author: I,WILLIAMS, Judge. L CARAWAY, J., h TRAYLOR, Judge Pro Tempore,

text:
    Theresa BROWN, Plaintiff-Appellee, v. F.L. WILLIAMS and Barbara Williams, Defendant-Appellant.
    No. 36,863-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 31, 2003.

      Mitchell Hoffman, for Appellant.
    Leroy H. Scott, Jr., Shreveport, Leroy H. Scott, III for Appellee.
    Before WILLIAMS, STEWART, CARAWAY, PEATROSS and TRAYLOR (Pro Tempore), JJ.
   I,WILLIAMS, Judge.

The defendants, F.L. and Barbara Williams, appeal a judgment in favor of the plaintiff, Theresa Brown. The trial court, finding that the plaintiffs home was destroyed by a fallen tree which had snapped because of its defective condition, awarded plaintiff damages of $50,000 for the value of her home and $25,000 for the loss of its contents. For the following reasons, we affirm.

FACTS

On April 23, 2000, Theresa Brown resided on Abbie Street in Shreveport, next door to F.L. and Barbara Williams. A large oak tree was located on the Williams’ property. During a storm which generated a tornado in the area, the Williams’ oak tree snapped at a point approximately four feet above the ground and fell, demolishing Brown’s home and destroying its contents.

Another large tree located one block away was uprooted and a church approximately one mile away was destroyed. Within three to five blocks of the Williams’ home, the wind damage to other houses included roof shingles and a car port which were torn away. According to the National Weather Service, a category F-l tornado with winds of 73 to 112 mph had traveled from Cross Lake and passed near the parties’ neighborhood toward downtown Shreveport.

Subsequently, the plaintiff, Theresa Brown, filed a petition for damages against the defendants, F.L. and Barbara Williams and their insurers, Certain Underwriters at Lloyds, London and Specialty Risk Associates. At trial, Rick Kilpatrick, an expert in forestry, testified that the | ¡.defendants’ tree was diseased with a condition known as “heart rot” and opined that this condition was the reason the tree could not withstand the storm winds. The defendants’ expert arborist, Curtis Lambert, testified that he believed the extremely high winds associated with the storm had caused the tree to fall.

The trial court issued written reasons for judgment finding that the tree trunk would have survived the storm if not for its weakened condition, that this defective condition was the cause of plaintiffs damages and that the defendants should have known of the tree’s defective condition in the exercise of reasonable care. The trial court rendered judgment awarding plaintiff damages of $50,000 for the value of her home and $25,000 for the value of its contents. The defendants appeal the judgment.

DISCUSSION

The defendants contend the trial court erred in finding them liable for damage caused by the falling tree. Defendants argue that the heart rot disease did not sufficiently weaken the tree so as to constitute a defect which presented an unreasonable risk of harm.

An individual is responsible for the damage caused by his own act and by things in his custody. LSA-C.C. art. 2317. The owner or custodian of a thing is answerable for damage caused by its defect only upon a showing that he knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care, and that he failed to exercise 1¡¡such care. LSA-C.C. art. 2317.1. Thus, to recover for damages caused by a defective thing, the plaintiff must prove that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Moody v. Blanchard Place Apts., 34,587 (La.App.2d Cir.6/20/01), 793 So.2d 281.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of conflicting evidence was reasonable in light of the record as a whole. Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.8/19/98), 716 So.2d 511. Where there is a conflict in the testimony, a trial court’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own inferences are as reasonable. Harris v. Carter, 33,951 (La.App.2d Cir.10/4/00), 768 So.2d 827.

In the present case, Rick Kilpa-trick, a state forestry agent for 17 years with a master’s degree in forest biometrics, was accepted as an expert in forestry, encompassing the assessment of diseased trees. Kilpatrick testified that he first saw the remaining stump of defendants’ tree in February 2001 and observed an area of heart rot, which is an infection of the heart wood, or center, of the tree. Kilpatrick explained that the interior of a tree trunk | ¿consists of heart wood, the strongest part of the tree, surrounded by sap wood. He estimated that approximately one-fourth to one-third of the tree’s center had rotted. Kilpatrick testified that this diseased condition would have significantly weakened the tree. He stated that heart rot often initiates at the place where a large limb breaks off from the tree.

Kilpatrick explained that because oak trees have shallow roots, healthy oaks may be uprooted in very high winds, whereas trees with deeper roots, such as pines, will break apart at the trunk. Kilpatrick opined that if defendants’ oak tree had been sound with solid wood throughout, then the tree was very unlikely to have broken in two as a result of the storm winds, indicating that the tree snapped because of the heart rot disease. Kilpa-trick testified that in his opinion, if the storm winds had caused the tree to fall, it would have been uprooted and would not have snapped in two, except for its defective condition due to heart rot. Kilpatrick acknowledged that there may or may not be visible external signs that a tree has heart rot. He stated that the presence of green leaves indicates the tree is alive, but not necessarily healthy.

Curtis Lambert, Jr., was accepted as an expert arborist based upon his experience in performing residential tree service work since 1954. Lambert testified that in August 2001, he inspected the oak tree stump on defendants’ property and observed heart rot. He stated that the heart wood measured approximately 18 inches across and was surrounded by sap wood 20 inches wide. Lambert testified that heart rot is progressive, so that it continues reducing the heart wood over time, but the sap wood remains unaffected.

| ^Lambert stated that although a tree which loses its heart wood will be weaker than an uninfected tree, the remaining sap wood in defendants’ tree would have been sufficient to keep the tree standing in a normal wind. Lambert opined that based on his observations, the heart rot condition did not necessarily make the defendants’ tree defective and that the tree would still be standing if not for the extreme winds of the storm. Lambert testified that after examining the stump, he had not seen evidence that heart rot had caused the tree to fall in April 2000. Lambert stated that a broken tree limb in some cases would initiate heart rot, but not if the area healed promptly.

Ernest Ethridge, chief meteorologist at the National Weather Service (“NWS”) office in Shreveport for 23 years, was accepted as an expert in meteorology and the assessment of storm-related damage. Ethridge testified that approximately one year after the category F-l storm of April 23, 2000, he visited several different places along the storm’s track looking for evidence of related damage. Ethridge stated that he went to the Allendale area and saw the location where the oak tree had fallen at the corner of Abbie and Norma Streets. He testified that he viewed the stump in defendants’ yard and' calculated that approximately 19% of the stump had rotted. Based on his observations, Ethridge opined that a severe storm with winds of 80 to 90 mph had moved through the neighborhood and that the force exerted by those winds probably caused the defendants’ tree to fall.

The defendant, Barbara Williams, testified that she and her husband experienced difficulty driving home after the storm because of debris and tree limbs in the street. Williams stated that a large oak tree located on her | r,premises had snapped and fallen over, destroying plaintiffs home and its contents. Williams testified that other trees and houses in her neighborhood had been damaged, including another large oak tree which had fallen over on the next block. She acknowledged that prior to this incident, defendants had never hired a tree service to trim the tree’s branches nor performed any other type of maintenance of their tree, even after a large limb had broken off the tree approximately ten years earlier. Williams testified that the defendants were not aware of the heart rot condition and that the tree did not appear to be in distress, but to the contrary, seemed healthy due to the large amount of green leaves present.

