author: EASLEY, J.,

text:
    Tony Darel HAWTHORNE v. STATE of Mississippi.
    No. 2001-KA-01712-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2003.

      Robert H. Koon, Gulfport, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorneys for appellee.

      Before SMITH, P.J., EASLEY and GRAVES, JJ.
   EASLEY, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Tony Darel Hawthorne (Hawthorne) was indicted in the Circuit Court of Harrison County, Mississippi, for the murder of Aaron J. Seldon (Seldon). After a jury trial the jury returned a guilty verdict, and the trial court sentenced Hawthorne to life imprisonment in the custody of the Mississippi Department of Corrections. Hawthorne’s motion for judgment notwithstanding the verdict or alternatively motion for new trial (J.N.O.V.) was denied by the trial court. Hawthorne was appointed new counsel to handle his appeal to this Court.

FACTS

¶ 2. The brother of Yolanda Mullin (Mul-lin) hosted a barbecue at their mother’s home the evening of September 7, 1998, that lasted until the early hours of September 8, 1998. Among the people at the barbecue were Kelvin Barrett (Barrett), Seldon and Hawthorne. Seldon and Hawthorne were cousins.

¶ 3. During the early morning hours of September 8, 1998, Savona Autman (Aut-man) first saw Hawthorne standing on the porch of Rhonda Williams’s (Williams) apartment with Johnny and Lashail Stewart (Stewart). According to Autman, Hawthorne agreed to take her to get a sack of “powder”, i.e. cocaine. Autman, Stewart and Hawthorne left in Williams’s car with Hawthorne driving.

¶ 4. Stewart recalled that Hawthorne told them that his cousin had taken something out of his pocket. Hawthorne did not say he was going to kill Seldon, but he was mad that his cousin had taken his money. Hawthorne claimed that Seldon had taken $30-$50 out of his pocket a few days before earlier while they both were at Williams’s apartment. Hawthorne, Williams and Seldon had been drinking and having “fun” when Hawthorne had gotten tired and fallen asleep. Williams told Hawthorne that Seldon took the money while he was asleep.

If 5. Some time before 2:00 a.m., Mullins and Chuck Potts (Potts) left the barbecue and went to Potts’s house. Barrett and Seldon had already left the barbecue and gone to Taco Bell. Barrett was driving Seldon’s truck. Barrett and Seldon parked in front of Potts’s house to eat. Mullins and Potts saw Barrett and Seldon drive up in front of Potts’s house. Barrett was driving.

¶ 6. As Autman, Stewart and Hawthorne were riding down Meadowlark Drive, Aut-man spotted Seldon. She informed Hawthorne that she saw Seldon. Hawthorne turned the car around, and he parked the car right next to Seldon’s truck. Stewart saw that Hawthorne had a gun when he got out of the car. Stewart and Autman tried to get Hawthorne to get back in the car.

¶ 7. Barrett testified that Seldon rolled his window down. Hawthorne jumped out of the car yelling at Seldon. Mullins and Potts testified that when Barrett started the truck, Hawthorne pointed his gun at Barrett. According to Barrett, Hawthorne told him to turn off the truck or he would blow his brains out. Barrett complied.

¶ 8. Barrett stated that the argument between Seldon and Hawthorne was basically over money. Seldon did not seem to take Hawthorne very seriously. When Hawthorne pointed the gun at Seldon, Sel-don started pulling money out of his pocket. According to Barrett, Hawthorne said, “You don’t believe I’ll shoot you.” Seldon replied, “No, if you love me so much, no, you won’t shoot me.” Hawthorne was within three or four inches of Seldon when he fired the gun.

¶ 9. Hawthorne began shaking Seldon saying, “Cuz, cuz, wake up. Wake up.” Barrett did not see Seldon try to grab Hawthorne’s gun. Stewart did not look up until she heard the gun go off, and she saw Hawthorne shaking Seldon saying, “Cuz, wake up.” Autman did not see Seldon grab Hawthorne’s gun.

¶ 10. When Autman heard the shot, she ran to the house across the street and told them to call the police. Stewart jumped out of the car. She saw Hawthorne get into the truck with Seldon. Mullins and Potts went inside to call the police. Barrett exited the truck and ran. Barrett heard Hawthorne start the truck and leave with Seldon. Stewart and Autman returned to Williams’s car. They attempted to follow Seldon’s truck, but they lost sight of the truck.

¶ 11. Hawthorne testified in his own defense. Hawthorne claimed that Seldon told him, “If [y]ou want your money? Take it. Take it.” Hawthorne thought “take it” meant he would have to physically take the money from Seldon. Hawthorne claimed he did not intend to shoot Seldon. Hawthorne alleged that he had armed himself merely for his protection. Hawthorne claimed that the gun fired because Seldon tried to grab it.

¶ 12. When the Gulfport police arrived on the scene at 0209 hours, they found Seldon’s truck in a ditch with the engine compartment on fire. The police discovered Seldon covered with blood. The police put out the flames, and they pulled him from the vehicle. He was not responsive.

¶ 13. Hawthorne claimed he was attempting to take Seldon to the hospital when he drove away with Seldon in the truck. At Edgewood Manor, Hawthorne hit the curb causing the truck to wreck. Hawthorne contends that he ran to Edge-wood Manor to get someone to call an ambulance, but no one would open their door. Hawthorne asserted that he never saw flames or smoke coming from the truck.

¶ 14. Hawthorne went to the house of his cousin, Deborah Robinson (Robinson), where he changed his clothes. When Hawthorne saw on television that Seldon had died, he left Robinson’s house and went to the police station to talk with the police.

¶ 15. Pathologist Dr. Paul McGarry (Dr. McGarry) testified that Seldon suffered a gunshot wound that entered the right jaw area along the jaw line. The bullet went through the back and center of Seldon’s spine, damaging his spinal cord, opening a jugular vein and totally opening a major artery to the brain before exiting through the upper back causing major blood loss. Dr. McGarry determined the gunshot to be Seldon’s cause of death.

¶ 16. Following the testimony offered by the State, Hawthorne moved for a directed verdict arguing that the State had failed to make a prima facie case of the elements of deliberate design murder. The trial court denied Hawthorne’s motion for J.N.O.V. or a new trial. Hawthorne now appeals his conviction to this Court.

¶ 17. Hawthorne raises the following issues on appeal:

I. Whether the trial court erred in granting jury instruction S-3-A.

II. Whether offering jury instruction D-12-A constituted ineffective assistance of counsel.

III. ether the evidence offered as to deliberate design was legally sufficient to support the jury’s verdict.

DISCUSSION

I. Jury Instruction S-3-A

¶ 18. On appeal, Hawthorne argues that jury instruction S-3-A as given by the trial court amounted to reversible error. Jury instruction S-3-A reads as follows:

Deliberate design means intent to kill, without authority of law and not being legally justifiable, legally excusable or under circumstances that would reduce the act to a lesser crime.

¶ 19. Hawthorne contends that “by omitting any language regarding the time for forming deliberate design ... was confusing and misleading to the jury.” The record does not reflect that Hawthorne ever raised this objection to the deliberate design instruction at trial. However, the following exchange regarding the jury instruction is reflected in the record:

The Court: S3, where do you get that?
Mr. Simpson [State]: Judge, out of a case that — we’ve submitted this almost in every murder case, maybe in every murder case. I will need to try to find the case that it’s out of. It’s a quote out of a case.
The Court: Well, I think both sentences leave a big confusion as to what makes a homicide a murder. Simple design to kill, as it’s addressed in the first sentence, doesn’t necessarily work because it could exist in self-defense or manslaughter. The second sentence—
Mr. Simpson: Those are affirmative defenses, Judge:
The Court: The second sentence, “deliberate design,” is really what makes murder. I think that we ought to delete the first sentence- and just do “deliberate design means,” et cetera.
Mr. Simpson: That’s fine, Your Honor. We’ll amend it and submit it.
The Court: Mr. Crosby?
Mr. Crosby [Defense]: If we were trying this as a — say that he had lawful authority to shoot, or if we were saying it was legally justifiable to shoot, of if it was legally excusable for a lesser crime, then that would be appropriate. But we have not articulated that and submitted that defense. Now, this might be appropriate if my client decides he wants manslaughter culpable negligence instruction because then that would be a distinguishing—
The Court: Well, I think under — and I don’t know what the State’s position is on manslaughter, although they’ve submitted one, but I think .that, based upon the case law, either side can request it. I don’t think it’s at the opinion of the defendant. It’s ultimately up to the [c]ourt.
Mr. Crosby: Oh, yeah. But what I was saying is I don’t think that would be appropriate unless we were asking for one. And actually, even in a manslaughter case, you can have the deliberate design to shoot and it still can be manslaughter, so even if we do request, either side requests a manslaughter instruction, this S3 is still not appropriate because it does not fit this case. If they believe he intended to shoot, then—
The Court: Well, but S1A is going to be with the deliberate design to kill, not shoot to kill. So that will take care of that. Prepare an S3A, Mr. Simpson,
Mr. Simpson: Yes, sir.
The Court: And just put that second sentence in there.
Mr. Simpson: Yes, sir.
The Court: Are you withdrawing it or do you want me to refuse it? Either one.
Mr. Simpson: Excuse me?
The Court: Are you withdrawing S3 or do you want me to refuse it?
Mr. Simpson: I withdraw it and submit an S3A.
Mr. Crosby: Although, Judge, unless we ask for a lesser crime, then this instruction is confusing and misleading.
The Court: I don’t think so. I think this is assisting the jury on what deliberate design means, and that’s an element of the crime of murder with the deliberate design to kill.
Mr. Crosby: All right.
The Court: So I don’t think that hurts, unless you know of a case that says otherwise.

