author: EASLEY, Justice,

text:
    Glenda MAY v. HARRISON COUNTY DEPARTMENT OF HUMAN SERVICES.
    No. 2003-CA-01109-SCT.
    Supreme Court of Mississippi.
    Aug. 5, 2004.
    Rehearing Denied Oct. 14, 2004.

      Michael W. Crosby, Gulfport, attorney for appellant.
    Katherine Jane Caldwell, Julia Ann Townsend, Jackson, attorneys for appellee.
    Before SMITH, C.J., EASLEY and RANDOLPH, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Glenda May (May) appeals the decision of the Harrison County Youth Court Judge Michael H. Ward (youth court) terminating her parental rights. The Harrison County Department of Human Services (DHS) filed an amended petition to terminate May’s parental rights on December 12, 2001. The youth court conducted its hearing on DHS’s request for termination of parental rights on January 30, 2002. On January 29, 2003, the youth court terminated May’s parental rights. May’s motion for reconsideration was denied by the youth court. May filed her notice of appeal to this Court.

FACTS

¶ 2. May and her husband, King May (King), had 3 children, 1 female and 2 males. In 1994, DHS conducted an investigation into May’s use of corporal punishment on her children including marks between her daughter’s legs made by a belt. In 1996, DHS again investigated allegations making a referral of neglect and abuse including marks on the face of one of her sons.

¶ 3. In 1998, new allegations of physical abuse were made to DHS regarding the minor children. According to the testimony of DHS social worker, Lori Harris (Harris), she investigated allegations of May’s suspected abuse and marks on the children identified in the transcript as H. and H.M. From the record, it appears that children H. and H.M. are May’s two male children. Harris testified that child H. told her that his mother had caused the marks and bruises. She stated that child H. had several bruises to the lower back and buttocks due to the spanking May administered. Harris further stated that when she spoke with May, she admitted that she had whipped H. with a board as punishment on the previous night. May entered into an informal agreement with DHS that she would no longer use corporal punishment on her children.

¶ 4. Again, DHS was involved with the minor children due to accusations that King, the children’s father, molested (raped) his daughter. On June 11, 1999, based on the molestation accusations, the youth court ordered the minor children taken into the custody of the DHS. May disputed that her husband, King, had molested their child even testifying on his behalf at his bond hearing. King was subsequently convicted. See May v. State, 806 So.2d 314 (Miss.Ct.App.2001).

¶ 5. May entered into a service agreement with the DHS which required her to complete parenting classes, attend counseling at Gulf Coast Mental Health (GCMH) and participate in DHS supervised visits with the minor children and a psychological evaluation. Even though May had complained about her counselor and was allowed to switch counselors, she had not completed her court ordered classes at GCMH by the date of the termination hearing. Besides not completing the counseling at GCMH, May continued to have visits and contacts with King. May had not filed for divorce at the time of the termination hearing.

¶ 6. On January 30, 2002, at the termination hearing, May for the first time acknowledged that she believed her daughter’s accusations that King had molested her. Until this time, May had stated that she did not believe the child’s accusations. In fact, May testified at King’s criminal trial on behalf of the defense regarding her daughter’s character. May, 806 So.2d at 318. The trial court did not prevent May from giving an opinion as to her daughter’s tendency to lie, but it ordered that the character testimony be in the form of reputation and not specific instances of conduct. Id.

¶ 7. King received a jury trial and was convicted of sexual battery. Id. King was sentenced to 20 years without parole or probation. Id. The Court of Appeals affirmed the conviction and the sentence. Id. King voluntarily submitted paperwork to surrender all his parental rights to the minor children.

¶ 8. The minor children were appointed a Guardian Ad Litem (GAL). The GAL recommended that an alternative to termination of parental rights, like durable legal custody, be considered by the youth court.

¶ 9. The youth court had a hearing on whether to terminate May’s parental rights. The youth court issued its order holding that May’s parental rights be terminated. The youth court denied May’s motion for reconsideration. May now appeals to this Court raising the following issues:

I. Whether the youth court erred in terminating her parental rights.

II. Whether the youth court erred in not considering durable legal custody as an alternative placement.

DISCUSSION

¶ 10. The burden of proof in order to establish a case for termination of parental rights is clear and convincing evidence. See Miss.Code Ann. § 93-15-109 (Supp 2003). However, on appeal, this Court’s standard of review of a youth court judgment is limited; we may reverse only if reasonable men could not have found as the youth court did beyond a reasonable doubt. In re S.B., 566 So.2d 1276, 1278 (Miss.1990) (quoting In re M.R.L., 488 So.2d 788, 790-91 (Miss.1986)). Where a trial judge sits without a jury, the trial court’s factual determinations will not be disturbed where the record contains substantial supporting evidence. The entire record must be examined and that evidence which supports or reasonably tends to support the findings of fact made by the trial judge together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact, must be accepted. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1265 (Miss.1987). In G.Q.A. v. Harrison County Dept. of Human Services, 771 So.2d 331, 334-35 (Miss.2000), we held that “a Family Court judgment concerning termination of parental rights will be reviewed under the same standard as a Chancery-Court judgment, which is clear and convincing evidence. See Miss.Code Ann. § 93-15-109 (Supp.1999).”

I. Termination of Parental Rights

¶ 11. When a child has been removed from the home of its natural parents and cannot be returned to that home within a reasonable length of time because returning to the home would be damaging to the child, Miss.Code Ann. § 93-15-103 (Supp.2003) provides, in pertinent part, the grounds for termination of parental rights:

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
(a) A parent has deserted without means of identification or abandoned a child as defined in Section 97-5-1, or
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
(c) A parent has been responsible for a series of abusive incidents concerning one or more children; or
(d)When the child has been in the care and custody of a licensed child caring agency or the Department of Human Services for at least one (1) year, that agency or the department has made diligent efforts to develop and implement a plan for return of the child to its parents, and:
(i) The parent has failed to exercise reasonable available visitation with the child; or
(ii) The parent, having agreed to a plan to effect placement of the child with the parent, fails to implement the plan so that the child caring agency is unable to return the child to said parent; or
(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody ...:
(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent; or
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment; or ...
(h) The child has been adjudicated to have been abused or neglected and custody has been transferred from the child’s parent(s) for placement pursuant to Section 43-15-13, and a court of competent jurisdiction has determined that reunification shall not be in the child’s best interest ...

(emphasis added).

¶ 12. Here, the removal of custody of the minor children by DHS occurred in 1999. At the time of the hearing on the termination of parental rights was held on January 30, 2002, May still had not completed the court-ordered counseling at GCMH. May supported her husband, King, in his criminal proceedings for the molestation of their 11 year old daughter. May testified at King’s bond hearing. More important, May testified at King’s criminal trial to discredit her daughter’s testimony as to the molestation. May testified that her daughter had a tendency to lie. Medical documents demonstrated that the child’s hymenal ring was no longer intact and that this was inconsistent with that of a girl her age. Furthermore, the child provided graphic detailed accounts and description of the molestation which occurred over an approximate 2 $ year span of time. However, May acknowledged that she only believed her daughter years later for the first at the termination of parental rights hearing.

¶ 13. May, herself, had a history with the DHS involving 3 separate incidents of misusing corporal punishment. This resulted in May entering into a service agreement before the molestation charges came to light.

¶ 14. May had continued to maintain contact with King while in prison. However, at the time of the hearing, she testified that she had since severed contact with King, and she stated that she planned to get a divorce. She testified that her most recent visit in January 2002 was to ask King for a divorce. Of course, the custody of the minor children was taken away in 1999. She admitted that she had not filed for divorce at the time of the termination hearing. May justified the delay in seeking a divorce on her attempts to try to get her children back. However, subsequent to the hearing she did receive a divorce from King.

¶ 15. The youth court found: (1) “that the Minor Petitioners have been in the care and custody of a licensed child care agency, or the Harrison County Department of Human Services, for over a period of one (1) year;” (2) “that the Respondent, Glenda May, has been responsible for a series of abusive incidents concerning one or more children constituting grounds for termination of their (sic) parental rights pursuant to Miss.Code Ann. § 93-15-103(3)(c)(1972);” and (3) “that the Respondent, Glenda May, exhibits and has failed to eliminate ongoing behavior ... which prevents placement of the Minor Petitioners with said Respondent in spite of diligent efforts of the Department of Human Services to assist said Respondent constituting grounds for termination of their parental rights pursuant to Miss.Code Ann. § 93 — 15—103(3)(e)(ii)(l972).” The youth court further found “that there is a substantial erosion of the relationship between the Minor Petitioners and the Respondent, Glenda May, which was caused at least in part by said Respondent’s neglect, constituting grounds for termination of her parental rights pursuant to Miss.Code Ann. § 93-15-103(3)(f)(1972)

¶ 16. In S.R.B.R. v. Harrison County Dep’t of Human Services, 798 So.2d 437, 445 (Miss.2001), we affirmed the decision by the youth court to terminate parental rights. We found that: “The parents deny their children were sexually abused, and their siblings therefore neglected. Of their own violation they failed to comply with the single requirement of completing the counseling program required by the court.” We further held:

The fact that the mother, as the parents argue, “did not commit any offense,” is not the issue the lower court was required to address. The issue was whether the mother had complied with the court’s requirement to acknowledge the sexual abuse and successfully complete the particular program designated by the court. She did not.
Moreover, the trial court was justified in its determination that, because the mother allied herself with the perpetrator, she was thus unable to protect the children from further abuse.

Id. at 442 (emphasis added).

