penile intercourse. It appeared that there was a series of incidents between Walker and the girl. The detective believed that the girl kept the towel to show the police and corroborate the alleged sexual incidents between Walker and her. Detective Harrison went to the girl’s home and collected the towels from her mother.

¶ 38. A crime lab serologist, Katina Robbins, testified that semen of unknown origin was present on the towel. The lab had a blood sample from Walker. However, there was no test performed to compare the semen sample to Walker’s blood sample. Therefore, the semen and Walker’s blood sample could not be connected.

¶ 39. The defense argued that the admittance of the towel was irrelevant and more prejudicial than probative. The prosecution argued as follows:

There is a clear line of authority in the state which allows the admissibility of such evidence in sex crimes. The leading case on point is Barbetta versus State. I will cite it at 738 So.2d 258. And according to Mississippi case law, and I am referring directly from the case on page 259, there is a clear line of cases that authorize the Court and prosecution of sexual offenses to allow evidence of other prior sexual crimes of the accused. Accordingly, evidence is generally held to be admissible which shows or tends to show prior offenses of the same kind committed by the defendant with the prosecuting witness.
The Court assigns various reasons for the admission of this evidence, such as we attempted to show corroboration of the offense charged, to show the intimate relation between the parties, the lustful disposition of defendant toward the prosecuting witness, and the probability of his having committed the offense charged.
This Court reiterated this same reasoning in Crawford versus State, which is cited at 754 So.2d 1211, and [in] which it says that in all these cases the Court has held that this type of evidence, evidence of other sexual offenses occurring between the defendant and the victim, is admissible in this limited situation. And in this situation it is.
Detective Harrison showed that through her testimony that this was a series of events that occurred between the defendant and the victim, that it was not an isolated incident. We are going to need this — she said that she gave this to her, and it was her opinion, to corroborate that there had been sexual relations between the two of them.
Therefore, the evidence is admissible to prove that he had [a] lustful, lascivious disposition towards this particular victim, especially in the incident where we have a child under the age of consent.
* * * *
Therefore, the State would argue that the defense request to suppress that evidence should be denied. Although he is not charged in an indictment with any other offenses other than the two alleged incidents, they are part of a series of ongoing incidents, and that is part of the State’s proof in this case as to the motive, plan and preparation under 404(b) which says that this evidence is relevant and is not prejudicial to the defendant.

(emphasis added). The trial court made an inquiry into the probative value of the evidence. The trial judge and prosecution continued the discussion and stated the following:

The Court: All right. Ms. Peterson, the Court does have an inquiry here. How is this evidence probative against this defendant when there is no evidence thus far that the towel is connected with this defendant.
Ms. Peterson [State]: Your Honor, in the State’s case we will also be presenting evidence in which the defendant had stated that he did not have sexual relations with any person in this household. This victim is going to-testify to several incidents that occurred between herself and the defendant. And she brought this in an effort to prove to someone that sexual relations had occurred.
As to the credibility of that, that would be a question for the jury to decide as to whether or not her preserving that was an intent to prove the other sexual incidents. And for that reason the State is asking that the towel be admitted for the limited purpose of her saying I preserved this because this is what happened to me.

¶ 40. The trial court took the arguments under advisement and reviewed case law prior to making its decision. In 'its analysis, the trial court addressed the arguments that counsel made concerning relevancy, probative value versus prejudicial effect, and Rule 404(b) exceptions. In addition, the trial court cited a line of case law and gave a lengthy on-the-record analysis of the cases and their relevance to the issue of the admissibility of the towel.

¶ 41. The trial court specifically cited Barbetta v. State, 738 So.2d 258 (Miss.Ct. App.1999) (testimony concerning prior touching of victim’s breasts and inside her shorts was admissible as a lustful disposition of victim); Crawford v. State, 754 So.2d 1211 (Miss.2000) (testimony concerning prior sexual contact with victim for over six months was admitted); and White v. State, 520 So.2d 497 (Miss.1988). In its decision, the trial court stated in part:

And finally in discussing this issue, the Court in the Crawford case noted, and having referred to a number of Mississippi cases which it considered the same or substantially the same issue, the Court held that such evidence is admissible in this limited situation to show appellant’s lustful, lascivious disposition toward his particular victim, especially whereas here the victim was under the age of consent.
And the court said finally that most recently this Court has again held that it was not error to permit testimony of previous sexual offenses between the appellant and his victim, citing Woodruff versus State. It goes on to say there’s nothing in this case to distinguish it from any of these previous cases. Therefore, assignment of error is without merit in the Crawford case.
The State in this case, the subject case, is taking the position that it is — that this prior sexual act with the prosecuting witness in this case is relevant to prove the material issue of — other than the defendant’s character, and that the probative value of the evidence outweighs the prejudicial effect.
Based upon the Barbetta decision and the Crawford decision, the Court finds that the evidence in this case would be admissible. And therefore, the motion to suppress it will be denied.

