author: | BYRNES, Chief Judge.

text:
    STATE of Louisiana v. Audrey FRADIEU, a/k/a Bob Fradieu.
    No. 2002-KA-0077.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 25, 2003.

      Eddie J. Jordan, Jr., District Attorney, Zata W. Ard, Assistant District Attorney, New Orleans, Counsel for PlaintifflAppel-lee.
    Robert C. Jenkins, Jr., Dwight Doskey, New Orleans, Counsel for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, and Judge TERRI F. LOVE).
   | BYRNES, Chief Judge.

STATEMENT OF CASE

On October 15, 1998, the defendant was indicted for the aggravated rape of his stepdaughter, C.M., from September 3, 1984 through August 10, 1985 when she was under the age of twelve. La. R.S. 14:42(4).

A number of pretrial motions were heard, including a motion to suppress defendant’s written acknowledgement of paternity. The state filed an opposition. On July 22, 1999, the trial court granted the defendant’s motion. The state filed a motion to reconsider the ruling, and the trial court granted the motion to reconsider. The defendant applied to this court for supervisory review, and this court ordered the trial court to evaluate the overall vol-untariness of the defendant’s statements pursuant to La. R.S. 15:451, citing State v. Gilliam, 98-1320 (La.App. 4 Cir. 12/15/99), 748 So.2d 622.

On September 20, 2000, the trial court heard argument and subsequently issued a per curiam finding the defendant’s confession voluntary pursuant to La. R.S. 15:451. The trial court focused on the facts that it was the victim who informed the police of the defendant’s confession | g.of paternity, not the support enforcement office, and the attorney for the support enforcement office was not acting as a criminal investigator or law enforcement officer when she obtained the confession. The defendant’s application to this Court for supervisory review was denied.

The trial court conducted a hearing to determine if the testimony of the defendant’s son, M.F., that he had intercourse with C.M. once or twice sometime in 1983, 1984, or 1985, should be admitted. The trial court ruled the testimony inadmissible under La. C.E. art. 412.

On January 20, 2001, after a three-day trial, a jury found defendant guilty as charged. On April 30, 2001, he was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence, with credit for time served. The defendant moved for a new trial on the following grounds: newly discovered DNA evidence; the trial court’s failure adequately to instruct the jury on the law of confessions and the weight of DNA evidence in civil paternity proceedings; the state’s failure to move for admission of DNA evidence and to complete the eviden-tiary foundation; and juror misconduct. The trial court denied the motion. This appeal follows.

STATEMENT OF FACTS

At trial, L.P. testified that C.M. was born on August 11, 1973. L.P. testified that she had two children, including C.M., when she married the defendant, a pastor at her church, on January 9, 1982. After the marriage, C.M. called the defendant “Daddy”. On the third Sunday in October 1982, the defendant baptized C.M. when she was nine years old.

During the marriage, L.P. worked outside of the home, and her mandatory hours were 8:00 a.m. to 4:40 p.m., Monday through Friday and she sometimes worked on Saturdays. The defendant worked as a self-jemployeda mechanic and a pastor with a schedule flexible enough to allow him to take much of the responsibility of caring for the children. L.P. testified that there were times when C.M. was left alone with the defendant. L.P. also testified that on one occasion, she saw the defendant leaving C.M.’s bedroom wearing only his briefs.

C.M. testified that the defendant began fondling her on the night of her baptism in 1982. The defendant made C.M. watch as he masturbated and made her assist him in the process. When C.M. was ten years old, the sexual activity progressed to intercourse at a rate of at least three times a week and continued until C.M. discovered she was pregnant in September or October 1985. C.M. testified that during the sexual activity the defendant would say “... daddy won’t ever hurt you. Daddy gonna always take care of you. You know, you just should never tell your mom ‘cause it would kill her.’ ”

L.P. testified that she noticed her daughter steadily gaining weight but thought it was due to overeating and heredity. L.P. stated that her daughter had her first menstrual cycle in February 1985. When her daughter missed three consecutive menstrual cycles, L.P. became concerned. A pediatrician she consulted assured her that it was normal for young girls to have non-continuous cycles. C.M. testified that after the visit to the pediatrician, the defendant made her drink a mixture of olive oil and vinegar and douche in the bathroom, saying it would help the problem.

. L.P. first feared her daughter was pregnant when she saw .her daughter in the bathtub and noticed the shape of her stomach and stretch marks on her breasts. In October of 1985, L.P. took her daughter to an obstetrician/gynecologist who confirmed that C.M. was approximately seven months pregnant. L.P. suspected the father was C.M.’s cousin J.H., who |4was approximately sixteen years old at the time, and concluded that the pregnancy was the result of the cousins’ “playing house”. L.P. testified that in December 1985, the defendant left the family home for fear of being thought of as the father of C.M.’s child. C.M.’s daughter, C.“Q”.M.M., was born on January 1, 1986. No father’s name was placed on the birth certificate at the urging of L.P.

By 1998, C.M.’s daughter was curious about the identity of her father, and C.M. reluctantly provided the support enforcement office with the name of her cousin, J.H. J.H. took a paternity test, and the DNA results excluded him as a possible father. After the test results, C.M. went to the police to report the abuse by the defendant, and the police told her she needed evidence. C.M. returned to the support enforcement office and provided the defendant’s name when asked if there was any other person who touched her or had intercourse with her.

The defendant submitted to a paternity test, and the original test (RFLP) did not exclude him as the father of C.M.’s daughter. The support enforcement office, based on the paternity test results, sent the defendant a letter requesting that he come in to the office to discuss the test results. Linda Conerly, an attorney with support enforcement, testified that she met with the defendant on August 4, 1998 to discuss the matter of establishing paternity of C.M.’s daughter. Conerly testified that she does not call a father in unless the test results indicate a 99.99% or greater probability of paternity. She testified that she uses a standard explanation with each putative father due to her heavy caseload and the need to simplify the results of DNA paternity tests. After reviewing the DNA test results, Conerly customarily asks the individual if he “is comfortable” that he is the father; if so, she then asks if he would like to sign the acknowledgment of paternity. If the |Rindividual agrees to acknowledge paternity, she reads the form to him to make sure he understands the legal nature of the proceeding and his right to obtain counsel.

Conerly testified that she followed her standard procedure with the defendant as she explained the DNA paternity test, the defendant’s test results, and the probability that the defendant was the father of C.M.’s daughter. She also testified that the defendant’s wife accompanied him to the meeting. After Conerly advised the defendant that he could seek counsel, he declined and proceeded with the acknowl-edgement of paternity and consent judgment. Conerly then read the voluntary acknowledgment of paternity form to the defendant and explained the legal process. The defendant executed an acknowledgement of paternity and a consent judgment, which were filed in the civil paternity suit.

Conerly testified that she was not aware of C.M.’s age at the time the child gave birth. As a support enforcement attorney, she is interested in the age of the child because if the child is eighteen, she cannot take action; and she is interested in the age of the father because she will be filing suit.

On cross-examination, Conerly explained her role as an attorney for support enforcement within the context of the rales of professional conduct. She explains to the putative father that she represents the state in child support enforcement cases and that he has the right to obtain counsel. If the putative father declines to seek counsel, she specifically tells him that she is not his attorney and is not providing him legal counsel. She does not tell a putative father that DNA test results prove paternity; rather she asks if he believes the test results; if he believes he is the father; and if he is willing to acknowledge paternity,

| ^Furthermore on cross-examination, Conerly testified that she did not provide C.M. with a copy of the acknowledgment of paternity and consent judgment; in fact, she had no direct contact with C.M. at any time because mothers such as C.M. work with the intake department, which is separate from her office. Conerly also testified that she did not provide copies of the documents to the police, does not know the detective who worked this case, and did not know or assist any police officer in obtaining copies for the purpose of securing an arrest warrant.

Detective Darrell Smith testified that C.M. brought the paternity test results to him, and based on those results, he obtained an arrest warrant for the defendant. Post-arrest, the defendant took a more specific paternity test (PCR), and the test results indicated a 99.9999993 percent probability that the defendant is the father of C.M.’s daughter.

The defense presented character evidence from defendant’s church secretary and testimony from his current stepdaughter and one of her friends that the defendant had not touched them inappropriately-

ERRORS PATENT

A review of the record for errors patent reveals none.

FIRST ASSIGNMENT OF ERROR: The trial court erred in admitting the defendant’s acknowledgment of paternity from a civil suit.

Defendant argues that the acknowledgment was not signed freely and voluntarily pursuant to Miranda warnings. He also argues that the support enforcement services attorney who obtained the defendant’s acknowledgment of paternity was acting as an agent of the police, and she was required to follow the same standards as any other officer. Furthermore, the support enforcement attorney was barred from questioning the defendant Jjand securing a consent judgment from him because he was not represented by counsel.

The state argues that the acknowledgement was signed freely and voluntarily in a noncustodial situation that did not require Miranda warnings; that the support enforcement sendees attorney was acting in that capacity only and at no time held herself out to be a law enforcement officer; and that the support enforcement services attorney informed the defendant of his right to be represented by an attorney and to a court hearing and read to the defendant the voluntary acknowledgment of paternity form and the rights and responsibility form. The defendant did not invoke his right to be represented by an attorney and did not seek legal advice or counsel from the support enforcement services attorney.

