author: |, EZELL, Judge. h COOKS,

text:
    Nathan FREEMAN v. Kevin TATE, Bill Ortego and Wayne Morein.
    No. 02-1361.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2003.
    Sera Hearn Russell III, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Nathan Freeman.

      Michael Voorhies Matt, Eunice, LA, for Plaintifi/Appellant, Nathan Freeman.
    Lisa Eve Mayer, Borne, Wilkes & Brady, LLP, Lafayette, LA, for Defendants/Appellees, Kevin Tate, Bill Ortego and Wayne Morein.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, MARC T. AMY and BILLY HOWARD EZELL, Judges.
   |, EZELL, Judge.

This appeal involves a pedestrian who was struck by a drunk driver while detained by two Evangeline Parish Sheriffs’ Deputies. The pedestrian, Nathan Freeman, sued the deputies and the sheriff. The trial court dismissed the suit on summary judgment. Freeman appeals. For the following reasons, we affirm the decision of the trial court.

On December 25, 2000, at about 4:00 a.m., Freeman and his cousin were walking along Louisiana Highway 29 in a northerly direction, toward Ville Platte. At that time, Sheriffs’ Deputies Kevin Tate and Bill Ortego were driving on the same highway in a southern direction in an Evangeline Parish Sheriffs Department patrol car. Earlier in the evening, the deputies had been notified that a black male had escaped from the jail and that all units should be on the lookout for the escapee. Upon seeing Freeman and his cousin, both black males, walking alongside the road at such a late hour, the deputies turned their vehicle around to investigate. They did so in order to determine if either Freeman or his cousin was the escapee, or if they were stranded and in need of assistance.

The deputies pulled up behind the men, facing north in the southbound lane, partially on the road and partially on the shoulder. They then turned on their overhead rotator lights and alternating flashing headlights. Freeman and his cousin were asked to step toward the cruiser. They complied. As the deputies were questioning the two men, the cousin saw a vehicle approach at a high rate of speed. He shouted to warn everyone as the vehicle got closer. The approaching vehicle, driven by Daniel Thomas, veered to the right, narrowly avoided the patrol car, and struck Freeman, severely injuring his leg. After he got out of his vehicle, Thomas was immediately taken into custody and charged with driving while intoxicated. His blood alcohol | Jevel was later found to be .135 on the blood alcohol test.

Freeman sued the deputies and the sheriff, claiming the deputies were negligent in their parking of the police cruiser, and that this negligence caused the accident. Freeman settled with Thomas and his insurer out of court. The deputies filed a motion for summary judgment, claiming their actions were not negligent under La. R.S. 32:24, and that the accident was the sole fault of the drunk driver, Daniel Thomas. The trial court granted the summary judgment in favor of the deputies, dismissing the suit. From this decision, Freeman appeals.

On appeal, Freeman asserts two assignments of error, which are essentially one, that the trial court erred in granting the summary judgment, as he claims genuine issues of material fact exist, and the trial court misinterpreted the provisions of La. R.S. 32:24. We disagree.

An appellate court reviews summary judgments de novo, applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991); Haley v. Calcasieu Parish Sch. Bd., 99-883 (La.App. 3 Cir. 12/8/99), 753 So.2d 882, writ denied, 00-54 (La.2/24/00), 755 So.2d 242. Article 966(B) of the Louisiana Code of Civil Procedure provides that summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. Accordingly, this is the standard which we will apply.

Louisiana Revised Statute 32:24 states, in pertinent part:

A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
laB. The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this Chapter;....
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.

The Louisiana Supreme Court recently addressed the standard of care to be applied to an emergency vehicle driver who qualifies under the provisions of La.R.S. 32:24(A) through (C) in Lenard v. Dilley, 01-1522, pp. 6-7 (La.1/15/02), 805 So.2d 175, 180.

La.Rev.Stat. 32:24(D) sets out two standards of care for an emergency vehicle driver depending on the circumstances of the case. If, and only if, an emergency vehicle driver’s actions fit into subsections A, B and C of La.Rev. Stat. 32:24, will an emergency vehicle driver be held liable only for actions which constitute reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver’s conduct does not fit subsections A, B and C of La.Rev.Stat. 32:24, such driver’s actions will be gauged by a standard of “due care.”
“Due care” is synonymous with ordinary negligence. “Reckless disregard,” however, connotes conduct more severe than negligent behavior. “Reckless disregard” is, in effect, “gross negligence.” Gross negligence has been defined by this court as “the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise.” State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942). “Reckless disregard” or “gross negligence” is the standard to be applied if the emergency vehicle driver’s actions fit La.Rev.Stat. 32:24(A) through La. Rev.Stat. 32:24(C). Otherwise, the standard is ordinary negligence.
Thus, if the provisions of subsections A, B and C of La.Rev.Stat. 32:24 apply to the accident or incident in question, then the driver will be held liable only for his conduct which constitutes reckless disregard for the safety of others.

The deputies, in investigating whether either Freeman or his cousin was potentially the wanted escapee, were clearly in pursuit of a suspected violator of the law. It is undisputed that the deputies activated their overhead lights and flashing headlights, in compliance with subsection C. Therefore, under subsection B(l), the Ldeputies were able to park their vehicle in violation of the ordinary rules of the traffic code. Because the deputies had met the requirements of subsections A, B, and C of La.R.S. 32:24, they can be held liable only for conduct that constituted reckless disregard for the safety of others.

We find that their conduct did not constitute gross negligence. The officers were investigating whether either Freeman or his cousin was the jail escapee. They pulled their cruiser as close to the men as possible to avoid further escape if the men fled. The road in question had a very small shoulder, preventing the deputies from pulling completely off the road. They engaged their flashing lights, as required by La.R.S. 32:24. The position of the police car did not constitute gross negligence or reckless disregard for the safety of others, as an approaching vehicle could have seen the lights of the patrol car and could have proceeded with appropriate caution. Even Thomas admitted that he saw the lights on the patrol car as he approached.

This accident was caused solely by the actions of Daniel Thomas. As noted above, Thomas saw the lights of the deputies’ car as he approached them on the road. However, Thomas testified in his deposition that he “blanked out” or fell asleep after seeing the lights. Thomas testified that he awoke to find his “foot was gassing” the accelerator and that he had slid off of the road. Thomas stated that he did not try to swerve to avoid the patrol car but that he drifted off the road because he was asleep or blacked out. He said his only chance to avoid the cruiser was to “stay on the side of the ditch.” Thomas did not even know that he had struck Freeman until he was told after-wards. Clearly this accident was caused by Thomas’s drunk driving, not the actions of the deputies. Accordingly, we find that there is no genuine issue of material fact in this case.

IsThe decision of the trial court is affirmed. Costs of this appeal are assessed against the appellant, Mr. Freeman.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

WOODARD, J., dissents. As addressed by Judge Cooks, there are numerous material facts in dispute, anyone of which should preclude summary judgment.

h COOKS,

Dissenting.

The majority proposes to affirm the trial court’s grant of summary judgment finding there was no genuine issue of fact that the deputies met the requirements of La.R.S. 32:24 and their conduct did not constitute gross negligence. I disagree.

I find serious questions arise as to whether the officers were in “pursuit of an actual or suspected violator of the law” as R.S. 32:24 states. Deputy Tate stated he was driving Deputy Ortego home when they ran across the two black men walking on the side of the road. Deputy Ortego stated neither of the men were stopped because they were engaged in any criminal activity. There also is no indication that the two men bore any resemblance to the escapee other than the color of their skin. The depositions do not provide any indication if there was any description of the escapee issued by the authorities. Such a question certainly pertains to the issue of whether the police were “in the pursuit of an actual or suspected violator of the law,” or whether there declarations are merely pretextual.

As to the question of gross negligence, I find this issue cannot be properly addressed via summary judgment. There are numerous questions of fact precluding summary judgment. The majority concludes there is no question that the positioning of the police car did not constitute gross negligence. I note there was a dispute as to the visibility conditions that evening. Daniel Thomas testified in his deposition that Fit was a “clear night.” Deputy Tate recalled it was “misty.” Deputy Ortego remembered it as being “foggy” and stated he was concerned that, because of the fog, the two men “might have got hit by a car.” I also point to the police report prepared by Deputy Ortego. In the drawing it shows Deputy Ortego and Frederick Freeman were standing to the right of the parked police unit and in the other lane of travel. Clearly, the presence of Deputy Ortego and Frederick Freeman in the other lane could have prevented an oncoming vehicle from using that lane to avoid the parked police unit. Although Thomas stated in his deposition that he “blanked out” or fell asleep after seeing the police lights, Thomas’ deposition testimony is riddled with inconsistencies. Thomas stated numerous times in his deposition that the police unit “wasn’t on the road” and was “off the road completely.” This is contradicted by both Deputy Tate and Ortego, as well as the police report. The shoulder was sloped and only two to two and a half feet wide, not nearly wide enough for a vehicle to park completely off the road.

The majority states that “Thomas admitted that he saw the lights on the patrol car as he approached.” Thomas did testify as such in his deposition, however the police report reflects that Thomas stated “he did not see the EPSO (Evangeline Parish Sheriffs Office) unit nor the blue and red overhead lights. He stated he attempted to avoid colliding with the pedestrian, but could not avoid the collision.” (Emphasis mine)

Thomas also testified in his deposition that he “blanked out” and awoke to find his foot was “gassing” the accellerator. However, Deputy Tate testified he heard “wheels squeeling like he was applying brakes, and at that point, I could tell, you know, that he wasn’t stopping, or he was having problems stopping.”