¶ 20. In Jones v. State, 776 So.2d 643, 653 (Miss.2000), Jones asserted that the trial court committed reversible error in granting the State’s jury instruction. Id. However, Jones had failed to object to the jury instruction offered by the State at trial. Id. This Court determined that Jones had waived any objection by not objecting to the jury instruction at trial. This Court stated:

This Court has held on numerous occasions that an offered party’s failure to object to jury instructions at trial procedurally bars the issue on appeal. Walker v. State, 729 So.2d 197, 202 (Miss.1998); See also Green v. State, 631 So.2d 167, 173 (Miss.1994) (“Green failed to object to the manslaughter instruction given at trial; therefore, it is not necessary for us to review this assignment.”).

776 So.2d at 653. Accordingly, since Hawthorne did not make this objection at trial, this issue is now procedurally barred. Even if this issue is not procedurally barred, this Court has previously addressed the exact language given in jury instruction S-3-A. This Court in Tran v. State, 681 So.2d 514, 516 (Miss.1996), considered the language of a similar deliberate design instruction. In Tran, the first paragraph of jury instruction S-l provided that:

Deliberate design means intent to kill without authority of law and not being legally justifiable, legally excusable or under circumstances that would reduce the act to a lesser crime.

Id.

¶ 21. Tran’s objection to this definition of deliberate design was determined by the Court to be without merit. Id. at 517. This Court determined:

“[I]t has long been the case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing.” Windham v. State, 602 So.2d 798, 801 (Miss.1992) (quoting Johnson v. State, 475 So.2d 1136, 1139 (Miss.1985)) (citing Dye v. State, 127 Miss. 492, 90 So. 180 (1922); Hawthorne v. State, 58 Miss. 778 (1881); McDaniel v. State, 16 Miss. (8 S. & M.) 401 (Miss.1847)). “Definitionally [sic], we regard ‘malice aforethought’ and ‘deliberate design’ as synonymous.” Blanks v. State, 542 So.2d 222, 227 (Miss.1989) (citing Fairman v. State, 513 So.2d 910, 913 (Miss.1987)); Johnson v. State, 475 So.2d 1136, 1139 (Miss.1985); Lancaster v. State, 472 So.2d 363, 367 (Miss.1985). Thus, Tran’s arguments against the first paragraph of Instruction S-l are meritless.

¶ 22. This holding in Tran was subsequently relied upon by the Court in Jones v. State, 710 So.2d 870 (Miss.1998). The Court in Jones stated:

In Tran v. State, this Court found appropriate an instruction that read, “Deliberate design means intent to kill, without authority of law and not being legally justifiable, legally excusable or under circumstances that would reduce the act to a lesser crime.” Tran, 681 So.2d at 516. The Court stated that “[t]here is no flaw in the instruction given as it does not state that deliberate design can be formed at the very moment of the fatal act, ...” Id. This Court has also acknowledged that “deliberate design” to take the life of another connotes intent to kill. Peterson v. State, 242 So.2d 420, 427 (Miss.1970).

Jones, 710 So.2d at 877-78.

¶ 23. We find that this issue is both proeedurally barred from being raised on appeal, as well as, without merit.

II. Ineffective Assistance of Counsel

¶24. The defense submitted jury instruction D-12-A which was given without objection. D-12-A instructed the jury that if they found Hawthorne guilty of the elements of manslaughter they were to convict him as charged. D-12-A provides as follows:

Manslaughter is a lesser included charge to [mjurder.
If you find from the evidence in this case beyond a reasonable doubt that:
1. Tony Darel Hawthorne, on or about September 8, 1998, in Harrison County First Judicial District
2. Killed Aaron J. Seldon
3. By discharging a pistol, and
4. Tony Darel Hawthorne was negligent and the negligence was so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and
5. Such negligence, if any, directly caused the death of Aaron J. Seldon, and further discharge was not accidental,
Then you shall find the defendant guilty as charged.
If the [p]rosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Tony Darel Hawthorne not guilty.

¶ 25. Hawthorne’s new counsel argues that submission of this jury instruction constitutes ineffective assistance of counsel. Hawthorne contends that since he was charged with murder, the stated language in jury instruction D-12-A, “[t]hen you shall find the defendant guilty as charged,” effectively prevented the jury from considering the lesser included offense of manslaughter. We find that this issue is wholly without merit.

¶ 26. Hawthorne argues that this Court should reverse this case based on one sentence contained in the manslaughter instruction. However, that is not the standard of review that is followed by this Court. In Woodham v. State, 800 So.2d 1148, 1156 (Miss.2001), this Court stated the correct standard of review as follows:

This Court has repeatedly stated that “when considering a challenge to a jury instruction on appeal, we do not review jury instructions in isolation; rather, we read them as a whole to determine if the jury was properly instructed.” Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 583 (Miss.1993). “[I]n determining whether error lies in the granting or refusal of various instructions, the instructions actually given'must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Coleman v. State, 697 So.2d 777, 782 (Miss.1997) (quoting Collins v. State, 691 So.2d 918 (Miss.1997)). In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.

¶ 27. Reviewing D-12-A in conjunction with the other instructions given by the trial court, we find that granting D-12-A did not constitute reversible error. Furthermore, the defense’s decision to submit instruction D-12-A does not constitute ineffective assistance of counsel.

¶ 28. This Court has repeatedly examined ineffective trial counsel claims pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Ferguson v. State, 507 So.2d 94 (Miss.1987), this Court stated:

Claims of ineffective assistance of counsel are governed by guidelines of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First,” said the Supreme Court, “the defendant must show that counsel’s performance was deficient... .Second, the defendant must show that the deficient performance prejudiced the defense.” Although it need not be outcome determinative in the strict sense, 466 U.S. at 687, 104 S.Ct. at 2068, 80 L.Ed.2d at 697-98, it must be grave enough to “undermine confidence” in the reliability of the whole proceeding. 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In practice this second element of the Strickland test has proved an insuperable obstacle to many criminal appellants. Even a demonstrably deficient performance by a lawyer can be held insufficiently prejudicial where the evidence of the defendant’s guilt is strong.

507 So.2d at 95.

¶ 29. It is the duty of the Court to determine, based on the totality of the circumstances, whether the counsel’s efforts were both deficient and prejudicial, thereby necessitating a reversal. See Henley v. State, 729 So.2d 232, 241 (Miss.1998); Waldrop v. State, 506 So.2d 273, 275 (Miss.1987). We find that Hawthorne has not demonstrated that the representation he was provided fell below an objective standard of reasonableness. Hawthorne has not demonstrated how the instruction operated to result in actual prejudice to his defense. As given, D-12-A clearly instructs the jury that the manslaughter instruction is given as a lesser included charge to murder. This issue is without merit.

III. Legal Sufficiency and Overwhelming Weight of the Evidence

¶ 30. Hawthorne asserts that the jury verdict is not legally sufficient nor supported by the weight of the evidence to sustain his murder conviction due to inconsistencies in witnesses’ testimony offered at trial.

¶ 31. On the issue of legal sufficiency, reversal can only occur when evidence of one or more of the elements of the charged offense 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). The standard of review for a denial of a directed verdict, peremptory instruction and a J.N.O.V. are identical. Coleman v. State, 697 So.2d 777, 787 (Miss.1997). In McClain v. State, 625 So.2d 774, 778 (Miss.1993), this Court held that a motion for J.N.O.V., motion for directed verdict and a request for peremptory instruction challenge the legal sufficiency of the evidence. “Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court. This occurred when the circuit court overruled [the] motion for JNOV.” Id. at 778 (citing Wetz v. State, 503 So.2d 803, 807-08 (Miss.1987)).