We find that the defendant was in a noncustodial situation under the facts of this case. The determination of a statement’s admissibility is within a trial court’s discretion, and it should not be disturbed unless it is not supported by the evidence. State v. Toney, 99-1574 (La.App. 4 cir. 11/8/00), 796 So.2d 1, 6, writ den. 2000-3474 (La.11/16/01), 802 So.2d 619.

State v. Saltzman, 2002-1350, p. 2-4 (La.App. 3 Cir. 4/23/03), 843 So.2d 1206, is inapposite. Saltzman addressed similar arguments made by the defendant, in which the appellate court reversed in part the trial court’s denial of the defendant’s motion to suppress all statements, confessions, and physical evidence obtained during his meeting with a child protection investigator, but the facts in Saltzman were different from those in the instant case. Significantly, in Saltzman, a law enforcement officer was present when the defendant was questioned by the child protection . investigator. While the law enforcement officer did not ask any ^questions, he listened as the defendant made incriminating statements during the course of the interview.

[0]ur next inquiry is whether the defendant had undergone a custodial interrogation. In Miranda, the Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct. at 1612. “[T]he only relevant inquiry in determining whether there was a formal arrest or a restraint on the freedom of movement of the degree associated with an arrest is ‘how a reasonable man in the suspect’s position would have understood the situation.’ ” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). Accordingly, in order to determine whether the defendant was in custody, the court must consider whether a reasonable person in the defendant’s circumstances would have understood his conversation with the probation officer to constitute a restraint on freedom of movement of the degree associated with formal arrest. State v. Maise, 00-1158, pp. 10-11 (La.1/15/02); 805 So.2d 1141, 1149.
In Miranda, the Supreme Court summarized its holding as follows:
Our holding will be spelled out with specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming form custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Footnote omitted].
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

Saltzman, 2002-1350, p. 2-4, 843 So.2d at 1208-09.

The Saltzman court found that the defendant had been subjected to a detention based on the following reasoning:

I a[The child protection investigator] was acting as an agent of law enforcement. Although he did not ask questions, Detective Primeaux was present during the interview and took notes. The defendant was aware that Detective Primeaux was a law enforcement officer and was obviously aware of his authority to arrest the defendant. There is no evidence that the defendant was told at anytime that he was not under arrest and was free to leave. The interview of the defendant took one to two hours, during which [the child protection investigator] used accusatory language toward the defendant. The defendant was told that he was lying and had better start telling the truth. Furthermore, the very nature of the interview would have caused a reasonable person to believe they were the only suspect and the investigation focused on them. Thus, we find the entire interview was a detention , and the defendant should have been Mirandized, prior to making these statements.

Id., p. 6-7, 843 So2d at 1210-11.

This Court does not necessarily agree that the facts in Saltzman constituted a detention. Regardless, the facts of the instant case are so different from those of Saltzman, that even were this Court to endorse the holding in Saltzman, it would not support the defendant’s arguments in the instant case. In the instant case, the child support enforcement attorney spoke with the defendant without the knowledge, presence, or influence of a law enforcement officer. The trial court addressed this issue in the hearing on remand from this court and focused on the fact that the victim approached child support enforcement; the agency conducted the interview; the defendant was advised of his right to seek counsel and declined; and the victim, not the child enforcement support attorney, advised law enforcement of the defendant’s acknowledgement of paternity. The facts of the instant | incase do not support a finding that the defendant was under arrest, in custody or under detention. State v. Maise, 2000-1158 (La.1/15/02), 805 So.2d 1141. As the defendant in the instant case was not under arrest, not in a custodial situation, and not under detention during the interview, Miranda warnings were not necessary.

The defendant’s last argument on this issue is that the support enforcement attorney had an ethical duty to refrain from questioning the defendant because he was not represented by counsel. During the course of the interview with the defendant, the support enforcement services attorney informed the defendant of his right to be represented by an attorney and to a court hearing. She also read to the defendant the voluntary acknowledgment of paternity form and the rights and responsibility form. The defendant did not invoke his right to be represented by an attorney and did not seek legal advice or counsel from the support enforcement services attorney. Thus, there was no error in denying the defendant’s motion to suppress his confession.

SECOND ASSIGNMENT OF ERROR: The trial court erred in excluding the testimony of M. F., the defendant’s son, who alleged he had a sexual relationship with the victim when he was a minor sometime during 1983,1984, or 1985.

The state argues that M.F.’s testimony was so vague as to warrant exclusion under La. C.E. art. 412, which requires evidence of prior sexual conduct to be within seventy-two hours of the charged act.

La. C.E. article 412 provides that when an accused is charged with a crime involving sexually assaultive behavior, reputation or opinion evidence of the past sexual behavior of the victim is not admissible. The statute It provides that “evidence of specific instances of the victim’s past sexual behavior is also not admissible except for ... [evidence of past sexual behavior with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury; provided that such evidence is limited to a period not to exceed seventy-two hours prior to the time of the offense.”

M.F. testified that he had intercourse with the victim once or twice sometime in 1983, 1984, or 1985. He could not recall the specific year, much less whether it was within seventy-two hours of the alleged intercourse between the defendant and the victim. M.F.’s testimony clearly did not meet the requirements set forth in La. C.E. art. 412. This assignment is without merit.

THIRD ASSIGNMENT OF ERROR: The trial court erred in failing to declare a mistrial when the state, during closing arguments, repeatedly characterized defense counsel’s role as one requiring the suborning of perjury, misleading the jury, and confusing the jury.

In State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022, the Louisiana Supreme Court discussed the scope of closing argument and the standard of review:

The general rule concerning the scope of closing arguments is that they are confined to ‘evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.’ Louisiana jurisprudence on pros-ecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics. Further, the trial judge has broad discretion in controlling the scope of closing argument. And, even if the prosecutor exceeds these bounds, the court will not reverse a conviction unless ‘thoroughly convinced’ that the argument influenced the jury and contributed to the verdict.

Casey, 99-0023, p. 17, 775 So.2d 1022, 1036 (internal citations omitted).

|iaLa.C.Cr.P. art. 770 sets forth the prejudicial remarks that form the basis of a mandatory mistrial:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

A mistrial may be declared when “prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.” La.C.Cr.P. art. 775. Mistrial, however, is a drastic remedy and proper only when misconduct deprives the defendant of any reasonable expectation of a fair trial. State v. Bradford, 2002-1452, p. 21 (LaApp. 4 Cir. 4/23/03), 846 So.2d 880, citing State v. Miller, 93-1096 (La.App. 4 Cir. 5/17/94), 637 So.2d 1115. A decision on whether prejudice has resulted lies in the sound discretion of the trial judge. Bradford, 2002-1452, p. 21, 846 So.2d at 893, citing State v. Allen, 94-1895 (La.App. 4 Cir. 9/15/95), 661 So.2d 1078.

Closing Argument: Comment Number 1

The first portion of closing specifically referenced by the defendant is as follows:

By Mr. Burns [the ADA]:
The most compelling person that the Defense presented to me from what I contend is a ministry of manipulation was the stepdaughter. Did you notice the way she testified? Did you notice when I asked her had she ever — see ‘cause when you’re sitting right here you can’t see that table over there. Have you ever seen him in his underwear, his drawers, huh?
By Mr. Wainwright [defense counsel]:
| ^Mistrial.
By the Court:
Denied.
By Mr. Wainwright:
Judge I’d like the record to reflect that Mr. Burns is on the witness stand, he’s intimating to the jury that I was communicating answers the way he knows he does.
By the Court:
Ladies and gentlemen, again, I’ll instruct you. What you’re to decide this case came from the witness stand during the trial. This is strictly the lawyers’ interpretation of the evidence that they’ve presented to you. Strictly that. Just their words.

This portion of the state’s closing argument refers to the testimony of Nathelda Baham, the stepdaughter of the defendant from a subsequent marriage. The quoted comments do not fall within any of the categories of prejudicial remarks described in the four numbered subparagraphs under La.C.Cr.P. art. 770. The question is whether the remarks provide grounds for a mistrial as “prejudicial conduct in or outside the courtroom” to an extent that it becomes “impossible for the defendant to obtain a fair trial,” under La. C.Cr.P. art. 775.

During cross-examination, the assistant district attorney stood between the witness and defense counsel in a purposeful attempt to obstruct the line of vision between the two. The defense objected, and the trial court admonished both counsel to stop the theatrics or she would restrict both counsel to their seats. The state argues that coaching of a witness is one interpretation of the comment made during closing argument, and prosecutors have wide latitude in making closing arguments. The state appears to be correct: the assistant district attorney could have been commenting on the overall credibility of the defense witness. Assuming for purposes of argument that the state exceeded the bounds of closing argument, such excess was not beyond what could be cured by the proper instructions, which were, in fact, given by the trial court to the jury |,immediately after the objection. Thus, this portion of this assignment of error is without merit.