¶ 42. The trial court heard and considered Walker’s argument relating to corroboration of the testimony and the link between Walker and the towel. At the hearing, Detective Harrison testified that in her opinion, the girl kept the towel to corroborate her allegations of rape by Walker. Also, the State argued that the towel aided in proving a series of sexual incidents between Walker and the girl. The trial court ultimately concluded that the towel was admissible despite Walker’s arguments.

¶ 43. . The State asserted that the purpose for admitting the towel was to show the lustful, lascivious disposition of Walker toward the child. The prosecution also argued that towel was to corroborate the sexual incidents between Walker and the girl and that these were are part of a series of ongoing incidents which proved motive, plan and preparation under 404(b).

¶ 44. This Court held in Webster v. State, 817 So.2d 515, 520 (Miss.2002), that “[ujsually, evidence of another crime is not admissible. However, this Court has held that evidence of a prior crime or act may be admitted to show identity, knowledge, intent, or motive.” (citations omitted). See also M.R.E. 404(b). In Crawford, this Court held that:

“Determining whether to admit evidence under Rule 404(b) requires a two part analysis. The evidence offered must (1) be relevant to prove á material issue other than the defendant’s character; and (2) the probative value of the evidence must outweigh the prejudicial effect.” Puckett, 737 So.2d at 365. Rule 403 is an ultimate filter through which all otherwise admissible evidence must pass. Jenkins v. State, 507 So.2d 89, 93 (Miss.1987). The .trial judge correctly admitted testimony of prior sexual acts, which took place over several months prior to Crawford’s actually engaging in sexual intercourse with the victim. It was not error to permit testimony of previous sexual offenses between Crawford and the victim, his stepdaughter. White v. State, 520 So.2d at 499 (citing Woodruff v. State, 518 So.2d 669 (Miss. 1988)).
* * * *
[T]his Court held that such evidence is admissible in this limited situation to show appellant’s lustful, lascivious disposition toward his particular victim, especially where, as here, the victim was under the age of consent. Most recently, this Court has again held that it was not error to permit testimony of previous sexual offenses between appellant and his victim. Woodruff v. State, 518 So.2d 669 (Miss.1988). There is nothing in this case to distinguish it from any of these previous cases. Therefore, this assignment of error is without merit. White v. State, 520 So.2d at 499-500. The trial judge was correct in admitting the testimony under Rule 404(b) regarding prior sexual contact with Crawford.

Crawford, 754 So.2d at 1220-21. In reaching the decision that the towel was admissible pursuant to M.R.E. 404(b), the trial court necessarily considered its relevancy and whether it passed the balancing test pursuant to M.R.E. 403. The trial court specifically cited Crawford and its two-part test. I find that the evidence is clearly admissible to prove the lustful intent of Walker, as well as, his and motive and knowledge.

¶ 45. The majority relies heavily upon Winston v. State, 754 So.2d 1154 (Miss. 2000), a capital rape case. Despite the majority’s effort to distinguish Winston from the facts here, however, I believe the cases to be similar. First, whatever way the facts of each case may be explained, the juries, as the triers of fact, weighed the credibility of the witnesses and heard the testimony of the victims, family members, doctors, and police investigators and convicted both Walker and Wilson. It is true that the victim here had no rape kit performed nor were any police called immediately following the alleged incidents of rape, however, neither or these two facts are essential to a rape conviction. Indeed, the victim in Winston had a rape kit performed but it provided no evidence. The majority states that physical evidence is not needed for a capital rape conviction. However, the majority then suggests or harps on the fact that because a rape kit was not performed and because the police were not immediately contacted and investigating the case is therefore lacking evidence to support a conviction. These actions are not necessary for a rape conviction, albeit, having this type of evidence in every rape case may increase the likelihood of rape convictions.