¶ 17. In S.R.B.R., we found that the Youth Court Judge Michael H. Ward clearly stated that he disbelieved the parents’ testimony that Gulf Coast Mental Health Center (GCMH) could no longer help them with counseling. The trial judge ruled that failure to complete the plan, as they had agreed, was a determining factor in terminating of the parental rights. Id. at 444.

¶ 18. Similarly, in G.Q.A, 771 So.2d at 334, Youth Court Judge Michael H. Ward ordered the termination of parental rights based upon the parents’ failure to acknowledge that the child was intentionally abused and their refusal to participate in counseling. This Court affirmed the youth court’s decision finding substantial evidence supporting the abuse. Id. at 336. This Court concluded that: (1) the evidence supported that the abusive incidents occurred; (2) the parents refused to admit that any intentional abuse occurred; (3) the evidence supported a substantial erosion in the parent/child relationship; and (4) the child’s best interest was served by terminating parental rights and the child remaining in foster care. Id. at 331, 339.

¶ 19. Therefore, we find that May’s assignment of error is without merit. Substantial evidence exists to support the youth court’s finding that termination of parental rights was in the best interest of the children.

II. Durable Legal Custody

¶ 20. May contends that the youth court erred in not considering durable legal custody as an alternative to termination of parental rights. We do not agree. Durable legal custody was enacted by the Legislature to serve as an alternative to termination of parental rights. In re S.A.M., 826 So.2d 1266, 1278 (Miss.2002).

¶ 21. The durable legal custody statute, Miss.Code Ann. § 43-21-609 (Rev.2002), provides:

In neglect and abuse cases, the disposition order may include any of the following alternatives, giving precedence in the following sequence:

(a) Release the child without further action;
(b) Place the child in the custody of his parents, a relative or other person subject to any conditions and limitations as the court may prescribe. If the court finds that temporary relative placement, adoption or foster care placement is inappropriate, unavailable or otherwise not in the best interest of the child, durable legal custody may be granted by the court to any person subject to any limitations and conditions the court may prescribe; such durable legal custody will not take effect unless the child or children have been in the physical custody of the proposed durable custodians for at least one (1) year under the supervision of the Department of Human Services. The requirements of Section 43-21-613 as to disposition review hearings does not apply to those matters in which the court has granted durable legal custody. In such cases, the Department of Human Services shall be released from any oversight or monitoring responsibilities;
(c) Order terms of treatment calculated to assist the child and the child’s parent, guardian or custodian which are within the ability of the parent, guardian or custodian to perform;
(d) Order youth court personnel, the Department of Human Services or child care agencies to assist the child and the child’s parent, guardian or custodian to secure social or medical services to provide proper supervision and care of the child;
(e) Give legal custody of the child to any of the following but in no event to any state training school:
(i) The Department of Human Services for appropriate placement; or
(ii) Any private or public organization, preferably community-based, able to assume the education, care and maintenance of the child, which has been found suitable by the court. Prior to assigning the custody of any child to any private institution or agency, the youth court through its designee shall first inspect the physical facilities to determine that they provide a reasonable standard of health and safety for the child.

(emphasis added).

¶ 22. However, the paramount concern in determining the proper disposition continues to be the best interest of the child, not reunification of the family. In re Beggiani, 519 So.2d 1208, 1213 (Miss.1988). See In re S.A.M., 826 So.2d at 1274, 1279 (durable legal custody was determined to be in the best interest of the child in order to allow continued DHS monitoring without the requirement of annual reviews and constant involvement by DHS). See also S.R.B.R., 798 So.2d at 444. Also, in G.Q.A., 771 So.2d at 336, we emphasized that the polestar consideration in determining disposition is the best interest of the child. Furthermore, in G.Q.A., a termination of a parental rights case, we stated that:

Congress recently enacted the Adoption and Safe Families Act of 1997 (ASFA), Pub.L. No. 105-89, 111 Stat. 2115 (1997), in order to increase the safety of children. In pursuing that goal, ASFA provides that “reasonable efforts” to reunite children with their parents “shall not be required ... if a court of competent jurisdiction has determined that (i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse).” 42 U.S.C.A. § 671(a)(15)(D)(i) (Supp.2000). Essentially, ASFA clarifies that a child need not be forced to remain in or be returned to an unsafe home and allows the States to place the safety and welfare of the child before the interest of abusive parents.

771 So.2d at 335 (emphasis added).

¶ 23. In S.A.M., 826 So.2d at 1278, Youth Court Judge Michael H. Ward’s granted durable legal custody of S.A.M. to her long-time foster parents subject to supervised visitation with the mother rather than returning the child to her mother. Id. The mother argued that granting durable custody to the foster parents amounted to terminating her parental rights. Id. at 1278. The mother also argued that the youth court should have made attempts to reunify her and her child before granting durable legal custody. Id. at 1274. In affirming Judge Ward’s decision, this Court stated:

The fact that under durable legal custody the parent retains some form of residual rights and responsibilities is a vital and obvious distinction to termination of parental rights. Another distinction is that a decision to grant durable legal custody is not permanent and is, therefore, subject to further review and modification by the courts.

Id. at 1279.

¶ 24. Here, the youth court stated in its judgment terminating parental rights that “a court of component jurisdiction has determined that reunification shall not be in the Minor Petitioners’ best interest, constituting grounds for termination of their parental rights pursuant to Miss.Code Ann. § 93-15-103(3)(h)(1972).” The youth court also found that the children “had been in the care and custody of a licensed child caring agency, or the Harrison County Department of Human Services, for a period of one year.” The youth court specifically addressed the alternative placement of durable legal custody during final arguments. The youth court stated that “you can’t have a durable legal custodian unless the people have had custody for a year.” The youth court concluded that this was not the case under the facts at bar as May had not had custody of her children since June 11, 1999. Miss.Code Ann. § 43-21-609(b) specifically and clearly provides that in order to have the disposition alternative of durable legal custody in cases of abuse or neglect, the child or children must have been in the physical custody of the proposed durable custodians for at least 1 year under the supervision of the Department of Human Services.

¶ 25. Therefore, we find no merit to May’s assignment of error that the youth court did not consider the alternative disposition of durable legal custody

CONCLUSION

¶ 26. Therefore, for all the foregoing reasons, we affirm the decision of the Youth Court of Harrison County terminating May’s parental rights.

¶ 27. AFFIRMED.

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

      . The accusations of molestation was solely as to the female minor child.

      . King's motion for rehearing on his appeal was subsequently denied on January 29, 2002. King, a Captain Reserve Officer with the City of Gulfport Police Force, was indicted for sexual battery, capital rape and statutory rape of his 11 year old daughter. The victim testified that she was forced to have oral and vaginal intercourse over a period of more than 2 years. The victim's pediatrician had first noticed the victim’s hymenal opening being wider than normal for a girl that age in May of 1997. Another general physician examined the victim on June 4, 1999, and concluded that her hymenal ring was no longer intact. The victim had a psychological examination that resulted in findings consistent with sexual abuse. In the psychological examination, she described her father’s penis and semen in detail and stated that he placed "his penis in her vagina and made me suck his private or suck his nipple.” See May, 806 So.2d at 316.

      . As stated in her brief, May does not dispute that at the time of the termination hearing she had not completed the court ordered counseling at GCMH. Her position is that she did not like receiving counseling at GCMH.

      . Subsequent to the termination hearing, May did file and receive her divorce from King and complete the classes at GCMH.


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    Randy BRASWELL d/b/a Worldwide Drilling v. T & T WELDING, INC. and T & T Communications, LLC.
    No. 2003-CA-01971-SCT.
    Supreme Court of Mississippi.
    Aug. 12, 2004.
    Rehearing Denied Oct. 14, 2004.

      Wayne Dowdy, attorney for appellant.
    Craig N. Orr, Laurel, attorney for ap-pellees.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. The sole issue presented in this open accounts collection case is venue. T & T Welding and T & T Communications, LLC (collectively T & T) sued Randy Braswell d/b/a Worldwide Drilling in the County Court for the Second Judicial District of Jones County, Mississippi, on an alleged open account for materials and services. The trial court denied Braswell’s motion for a change of venue to Pike County. Following a jury trial, judgment was entered against Braswell. The trial court denied Braswell’s Motion For Judgment Notwithstanding the Verdict, Or, In The Alternative, A New Trial. Braswell then appealed to the Circuit Court for the Second Judicial District of Jones County.

¶ 2. The circuit court affirmed the county court’s decision and found that the facts were analogous to Earwood v. Reeves, 798 So.2d 508 (Miss.2001), and that venue was proper in either Pike County or Jones County. Braswell appeals to this Court the decision of the circuit court affirming the county court. For the following reasons, this Court affirms.

FACTS

¶ 3. In June of 1999, Terry Hinton of T & T and Randy Braswell, a Pike County resident, spoke over the telephone regarding T & T providing product and services at the job site of Braswell’s oil well in Pike County. T & T Communications, LLC installs telephones and intercoms on drilling sites, and T & T Welding provides welding services, workers and rental equipment at well sites. Both T & T businesses are located in Laurel, Jones County, Mississippi, and are owned and operated by Terry Hinton. After this initial telephone conversation, all other communications with T & T were handled by the well site supervisors, Petroleum Engineers. Twenty-five invoices were sent to Braswell. In addition to materials and services provided by T & T, these invoices included the following actual out-of-pocket expenses incurred by T & T: sales tax, workers’ salaries including travel time to and from Jones County to Pike County, Cellular One telephone service utilized by the well site supervisor, independent driver for hauling a tank to the site, and other materials utilized at the drilling site. After Braswell refused to pay, a demand letter was mailed from Jones County to Pike County. Braswell did not respond to the letter. On January 27, 2000, T & T filed this lawsuit in the County Court for the Second Judicial District of Jones County. Following a jury trial, judgment was entered in favor of T & T and against Braswell.