Closing Argument: Comment Number 2

The second portion of closing specifically referenced by the defendant is as follows:

By Mr. Burns:
... Look at this one. And I don’t make loose allegations against attorneys; it’s something I don’t do. But what the doctor told you as he sat on the witness stand, I don’t even know where that thing came from, why it was produced. And Mr. Wainwright said, you’re not insinuating that I generated this, and the doctor was like, of course not.

Again, this comment must be evaluated under La.C.Cr.P. art. 775 rather than La. C.Cr.P. art. 770. The defense does not provide a reference outside of closing argument, but the state points out that this argument refers to Dr. Murray’s testimony regarding the DNA paternity testing of J.H., a cousin C.M. initially named as the father of her daughter. The defense, however, did not object during closing to this statement by the state. A defendant cannot avail himself of an alleged error unless he made a contemporaneous objection at the time of the error. La.C.Cr.P. art. 841(A). Thus, this portion of this assignment of error was not preserved for appeal.

Closing Argument: Comment Number 3

The third portion of closing argument specifically referenced by the defendant is as follows:

By Ms. Maloney [ADA]:
It is Mr. Wainwright’s job to stand before you and mislead you and confuse you and do anything to earn the fee that he was paid.
By Mr. Wainwright:
11fiMistrial.
By the Court:
Denied.
By Mr. Wainwright:
This is improper argument. It’s been adjudicated by many appellate courts and I don’t know what she thinks she’s doing at this point, Judge -
By the Court:
Keep to the evidence, Ms. Maloney.

Again, this comment does not fall under La.C.Cr.P. art. 770 and will be evaluated under La.C.Cr.P. art. 775.

The defendant cites State v. Duplessis, 457 So.2d 604, 610 (La.1984) in support of his argument that a personal attack on defense counsel in closing argument is grounds for granting a new trial. In Du-plessis, the court stated:

This court seldom reverses convictions on the basis of prosecutorial argument (because jurors are generally told repeatedly that they must decide the case on the evidence and that arguments of counsel do not constitute evidence). In the present case, however, the effect on the jury’s evaluation of evidence caused by the errors during closing argument, when cumulated with the effect of the errors during voir dire, simply cannot be said to be harmless. Under any concept of fundamental fairness, the judicial system cannot allow to stand a guilty verdict reached by a jury exposed to such prejudice as to preclude a fair determination of guilt or innocence based on the acceptance or rejection of the identification evidence.

The court in Duplessis, however, viewed the personal attack on defense counsel in the context of the prosecutor commenting on excluded evidence during closing arguments:

The closing argument by the prosecutor drew four objections. The first one (the least prejudicial impropriety) occurred when the prosecutor told the jury that most convictions were based on only one identification witness, an argument clearly outside the record in this case. When defense counsel objected and requested an admonition, the trial judge neither sustained the clearly correct objection nor gave the clearly called-for admonition, but only stated that he could not comment on the evidence.
Immediately thereafter, the prosecutor commented that a bus full of witnesses would not be enough for defense counsel because he was a “very skillful lawyer”. When defense counsel 11fiproperly objected to the personal argument about defense counsel (clearly exceeding the statutory limitation confining argument to the evidence or lack of evidence or reasonable inferences drawn therefrom) and asked for an admonition to the prosecutor to discontinue such tactics, the judge again neither sustained the objection nor gave the admonition, but again made the totally irrelevant statement that he could not comment on the evidence. To compound the error, the trial judge requested that defense counsel not interrupt the argument again.
The most egregious instance of improper prosecutorial argument occurred during rebuttal argument when the prosecutor told the jurors that defense counsel had them removed at one point in the trial because he did not want them to hear the witness’ answer. Although such an argument was clearly improper, the trial judge again declined to sustain the objection and merely told the jury that he could not comment on the facts.
The prosecutor’s first comment on evidence outside the record might be excused as innocuous, but the prosecutor’s comment on evidence which was excluded from the record is flagrant and inexcusable. Such deliberate misconduct makes a mockery of the rules of evidence and defeats the purpose for excluding unreliable evidence in the first place. Such comments may also lead the jury to believe that defense counsel was using technical objections to conceal his client’s guilt.
Finally, the prosecutor concluded his argument with a blatant appeal to prejudice by predicting the dire consequences in case of acquittal. The trial judge, instead of sustaining the objection and admonishing the jury to disregard such comments, told the jury that the function of closing arguments was to aid them in reaching a verdict. Even more damagingly, he chastised defense counsel in front of the jury for interrupting closing argument.
When such blatantly defiant tactics by the prosecutor are permitted, the result is the frustration of a criminal justice system which is designed to insure that a person is sent to prison only after being convicted on the basis of a jury’s fair (and not prejudicially influenced) evaluation of reliable evidence. In the present case, such tactics were not only permitted, but were actually approved when the trial judge twice reprimanded the defense attorney for making proper and meritorious objections.

State v. Duplessis, 457 So.2d 604, 607-610 (La.1984). The court in Duplessis found reversal was necessary not because of the prosecutor’s personal attack on defense counsel but due to the cumulative nature of errors during closing argument. The trial judge in Duplessis permitted the 117prosecutor to make inappropriate comments, failed to give an admonition to the jury, and told defense counsel not to interrupt the prosecutor’s closing argument. In the instant case, the trial judge allowed defense counsel to object numerous times during closing argument, admonished the jury when appropriate, and cautioned the prosecutor to confine argument to the evidence.

The defendant also attempts to distinguish more recent cases, in which the prosecutor’s personal attack on defense counsel, albeit inappropriate, did not rise to the level of reversible error. In State v. Bridgewater, 2000-1529 (La.1/15/02), 823 So.2d 877, the prosecutor made the following remarks during closing argument:

Well, he hires himself a good lawyer and he gets a lawyer that’s going to be able to take that intent thing and kind of twist it around and hope that he can play the odds — ... he knows that the odds aren’t good that all 12 of you are going to buy this nonsense that he had no intent to kill anybody.

Bridgewater, 2000-1529, fn. 32, 823 So.2d 877, 917. The court in Bridgewater found that while “prosecutors should refrain from personal attacks on defense strategy and counsel, a comment that suggests the state carried its burden despite defense attempts to show otherwise, even if improper, is not reversible error.” Bridgewater, 2000-1529, p. 33, 823 So.2d 877, 903.

The defendant in the instant ease argues that the comment in Bridgewater was not as egregious as that in the instant case. While the comment by the prosecutor in the instant case was more direct, the concept was the same: a personal attack on defense strategy and counsel, a comment that the state carried its burden of proof despite defense attempts to show otherwise. In the context of the trial court’s balancing of the prosecutor’s [18wide latitude during closing and the defendant’s right to an admonition as a result of impermissible argument, the defendant was not prejudiced.

The defendant also relies on federal jurisprudence, but one case addressed a prosecutor accusing a defense attorney in the presence of the jury of hiding relevant and material evidence. United States v. Murrah, 888 F.2d 24, 27 (5th Cir.1989). The other federal case cited by the defendant addressed whether the prosecutor improperly expressed an opinion as to guilt, discussed facts outside the record and mis-characterized testimony during closing argument. United States v. Montgomery, 210 F.3d 446, 454 (5th Cir.2000). The comments in the instant case did not involve accusations of hiding evidence, expressions of opinion of guilt, or discussion of facts outside the record. The issue in the instant case is whether the prosecutor waged a personal attack on defense counsel such that the defendant was prejudiced. The federal jurisprudence cited by the defendant is, therefore, not determinative of the issue. This portion of this assignment of error is without merit.

FOURTH ASSIGNMENT OF ERROR: The trial court erred in denying the defense’s requested instructions concerning the voluntariness of confessions and the weight to be accorded DNA evidence.

The defendant cites La.C.Cr.P. art. 807, which provides that the defense may submit a special written charge to be given to the jury if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. Such charge need not be given if it is included in the general charge or in another special charge. La.C.Cr.P. art. 807. Jury instructions must be considered as a whole, and the failure to give a requested charge is |1flnot reversible error unless it prejudices the substantial rights of the defendant. State v. Carter, 97-2902, p. 34, 37 (La.App. 4 Cir. 5/10/00), 762 So.2d 662, 683, 684.

The defendant references the following request for special jury instructions:

Instruction: (1)
Scientific testing alone is not sufficient to prove paternity, it is persuasive and objective testimony that can help establish paternity by a preponderance of the evidence. Probabilities by their nature are not conclusive. (LeBlanc v. LeBlanc, 497 So.2d 1361, 1364 (La.1986); State, Dept. of Social Services, Office of Family Support in Interest of James v. Passant, 97-26 (La.App. 3 Cir. 6/18/97), 698 So.2d 27; Didier v. Fasola, 597 So.2d 450 (La.App. 1 Cir.1991). Instruction: (2)
Although scientific testing, specifically deoxyribonucleic acid (DNA) and related tests, are becoming more reliable than earlier blood tests, neither statutory law nor jurisprudence mandates DNA testing as the sole factor in determination of paternity; blood tests are just one factor to be weighed by the trier of fact. State Through Dept. of Social Services v. Dorsey, 95 0446 (La.App. 1 Cir. 11/9/95), 665 So.2d 95.