Despite Thomas’ statements as memorialized in the police report, Thomas ^stated in his deposition that he did not discuss the accident that night with anyone, including the police. Thomas also stated in the police report that “he attempted to avoid colliding with the pedestrian” but stated in his deposition that he did not even realize he had struck anyone until he was told so later. Thomas also asserted he saw only “blue” lights; the officers said the lights were blue and red. At the scene, Thomas told Deputy Ortego he saw no lights, but at his deposition stated he saw the tail lights of the police unit even though the police report indicates this was impossible because of the unit’s position at the time of the accident.

One of the deputies, by his own admission, thought “visibility” was so hampered, that he feared the young men “might have got hit by a car.” With this admitted “fear” and knowledge of the diminished visibility conditions, the officers nevertheless elected to park their unit and conduct the investigatory stop in a manner that significantly contributed to the danger they already knew existed: That the young men “might get hit by a car.” Now, the young men were not on the shoulder, where they might, through haste, have avoided the danger. They were forced to remain in the actual lanes of travel — one in each lane — and to remain in the path of danger held by the deputies, who both admitted at the time the car approached each of them was being patted down and restrained against the vehicle. Although the deputy holding Nathan Freeman could see the car approaching and made good his escape when alerted by Frederick Freeman, Nathan was still up against the police unit with his back to the approaching danger. This prevented Nathan from moving and changing position. Nathan could do nothing to see or escape the danger. A serious question does exist concerning whether the deputies method of placing the two men at greater risk constituted “gross negligence.”

After reviewing the depositions and police report, I find at a minimum, there 14were questions of material fact which should have precluded summary judgment. Further, Thomas credibility and that of the officers vis-a-vis Thomas is seriously at issue. Therefore, I would reverse the trial court’s grant of summary judgment on both the immunity question and the gross negligence question.


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    Gregory SHIPP v. STATE of Mississippi.
    No. 2002-KA-00495-SCT.
    Supreme Court of Mississippi.
    June 5, 2003.
    William F. Travis, Southaven, Attorney for Appellant.
    Deirdre McCrory, Office of the Attorney General, Attorney for Appellee.
    Before SMITH, P.J., CARLSON and GRAVES, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. Having been indicted, tried, convicted and sentenced for murder, Gregory Shipp (Shipp) appeals from the final judgment of the Circuit Court of DeSoto County, claiming that the circuit court erred in denying his motion for directed verdict at the close of the State’s case-in-chief. Finding the trial court properly denied the motion for directed verdict and properly submitted the case to the jury, we affirm the judgment of the circuit court.

STATEMENT OF THE CASE

¶ 2. On October 11, 2001, Gregory Shipp was indicted for the murder of George Hailey (George) pursuant to Miss.Code Ann. § 97-3-19(l)(a) (Rev.2000). Shipp was convicted of murder in the Circuit Court of DeSoto County on February 11, 2002, and was sentenced to a term of life imprisonment in the custody of the Mississippi Department of Corrections. After his motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial was denied, Shipp timely appealed to this Court raising only one issue for consideration: Whether the trial court erred by denying the motion for directed verdict at the close of the State’s case in chief.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. On August 4, 2001, George Hailey was shot and killed by Gregory Shipp. After being indicted for murder, Shipp’s trial commenced on February 11, 2002, before a DeSoto County Circuit Court jury, Judge George B. Ready, presiding.

¶4. The State called Marilyn Abram (Marilyn), girlfriend of George Hailey and mother of his child, to testify. Marilyn, also the sister-in-law of Shipp, testified that George had purchased a car from Shipp and that George still owed Shipp approximately $125.00 for the car. Marilyn stated she had offered to pay George’s remaining debt owed on the car, and Shipp accepted her offer by stating “everything is squash,” which Marilyn understood to mean if George did not pay, Shipp would collect from her. Marilyn also testified she never heard Shipp threaten George in her presence.

¶ 5. Milton Abram (Milton), Marilyn Abram’s brother and Gregory Shipp’s brother-in-law, testified that on August 4, 2001, he and his cousin Henry Morgan were living at 1565 Hailey Road, Southa-ven, MS. Milton stated his residence was across the street from the home of Robert Lee and Bobby Jean Hailey. He stated he saw both Shipp and George at his house that night. Milton testified George was sitting in his driveway in Marilyn’s car when Shipp approached George and asked him to get out of his car. When George refused to get out of his car, Shipp told George, “You better not be here when I get back .” Milton testified that after Shipp’s statement to George, Shipp went to his house which was right next door to Milton’s home. Milton attempted to get George to accompany him to Bobby Jean Hailey’s house, but George never got out of his car. Milton did not go back outside until after he heard the gunshot. Milton also testified that earlier on August 4, he had traveled to Tennessee at the request of his sister, Marilyn, to retrieve her car from George. While he was in Tennessee, Milton stated he saw that George had a knife in his car, but he testified that he never saw George pull his knife on Shipp.

¶ 6. Henry Morgan (Morgan) testified he was living with his cousin, Milton Abram, on August 4, 2001. The first time Morgan saw Shipp on August 4, Morgan was on his porch with Sly Payne and Tonya Polk when Shipp arrived at his house. Shipp stated he had just been in an argument with George about the money George owed him. Morgan testified Shipp was carrying a sawed-off, pump action shotgun. Morgan testified that Shipp stated he “had something for George” if he came on Hai-ley Road. Morgan also testified that Tonya Polk fired Shipp’s shotgun into the air. Later that evening, George arrived at Morgan’s home. Morgan stated that George first pulled into his driveway but then drove to Bobby Jean Hailey’s driveway. Shipp followed George to Bobby Jean’s house. Morgan testified that Shipp returned to his house and came back with the sawed-off shotgun. Shipp walked over to George’s car and asked him to roll down the window, but George refused. Morgan testified when George pulled off in his car, Shipp fired the gun. After he shot George, Shipp “got in the car and he took off real fast.” George’s car rolled down the hill into the wooded area of the yard.

¶ 7. Tonya Polk (Polk) testified that she saw Shipp the afternoon of August 4, 2001. Polk, Morgan and Sly Payne were sitting on Morgan’s porch when Shipp pulled up to the house and informed the group that he and George had exchanged words about the money that George owed him. Later that afternoon, Polk stated Shipp returned to Morgan and Milton’s house with a shotgun. Polk stated Shipp allowed her to test fire the gun. On the night of August 4, George and Milton arrived at Milton’s home together in George’s car. Milton got out of the car and attempted to get George to follow him into the house, but George never left his vehicle. Polk then saw Shipp pull up by George and ask George to get out of the car. After George refused, Milton approached the two men and asked George to accompany him to Robert Lee Hailey’s house. As Milton walked across the street to Robert Lee Hailey’s house, George followed Milton in his car. Polk testified that before George left, Shipp told him, “Don’t be here when I get back.” Shipp left and went home. However, Shipp soon returned. Polk testified that as George saw Shipp approaching his car, he started blowing his horn. While this was occurring, Polk was talking on her cell phone to Bobby Jean Hailey. Polk told Bobby Jean to tell Robert Lee to come outside because Shipp had come back and was about to Mil George. Polk saw Shipp exit his car and walk to George’s car. Shipp was again demanding that George get out of his car. Polk testified that she saw Shipp carrying a gun when he approached George’s car. When George would not get out of the car, Polk heard three “pecks” as Shipp hit the driver’s side window with his gun. After Shipp hit the window, George pulled away. Polk testified that Shipp stepped back and fired the gun. After shooting George, Shipp left in his car.

¶ 8. Bobby Jean Hailey (Bobby Jean), wife of Robert Lee Hailey, testified that her sister, Marilyn, and George have a child together — Angela. Occasionally Bobby Jean and Robert Lee would babysit Angela, and they were, in fact, babysitting Angela on the night of August 4, 2001. Bobby Jean also stated it was not uncommon for George to pick up Angela when Marilyn was unable to do so. Bobby Jean testified she received a telephone call from Polk on the night of August 4. Bobby Jean stated Polk asked for Robert Lee because Shipp and George were “into it outside” and Shipp had a gun. Bobby Jean testified that while she was on the phone with Polk she could hear a horn blowing outside. As Bobby Jean was getting Robert Lee out of bed, she heard a shot and a car driving away very fast. She called 911 as Robert Lee went outside.

¶ 9. Robert Lee Hailey (Robert Lee), George’s first cousin, testified that on the night of August 4, 2001, he was in his bedroom watching TV when he heard his wife screaming that someone had been shot outside. He got up and ran out of the side door of his house and noticed a white car down the hill in some weeds. Robert Lee testified that he ran down the hill, but because it was too dark, he could not see inside the car. Robert Lee asked someone to bring his flashlight from his truck, and he ran back down the hill to George’s car. Robert Lee testified as he approached the car, he saw George slumped over. Robert Lee yelled for someone to call 911 after George failed to respond to his name. Robert Lee testified when he found George’s body in the car, he did not notice a knife in his hands. Within a couple of minutes, the police arrived at the crime scene.

¶ 10. Tommy Jones, a lieutenant with the Southaven Police Department (SPD), responded to the call on Hailey Road on August 4, 2001. Upon arriving at the crime scene, Lt. Jones noticed a white Neon at the rear of the residence. As Lt. Jones approached the vehicle, he noticed “a man laying over in the vehicle ... bleeding from approximately the rear of the head.” Lt. Jones noticed the car was in reverse and was still running. The driver’s door was locked, but Lt. Jones was able to reach through the window of the rear door, which had shattered, to unlock the door. As other SPD officers were dispatched to the scene, Lt. Jones directed Officer Brent Vickers to photograph the scene.