¶ 32. In regard to the weight of the evidence, it is well established that matters regarding the weight of the evidence are to be resolved by the jury. Neal v. State, 451 So.2d 743, 758 (Miss.1984). “The court is bound by the jury findings upon an issue presented by the instruction requested by the [defendant].” Kinney v. State, 336 So.2d 493, 496 (Miss.1976). A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 128, 127 (Miss.1999). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial. Id. (citing Gleeton v. State, 716 So.2d 1088 (Miss.1998)). This Court held in McFee v. State, 511 So.2d 130, 133 (Miss.1987), that it has limited authority to interfere with a jury verdict. The Court looks at all the evidence in the light most consistent with the jury verdict. Id. The prosecution is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Id. The Court in McFee stated that:

[I]f there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgement might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

Id. at 133-34. See also May v. State, 460 So.2d 778, 781 (Miss.1984).

¶ 33. A new trial will not be granted unless the verdict is so contrary to the overwhelming weight of the evidence that an unconscionable injustice would occur by allowing the verdict to stand. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). See also Danner v. State, 748 So.2d 844, 846 (Miss.Ct.App.1999). However, if a jury verdict convicting a defendant is against the overwhelming weight of the evidence, then the remedy is to grant a new trial. Collier v. State, 711 So.2d 458, 461 (Miss.1998).

¶ 34. As to the credibility of witnesses, this Court in Gathright v. State, 380 So.2d 1276 (Miss.1980), has held that “in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court.” Gathright, 380 So.2d at 1278 (citing Davis v. State, 320 So.2d 789 (Miss.1975)).

¶ 35. In the case sub judice, the evidence met the legal sufficiency test and the weight of the evidence test for a denial of the motion for J.N.O.V. and motion for new trial. Sufficient testimony was offered to support the murder conviction. The testimony established that Hawthorne went looking for Seldon. Hawthorne was upset that Seldon had stolen money from him.

¶ 36. Hawthorne borrowed Williams’s car and then left with Autman and Stewart. When Autman spotted Seldon, Hawthorne turned the car around to pull in beside Seldon’s truck. Seldon was sitting in the passenger seat of his truck. Hawthorne got out the car and stood beside Seldon’s truck. Seldon remained seated in the truck.

¶ 37. Barrett was in the driver’s seat of Seldon’s truck. Hawthorne ordered Barrett to turn off the truck. An argument ensued between Hawthorne and Seldon. Hawthorne pulled his gun on Seldon. Hawthorne shot Seldon while he was still sitting in the truck.

¶ 38. Hawthorne claimed he never intended to shoot Seldon, and he brought the gun only for his own protection. Hawthorne alleged that Seldon tried to grab his gun which caused it to fire. No other witness confirmed Hawthorne’s account of how the gun fired. However, there is no contradiction that Hawthorne did bring and fire the gun.

¶ 39. Dr. McGarry testified that Sel-don’s cause of death was the gunshot wound to his jaw which caused damage to his spinal cord and totally opened a major artery to his brain.

¶ 40. This Court has held that “deliberate design may be inferred from the use of a deadly weapon.” Carter v. State, 722 So.2d 1258, 1263 (Miss.1998). See also Mitchell v. State, 803 So.2d 479, 484 (Miss.Ct.App.2001).

¶ 41. We find that there is sufficient evidence in the record to support the jury’s verdict finding Hawthorne guilty of murder. Furthermore, it is clear that a reasonable, fairminded juror could find beyond a reasonable doubt that Hawthorne was guilty of Seldon’s murder. Therefore, we find that there was ample evidence presented for the jury to find deliberate design. This issue is without merit.

CONCLUSION

¶42. For the foregoing reasons, the judgment of the Harrison County Circuit Court is affirmed.

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

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


source: Caselaw Access Project

author: CARLSON, J., DIAZ, J.,

license: Public Domain

text:
    Robert E. WACHTLER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 2001-CA-01839-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2003.

      Ben F. Galloway, Gulfport, attorney for appellant.
    James F. Steel, Jackson, attorney for appellee.
   CARLSON, J.,

for the Court.

¶ 1. Robert E. Wachtler, a city employee struck by a city truck operated by another city employee, appeals from the Hancock County Circuit Court’s grant of summary judgment which held he was not entitled to receive uninsured motorist benefits under insurance policies issued to Wachtler by State Farm Mutual Automobile Insurance Company (“State Farm”). Finding that the circuit court correctly held Wachtler was not legally entitled to recover from his co-employee, we affirm the circuit court’s grant of summary judgment in favor of State Farm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On February 11, 2000, Robert E. Wachtler, an employee of the City of Waveland, was struck by a city truck operated by Kevin Gillum, Wachtler’s co-employee. As a result of his injuries, Wacht-ler asserted a workers’ compensation claim against the City of Waveland. Wachtler also asserted a claim against State Farm, his personal insurer, for uninsured motorist (UM) coverage under two family policies. After an investigation, State Farm determined both Gillum and the City of Waveland to be immune from tort liability to Wachtler under the provisions of the Mississippi Tort Claims Act and the Mississippi Workers’ Compensation Act, respectively. State Farm, therefore, denied Wachtler’s claims concluding Wachtler was not legally entitled to recover damages from the owner or operator of an uninsured motor vehicle.

¶ 3. Section III Coverage U of State Farm’s policy provides:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be caused by [an] accident arising out of the operation, maintenance or use of an uninsured motor vehicle.

(emphasis in original).

¶ 4. On November 21, 2000, State Farm filed its complaint in this action seeking declaratory relief pursuant to M.R.C.P. 57. Wachtler answered the complaint alleging Gillum to be an uninsured motorist which would, therefore, permit Wachtler to receive UM benefits under the contracts of insurance maintained with his insurer, State Farm.

¶ 5. State Farm moved for summary judgment stating that because Wachtler was not legally entitled to recover from Gillum, his co-employee, Wachtler should not be able to pursue a claim under his UM coverage. After a hearing, the circuit court granted State Farm’s motion for summary judgment, holding that since Waehtler was precluded from legally recovering from Gillum, State Farm had no obligation to pay UM benefits to Waehtler.

¶ 6. Following the order of the circuit court, Waehtler timely filed his appeal raising only one issue, that being whether the circuit court erred in granting State Farm’s motion for summary judgment.

DISCUSSION

¶ 7. This Court employs a de novo standard in reviewing a trial court’s grant of summary judgment. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss.1988). Summary judgment may only be granted where there are no genuine issues of material fact such that the' moving party is entitled to judgment as a matter of law. M.R.C.P. 56(c). The trial court must carefully review all eviden-tiary matters in the light most favorable to the non-moving party. Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983). If in this view, the moving party is entitled to judgment as a matter of law, summary judgment should be granted. Id.

¶ 8. In support of his argument that summary judgment was improperly granted, Waehtler states his claim for uninsured motorist benefits for his work-related injury is not barred by the exclusive remedy provision of the Workers’ Compensation Act. State Farm, however, argues the facts of the case sub judice are analogous to Medders v. United States Fidelity & Guaranty Co., 623 So.2d 979 (Miss.1993), where this Court held the exclusivity provision of the Workers’ Compensation Act barred recovery under the employer’s uninsured motorist coverage. Therefore, State Farm asks this Court to apply the same law to the case at bar because Wachtler’s entitlement to UM benefits should not be determined by his own purchase of insurance, but instead by whether he may legally recover from Gil-lum.

¶ 9. In Medders, an ambulance operated by an employee of Williams Ambulance Service (“Williams”) collided with a truck. Id. at 980. Oswalt, the driver, and his co-employee, Medders, were transporting a patient to the hospital at the time of the accident. Id. All passengers in the ambulance were killed. Id. At the time of the accident, USF&G issued a business automobile liability insurance policy to Williams. Id. USF&G filed an interpleader action in order that all claimants could assert their rights to the amounts due under the terms and provisions of the policy. Id. at 980-81. The heirs of Medders filed a counterclaim alleging that the driver’s actions were so grossly negligent that they were removed from the exclusion found in the Workers’ Compensation Act. Id. at 981. The counterclaim also stated that UM benefits should be available to the heirs. Id.

¶ 10. Because the policy contained certain exclusions, USF&G argued that according to Mississippi law, UM benefits would not have been available to Medders had he lived; therefore, they were not available to his heirs. Id. USF&G filed a motion for summary judgment asserting that Medders’ heirs were limited to workers’ compensation benefits. Id. The circuit court found there were no genuine issues of material fact and granted summary judgment in favor of USF&G. Id. at 982.

¶ 11. The issue before this Court in Medders was whether the exclusivity clause of the Workers’ Compensation Act barred recovery under an employer’s UM coverage where the uninsured motorist was uninsured only because he was a fellow employee acting in the course and scope of his employment. Id. at 980. The Court determined this analysis would depend upon the interpretation of “legally entitled to recover.” Id. USF&G argued because the uninsured motorist was a co-employee, the heirs were barred by the exclusivity clause of the Workers’ Compensation Act and the policy itself. Id. at 983.