Both requested instructions relate to DNA evidence and the burden of proof in civil paternity actions. Neither expressly addresses confessions and the weight to be accorded confessions. The trial court denied the requested instructions because both reflect the preponderance of the evidence standard used in civil paternity proceedings. The trial court instructed the jury that the burden of proof in a criminal trial is beyond a reasonable doubt. The trial court also instructed the jury on DNA evidence within the context of expert witness testimony as follows:

Expert testimony. Persons who because of special training and/or special knowledge in a particular field are recognized as experts in that particular field are allowed to give expert opinions in that field. This rule of law applies to testimony in regards to molecular biology and forensic paternity DNA testing and analysis. You should consider and weigh the testimony of an expert witness just as you would the testimony of any other witness. The weight and effect which the jury will give to the testimony of an expert will also depend on your | ^evaluation of the degree of knowledge and skill possessed by that expert. In this connection you are entitled to take into account the evidence as to the training, special study and experience of the experts.

The defendant was on trial for aggravated rape. He was not a defendant in a civil proceeding to establish paternity. The defendant’s proposed jury instructions, relating as they do to civil paternity suits, would have confused the jury. The trial court correctly instructed the jury on the role of the expert witness who presented the DNA evidence of paternity in the instant case, and the defendant was not prejudiced by the trial court’s denial of defendant’s proposed jury charges. This assignment of error is without merit.

FIFTH ASSIGNMENT OF ERROR: The trial court erred in denying the defense the right to question the jury foreman as to when he realized that he had represented the victim’s maternal uncle and, in a separate case, the victim’s later stepfather.

The defendant is referring to a hearing that took place on February 7, 2001, after the conclusion of the trial. The trial court ordered the hearing after being contacted by the jury foreman. This hearing was not conducted in connection with a defense motion for new trial as specifically represented by the defendant in his brief. In fact, the trial court noted at the start of the February 7, 2001 hearing that she called the hearing and that no motions were currently pending.

Juror misconduct is not grounds for an automatic mistrial; prejudice must also be established. State v. Richardson, 33,272, p. 16 (La.App. 2 Cir. 11/1/00), 779 So.2d 771, 783, citing State v. Ireland, 377 So.2d 299 (La.1979) and State v. Day, 414 So.2d 349 (La.1982). The trial court focused on the issue of prejudice, without making any finding of juror | ^misconduct. That analysis is not necessary because, assuming the foreman’s actions constituted juror misconduct, there was no showing of prejudice to the defendant.

The state and the defendant, with counsel, were present at the February 7, 2001 hearing. The trial court questioned the foreman but allowed neither the defendant nor the state to ask questions. The foreman testified that he recognized his former clients in the audience on two occasions during the trial and did not know or investigate why they were present. The foreman conferred with another attorney on the jury panel, and the two concluded that he did not need to notify the trial court because he did not know why his former clients were present in the audience. The foreman informed his law partner that if the former clients contacted the office regarding his presence on the jury, no information was to be given or received.

Only after the conclusion of the trial did the foreman contact his former clients to find out why they were present in the audience. At that point, the foreman, as an officer of the court, informed the trial court, and the hearing was held. The trial court specifically asked the foreman if he was aware during the trial or deliberations of any relationship between his former clients and the defendant; if he contacted his former clients during the trial; and if he was influenced during the trial or deliberations by the presence of his former clients. The foreman responded unequivocally in the negative to each question and stated that at all times he discharged his duty fairly and impartially.

It appears that the trial court adequately investigated the matter, and it is unlikely that any further questions by the defendant would have changed the foreman’s position that he acted fairly and impartially. The defendant | ggwas allowed to argue this issue in its motion for new trial, although the defendant was not allowed to call the foreman as a witness during the motion hearing. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . We have identified the victim and her family by initials in order to protect their privacy.

      . Saltzman notes that La. Const. Art. 1, § 13 employs the term "detained” rather than the word "custody”:

        When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel.

      . Dr. Murray testified on direct examination for the state that J.H. was excluded as the father. The defense asked for a clarification of Dr. Murray's statement, and the trial court stated that he could inquire on cross-examination. On cross-examination, the defense showed Dr. Murray the report with the probability calculations on J.H., which was initialed by Dr. Murray. Dr. Murray testified that he had not recalled that probability calculations had been done on J.H. because ordinarily such would not have been done given the test results were not high enough to be reported. The defense proceeded to attack Dr. Murray's credibility on this point.


source: Caselaw Access Project

author: JjPEATROSS, J.

license: Public Domain

text:
    Elizabeth DARBY, Plaintiff-Appellant, v. BROOKSHIRE GROCERY COMPANY, d/b/a Super 1 Foods, Defendant-Appellee.
    No. 37,460-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 30, 2003.

      Darren Giles, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner, by James A. Mijalis, Shreveport, for Ap-pellee.
    Before BROWN, STEWART & PEATROSS, JJ.
   JjPEATROSS, J.

This appeal arises from a trial court judgment holding that Plaintiff, Elizabeth Darby (“Darby”), was 50 percent at fault in an injury she sustained at a Super 1 Foods Store and that Defendant, Brook-shire Grocery Company (“Brookshire”), was also 50 percent at fault. The .trial court awarded Darby her medical expenses and $12,500 in general damages. Darby now appeals the judgment of the trial court. Brookshire answered the appeal asserting that the trial court erred in finding that the condition of the premises created an unreasonable risk of harm under the circumstances. Alternatively, Brookshire asserts that the trial court’s assessment of fault against Darby should be increased. For the reasons stated herein, we affirm.

FACTS

On June 28, 2000, Darby was injured at a Super 1 Foods Store in Shreveport, Louisiana. At the time of the incident, Darby was in the dairy section shopping for eggs at the rear aisle of the store. Darby was looking at the prices of the eggs when, without looking, she took a step back and tripped over a green stocking cart which had been left unattended by one of the store employees. As Darby was falling, she grabbed her own grocery cart, which then turned over on top of her. Darby sustained injuries from her fall.

Subsequently, Darby filed a lawsuit against Brookshire. At trial, she testified that she did not see the stocking cart prior to her fall. It was established at trial that the stocking cart is approximately five feet long, three feet wide and stands about two feet off the floor. After Darby fell, employees of the store called emergency medical personnel who treated her 12for a cut to her leg. Darby was then transported to Willis-Knighton Medical Center. An examination and x-rays in the emergency room at Willis-Knighton revealed that Darby had a laceration to her left leg which required sutures. Darby was later released from Willis-Knighton and advised to follow up with her regular physician.

Oh July 3, 2000, Darby saw her regular physician, Dr. Jina Miller, who prescribed home health care for Darby to monitor her wound. Darby returned to see Dr. Miller on July 19, 2000, at which time the sutures were removed. Darby consulted Dr. Barron O’Neal, a local reconstructive surgeon, on July 31, 2000, regarding surgical scar revision to her leg. After examining Darby, Dr. O’Neal did not recommend surgical revision. On November 8, 2000, Darby saw Dr. Miller again and her laceration was noted to have healed without any residual complications. Darby, who is 87 years of age, testified that, following the accident, she was unable to drive and that her ability to work in her yard, as well as around her home, was diminished. As a result of the accident, Darby incurred the following medical expenses:

Dr. Barron O’Neal $ 100.00
Dr. Jina Miller 111.00
Willis-Knighton Hospital — Health One 1,191.00
City of Shreveport EMS 80.95
Medicare Lien 9,991.92

The trial judge found that the Brook-shire employee failed to follow Brookshire safety procedures when he left the stocking cart in the aisle, that the cart created an unreasonable risk of harm to Darby that was reasonably foreseeable under the circumstances and that this risk of harm resulted in [¡¡Darby's injuries. The trial judge further found that Darby’s conduct contributed to the accident because she failed to observe the cart and probably was stepping back without looking at the time of her fall. The court, therefore, apportioned fault at 50 percent to Brookshire and 50 percent to Darby. Considering Darby’s age, the nature of the injury and the duration and scope of her medical treatment, the trial judge concluded that an appropriate general damage award for Darby was $12,500. The trial judge also awarded Darby her medical expenses. Finally, after reducing Darby’s total award, due to her comparative fault, the trial judge ordered judgment for her in the amount of $11,245.96. On appeal, Darby raises the following assignments of error (verbatim):

1. The trial court erred when it found fifty percent comparative negligence on the part of the plaintiff, Elizabeth Darby.
2. The trial court erred when it awarded $12,500.00 dollars for general damages.

DISCUSSION

Allocation of Fault

Darby asserts that the trial court erred by assessing too large a percentage of comparative fault to her and by awarding her insufficient general damages. The trial court’s fault apportionment is a factual determination that is subject to the manifest error standard of review. Williams v. City of Monroe, 27,065 (La. App.2d Cir.7/3/95), 658 So.2d 820, writ denied, 95-1998 (La.12/15/95), 664 So.2d 451, and 95-2017 (La.12/15/95), 664 So.2d 452. A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly | ¿wrong. Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880 (La.1993).

In Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La.1985), the supreme court listed five factors which may influence the degree of fault assigned to each party: (1) whether the conduct resulted from inadvertence or involved an awareness of danger; (2) how great a risk the conduct created; (3) the significance of what the actors sought by the conduct; (4) the capacities of the actors, whether superior or inferior; and (5) any extenuating circumstances which might require the actors to proceed in haste, without proper forethought.

As previously noted, Darby argues on appeal that the trial court should have allocated a greater percentage of fault to Brookshire, while Brookshire argues that the court erred because there was no unreasonable risk of harm under the circumstances; and, alternatively, even if such an unreasonable risk of harm existed, the assessment of only 50 percent fault to Darby is an abuse of discretion. We disagree and find no manifest error in the trial court’s apportionment of fault.

The stocking cart was an obstruction in the aisle of the store. It was left unattended by a utility clerk who was called to the front of the store to assist a customer. Although the handle of the cart did extend upward several feet, the bed of the cart itself was only inches above the floor. Store operators like Brookshire must anticipate that customers will not always be looking at the floor as they proceed with their shopping, but often will be looking at items on the shelf and, thus, may trip over obstructions in the | .¡aisle. Furthermore, some of these patrons will be elderly and may not have the best physical agility or visual acuity.

On the other hand, the stocking cart in this case was large, a different color from the white tile floor and was not hidden from view. The cart was only a few inches from where Darby stopped her grocery cart. The testimony at trial established that there was nothing whatsoever preventing Darby from seeing the cart as she approached the area. Darby herself testified that it was at the moment she stepped backwards when she tripped and fell. At a bare minimum, Darby bears partial responsibility for the accident since she did not look behind her before taking a step backwards and for not being at least somewhat aware of her surroundings. Under these circumstances, both Brookshire and Darby must share fault for the accident. The trial court’s allocation of equal fault between Brookshire and Darby was not an abuse of its discretion. This assignment of error is without merit.

Damages

Darby asserts that the trial court’s award of $12,500 in general damages was an abuse of discretion. Again we disagree. In the assessment of damages in cases of offenses, quasi offenses and quasi contracts, much discretion must be left to the judge or jury. La. C.C. art. 2324.1. An appellate court should rarely disturb an award of general damages because of the vast discretion granted the trial court. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Morris v. Flores, 36,932, 36,933 (La.App.2d Cir.3/7/03), 840 So.2d 1257. Only when the record clearly shows that |fithe trial court abused its discretion in awarding damages in either direction beyond that which a reasonable trier of fact would assess for the effects of a particular injury on a particular party under the particular circumstances, should an appellate court either increase or decrease the award. Id.

The record indicates that Darby’s laceration healed without any residual complications. Moreover, when determining the general damage award, the trial court considered not only the duration and scope of Darby’s medical treatment, but also the fact that she was 87 years old. Darby sustained no other injuries other than the laceration to her leg. The $12,500 general damage award, under these circumstances, does not strike us as abusively low. Instead, we conclude that the award was within the trial court’s discretion. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Plaintiff, Elizabeth Darby, is affirmed. Costs of this appeal shall be divided equally between Elizabeth Darby and Brookshire Grocery Company.

AFFIRMED.


author: GRAVES, Justice,

text:
    Don E. GORDON v. NATIONAL STATES INSURANCE COMPANY and Bernard Vanlandingham.
    No. 2002-CA-00456-SCT.
    Supreme Court of Mississippi.
    June 5, 2003.
    Rehearing Denied Aug. 14, 2003.
    David Michael Brisolara, attorney for appellant.
    G. Todd Burwell, Ridgeland, J. Niles McNeel, Louisville, attorneys for appel-lees.
    Before McRAE, P.J., WALLER and GRAVES, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. Don E. Gordon appeals from summary judgments dismissing his mother Pauline H. Sullivan’s bad faith action against National States Insurance Company (National) and Bernard VanLanding-ham. National filed a motion for summary judgment which the Circuit Court of Winston County, Mississippi, granted. Later the court granted summary judgment to VanLandingham. Sullivan immediately filed a motion for reconsideration and suggestion of error. The trial court denied the motion. Sullivan appeals and raises the following issues:

I. WHETHER NATIONAL STATES INSURANCE COMPANY ACTED IN BAD FAITH WHEN DENYING SULLIVAN’S INSURANCE POLICY BENEFITS.
II. WHETHER THE DENIAL OF BENEFITS REACHED THE HEIGHTENED STATUS OF AN INDEPENDENT TORT.

FACTS

¶2. On February 15, 1997, Arvel Sullivan and his wife Pauline Sullivan purchased two National life insurance policies valued at $6,000 each from VanLanding-ham, an agent of National. The application for the policy at issue was filled out by VanLandingham. Question 9 on the application contained a series of health questions under the caption “If any part of question 9 is answered “yes” no coverage can be issued.” Subsection b of question 9 asked if the applicant had within the past two years “received treatment (including prescription drugs) from a medical professional for: ... heart attack, congestive heart failure, ...” The recorded answer was “no.” The completed application was signed by Arvel. Arvel read and/or had the opportunity to read his application pri- or to signing it. The application was submitted to National, and a whole life insurance policy was issued, naming Pauline as beneficiary.

¶ 3. In August 1998, National received notice that Arvel died. National sent Pauline a Proof of Death claim form to be completed and returned to National.

¶ 4. National received the Proof of Death claim form, death certificate for Arvel, and an Assignment of Policy Benefits from Pauline to Westbrook Funeral Home on September 4, 1998. On the same day, National sent a letter to Pauline notifying her that it would begin the claim process. National immediately dispatched medical record requests to Arvel’s medical providers.

¶ 5. After receiving the medical records, National discovered that Arvel had been treated for congestive heart failure within the two-year period prior to his application for insurance with National. ■ On October 21, 1998, National notified Pauline of its findings and advised her that it was denying her claim, rescinding the policy, and refunding all premiums paid on the policy due to the non-disclosure of accurate medical history.

¶ 6. On October 23, 1998, Pauline contacted National and asserted that Arvel had disclosed his heart condition to Van-Landingham who stated that Arvel’s condition did not need to be reported unless Arvel suffered a heart attack. National advised Pauline to submit her assertion in writing so that it could investigate the situation. National never received the written statement from Pauline. On November 24, 1998, National received a complaint from the Insurance Commissioner’s office filed by Pauline requesting that National obtain a statement from its agent, VanLandingham, regarding conversations with Arvel about his heart condition.

¶ 7. National procured a statement from VanLandingham on December 7, 1998. VanLandingham stated that the health questions on the application were asked directly to Arvel and were properly recorded. National forwarded VanLanding-ham’s statement to the Insurance Commissioner’s office.

¶ 8. On December 8, 1998, National received a demand letter threatening litigation from David M. Brisolara, Pauline’s attorney. After considering the potential expense of litigation, National reconsidered its position and decided to pay Pauline’s claim. A check for the policy benefit amount was issued to Westbrook Funeral Home per Pauline’s assignment of the benefits request.

¶ 9. National subsequently received another letter on Pauline’s behalf requesting an additional payment of $10,000 for consequential damages. National refused, and the instant case ensued.

DISCUSSION

¶ 10. Pauline contends that the circuit court erred in granting National and VanLandingham’s motions for summary judgment. Pauline argues that National’s agent had been notified of Arvel’s heart condition and elected to misrepresent it on the insurance policy application. Pauline asserts that the agency relationship between VanLandingham and National warrants a conclusion that National had knowledge of the facts given to its agent and was liable for payment on the policy immediately. By initially denying payment on the insurance policy, Pauline argues, National is liable for an independent tort.

¶ 11. Since issues one and two are interrelated, they will be discussed simultaneously. This Court applies a de novo standard of review to a trial court’s grant or denial of summary judgment. Lewallen v. Slawson, 822 So.2d 236, 237 (Miss.2002). This is the same standard applied by the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure, which states that summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact....” Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss.2001). The burden of demonstrating that no genuine issue of fact exists is on the moving party. Id.

¶ 12. Here, Pauline sued National for consequential and punitive damages based solely on the theory of bad faith. National’s initial denial of payment was justifiably based. The record reflects that Arvel’s medical records showed that he had been treated for congestive heart failure within two years of his application to National. Pauline later asserted that VanLanding-ham had misrepresented material facts regarding Arvel’s health history. National requested that Pauline present those allegations in writing which she did not do. National returned all the premiums paid on the policy. Shortly thereafter, the Insurance Commissioner’s office notified National of Pauline’s complaint and requested that National acquire a written statement from its agent, which it promptly did. The agent denied Pauline’s allegation in writing. National received a letter from Pauline demanding payment of the claim. Within eight days, National informed Pauline that it would pay the claim, which it did. Pauline requested an additional $10,000 as consequential damages which National refused.