¶ 11. Officer Vickers began taking initial photographs of the crime scene. He noticed that the vehicle’s backup lights were still on. Officer Vickers observed George “slumped over in the vehicle in the driver’s seat leaning towards the passenger seat.” Officer Vickers also observed blood on George’s head and neck and blood splatter on the dashboard. Officer Vickers was also made aware of glass fragments in the driveway. Officer Vickers was also involved in the recovery of the weapon used in the shooting. The weapon was found at the intersection of Tchulahoma Road and Stateline Road. Officer Vickers testified that Shipp voluntarily turned himself in to the authorities and informed them where he had thrown out the gun.

¶ 12. Ronnie Noe, an officer for the SPD, was also on duty the night of August 4, 2001, and responded to the emergency call. Officer Noe, who was in charge of taping off the crime scene, discovered the glass from the broken window in the driveway. Officer Noe testified when George’s body was removed from the car, he found a knife in George’s seat. When he returned to the SPD, Officer Noe was asked by Detective Mark Little to be present while Shipp was given his Miranda warnings. Officer Noe also observed Det. Little’s interview with Shipp. Shipp informed the SPD that the gun used to shoot George was in a field at the corner of Tchulahoma Road and Stateline Road.

¶ 13. Detective Mark Little was not on duty the night of August 4, 2001, but he was called out to the crime scene on Hai-ley Road. Det. Little also testified that a knife was found in George’s car. The knife, which was closed, was found at the edge of the seat behind George. Det. Little returned to the SPD to question Shipp regarding his involvement in this crime. Det. Little read and explained Shipp’s Miranda rights to him. Det. Little testified that Shipp gave a statement as to the location of the shotgun used in the shooting. Upon finding the gun in the location revealed by Shipp, Det. Little also found a 12 gauge Winchester shotgun shell casing in the chamber of the shotgun. When asked about Shipp’s statement, Det. Little testified that Shipp stated he and George had recently had an argument about a car that Shipp had sold to George. George was supposed to pay Shipp $50.00 a month, but George “had been dodging him and not paying him.” Det. Little testified that Shipp stated he did confront George about the money which was owed and that he did have a gun in his possession during the confrontation. Shipp stated that during their argument George said, “F you. I will kill you.” Shipp informed Det. Little that he saw a knife in George’s car. Shipp claimed to have seen the blade of George’s knife although Det. Little found the knife closed “on the driver’s seat behind [George’s] left pants pocket.” Det. Little testified that a person would not be able to see the knife in the car where it was located unless they stuck their head in the car and looked for it. Det. Little testified when he arrived on the scene all the doors were closed and locked and all the windows were rolled up, save for the one which was broken from the shotgun blast. Det. Little testified that Shipp stated that “when George put the car into gear and went to pull off, that the gun accidentally went off.” Shipp apparently left the scene because he was scared of the police.

¶ 14. Jeffrey Pounders, DeSoto County Coroner, sent George’s body to Jackson for an autopsy because his death was thought to be a homicide. Dr. Steven Hayne, an accepted expert in the field of forensic pathology, performed the autopsy. Dr. Hayne discovered the presence of an entrance gunshot wound located immediately behind George’s left ear. Dr. Hayne also noted secondary wounds on “the back part of the neck, the upper part of the left side of the back and coursing across the entrance wound site” which were consistent with shot pellet and glass. Dr. Hayne testified that the shot was fired at a downward angle into George’s head. In other words, Dr. Hayne’s findings were consistent with Shipp standing above George and aiming the shotgun at George while George was in his car. Dr. Hayne also testified that based on the photographs he was shown of George’s body in the car and his findings during his postmortem examination, “[George] had his head turned slightly to [Shipp] and left, and in addition he had the trunk of his body turned slightly to the right_” Based on his examination, Dr. Hayne determined the cause of George’s death to be a shotgun wound to the head.

¶ 15. The State rested. At the close of the State’s case in chief, the defense moved for a directed verdict on the grounds that the State failed to present a prima facie case of murder. The trial judge denied the defense’s motion, and the defense proceeded with its case in chief.

¶ 16. Gregory Shipp, the only witness called by the defense, testified that on the night of August 4, 2001, he ran into George on his way to visit his brother-in-law in Memphis. George informed Shipp that he had recently lost his job and, therefore, would not be able to pay Shipp the $50.00 per week that he owed him. Shipp testified that George then “snapped” and pulled a knife on him. Shipp then went back home where he saw Henry Morgan, Tonya Polk and Sly Payne next door on the porch. Tonya stated she wanted to buy a gun because of recent reports of a Peeping Tom. Shipp informed Tonya that he had a shotgun that she could buy. Shipp retrieved the gun from his house and allowed Tonya to test fire the weapon. Shipp testified that he threw the gun in his car upon seeing Bobby Jean Hailey because he did not want to disrespect her. Milton Abram then pulled up and stated that he was going to find George because he had taken Marilyn’s car. Shipp testified that he decided to join Milton, Polk and Sly Payne in trying to locate George. They found George in Memphis. Shipp testified that while Milton was trying' to talk to George, George pulled a knife on him. The group left but stopped at a gas station where George and Shipp got into an argument. Shipp left and drove around before returning home where he found George at Milton’s house. Shipp testified that George threatened him with a knife, so Shipp went to Robert Lee’s home. Upon arriving at Robert Lee’s house, Shipp saw the car George had recently been driving. Because Shipp was scared and because of the previous confrontations with George, he grabbed his gun as he exited his car. Shipp testified that he heard Tonya say, “George, Greg got his gun,” and then he saw George coming toward him. George then ran to his car, and Shipp ran towards the back part of the house. Shipp then heard the car coming towards him, and he jumped out of the way. Shipp testified when he tried to run, the gun fired. Shipp left because he was scared, but he immediately went to his sister’s house and told her what had happened. His sister convinced him to call the police. Shipp voluntarily turned himself into the SPD.

¶ 17. The defense rested, and the State offered no rebuttal "witnesses. The defense renewed its motion for a directed verdict, but the trial court denied the motion.

¶ 18. The jury found Shipp guilty of murder, and the trial judge sentenced Shipp to life in prison. The trial court denied Shipp’s motion for a JNOV or, in the alternative, a new trial. Shipp timely filed this appeal.

DISCUSSION

¶ 19. Shipp argues the trial court erred by denying his motion for a directed verdict at the close of the State’s case-in-chief. However, the trial court also denied Shipp’s renewed motion for a directed verdict after the State finally rested upon the completion of the trial and Shipp’s post-trial motion for a JNOV or, in the alternative, a new trial. Therefore, although Shipp only cites error as to the denial of his motion for directed verdict at the conclusion of the State’s case in chief, this Court will review this issue as a challenge to the sufficiency of the evidence produced at trial.

¶20. Because motions for directed verdicts and JNOV motions require “consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). See also Wetz v. State, 503 So.2d 803, 807-08 (Miss.1987). Here, this occurred when the trial court denied Shipp’s motion for JNOV. This Court’s standard of review regarding the sufficiency of evidence is well-established.

In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. Esparaza v. State, 595 So.2d 418, 426 (Miss.1992); Wetz, at 803; Harveston v. State, 493 So.2d 365, 370 (Miss.1986); May v. State, 460 So.2d 778, 780-81 (Miss.1984); Callahan v. State, 419 So.2d 165, 174 (Miss.1982). The credible evidence consistent with [the defendant’s] guilt must be accepted as true. Spikes v. State, 302 So.2d 250, 251 (Miss.1974). The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Wetz, at 808; Hammond v. State, 465 So.2d 1031, 1035 (Miss.1985); May, at 781. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. Neal v. State, 451 So.2d 743, 758 (Miss.1984); Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Wetz, at 808; Harveston, at 370; Fisher v. State, 481 So.2d 203, 212 (Miss.1985).

McClain, 625 So.2d at 778.

¶ 21. Shipp argues that the State failed to present a prima facie case of murder, in that the State did not offer sufficient proof of malice aforethought, premeditated design or deliberate design. Shipp concedes the case law of this State holds that malice aforethought, premeditated design and deliberate design all convey the same meaning. See Windham v. State, 602 So.2d 798, 801-02 (Miss.1992) (Windham II). However, Shipp contends that while premeditation connotes a prior desire to kill and must involve an “appreciable time for reflection and consideration” before committing the murder, Blanks v. State, 542 So.2d 222, 226-27 (Miss.1989), finding that a deliberate design can be formed at the very moment of the commission of the fatal act is contrary to the appreciable time requirement. Windham v. State, 520 So.2d 123, 126 (Miss.1987) (Windham I).

¶ 22. Shipp was charged with murder pursuant to Miss.Code Ann. § 97-3-19(l)(a) which provides:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any human being....

(emphasis added). “It has long been the case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing.” Johnson v. State, 475 So.2d 1136, 1139 (Miss.1985). See Dye v. State, 127 Miss. 492, 90 So. 180 (1922); Hawthorne v. State, 58 Miss. 778 (1881); McDaniel v. State, 16 Miss. (8 S. & M.) 401 (1847).