¶ 46. Further, here the towel was offered to show the lustful, lascivious disposition of Walker toward the child, to corroborate the sexual incidents between Walker and the girl and that these were are part of a series of ongoing incidents which proved motive, plan and preparation under M.R.E. 404(b). This and other facts as discussed here and in the next issue were enough to support a rape conviction.

¶ 47. Here, the victim also saw a physician and had a medical exam. In addition, the girl testified that Walker had a key to her home, thus providing access to the girl. The mother testified that Walker stayed at the house many times when she was not present. The mother had taped telephone conversations between Walker and the girl in which he stated the girl was “sexy and appealing” and that he loved her. The jury also heard the conflicting testimony that the girl first stated that her brother raped her. Later, the girl denied having sex with her brother and stated that Walker threatened to hurt her and her family if she told anyone about having sex. Despite this conflict in the testimony, the jury found Walker guilty of rape.

¶ 48. The fact that the victim here did not immediately run out and have a rape kit performed and call the police as in Winston, is not persuasive. This is especially so when the performance of the rape kit did not even produce any substantive results in Winston. The two cases seem to boil down to testimony and witness credibility, and in both cases the juries convicted each defendant. Although perhaps helpful for the successful prosecution of a case, a rape victim does not have to immediately run and have a rape kit test, call the police and see a doctor in order to sustain a conviction of rape against an aggressor. Therefore, I find the majority’s reliance upon Winston unpersuasive as well.

¶ 49. Walker also argues that the trial court did not sua sponte give a limiting instruction concerning the admissibility of the evidence. It is true that the trial court did not give a specific instruction concerning the limited admissibility of the towel. However, the trial court did grant the Court’s instruction, C-l, which addressed the weight and credibility of witnesses. A review of the record shows that Walker did not request a limiting instruction pertaining to the towel. He did request an instruction, D-7, concerning a child’s testimony which was refused by the trial court. However, instruction C-l given by the trial court provided that the jury was to resolve the issue of witness credibility and any conflicts in testimony.

¶ 50. In Webster v. State, 754 So.2d 1232, 1240 (Miss.2000), this Court applied a harmless error analysis to M.R.E. 404(b) issues of admissibility of evidence. “[W]e hold that harmless error analysis is applicable in cases where the trial court does not sua sponte give the required limiting instruction when M.R.E. 404(b) evidence is admitted.” Id. This Court concluded that the evidence of Webster’s guilt was overwhelming and affirmed on the issue. Id. See also Lofton v. State, 818 So.2d 1229, 1285 (Miss.Ct.App.2002). Here, there was overwhelming evidence of Walker’s guilt. Therefore, in the face of the overwhelming evidence that Walker had sexual relations with this 13-year-old girl, the error, if any, is harmless. Trial courts should be diligent and continue to give limiting instructions where warranted sua sponte. By the same token, a failure of providing the instruction may be considered harmless error in some cases as in the case at hand.

II.

¶ 51. The trial court did not err by denying a directed verdict or in the alternative denying a motion for new trial and J.N.O.Y. since the evidence was sufficient to sustain a jury verdict.

A. Directed verdict/J.N.O.V.

Standard of Review

¶ 52. In Jefferson v. State, 818 So.2d 1099, 1110-11 (Miss.2002), this Court held that the standard of review for denials of motions for directed verdict, judgment notwithstanding the verdict and a request for a peremptory instruction is the same. A directed verdict, judgment notwithstanding a verdict and a request for peremptory instruction all challenge the legal sufficiency of the evidence presented at trial. Id. “Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court. This occurred when the Circuit Court overruled [the] motion for JNOV.” McClain v. State, 625 So.2d 774, 778 (Miss.1993) (citing Wetz v. State, 503 So.2d 803, 807-08 (Miss.1987)). See also Edwards v. State, 800 So.2d 454, 462 (Miss.2001) (The standard of review for a JNOV and a directed verdict are the same and implicate the sufficiency of the evidence. All challenge the legal sufficiency of the evidence. The appellate court properly reviews the ruling on the last occasion the challenge was made in the trial court, when the Circuit Court overruled the JNOV).