DISCUSSION

¶ 4. This Court reviews a ruling on venue under the abuse of discretion standard. “The trial judge’s ruling thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case.” Hayes v. Entergy Miss., Inc., 871 So.2d 743, 746 ¶ 6 (Miss.2004) (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 181 (Miss.1999); Estate of Jones v. Quinn, 716 So.2d 624, 626 (Miss.1998) (quoting Beech v. Leaf River Prods., Inc., 691 So.2d 446 (Miss.1997); Miss. State Highway Comm’n v. Rogers, 240 Miss. 529, 128 So.2d 353, 358 (1961))).

¶ 5. The venue statute in effect when this lawsuit was filed provided in pertinent part that a resident defendant may be sued wherever that resident “may be found” or where the cause of action “occurred or accrued.” Miss.Code Ann. § 11-11-3 (Supp.2001). This Court has defined “occurred” and “accrued” as follows:

“[Ojccur” and “accrue” are not synonymous, legally or otherwise, as the disjunctive connector forthrightly suggests. We read accrual in its formalistic sense. A cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 104, 14 So.2d 344, 346 (1943). This may well mean the moment injury is inflicted, that point in space and time when the last legally significant fact is found. “Occur” is a less formalistic term. It is event oriented to its core. It connotes conduct and phenomena and imports no preference among all of those necessary that a plaintiff may sue.
In the final analysis, venue is about convenience. The legislative prescription implies a legislative finding counties meeting certain criteria will generally be more convenient to the parties. The use of “occur” makes sense because important witnesses will often be accessible where the action occurs. Yet, there is nothing in the phrase “where the cause of action may occur .... “ that limits the judicial search for but a single county. Torts arise from breaches of duties causing injuries, and it is common experience that breach and causation and impact do not all always happen at once. At the very least, the word “occur” connotes each county in which a substantial component of the claim takes place, and this may include, in the present context, the negligent conduct which substantially undergirds Tanksley’s claim.

Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1156-57 (Miss.1992) (emphasis added & (footnote omitted)).

¶ 6. This Court next analyzed “occurred” and “accrued” in Earwood v. Reeves, 798 So.2d 508 (Miss.2001), which both the county and circuit courts found very persuasive in this matter. In Earwood, a father wired money from his bank account in Covington County to his son’s attorney’s office in Hinds County. The law firm represented the son in a business transaction. After the transaction failed to transpire, the father sought return of the money. The law firm returned a portion, but withheld the rest as attorney fees and expenses. The father deposited the refund check into his Covington County bank account and then sued the law firm in Cov-ington County for the balance. The law firm’s motion to change venue was denied. This Court addressed the matter on interlocutory appeal and found that venue was proper in both Covington and Hinds Counties:

At the least, Reeves’s alleged claim accrued in Covington County where he received the check for $66,983.80 from the firm’s escrow account. This would be tantamount to the last legally significant fact as contemplated in Tanksley. [608 So.2d at 1156.]
Reeves’s alleged cause of action at least partially occurred in Covington County from whence he initially wired the money from his bank account, discussed the acquisition telephonically, received the check he considered short, and deposited it back into his account.

Earwood, 798 So.2d at 513 ¶¶ 15-16 (emphasis in original).

¶ 7. As the county court and circuit court found, this case is similar to Ear-tvood, and venue here was proper in both Jones County and Pike County. An agreement was reached during a telephone conversation that T & T would provide services at Braswell’s well site. After the first day’s work, Braswell’s site supervisor would request further materials and services from T & T via telephone. T & T’s workers would dispatch from the Jones County offices based upon the specific orders that were placed in Jones County. The trial court found that these actions were akin to the father in Earwood wiring his money from Covington County to Hinds County.

¶ 8. The court further found that some of the charges were incurred inside Jones County since the charges included mileage and worker travel time from Jones County to Pike County and that T & T generated their invoices in Jones County, mailed the invoices from Jones County to Pike County, and expected payment to be made in Jones County as was the usual course of business between the two parties. This Court has found that a cause of action for personal injuries “accrues for venue purposes either where the actual tortious conduct occurs or where the plaintiff suffers actual injuries.” Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 387 ¶ 10 (Miss.2001). Here, T & T incurred a significant amount of out-of-pocket expenses in Jones County. Cf. Pub. Employees Ret. Sys. of Miss. (PERS) v. Hawkins, 781 So.2d 899 ¶ 3 n. 2 (Miss.2001) (holding that a substantial portion of the claimed earned income (meals, lodging, utilities, and mileage) occurred or accrued in Chickasaw County and therefore venue was proper in Chickasaw County).

¶ 9. Therefore, venue in this case was proper in either Pike or Jones Counties. “Of right, the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue. Put otherwise, the court at trial must give the plaintiff the benefit of the reasonable doubt, and we do so on appeal as well.” Tanksley, 608 So.2d at 1155 (citations & footnote omitted). The county court did not abuse its discretion in denying Bras-well’s motion to change venue to Pike County.

CONCLUSION

¶ 10. For the foregoing reasons, venue was proper in Jones County, and we affirm the judgments of County Court, Second Judicial District, of Jones County and the Circuit Court, Second Judicial District, of Jones County.

¶11. AFFIRMED.

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


author: SMITH, Chief Justice,

text:
    Curtis David HAWTHORNE v. STATE of Mississippi.
    No. 2002-CT-01142-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2004.
    Rehearing Denied Feb. 10, 2004.

      Robert W. Davis, Christi R. McCoy, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   ON WRIT OF CERTIORARI

SMITH, Chief Justice,

for the Court.

¶ 1. Curtis David Hawthorne was convicted by a Lee County Circuit Court jury of manslaughter after he caused a motor vehicle wreck in Tupelo which killed Jeffrey McGrew. Hawthorne claimed that he was insane at the time of the wreck. The jury rejected this defense and found Hawthorne guilty, and he was sentenced to fifteen years in prison with seven years suspended. He moved for a J.N.O.V. or new trial, which the trial court denied. Hawthorne appealed, and the appeal was assigned to the Court of Appeals. A divided Court of Appeals reversed and rendered. Hawthorne v. State, 881 So.2d 234 (Miss.Ct.App.2003). The State’s motion for rehearing was denied by the Court of Appeals, and we granted the State’s petition for writ of certiorari.

¶ 2. Having considered the merits, we find that the Court of Appeals’ majority erred in reversing and rendering Hawthorne’s case. We agree with the dissenting view that the verdict was against the weight of the evidence. Accordingly, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 3. In November of 2000, David Hawthorne, who was a resident of Virginia, was in Tupelo helping his father refurbish a hotel. During the days immediately preceding the accident, Hawthorne and his father discussed religion for hours on end. Following these religious discussions, Hawthorne began to have feelings and sensations that he and his father interpreted as religious experiences. Apparently Hawthorne was experiencing symptoms of schizophrenia. Hawthorne began to hear what he believed to be the voice of God or the Devil. He also began to believe that he was in Hell, that the day of judgment was at hand, that the television was sending messages to him from God or the Devil, that he was going back in time, and that the presidential election of 2000 was being held specifically for him. Hawthorne was observed walking around in a trance and praying in the rain. After experiencing these feelings, Hawthorne believed that he had to go home to Virginia to deliver a cross to his daughter, cure his wife’s cancer, and be home before the world came to an end.

¶4. On the morning of November 15, 2000, Hawthorne, still under the impression that he had to get to Virginia, borrowed his father’s truck and drove down South Gloster Street at a high rate of speed. In his state, Hawthorne believed that he was in God’s truck, that no matter what direction he drove he would reach Virginia, and that his truck would pass through any obstacles he might encounter. At the intersection of Green Street and Gloster Street, Hawthorne ran the red light and struck the car driven by Jeffrey McGrew, who died at the scene.

¶ 5. After the accident, Hawthorne left his truck and ran south on Gloster Street. Hawthorne was quickly apprehended by the police. When the police apprehended Hawthorne, he was sweating profusely and mumbling something about getting to his daughter. When the officer had Hawthorne under control, he placed Hawthorne in the back of his patrol car. When the officers asked Hawthorne if he was drunk, he responded that he was drunk with God. Hawthorne was then transported to the sheriffs department. After attempts at interrogation, during which Hawthorne exhibited erratic behavior, Hawthorne was transported to North Mississippi Medical Center where he was examined by the emergency room physicians and a psychiatrist.

¶ 6. At trial, Hawthorne produced numerous mental health professionals who testified that he was insane under the M’Naghten test at the time of the collision. The State produced no expert witnesses on this issue. The jury found Hawthorne guilty, and the judge sentenced Hawthorne to fifteen years with seven suspended.

¶ 7. On appeal the Court of Appeals reversed and rendered in a 5-4 opinion, with one judge not participating. Id. The majority found that the State, with the burden of proving that Hawthorne was sane, had failed to present sufficient evidence to support his conviction. The dissent argued that while the State had produced no medical evidence, there was evidence which the jury could have relied on to convict, such as all the cars and other objects Hawthorne had avoided in his drive through Tupelo before he rammed his truck into the car McGrew was driving. The dissent found that the verdict was against the weight of the evidence and would have reversed and remanded for a new trial.