¶ 23. This Court has established that it is error to give a deliberate design instruction which states the deliberate design was formed “at the very moment” of the fatal act because this instruction would rule out the possibility of manslaughter. See Windham I. In Windham I, the case was reversed and remanded because the deliberate design instruction stated the deliberate design element could be formed “at the very moment” of the fatal act. 502 So.2d at 126. The Court held this instruction eliminated the possibility that the defendant could have been found guilty of only manslaughter. Id. The Court found the deliberate design instruction to be in “hopeless conflict” with the manslaughter instruction. Id. at 126-27. See also Smith v. State, 463 So.2d 1028 (Miss.1985); Scott v. State, 446 So.2d 580 (Miss.1984); Cooley v. State, 346 So.2d 912 (Miss.1977).

By statute murder requires a “deliberate design to effect the death of the person killed.” As defined by dictionaries the word “deliberate” always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. “Design” means to calculate, plan, contemplate. These are general and accepted meanings of these words.
While it is no doubt true that a deliberate design to Mil a person may be formed very quicMy, and perhaps only moments before the act of consummating the intent, it is a contradiction in terms to state that a “deliberate design” can be formed at the very moment of the fatal act.

Windham I, 520 So.2d at 126.

¶ 24. The instruction given in the case sub judice is the same instruction considered by this Court in Theodore v. State, 798 So.2d 465, 470 (Miss.2001). Instruction S-2 which was granted reads:

Deliberate design, as used in these Instructions, means intent to kill without authority of law and not being legally justifiable, legally excusable, or under circumstances that would reduce the act to a lesser crime.
A deliberate design cannot be formed at the very moment of the fatal act, however, the deliberate design need not exist in the mind of the Defendant for any definite time, not for hours, days or even minutes, but if there is deliberate design, and it exists in the mind of the Defendant but for an instant before the fatal act, this is sufficient deliberate design to constitute the offense of Murder.

(emphasis added). This Court held in Theodore, that even though the trial court granted both a deliberate design instruction and a manslaughter instruction, Wind-ham I did not apply to the facts of the instant case. 798 So.2d at 469-70. The jury instruction submitted by the State, which is identical to the jury instruction in the case sub judice, specifically stated deliberate design could not be formed at the very moment of the fatal act, and therefore, did not preclude the possibility of manslaughter. Id.

¶ 25. However, the facts of the case sub judice are slightly different from the above cases in that a manslaughter instruction was not given, nor was a manslaughter instruction requested by the defense. The only instruction submitted by the defense, which was granted over the objection of the State, stated as follows:

The killing of a human being is an excusable homicide if the defendant’s act which caused the death of George Hailey was a result of an accident or misfortune, in the heat of passion, upon any sudden and sufficient provocation.
If George Hailey’s death was caused by the discharge of the shotgun accidentally while in the possession of the defendant, and that Gregory Shipp was in the heat of passion and that in that Gregory Shipp’s actions resulted from provocation, then the homicide was excusable.
If you do find that the shooting was accidental and thus excusable, then you shall find for the defendant and return a verdict of NOT GUILTY.

¶ 26. The evidence in this case did not support a finding of heat of passion manslaughter. The knife was found under the victim’s body, unopened. Shipp’s own testimony was that he accidentally shot George when he was trying to run from George’s car. The State’s witnesses all testified that the argument between George and Shipp was one-sided. George refused to get out of his car, and he even started honking his horn for help when Shipp approached him. The evidence indicated George did not provoke or attack Shipp. Because it appears from the evidence that the defense raised by Shipp at trial was accident,

there is no reasonable factual scenario under which the jury may reasonably have concluded, [under the deliberate design instruction], that [the defendant’s] premeditated design to kill, if any, existed in his mind but for an instant before the fatal act. On the prosecution’s interpretation of the evidence, the premeditated or deliberate design existed well before the shooting. On the defense theory, it never existed. In this context, we declare the granting of [the deliberate design instruction] as harmless error. Nicolaou v. State, 534 So.2d 168, 173 (Miss.1988).

Blanks v. State, 542 So.2d 222, 227 (Miss.1989). See also Catchings v. State, 684 So.2d 591, 595 (Miss.1996) (Defense raised at trial was self-defense; therefore, the manslaughter instruction was not warranted and the giving of the deliberate design instruction- was harmless error). Based on the record before us today, and based on the respective theories of the prosecution and the defendant, the trial judge appropriately instructed the jury.

¶ 27. Furthermore, as to the sufficiency of the evidence produced at trial, viewed in the light most favorable to the State, the evidence clearly supports the trial court’s submission of the case to the jury and refusal to disturb the verdict. Tonya Polk testified that Shipp stepped back, raised his gun and then fired at George. Several witnesses overheard Shipp threaten George if he returned to Hailey Road. Dr. Hayne’s testimony was consistent with Shipp standing over George and firing his weapon. Shipp’s testimony to the contrary merely created an issue of fact for the jury.

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury’s verdict is quite limited. We proceed by considering all of the evidence-not just that supporting the case for the prosecution-in the light most consistent with the verdict. We give [the] prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is- in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb. See, e.g., Gavin v. State, 473 So.2d 952, 956 (Miss.1985); May v. State, 460 So.2d 778, 781 (Miss.1984).

McFee v. State, 511 So.2d 130, 133-34 (Miss.1987). See also Smith v. State, 802 So.2d 82, 85 (Miss.2001); Mangum v. State, 762 So.2d 337, 341 (Miss.2000); Garrett v. State, 549 So.2d 1325, 1331 (Miss.1989). Based on the above standard, this Court finds substantial evidence in the record to support a verdict of guilty. Therefore, this assignment of error is without merit.

CONCLUSION

¶ 28. The trial court properly denied Shipp’s original motion for a directed ver.dict which was raised at the close of the State’s case in chief. The trial court was also correct in denying the renewed motion for a directed verdict and submitting the case to the jury. After the jury returned a verdict of guilty, which was supported by substantial evidence, the trial court properly denied Shipp’s motion for a JNOV or, in the alternative, a new trial. Because the State presented a prima facie case of murder and because the verdict of the jury was supported by substantial evidence, we affirm the judgment of the circuit court.

¶ 29. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

PITTMAN, C.J., McRAE and SMITH, P.JJ., WALLER, COBB, DIAZ, EASLEY and GRAVES, JJ., CONCUR.

      . Gregory Shipp was married to Marilyn's sister, Rhonda Vanessa Shipp.


text:
    Julia Gates Hines MABUS v. Raymond Edwin MABUS, Jr.
    No. 2002-CA-00726-SCT.
    Supreme Court of Mississippi.
    June 5, 2003.

      M. Judith Barnett, Sharon Patterson Thibodeaux, Jackson, attorneys for appellant.
    Richard C. Roberts, III, Robert W. King, Jackson, attorneys for appellee.
    Before SMITH, P.J., CARLSON and GRAVES, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. Aggrieved by the chancellor’s denial of both her motion to modify custody and her petition for rehearing, Julia Gates Hines Mabus (Julie) appeals to this Court arguing that the chancellor erred in failing to grant her joint legal custody of her two minor children. Because the chancellor was correct in finding Julie did not meet her burden of proving a material change in circumstances in the custodial home subsequent to the chancellor’s last ruling, we affirm the judgment of the Chancery Court of the First Judicial District of Hinds County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. Raymond Edwin Mabus, Jr. (Ray) was granted a divorce from Julie Mabus on the ground of adultery on March 24, 2000. Pursuant to an order which had bifurcated the proceedings, the chancery court tried the remaining issues, including the issue involving child custody. On August 8, 2000, the chancellor entered a judgment awarding legal custody of the parties’ minor children to Ray and awarding alternating periods of physical custody to the parties pursuant to a detailed schedule set forth in the judgment.

¶ 3. Julie appealed the chancellor’s judgment regarding custody of the children. The ruling of the chancellor was affirmed by this Court. Mabus v. Mabus, No.2001CA-00381-SCT, — So.2d -, 2003 WL 327669 (Miss. Feb.13, 2003) (Mabus I).

¶ 4. On May 11, 2001, while Mabus I was pending on appeal to this Court, Julie filed in the trial court a Motion for Modification requesting that she be awarded sole legal and physical custody of the minor children, or in the alternative, joint legal custody and sole physical custody. On May 24, 2001, Julie filed her Amended Motion for Modification, and on January 21, 2002, Julie filed her Second Amended Petition for Citation of Contempt and Modification of Former Judgment. In her Second Amended Motion, Julie set forth seventeen (17) allegations which she asserted supported her request for modification of legal and physical custody of the children. Ray filed his Response to Plaintiffs Second Amended Petition for Citation for Contempt and Modification of Former Judgment along with his Counter Petition for Modification of Former Judgment, Counter Petition for Citation for Contempt and Motion for Clarification on February 14, 2002.

¶ 5. A hearing was conducted on February 25 and 26, 2002, regarding Julie’s motion to modify custody, Chancellor Stuart Robinson, presiding. A number of witnesses were called by Julie, including Elisabeth and Annie, the minor children of the parties, and Ray, adversely. At the conclusion of Julie’s case in chief, Chancellor Robinson granted Ray’s Miss. R. Civ. P. 41(b) motion to dismiss. The order was entered February 28, 2002.