¶ 53. Walker challenges the sufficiency of the evidence. He asserts that he denied having sex with the girl, he was not responsible for the semen on the towel, the semen was not identified as his, and the girl’s brother had sex with her. Walker relies on Crawford v. State where this Court held that:

[O]ur case law clearly holds that the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime.

Crawford v. State, 754 So.2d at 1222 (citing Collier v. State, 711 So.2d 458, 461 (Miss. 1998)). In his argument, Walker makes much of the fact that the girl’s testimony is allegedly uncorroborated and her testimony contradicted itself.

¶ 54. The testimony of the girl was not contradictory nor uncorroborated. The mother testified that she met Walker in 1999. Walker spent time at her house with the children. The mother gave Walker a key to the home to store cleaning supplies used in their after hours cleaning service. Therefore, Walker had complete access to the home. The girl also testified that Walker was given a key to the home.

¶ 55. The mother suspected that there was an improper relationship between Walker and the girl after listening to recorded telephone conversations. The mother described Walker speaking to the girl “not in a fatherly way” after listening to a conversation with the girl. In a few of the conversations, Walker stated that he loved the girl. He also stated that he found the girl “sexy and appealing.” The mother also confronted Walker on the telephone about having sex with the girl, which he denied.

¶ 56. The girl told her mother of sexual incidents that occurred between herself and Walker and her. At the time of these incidents, the last of which occurred in August 2000, the girl was at most 13 years old. A birth certificate confirmed that the girl was born in September 1986. In April 2000, the girl was examined by Dr. Hampton. The doctor could not confirm vaginal penetration nor rectal penetration. However, the doctor did confirm a fissure or tear in the rectum. The girl told Dr. Hampton that her brother had sex with her. The girl later stated that she did not tell the doctor the truth because Walker had threatened her. Dr. Cloy examined the girl on August 23, 2000. He determined that her hymen was not intact which indicated that it was possible that there had been sexual activity.

¶ 57. Detective Harrison testified to the sexual incidents between Walker and the girl. Detective Harrison stated that at the time of the incidents Walker was 45 years old, approximately 31 years older than the girl. She stated that Walker allegedly wiped himself on a towel after an incident in 1999. The girl wrapped the towel in another towel and the mother later gave the towel to police. Detective Harrison also testified that Walker had sex with the girl in June 2000 and August 2000.

¶ 58. The girl testified to the towel incident in 1999 and the two rapes in June 2000 and August 2000. During both the rapes, Walker pulled her shorts to the side and put his penis into her vagina. She testified that she was afraid to tell anyone about the incidents because Walker had threatened to hurt her and her family.

¶ 59. At trial, the girl vehemently denied ever having sex with her brother. She did acknowledge that she told the doctor that she had sex with her brother, however, she stated that Walker had threatened her. She told her mother that she and Walker had not had sex when the mother confronted Walker at school. Again, she stated that she denied the relationship because Walker had threatened her.

¶ 60. Clearly, Walker had a key and access to the girl’s home. The girl was born in September 1986 and was only 13 years old at the time of the last incident in August 2000. Walker was 45 years old and 31 years older than the girl. At trial, the girl positively identified Walker as the person who had sexual intercourse with her. The girl told both the mother and Detective Harrison about all the incidents between Walker and her. The mother had taped conversations between Walker and the girl in which he stated that he loved the girl and that she was “sexy and appealing.” Dr. Cloy testified that the girl’s hymen was not intact which could indicate sexual activity. The girl stated that Walker threatened her. Because of this threat, the girl denied having sex with Walker to her mother and told the doctor that she had sex with her brother, not Walker. Thus, the evidence is legally sufficient to support the jury’s verdict in this case, and the trial court did not abuse its discretion in denying the motion for JNOV.

B. New Trial Motion

Standard or Review

¶ 61. “A motion for new trial challenges the weight of the evidence. A reversal is warranted only if the lower court abused its discretion in denying a motion for new trial.” Webster v. State, 817 So.2d 515, 518 (Miss.2002).

¶ 62. In Edwards v. State, 800 So.2d 454, 464-65 (Miss.2001), this Court held that it has limited authority to interfere with a jury verdict. The Court considers all the evidence in the light that is most consistent to the jury verdict. Id. “The prosecution is given ‘the benefit of all favorable inferences that may reasonably be drawn’ from the evidence.” Id.