DISCUSSION

¶ 8. The standard of review for the denial of a motion for directed verdict and judgment notwithstanding the verdict is the same. Shelton v. State, 853 So.2d 1171, 1186 (Miss.2003). A directed verdict and JNOV both challenge the sufficiency of the evidence presented at trial. Id. This Court considers “all of the evidence in the light most favorable to the State and gives the State the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Seeling v. State, 844 So.2d 439, 443 (Miss.2003). The Court must disregard evidence that is favorable to the defendant. Hubbard v. State, 819 So.2d 1192, 1195 (Miss.2001). This standard of review demands that the Court reverse and render if the facts, viewed in that light, point so overwhelmingly in favor of the defendant that reasonable men could not have arrived at a guilty verdict. Seeling, 844 So.2d at 443. The Court must affirm, however, when there is substantial evidence in support of the verdict of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions. Id. This Court has also emphatically provided that it will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 9. In Mississippi, the question of whether a defendant in a criminal case was insane at the time of the offense is controlled by the M’Naghten test. Woodham v. State, 800 So.2d 1148, 1158 (Miss.2001). Under the M’Naghten test, it must be proved that at the time of committing the act that the accused “was laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing or (2) if he did know it, that he did not know that what he was doing was wrong.” Id. The inquiry under this test is whether the defendant “did not know right from wrong at the time of committing the act.” Id. It is presumed that the defendant is sane until there is a reasonable doubt regarding his or her sanity. Taylor v. State, 795 So.2d 512, 517 (Miss.2001). When such doubt is raised, the State bears the burden of proving the defendant’s sanity beyond a reasonable doubt. Id. The determination as to a defendant’s sanity is a question to be resolved by the jury, which may accept or reject expert and lay testimony. Tyler v. State, 618 So.2d 1306, 1309 (Miss.1993). The jury’s determination will remain “undisturbed unless this Court is convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” Id.

¶ 10. The sole issue is whether the jury was justified in finding the defendant knew right from wrong at the time of committing the act. This is a question to be determined by the jury. The Court of Appeals majority based its decision on the sufficiency of the evidence. Hawthorne, 881 So.2d 234. The Court of Appeals found that the State failed to produce sufficient evidence, or any evidence at all, to prove Hawthorne’s sanity beyond a reasonable doubt. Id. However, we find some evidence from which jurors could determine that Hawthorne was aware his actions were wrong. During the State’s case-in-chief, the evidence indicated that Hawthorne was avoiding many other barriers and had been driving for miles through town before causing this wreck. It was also shown through eyewitness testimony that after the wreck, Hawthorne left his truck, looked around and then ran from the scene. This lay witness testimony was probative of whether Hawthorne knew right from wrong and sufficient evidence to allow the trial court to deny Hawthorne’s motion for directed verdict.

¶ 11. However, the defense put forth evidence showing Hawthorne’s behavior days before this wreck. Hawthorne began to hear what he believed to be the voice of God or the Devil. He also began to believe that he was in Hell, that the day of judgment was at hand, that the television was sending messages to him from God or the Devil, that he was going back in time, and that the presidential election of 2000 was being held specifically for him. Hawthorne was observed walking around in a trance and praying in the rain for hours. After experiencing these feelings, Hawthorne believed that he had to go home to Virginia in order to deliver a cross to his daughter, cure his wife’s cancer, and be home before the world came to an end. It was also shown that mental problems such as schizophrenia ran in his family and several family members suffered from this disease.

¶ 12. The fact that Hawthorne ran from the scene was also rebutted by the defense. According to the defense, Hawthorne ran from the scene because he was still under the delusion that he had to get back to Virginia to cure his wife, deliver the cross to his daughter, and be home when the world ended. The police officer who ran after Hawthorne testified that Hawthorne was sweating profusely and was mumbling. Hawthorne’s behavior was so erratic that the police believed Hawthorne was on drugs. This erratic behavior continued throughout the questioning. One detective testified that Hawthorne would laugh one moment and cry the next and continued to say that his father was killed when in fact he was still alive. The detective stopped questioning Hawthorne because of this erratic behavior. In addition to this, the defense produced four medical experts who testified that Hawthorne was unable to appreciate the difference between right and wrong.

¶ 13. A new trial should be granted if the jury’s verdict “so contradicts the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” Groseclose, 440 So.2d at 300. See also Frost v. State, 453 So.2d 695 (Miss.1984). Here, the evidence adduced by the State to prove sanity, is weak. To allow the jury verdict to stand based upon this slight evidence would result in an unconscionable injustice. The State did not prove beyond a reasonable doubt that Hawthorne was sane. The record before us lacks substantial credible evidence suggesting that at the time in question, Hawthorne was sane in the M’Naghten sense. Frost, 453 So.2d at 698. At the end of the trial during Hawthorne’s motion for directed verdict, the State acknowledged that there was little evidence in the record to show that Hawthorne knew the difference between right and wrong. The State maintained that it did not have to produce any evidence of defendant’s sanity because it was for the jury to determine. Even though sanity is for the jury to determine, the State must produce substantial evidence regarding the defendant’s sanity. If the verdict is against the overwhelming weight of the evidence, a new trial should be ordered. Holloway v. State, 312 So.2d 700, 701 (Miss.1975). The jury verdict was against the overwhelming weight of the evidence on the issue of Hawthorne’s sanity. Therefore, we hold that Hawthorne must be retried.

CONCLUSION

¶ 14. For these reasons, we reverse the judgments of the Court of Appeals and the Lee County Circuit Court, and we remand this case to the circuit court for a new trial consistent with this opinion.

¶ 15. REVERSED AND REMANDED.

WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.


author: DICKINSON, Justice,

text:
    JANSSEN PHARMACEUTICA, INC., and Johnson & Johnson, et al. v. Hattie JACKSON, et al.
    No. 2003-IA-00440-SCT.
    Supreme Court of Mississippi.
    Sept. 30, 2004.
    Donna Brown Jacobs, Christy D. Jones, John C. Henegan, Robert L. Johnson, L. Carl Hagwood, Clifford B. Ammons, Jackson, Robert K. Upchurch, Tupelo, Whitman B. Johnson, III, Juliette Veronica Wilson, A Nuzzo, Laura G. Mekinley, Martin R. Jelliffe, Thomas M. Louis, Anita K. Modak-Truran, Jackson, Kari Louise Foster, Michael Bradford Hewes, Gulfport, David W. Upchurch, Josiah Dennis Coleman, Jason Edward Dare, Jackson, B. Wayne Williams, Dan W. Webb, Tupelo, attorneys for appellants.
    William B. Gill, III, Elizabeth Ann San-tangini, James M. Priest, Jr., John F. Hawkins, attorneys for appellees.
    Before COBB, P.J., CARLSON and DICKINSON, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. Hattie Jackson and thirty other Mississippi Plaintiffs (“Plaintiffs”) filed suit on July 19, 2002, in the Circuit Court of Holmes County, Mississippi, alleging injuries they claim were caused by the prescription medication Propulsid. The suit was filed against Janssen Pharmaeeutica, Inc. (“Janssen”), Johnson & Johnson (“Johnson”), 27 prescribing physicians, and 15 drug stores/pharmacies (collectively “Defendants”). Only three Plaintiffs are from Holmes County. Plaintiffs sought compensatory damages from all the Defendants and punitive damages from Defendants Janssen and Johnson.

¶ 2. On September 27, 2002, Janssen and Johnson filed a Motion to Sever and Transfer Venue for Separate Trials alleging that joinder was improper under M.R.C.P. 20. They requested the court sever the non-resident plaintiffs and transfer each plaintiff to the appropriate venue for separate trials.

¶ 3. On November 25, 2002, the trial court denied the Defendants’ Motion to Sever and Transfer for Separate Trials. We granted Janssen and Johnson permission to appeal from that from that interlocutory order. See M.R.A.P. 5.

FACTS

¶ 4. Propulsid is a prescription medication manufactured by Janssen Pharma-ceutica, Inc., used to treat gastroesopha-geal reflux disease (GERD). The Food and Drug Administration (FDA) approved Propulsid for sale in the United States in July 1993, after 12 years of research and clinical testing and more than five years of use in Europe by millions of patients. The 1993 package insert noted that there had been rare reports of tachycardia (rapid heartbeats) in patients taking Propulsid, but no incidents involving serious injury or death. In late 1994, Janssen received two reports of patients who experienced a potentially fatal heart arrhythmia known as “torsades de pointes.” These patients were also taking the drug ketoconazole, an antifungal medication. After a drug interaction study was performed, a new package insert was issued in February 1995, warning against taking Propulsid with this and other medications. During the seven years after FDA approval for sale in the U.S., the package insert for Propulsid was revised five times: in February 1995, October 1995, June 1998, May 1999 and January 2000. Along with the new package inserts, Janssen sent hundreds of thousands of “Dear Doctor” letters to inform physicians and pharmacists of the revised safety information. During the period from 1993 to 2000, there were reports of about 300 cardiac events among the approximately ten million patients given Pro-pulsid in the United States. Due to the potential seriousness of such an event, Janssen decided to make Propulsid available only through an investigational limited access program in May 2000. Janssen claims that this decision to withdraw Pro-pulsid from commercial distribution has sparked thousands of claims across the country that Propulsid has caused all manner of injuries.

ANALYSIS

¶ 5. The issues raised in the case sub judice are the same issues raised and discussed in Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092 (Miss.2004). In Armond, we determined that joinder was improper and that the trial court abused its discretion in denying the motion to sever and transfer. Thus, Armond controls the disposition of all issues raised in the case sub judice. Accordingly, we find that the plaintiffs in the case sub judice do not share a single, distinct litigable event and may not be joined.