The defendant, F.L. Williams, also testified about the storm damage to other houses and trees in the neighborhood, stating that shingles found in his yard had been blown off a nearby roof. Mr. Williams denied that any of his neighbors had suggested that he cut down the large tree. Mr. Williams testified that he did not see any reason to perform maintenance of the tree because it produced green leaves every year and appeared healthy.

Mattie Harris, a neighbor who lived one house away from defendants, testified that she was at home during the storm in April 2000, when she heard a “roaring noise,” became frightened and went into her closet. Harris stated that after the storm passed, she looked outside and saw that her aluminum carport was gone, her roof was damaged and that the defendants’ tree had snapped and fallen onto plaintiffs house. Harris testified that a huge tree which was uprooted on Norma Street was the only other tree that fell in her immediate area. Harris stated that she might have made a “casual |vstatement” in a teasing manner to Barbara Williams about cutting down the tree because of its size. Harris testified that she did not see defendants perform any maintenance of their tree, which did not appear to be diseased.

The evidence shows that the oak tree at issue was in the custody of the defendants and was infected with the disease of heart rot. The testimony by Kilpatrick and Lambert demonstrated that the heart rot would weaken the structure of the tree over time through the increased decay of the heart wood, which was a vital part of the tree’s stability. Given the size of the tree, its proximity to the plaintiffs home, the gravity of the potential injury and the likelihood of serious harm to persons or property if the tree fell in this residential neighborhood, the trial court could reasonably find that the diseased condition of the tree was a defect which presented an unreasonable risk of harm to others.

In their brief, the defendants contend the plaintiff failed to meet her burden of proving that they knew or should have known of the tree’s unreasonably dangerous condition. Defendants argue that they could not have known about the diseased condition of the tree because there were no visible signs of heart rot and the tree appeared healthy.

The Article 2317.1 requirement of actual or constructive knowledge imposes upon the owner or custodian a duty to exercise reasonable care in discovering ruin, vice or defect. This is a duty to recognize that the thing creates an unreasonable risk of harm to another when applying the degree of attention, perception of the circumstances, memory, intelligence and judgment exercised by a reasonable person. Myers v. Dronet, 01-05 (La.App. 3rd Cir.6/22/01), 801 So.2d 1097.

The defendants acknowledged that during their custody of the tree, a period of more than 25 years, they did not perform any maintenance of the tree whatsoever. They did not take the step of painting over the spot where the limb had broken off ten years earlier and apparently had not even pruned the branches of this large oak tree. Defendants accepted the benefits of the tree, but refused to act to provide minimal care for the tree or to assess the health of the tree, despite the risk of significant harm to their neighbor or themselves if the tree fell due to disease or weather conditions. Based upon the particular circumstances of this case, we cannot say the trial court was clearly wrong in finding that the defendants should have known of the tree’s defective condition in the exercise of reasonable care and could have prevented this incident with ordinary maintenance.

Alternatively, defendants argue that they are not liable for the plaintiffs property damage because the tree fell as a result of unusually high winds caused by a force of nature. Once a plaintiff has proven the elements necessary to recover for damage caused by a thing in another’s custody, the owner of the thing can avoid liability if he shows that the harm was caused by an Act of God. Greene v. Fox Crossing, Inc., 32,774 (La.App.2d Cir.3/1/00), 754 So.2d 339.

An Act of God, or force maj-eure, is an unusual, sudden and unexpected manifestation of the forces of nature which man cannot resist. An injury caused by an Act of God is one which is due directly and exclusively to natural causes that could not have been prevented by the |9exercise of reasonable care. Recovery for injuries caused by extreme weather conditions may be precluded by the application of this rule. Greene v. Fox Crossing, Inc., supra.

In the present case, defendants produced expert testimony by Lambert and Ethridge, who opined that the extremely high winds of the severe storm caused the defendants’ tree to fall. In contrast, Kilpatrick opined that the defendants’ tree would not have snapped in the storm if it had not been weakened by heart rot disease. Defendants offered testimony describing damage to other trees and buildings throughout the Allendale area as evidence that unusually high winds generated by a tornado had caused their tree to fall. Defendants also showed that another large oak tree on the next block had fallen during the storm.

However, the other fallen oak tree had been uprooted, whereas the defendants’ tree had broken in two at a point along its trunk while the roots remained securely in the ground. In addition, smaller trees closer to defendants’ tree remained standing. This situation was consistent with Kilpatrick’s opinion that a healthy oak tree which was knocked over by storm winds would be uprooted, but that an oak tree which fell because it was weakened by disease would snap apart.

The trial court heard the conflicting expert testimony and weighed the credibility of the witnesses. Considering the evidence presented, we conclude the trial court was not clearly wrong in finding that the defendants failed to establish that the plaintiffs property damage was due directly and exclusively to natural forces which could not have been prevented in the 1 inexercise of reasonable care. Consequently, we cannot say the trial court erred in rejecting the defendants’ affirmative defense and in imposing liability upon them for the damage to plaintiffs property. The assignment of error lacks merit. Damages

The defendants contend the trial court erred in awarding $75,000 for the plaintiffs property damage. Defendants argue that the record does not support the damage award because the plaintiff failed to present evidence of the actual value of her house or its contents on the date of the accident.

When property is damaged through the fault of another, the primary goal is to restore the property, as nearly as possible, to its condition immediately prior to the damage. To determine the amount of damage to property, our courts have followed three approaches: (1) the cost of restoration if the damaged item can be adequately repaired; (2) the difference in value prior to and after the damage; or (3) the cost of replacement, less reasonable depreciation, if the value before and after the damage cannot be reasonably determined. Summarell v. Ross, 27,160 (La.App.2d Cir.8/23/95), 660 So.2d 112; Cenac v. Duplantis, 407 So.2d 424 (La.App. 1st Cir.1981).

The trier of fact is given great discretion in determining damage awards. Before the trial court’s damage award may be disturbed, the record must clearly show that the factfinder abused its broad discretion in making the award. Jackson v. A.L. & W Moore Trucking, 609 So.2d 1064 (La.App. 2d Cir.1992). An appellate court’s function is not to determine |nwhether a different damage award may have been more appropriate, but whether the trial court’s award is based on justifiable inferences from the evidence and is reasonably supported by the record. Summarell v. Ross, supra.

In the present case, Donald Coleman was accepted as an expert in home construction in the Shreveport area. He testified that he was familiar with houses similar to the plaintiffs home in the Allen-dale area. Coleman opined that the cost to rebuild plaintiffs home would be approximately $60,000 to $70,000. Coleman was not able to estimate the market value of the plaintiffs house prior to the April 2000 accident.