¶ 63. Here, the girl identified Walker as the person that had sexual intercourse with her. Walker had a key and access to the girl’s home. The girl told her mother and the police about the sexual incidents between Walker and herself. Dr. Cloy determined that the girl’s hymen was not intact which could signify sexual activity. Walker had threatened the girl if she told anyone about having sex with him. Taped telephone conversations with Walker and the girl indicated an intimate relationship. Walker told the girl that he loved her and that she was “sexy and appealing.” A birth certificate confirmed that the girl was born in September 1986, making her 13 years old at the time of the last incident in August, 2000. Walker was 45 years old at the time of the incident.

¶ 64. The jury had the option of finding Walker not guilty or guilty on the two counts of statutory rape. However, the jury found beyond a reasonable doubt that Walker was guilty of both counts of statutory rape. The trial court did not abuse its discretion in denying Walker’s motion for new trial. Reviewing the evidence in the light that is most consistent to the jury verdict, there is substantial evidence in the record that reasonable and fair-minded jurors would have found Walker guilty of statutory rape.

¶ 65. For these reasons, I dissent and would affirm the judgment of the Hinds County Circuit Court.

COBB, P.J., JOINS THIS OPINION IN PART.

RANDOLPH, Justice,

Dissenting:

¶ 66. I respectfully dissent because the majority errs in holding that the towel was inadmissible under M.R.E. 403. All issues regarding the prosecution’s failure to scientifically link the towel to the defendant go to the weight of the evidence, not its admissibility. The victim’s testimony, in which she positively identified the towel that she secured following one of the incidents, was a sufficient basis for the admission of the towel.

¶ 67. Assuming, arguendo, that the towel was improperly admitted, there is sufficient other evidence to affirm the conviction. Accordingly, any error in admitting the towel was harmless.

¶ 68. For these reasons, I would affirm the circuit court’s judgment.

COBB, P.J., AND EASLEY, J., JOIN THIS OPINION.

      . However, this Court noted that the Court of Appeals erroneously stated that Winston was linked by blood-type matching to the semen sample taken from the victim. Id. at 1156.

      . Walker had a two-count indictment for statutory rape that occurred in the summer of 2000.


author: WALLER, Presiding Justice,

text:
    Lionel F. LADNIER v. STATE of Mississippi.
    No. 2002-KA-01832-SCT.
    Supreme Court of Mississippi.
    June 3, 2004.
    Rehearing Denied Aug. 5, 2004.

      Jim Davis, attorney for appellant.
    Office of the Attorney General, by Jean Smith Vaughan, attorney for appellee.
    Before WALLER and COBB, P.JJ., and GRAVES, J.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Thirteen-year-old Anne Bates accused Lionel F. Ladnier of fondling her while the two were riding on a three-wheeler. Ladnier was convicted in the Circuit Court of Hancock County of one count of touching a child under the age of sixteen for lustful purposes in violation of Miss. Code Ann. § 97-5-23 (Rev.2000), and sentenced to three years in the custody of the Mississippi Department of Corrections. Ladnier appeals, contending that the evidence was insufficient to support the verdict and that the circuit court erred by not granting a lesser-included simple assault jury instruction, and by excluding testimony regarding his sexual morality. We affirm.

FACTS

¶ 2. One autumn evening, thirteen-year-old Anne Bates was visiting her grandmother, when Anne and Ladnier, her grandmother’s boyfriend, went riding on a three-wheeler. Anne drove the vehicle and Ladnier sat behind her. According to Anne, as they drove away from the house, Ladnier allegedly placed his hands inside of her bra and massaged her breast. When they returned to the house, Anne told her female cousin what had happened but did not immediately tell any adults of the incident.

¶ 3. The following day, Anne, Ladnier, Anne’s grandmother, and Anne’s cousin traveled to Texas to spend the Thanksgiving holidays. Anne testified that, when they returned, Ladnier once again allegedly tried to place his hands under her shirt while she was spending the night with her grandmother. Ladnier was also staying the night at her grandmother’s house. Af-terwards, Anne told her grandmother about the three-wheeler incident. Ladnier was arrested.