CONCLUSION

¶ 6. For these reasons, we reverse the circuit court’s order denying the defendants’ motion to sever and transfer for separate trials, and we remand this case for severance of all claims against defendants with no connection to the Holmes County plaintiffs, and we instruct the trial court to transfer the severed cases to those jurisdictions in which each plaintiff could have brought his or her claims without reliance on another of the improperly joined plaintiffs. We further instruct the trial court to sever the improperly joined Holmes County plaintiffs for separate trials.

¶ 7. REVERSED AND REMANDED.

SMITH, C.J., COBB, P.J., AND CARLSON, J., CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. WALLER, P.J., DIAZ, GRAVES AND RANDOLPH, JJ„ NOT PARTICIPATING.

      . These facts are taken verbatim from the Janssen Pharmaeeutica, Inc. v. Armond, 866 So.2d 1092, 1095 (Miss.2004).


text:
    Dennis Earl TOWNES v. Nay Ruth MANYFIELD and B.L. Manyfield.
    No. 2003-CA-01944-SCT.
    Supreme Court of Mississippi.
    Sept. 30, 2004.

      James D. Minor, Sr., Oxford, attorney for appellant.
    Barbara A. Bluntson, Jackson, attorney for appellees.
    Before COBB, P.J., DICKINSON and RANDOLPH, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. This is a case involving the visitation rights of grandparents. This Court recognizes grandparent visitation. However, this case is being remanded back for a hearing on grandparent visitation in which the Martin factors, Martin v. Coop, 693 So.2d 912, 916 (Miss.1997), are to be applied and findings are to be made on the record supporting the visitation granted.

STATEMENT OF THE CASE

¶ 2. On May 31, 2002, Dennis Earl Townes (“Townes”) filed a Petition for Writ of Assistance with the Chancery Court of the Second Judicial District of Hinds County, Mississippi, alleging that B.L. Manyfield and Nay Ruth Manyfield (the “Manyfields”) wrongfully and unlawfully took custody and possession of Dennis’ minor children and refused to return the children to him.

¶ 3. On June 12, 2002, the Manyfields filed a Petition for Custody of Minor Children or in the Alternative, for Grandparent Visitation.

¶ 4. On July 3, 2002, the Youth Court Division of the First Judicial District of Hinds County, Mississippi entered a Temporary Custody Order awarding temporary custody of the minor children to the Manyfields.

¶ 5. On July 22, 2002, the parties filed an Agreed Order of Temporary Visitation, granting Dennis temporary visitation with his children. Dennis was awarded visitation every other week beginning Sunday evenings at 6:00 p.m. through the following Sunday evening at 6:00 p.m.

¶ 6. On July 30, 2002, Dennis filed a Counter-Complaint for Custody of Minor Children.

¶ 7. On October 16, 2002, a hearing was conducted and the Opinion of the Court was filed on November 20, 2002. Subsequently, on July 30, 2003, an Order was entered awarding Dennis custody of the minor children and granting Manyfield visitation with the minor children. The Order provided that following visitation provision:

Every first and third weekend of each month beginning at 6:30 p.m. on Friday and ending at 6:30 p.m. on Sunday, beginning Friday, November 29, 2002, unless said weekend should fall on Christmas or Easter weekend, and in that instance the children will spend the holiday in the home of their father, Dennis Townes. This Court orders that Dennis Townes shall transport the children to the Manyfield’s house for the visits on the first weekend of each month and shall return to pick up the children at the conclusion of said visit. That on the third weekend of each month, the parties or their designees shall meet at the truck stop near Interstate 55 exit at Durant, Mississippi at the beginning and conclusion of the visitation for the exchange of the children.

¶ 8. It is from this Order that Dennis appeals.

FACTS

¶ 9. On December 5, 1987, Dennis Earl Townes (“Dennis”) and Melva Manyfield (“Melva”) were married. Four minor children were born to the marriage, namely, Dennis E. Townes, II, born January 22, 1988; Cami M. Townes, born February 24, 1989; Amber Nicole Townes, Born June 21,1991; and Christopher A. Townes, born June 28,1992.

¶ 10. When Dennis and Melva divorced in 1996, Melva was awarded physical custody of the children. Melva and the four minor children resided with Melva’s parents, B.L. and Nay Ruth Manyfield, from 1994 until on or about January 2000.

¶ 11. On May 7, 2002, Melva perished in a house fire. Prevented by the Many-fields from getting his children, Dennis filed a Petition for Writ of Assistance to obtain the control and care of his minor children.

¶ 12. At trial, Dennis testified that between 1994 and 1997, he saw the children about three times and had not seen them at all since 1997. Nevertheless, in awarding custody to Dennis, the trial court stated: “As between [Dennis] and the Many-fields, [Dennis] is entitled to the benefit of the legal presumption that, in the efforts he now professes to be willing to make to rear his children and to provide for them, their best interest is served by reposing custody in him as their sole surviving natural parent.”

¶ 13. Visitation was granted to the Ma-nyfields. Dennis lives in Coffeeville, Mississippi. (Yalobusha County), and Mrs. Manyfield lives in Edwards, Mississippi (Hinds County). B.L. Manyfield is now deceased.

¶ 14. Subsequent to the order awarding custody to Dennis, the parties entered into an agreed order in which Dennis relinquished custody of the oldest child, Dennis II, to Mrs. Manyfield.

¶ 15. Dennis appeals, raising the issue of whether the conditions of visitation granted by the chancellor to Mrs. Many-field were excessive.

ANALYSIS

¶ 16. In Mississippi, grandparent visitation is addressed by statute:

Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents who was not awarded custody or whose parental rights have been terminated or who has died may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery court in the county in which the child resides, and seek visitation rights with such child.

Miss.Code Ann. § 93-16-3(1) (Rev.1994).

¶ 17. This Court has set forth ten factors to be considered when determining visitation by grandparents:

1. The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10.The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

Martin v. Coop, 693 So.2d 912, 916 (Miss.1997). These ten factors have become known in our cases as “the Martin factors.”

¶ 18. Dennis contends that the trial court’s failure to address the Martin factors warrants a reversal and remand of the case. This Court has held that “making findings of fact under the Martin factors is an integral part of a determination of what is in the best interests of a child.” T.T.W. v. C.C., 839 So.2d 501, 505 (Miss.2003).

¶ 19. Dennis contends that grandparents are not accorded the same right of visitation as a mother or a father. Mrs. Manyfield, however, points out that, in Martin, this Court held “visitation granted to grandparents should not be equivalent to that which would be granted to a noncustodial parent unless the circumstances overwhelmingly dictate that it should be.” Martin, 693 So.2d at 916 (emphasis added). Mrs. Manyfield argues that the Martin factors do not apply because of “overwhelming circumstances” that dictate that granting equal visitation would be in the best interest of the child.

¶20. Absent an abuse of discretion, this Court “will uphold the decision of the chancellor.” Id. at 914. “This Court will not disturb the factual findings of the chancellor unless said factual findings are manifestly wrong or clearly erroneous.” Id. (citing McAdory v. McAdory, 608 So.2d 695, 699 (Miss.1992)).

¶ 21. This Court has held that “the best interest of the child must be the polestar consideration.” Martin, 693 So.2d at 916. “The visitation [granted to a grahdparent] should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelming dictate that that amount of visitation is in the best interest of the child, and it would be harmful to the child not to grant it.” Id.

¶ 22. Dennis argues that the record does not support a departure from the rule in Martin and, even if it did, any additional visitation should be summer visitation which would not interfere with the children’s studies and his work schedule.

¶ 23. At the hearing, all four children testified in chambers. Each child indicated a preference to stay with their grandparents. Mrs. Manyfield testified at trial that she and her husband had taken care of the children practically all their lives and had supported them financially. The chancellor stated that “[i]t was obvious to the Court that the children are far more comfortable with and bonded to the Many-fields. They prefer to live with the Many-fields.”

¶ 24. The chancellor stated that “Dennis’ failure to offer input in his children’s lives or even to see them for years at a time is certainly evidence that he was willing to abandon them to Melva. His failure to support them, not only with monetary support but with this (sic) presence, is shameful.”

¶ 25. The chancellor ruled, however, that “[a]s between himself and the Many-fields, Dennis is entitled to the benefit of the legal presumption that, in the efforts he now professes to be willing to make to rear his children and to provide for them, their best interest is served by reposing custody in him as their sole surviving natural parent.”

¶ 26. The chancellor stated that “[i]t is obvious that the children are deeply bonded to the Manyfields, having been effectively reared by them. They should maintain contact with the Manyfields as often as possible, as the parties may agree, and absent specific agreement otherwise, on the following schedule” — every first and third weekend each month.

¶ 27. Dennis argues that the visitation award, together with his being ordered to transport the children to and from the Manyfields’ house on the first weekend and transport them to and from Durant on the third weekend is, excessive. He further contends that the alternating weekend visitation is especially onerous because he is an over-the-road-trucker and the grandparent lives miles away. Dennis contends that having to comply with the visitation schedule would, over the long run, decrease his earning capacity and the loss of income is exacerbated because Mrs. Manyfield has no support obligation as a natural parent would. He further contends that the excessive travel is not in the best interest of the children. The children are progressing academically. All the children are in extra-curricular activities. Nicole is in ballet, Cami played football, and Christopher was to play flag football but could not because the visitation schedule would not allow it. Dennis contends that the excessive travel limits the parent in these endeavors and disrupts the focus of the children.