Defendants contend that the trial court should not have made an award for property damage because the plaintiff failed to offer evidence of the actual value of her house and contents at the time of the damage. However, the record shows that the plaintiffs home and contents were damaged beyond repair, so that a fair market value of plaintiffs property could not be assessed at the time of the accident. Consequently, the only reasonable approach remaining to determine the amount of plaintiffs damages was the use of replacement cost less depreciation.

The plaintiff presented expert testimony concerning the cost to rebuild, or replace, her home and the trial court reduced that amount by assessing a depreciation rate of approximately 20%, a percentage which can be calculated from the figures stated by the expert witness. Based upon the evidence in the record, we cannot say the trial court abused its discretion in awarding damages of $50,000 for the loss of plaintiffs home.

11gWith regard to the contents of the home, the trial court accepted the plaintiffs testimony that she owned the household goods listed in Exhibit P-5, which was admitted into evidence. Plaintiff estimated that the purchase price of the contents was approximately $30,000. The list of contents included, among other items, all household furniture, a stove, refrigerator, washer and dryer, two window-unit air conditioners, a computer with printer, two televisions with VCRs and all clothing, bedding, books and photographs.

In their brief, defendants argue that the record does not support the award for lost contents because the plaintiff did not demonstrate the market value of the goods and failed to present expert testimony regarding the appropriate depreciation factor. However, the cases cited by defendants do not provide authority for their position that expert opinion is required to enable the court to assign a depreciation value. Additionally, as previously stated, the applicable damages standard in this case is replacement cost less depreciation.

In making an award for the lost contents, the trial court weighed the testimony, considered the extensive list of plaintiffs property and applied a depreciation factor. The trial court was able to make reasonable inferences from the evidence presented to determine the replacement cost of the plaintiffs contents and to reasonably depreciate that amount.

After reviewing the record as a whole, we cannot say the trial court’s award of $25,000 for the complete loss of plaintiffs household goods, furniture and appliances is beyond the amount reasonably within the | ^factfinder’s broad discretion. Thus, we will not disturb the property damage awards. The assignments of error lack merit.

In their brief, defendants contend that Specialty Risk Associates was neither named as a party to this action nor served with a copy of the petition, and thus should not have been cast in judgment. Although this contention was not assigned as error, we note that contrary to defendants’ assertion, their motion for an extension of time to file an answer expressly names Specialty Risk Associates as one of the defendants who “suggest to the Court that they were recently served with a copy of the Amended Petition for .Damages.... ”

Generally, an objection to the sufficiency of service of process is raised by the filing of a declinatory exception and all objections which may be raised are waived unless pleaded therein. LSA-C.C.P. art. 925(C). Where a judgment has been entered against a defendant, the question of sufficiency of service of process may not be raised for the first time on appeal. Rather, the issue should be raised in a suit to annul the judgment. Sharff v. Tanner, 486 So.2d 1047 (La.App. 2d Cir.1986); Decca Leasing Corp. v. Torres, 465 So.2d 910 (La.App. 2d Cir.1985). The defendants’ argument is without merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment.is affirmed. Costs of this appeal are assessed to the appellants, F.L. and Barbara Williams, Certain Underwriters at Lloyds, London and Specialty Risk Associates.

AFFIRMED.

CARAWAY, J., concurs with written reasons.

TRAYLOR, Judge Pro Tempore dissents with written reasons.

PEATROSS, J., dissents for the reasons assigned by TRAYLOR,-J.

L CARAWAY, J.,

concurring.

Since I would not interpret La. C.C. art. 2817.1 as broadly as the majority, and because of the strength of the storm in question, I respectfully concur in the ruling to express the following reasons for affirmance.

The phrase in newly enacted Article 2317.1 on which I would focus is certainly not new to our law of negligence. It asks whether “the damage could have been prevented by the exercise of reasonable care” by the custodian/owner of this 100-year-old oak tree. That question could have been asked in Loescher v. Parr, 324 So.2d 441 (La.1975), about the healthy looking sixty-foot magnolia which fell across the property line upon the neighbor’s Cadillac. Yet, under the circumstances of that case, we may assume that the court determined that the duty of reasonable care was not breached with regard to the old defective tree in that neighborhood. Instead, the court rendered its historic ruling which interpreted Article 2317 and became the genesis for Louisiana’s strict liability law for “things” in one’s custody. After the passage of Act Number One of 1996, new Article 2317.1 was intended to end the strict liability developed after Loescher and allow only the negligence standard to govern. McCoy v. Lucius, 36,894 (La.App.2d Cir.3/5/03), 839 So.2d 1050; Myers v. Dronet, 2001-5 (La.App. 3d Cir.6/22/01), 801 So.2d 1097. In view of this change in the law, if the tree in Loescher did not give rise to negligence, why did the owners of this old oak fail to exercise reasonable care?

The first factor in this case that leads me to an affirmance of the trial court’s conclusion of negligence is the gravity of the risk of loss of this huge tree in this particular neighborhood. This area of Shreveport is a very | aold inner city neighborhood. The evidence reveals that there were at least five frame homes on small narrow lots literally in the shadow of this “humongous” tree, as described by Mrs. Williams. Ms. Brown’s home was a narrow wooden structure at 1941 Abbie Street that extended from the front of the street all the way back near an alleyway. The Williams’ home next door at 1947 Abbie was not as long, providing a backyard containing the oak which was five feet in diameter at its base. Although the oak was actually on the side of the defendants’ yard furthest from the plaintiffs house, it fell toward the house, splitting it virtually down the middle. The angle of the fallen tree was not directly perpendicular to the plaintiffs house but slightly toward Abbie Street causing the front of the house to crash into a large pecan tree in her front yard doing significant damage to the tree. The far side of plaintiffs home was pushed across her fence coming to rest within a few feet of Calvin Hamilton’s house next door. Therefore, if the tree had fallen perpendicular into plaintiffs house, it would have not only split her house but would have caused further damage to Hamilton’s house.

The large branches of the oak clearly extended over the defendants’ property line on the opposite side of their backyard away from the plaintiff. Two houses down at 1955 Abbie lived Ms. Harris. She testified that she remembered politely suggesting to Mrs. Williams that they should remove the tree. Harris raked leaves in her yard from the tree every year, but her testimony suggested that she had concerns about the huge tree which, if it fell her way, could have also damaged her property and home, and the lot and home in between.

|sThe second factor which apparently did not exist in Loescher is the fact that this oak, prior to its fall, already posed a significant risk by the encroachment of its branches upon neighboring property. (See, opinion of lower court, Loescher v. Parr, 312 So.2d 347 (La.App. 1st Cir.1975), rejecting the application of the sic utere doctrine under La. C.C. art. 667 without mention of the more specific legal servitude for encroachment of the tree branches under Article 691 of the Civil Code of 1870.) An obligation of vicinage or good neighborhood is thus involved in this case. Generally, such obligation is seen in La. C.C. arts. 667-669 which have been the subject of much commentary and jurisprudence. However, the more specific legal servitude regulating the neighborhood relations for tree branches is found in La. C.C. art. 688, which provides as follows:

A landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor. A landowner does not have this right if the roots or branches do not interfere with the enjoyment of his property.