¶ 4. At trial, Anne testified that she was thirteen years old on November 20, 2000, and that Ladnier put his hands inside of her bra and massaged her nipple while they drove away from her grandmother’s house on the three-wheeler. She stated that she was wearing a bra, tee shirt, and a pullover fleece top. She also stated that twenty minutes after getting off of the three-wheeler, she told her cousin that Ladnier had touched her. When asked why she did not immediately tell an adult about the three-wheeler incident, Anne responded that she was worried that “everything would go crazy, haywire, just a big mess.” She also stated that she did not want to ruin the holidays. As to the incident after returning from Texas, she testified that she was sitting at the computer when Ladnier approached her and asked if she had told anyone of the three-wheeler incident. When she replied that she had not told anyone, he attempted to raise her shirt. She testified that when she refused to let him raise her shirt, he asked her why she would not let him put his hands under her shirt when she had let him do it earlier. At this point, she began arguing with him, waking her grandmother.

¶ 5. Anne’s cousin testified that fifteen to twenty minutes after Anne rode the three-wheeler with Ladnier, Anne told her that he placed his hands inside of her bra. The cousin stated that Anne wanted to tell her grandmother about the incident but was afraid it would ruin the holidays.

¶ 6. Anne’s grandmother testified that the driveway Anne and Ladnier were riding on was very bumpy and that Anne liked to drive the three-wheeler at a high rate of speed. She also testified that she and others were in the yard while Anne and Ladnier were on the three-wheeler and that she could see them as they drove down the driveway. She stated that Anne did not seem upset when she got off of the three-wheeler.

¶ 7. Anne’s aunt testified that the driveway Anne and Ladnier were riding on was a rough dirt road. She also testified that she was in the yard while they were on the three-wheeler, and that she could see them from where she was standing. She also stated that, after she and her husband picked Anne up from her grandmother’s house that night, Anne said that the whole thing was an accident. Anne’s uncle also testified that Anne told him and her aunt that the three-wheeler incident was an accident.

¶ 8. Ladnier testified that he was fifty-four years old. He rode the three-wheeler with Anne because he thought the machine was dangerous and he helped her change gears when she was driving. He denied touching Anne, but he did tell investigators that he “probably did” place his hand on Anne’s bare breast. He finally stated that he might have touched her because “you’re bouncing on that [three]-wheeler, you don’t know what’s going on.” As to the night Anne accused him of touching her, he testified that he never touched Anne and that he was trying to poke her because he was always goosing people.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING LADNIER’S MOTION FOR A DIRECTED VERDICT, MOTION FOR A NEW TRIAL OR FOR JNOV.

¶ 9. To sustain a conviction under to Miss.Code Ann. § 97-5-23, the State must prove beyond a reasonable doubt that (1) the defendant was over the age of eighteen; (2) the child was under the age of 16; and (3) that the defendant touched the child with either his hands or another part of his body for the purpose of gratifying his lust. The evidence shows that Ladnier was over the age of eighteen and that Anne was under the age of sixteen on the day of the three-wheeler incident.

¶ 10. Ladnier contends that the State did not prove beyond a reasonable doubt that he was guilty of violating § 97-5-23. He argues that there was no evidence that he touched Anne for the purpose of indulging his depraved licentious sexual desire and that there was no testimony which corroborated that the touching was anything more than accidental.

¶ 11. A motion for a directed verdict and a motion for a verdict notwithstanding the judgment “are predicated upon the idea that the evidence simply does not justify a verdict of guilty beyond a reasonable doubt.” Washington v. State, 800 So.2d 1140, 1144 (Miss.2001). As this Court has stated,

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury’s verdict is quite limited. We proceed by considering all of the evidence — not just that supporting the case for the prosecution — in the light most consistent with the verdict. We give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

Mangum v. State, 762 So.2d 337, 341 (Miss.2000).

¶ 12. The Court of Appeals has reversed a conviction of gratification of lust when the defendant pinched a child on the buttocks and kissed a child on the cheek. Bradford v. State, 736 So.2d 464 (Miss.Ct. App.1999). The issue before the court was whether the State presented sufficient proof to support a finding by the jury that Bradford sought to gratify his lust through his actions. The court found no case law which stated what was necessary to give rise to an inference that an undisputed act of touching was for the purpose of satisfying a defendant’s sexual desires, but that there must be some probative evidence as to the purpose of the touching. The court held that evidence that the touching was for purposes of satisfying lustful desires could arise from a description of the circumstances of the encounter itself:

For example, touching in inappropriate parts of the child’s body, overly demonstrative acts of affection, events occurring when the child is not fully clothed, or some evidence of sexual arousal by the defendant during the encounter, might be sufficient to draw a reasonable inference as to the improper purpose of the defendant’s act.