¶ 6. Following the dismissal of Julie’s Motion for Modification and Petition for Citation for Contempt, and prior to proceeding on Ray’s Motion for Modification, the chancellor granted a recess to determine if the parties could agree to Ray’s proposed modification of the periods of physical custody of the children from alternating six month periods to alternating calendar months. After the chancellor was informed that the parties had evidently agreed on Ray’s proposed modified joint physical custody schedule, the agreed schedule was marked as an exhibit to the proceeding. The hearing was recessed and reconvened on February 28, 2002; however, by that time Julie had evidently changed her mind. Notwithstanding the fact that the proposed order was signed by neither Julie nor her attorney of record, the chancellor nevertheless entered an order adopting the modified joint physical custody schedule which had previously been supposedly agreed to by Ray and Julie and marked as an exhibit. Julie moved to withdraw the former agreement, alleging that she was distraught by the chancellor’s previous ruling dismissing her motion, and therefore, immediately after the chancellor’s dismissal of her motion, she was incapable of fully understanding the proposed modified physical custody schedule which was presented to her for consideration. Julie requested that the chancellor hear testimony regarding the proposed modification before he entered the order. After concluding that he had heard sufficient testimony during the hearing and finding that the proposed modification was agreed upon and accepted in open court, the chancellor denied Julie’s motion.

¶ 7. On March 11, 2002, M. Judith Barnett entered her appearance as Julie’s new attorney and contemporaneously filed a Petition for Rehearing on the Motion for Modification of Custody and entry of the Agreed Order regarding periods of physical custody of the children. On April 11, 2002, the Petition for Rehearing was argued before the chancellor. On April 18, 2002, the chancellor entered an order denying the petition, and Julie filed a timely appeal from that order entered.

DISCUSSION

¶ 8. In a case disputing child custody, the chancellor’s findings will not be reversed unless manifestly wrong, clearly erroneous, or the proper legal standard was not applied. Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002). See also Wright v. Stanley, 700 So.2d 274, 280 (Miss.1997); Williams v. Williams, 656 So.2d 325, 330 (Miss.1995). The burden of proof is on the movant to show by a pre- • ponderance of the evidence that a material change in circumstances has occurred in the custodial home. Riley v. Doerner, 677 So.2d 740, 743 (Miss.1996).

In the ordinary modification proceeding, the non-custodial party must prove: (1) that a substantial change in circumstances has transpired since issuance of the custody decree; (2) that this change adversely affects the child’s welfare; and (3) that the child’s best interests mandate a change of custody. Bubac v. Boston, 600 So.2d 951, 955 (Miss.1992).
In considering whether there has been such a change in circumstances, the totality of the circumstances should be considered. [Spain v. Holland, 483 So.2d 318, 320 (Miss.1986).] Even though under the totality of the circumstances a change has occurred, the court must separately and affirmatively determine that this change is one which adversely affects the children. Id.

Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997). Furthermore, it is well settled that the polestar consideration in any child custody matter is the best interest and welfare of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983).

¶ 9. As Ray correctly asserts, Julie’s brief did not include a statement of issues. However, Julie did list the following issue within her argument section:

The lower court erred in failing to grant appellee [sic] joint legal custody of her minor children when awarding her joint physical custody on the grounds that to do so without a finding of unfitness her [sic] fundamental right to parent her children has been violated.

¶ 10. Julie’s main contention which she brings before this Court is that by awarding joint physical custody of their minor children, the chancellor deemed Julie to be a fit person; therefore, the chancellor should be estopped from denying her joint legal custody of the children. Julie further contends that the only reason she was not granted joint legal custody of the children was because the means of communication between the parties were unacceptable by the chancellor.

¶ 11. Ray argues that according to Julie’s notice of appeal, the only two issues which may be raised in this appeal are the issues presented in the Petition for Rehearing which were (1) the Agreed Order entered on February 28, 2002, was not signed by Julie or her counsel of record and (2) the testimony presented at the hearing created a material change in circumstances in the custodial home which is adverse to the children since the entry of the last order. Ray contends because these two issues are not argued and are not supported by authority, the issues must be considered abandoned and waived.

¶ 12. Ray contends that rather than address the issues presented for review in her notice of appeal, Julie attempts a constitutional challenge of the statute which grants chancellors the authority to award legal custody of children solely to one parent while awarding significant periods of shared physical custody of children to both parents. Ray argues this constitutional challenge is barred by Julie’s failure to raise this issue in a pleading in chancery court, to give notice to the Attorney General pursuant to Miss. R. Civ. P. 24(d), and to serve a copy of her brief on the Attorney General pursuant to M.R.A.P. 44.

¶ 13. Ray asserts the arguments advanced by Julie on this appeal are directed to the original judgment entered by the chancellor awarding Ray sole legal custody of the couple’s minor children and shared physical custody of the children. Ray contends Julie’s arguments do not address the issues which were presented to and decided by the chancellor on her motion for modification.

¶ 14. Addressing the merits of Julie’s issue, without abandoning his procedural arguments, Ray argues that it is not the law in Mississippi that a chancellor must award joint child custody unless it finds the non-custodial parent to be unfit.

¶ 15. Because Julie argued to the chancellor on her motion for rehearing this same issue of the chancellor’s purported error in failing to award her joint legal custody of the children, she has preserved this issue for appeal. Therefore, we will address the issue on the merits.

¶ 16. Julie’s brief solely addresses whether the chancellor erred in failing to grant her joint legal custody of the children while on the other hand granting her joint physical custody. Julie cites Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), as authority for her argument that as a natural parent she has the right to parent her children and must be deemed unfit before she is denied custody. However, Troxel (natural parent v. grandparent) and Stanley (natural parent v. State), were cases regarding issues of custody between the natural parents and a third party, not between both natural parents.

¶ 17. In custody disputes between natural parents and third parties, it is presumed that a child’s best interest is served by granting custody to the natural parent. Therefore, in order for the third party to overcome this presumption, the third party must show either that the natural parent has abandoned the child or that the natural parent is unfit. Sellers v. Sellers, 638 So.2d 481, 483 (Miss.1994). Julie also cites Thomas v. Purvis, 384 So.2d 610 (Miss.1980), which contradicts her position that the wrong standard was used to deny her legal custody.

The principle that there must be a material change of circumstances which adversely affects a child’s welfare before a custody decree may be modified only applies between parents of the child. The correct application of the law as between grandparents (also other persons) and parents is stated in Rodgers v. Rodgers, [274 So.2d 671 (Miss.1973) ], viz, the parent is entitled to custody of the child unless he/she has abandoned the child or is unfit to have custody, keeping in mind the best interest of the child.

Thomas, 384 So.2d at 612-13 (emphasis added).

¶ 18. Julie also argues the chancellor failed to conduct an Albright analysis to show that she is an unfit person. This Court addressed the issue of child custody in Mabus I and found that the chancellor did not abuse his discretion by awarding sole legal custody of the couple’s minor children to Ray and joint physical custody to both Julie and Ray. — So. 2d -, 2003 WL 327669 (Miss.)^ 38 through ¶ 52, inclusive). Julie fails to discuss what she perceives to be a material change in circumstances since the chancellor’s last ruling because she focuses on the standard of being a fit person. As the statute clearly states, the chancellor may award sole legal custody to one parent while awarding joint physical custody to both parents. Miss.Code Ann. § 93-5-24 (Supp.2002) states in pertinent part:

(1) Custody shall be awarded as follows according to the best interests of the child:
(a) Physical and legal custody to both parents jointly pursuant to subsections 2 through 7.
(b) Physical custody to both parents jointly pursuant to subsections 2 through 7 and legal custody to either parent.
(c) Legal custody to both parents jointly pursuant to subsections 2 through 7 and physical custody to either parent.
(d) Physical and legal custody to either parent.
(2) Joint custody may be awarded where irreconcilable differences is the ground for divorce, in the discretion of the court, upon application of both parents.
(7) There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.

(emphasis added).

¶ 19. The burden is on Julie to prove a material change in circumstances has occurred in the custodial home in order for this Court to reverse the chancellor’s original child custody order. During the hearing on Julie’s motion to modify custody, Julie attempted to present evidence in seventeen (17) different areas which would, taken together, amount to a material change in circumstances. After hearing all of the evidence, the chancellor found Julie failed to meet her burden of proving a material change in circumstances.

¶20. Now Julie is arguing the chancellor applied the wrong standard because he failed to conduct an Albright analysis to show that Julie was an unfit parent. As stated above, this is the wrong standard. As the Court of Appeals has correctly held, in a modification hearing, the chancellor will only apply the Albright factors after the non-custodial parent has proven a material change in circumstances. McGehee v. Upchurch, 733 So.2d 364, 369 (Miss.Ct.App.1999).

We do not reach Mr. McCracking’s various complaints with the criteria for determining custody set out in Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). In a custody modification proceeding, the question of which parent will better serve the welfare of the children as custodial parent is not reached unless the chancellor has previously found a material change in circumstance detrimental to the child’s best interest. McGehee v. Upchurch, 733 So.2d 364, 369 (Miss.Ct.App.1999). Once such a change of circumstance has been found, the factors in Albright v. Albright ought to play a significant role in the chancellor’s ultimate determination of a suitable custody arrangement. However, by failing to prove a change in circumstance detrimental to the children’s best interests, Mr. McCracking’s case fell short of the point where such issues could be considered by the chancellor.

McCracking v. McCracking, 776 So.2d 691, 694 (Miss.Ct.App.2000).

¶ 21. Because Julie failed to meet her burden of proving a material change in circumstances, the chancellor did not abuse his discretion in denying her request for modification of child custody or her request for a rehearing. As stated previously, Miss.Code Ann. § 98-5-24 provides chancellors the authority to grant sole legal custody to one parent while granting joint physical custody to both parents. The required burden in child custody disputes between natural parents is proving a material change in circumstances, not proving one parent to be unfit. Therefore, the chancellor did not err in his original award of child custody.