¶ 12. Section 71-3-9, the exclusivity provision of the Workers’ Compensation Act, states in pertinent part:

The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death.

Section 83-11-101(1), the uninsured motorist statute, provides:

No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law, as amended, under provisions approved by the commissioner of insurance; however, at the option of the insured, the uninsured motorist limits may be increased to limits not to exceed those provided in the policy of bodily injury liability insurance of the insured or such lesser limits as the insured elects to carry over the minimum requirement set forth by this section. The coverage herein required shall not be applicable where any insured named in the policy shall reject the coverage in writing and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in any renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

¶ 13. Following Perkins v. Insurance Co. of North America, 799 F.2d 955 (5th Cir.1986), where the Fifth Circuit applied Mississippi law and determined under the Mississippi Workers’ Compensation Act’s exclusive remedy statute that an employee is not legally entitled to recover from an employer or co-employee any damages the employee sustains, and thus was not entitled to UM benefits from the insured, this Court determined there was no person from whom the Medders were legally entitled to recover damages pursuant to the UM statute. Medders, 623 So.2d at 988. This Court held the clear meaning of “legally entitled to recover” limited the scope of coverage to those instances where the insured would be entitled at the time of the injury to recover through legal action. Id. at 989.

¶ 14. Like the heirs in Medders, Wachtler compares his case to Barfield v. Barfield, 742 P.2d 1107 (Okla.1987), where the Oklahoma Supreme Court allowed UM coverage despite immunity created by workers’ compensation. In Barfield, a widow, whose husband was killed in the scope of his employment in an accident allegedly caused by his co-employee, brought a wrongful death action against the co-employee’s estate and against her husband’s insurer for UM benefits. Id. at 1109. Because the court found she was not legally entitled to recover any damages from the co-employee, the court held the exclusivity provision of the Workers’ Compensation Act barred the widow’s suit against her husband’s co-employee. Id. at 1111. However, the court also held the status and actions of the tortfeasor were irrelevant and did not bar the widow’s claim against her husband’s insurer. Id. To reach this conclusion, the Oklahoma Supreme Court determined:

An uninsured motorist carrier does not stand in the tortfeasor’s shoes and the conditions for recovery under an uninsured motorist policy can be satisfied even if the insured cannot prove all the elements of the tort against the uninsured. Uptegraft v. Home Insurance Company, 662 P.2d 681, 685 (Okl.1983) states:
The words “legally entitled to recover” simply mean that the insured must be able to establish fault on the part of the uninsured motorist which gives rise to damages and prove the extent of those damages.

Barfield, 742 P.2d at 1112. The holding of the Oklahoma Supreme Court is contrary to a majority of the jurisdictions in this country and to this Court’s holding and interpretation of “legally entitled to recover” in Medders.

¶ 15. Wachtler’s rebanee on Barfield is misplaced. By using a different analysis and a different interpretation of “legally entitled to recover” than the one adopted by this Court in Medders, the Barfield court held an uninsured motorist does not stand in the shoes of the tortfeasor; and therefore, it found that the widow’s claim against her husband’s insurer would not be barred by the exclusivity provision of the Workers’ Compensation Act.

¶ 16. This Court does not agree that the contrary standard in Barfield should be followed so as to allow Wachtler to collect UM benefits from State Farm. In Medders, this Court stated:

Indeed, the majority of jurisdictions, which have ruled on the issue with respect to the injured party’s policy and all jurisdictions with respect to the employer’s policy, have held that the exclusive remedy of worker’s compensation bars recovery of UM benefits when the insured is injured by a co-employee. See, Allstate Ins. Co. v. Boynton, 486 So.2d 552 (Fla.1986), rev’ing 443 So.2d 427 (Dist.Ct.App.1984); Williams v. Thomas, 187 Ga.App. 527, 370 S.E.2d 773 (1988); Davis v. Allstate Ins. Co., 452 So.2d 310 (La.App. 2 Cir.1984); Mayfield v. Casualty Reciprocal Exchange, 442 So.2d 894 (La.Ct.App.1983); Gray v. Margot Inc., 408 So.2d 436 (La.Ct.App.1981); Carlisle v. State, Dept. of Transportation and Development, 400 So.2d 284 (La.Ct.App.1981); State Farm Mutual Automobile Ins. Co. v. Webb, 54 Ohio St.3d 61, 562 N.E.2d 132; Hopkins v. Auto-Owners Ins. Co., 41 Mich.App. 635, 200 N.W.2d 784 (1972); Kough v. N.J. Auto. Full. Ins., 237 N.J.Super. 460, 568 A.2d 127 (1990); Cormier v. Nat. Farmers U. Prop. and Cas., 445 N.W.2d 644 (N.D.1989); Perkins v. Insurance Co. of North America, 799 F.2d 955 (5th Cir.1986) (Applying its perception of Mississippi law); Hubbel v. Western Fire Ins. Co., 218 Mont. 21, 706 P.2d 111 (1985); Aetna Cas. & Sur. Co. v. Dodson, 235 Va. 346, 367 S.E.2d 505 (1988); Peterson v. Kludt, 317 N.W.2d 43 (Minn.1982); Sayan v. United Services Auto. Ass’n, 43 Wash.App. 148, 716 P.2d 895 (1986) (Holding the opposite of the Baldwin with respect to the Feres doctrine.)

623 So .2d at 986-87.

¶ 17. In Kough, a passenger, who was injured by the negligence of her co-employee, filed suit to compel her personal insurer to arbitrate her claim to UM benefits. 568 A.2d at 128. The insurance company denied UM benefits after determining the plaintiff was not legally entitled to recover from her co-employee. Id. The New Jersey Superior Court, Appellate Division, agreed and held because of the workers’ compensation bar, the plaintiff was not “legally entitled to recover” damages from her co-employee, thus she was not entitled to recover UM benefits from her insurer. Id. at 132.

¶ 18. In Cormier, the plaintiff, a passenger who was injured in an automobile driven by a co-employee, and her husband filed suit against the co-employee’s insurer and their personal insurer claiming they were entitled to UM benefits under both policies. 445 N.W.2d at 645. The Supreme Court of North Dakota held the policy language and statutory language clearly stated that “an insured is entitled to uninsured motorist benefits only if she is ‘legally entitled to recover’ damages from the owner or operator of an uninsured vehicle.” Id. at 646.

We believe that the clear meaning of the language, “legally entitled to recover,” imports a condition precedent to the uninsured motorist insurer’s obligation that the insured have a legally enforceable right to recover damages from the owner or operator of the uninsured motor vehicle. Because workers compensation is the exclusive remedy for an injured employee against a co-employee, Cormier does not have a legally enforceable right to recover damages from Fankhanel and, therefore, is not “legally entitled to recover.”

Id.

¶ 19. Unlike the court in Barfield, the courts in Rough and Cormier adopted the same interpretation of “legally entitled to recover” as this Court later did in Med-ders. In following our decision in Med-ders, as well as the holdings of Rough and Cormier, and many other jurisdictions which have addressed this precise issue, this Court finds that the exclusivity provision of the Workers’ Compensation Act completely bars Wachtler from recovering any damages from his co-employee. Thus Wachtler is not entitled to recover UM benefits from his personal insurer.

CONCLUSION

¶ 20. This Court finds it is of no moment whether Wachtler is seeking to recover UM benefits from his personal insurer or from the insurer of his co-employee based upon the legal doctrine of entitlement to recovery. Therefore, based on our ruling in Medders, defining “legally entitled to recover,” and the various rulings in other jurisdictions with similar interpretations, this Court affirms the ruling of the circuit court which held that Wacht-ler was not legally entitled to recover any damages from his co-employee and therefore, was not entitled to UM benefits from his personal insurer. The circuit court’s judgment is affirmed.

¶ 21. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J„ CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J„ DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J.

DIAZ, J.,

dissenting:

¶ 22. The majority bases its denial of Wachtler’s claim on the fact that he is attempting to recover from a co-employee. In my opinion, that description of Wacht-ler’s claim is inaccurate. He is not attempting to recover anything from his co-employee, Kevin Gillum; rather, he is trying to recover from his insurance company. The contract that Wachtler entered into with State Farm was separate from the protections afforded him under the MTCA and the workers’ compensation statute. Thus, although these statutes provide his exclusive remedy against the State of Mississippi, they are not his exclusive remedy against State Farm.

¶ 23. State Farm’s argument, accepted by the majority, is that because Wachtler is not legally entitled to recover from Gil-lum, he should not be allowed to assert a claim against it. This argument overlooks the fact that, though Wachtler cannot assert a direct cause of action against Gillum, he has been allowed to pursue administrative remedies against the State of Mississippi for Gillum’s negligence.