¶ 28. It is very evident that the chancellor weighed heavily the bond that the children have with Mrs. Manyfield. However, the record is devoid of any mention of the Martin factors which this Court has set forth to be considered, when determining the amount of visitation that grandparents should be granted.

¶ 29. In T.T.W., this Court held that “making findings of fact under the Martin factors is an integral part of a determination of what is in the best interest of a child.” 839 So.2d at 505. Therefore, the Martin factors are to be applied and discussed in every case in which grandparent visitation is an issue. Furthermore, when a chancellor finds that there are circumstances that “overwhelmingly dictate” that a grandparent should be awarded equivalent visitation to that of a parent, those findings must be fully discussed on the record.

CONCLUSION

¶ 30. The chancellor erred by failing to apply the Martin factors and failing to make a finding on the record supporting the visitation awarded. Therefore, we vacate the judgment and remand this case for an on-the-record consideration of the Martin factors and the entry of an appropriate judgment based on those factors.

¶ 31. VACATED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . While in the custody of Melva, the children were kept out of school for one year. This caused the children to be behind academically. There was testimony at trial that Dennis has them tutored and that they are progressing in school.


author: IRVING, J.,

text:
    Phillip W. BOUGON, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00868-COA.
    Court of Appeals of Mississippi.
    March 9, 2004.
    Rehearing Denied June 15, 2004.
    Certiorari Denied Oct. 7, 2004.

      James W. Kitchens, Margaret P. Ellis, Pascagoula, Jeffrey Lynn Ellis, attorneys for appellant.
    Office of the Attorney General by Charles W. Maris, Jr., attorney for appel-lee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   IRVING, J.,

for the Court.

¶ 1. A Neshoba County jury convicted Phillip W. Bougon of manslaughter by culpable negligence. The trial court sentenced him to twenty years in the custody of the Mississippi Department of Corrections with one year suspended and one year on post-release supervision. Bougon appeals and alleges prejudicial error occurred in the trial court’s (1) admission of certain evidence regarding flight and in the court’s refusal to admit other evidence to explain or rebut the evidence of flight, (2) grant of certain jury instructions and in the modification of others, (3) denial of various motions for a mistrial, and (4) refusal to suppress certain verbal statements. Bougon also alleges that the cumulative effect of the errors operated to deny him a fair trial.

¶ 2. We find no reversible error; therefore, we affirm the trial court on all issues.

FACTS

¶3. On Monday morning, March 19, 2001, Shannon McNeil went turkey hunting after leaving work. When he did not return home later in the evening, the sheriffs department began searching for him around 8:30 p.m. His body was found by a volunteer fireman around 11:30 p.m. in a nearby shallow creek. He had died of a shotgun blast to the head and neck. Authorities immediately began collecting evidence at the scene of the crime. They found a spent shotgun shell forty-four feet from where McNeil’s body was found. Tree limb fragments, which had been clipped by gun pellets, made a trail from where the spent shell was found to the place where McNeil’s body was found.

¶ 4. The next morning, investigators began questioning people living in the area, including Bougon, to determine if anyone had information about the killing. Bougon was questioned again later that day. On Wednesday, the investigators returned a third time to question Bougon, but he was away in Leake County working. Bougon’s live-in girlfriend, Vicki Vance, gave the investigators permission to examine Boug-on’s rifle and shotgun, and they obtained the serial numbers from both guns. Vance testified that she became concerned about the investigators’ actions and summoned Bougon’s friend, Ronnie Hancock, to take her to Bougon’s job. When they arrived at his work place, Vance informed Bougon of the investigators’ actions and requested that he come home. Further, Hancock told Bougon that “they think you did it.”

¶ 5. When Vance and Hancock returned to Neshoba County later that day, Hancock was arrested in Bougon’s driveway. Vance phoned Bougon while he was still at work and informed him of Hancock’s arrest. She also advised him that if he did not come in and answer questions, the authorities would charge Hancock with manslaughter. After talking with Vance, Bougon decided not to come home that night. However, investigators came back to his house looking for him and confiscated his guns. The guns were later tested and it was determined that the spent shotgun shell found at the scene of the crime was fired from Bougon’s shotgun. The sheriff continued to look for Bougon, and finally found and arrested him on Thursday night. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Evidence of Flight and the Appropriateness of a Flight Instruction

¶ 6. It is well-settled law that the admission of evidence is within the discretion of the trial judge, and his decision is reversible only when there has been an abuse of discretion which results in prejudice to the accused. Miller v. State, 801 So.2d 799, 803(¶ 18) (Miss.Ct.App.2001). Further, our supreme court has consistently held that flight is admissible as evidence of consciousness of guilt. Fuselier v. State, 702 So.2d 388, 390(114) (Miss.1997). However, a flight instruction is appropriate only where the flight is unexplained and somehow probative of guilt or guilty knowledge. Id. Therefore, evidence of flight is inadmissable where there is an independent reason for the flight. Id.

¶ 7. The State offered evidence tending to show that Bougon attempted to avoid law enforcement authorities on the morning following Hancock’s arrest. The State also offered evidence concerning the circumstances surrounding Bougon’s arrest. This evidence revealed that Bougon was captured at a neighbor’s house in a closet hiding under a blanket.

¶ 8. Bougon directs our attention to Fuselier. In Fuselier, Eric Fuselier was initially convicted of murder, but his conviction was overturned on appeal because the trial court erroneously granted an instruction on flight. Fuselier, 702 So.2d at 389, 391 (¶¶ 2, 9). On remand, Fuselier entered a plea of guilty to capital murder and burglary. Id. at 389(112). However, his conviction and sentence pursuant to the guilty plea were overturned in a second appeal on grounds not relevant to our issue. Id. at 390(¶ 2). On remand from the second appeal, the State again adduced evidence of Fuselier’s flight but did not seek an instruction on flight. Id. at 390(¶ 6). Again, our supreme court reversed, holding that, notwithstanding the fact that a flight instruction was not given, admission of evidence of Fuselier’s flight was reversible error. Id. at 394(¶ 20). In Fuselier’s first appeal, the court, in reversing Fuselier’s conviction because of the improper flight instruction, had observed that the trial court was aware of an explanation, which was inadmissible, for Fuselier’s flight and that Fuselier was “obviously put in a no-win situation by either being required to explain his flight and the fact that he was a prison escapee, or not explaining the flight and subjecting himself to a flight instruction.” Id. at 390(¶ 5).

¶ 9. Here, Bougon, while not conceding that his actions constituted flight, argues that the trial court erred in admitting evidence of his alleged flight and in instructing the jury on the law regarding flight. He attacks the trial court’s ruling on two fronts. First, he alleges that he did not go home, after being informed that the authorities were waiting on him to come back, because he was trying to help Hancock by establishing Hancock’s whereabouts on the day McNeil was killed. In support of this assertion, he gives a detailed account as to what he did to help Hancock. He states that on Thursday, the third day following the discovery of McNeil’s body, he spent about six hours making phone calls, driving around, and visiting different people in an effort to establish where Hancock had been at the time of McNeil’s death.

¶ 10. Second, he contends that he had another reasonable explanation, unrelated to any involvement in McNeil’s murder, for not returning home even though he knew that the authorities were looking for him. He argues that since he had been convicted of armed robbery ten years earlier, he feared being arrested for possession of a firearm by a convicted felon. Therefore, he asserts that he had a reason independent of McNeil’s death for attempting to avoid capture. He claims that if he had offered this explanation at trial, it would have severely prejudiced his defense.

¶ 11. As to Bougon’s first contention, we are not persuaded that his efforts to assist his friend dictated that he stay away from home and that this was a sufficient reason not to be viewed as fleeing from the authorities. This is particularly true in light of his comment to Vance — after he had been informed by her of Hancock’s arrest — that he was not “coming into the same thing that Ronnie [Hancock] had just walked into.” As already noted, Hancock had been arrested in connection with McNeil’s murder. We can perceive no reason why Bougon could not have returned home on Wednesday and consulted with authorities even if he wanted to spend some time investigating Hancock’s whereabouts on the day McNeil was killed. Surely, he must have known that the consultation was not likely to last indefinitely and that he still would have time to do the investigative work for his friend, unless he knew that he had some involvement with McNeil’s death and that, in all likelihood, he would be arrested if he returned.

¶ 12. Bougon’s second contention is somewhat puzzling. As noted, he claims that he had fears of being arrested because he, as a convicted felon, was illegally in possession of firearms, yet he claims he had a permit from Judge Marcus Gordon to carry a firearm. Bougon testified that Judge Marcus Gordon had given him the right to carry a firearm but that the papers authorizing him to carry a firearm were lost when his house burned in 1997, and that he did not attempt to get another copy or get another order signed.

¶ 13. We find it patently inconsistent for Bougon to contend on the one hand that he possessed legal permission to carry a firearm but contend on the other that he feared being arrested for possession of firearms. Even if he no longer had the order as he contended, it appears to us that he would not have feared being arrested for illegal possession of the guns because there would not have been any reason to believe that he could not prove that he had permission since the judge who allegedly granted the permission could have verified that fact. We are aware of Bougon’s attorney’s statement that a record of the order could not be found in Scott County where it was allegedly signed nor in Lincoln County where Bougon was convicted of the armed robbery. Nevertheless, the significant point is not that no order existed or could be found, but that Bougon was of the mindset that he had permission to carry a firearm. With such a mind-set, there would not have been any reason to fear being charged with illegal possession of a firearm.