CONCLUSION

¶ 22. Pursuant to Miss.Code Ann. § 93-5-24, a chancellor may award sole legal custody of children to one parent and joint physical custody to both parents. Because the material change in circumstances burden was not met, the chancellor was correct in denying the request to modify the original child custody order. We, therefore, affirm the judgment of the chancery court.

¶ 23. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ, EASLEY AND GRAVES, JJ„ CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.

      . Although Julie's Petition for Citation of Contempt was denied by the chancellor, she is not presenting that ruling for review in this appeal.

      . Julie and Ray communicate with each other only by facsimile or handwritten notes.

      . The Amendment Notes under Miss.Code Ann. § 93-5-24 (Supp.2002) state that "[t]he 2000 amendment substituted ‘shall be awarded' for 'may be awarded' in (1); inserted present (7) and redesignated former (7) as present (8).”


text:
    Donald Joe RICHARDSON v. SARA LEE CORPORATION.
    No. 2002-CA-01038-SCT.
    Supreme Court of Mississippi.
    June 5, 2003.

      Joseph E. Roberts, Jr., Jackson, for appellant.
    Forrest W. Stringfellow, Jackson, Robert J. Arnold, III, for appellee.
    Before SMITH, P.J., CARLSON and GRAVES, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. In this appeal from the Scott County Circuit Court, Donald Joe Richardson (“Richardson”) requests this Court to recognize a cause of action for intentional and/or negligent spoliation of evidence and to hold that his employer, Sara Lee Corporation (“Sara Lee”), is not immune under the exclusivity provision of the Workers’ Compensation Act, Miss.Code Ann. §§ 71-3-1 to -129 (Rev.2000 & Supp.2002). For the reasons hereinafter discussed, we decline Richardson’s invitation to recognize such a cause of action and therefore affirm the trial court’s grant of Sara Lee’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. Because this issue is dispositive, there is no need to address the second issue on appeal.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On or about October 23, 1993, Richardson sustained an on-the-job injury during his employment with Sara Lee. While he was operating a Hyster Orderpicker, manufactured by NACCO Material Group Inc. and/or Hyster Company, the lift on the Orderpicker fell causing injuries to Richardson’s leg, foot, and ankle. A settlement of Richardson’s workers’ compensation claim was approved by the Mississippi Workers’ Compensation Commission, and Richard executed a release dated June 27,1997, releasing Sara Lee from “any and all claims” he may have “on account of, arising out of, or connected with” the on-the-job injury.

¶ 3. Prior to the settlement of the workers’ compensation claim, Richardson, in 1996, filed suit alleging negligent design, manufacture, and distribution of the Or-derpicker against NACCO Materials Handling Group, Inc. and/or Hyster Company in the Circuit Court of Smith County, Mississippi. During the course of litigation, a subpoena duces tecum was served upon Sara Lee requesting documentation concerning the whereabouts of the Orderpicker. On July 31, 1996, Sara Lee responded to the service of the subpoena duces tecum by stating that it had disposed of the Or-derpicker. Richardson testified in his deposition of May of 1997 that he knew that Sara Lee no longer had the Orderpicker, but did not know when it disposed of it. Subsequently, that suit was dismissed on May 25, 1999, pursuant to an Agreed Order Granting Summary Judgment, acknowledging that the Orderpicker in question had been destroyed, and therefore Richardson would not be able to prove the requisite elements of his case.

¶4. The instant litigation was filed on March 7, 2000, against Sara Lee alleging negligent spoliation of evidence. Sara Lee’s Motion to Dismiss or, in the Alternative, Motion For Summary Judgment was granted by the circuit court on May 21, 2002. Richardson has raised two issues on appeal: (1) whether a separate cause of action against third parties for negligent and/or intentional spoliation of evidence should be recognized by the Mississippi courts, and (2) whether a claim for intentional and/or negligent destruction of evidence is a work-related injury barred by the exclusive remedy provision of the Mississippi Workers’ Compensation Act.

STANDARD OF REVIEW

¶ 5. It is not clear whether the trial court granted Sara Lee’s motion to dismiss or motion for summary judgment. The final judgment indicates that the “plaintiff has not asserted any cause of action which is recognized by Mississippi law.” There is no indication that this judgment is based upon Miss. R. Civ. P. 12(b)(6), 12(c), or 56. “The standard of review for all three are similar in that the non-moving party is favored in the review of the facts.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209 (Miss.2001). Because a motion to dismiss under Miss. R. Civ. P. 12(b)(6) raises an issue of law, this Court will review such motions de novo. Id. at 1210(¶ 7). A motion for judgment on the pleadings under Miss. R. Civ. P. 12(c) serves a similar function to Rule 12(b)(6) which we also review de novo. Id. (¶ 8). As to the review of a trial court’s granting of a motion for summary judgment under Rule 56, we employ a de novo standard of review and the motion should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 1209(¶ 6) (citations omitted). See also Brown v. Credit Ctr., Inc., 444 So.2d 358, 362-65 (Miss.1983) and its progeny. If a trial judge is confronted with a Rule 12(c) motion to dismiss and considers matters outside the pleadings en route to ruling on that motion, the motion shall be treated as a Rule 56 motion. See Miss. R. Civ. P. 12(c).

ANALYSIS

I. WHETHER A SEPARATE CAUSE OF ACTION AGAINST THIRD PARTIES FOR NEGLIGENT AND/OR INTENTIONAL SPOLIATION OF EVIDENCE SHOULD BE RECOGNIZED BY THE MISSISSIPPI COURTS?

¶ 6. Richardson urges this Court to adopt and recognize a tort claim for the spoliation of evidence, whether that spoliation be.negligent or intentional. Alternatively, Richardson urges this Court to hold that Sara Lee is liable under a general theory of negligence. In all fairness, we should state here that after the notice of appeal had been filed in this case, and after the Supreme Court Clerk’s establishment of the briefing schedule as set out in her letter of October 14, 2002, this Court had the opportunity to consider a claim for intentional spoliation of evidence. Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124 (Miss.2002). In Dowdle, decided on December 5, 2002, this Court refused to “recognize a separate tort for intentional spoliation of evidence against both first and third party spoliators.” Id. at 1135(¶ 28). Inasmuch as we were requested in Dowdle to consider only a claim for intentional spoliation of evidence, “the question of whether we will recognize a separate cause of action for negligent spoliation of evidence we leave for another day.” Id. at 1127(¶ 7). Today, we are confronted with that question. In writing for the Court in Dowdle, Presiding Justice Smith provided an overview of this theory’s origin in California and how different jurisdictions have dealt with both intentional and negligent spoliation of evidence. See generally id. at 1133-35. The reasoning of this Court (and that of other jurisdictions) in refusing to recognize a separate tort of intentional spoliation included infringement on the rights of property owners, endless litigation, and uncertainty of the fact of harm. This Court held that:

Nontort remedies for spoliation are sufficient in the vast majority of cases, and certainly, as the California courts have learned after 14 years of experience with this tort, any benefits obtained by recognizing the spoliation tort are outweighed by the burdens imposed.

Id. at 1135(¶ 30). The Dowdle reasoning in refusing to recognize an independent cause of action for intentional spoliation of evidence gains even more force when applied to the issue of whether to recognize an independent cause of action for negligent spoliation of evidence. Accordingly, we decline Richardson’s invitation to recognize this independent tort.

¶ 7. Under his alternative theory of negligence, Richardson claims that the duty to preserve the Orderpicker was created upon receipt of a letter from Richardson’s counsel to Sara Lee, dated November 14, 1994, requesting an opportunity to inspect the Orderpicker. However, Richardson fails to identify any statute or case that placed a duty on Sara Lee to preserve the Orderpicker. “The failure to cite any authority can be treated as a procedural bar, and this Court is under no obligation to consider the assignments.” Smith v. Dorsey, 599 So.2d 529, 532 (Miss.1992).

¶ 8. Notwithstanding the procedural bar, this Court is not persuaded that the November 14, 1994, letter was sufficient to place an affirmative duty on Sara Lee to preserve the Orderpicker. There is nothing further in the record addressed to Sara Lee concerning the Orderpicker until the June 18, 1996, Subpoena Duces Tecum, nearly nineteen months later. We find this letter insufficient to establish a duty by Sara Lee to preserve the Orderpicker for use in litigation by Richardson.

¶ 9. For these reasons, this issue is without merit, and the trial court’s actions were thus proper.

II. WHETHER A CLAIM FOR INTENTIONAL AND/OR NEGLIGENT DESTRUCTION OF EVIDENCE IS A WORK RELATED INJURY BARRED BY THE EXCLUSIVE REMEDY PROVISION OF THE MISSISSIPPI WORKERS’ COMPENSATION ACT.

¶ 10. Because the decision on the first issue is dispositive, there is no need to address this second issue.

CONCLUSION

¶ 11. We affirm the trial court’s grant of Sara Lee’s Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. In Dowdle, this Court refused to recognize a separate tort for intentional spoliation of evidence against either first or third party spoliators, and this Court’s reasoning in Dowdle certainly undergirds our decision today in refusing to recognize a separate tort for negligent spoliation of evidence. We further hold that under a general negligence theory, Sara Lee was not under any duty to preserve the Order-picker for the benefit of any litigation in which Richardson may be involved.