This article revised former Civil Code article 691 and has been interpreted to require the owner of the tree to pay the costs for property damages and nuisance expenses related to fallen leaves and branches from the tree. Scott v. Ramos, 899 So.2d 1266 (La.App. 4th Cir.1981), writ denied, 404 So.2d 279 (La.1981); see also, Gibbs v. Tourres, 50 So.2d 652 (La.App. 2d Cir. 1951) (where the encroachment of the tree branches upon the adjacent lot was apparently a factor in the determination of negligence for the damages caused by the tree).

14With the association under Article 2317.1 between a defendant’s constructive awareness of a defect and his general duty of reasonable care, it is important in this case that the legislature, with Article 688, had already imposed upon these defendants a duty with regard to this tree prior to its demise. Once the tree’s branches encroached upon a neighboring tract, the defendants were charged with the knowledge that the tree’s debris might cause damage or otherwise interfere with the enjoyment of the neighboring tract for which they would be responsible. Because of the foreseeable risk for the falling of large branches upon the neighboring tract and the existing duty under Article 688, the trial court could conclude in this case that “in the exercise of reasonable care” the Williams should have learned of the greater danger posed by the tree’s hidden defect prior to this storm.

Finally, the strength of the tornadic storm in question admittedly was shown by the evidence to be as great or greater than the storm addressed by the court in Rector v. Hartford Accident & Indem. Co., 120 So.2d 511 (La.App. 1st Cir.1960). After a thorough review of definitions of act of God employed in this state and elsewhere, Rector concluded that the downing of the tree in that case was an act of God, reversing the lower court’s finding of negligence. In the opinion the court quoted a concise rule from the Corpus Juris that “an act which may be prevented by the exercise of ordinary care is not an act of God.” Id. at 515. The court also cited the case of Southern Air Transport v. Gulf Airways, 215 La. 366, 40 So.2d 787 (1949), where our supreme court expressed a similar definition finding the defendant negligent despite an extreme wind storm.

| ¡With regard to a large old tree, the defense in question must be seen as overblown. The forces of nature are always acting upon such tree, weakening its endurance. Thus, the duty to guard against large branches falling upon the neighboring tract reflected in Article 688 has within the scope of its protection strong winds of various forces. At what velocity such winds become an act of God is a question which I will humbly avoid in this case in view of the defendants’ failure in performance of their duty before the storm.

h TRAYLOR, Judge Pro Tempore,

dissenting.

I respectfully dissent. The owner or custodian of a thing is no longer strictly liable without proof of fault. La. C.C. art. 2317.1. Plaintiff failed to prove that defendants knew or should have known that there was any defect in their tree or that defendants should have suspected unnoticeable heart rot. There is no duty on a homeowner to become a professional ar-borist in order to diagnose his apparently healthy but ailing water oak of non-apparent conditions. Caples v. USAA Ins. Co., 2000-2513 (La.App. 1st Cir.12/28/01), 806 So.2d 148, writ denied, 2002-0287 (La.04/12/02) 813 So.2d 405. The evidence did show that regardless of heart rot, this tree would still be standing were it not for the category F-1 tornado. As was said in Rector v. Hartford Acc. & Indem. Co. of Hartford, Conn., 120 So.2d 511 (La.App. 1st Cir.1960): “The only way that these defendants could have avoided the effect of this act of God would have been to have had reason to have removed this tree prior to the date of the storm.” Fault should not be proven by hindsight. This is an unwarranted return to strict liability.


source: Caselaw Access Project

author: JjDREW, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Michael Randy BYRD, Appellant.
    No. 37,852-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 31, 2003.
    Louisiana Appellate Project by Kenota Pulliam Johnson, Indigent Defender Board by Angela Waltman, for Appellant.
    John Schuyler Marvin, District Attorney, Dale Newton Montgomery II, Assistant District Attorney, for Appellee.
    Before DREW, MOORE and TRAYLOR (Pro Tempore), JJ.
   JjDREW, J.

We grant the defense motion for expedited hearing on the instant appeal under the authority of Rule 2-11.3, URCA.

The state charged, and defendant Byrd pled guilty to, one count of DWI fourth offense, a violation of La. R.S. 14:98 punishable by imprisonment at hard labor for 10 to 30 years, plus a mandatory fine of $5,000, with a legislatively imposed requirement that 60 days of the sentence of imprisonment are to be served without benefits. The frightening reality is that the remainder of this sentence of imprisonment must be suspended, by legislative mandate, and the offender is to undergo substance abuse treatment as per State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526.

The trial court sentenced defendant to serve 20 years at hard labor and imposed the mandatory fíne. Following the denial of his timely motion for reconsideration, defendant argues the sentence is excessive. We affirm the conviction; however, we must, with much trepidation, vacate the sentence on this defendant’s ninth conviction, and remand for resentencing.

The matters of record show that defendant was arrested on August 31, 2002 for DWI when he nearly collided with a police vehicle as he exited the driveway of a Bossier City lounge. The officer activated the police car’s emergency equipment but the driver did not stop until several blocks later. During that period he drove his vehicle at 25 miles per hour below the posted speed limit and crossed the white centerline several times. When contacted, he exhibited a strong alcoholic odor and had blood shot eyes, slurred speech and an unsteady gait. He was charged with DWI fourth | offense based on prior convictions entered in November 1993, June 1996, May 1997, and February 1999. Two facts are crystal clear: (1) Our highways are unsafe with Mr. Byrd out of jail; because (2) Mr. Byrd is obviously a very dangerous man.

Byrd argues that the sentencing court had no choice but to impose a penalty within the reduced range provided for by the Legislature via an amendment to the statute of conviction which became effective on August 15, 2001. We are constrained to agree by mandate of the Louisiana Legislature and rulings of the Louisiana Supreme Court, State v. Mayeux, supra.

The defendant committed the instant offense after the effective date of the statutory amendment. Yet he gets a break and will be sentenced as per the kinder and gentler provisions of today. We further note that the trial court apparently reasonably believed it was sentencing defendant under La. R.S. 14:98 E(4)(b) which provides that if the offender has previously received the benefit of suspension of sentence or probation as a fourth offender, no part of the sentence may be imposed with benefits. This error may have occurred because the presentence investigation report did indeed reflect that defendant’s September 1999 guilty plea was to DWI fourth offense. However, the actual record of that guilty plea clearly demonstrates the offense of conviction in that instance was reduced to DWI third offense. Thus, the provisions of La. R.S. 14:98 E(4)(b) do not apply.

|3We suggest to the trial court that possibly C. Cr. P. art. 894.2 and art. 895 B. be considered at resentencing.