¶ 14. We reject, as did the trial court, the independent explanations of innocence offered by Bougon for his furtive movements after he was advised that he was a suspect in McNeil’s disappearance. We also find that, although Bougon had a legitimate reason for leaving home on the Wednesday following the discovery of McNeil’s body (he went to work), his decision not to return home after being told that the authorities “thought he did it” and wanted to further interrogate him was the equivalent of flight. This conclusion is supported by the fact that Bougon was ultimately found at a neighbor’s house in a closet under a blanket. Therefore, we affirm the decision of the trial court to grant a flight instruction. This issue lacks merit.

(2) Vicki Vance’s Testimony

¶ 15. Bougon next contends that the trial court erred in preventing him from rebutting the State’s claim of flight by not allowing Vance to testify as to what he told her during the telephone conversation in which she informed him that Hancock had been arrested. The jury was not allowed to hear the following testimony from Vance which was offered during a proffer:

A: I told him [Bougon] that Ronnie was — that they had Ronnie. And that I was told that they were going to charge him with manslaughter if Phillip [Bougon] didn’t come home.
Q: What, if any, plan did Phillip Boug-on relate to you after you told him that?
A: He had to help Ronnie. He had to help Ronnie.
Q: Did he elaborate and say how?
A: He had to find somebody that he was with.
Q: At the time Mr. McNeil was shot?
A: Yes sir.

¶ 16. Bougon argues that the testimonial evidence quoted above was admissible to explain why he acted as he did and to show his plans or intent. He maintains that by prohibiting Vance from testifying to his actions on Thursday, March 22, the trial court effectively left the jury with the impression that he was evading authorities.

¶ 17. The State points out that Vance was prohibited only from giving hearsay testimony and that Bougon was allowed to testify to substantially everything to which Vance was prohibited. The State also points us to the following testimony given by Bougon during direct examination:

Q: Mr. Bougon, as a result of the phone call late Wednesday from Vickie Vance, what if anything, did you undertake to do for Ronnie Hancock?
A: To help him out any way I could to find out where he was that Monday morning.
Q: What do you mean by that, sir?
A: I had some people I could go see that were mutual friends. And just to find out if Ronnie had been there any time that day.

¶ 18. Bougon argues that Vance’s testimony was admissible under Rule 803 of the Mississippi Rules of Evidence. Rule 803(3) allows the admission of a statement that would otherwise be excluded as hearsay, when it is “a statement of the declar-ant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health).” M.R.E. 803(3). The comments to Rule 803 state that statements which indicate an intention to do something in the future are admissible to prove that the act intended took place.

¶ 19. The admission of evidence is left to the sound discretion of the trial judge. Parker v. State, 606 So.2d 1132, 1137 (Miss.1992). “However, that discretion must still be exercised within the scope of the Mississippi Rules of Evidence, and a reversal will result only when an abuse of discretion results in prejudice to the accused.” Id. at 1138.

¶ 20. As to the admission of Vance’s testimony under Rule 803, the State, citing Simmons v. State, 805 So.2d 452, 488-89 (Miss.2001), responds that the testimony was not admissible under the stated rule because the testimony consisted of self-serving declarations by Bougon. We need not decide whether the trial court abused its discretion in refusing to allow Vance to testify concerning what Bougon said to her when she informed him that Hancock had been arrested. We agree with the State that, since Bougon himself testified to basically the same things that Vance would have testified to, the jury was allowed to hear his alleged reasons for not coming home on Wednesday night. Consequently, we find that even if the trial court erred in not allowing Vance’s testimony, such error was indeed harmless.

(S) Statements Made by Prosecution Witness

¶ 21. Bougon asserts that the trial court erred in overruling his motion for a mistrial based on alleged improper statements made by prosecution witness Jamie Bozeman. While on the stand, Bozeman, who alleged that he heard Bougon admit to the shooting, engaged in the following exchange with Bougon’s defense counsel:

Q: So, did Phillip ever talk to Adrian Bell in your presence about the case?
A: No, sir. They just worked out a lot. And they would talk about it every now and then about just, you know, he is hoping he will get out. That he had done served enough time for a convicted armed felon.

Defense counsel immediately asked for a bench conference and conducted a voir dire of Bozeman outside the presence of the jury. Bozeman stated that no one from the district attorney’s office had informed him that he could not mention Bougon’s previous conviction. The defense counsel then moved for a mistrial asserting irrevocable prejudice to the defendant, but the trial court denied the motion. The court did however instruct the jury that the statement made by Boze-man was improper and that it should not be considered by them as they continued to hear the evidence and consider the case. The court further polled the jurors individually, and each agreed that he or she could set the remark aside and continue to hear the evidence without considering the remark.

¶ 22. The trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial ef-feet. Weeks v. State, 804 So.2d 980, 992(¶ 37) (Miss.2001). The trial judge is provided considerable discretion in determining whether a remark is so prejudicial that a mistrial should be declared. Id. However, if serious and irreparable damage has not occurred, then the trial judge should direct the jury to disregard the remark. Id. The failure of the court to grant a motion for mistrial will not be overturned on appeal unless the trial court abused its discretion. Bass v. State, 597 So.2d 182, 191 (Miss.1992).

¶ 23. In the present case, we find that the trial judge did not abuse his discretion in denying Bougon’s request for a mistrial. The judge admonished the jury and polled them individually; therefore, he took appropriate measures to cure any potential prejudicial effect of the remark. For the forgoing reasons, this issue lacks merit.

(k) Initial Appearance

¶ 24. Bougon argues that the State’s failure to provide him with an initial appearance within forty-eight hours of his arrest resulted in statements which were later used against him at trial. He further asserts that the failure to provide an initial appearance violated his constitutional rights and resulted in prejudice to him at trial when the statements were introduced.

¶ 25. Rule 6.03 of the Uniform Rules of Circuit and County Court requires that every person in custody be taken, without unnecessary delay and within forty-eight hours of arrest, before a judicial officer or other person authorized by statute for an initial appearance. URCCC 6.03. However, a violation of Rule 6.03 alone will not result in the suppression of evidence or reversible error where the defendant was informed of his rights and made a knowing and voluntary waiver. Jones v. State, 841 So.2d 115, 132(¶ 47) (Miss.2003). Thus, the failure to provide an initial appearance for an accused within the time provided is not in and of itself a reason to suppress a confession. Id.

¶ 26. Bougon was arrested on March 22 and was not taken before a judge for an initial appearance until March 26. He was read his rights immediately after being arrested. On Sunday, March 25, he again was administered his rights and he signed a waiver and gave what may be termed an oral confession.

¶ 27. Bougon cites Abram v. State, 606 So.2d 1015 (Miss.1992) in support of his argument that since he was not afforded an initial appearance within forty-eight hours, his oral statements should have been suppressed. In Abram, the defendant was not brought for an initial appearance until seventy-two hours after his arrest. Our supreme court found that the “the failure to provide the initial appearance reversible since, as a consequence, Abram gave a confession in the absence of, and in violation of, his right to counsel.” Id. at 1029. The court went on to hold that the error could not be harmless in light of the fact that Abram’s capital murder conviction was based entirely on his confession. Id. The court further observed that the failure to provide Abram with a timely initial appearance had devastating consequences for the defense and that law enforcement authorities would never have obtained an uncounseled confession from Abram had he been given an initial appearance and access to counsel without unnecessary delay. Id.

¶ 28. This case is easily distinguishable. The State correctly points out that in Abram, the confession in question was found to be coerced and the confession was the only evidence tying Abram to the crimes. In the case-at-bar, nothing in the record suggests there was any type of coercion. Bougon freely and voluntarily waived his rights under Miranda and freely gave a statement. Unlike, in Abram, here, the law enforcement authorities did not subject Bougon, following his arrest, to immediate and constant interrogation until they obtained a confession. Therefore, we affirm the trial judge’s ruling.

(5) Court’s Comments to the Jury

¶ 29. Bougon alleges that the trial court erred in denying his motion for a mistrial based on a comment made by the court to the jury. He claims that the judge’s remark left the jury with the impression that the court would not allow a mistrial and that the jury would be forced to deliberate until they reached a verdict.

¶ 30. The jury began deliberations around 10:50 a.m. after more than seven days of trial. Around 3:50 p.m. on the first day of deliberation, the jury signaled it could not reach a unanimous decision, being split seven for manslaughter and five for not guilty. The jury was told to continue to deliberate. At approximately 8:55 p.m., the jury again indicated that it had been unable to reach a unanimous verdict, being split eight for manslaughter and four for not guilty. The spokesperson for the jury stated that she did not think that further deliberations would be helpful. The court dismissed the jury for the night with instructions to return for further deliberations at 9:00 a.m. the next day.

¶ 31. On the following morning the court gave the Sharplin charge and instructed the jury to continue deliberations in order to try and reach a unanimous verdict. At approximately 11:58 a.m., the jury was brought into the courtroom, and the court inquired if the jury was still divided along the same numerical lines and if the jury thought further deliberations would be helpful. The spokesperson advised that the division remained the same but that she thought further deliberations would be helpful. The court then returned the jury to the jury room for further deliberations. At approximately 2:15 p.m., the jury sent a note that it was “hung, ten guilty, two not guilty.” The trial judge had the jury returned to the jury box, and the record reflects that the following transpired:

THE COURT: And I have had a communication from you which would indicate just on the face of what you have told the Court — what the jury has told the Court, there has been some movement.
JUROR KATHY LAND: Yes, sir.
THE COURT: My question would be whether, based on that, do you feel that further deliberation would tend to enable the jury to reach a verdict?
JUROR KATHY LAND: No, sir, I do not.
THE COURT: I’m going to let you all return to the jury room and continue deliberation.
JUROR KATHY LAND: Yes, sir.
THE COURT: Be retired.
WHEREUPON, AT 2:22 P.M., THE JURY WAS RETIRED TO THE JURY ROOM, AND THE FOLLOWING PROCEEDINGS WERE HAD OUT OF THE PRESENCE OF THE JURY:
THE COURT: Court will be in recess to await the verdict of the jury.