¶ 12. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND GRAVES, JJ„ CONCUR. DIAZ AND EASLEY, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J, NOT PARTICIPATING.


author: DIAZ, Justice,

text:
    Robert Lee TOWNSEND v. STATE of Mississippi.
    Nos. 95-KA-00234-SCT, 2002-KA-00247-SCT.
    Supreme Court of Mississippi.
    June 5, 2003.

      Cheryl Ann Webster, Clarksdale, Darnell Felton, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris, Jr., attorney for appel-lee.
    Before McRAE, P.J., DIAZ and CARLSON, JJ.
   DIAZ, Justice,

for the Court.

¶ 1. Robert Lee Townsend (Townsend) was convicted in the Circuit Court of Coa-homa County, Honorable Elzy Jonathan Smith, Jr., Circuit Judge, presiding, of the crimes of kidnapping, capital rape, and sexual battery. He was sentenced to serve consecutive terms of imprisonment of thirty years, life, and thirty years. Aggrieved by the decision, he appealed.

¶2. Townsend’s appellate counsel, Cheryl Ann Webster (Webster), has filed a brief pursuant to Brown v. State, 799 So.2d 870 (Miss.2001), which was in turn based on Turner v. State, 818 So.2d 1186 (Miss.2001). Webster states as follows:

Appellant’s court appointed appeal lawyer, Cheryl Ann Webster, has determined that the defendant, Robert Lee Townsend is unlikely to prevail on appeal; further that I have scoured the record thoroughly and asked Mr. Thomas Pearson, who is not appointed to represent Mr. Townsend but who is a member in good standing with the Ms. Bar Association, to do the same. It is my considered opinion after conferring with Mr. Pearson that the error in this trial does not rise to the level of reversible error and therefore the appeal of this case would be frivolous.

Webster then lists the following five errors which might support an appeal:

I. Denial of the Motion for Authority to Employ nonlegal assistance at Public expense.
II. The Court admitted illegal testimony by and through Andrew Thompson, Sheriff, over the Defendant’s objections in violation of the Rules of Evidence.
III. The Court admitted into evidence certain illegal items as exhibits particularly State’s exhibits 7, 19, 29, 22, and 31 in violation of MRC 901.
IV. The Court admitted into evidence certain illegal testimony concerning State’s exhibit # 1 and State’s exhibit #3 in violation of MRC 901.
V. The Court admitted into evidence certain illegal items as exhibits particularly State’s exhibit # 1 and State’s exhibit #3 in violation of MRC 901.

Webster also refers to a letter to Townsend in which she informs him of his “right to file a pro se supplemental brief.” As of this date, no filings from Townsend have been received.

¶ 3. Webster concludes that she has complied with “the procedure outlined in Brown v. State, 799 So.2d 870 (Miss.2001), with the exception of having another attorney independently review the record for his considered opinion.”

¶4. The State submits that while defense counsel has complied with this Court’s holding in Turner, the issue on appeal is whether the procedure in Turner meets minimum constitutional requirements.

¶ 5. After having carefully reviewed the entire record in this case, this Court con-eludes that no reversible error occurred during the trial. Thus, we affirm.

FACTS

¶ 6. On the night of December 10, 1994, the victim, a ten-year old girl, was helping her grandparents at their business in Coa-homa County when Townsend came in and made a purchase. He took a liking to the victim and had a conversation with her, during which he told her to come outside in five minutes because he needed to tell her something. Townsend then left. Five minutes later, the victim went outside. Townsend grabbed her and, despite her protests, pulled her into his truck. Townsend then drove to his home in Clarksdale. He took the victim inside and physically assaulted her when she refused to put on some men’s clothes he gave her. After telling her that he would feed her to the animals and birds if she resisted Townsend put on a “nasty” movie, forced the victim onto the bed, and removed his clothes. He then sexually assaulted her several different times and ways. Upon being interrupted by someone knocking on the door, Townsend hurriedly got up and turned the blood-stained mattress over. After dressing, he and the victim got back into his truck. Before letting her out two blocks from her cousin’s house, Townsend told the victim, “You’re my woman now,” and instructed her to fabricate a story to explain her absence.

¶ 7. The victim did not comply with Townsend’s instructions. She immediately told the whole story to her family and the Sheriff. Though bleeding and hurting, on the way to the hospital, the victim led officers to Townsend’s house. Her description of the interior and exterior of the house matched perfectly. Specifically, she described the vehicles outside the house, the lotion Townsend had used, the movie he had played, the knife he had held to her throat, the clothes he had worn (down to his snake-skin boots), the particular sheets and pillow cases, and the mattress with the blood on the reverse side. The victim later selected Townsend’s picture from a photographic lineup and, at trial, identified him as her assailant.

¶ 8. Dr. Charles D. Cesare, a gynecologist, treated the victim at the emergency room. He testified at trial that the injuries the victim received were consistent with a child having been penetrated by an adult male organ. The victim had a significant amount of bleeding deep in her vagina. Tests revealed the presence of seminal fluid in the victim’s vaginal and anal cavities. According to Dr. Cesare, “[sjomething forceably entered and dilated and tore the delicate tissues of the vaginal tube and of the rectum.” There was also bruising to her neck, as well as an injury to the neck “where a sharp object or either a scratch had occurred,” and “[t]he back of her head had a little bit of swelling, where it looks like the hair maybe had been traumatized and swollen, about half a centimeter.” Dr. Cesare performed surgery on the victim to suture her wounds, and the child remained in the hospital for three to four days.

ANALYSIS

I. DENIAL OF THE MOTION FOR AUTHORITY TO EMPLOY NONLEGAL ASSISTANCE AT PUBLIC EXPENSE.

¶ 9. The gist of Townsend’s motion to this effect is that his attorneys needed assistance in examining the numerous items of physical and documentary evidence and, because they were not experienced with the medical examinations and procedures for identifying rape evidence, they needed assistance in that regard as well. Counsel argued:

In order for the presentation of a proper defense and effective assistance of counsel, Defendant Robert Lee Townsend [should] be authorized to employ at the expense of Coahoma County, Mississippi a private investigator, a serologist, a gynecologist with experience in treating rape victims, and a physician with experience in obtaining rape evidence [and] physical evidence from a male accused of rape.

No order of denial is included in the clerk’s papers or mentioned anywhere in the record as far as this Court can find; however, Townsend received no such assistance.

¶ 10. In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court, delineated three factors to be utilized in determining whether a defendant is entitled to the assistance of an expert witness to assist in the defense of his case. Richardson v. State, 767 So.2d 195, 199 (¶ 19) (Miss.2000). Those factors are: “1) the private interest that will be affected by the action of the State; 2) the governmental interest that will be affected if the safeguard is to be provided; and 3) the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.” Id.

¶ 11. As the Court recognized in Ake, the private interest at stake is an individual’s liberty. 470 U.S. at 78,105 S.Ct. 1087. Bearing in mind the State’s duty to ensure “fair and accurate adjudication of criminal cases,” the only significant interest that the Supreme Court found for the State is its economic interest. Id. at 78-79, 105 S.Ct. 1087. The trial court in the instant case recognized that the only crime more serious than the one leveled against Townsend is when the defendant faces the death penalty. The trial judge also recognized that Townsend’s attorneys really had no defense other than to cross-examine the State’s witnesses. Because of this, the trial judge granted Townsend’s counsel wide latitude on cross-examination of the State’s witnesses. Indeed, the trial judge told Townsend’s counsel “you can go on forever.”

¶ 12. “The trial court’s decision on a motion for funding for consultants or investigators for an indigent defendant is reviewed for abuse of discretion.” Grayson v. State, 806 So.2d 241, 254 (Miss.2001) (citing Hansen v. State, 592 So.2d 114, 125 (Miss.1991)). The State does not have a constitutional obligation to provide indigent defendants with the costs of expert assistance upon every demand. Johnson v. State, 476 So.2d 1195, 1202 (Miss.1985).

¶ 13. However, this Court does recognize that expert assistance should be paid for in certain cases and will address the need for support on a case-by-case basis to determine whether a defendant is prejudiced by the denial of expert assistance to the extent that he or she is denied a fair trial. Id. In determining whether a defendant was denied a fair trial because of failure to appoint or allow funds for an expert, some of the factors to consider are whether and to what degree the defendant had access to the State’s experts, whether the defendant had the opportunity to cross-examine those experts, and lack of prejudice or incompetence of the State’s experts. Fisher v. City of Eupora, 587 So.2d 878, 883 (Miss.1991). This Court has also considered to what extent the State’s case depends upon the State’s expert, Tubbs v. State, 402 So.2d 830, 836 (Miss.1981), and the risk of error in resolving the issue for which the expert is requested. Johnson v. State, 529 So.2d 577, 592 (Miss.1988).

¶ 14. The trial court did not abuse its discretion in refusing to grant Townsend’s motion for assistance. As the above authority makes clear, the State of Mississippi does not summarily grant these requests. They must be necessary to preserve the defendant’s due process guarantees. In the case at bar, an expert would have been of little assistance to Townsend because the evidence against him, irrespective of that testified to by experts, was overwhelming. This evidence included, inter alia, positive identifications of Townsend by his victim, who, immediately following the crime, described his person, his vehicle, his home, and all he had done to her. Her description of Townsend included, inter aha, his race and sex, his height and complection, his clothing (recovered by police from Townsend’s home), his hairstyle, and an unusual knot on the side of his head (which Townsend does have). Her description of Townsend’s home included, inter aha, the unusual method of entry used by Townsend. She then directed pohce to the scene of the crime, Townsend’s home. She testified at trial consistent with ah she had previously told po-hce.