Id. at 466. There was no evidence of an attempt to rub or grope the child in a sexually suggestive manner and no evidence in the record that indicated that Bradford’s behavior was the type of behavior that the statute was intended to punish. Id.

¶ 13. To the contrary, the facts of the present case indicate that Ladnier’s behavior was the type of behavior § 97-5-23 intended to punish. Anne testified that Ladnier massaged her nipple while on the three-wheeler the entire time they were riding. Ladnier’s conduct was sufficient for the jury to reasonably infer that the touching was for purposes of satisfying his lustful desires. This argument is without merit.

¶ 14. Ladnier also argues that the verdict should be reversed because Anne’s testimony was uncorroborated. In Collier v. State, 711 So.2d 458, 462 (Miss.1998), Collier was convicted after a child told her mother that he had fondled her. On appeal, Collier argued that the child’s testimony was uncorroborated and unsubstantiated. Affirming Collier’s conviction, we held as follows:

Our case law clearly holds that the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized. The victim’s physical and mental condition after the incident, as well as the fact that the incident was immediately reported is recognized as corroborating evidence.

Id. (citing Christian v. State, 456 So.2d 729, 734 (Miss.1984)); Inman v. State, 515 So.2d 1150, 1152 (Miss.1987). In Collier, the child’s mental state following the touching was consistent with one who had been fondled. There was testimony that when she returned from Collier’s house, she had a “wild look” and immediately reported the incident to her mother.

¶ 15. In the present case, although Lad-nier denied touching Anne and witnesses testified that they could see Anne and Ladnier on the three-wheeler, the jury heard testimony that at the time of the touching, Anne and Ladnier were traveling away from the house and could reasonably infer that even though people were in the yard, they would not be able to see whether Ladnier placed his hands on Anne’s breast. Anne and her cousin both testified that Anne told the cousin twenty minutes after getting off the three-wheeler that Ladnier placed his hands inside her bra while on the three-wheeler and that Anne did not immediately tell anyone else of the incident because she thought the holidays would be ruined.

¶ 16. Although there were inconsistencies between Anne’s testimony and that of other witnesses, issues of witness credibility and the weight to be accorded a witness’s testimony are matters to be resolved by the trier of fact, in this case, the jury:

Our case law is axiomatic on the proposition that the jury is arbiter of the credibility of testimony. “It is, of course, ■within the province of the jury to determine the credibility of witnesses.... ” “The conflict between the testimony of the appellant and the prosecutrix was properly resolved by the jury.” “We are asked to reverse this case on the grounds that there are inconsistencies and contradictions in her testimony. If this be true, it would still be a question for the jury.” In the instant case, any inconsistencies found in C.H.’s testimony go [sic] the weight and credibility of her testimony, clearly a jury question. In addition, C.H. ’s testimony was not at all inconsistent on the issue at the heart of this matter—Collier’s fondling of her.

Collier, 711 So.2d at 462-63 (emphasis added) (citations omitted).

¶ 17. Based on this evidence, we find that the circuit court did not err in denying Ladnier’s motions for directed verdict and for judgment notwithstanding the verdict.

¶ 18. Ladnier also contends that the circuit court erred by not granting his motion for a new trial. He contends that if we finds the evidence against him legally insufficient to support the verdict it should also find that the verdict is contrary to the overwhelming weight of the evidence. As to the weight of the evidence, we will order a new trial “[o]nly where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Mangum v. State, 762 So.2d at 342 (quoting Herring v. State, 691 So.2d 948, 957 (Miss.1997)). Based on the evidence, we cannot say that the jury’s verdict was an unconscionable injustice. This argument is without merit.

II. WHETHER THE CIRCUIT COURT ERRED BY NOT GRANTING A LESSER-INCLUDED OFFENSE INSTRUCTION.

¶ 19. Ladnier asserts that it was error for the circuit court to refuse his proffered instruction on the lesser-included offense of simple assault, and that, though he admitted that he might have touched Anne’s breast, it was not done to satisfy any licentious sexual desire. The State argues that there is no evidence to warrant a lesser-included offense jury instruction.