¶ 24. By predicating recovery under a privately-contracted UM insurance contract upon the identity of the tortfeasor’s employer, the majority applies a nonsensical distinction. In every case that an insured seeks UM coverage benefits, the tortfeasor will be someone from whom the insured cannot recover. Otherwise, the insured would simply seek recovery from the tortfeasor. Indeed, the very purpose of UM coverage is to provide insureds a means to be reimbursed for the negligence of someone who cannot pay. In most cases, this failure will be the result of a tortfeasor who is insolvent or one who flees the scene of an accident and remains unidentified. However, underinsured motorists, such as Gillum, also fall within the ambit of UM protection.

¶ 25. Uninsured motorist coverage is designed for the benefit of insureds and not insurers. Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 122:10, at 122-26 (3d ed.1997). The purpose of uninsured motorist coverage is to benefit an insured by making available compensation for his property damage, bodily injuries, or death. State Farm Mut. Auto. Ins. Co. v. Daughdrill, 474 So.2d 1048, 1051 (Miss.1985). Seeking to take advantage of this benefit, Wachtler contracted with State Farm for UM protection. Now, after dutifully paying his premiums, he has been injured by an underinsured driver. Wachtler has complied with his end of the bargain, but this Court relieves State Farm of its responsibility.

¶ 26. Wachtler entered into a private insurance contract with State Farm. The State of Mississippi is not a party to that contract. It is not entitled to any of the benefits or protections of Wachtler’s contract with State Farm. Likewise, State Farm should not be protected by the exclusivity provision of the Workers’ Compensation Act.

¶ 27. The purpose of the exclusivity provision of the MTCA and the Workers’ Compensation Act is to limit the liability exposure of state government and other employers. Because allowing Wachtler to recover from his privately-contracted insurance provider will not increase this exposure, I believe he should be allowed to pursue his claim. Numerous decisions of this Court have held that the uninsured motorist statute is to be liberally construed so as to provide coverage and that exceptions from coverage are to be strictly construed. Because the majority fails to follow this admonition, I respectfully dissent.

McRAE, P.J., JOINS THIS OPINION.

      . Miss.Code Ann. §§ 11-46-1 to -23 (Rev. 2002).

      . Miss.Code Ann. §§ 71-3-1 to -129 (Rev. 2000 & Supp.2002).


author: CARLSON, J.,

text:
    Scott CORLEY v. James F. EVANS and Stacy Evans (Hamrick).
    No. 2001-CA-00762-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2003.

      S. Wayne Easterling, Eugene Coursey Tullos, attorneys for appellant.
    John B. MacNeill, Jason Scotch Ehrlin-spiel, Adam Bradley Kilgore, Vicki R. Leg-gett, Ranee N. Ulmer, attorneys for appel-lees.
   CARLSON, J.,

for the Court.

¶ 1. After a judgment was entered in this premises liability case in accordance with a $2.5 million verdict in favor of plaintiff Scott Corley (Corley), the circuit court granted the motions for judgment notwithstanding the verdict (JNOV), filed by the landowners, James F. Evans (James) and his daughter Stacy Evans Hamrick (Stacy). Feeling aggrieved by this post-trial action by the trial court, Corley has appealed to this Court asking that we reinstate the initial $2.5 million judgment entered on the jury verdict. James and Stacy have cross-appealed, requesting that should this Court determine that the trial court erred in granting their JNOV motions, this case should be reversed and remanded for a new trial based on alleged errors committed at trial. Finding that the JNOV was proper, we affirm the trial court’s decision.

INTRODUCTION

¶ 2. Corley was shot accidentally by a friend on the Evanses’ land at a crawfish boil sponsored by Stacy Evans. Corley brought suit for his injuries and damages sustained as a result of the shooting, and after a jury trial, the jury returned a jury verdict for $2.5 million in his favor, and the jury also assigned eighty percent (80%) liability to James, and twenty percent (20%) liability to Stacy. Quite interestingly, those percentages corresponded to the percent of ownership each had in the land. Consistent with the jury verdict, the Circuit Court of Smith County, Honorable Robert G. Evans, presiding, entered judgment in favor of Corley and against James and Stacy in the amount of $2,000,000 (assessed against James) and $500,000 (assessed against Stacy). However, after post-trial motions were filed, Judge Evans, vacated the judgment via a grant of the JNOV motions filed by James and Stacy. On appeal, Corley argues that he met his required burden of proving that the accident was reasonably foreseeable and therefore the trial court erred in granting the JNOV. In the alternative, he urges this Court to reconsider current Mississippi premises liability law. James and Stacy cross-appeal requesting a new trial if the trial court’s grant of the JNOV is reversed.

¶ 3. We find that the evidence was not sufficient to support the jury verdict in this case under current Mississippi premises liability law, which we decline to revisit; and therefore, the trial judge’s grant of JNOV was correct.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 4. James owned a 1,000 acre tract of land in Smith County and had previously conveyed a twenty percent (20%) interest in 184 acres to his daughter, Stacy. The property was mostly pasture land on which was. situated one barn. In 1990, Stacy began hosting crawfish boils on the land, and while the 1993 event giving rise to this lawsuit was the eighth annual event, this was only Stacy’s fourth time to actually host the crawfish boil. The land was never surveyed, so it was unclear whether the crawfish boil was held on the land in which Stacy had an interest. James’s only involvement in the event was his brief attendance.

¶ 5. On May 1, 1993, Corley attended the crawfish boil with his friends Eric Burton, Steve Harden, and Jeff Crane. As the only one in the group 21 years old or over, Burton bought beer for them before they got to the festival. All four paid admission to the festival and then parked their two vehicles in the field. They intended to camp overnight and pitched a tent near their vehicles soon after they arrived, and then they began socializing with those assembled. It rained off and on through the night. All four were drinking beer before they arrived and continued their imbibing throughout the evening.

¶ 6. Two weeks before the crawfish boil, Harden borrowed a .22 caliber pistol from Burton, who testified that he was uncertain as to why Harden wanted to borrow the pistol. As Harden entered the gate onto the property where the crawfish boil was being held, the pistol was beside him on the driver’s seat. Harden testified that he had unloaded the pistol the day before the crawfish festival and put the bullets in the ashtray of his car. The pistol was taken out of the car on at least two occasions by different individuals.

¶ 7. Sometime after midnight, Harden shot Corley with the .22 pistol in the face below his left nostril, and the bullet lodged in Corley’s skull. Harden testified that he had been holding the pistol for thirty minutes or so when he slipped and fell backwards and the pistol discharged. Harden also testified as follows:

Q: Mr. Harden, I believe it was your opinion or it’s your opinion that this accident was caused by stupidity and the rain, right?
A: Yes, sir. Mainly stupidity.
Q: You slipped and the gun discharged, right?
A: Yes, sir.
Q: And it happened so fast that there wasn’t anything that anybody could have done about it, right?
A: Yes, sir.
Q: You were surprised yourself?
A: Yes, sir.
Q: The accident — the unfortunate shooting was sudden and unexpected, was it not?
A: Yes, sir.

¶ 8. As a result of this tragic accident, Corley suffered severe permanent injuries, incurred extensive medical bills, was unable to complete his education, and was incapable of holding meaningful employment.

¶ 9. As part of her hosting duties, Stacy distributed fliers for the event. Having hosted the last three events, Stacy knew that there would be alcohol consumption at the event. She posted a sign that said “No Alcoholic Beverages Permitted,” she did not sell alcohol on the premises, and she did not attempt to verify the ages of the attendees. She testified that she advertised campers were welcome, but she did not know how many patrons would camp because of frequent rains in the area. Stacy also provided two street lights to illumine the area but believed the lighting might have been reduced by the rains. Stacy originally called McDonald Security Service to provide security for the event; however, upon learning that this particular service was unavailable for the crawfish boil, Stacy contacted Vincent Security Service (Vincent Security). Stacy was familiar with the competence of the Vincent Security personnel because she had previously attended a party in Meridian at which Vincent Security had provided security and she was impressed with their performance. Also, Stacy had inquired of the host at the Meridian party as to her opinion of the capability of Vincent Security and received a favorable recommendation from the Meridian host.

¶ 10. The Vincent Security officers were dressed in uniforms resembling those worn by sheriffs department personnel. Stacy testified the only problem she had ever had at her three previous crawfish boils occurred during the very first one in 1990, when she had to call the sheriffs office to remove someone from her property. The instructions Stacy gave the security guards were “make sure everybody was okay.” She also told them to walk around and keep a check on everything. Stacy did not know if the shooting occurred on her property or her father’s property. She estimated 700 people were in attendance at the crawfish boil.

¶ 11. Stacy testified that she paid all the bills related to her portion of the land, including taxes and electricity, and that she took care of the place. She never asked her father’s (James’s) permission to have the crawfish boil. She considered the place hers, and she controlled the land. The crawfish boil was not her father’s idea, he had nothing to do with the planning of the event, and he did not have any financial interest in the crawfish boil.