¶ 15. The victim’s mother testified to the extent of the victim’s injuries as she observed them. This description included an account of the victim bleeding heavily from her vagina and rectum, and cuts and bruises on her face and neck. The Sheriff and medical personnel also testified to these injuries as they observed them, and photographs depicting the victim’s injuries were admitted through the Sheriffs testimony. The Sheriff described and identified those items seized at Townsend’s home that had been used in the crime. Photographs of these items, as well as the items themselves, which had been described by the victim prior to their seizure, were introduced into evidence. The victim’s mother also testified that Townsend was a customer of the store and that he remembered the victim from when she was a baby. The Sheriff testified that his investigation had revealed that Townsend gave the victim a $1 tip and a $5 tip from the sale of two hamburgers and a carton of Jungle Juice. This money was recovered from the business and placed into evidence. A carton of Jungle Juice and some wrapping paper indicative of the type used to wrap hamburgers at the business were found at Townsend’s home and introduced into evidence.

¶ 16. Given this evidence, expert assistance in the areas requested by Townsend would have been of little benefit to his defense. The other evidence against him, irrespective of that testified to by experts, was insurmountable. Thus, any error in refusing to provide Townsend expert assistance was harmless beyond a reasonable doubt.

¶ 17. This issue is without merit.

II. WHETHER THE COURT ADMITTED ILLEGAL TESTIMONY BY AND THROUGH ANDREW THOMPSON, SHERIFF, OVER THE DEFENDANT’S OBJECTIONS IN VIOLATION OF THE RULES OF EVIDENCE.

¶ 18. “Admission of testimony is subject only to an abuse of discretion review.” Tatum v. Barrentine, 797 So.2d 223, 230 (Miss.2001) (citing Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997)).

¶ 19. The defense objected several times during the direct examination of Sheriff Thompson, in response to the Sheriffs recounting of statements made to him by the victim. A bench conference ensued. Following it, the district attorney moved on to another subject. This Court finds no reversible error in this exchange.

¶ 20. Later, defense counsel objected to the Sheriff testifying to the significance of finding at the defendant’s house, inter alia, some wrappers that once contained hamburgers. The Sheriff testified that “the significance of this was that the suspect had been to [the grandparents’ business] and ordered two hamburgers.” Defense counsel objected to this testimony, unless the Sheriff was speaking from personal knowledge. The trial judge said, “I think you’re going in an improper way about it, Counsel.” The parties arid the judge went into chambers, and the trial judge instructed the State not to allow the witness to make such identifications, stating, however, that it would be proper to say that the investigation revealed these things. Thereafter, the trial judge offered to give a curative instruction to the jury. Defense counsel refused. No reversible error can be predicated on this ruling.

¶21. This Court has thoroughly reviewed the entire testimony of Sheriff Thompson and has found no reversible error.

III. WHETHER THE COURT ADMITTED INTO EVIDENCE CERTAIN ILLEGAL ITEMS AS EXHIBITS PARTICULARLY STATE’S EXHIBITS 7, 19, 29, 22, AND 31 IN VIOLATION OF MRE 901.

¶22. The exhibits submitted by counsel as possibly erroneous are as follows: exhibit 7 (lotion), exhibit 19 (samples extracted from Foster’s mattress), exhibit 29, exhibit 22 (laundry bag; white towel; striped sheet), and exhibit 31.

¶ 23. Mississippi Rule of Evidence 901 deals with authentication and identification. It states, in pertinent part, as follows:

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

Miss. R. Evid. 901(a). The rule then lists, by way of illustration only, examples of authentication or identification conforming with the requirements of the rule. Two of the specifically provided examples squarely apply to the exhibits in this case, to-wit, (b)(1) testimony of a witness with knowledge, and (b)(4) distinctive characteristics and the like.

¶ 24. “Admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” Sumrall v. Miss. Power Co., 693 So.2d 359, 365 (Miss.1997). “For a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party.” Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995).

¶ 25. The exhibits mentioned were not erroneously admitted as they were introduced following sufficient foundational testimony by both the Sheriff and the victim. Thus, no abuse of discretion occurred. Moreover, no substantial right of Townsend was adversely affected by the admission of this evidence.

¶ 26. This assignment is without merit.

IV. WHETHER THE COURT ADMITTED INTO EVIDENCE CERTAIN ILLEGAL TESTIMONY CONCERNING STATE’S EXHIBIT #1 AND STATE’S EXHIBIT #3 IN VIOLATION OF MRE 901.

V. WHETHER THE COURT ADMITTED INTO EVIDENCE CERTAIN ILLEGAL ITEMS AS EXHIBITS PARTICULARLY STATE’S EXHIBIT #1 AND STATE’S EXHIBIT # 3 IN VIOLATION OF MRE 901.

¶ 27. State’s exhibit one was the victim’s sexual assault kit. Exhibit three was the defendant’s sexual assault Mt. These exhibits established that the victim had been raped by someone with the same blood type as the defendant. The defense objected to the introduction of both these exhibits on chain of custody grounds. The defense also objected because when Townsend’s sexual assault kit was opened at trial, it contained underwear that was not identified as being in the bag at the time the kit was sealed at the hospital.

¶ 28. After hearing arguments on the objections, the trial judge overruled them and admitted both sexual assault kits into evidence, with the exception of the underwear, which he excluded and instructed the jury to disregard.

¶ 29. It is well settled that when the trial judge sustains an objection to testimony and directs the jury to disregard it, prejudicial error does not result. Wetz v. State, 503 So.2d 803, 810 (Miss.1987); May v. State, 460 So.2d 778, 783 (Miss.1984); Shelby v. State, 402 So.2d 338, 340 (Miss.1981). “Admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.” Summit, 693 So.2d at 365.

¶ 30. This Court finds no reversible error in these rulings.

VI.THE STATE SUBMITS THAT WHILE DEFENSE COUNSEL HAS COMPLIED WITH THIS COURT’S HOLDING IN TURNER V. STATE, THE ISSUE ON APPEAL IS WHETHER THE PROCEDURE IN TURNER MEETS MINIMUM CONSTITUTIONAL REQUIREMENTS.

¶ 31. The Turner v. State, 818 So.2d 1186, 1189 (Miss.2001), requirements are that appellate counsel must:

(1) determine that the defendant is “unlikely to prevail on appeal.” Smith v. Robbins, 528 U.S. 259, 279, 120 S.Ct. 746, 761, 145 L.Ed.2d 756;
(2) file a brief indicating “that he scoured the record thoroughly.” Hughes v. Booker, 220 F.3d 346, 351 (5th Cir.2000), and “referring to anything in the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, and
(3) advise the client of his right to file a pro se supplemental brief. People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, 1073.

After these three steps have been taken, the appellate court must then “make its own independent review of the record.” Id.

¶ 32. The State previously asked this Court to revisit this issue in Evans v. State, 813 So.2d 724 (Miss.2002). This Court in Evans refrained from addressing this issue based on the premise that both briefs submitted declared that the appeal was without merit, and the fact that no pro se brief was filed alleging any other error. Id. at 728. The facts are likewise in the present case. Additionally, in Evans, just as in the case sub judice, neither the appellant’s counsel nor the appellant addressed the State’s suggestions to modify Turner. Id. Evans was handed down by this Court on April 11, 2002. Id. Under these circumstances, this Court will not revisit this issue at this time.

CONCLUSION

¶33. After a thorough review of the record, this Court has found nothing to support an appeal. Thus, for the foregoing reasons, we affirm the verdict and sentence below and refrain from extending the Turner requirements.

¶ 34. COUNT I: CONVICTION OF KIDNAPPING AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF CAPITAL RAPE AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT PAROLE, AFFIRMED. COUNT III: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT PAROLE, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT I. SENTENCE IN COUNT III SHALL RUN CONSECUTIVELY WITH THE SENTENCE IN COUNT II.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.

      . Townsend's route to this appeal was somewhat circuitous. His original attorney filed a late notice of appeal which was subsequently dismissed. The same attorney later failed to file a timely post-conviction motion. Eventually, this Court granted a motion which allowed Townsend’s new counsel to file a new motion for new trial. Said motion was filed and denied, and this appeal followed.

      . Neither parly addresses the merits of these possible errors.

      . She told police that Townsend gained entry to his home by reaching through a broken pane of glass in the door and unlocking the door. The investigation revealed that this is the way Townsend regularly entered his home.

      . As were photographs the victim examined while attempting to identify her assailant. She successfully identified Townsend out of a number of other photographs. We find nothing questionable about this pre-trial identification or the victim's subsequent at-trial identification of Townsend.

      . Including, inter alia: a pornographic movie entitled "Dracula, Love Never Dies;” hot oil lotion; Townsend’s clothing and snakeskin boots; black leather gloves; a razor type knife; bloodstained sheets, pillow, and towel; a bloodstained mattress (that had been flipped over prior to the police search); and an adult male robe.

      . Though counsel for the defendant cites to MRC 901, this Court assumes she intended to cite to MRE 901. Thus, the discussion in this assignment, and those that follow, focuses on that rule.

      . This Court has been unable to determine what is contained in exhibits 29 and 31. They are not listed in the clerk’s papers or the court reporter’s exhibit sheet, nor are they included in the exhibits sent to this Court. Their admission was not asserted as error in Townsend's original direct appeal brief. In any event, this Court concludes that because of the known overwhelming evidence of Townsend’s guilt, their admission, if erroneous, was harmless beyond a reasonable doubt.