¶ 13. In Blue Cross & Blue Shield of Miss., Inc. v. Campbell, 466 So.2d 833, 841 (Miss.1984), Blue Cross issued a policy of insurance to Campbell to cover medical expenses with a clause that excluded preexisting conditions. After the policy was issued, Campbell was hospitalized and assigned the benefits under his policy to the hospital. The hospital filed a claim, and Blue Cross requested the medical records. After a review of the records, Blue Cross denied the claim on the basis that the hospitalization was the result of a preexisting condition. Campbell later submitted a letter from his attending physician stating that the condition was not preexisting. Upon receipt of the correspondence, Blue Cross paid the claim. Campbell later filed suit seeking compensatory damages and punitive damages. He was awarded $10,000. Blue Cross appealed, and this Court reversed. We stated:

In this case Blue Cross was acting well within its rights under the exclusionary provisions of Campbell’s policy in denying the claims submitted by Delta Medical, and there was simply no “bad faith” issue to be presented to the jury. We therefore conclude that when Blue Cross paid Campbell under the policy provisions he had no further cause of action against the company.
... It is not the function of this Court to penalize honest and realistic evaluations of claims.

Id. at 841.

¶ 14. It is undisputed that Pauline’s claim was paid in full. Punitive damages under Mississippi law are not to be awarded to a party for compensation of an injury but are to be awarded as punishment for the defendant’s wrongdoings so that others may be deterred from similar offenses. Ciba-Geigy Corp. v. Murphree, 653 So.2d 857, 874 (Miss.1994). This Court has recognized that where there is a legitimate or arguable reason for denial of payment under an insurance policy, there is no valid claim for punitive damages. Mut. Life Ins. Co. v. Estate of Wesson, 517 So.2d 521, 527 (Miss.1987). Punitive damages are only appropriate in the context of a denial of an insurance claim if the insurer acted with malice, gross negligence or reckless disregard for the insured’s rights. Sessoms v. Allstate Ins. Co., 634 So.2d 516, 519 (Miss.1994). No evidence has been presented to suggest that National acted with malice, gross negligence or reckless disregard in handling Pauline’s claim. For these reasons, we find no reversible error.

CONCLUSION

¶ 15. National had an arguable and legitimate reason to deny Pauline Sullivan’s claim. National subsequently paid the claim in full, and no evidence was presented to show that National acted in “bad faith.” Therefore, there is no genuine issue of material fact regarding the timely payment of this claim. This Court affirms the trial court’s orders granting summary judgment.

¶ 16. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ AND CARLSON, JJ., CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY. EASLEY, J., NOT PARTICIPATING.

      . Pauline H. Sullivan, the plaintiff below and the original appellant, died during the pen-dency of this appeal. By order dated June 4, 2003, her son, Don E. Gordon, was substituted in her place. For the sake of simplicity, we will refer to Sullivan in this opinion.


author: KING, P.J.,

text:
    Mary Ann ADAMS and John W. Barrett, Appellants, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00353-COA.
    Court of Appeals of Mississippi.
    Dec. 3, 2002.
    Rehearing Denied March 4, 2003.
    Certiorari Denied July 17, 2003.

      James A. Williams, Charles W. Wright, Jr., Meridian, attorneys for appellants.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, P.J., IRVING and BRANTLEY, JJ.
   KING, P.J.,

for the court.

¶ 1. Mary Ann Adams and her brother, John Barrett, were tried together and convicted of murder by a Lauderdale County Circuit Court jury. They were each sentenced to life in prison. Following the denial of their post trial motions each has perfected an appeal in which they have asserted various allegations of error. Finding no reversible error, this Court affirms their convictions and sentences.

FACTS

¶ 2. The body of Mary Ann Woolf, was found lying face down in a creek bed in Lauderdale County. Her automobile was perched on an embankment about fifteen feet above the location of her body. Law enforcement authorities immediately suspected that the scene had been staged to look like an accident. Woolfs automobile was dusted and processed for fingerprints and an autopsy was performed on her body. The state medical examiner who performed the autopsy testified that the cause of Woolfs death was fresh water drowning. He testified that, in his professional opinion, the manner of death indicated a homicide. He testified that certain marks and bruising on the body were evidence that Woolf had been forcibly held under water when she drowned. Also, there was expert testimony that there was very little damage to Woolfs car and the minor impact of the car going down the embankment was not enough to have caused Woolf to be ejected from the automobile.

¶ 3. Adams was the last person known to have seen the victim alive and came under early suspicion. Fingerprints found on the victim’s car were later matched to Adams’s brother and co-defendant, John Barrett. Other facts pertinent to the resolution of the issues will be presented in the discussion of those issues.

DISCUSSION OF THE ISSUES

¶ 4. Adams makes the following allegations of error:

I. The trial court erred in overruling her motions for directed verdict, JNOV, judgment of acquittal and alternative motion for new trial.
II. The trial court abused its discretion by overruling her on the following:
(a) Motion in limine concerning evidence of the Sherron Walters incident;
(b) Admission of her statement into evidence;
(c) motion for severance;
(d) Request to admit Sherron Walters’ polygraph results into evidence; and
(e) Her cross-examination of witnesses Todd, Robinson, Franklin, Peter and Paul Clark.

I.Motions for directed verdict, JNOV, judgment of acquittal and alternative motion for new trial.

¶ 5. Adams alleges that the State’s case against her is insufficient in fact and law to support a murder conviction, therefore it was reversible error for the trial court to deny her motion for a directed verdict, and judgment notwithstanding the verdict.

¶ 6. The standard of review for denial of a judgment notwithstanding the verdict and a directed verdict are identical. Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993). Under that standard, this Court considers all of the evidence in the light most favorable to the State and gives the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a guilty verdict, this Court is required to reverse and render. On the other hand, if there is substantial evidence in support of the verdict of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, this Court is required to affirm. American Fire Protection, Inc. v. Lewis, 658 So.2d 1387, 1391(Miss.1995).

¶ 7. Even though Adams makes the allegation that it was error for the trial court to deny her motions for directed verdict and JNOV, she offers no legal support or reasoned argument for her allegation. As this Court has stated on previous occasions, failure to support an allegation of error with any reasoning or application of the law to the facts bars this Court from considering this issue on the merits. Thornton v. State, 724 So.2d 1003, 1006 (¶ 17) (Miss.Ct.App.1998).

¶8. Procedural bar notwithstanding, when we consider all of the evidence in the light most favorable to the verdict and give the State the benefit of all reasonable inferences that can be drawn from the evidence we do not find that the evidence points so overwhelmingly in favor of Adams that reasonable jurors could not have arrived at a guilty verdict.

¶ 9. Adams alleges further that the verdict was against the overwhelming weight of the evidence, and therefore the trial court erred in denying her motion for a new trial. Adams’s sole argument in support of this contention consists of the following list of things that she says the State failed to prove:

1. No eyewitness placing Mary Ann Adams at the scene.
2. No eyewitness identified Mary Ann Adams with Mary Ann Woolf that night.
3. No physical evidence at the scene found at Mary Ann Adams’s house or car.
4. No search of her house or car for mud, soil, drugs, muddy clothes, etc., no match for hair or fiber to victim’s car or scene.
5. No fingerprints of Mary Ann Adams on car.
6. No testimony of conspiracy.
7. No evidence of motive.
8. No evidence of hate or ill will.

¶ 10. Conspicuously absent from Adams’s brief, however, is any reference to facts or evidence tending to provide proof of her innocence. The Mississippi Supreme Court wrote in Clark v. State, 503 So.2d 277, 280 (Miss.1987), that there is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error. Additionally, the appellant has the duty to make more than mere assertions and should set forth reasons for her arguments and cite authorities in their support. Id.

¶ 11. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict. A new trial is the proper remedy in those instances where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Baker v. State, 802 So.2d 77, 81 (¶ 14) (Miss.2001). When this Court accepts as true the evidence which supports the verdict in the case at bar we are in no wise left with the conviction that to allow it to stand would sanction an unconscionable injustice.

11(a). Adams’s motion in limine concerning evidence of the Sherron Walters incident

¶ 12. Appellant Mary Ann Adams had befriended the murder victim, Mary Ann Woolf, over a period of time. Both women were nurses and worked together at the University of Mississippi Medical Center at Jackson. They became very close, car-pooled to work, and spent a good deal of time together both on and off the job. When Woolf began having difficulty with her teenaged daughter, Andrea, Adams generously offered to have Andrea come and live with her while the mother and daughter tried to work things out. It was during this time that Woolf, at the suggestion of Adams, contacted an insurance agent and purchased a life insurance policy. In what the insurance agent testified was a very unusual and rare occurrence, Woolf had Adams named as the beneficiary of the policy rather than her two adult sons or her daughter, Andrea. The face amount of the policy was $200,000 and contained a double indemnity rider that paid double that amount in the event of an accidental death. Six months after the policy went into effect Woolfs body was discovered in a creek bed. The last person known to have seen her alive was Adams.

¶ 18. A few years earlier, Adams had befriended another woman, Sherron Walters, in pretty much the same fashion. Walters was single with two children and was down on her luck and having quite a hard time of it when Adams invited Walters to live in her home. Walters accepted the invitation and lived with Adams for about two and a half months. In a matter unrelated to the case at bar, Walters later testified in federal court that Adams arranged for an insurance agent to come and see her about obtaining what Walters thought was health insurance. Walters admitted talking to the agent and signing an application but testified that she never paid any premiums and always believed that she was applying for health insurance.