¶ 12. Stacy personally observed no fights or scuffles. She testified: “Everybody was having the best time. I mean, there were no problems anywhere at anytime; That’s why this was such a shock.” The only problem she had ever had was at her first crawfish boil when someone left his drunken brother-in-law on the premises and he would not leave. She testified she had no way to have possibly anticipated a shooting. James testified that he never discussed the crawfish boil with his daughter.

¶ 13. Daniel Gray attended the crawfish boil and witnessed the shooting:

Q: And what happened?
A: And the gun went off.
Q: And—
A: And he hit the ground, and I took off running up the hill.
Q: And why did you take off running?
A: Because there was security guards all out through there, and I went and got one of them and told Stacy Evans that there needed to be the Sheriffs Department and an ambulance called.
Q: Prior to the time that you and Mr. Corley had walked off from where the crawfish was being served down to your respective vehicle, had you seen security officers?
A: Yes ma’am.
Q: And where had you seen them?
A: They were — there were some in the parking area, and there was one walking around on top of the hill up there where the dance was and the crawfish were.
Q: Okay. And do you recall what those security officers had on?
A: I want to say they had' — they had on brown uniforms with badges.
Q: Prior to the time that this gun discharged, what, if any, altercation or fight did you observe between Mr. Corley and Mr. Hardin?
A: I didn’t see any. I mean — which like I said, I wasn’t with him the entire time. I just — I guess you could say I was in the wrong place at the wrong time, because I just happened to run into him, and we walked down the hill, and that’s when everything happened.
Q: And would you describe the manner in which it happened?
A: Shocking. I mean — because there wasn’t anybody screaming profanity acting a fool — I mean — it was just, hey, come here, I’ve got something for you, you know, and it just happened so quick I really couldn’t tell you what kind of atmosphere I’d thought it would have been, because the way they called him over there it was kind of just like friends calling and talking to Mends, you know.
Q: How long were you at the craw-fish boil prior to the shooting?
A: I had been there probably since about 6:30 or so.
Q: And how would you describe the behavior of the patrons in the craw-fish boil?
A: Everybody was having fun as far as I know. I mean—
Q: Prior to the shooting, Mr. Gray, did you ever see anybody exhibit a weapon?
A: No.

¶ 14. Ralph Day, president of Day Detectives security service, testified as an expert in premises security for James and Stacy and determined that the incident was not foreseeable. He based this conclusion on the fact that there was no history of crime at the crawfish boils, nor were there records of any arrests being made or law enforcement summoned other than one time. Day also testified that he believed three security guards for a crowd of under one-thousand (1,000) to be sufficient. Day stated, “You could have had 50 security guards, and virtually, if one had been standing in between them (Corley and Hardin), I don’t think they could have prevented it. His friends couldn’t prevent it. The Deputy Sheriff that testified yesterday couldn’t prevent it, and he was just feet away.”

¶ 15. Keith Oubre, head of campus security for the University of Southern Mississippi, took the stand as Corley’s expert. He opined that “three or four security guards would not be adequate for such an event of this size.” Oubre testified there should have been more guards and they should have been given more explicit instructions days in advance. He also believed there was “virtually no” lighting where the shooting occurred and that with adequate lighting the shooting probably would not have occurred. During cross-examination, Oubre admitted he did not ask permission to enter the property for his investigation and conducted no written tests concerning the scene. He interviewed none of the security officers present on the day of the incident. Oubre would have recommended metal detectors be put in place for screening visitors to the crawfish boil, but stopped short of recommending closed-circuit TV. However, Ou-bre conceded on cross-examination:

Q: We know, don’t we Mr. Oubre, that security personnel cannot guarantee the safety of people attending events like crawfish boils, can they?
A: No, they cannot.
Q: Just like that police can’t guarantee that, you know, we are all going to be safe out on the streets outside of our homes?
A: Well, we can’t guarantee that.
Q: Just like the campus security can’t do that, either, can they?
A: Cannot guarantee it, no, sir.
Q: And we know, don’t we, Mr. Ou-bre, that despite the best efforts of people sometimes at events like this, people get hurt, don’t they?
A: Correct.
Q: And sometimes despite the best efforts of security people at — -people become victims of crime at such events, don’t they?
A: Correct.
Q: And sometimes they become victims of accidents where there’s a bunch of security folks around?
A: That’s correct.
Q:And sometimes they become victims of intentional acts, somebody meant to do something, where there’s a bunch of security folks around?
A: That’s correct.
Q: And that’s true regardless of ever how many security people you’ve got, correct?
A: Correct.
Q: And that’s true regardless of how good your lighting is at the scene where this thing happened, isn’t that correct?
A: Correct
Q: And that’s true also regardless as to how much or how little training the security people have had, correct?
A: Correct.
Q. And regardless of the security procedures that you may have had in effect, those things can happen, can’t they?
A. Right. You can’t guarantee people’s safety regardless of all those things you’ve mentioned.
Q. And it’s also true that people get hurt and become victims of crime and become victims of intentional acts where there’s alcohol involved regardless of the number of security people there, isn’t that correct?
A. Correct.
Q. And that’s true also — those things happen regardless of whether or not there’s signs posted everywhere saying we don’t want all of this to happen, isn’t that correct?
A. Yes, sir.

STANDARD OF REVIEW

¶ 16. A motion for JNOV tests the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence. Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994) (citing Goodwin v. Derryberry Co., 553 So.2d 40, 42 (Miss.1989); Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss.1984)). See also Stewart v. Gulf Guar. Life Ins. Co., 2002 WL 1874826, 6, — So.2d (Miss.2002).

¶ 17. In Goodwin, we held:

In deciding a motion for judgment notwithstanding the verdict, the trial court must consider the evidence in the light most favorable to the non-moving party, giving that party the benefit of all favorable inferences that reasonably may be drawn therefrom. The trial court should consider the evidence offered by the non-moving party and any uncontradicted evidence offered by the moving party. If the evidence thus considered is sufficient to support a verdict in favor of the non-moving party, the motion for j.n.o.v. must be denied.

Goodwin, 553 So.2d at 42 citing Turner v. Turner, 524 So.2d 942, 944 (Miss.1988); Read v. S. Pine Elec. Power Assn., 515 So.2d 916, 919 (Miss.1987); Baker Serv. Tools, Inc. v. Buckley, 500 So.2d 970, 972 (Miss.1986); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975).

¶ 18. We also held in Goodwin that, upon review by this Court, the same standard was applied whether JNOV was granted or denied by the trial court. Goodwin, 553 So.2d at 43.

¶ 19. This Court held in Fitzner Pontiac-Buick-Cadillac, Inc. v. Smith, 523 So.2d 324, 326 (Miss.1988):

Two of the assignments of error are challenges to the sufficiency of the evidence to support the verdict of the jury. Our scope of review in such contexts is as limited as it is familiar. We consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand, if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. See, e.g., Rester v. Morrow, 491 So.2d 204, 211-12 (Miss.1986); Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975).

DISCUSSION

I. WHETHER THE TRIAL COURT PROPERLY GRANTED JUDGMENT NOTWITHSTANDING THE VERDICT.

II. WHETHER THE RECORD ESTABLISHES A BREACH OF DUTY BY EITHER JAMES OR STACY EVANS.

¶ 20. We first must determine what duty was owed Corley by James and Stacy. This question can only be answered when we determine Corley’s status as to James and Stacy. After those questions are resolved, we must ascertain, in the light most favorable to Corley, giving him the benefit of all favorable inferences that may reasonably be drawn from the evidence, whether there is substantial evidence in support of the verdict. Is the evidence of such quality and weight that reasonable and fair minded jurors, in the exercise of impartial judgment, may have reached different conclusions?

¶ 21. Mississippi adheres to the invitee/licensee/trespasser trichotomy when analyzing the property owner’s duty of care. Hudson v. Courtesy Motors, Inc. 794 So.2d 999 (Miss.2001). Thus, Corley’s status as to James and Stacy determines what duty they owed to Corley. In Hoffman v. Planters Gin Co. 358 So.2d 1008, 1011 (Miss.1978), we held:

As to status, an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage ... A licensee is one who enters upon the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner whereas a trespasser is one who enters upon another’s premises without license, invitation, or other right.

(citing Langford v. Mercurio, 254 Miss. 788, 183 So.2d 150 (1966); Wright v. Coffey, 239 Miss. 470, 123 So.2d 841 (1960); Kelley v. Sportsmen’s Speedivay, 224 Miss. 632, 80 So.2d 785 (1955)).