¶32. At 4:00 p.m., the jury was returned to the jury box, and the court inquired if the numerical split had changed. The spokesperson responded that it had not but that the jury felt that further deliberation would enable it to return a unanimous verdict. The trial jury was returned to the jury room for further deliberations and, at 4:20 p.m., reported that it had reached a unanimous verdict of guilty.

¶33. Following the court’s inquiry of the jury which occurred at 2:15 p.m., Bougon made a motion for a mistrial, alleging that the comment, which was allegedly made in the presence of the jury, was improper because “the judge’s statement seemed to have the effect of eliminating the option of the jury to return a hung verdict.” The judge denied Bougon’s motion, reasoning that his statement was not so prejudicial as to rise to the level of mistrial.

¶ 34. We agree with the judge that his remarks were not prejudicial to Bougon. The judge simply stated that the court would be in recess until a verdict was returned, and a review of the statement in the context in which it was made reveals that one could not reasonably interpret it to mean that a mistrial or hung verdict was not an option. In fact, the jury reported approximately an hour and a half after the comment was made that it was still divided along the same numerical split as it had been before the comment was made. Surely, if the jury had understood or believed that the court was directing it to go out and return a verdict of guilty, it would not have taken two hours to do so. For the forgoing reasons, we find that the judge did not abuse his discretion in denying Bougon’s motion for a mistrial; therefore, we affirm the judge’s denial of the motion for a mistrial.

(6) Remarks of Prosecutor

¶35. During the defense’s cross examination of State’s witness, Eric Fulton, the prosecutor made the following objection:

Your Honor — excuse me. If it please the court, I have been waiting to make this objection trying to decide what appropriate time. But, if the defense of the defendant is alibi—

Bougon’s defense attorney immediately objected and moved for a mistrial. The trial judge ruled that the comment was not fatal and denied the motion. Bougon contends that the trial court erred in denying his motion because the comment impermis-sibly conveyed to the jury that he was obligated to put on a defense in his behalf and would be forced to testify.

¶ 36. The State correctly notes that, on issues of comments concerning a defendant’s failure to testify, each case shall be considered on an individual basis. Weeks, 804 So.2d at 993(¶ 43). Further, the intention of the prosecutor is immaterial; the test is whether the language can be reasonably construed to be a comment upon the failure of the defendant to take the stand. Id

¶ 37. We find no abuse of discretion here. The judge was well within his discretion in denying Bougon’s motion for mistrial. Nothing in the record suggests that the statement in issue directly or indirectly referred to Bougon’s right to testify or take the stand, and the statement cannot be construed reasonably to mean what Bougon alleges. Further, our review of the record indicates that the notion of an alibi was first introduced by the defense and not the State. In his opening statements, Bougon’s attorney argued that “And I’m going to tell you that through that date — through that day of the 19th there was about an hour or two that morning when he was alone. The rest of the time there was somebody with him and thus the defense has an alibi.” As the State points out, since this information regarding Bougon’s defense had already been placed before the jury during opening statements, he cannot claim prejudice. Additionally, Bougon did in fact take the stand and testify in his own defense. This issue lacks merit.

(7) Court’s Comment

¶ 38. During the State’s redirect of its witness, Calvin Fulton, the following exchange occurred:

Q: And apparently he had the net on when he was shot?
A. Apparently so.
DEFENSE ATTORNEY: Object to leading and speculation, your honor.
THE COURT: All right. I’m going to overrule the objection with this comment. It may be early akin to leading. But, in light of the broad cross-examination on the issue of hunter safety and in the interest of time, I think it’s proper to allow Mr. Turner to get to the particular points about refuting what you sought to develop. So objection is overruled. Go ahead.

The defense then moved for a mistrial on the basis that the court had strongly suggested to the jury that the defense’s cross-examination of the witness was unusual in that it was more thorough and broader than an ordinary cross-examination. Defense counsel further argued that “the implication of that to this jury is that he [attorney for the State] can refute things that I developed on cross-examination of this witness, and that the court expects him to refute things which were brought out on cross-examination.” Defense counsel now maintains that this was an improper comment on the evidence.

¶ 39. The court denied Bougon’s motion, stating that “it was not the intent of the court to infer anything to the jury that the court was leaning a particular way. It was simply just to in the interest of time alert the parties that I was going to allow the State reasonable latitude as far as its redirect.” The court further stated that the remark was not intended to be prejudicial and then offered to admonish the jury. Bougon, however, never requested that the court warn the jury about the comment.

¶ 40. The State properly advances that trial judges may explain their rulings on evidentiary objections so long as they do not comment upon the evidence in a prejudicial manner. Wells v. State, 698 So.2d 497, 510 (Miss.1997).

¶ 41. We find that the judge did not err in denying Bougon’s motion for a mistrial. We further find that his statement was not an improper comment on the evidence nor an attempt to influence the jury’s verdict.

(8) Jury Instruction

¶ 42. Bougon submitted a lengthy jury instruction outlining the various degrees of culpable negligence, and the court amended the instruction before giving it to the jury. As a result, Bougon now asserts that because the jury was not instructed on the theories and degrees of negligence, his right to a fair trial and just verdict was denied. He maintains that the trial court failed to insure that the jury was fully and properly instructed. He alleges that since the jury was left to speculate as to what actions constituted culpable negligence, his conviction must be overturned.

¶ 43. When determining whether error lies in the granting or refusal of various instructions, we must consider all the instructions given as a whole. Simmons v. State, 805 So.2d 452, 476(¶ 37) (Miss.2001). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id.

¶ 44. Bougon directs this Court to Edwards v. State, 755 So.2d 443 (Miss.Ct.App.1999). In Edwards, a child drowned while on a camping trip with his family. Id. at 445(¶ 2). The parents were indicted for culpable negligence manslaughter. Id. at 445(¶ 3). This Court found that the failure of the State to specify, in the jury instructions, what actions or inactions by the defendants constituted criminal negligence on their part left the jury to “the wildest field of speculation.” Id. at 447(13). We concluded that the instructions were so defective as to deny the defendants a fundamentally fair trial. Id. We reversed and rendered, but we did so because of the insufficiency of the evidence rather than the defective jury instructions. Id. at 448(20). We did, however, conclude that the deficient jury instructions would require reversal. Id. at 447(¶ 15).

¶ 45. In the present case, unlike in Edwards, it is apparent from the record that there was abundant evidence presented during the trial to support Bougon’s conviction. Further, we find that the amended version of jury instruction D-22 sets forth a correct statement of the law, and it properly instructed the jury, in a concise manner, regarding the various degrees of negligence. The amended version of the instruction is substantially similar to the original version and is less confusing. For the forgoing reasons, this issue is without merit.

(9) Cumulative Effect of Errors

¶ 46. Bougon finally contends that the cumulative effect of errors at his trial denied him a fair trial. He maintains that these errors were not harmless and have resulted in prejudice to him.

¶ 47. Individual errors, not reversible in themselves, may combine with other errors to make up reversible error. Weeks, 804 So.2d at 998(¶ 70), citing Wilburn v. State, 608 So.2d 702, 705 (Miss.1992). However, if there are no reversible individual errors, it stands to reason that there can be no cumulative error. After a thorough review of the record, we have found no reversible error as to each individual issue. Therefore, it follows that we find no cumulative reversible error. We are satisfied that Bougon was afforded a fundamentally fair and impartial trial even though it may not have been a perfect trial. However, a perfect trial is not constitutionally required, as such would be almost impossible to obtain.

¶ 48. THE JUDGMENT OF THE CIRCUIT COURT OF NESHOBA COUNTY OF CONVICTION OF CULPABLE MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH ONE YEAR SUSPENDED AND ONE YEAR OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NESHOBA COUNTY.

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

      . The trial court gave the following instruction on flight:
      The Court instructs the Jury that "flight” is the evading of the course of justice by voluntarily withdrawing one's self in order to avoid arrest, detention, or the institution or continuance of criminal proceedings, regardless of whether one leaves the jurisdiction.

        Flight is a circumstance from which guilty knowledge and fear may be inferred. If you find from the evidence in this case beyond a reasonable doubt that the Defendant Phillip W. Bougon did flee or go into hiding, such flight or hiding of Phillip W. Bougon is to be considered in connection with all other evidence in this case. You will determine from all of the facts whether the flight was from a conscious sense of guilt or whether it was caused by other things, and give it such weight as you think it is entitled to in determining the guilt or innocence of Phillip W. Bougon.

      . Bell was an inmate in the Neshoba County jail at the same time as was Bougon and Bozeman.

      . See Sharplin v. State, 330 So.2d 591, 596 (Miss.1976) for the text of the instruction.

      . Bougon states in his appellate brief that this statement was made in the presence of the jury, that the court reporter made the correction but that for some unexplained reason, the correction was not included in the appellate record. The State makes no contention that this is not an accurate statement of what actually transpired; therefore, we accept the accuracy of the representation.