¶ 14. At some later point in time Adams and Walters took a trip together by automobile. They started out on the trip in separate vehicles but ended up together in the same car. Walters testified that initially she was driving the car the two ended up in together, and that Adams asked her to stop at a liquor store where Adams purchased alcohol and at a grocery store where Adams purchased fruit juice. Walters testified that while she drove the car Adams made drinks, and when Adams finished with the drinks and at Adams’s urging, they switched drivers and she drank while Adams drove. Walters testified that Adams eventually drove up to a gate and began honking the car horn. That was the last thing she remembered before she woke up in the hospital.

¶ 15. In the hospital Walters learned that the automobile she was in had been struck by a train as it sat on the railroad tracks with its lights and ignition turned off and its doors locked. Walters also learned that she had been alone in the car. When she attempted to file a claim under the insurance policy she had applied for she learned that she had been sold life insurance, not health insurance, and that Adams was the sole beneficiary. The face amount of the policy was $250,000 with an additional $100,000 indemnity in case of accidental death.

¶ 16. In a pretrial motion in limine Adams sought to prohibit the State from making any direct or indirect reference to any of her dealings with Walters on the ground that such would constitute inadmissible evidence of other crimes or bad acts in violation of M.R.E. 404(b). The trial court found that Adams’s dealings with Walters did constitute evidence of prior bad acts but ruled that the evidence was admissible “in order to show motive, intent, preparation, plan, knowledge and absence of mistake or accident.” The court ruled that the probative value of the evidence outweighed any possible unfair prejudice to Adams, and held that a limiting instruction would be given to the jury regarding the limited purpose for which the evidence was allowed. A limiting instruction was in fact given to the jury in this regard.

¶ 17. In this appeal Adams contends that the trial court erred in admitting the evidence without conducting a Rule 403 balancing test. Contrary to this contention, the lower court, while not specifically stating that it was conducting a Rule 403 balancing test, did in fact make a finding that the probative value of the evidence outweighed any possible unfair prejudice to Adams and subsequently gave a limiting instruction to the jury. This Court held in Givens v. State, 730 So.2d 81 (¶ 28) (Miss.Ct.App.1998), that when the trial judge, in his sound discretion, determines that evir dence of other bad acts is deemed relevant and is admissible, it must also determine whether the probative value of the evidence is substantially outweighed by the considerations of Rule 403 and that determination will not be reversed unless the reviewing court finds clear abuse of discretion. The trial court did not abuse its discretion on this issue.

11(b). Admission of Adams’s statement

¶ 18. Adams argues that because the State was permitted on numerous occasions to make reference to the written statement that she gave to law enforcement authorities she should have been allowed under Rule 106 of the Mississippi Rules of Evidence to admit the statement itself into evidence. Rule 106 states:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously.

Adams contends that the purpose of the rule is to prevent misleading the jury by taking evidence out of context.

¶ 19. Adams fails to take into consideration the fact that the State never attempted to have, nor did it have, any part of her statement admitted into evidence. The State sought to prove what was not contained in the statement only. This fact is clearly demonstrated by the following excerpt from the trial transcript:

BY THE COURT: All right. I’m reading in its entirety Rule 106 plus the comment.
[A]t the present time ... the State has not introduced or offered to introduce in evidence this statement of Ms. Adams. It is marked for ID only. The issue is by asking the witness [Mr. Knight] did Ms. Adams in that statement make any mention of John Barrett and allowing the witness to testify that no mention was made by Ms. Adams of John Barrett, then that is — at least in the position of he defense — allowing the State to introduce a written recorded statement or part thereof.
Under Mississippi case law, the rule of completeness ... attempts to prevent misleading the jury by taking evidence out of context.... Now, in that last comment, how can the Jury be misled into taking this witness’ statement, that is Mr. Knight, that the defendant did not mention John Wayne Barrett in her written statement, how can that be taken out of context in the entire statement? ... [F]rom what I understand, there is nothing in that statement at all about John Barrett, period.

¶ 20. Adams argues that the State opened the door to the statement and the trial court’s refusal to admit it into evidence prevented her from presenting her theory of defense which was that she “cooperated, told the truth, and investigators failed to objectively investigate the death of Woolf.” The trial court, in refusing to allow the statement into evidence stated:

BY THE COURT: I conclude from the argument that the possibility exists, maybe a strong possibility, that neither of your clients will choose to testify, and they will assert their 5th Amendment rights to remain silent. And by having this statement introduced in evidence and given to the [j]ury that Ms. Adams will thereby effectively be able to present her side of the story to the [j]ury without having to take the witness stand and be subject to cross-examination. That is my concern here.
Under 801(d)(2), an admission by a party opponent, the rule says, “A statement is not hearsay if the statement is offered against a party and is a — his own statement, in either his individual or represented capacity....”
When the State offers this statement given by Ms. Adams, then it is not hearsay because he State is offering it against Ms. Adams.
It is admissible in my judgment if the State offers it in evidence and lays the proper foundation, Miranda and otherwise, to have it admitted.
When the defendant on the other hand wants to introduce a self-serving out-of-court statement for the truth of the matter asserted of their own client, it is rank hearsay.

¶ 21. Mississippi appellate courts review a trial court’s rulings on the admissibility of evidence under the abuse of discretion standard. Clemons v. State, 732 So.2d 883 (¶ 18) (Miss.1999). The trial court must exercise that discretion within the confines of the Mississippi Rules of Evidence and reversal will only be appropriate when an abuse of discretion resulting in prejudice to the accused occurs. Id. We find that the trial judge did not abuse his discretion in the decision of this issue.

11(c). Motion for severance

¶ 22. In denying Adams’s motion for severance the trial court held that Rule 7.08 of the Uniform Rules of Circuit and County Court Practice allowed Adams and Barrett to be tried together because they had both been charged in one indictment for the same crime, and, since the charge did not involve the death penalty, the granting or refusal of severance was left to the discretion of the trial court in accordance with URCCC 9.03.

¶ 23. Adams contends that the trial court abused its discretion in not allowing a severance. She cites to “Rule 4.04 of the Uniform Criminal Rules of Circuit Court Practice” for the proposition that the granting or refusal of severance in cases not involving the death penalty shall be discretionary with the trial judge, and to several Mississippi Supreme Court opinions for the proposition that refusal to grant severance is reversible error if it prejudices the defendant at trial. However, she fails to apply the rule or the case law to the facts of her situation in any meaningful way to show an abuse of discretion or any prejudice flowing from the ruling. As stated earlier, the failure to support an allegation of error with any reasoning or application of the law to the facts, bars this Court from considering this issue on the merits. Thornton, 724 So.2d at (¶ 17). Nevertheless, procedural bar notwithstanding, when we examine the trial court’s ruling on this matter we still find that the issue is without merit.

¶ 24. The trial court denied the motion for severance on the ground that neither defendant intended to exculpate him or herself at the expense of the other, that there was no conflict of interests between the co-defendants and there was no indication that the balance of the evidence would go more to the guilt of one defendant than to the other. This Court reviews a lower court’s refusal to grant a motion for severance under the abuse of discretion standard. In accordance with that standard we find that the trial court’s ruling on this issue is in complete harmony with this Court’s own ruling on this issue in Gilbert v. State, 795 So.2d 606, (¶ 15) (Miss.Ct.App.2001), wherein we held:

Lewis’ testimony, the only testimony offered by either defendant, did not tend to exculpate himself at the expense of his co-defendant. There was not a conflict of interests among the co-defendants. Nor did the balance of the evidence go more to the guilt of one defendant than to the other. It is evident that the lower court did not abuse its discretion by declining to grant severance.

¶ 25. Barrett’s testimony was the only testimony offered by either defendant in the case at bar. His testimony did not attempt to exculpate himself at the expense of Adams, there was no conflict of interest between Barrett and Adams, and the balance of the evidence did not go more to the guilt of one than the other, all of which gives clear indication that there was no abuse of discretion in the trial court’s refusal to grant severance.

11(d). Polygraph results

¶ 26. Adams contends that she should have been allowed to cross-examine Sherron Walters about her failure to pass a polygraph test regarding the train collision incident. While conceding that polygraph results are not admissible in this state as evidence, Adams argues that the admission of the train collision incident under M.R.E. 404(b) made the polygraph results relevant under M.R.E. 401 and admissible. Adams contends that the polygraph results were the only method available to her to defend against Walters’s allegations.

¶27. Once again Adams'fails to support her allegations with any reasoned argument or authoritative support, so once again her assignment of error is subject to the procedural bar. Procedural bar notwithstanding, however, we again find that the issue lacks merit because, as this Court held in McClendon v. State, 748 So.2d 814 (¶ 23) (Miss.Ct.App.1999), “neither the fact of the taking of a polygraph examination nor the results of such an examination are admissible into evidence.”