¶20. Mississippi’s law is well settled as to appellate review of a circuit court’s grant or denial of jury instructions:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Heidel v. State, 587 So.2d 835, 842 (Miss.1991) (citations omitted).

¶ 21. To be entitled to a lesser-included offense instruction, Ladnier must point to evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser included offense. Toliver v. State, 600 So.2d 186, 192 (Miss.1992).

¶ 22. A person is guilty of simple assault if he attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or attempts by physical menace to put another in fear of imminent serious bodily harm. Miss.Code Ann. § 97-3-7. A person is guilty of fondling a child if he is over the age of eighteen, the child was under the age of sixteen, and if the defendant touched the child with either his hands or another part of his body for the purpose of gratifying his lust. Id. § 97-5-23.

¶ 23. In Goodnite v. State, 799 So.2d 64 (Miss.2001), Goodnite was convicted for touching a child for lustful purposes and sexual battery. He performed fellatio on an eight-year-old and pinched a six-year-old’s vagina. On appeal, Goodnite asserted that it was error for the circuit court to refuse a lesser-included jury instruction of simple assault as to his pinching the six-year-old.

¶24. Discussing the State’s argument that there was no evidence to warrant a lesser-included instruction and that simple assault is not a lesser-included offense of § 97-5-23(1), we noted that fondling involves an offensive touching which denotes sexual gratification which, while emotionally uncomfortable, does not necessarily cause bodily injury. Id. at 68. We found that there was no evidence to warrant finding Goodnite guilty of simple assault which involved an attempt to cause bodily injury and concluded “that a reasonable jury viewing the evidence favorable to Go-odnite could not harbor a doubt that the pinch was for anything other than a lustful purpose.” Id. at 69.

¶ 25. Here, there was no evidence to support a jury instruction on simple assault. There is nothing that indicates Ladnier attempted to cause bodily harm. Thus, the circuit court did not err in refusing to offer a simple assault jury instruction.

III. WHETHER THE CIRCUIT COURT ERRED IN REFUSING TO ALLOW OPINION TESTIMONY REGARDING LADNIER’S SEXUAL MORALITY.

¶ 26. At trial, Ladnier’s ex-wife, Linda Jenkins, testified that she was married to Ladnier for twenty years, had been divorced from him for nine years, and that, in her opinion, he had a reputation of being truthful. The jury was excused and Ladnier proffered Jenkins’s testimony as to his reputation for sexual morality and her opinion of his sexual morality. When asked her opinion about his sexual morality, she stated that in her opinion he would not harm a young person. When asked if she ever had an opportunity for anyone to say anything about his sexual morality, she replied that she had not. She then stated that she and Ladnier were chaperones for their children’s high school activities and that she believed that he would never harm a young person. ■

¶ 27. The circuit court excluded the proffered testimony, finding that it was inadmissible character evidence, that Jenkins gave only her personal opinion as to Ladnier’s sexual morality, and she offered nothing as to his general reputation for sexual morality in the community. “The standard of review regarding admission [or exclusion] of evidence is abuse of discretion. Where error involves the admission or exclusion of evidence, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000) (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999)).

¶ 28. An accused has an absolute right to put on character evidence as to a pertinent trait. 1 Wigmore, Evidence, § 56 (3d ed.1940). Indeed, M.R.E. 404 allows a criminal defendant to put on evidence of his good character. Whether a proposed testimony is pertinent and therefore open to exploration via character evidence depends on the nature of the case. 3 Crim. Prac. Manual § 56:3. The nature of the trait in question determines the time period about which the witness would testify, e.g., the time of trial for veracity, the time of the alleged incident for honesty or peacefulness. Id.

¶ 29. Mrs. Jenkins’s testimony regarding Ladnier’s reputation for sexual morality was properly excluded because the testimony was based on incidents which had occurred approximately nine years prior to the date of the incident. As pointed out above, testimony based on facts which occurred at “the time of the alleged incident” would be admissible, but facts which occurred nine years prior are too remote to be relevant.

CONCLUSION

¶ 30. Finding no merit in Ladnier’s assignments of error, we affirm Ladnier’s conviction for touching a child for lustful purposes and sentence of three years in the custody of the Mississippi Department of Corrections.

¶ 31. CONVICTION OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      . A pseudonym for the minor victim.

      . Rule 404 provides in pertinent part as follows:
      (a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
      (1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; ...