¶ 22. As to Stacy, Corley was an invitee. In order to create invitee status there must be a mutual advantage between landowner and invitee. Here, Stacy received a $7 admission fee from Corley, and Corley received the benefit of attending the crawfish boil. Therefore, there is a mutual advantage, and, invitee status is established on the part of Corley. The landowner is not an insurer of the invitee’s safety, but does owe to an invitee the duty “to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.” (Emphasis added). Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 773 (Miss.1992), citing McGovern v. Scarborough, 566 So.2d 1225, 1228 (Miss.1990). Along with that duty, is the duty of the landowner to protect invitees from injuries which are reasonably foreseeable. Kelly v. Retzer & Retzer, Inc., 417 So.2d 556, 560 (Miss.1982).

¶ 23. We said in Grisham v. John Q. Long V.F.W. Post, No. 1057, Inc., 519 So.2d 413, 416 (Miss.1988), that a tavern keeper can only be held liable where he had “cause to anticipate the wrongful or negligent act of [an] unruly patron.” Here, we would hardly classify Stacy as a “tavern keeper,” but regardless, the record does not reveal that she had any “cause to anticipate” violent behavior of her festival-goers at the crawfish boil.

¶ 24. The introduction of the pistol into this case and one friend accidentally shooting another friend did not provide Stacy with adequate warning. Moreover, these events, both the mere presence of a pistol and the actual shooting, are not reasonably foreseeable. Additionally, Stacy employed three security guards to patrol the event. In three previous crawfish boils, only one fight had broken out. This prior altercation three years before the current situation was not adequate notice to Stacy that an intoxicated friend would accidently shoot another friend at the crawfish boil. Stacy simply had no “cause to anticipate” a negligent shooting based on one minor altercation at the three events she had sponsored.

¶ 25. As an important corollary to the landowner’s duty, we have held repeatedly that owners are not insurers of an invitee’s safety. See Gatewood v. Sampson, 812 So.2d 212, 219 (Miss.2002); J.C. Penney Co. v. Summit, 318 So.2d 829, 832 (Miss.1975); Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966). Should we set aside the trial court’s grant of the JNOV in this case, we most assuredly would be informing premises owners/landowners that they have now become the insurers of an invitee’s safety.

¶ 26. In the recent Gatewood case, we upheld the trial court’s judgment on a jury verdict of $308,000. In Gatewood, Roy Sampson (Sampson) had pulled into a service station owned by Jeff Gatewood (Gatewood). Sampson’s purpose for being on the premises was to buy gas and use one of the pay phones; therefore, Sampson was clearly an invitee under our premises liability law. As Sampson was using the pay phone, he was attacked by a man with a gun, occupants from the car in which Sampson’s assailant had exited fired upon both Sampson and his assailant as the two men struggled over the weapon, Sampson’s assailant was killed from one of the shots coming from the car, and Sampson was struck in the back of the head by one of the bullets, but survived the attack. In citing Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991), we stated that:

[there are] two ways to establish legal causation, or foreseeability, in cases of assault by a third person. “The requisite ‘cause to anticipate’ the assault may arise from (1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists [on the premises] ...” Lyle, 584 So.2d at 399 (quoting Grisham, 519 So.2d at 416). Evidence of the existence of an atmosphere of violence may include “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises, as well as the frequency of criminal activity on the premises.” Lyle, 584 So.2d at 399.

Gatewood, 812 So.2d at 220. Sampson offered evidence which revealed “that sixty violent crimes were reported to police in the neighborhood of the Ellis Isle Exxon [Gatewood’s service station] within the three years prior to the attack. Thirty-two of those crimes reportedly occurred in the nearby Ellis Isle Shopping Center. Two incidents occurred in close proximity to the gas station: an armed carjacking occurred on the street in front of the station and a bullet fired from nearby entered the building. A fight also reportedly occurred in the Exxon parking lot.” Id. We went further to distinguish the facts in Gatewood from those in Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1189 (Miss.1994), in that Crain failed to offer evidence sufficient to establish proximate cause, whereas Gatewood offered sufficient evidence as to proximate cause and foreseeability so as to present a jury issue. 812 So.2d at 221. Without question, in comparing the “foreseeability” evidence presented in Gatewood with the evidence presented in the case before the Court today, Corley’s evidence falls considerably short of that necessary to present a jury issue on foreseeability.

¶ 27. In referring to the “cause to anticipate” test quoted in Lyle, 584 So.2d at 399, Corley asserts that “an injured party can only recover after at least one violent act had already occurred, thereby placing defendant on notice of the dangerous condition.” In the Lyle case, evidence was offered that between 1981 and 1989, numerous criminal charges were filed against persons in the tavern and the adjacent parking lot. In Lyle, we held that a jury question existed as to whether the property owners’ discontinuance of the use of security guards in their bar parking lot constituted negligence, in light of the fact that there had been a history of fighting outside the bar. That case is not analogous to the case sub judice as the facts are dissimilar. We held in Lyle that a fact question was created because there was an approximate nine-year history of arrests at the property in question. Moreover, Lyle involved a bar, opened with regular hours, while the case sub judice involved a tract of farm land opened once a year for a crawfish boil. Accordingly, for the reasons stated, the trial court properly granted Stacy’s JNOV motion.

¶ 28. As to James, Corley was a licensee; therefore, James only had the duty to refrain from willfully or wantonly injuring Corley. Adams ex rel. Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097, 1101 (Miss.1986). James derived no benefit from the crawfish boil and was not involved in its promotion or staging. There is no evidence in the record that James willfully or wantonly injured Corley, or even had anything whatsoever to do with the crawfish boil, other than his brief attendance at the event. Thus, JNOV was likewise proper as to James.

III. WHETHER THIS COURT SHOULD CHANGE WELL SETTLED MISSISSIPPI PREMISES LIABILITY LAW.

¶ 29. Corley urges this Court to adopt the “California Rule” of premises liability regarding third party conduct. Also, Judge Evans very eloquently conveyed his firm convictions in his Opinion and Order Granting Judgment Notwithstanding the Verdict. In what he understandably described as “an unpleasant decision,” Judge Evans, stated, in part:

[Scott Corley’s] injuries are tragic, severe, and permanent. His life has been forever changed. If the jury’s verdict were collected, occupational therapy might be afforded and his life made easier. Instead, in addition to the injustice of the first tragedy, this young Plaintiff must now suffer a second. And this one at the hands of our State’s common law.

In his opinion and order, Judge Evans likewise requested this Court to consider adoption of the “California Rule” as to premises liability regarding third party conduct, which is a “totality of the circumstances” standard as opposed to a “cause to anticipate” standard.

¶ 30. The California Rule states:

... in determining the existence of a landowner’s duty to protect invitees from the wrongful conduct of third persons, foreseeability is measured by all of the circumstances including the nature, condition and location of the defendant’s premises and defendant’s prior experience, bearing in mind that what is required to be foreseeable is the general nature of the event or harm, not its precise nature or manner of occurrence.

Onciano v. Golden Palace Restaurant, Inc., 219 Cal.App.3d 385, 394, 268 Cal.Rptr. 96, 99 (Cal.Ct.App.1990) (citing Isaacs v. Huntington Mem’l Hosp., 38 Cal.3d 112, 129, 211 Cal.Rptr. 356, 695 P.2d 653 (1985)). Onciano and our reference to Onciano in our decision in Crain are the bases for the trial court’s plea to this Court to revisit our premises liability law as to third party conduct. However, subsequent to the California Supreme Court’s decision in Isaacs and a state district court of appeal decision in Onciano, the California Supreme Court revisited the issue of third party conduct premises liability in Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, 678, 25 Cal.Rptr.2d 137, 145, 863 P.2d 207, 215 (1993), and in doing so, admitted that certain broad language in Isaacs had caused confusion in that there was at least an inference that analyzing foreseeability to determine duty by a premises owner was normally a question of fact to be determined by a jury, and that any such interpretation of Isaacs was error. The Ann M. court went on to hold that “[fjoreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.” 25 Cal.Rptr.2d 137, 863 P.2d at 215. Recently, another California district court of appeal questioned the holdings in Isaacs and Onciano. In Eric J. v. Betty M., 76 Cal.App.4th 715, 90 Cal.Rptr.2d 549, 554 (Cal.Ct.App.1999), that court stated:

The viability of the holding in Onciano is questionable in light of the subsequent Supreme Court decision in Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 (1993). Onciano relied on Isaacs, 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653 to reject the idea that a lack of prior criminal activity was not disposi-tive in the landowner’s favor, a fact which Justice Fred Woods would find troubling in a separate concurring opinion, where he lamented Isaacs’ “broad' brush dicta.” .Liability in the face of the absence of notice of prior criminal activity, however, was disposi-tive in favor of the landowner in Ann M., a rationale which Justice Mosk, in his dissent in Ann M. criticized as being inconsistent with Isaacs.