The conviction is affirmed. The sentence is vacated and the matter is remanded for further proceedings in accord with the statute of conviction as amended.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

      . He has been arrested for DWI twice that many times.


author: THOMAS, J., for the Court.

text:
    Eddie BRYANT a/k/a E-Dog, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01214-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.
    Rehearing Denied Aug. 20, 2002.

      Stephen Nick, Jackson, Attorney for Appellant.
    Office of the Attorney General By John R. Henry Jr., Attorney for Appellee.
    Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.
   THOMAS, J., for the Court.

¶ 1. Eddie Bryant was found guilty in the Circuit Court of Washington County of Count I, aggravated assault, Count II, shooting into a dwelling house, and Count III, murder. Bryant was sentenced to serve a ten-year term for both Counts I and II and a twenty-year term for Count III. All three terms are to run consecutively. Aggrieved, he asserts the following issues:

I. THE TRIAL COURT ERRED IN ADMITTING THE FIVE SHELL CASINGS FOUND AT THE SCENE INTO EVIDENCE.

II. THE TRIAL ERRED IN PERMITTING A WITNESS TO TESTIFY THAT A WEAPON HE LOCATED WAS A .45 CALIBER WEAPON.

III. THE TRIAL COURT ERRED IN REFUSING TO GRANT A PEREMPTORY INSTRUCTION OF NOT GUILTY.

IV. THE TRIAL COURT ERRED IN REFUSING TO GRANT A DIRECTED VERDICT OR JUDGMENT NOTWITHSTANDING THE VERDICT.

V. THE TRIAL COURT ERRED IN DENYING THE APPELLANT A NEW TRIAL.

Finding no error, we affirm.

FACTS

¶2. Eddie Bryant and Gregory Brown did not get along, to say the least. In August 1998, their disagreement came to blows over a girl who was apparently pregnant by one of them. In December 1998, Bryant went by Brown’s mother’s house playing a song he had recorded. Brown was on house arrest due to an earlier burglary of an automobile and lived in the house with his mother, sister, sister’s boyfriend, niece, and several other children. Brown heard the music outside and thought that the lyrics were in reference to him. Brown grabbed a .38 revolver, ran outside and fired at Bryant missing him. Bryant ran off. Brown then went to his girlfriend’s house down the street.

¶ 3. After leaving his girlfriend’s house, Brown stopped by a dice game and spoke to Kendrick Williams. Williams testified at trial that Brown was armed with what appeared to be a .38 caliber revolver. Brown left the dice game and went out to the street. As Brown was walking north down the street, a car passed which belonged to Eddie Bryant’s brother. Brown shined a flashlight into the car to see if Eddie Bryant was in the car. Brown testified that he did not see Eddie Bryant in the car and continued walking toward his mother’s house.

¶ 4. Eddie Bryant’s brother, Christopher, testified that he was driving the car that passed Brown on the street and that Eddie was in the passenger’s seat. At the corner, Eddie Bryant asked to be let out of the car. Christopher testified that Eddie’s hand was in his jacket. The car made the corner and gunfire erupted, according to Christopher. Brown testified that he was entering the driveway of his mother’s house when he saw someone approaching from the street. Brown' testified that the person said, “I’m going to kill you!” before firing shots in his direction. Brown returned fire and ran toward the door to his mother’s house. Brown felt he was outgunned and made his way inside to retrieve more ammunition. Inside, Brown found that his niece had been hit in the head by a bullet. Although he initially went for more ammunition, Brown was worried about being caught since he was not supposed to be in possession of a gun, so he put his gun in its hiding place in a vent and closed it up. Brown walked outside to cool down and spoke with Kendrick Williams again.

¶ 5. During the police investigation of the incident, Brown told the investigators several conflicting stories including that his gun was a “cap gun.” During cross-examination, Brown stated that he lied about the positive identification of Eddie Bryant as the shooter. On redirect, however, he stated that he made that statement on cross-examination because he was “scared of prison.” He stated that he identified Eddie Bryant even though it was dark by the “bounce” he made when he walked. Brown claimed to be very familiar with Eddie Bryant’s appearance. Brown’s mother and sister testified that Brown’s niece had been sitting on a seat near a window in the house when they heard gunfire outside. They soon realized that she had been hit in the head and called for help.

¶ 6. Eddie Bryant showed up at his grandfather’s house just down the street shortly after the gunfire was heard, according to Travis Stewart who was playing dominoes with Bryant’s grandfather at the time. Bryant did not say anything at the time and left the house after only a few minutes. A short time later, Bryant called Stewart and asked him to retrieve a gun that he had hidden under some tires and rims on the side of his grandfather’s house. Stewart told Bryant at this time that Bryant had shot a little girl, but Bryant replied that he did not think he had. Stewart found the gun outside, and testified that it was a large, chrome colored automatic with black grips. Over the defense’s objection, Stewart also testified that the gun was a .45 caliber. Stewart took the gun down the street and gave it to Keith Griffin as instructed by Bryant.

¶ 7. Police investigators on the scene found a bullet that had bent a pole in the carport of the house. Walking down “several houses” in order to determine where the shot had come from, the investigators found five shell casings which were marked as .45 caliber. These were taken into evidence and admitted at trial. They also found two bullet holes in the house and two bullets inside the home, one of which had damaged the television while the other was embedded in the north wall. Neither of these bullets was sent to the crime lab to determine what caliber they were.

¶ 8. Dr. Steven Timothy performed the autopsy on Brown’s niece, who was two years old at her death. She was killed by a gunshot wound to the back of the head that exited through her cheek. The wound was unusual, in that it demonstrated that the bullet was not traveling at a normal trajectory. According to Dr. Timothy, this was consistent with a bullet that had traveled through another object such as the wall before impacting the child’s head. Given the damage and size of the wound, the bullet was consistent with a large caliber bullet.

¶ 9. Eddie Bryant did not testify, but he did present a case-in-chief. Archie Williams testified for the defense that he had been with Bryant and that, Bryant did not have a gun that day. Williams stated that Bryant got out of the car to go to his grandfather’s house and that Williams accompanied him there. Williams said he did not see Bryant hide a gun at his grandfather’s house. Bryant’s grandfather testified that his house was searched and that no gun was found there. At the conclusion of the trial, the jury found Bryant guilty of aggravated assault, shooting into a dwelling house, and murder.

ANALYSIS

I. THE TRIAL COURT ERRED IN ADMITTING THE FIVE SHELL CASINGS FOUND AT THE SCENE INTO EVIDENCE.

¶ 10. Bryant argues that the trial court erred in admitting the five shell casings found at the scene into evidence. Bryant argues that the weapon was never found and that no ballistics tests were performed on either the bullets found in the house or the shells in order to identify their caliber. Under Mississippi Rule of Evidence 403, Bryant claims that the identification of the caliber of the casings was unduly prejudicial because the bullets found in the house were not examined to determine their caliber, although he concedes that the casings were relevant evidence.