11(e). Cross-examination restrictions

¶ 28. Adams claims to have been denied the right to present her defense theory to the jury by rulings that unfairly limited her cross-examination of certain witnesses. This Court reviews a trial court’s rulings on the extent of cross-examination for abuse of discretion and its rulings will be reversed only when an abuse of that discretion is shown. Fields v. State, 758 So.2d 440(¶ 7) (Miss.Ct.App.1999).

¶ 29. According to Adams, she was targeted by law enforcement officials from the moment Woolfs body was found, and, consequently, they failed to objectively investigate Woolfs death. She accuses law enforcement personnel of testifying “loosely and falsely to an aggregated evidence” against her. This Court’s examination of the record suggests that Adams’s essential complaint is the trial court refused to allow her to cross-examine law enforcement witnesses on the contents of her statement. The trial court ruled that to do so would have given her the unfair advantage of being allowed to testify without the State having the opportunity to cross-examine her. This Court agrees and finds no abuse of discretion.

¶ 30. Adams makes numerous other claims of having been hampered in her defense by not being allowed to fully cross-examine other witnesses. This Court has examined the record in regard to those witnesses and finds Adams’s claims to be baseless and the trial court’s rulings to be well within the bounds of its discretion. Accordingly, we find that this issue has no merit.

¶ 31. Barrett makes the following allegations of error:

I. The trial court erred in refusing to grant a severance
II. Barrett received ineffective assistance of counsel
III. Improper instructions were provided to the jury
IV. The indictment was defective.

I. Severance

¶32. Barrett contends that the vast majority of the evidence pointed to Adams and that he was highly prejudiced by the joint trial. In support of his claim that the trial court abused its discretion in denying a severance, Barrett cites to Tillman v. State, 606 So.2d 1103 (Miss.1992) and Hawkins v. State, 538 So.2d 1204 (Miss.1989). Ironically, Tillman and Hawkins provide conclusive authority for sustaining the trial court’s refusal to grant severance.

¶33. In Tillman, the Mississippi Supreme Court, citing Hawkins, held that the trial court has the discretion to grant a severance if it is necessary to promote a fair determination of the defendant’s guilt or innocence; and the criteria used to determine whether a denial of a motion for severance is proper are whether or not the testimony of one co-defendant tends to exculpate that defendant at the expense of the other defendant, and whether the balance of the evidence introduced at trial tends to go more to the guilt of one defendant rather than the other. When these criteria are not met, as this Court found in Adams’s issue 11(c), and absent a showing of prejudice, there are no grounds to hold that the trial court abused its discretion. The supreme court held that there is no prejudice when, as in the case at bar, one co-defendant does not testify and the other defendant is able to put on a defense in spite of the lack of severance and gives testimony that exculpates himself. Tillman, 606 So.2d at 1106.

¶ 34. There was no abuse of discretion or prejudice in the trial court’s refusal to grant severance.

II. Ineffective assistance of counsel.

¶85. Even though Barrett’s appellate brief points to several specific instances of alleged deficiency on the part of his trial counsel, the gravemen of his claim is that the “adversarial testing process did not function.” The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), described “the undermining of the proper functioning of the adversarial process” as the benchmark for judging any claim of ineffectiveness of counsel. The court held that succeeding on such a claim requires a showing that counsel’s errors were so serious as to deprive the defendant of a fair trial whose result is reliable, and that unless a defendant makes a showing that (1) counsel’s overall performance was deficient and (2) the deficient performance prejudiced the defense, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id.

¶ 36. In determining whether counsel’s performance was adequate, this Court looks to the totality of the circumstances. Taylor v. State, 682 So.2d 359, 363 (Miss.1996). Keeping in mind that there is a strong yet rebuttable, presumption that the actions of defense counsel were reasonable and strategic, Cole v. State, 666 So.2d 767, 775 (Miss.1995), because defense counsel is presumed competent. Foster v. State, 687 So.2d 1124, 1130 (Miss.1996).

¶ 37. After examining the totality of the circumstances surrounding Barrett’s trial we cannot say that his trial counsel’s performance was inadequate or prejudicial. The State’s only physical evidence against Barrett just also happened to be one of the most powerful pieces of evidence that the State could produce against him — his fingerprints — in numerous locations on the victim’s automobile at a time when the car had recently been washed and in the face of a statement Barrett made to law enforcement officials denying any knowledge of the victim. Short of a finding that defense counsel had in his possession irrefutable proof that the fingerprints on the victim’s car were not in fact Barrett’s, or an indisputable explanation of how Barrett’s prints came to be on the victim’s car, yet failed to present such evidence, this Court is hard pressed to find that Barrett’s conviction resulted from a breakdown in the adversarial process that renders the result unreliable. This issue has no merit.

Ill. and V. Jury instructions

¶ 38. We have combined our discussion of Barrett’s issues III and V because they both involve challenges to given jury instructions.

¶ 39. We turn our attention first to the challenged instruction in issue III, Instruction C-19, which was granted at the request of Barrett’s co-defendant, Adams. C-19 instructed the jury that evidence which made it “probable” that Adams was guilty was insufficient to find guilt beyond a reasonable doubt. The trial judge granted the instruction and appended a handwritten addition that read: “These same principles apply to the defendant John Barrett.” Barrett concedes that the instruction was proper, but claims that it was imposed on him without his authority and this Court should review the lower court’s granting of the instruction under the doctrine of plain error.

¶ 40. We turn now to the instruction in Barrett’s issue Y, Instruction C-9, which reads as follows:

The Court instructs the Jury that should you find from the evidence in this case, beyond a reasonable doubt that:
1. On or about the 7th day of June, 1998, in Lauderdale County, Mississippi;
2. The Defendant, John Barrett, acting alone or jointly with the co-defendant Mary Ann Adams or other unidentified persons, did wilfully, unlawfully and feloniously and of malice aforethought or with deliberate design to effect the death of Mary Ann Woolf;
3. Did kill Mary Ann Woolf, a human being, by drowning her;
4. Without authority of law and not as an accident;
then it is you sworn duty to find the Defendant, John Barrett, guilty of Murder.
Should the State fail to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant, John Barrett, not guilty.

Barrett contends that the use of the phrase “other unidentified persons,” caused an expansion of the indictment that prejudiced him before the jury by creating a difference between what the indictment charged and what the jury instruction charged.

¶ 41. Barrett did not lodge a contemporaneous objection to either instruction, nor did he raise any objection to the granting of either instruction in his post trial motions, consequently, he asks this Court to find plain error in our review of the instructions. We decline to do so.

¶42. This Court has read all of the instructions together as a whole, without having read any one alone and without having taken any one out of context, and finds no error in the granting of the instructions. Woodham v. State, 779 So.2d 158, 163 (¶ 24) (Miss.2001). What we do find is that Barrett was given a fair and adequate opportunity to present his theory of the case through the instructions that were given, and we hold that these assignments of error are procedurally barred and are also without merit.

IV. The indictment

f 43. Barrett contends that the indictment against him was defective because only the adjective “her” was used to modify “malice aforethought,” rather than “his and her.” The indictment reads in pertinent part as follows:

The Grand jury for the State of Mississippi, taken from the body of good and lawful men and women of Lauder-dale County in the State of Mississippi, elected, impaneled, sworn and charged to inquire in and for said county, in the State aforesaid, in the name and by the authority of the State of Mississippi upon their oaths present that
MARY ANN ADAMS
JOHN WILLIAM BARRETT
in Lauderdale County, Mississippi, on or about the 7th day of June, A.D., 1998, did wilfully, unlawfully, and feloniously and of her malice aforethought or with deliberate design to effect the death of MARY ANN WOOLF, did kill and murder MARY ANN WOOLF, a human being, without authority of law and not in necessary self defense, by drowning her and, if not this greater crime, then the lesser crime of Manslaughter for having killed MARY ANN WOOLF by drowning her without any design to effect her death....

¶ 44. Having failed to raise this issue in the lower court, Barrett alleges in this appeal that the indictment is fatally flawed and entitles him to raise this issue for the first time on appeal. He is wrong on both counts. The defect he complains of is one of form, not of substance. Defects of substance must be corrected by the grand jury but courts may amend an indictment to correct a defect in form. Winters v. State, 814 So.2d 184 (¶ 14) (Miss.Ct.App.2002). A change to an indictment is one of form if it- does not materially alter facts which are the essence of the offense as it originally stood, or materially alter a defense to the indictment as it originally stood, to the prejudice of the defense. Id.

¶ 45. We find that, had the matter been brought to the attention of the trial court, an amendment to the indictment to include the words “and his” would have been permitted as one of form.. Barrett’s failure to demur to the indictment waived the issue on appeal. Brandau v. State, 662 So.2d 1051, 1055 (Miss.1995). Procedural bar notwithstanding, we find that Barrett failed to prove any prejudice to his defense as a result of the indictment as it originally stood; therefore, we hold that the issue fails on its merit as well.

¶ 46. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED AS TO EACH OF THE APPELLANTS. THE COSTS OF THIS APPEAL ARE ASSESSED ONE HALF TO EACH APPELLANT.

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