¶ 11. During the trial, Bryant insisted that the State not attempt to establish by testimony that the bullets found in the home were .45 caliber. Although the State complied with this request in regard to the bullets, according to Holmes v. State, 754 So.2d 529 (Miss.App.1999), it was within the trial court’s discretion to allow testimony regarding the caliber of the bullets. In Holmes, an officer was allowed to testify regarding the caliber of a slug found at the crime scene, although he made no other assertions as to which gun the bullets were fired from or offered any other opinion which required special knowledge. Holmes, 754 So.2d at 538. The State in this case did not go further than establishing that the bullets were “large.”

¶ 12. In regard to the shell casings found at the scene, the witness testified that they were inscribed with their caliber. Bryant did not object at trial. Without an objection at trial, any claim that the testimony was unduly prejudicial is barred from review here. Cole v. State, 525 So.2d 365, 369 (Miss.1987). Even if we were able to examine the issue, however, we would find no error. According to Wilkins v. State, 264 So.2d 411, 412 (Miss.1972), tools, weapons, and other physical evidence used or usable in the commission of a crime are admissible into evidence provided that they are relevant and not too remote. Bryant admits that the shells were relevant. The caliber is stamped on the rim of the shells by the manufacturer. The shell itself revealed the caliber to the witness, and the witness should therefore be able to testify about them. This issue is without merit.

II.THE TRIAL ERRED IN PERMITTING A WITNESS TO TESTIFY THAT A WEAPON HE LOCATED WAS A .45 CALIBER WEAPON.

¶ 13. Travis Stewart testified that he retrieved a gun at the request of Bryant and gave it to another person. Bryant argues that the trial court erred in permitting Stewart to testify regarding the caliber of the weapon, again citing M.R.E. 403. Travis Stewart was not certified as an expert. However, he was not asked his opinion. Stewart was asked if he “knew” what caliber the gun was, and he testified as a fact that the gun was a .45 caliber handgun. If Bryant wanted to test the basis for this knowledge, he could have done so on cross-examination. If the witness knew what caliber the gun was, he is allowed to testify to it. Holmes, 754 So.2d at 538.

¶ 14. The caliber of the gun found by Stewart was relevant to show that Bryant had hidden a large caliber gun shortly after the gunfight, that the gun was the same caliber as the shells found at the scene, and to distinguish it from the weapon fired by Gregory Brown. This evidence, although circumstantial, could be used by the jury to determine if Bryant had fired the shots that had killed the child. The trial court has broad discretion in determining the relevance of evidence, and there is no basis to find an abuse of discretion here. Baldwin v. State, 784 So.2d 148, 160 (Miss.2001).

III. THE TRIAL COURT ERRED IN REFUSING TO GRANT A PEREMPTORY INSTRUCTION OF NOT GUILTY.

IV. THE TRIAL COURT ERRED IN REFUSING TO GRANT A DIRECTED VERDICT OR JUDGMENT NOTWITHSTANDING THE VERDICT.

V. THE TRIAL COURT ERRED IN DENYING THE APPELLANT A NEW TRIAL.

¶ 15. Bryant’s final three issues will be examined together. Our standard of review for the denial of a peremptory instruction, a directed verdict, and judgment notwithstanding the verdict or new trial are identical. Coleman v. State, 697 So.2d 777, 787 (Miss.1997). Each challenges the sufficiency of the evidence as a matter of law, viewing the evidence in the light most favorable to the verdict. May v. State, 460 So.2d 778, 780-81 (Miss.1984). The standard of review of the legal sufficiency of the evidence is as follows:

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

Wetz v. State, 503 So.2d 803, 808 (Miss.1987) (citations omitted).

¶ 16. In the case at hand, evidence was presented to the jury that Eddie Bryant and Gregory Brown were not on good terms with each other to say the least. On December 1, 1998, Brown saw Bryant and fired at him. That evening, Brown saw a vehicle in which he thought Bryant was riding. Shortly thereafter, a man began firing at Brown and Brown rettirned fire. Brown recognized the man as Eddie Bryant. During the gunfight, at least two large caliber bullets entered Brown’s mother’s house, one of which struck and killed a child. There was testimony that after the firing Brown hid his weapon and later had Travis Stewart retrieve it and give it to another friend. Shell casings and bullets were found at the scene.

¶ 17. Firing upon another with a deadly weapon is clearly an aggravated assault under Mississippi Code Annotated Section 97-3-7(2) (Rev.2000). Knowingly and willfully shooting into a dwelling house and killing a child is depraved heart murder. Windham v. State, 602 So.2d 798, 802 (Miss.1992). Bryant asserts not that the evidence was insufficient but that the prosecution witnesses “cannot be believed.” “As to matters upon which the evidence was in conflict, the court should assume that the jury resolved the conflict in a manner consistent with the verdict.” Craig v. State, 777 So.2d 677, 680(¶ 10) (Miss.Ct.App.2000).

¶ 18. There was ample evidence presented to the jury for it to convict Eddie Bryant, if the evidence was believed. As trier of fact, it was the jury’s duty to determine what evidence was to be believed and what evidence was to be disregarded. Mangum v. State, 762 So.2d 337, 347(¶ 36) (Miss.2000). We find no reason to reverse the jury’s decision in this case and therefore affirm Bryant’s conviction.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF COUNT I AGGRAVATED ASSAULT AND SENTENCE OF TEN YEARS, COUNT II SHOOTING INTO A DWELLING HOUSE AND SENTENCE OF TEN YEARS, AND COUNT III MURDER AND SENTENCE OF TWENTY YEARS, ALL SENTENCES TO RUN CONSECUTIVELY AND TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

McMILLIN, C.J., KING and SOUTHWICK, P.JJ, BRIDGES, LEE, IRVING, MYERS, CHANDLER and BRANTLEY, JJ., concur.


author: CHANDLER, J., for the court.

text:
    Marcus DAVIS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-02000-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.
    Rehearing Denied Sept. 3, 2002.
    Certiorari Denied Feb. 6, 2003.

      Stephen Nick, Jackson, attorney for appellant.
    Office of the Attorney General By Charles W. Maris Jr., attorney for appel-lee.
    BEFORE KING, P.J., BRIDGES, and CHANDLER, JJ.
   CHANDLER, J., for the court.

¶ 1. On May 6, 1999, Marcus Davis was indicted for one count of armed robbery and one count of aggravated assault. He was tried on the crimes charged in the Circuit Court-of Washington County, Mississippi on May 18, 2000. A mistrial resulted because the jury was unable to reach a verdict. Davis was again tried on September 14, 2000. He was found guilty of both charges and sentenced to serve forty years on count one and twenty years on count two, to run consecutively. Feeling aggrieved by the convictions against him, Marcus filed this appeal and alleges six assignments of error.

¶ 2. First, Davis argues that the trial court erred in ordering that David Wilson conduct his psychological evaluation, rather than a staff member of the Forensic Services Division at the Mississippi State Hospital at Whitfield. Next, he argues that the trial court erred in denying his request to read the statement of Nick Crechale, one of the victims, for purposes of refreshing Mr. Crechale’s memory. Davis further argues that the trial court erred when it denied his request to admit into evidence the statements of witnesses Terri Nelson and John Berry. Next, he alleges that the trial court erred when it denied his request to admit into evidence the statements of witnesses George Ford and Toni McCollum. Davis also argues that the trial court erred in the manner in. which the jury was instructed on the law. Finally, Davis maintains that the trial court erred when it denied his motion for a new trial or in the alternative for judgment notwithstanding the verdict.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. On the evening of May 6, 1999, Davis, wearing a mask and a Dallas Cowboys Starter jacket entered Nick’s Bar-B-Que in Greenville, Mississippi. He walked up to the counter, aimed a handgun at the employee working there and demanded the money in the cash register. The employee, Nelson, told Davis that she was unfamiliar with the register and could not open it. Davis then fired the gun one time. Nelson called for Nick Crechale, owner of the restaurant. Crechale came out of the kitchen with a meat cleaver. Davis tried to go behind the counter but Crechale came at him and hit him on the arm with the cleaver. In response, Davis shot Crec-hale in the head and then fled the restaurant. Davis abandoned the mask and jacket in a nearby field. Subsequently, Nelson identified Davis as the man who tried to rob the restaurant and shot Crec-hale. The police arrested Davis and he gave a complete statement admitting the commission of the crimes.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR IN ORDERING DAVID WILSON TO PERFORM DAVIS’S PSYCHOLOGICAL EVALUATION RATHER THAN A STAFF MEMBER AT WHITFIELD?

¶ 5. Davis argues on appeal that the trial court erred when it ordered that David Wilson would perform the mental evaluation he requested, rather than a member of the Forensic Services Division at the Mississippi State Hospital at Whitfield. He maintains that Wilson is not a psychiatrist or psychologist as required by statute and therefore not competent to perform the evaluation. Davis further argues that Wilson’s evaluation was incomplete because it did not specifically consider whether Davis gave a false confession to the police.

¶ 6. This assignment of error must fail for two reasons. First, Davis is procedurally barred from making this argument because he failed to object at the trial level. If a defendant fails to make a contemporaneous objection at the trial level, he is barred from raising the issue on appeal. Berry v. State, 575 So.2d 1, 9 (Miss.1990).

¶ 7. Notwithstanding the procedural bar, Davis’s argument fails for a second reason. The Mississippi Supreme Court has held that a defendant does not have the right to the psychologist of his choice. Davis v. State, 374 So.2d 1293, 1298 (Miss.1979) (citing King v. State, 210 So.2d 887, 889 (Miss.1968)). If the court finds that a mental evaluation should be performed, the court has the right to select the expert upon whom it will depend. Id.

¶ 8. At both trials, Davis called Wilson to testify on his behalf. When asked about his qualifications by defense counsel, Wilson stated that he was a licensed counselor and psychologist. Defense counsel asked that Wilson be qualified as an expert by the court and the court agreed. Davis did not question Wilson’s qualifications until after he was convicted during the second trial.

¶ 9. One further issue should be discussed in denying this assignment of error. Davis argues that the report submitted by Wilson was incomplete because it did not include his opinion concerning the veracity of Davis’s statement to the police. Davis asserts that because Wilson failed to address this issue in his report, his ability to present a complete defense was hindered. We disagree. This type of opinion testimony as to truthfulness has been deemed “dubious at best.” Williams v. State, 539 So.2d 1049, 1051 (Miss.1989). See also Griffith v. State, 584 So.2d 383, 386-87 (Miss.1991) (cautioning the court against allowing direct comments as to a witness’s veracity).

II. DID THE TRIAL COURT ERR WHEN IT REFUSED TO ALLOW DEFENSE COUNSEL TO READ CRECHALE’S STATEMENT AT TRIAL FOR PURPOSES OF REFRESHING CRECHALE’S RECOLLECTION?

¶ 10. Davis claims on appeal that the trial court erred when it refused to allow him to read into evidence the prior statement given by Crechale to the Greenville police. Davis argues that he should have been allowed to read the statement to Crechale for purposes of refreshing his recollection because Crechale’s testimony was vague. Defense counsel asked to read the statement to Crechale because Crec-hale stated that he was illiterate and could not read the statement.

¶ 11. Mississippi Rules of Evidence 803(5) reads as follows:

Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

M.R.E. 803(5) (emphasis added). In this case, Davis has failed to demonstrate that Creehale’s recollection was insufficient to allow him to testify fully and accurately. At trial, the court, in refusing defense counsel’s request, stated that there was “no reason for putting the statement in or reading it to him because he hasn’t testified he hasn’t stated a loss of memory, and he hasn’t made any statement that was contrary to anything in that statement. ...” After a careful review of the trial transcript and Crechale’s statement, it is clear that Crechale answered defense counsel’s questions consistently with his prior statement and did not profess to have trouble remembering the events of the robbery and shooting and subsequent investigation. The trial court properly denied this request.

III. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW DAVIS TO INTRODUCE INTO EVIDENCE THE STATEMENTS OF TERRI NELSON AND JOHN BERRY?

¶ 12. Davis argues that the trial court erred in refusing to allow him to introduce the statements of Nelson and Berry. He alleges that both statements were inconsistent with the testimony given at trial and should have been admitted for credibility purposes.

¶ 13. Berry testified that he and his daughter had stopped at Nick’s Bar-B-Que to pick up supper on the evening in question. While there, he saw Davis enter the restaurant, go to the restroom and then leave in a suspicious manner. He noticed Davis carrying a light and dark colored athletic coat under one arm. Berry stated that Davis walked out right behind him and his daughter. Berry stated that Davis was very close to them and that he looked Davis directly in the face for five to ten seconds. When his wife later informed him of what had happened at Nick’s, Berry called the police.

¶ 14. On cross-examination, Davis elicited the fact that Berry’s statement to the police did not contain any reference to the athletic coat. He admitted that he only remembered that fact later. Berry emphatically denied that he had gained knowledge of the coat from a news report.

¶ 15. Nelson also testified to the events that occurred on the night of May 6, 1999. Nelson was working at Nick’s when Davis attempted to rob the restaurant and shot Crechale. Nelson admitted on direct examination by the State that in her initial statement to the police she did not identify Davis as the culprit. She testified that she was not sure at first if Davis was the one responsible. However, upon further contemplation, Nelson gave a second statement to the police in which she stated that she had known Davis for a couple of years and was sure by recognition of his voice, that he was the man who tried to rob Nick’s.

¶ 16. Davis argues that because Berry’s testimony at trial included facts not in his statement to the police and because of the inconsistent nature of Nelson’s two statements, the trial court should have admitted the statements for credibility purposes. He is incorrect.

¶ 17. The credibility of witnesses and the weight and value of their testimony are to be determined by the jury. Burrell v. State, 613 So.2d 1186, 1192 (Miss.1993). Further, as the State notes, when a witness admits making a prior out-of-court inconsistent statement, which has been reduced to writing, the statement should not be introduced into evidence. Brown v. State, 682 So.2d 340, 345 (Miss.1996) (citing Moffett v. State, 456 So.2d 714, 719 (Miss.1984)).

IV. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW DAVIS TO INTRODUCE INTO EVIDENCE THE STATEMENTS OF GEORGE FORD AND TONI MCCOLLUM?

¶ 18. Davis argues that the statements of Ford and McCollum should have been admitted into evidence as excited utterances, thus qualifying as exceptions to the hearsay rule. He argues that the statements given by these two witnesses to the crime were in direct conflict to testimony of other witnesses and should have been admitted for credibility purposes.

¶ 19. Ford was a customer of the restaurant and was present during the incident in question. McCollum was an employee of the restaurant and was also present during the incident. Both Ford and McCollum made statements to the police in which they recorded their recollection of the attempted robbery and shooting.

¶ 20. An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of the excitement caused by the event or condition.” M.R.E. 803(2). The reliability of an excited utterance is based on the premise that circumstances may place the declarant in such an excited state as to temporarily impede the capacity for reflection. Owens v. State, 716 So.2d 534, 535-36 (Miss.1998) (quoting Clark v. State, 693 So.2d 927, 932 (Miss.1997)). There is no hard and fast rule regarding the interval of time that passes between an event and an utterance before the remark necessarily must be classified as outside the excited utterance exception to the hearsay rule. Baine v. State, 606 So.2d 1076, 1079 (Miss.1992). That is a question to be resolved by the trial court in its sound discretion. Davis v. State, 611 So.2d 906, 914 (Miss.1992).

¶ 21. Davis maintains that because these statements were made after witnessing an attempted robbery and shooting, they automatically qualify as an excited utterance. Davis argues that the statements were taken a short time after the incident occurred; however, he does not provide the Court with any specific details. As stated above, admission of a statement is well within the discretion of the trial court. Davis, 611 So.2d at 914. Davis has failed to demonstrate that the trial court abused its discretion in refusing to allow these statements.

¶ 22. It should also be noted that Davis argues that he should have been allowed to introduce these statements to contradict the testimony of Nelson. Nelson testified that she saw the would-be-robber’s hands; however, Ford and McCollum testified that the perpetrator was wearing gloves. These inconsistencies were brought out in testimony at trial. Davis cross-examined all three of these witnesses concerning the matter. Also, Officer Daniel Frank, with the Greenville Police Department, testified that the statements by Ford and McCol-lum indicated that the robber was wearing gloves at the time of the robbery; therefore, the jury had the benefit of these facts and Davis was not prevented from using this information to question Nelson’s credibility.

V. DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY?

¶ 23. Davis objects to two jury instructions that were given by the trial court. First, he argues that the trial court erred in instructing the jury that it was not to draw any unfavorable inferences from Davis’s “failure to testify.” It is the inclusion of the word failure that Davis objects to as error.

¶ 24. This objection must fail for two reasons. First, Davis is procedurally barred from bringing this issue on appeal because he did not object to the instruction at trial. When presented with the instruction, Davis announced, “No objection from the defense.” Where a defendant fails to contemporaneously object to an instruction at trial, he is procedurally barred from raising the issue on appeal. Jackson v. State, 684 So.2d 1213, 1229 (Miss.1996). Further, the language of this instruction is typical in a case in which the defendant does not take the stand. White v. State, 532 So.2d 1207, 1225 (Miss.1988).

¶ 25. Davis next objects to the deletion of certain language from jury instruction D-10. The instruction referred to, including the exempted language, reads as follows:

The court instructs the jury if, from the evidence, you have a reasonable doubt as to the identity of the person who committed the crime or crimes testified about, then you must find the defendant not guilty. If, after carefully considering all the evidence, you are not convinced beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis consistent with innocence, that it was Marcus Davis who committed the crimes or crimes testified about herein, then you must find him not guilty.

Jury Instruction D-10 (underlined material deleted from instruction given).

¶ 26. Again, because Davis failed to object to the amendment of the instruction at trial, he is barred from doing so on appeal. Jackson, 684 So.2d at 1229. In Young v. State, 420 So.2d 1055, 1057-58 (Miss.1982), the Mississippi Supreme Court stated, “the acceptance of an instruction after its amendment by the trial court amounts to a waiver of an objection to the amendment.”

¶ 27. Further, the language which was removed from the instruction is only appropriate where a circumstantial evidence instruction is appropriate. This type of “circumstantial” instruction is required in cases where the evidence presented is purely circumstantial. Petti v. State, 666 So.2d 754, 757 (Miss.1995). This is not true in the case sub judice. As noted in Gray v. State, 728 So.2d 36 (¶ 214) (Miss.1998), when a defendant confesses to the crimes charged, the confession serves to remove the case from the circumstantial evidence realm.

VI. DID THE TRIAL COURT ERR IN FAILING TO GRANT DAVIS’S MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE FOR JUDGMENT NOTWITHSTANDING THE VERDICT?

¶ 28. Davis argues on appeal that the trial court should have granted his post-trial motion. This motion challenges the weight and sufficiency of the evidence presented at trial.

¶ 29. A motion for a new trial is used to challenge the weight of the evidence. McClain v. State, 625 So.2d 774, 781 (Miss.1993). The decision to grant a new trial rests in the sole discretion of the trial court. Id. Such a motion should only be granted when 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. Wetz v. State, 503 So.2d 803, 812 (Miss.1987). This Court, on appeal, will reverse and order a new trial only upon a determination that the trial court abused its discretion, accepting as true all evidence favorable to the State. McClain, 625 So.2d at 781.

¶ 30. Upon consideration of the above cited case law, this Court can find no basis for granting Davis’s request for a new trial. In support of this argument, Davis refers to the previously discussed issues. As each of these issues have been found to be without merit, they have no influence here. The State produced several witnesses to the incident and the confession of Davis himself, this evidence is sufficient for this Court to determine that the verdict was not so contrary to the weight of the evidence that a new trial must be granted.

¶ 31. Whether the evidence is legally sufficient is an argument that is raised by a motion for a directed verdict or a JNOV. McClain, 625 So.2d at 781. In deciding whether the prosecution has presented sufficient evidence to sustain the verdict, the court should accept as true all credible evidence consistent with the defendant’s guilt and the State must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. A reviewing court should only reverse where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty. Welz, 503 So.2d at 812.

¶ 32. The result is the same upon consideration of Davis’s contention that the trial court should have granted his motion for judgment notwithstanding the verdict. As stated before, after a valid waiver of his Miranda rights, Davis gave a written confession to the crimes charged. Eyewitnesses testified as to the events of the night in question. The evidence presented at trial was legally sufficient for impartial and fair-minded jurors to find as this jury did..

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF COUNT I, ARMED ROBBERY AND SENTENCE OF FORTY YEARS; COUNT II, AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS TO RUN CONSECUTIVELY TO COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS ARE ASSESSED TO WASHINGTON COUNTY.

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