Accordingly, it appears that the California courts have at least partially retreated from the Isaacs/Onciano pronouncements. In the end, we see no reason to endure the somewhat disjointed California experience and abandon our well-established premises liability law concerning third-party conduct.

¶ 31. Returning to the case before us today, the record does not support a finding that the Evanses should have reasonably foreseen the third-party conduct of a drunken Harden who accidently shot his friend, Scott Corley. The third-party assault by Harden upon his friend, Scott Corley, was not foreseeable because the requisite “cause to anticipate” did not arise since Stacy had “no actual or constructive knowledge of Harden’s violent nature,” or “actual or constructive knowledge that an atmosphere of violence existed” on her land at the crawfish boil.

¶ 32. We conclude that no liability was imposed upon Stacy or James under our well-settled premises liability law. We decline to adopt the California Rule in Mississippi, because that experience reveals that such a rule could ultimately create strict liability for property owners, causing them to become insurers of an invitee’s safety.

CONCLUSION

¶ 33. While strongly urging this Court to revisit our premises liability law, the trial court boldly and firmly adhered to the law of this State in granting the JNOV and setting aside a judgment in the amount of $2,500,000, a judgment, which, as pointed out by the trial judge, even if collected, would hardly be a start toward full compensation for Scott Corley based on the grievous injuries he suffered. Were we to turn our heads away from the issue of liability in this case, Scott Corley would be entitled to the jury award, and more. However in this imperfect world we are unable, as a matter of law, of awarding compensation for every injury which occurs in society. Though Scott Corley proved his damages, we cannot reinstate the jury verdict based simply on whomever may have been named as defendants in this lawsuit. Before the jury in any case can award damages, liability, as a matter of well-established law, must be proven as to one or more of the named defendants in the litigation. The trial court succinctly described in its opinion and order granting the JNOV motions, the “tragic, severe, and permanent” injuries inflicted upon Scott Corley, who was only nineteen years old at the time this tragedy occurred. As noted above, the injuries and damages suffered by Scott Corley do not go unnoticed by this Court. However, we are compelled to hold today that, based on the record before this Court and the applicable law, the trial judge properly granted judgment notwithstanding the verdict as to both James Evans and Stacy Evans because neither violated a duty owed to Scott Corley under our premises liability law. We also decline to modify the invitee/licensee/trespasser trichotomy in Mississippi by adopting the “California Rule” regarding premises liability as to third-party conduct. As we affirm the grant of JNOV, the cross-appeals of James Evans and Stacy Evans are rendered moot. We affirm the trial court’s order granting a JNOV for James Evans and Stacy Evans.

¶ 34. AFFIRMED.

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

      . In a Motion to Compel filed in the case, Stacy Evans stated she was "erroneously referred to in the Complaint as Stacy Hamrick.”

      . See Miss.Code Ann. § 85-5-7 (1999).

      . Harden’s name is sometimes spelled "Hardin” in the trial record.

      . Harden testified that he had borrowed the pistol "for protection, I guess you’d say.”

      . Harden believed the pistol to be unloaded, and no one could recall how the pistol ended up loaded, or who loaded it.

      . During his testimony, Harden equivocated as to how long the gun had actually been in his hand.

      . The only beverage and food sold were soft drinks and red-beans and rice.

      . See however, Tharp v. Bunge Corp., 641 So.2d 20, 25 (Miss.1994), wherein we abolished the "open and obvious” defense as a complete bar, and invoked the application of our long-standing comparative negligence doctrine. Miss.Code Ann. § 11-7-15 (1972).

      . In Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1190-91 (Miss.1994), this Court declined a similar invitation to adopt the "California Rule.” We recognized that the California experience revealed that the California courts eventually "stretched the 'totality of the circumstances' test to the level of strict liability....” Id. at 1191.

      . Our research on Ann M. reveals a "negative indirect history” which guides us to a California Supreme Court case, Saelzler v. Advanced Group 400, 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 619-20 23 P.3d 1143, 1145-46 (2001). A close study of Saelzler reveals that amendments to the California summary judgment statute (California Code of Civil Procedure § 437(c)), may have superceded certain language in various cases, including Ann M.; however, the statutory amendments relate to modification of an almost "impossible” burden of proof placed on the moving party to adoption of "the federal mechanism of burden shifting” [in summary judgment motion hearings]. Accordingly, Ann M. is still "good law” in California.


text:
    Jasper JOINER v. STATE of Mississippi.
    No. 2001-KA-00809-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2003.
    David O. Bell, Oxford, for Appellant.

      Office of the Attorney General by Billy L. Gore, for Appellee.
    Before SMITH, P.J., EASLEY and GRAVES, JJ.
   EASLEY, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On December 3, 1999, a grand jury for Lafayette County, Mississippi, returned an indictment charging Jasper Joiner (Joiner) with operating a motor vehicle while under the influence of alcohol and negligently causing the death of Mary Callie Harwell (Harwell) in violation of Miss.Code Ann. § 63-11-30 (Rev.1996). After a trial, the jury returned a verdict of guilty. Joiner was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections. Joiner’s motion for JNOV was denied, and he then appealed.

FACTS

¶ 2. At approximately 4:20 p.m. on October 7, 1999, the vehicle operated by Joiner struck the vehicle of Harwell, who was traveling south on Highway 7 in Lafayette County, Mississippi. All witnesses who saw the accident testified that Joiner did not stop at the stop sign prior to entering Highway 7, at a high rate of speed, resulting in the collision. The evidence reflects and Joiner admits that he was drinking and driving. Joiner’s blood alcohol content was .18%. Joiner testified that he stopped before driving onto Highway 7.

¶ 3. Harwell was transported to Baptist Hospital in Oxford, Mississippi, by ambulance and was pronounced dead upon her arrival. Dr. Thomas Fowlkes testified that he was on duty at the emergency room when paramedics brought in Har-well. Dr. Fowlkes was accepted by the trial court as an expert in the field of medicine. Dr. Fowlkes determined that Harwell died from massive head trauma. The triage report indicated three diagnoses: (1) traumatic cardiac arrest; (2) motor vehicle accident; and (3) multiple trauma. Dr. Fowlkes testified that in his opinion the victim’s cardiac arrest was caused by the trauma. The testimony revealed that the massive head injuries caused stoppage of the heart and cessation of blood circulation.

¶ 4. The jury returned a guilty verdict. Joiner argues that there was no showing that the collision was the cause of death. Joiner contends that “[wjhile it may be an unlikely coincidence, it is still entirely possible for the victim to [have died] of natural causes before the collision.” Joiner contends that “[a]n autopsy presents more conclusive evidence and protects the right of the accused to demand proof of his guilt beyond a reasonable doubt.” Joiner appeals to this Court raising the following issue:

Whether this Court should overrule its decision in Hopson v. State, 615 So.2d 576 (Miss.1993).

DISCUSSION

¶ 5. Miss.Code Ann. § 63-11-30(1) (Rev.1996), at the time this accident occurred, made it a crime “for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor ... [or] (c) has an alcohol concentration of ten one-hundredths percent (.10%) or more for persons who are above the legal age to purchase alcoholic beverages under state law....” Furthermore, “[e]very person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another ... shall, upon conviction, be guilty of a felony....” Miss.Code Ann. § 63-11-30(4) (Rev.1996). Therefore, the State must prove that Joiner not only consumed alcohol prior to the accident, but that he performed a negligent act that caused the death of another. Hedrick v. State, 637 So.2d 834, 837-38 (Miss.1994). It has been made clear that § 63-11-30(5) “contains no requirement that the negligence has to be caused by the alcohol.” Ware v. State, 790 So.2d 201, 216 (Miss.Ct.App.2001).

¶ 6. The corpus delicti in a homicide case consists of (1) the death of a human being, and (2) a criminal agency. Steele v. State, 544 So.2d 802, 807-08 (Miss.1989). In the case sub judice, the death of Har-well is not in dispute. However, Joiner contends that the State did not prove the required criminal agency. Joiner argues that only an autopsy could determine the cause of death beyond a reasonable doubt.

¶ 7. This State has held for many years that “[n]either an autopsy nor medical evidence is required to establish the corpus delicti” Hopson v. State, 615 So.2d 576, 579 (Miss.1993)(citing Miskelley v. State, 480 So.2d 1104 (Miss.1985)); McCraw v. State, 260 So.2d 457 (Miss.1972); King v. State, 251 Miss. 161, 168 So.2d 637 (1964). Joiner argues that an autopsy would have determined the cause of death beyond a reasonable doubt. Although Joiner provides no legal authority, he now asks this Court to overrule Hopson and all other long-standing cases of this State, and reverse his sentence because there was no autopsy. It is well established that this Court will not review any issue where the party has failed to cite relevant authority. Williams v. State, 708 So.2d 1358, 1360-61 (Miss.1998)(citing Hoops v. State, 681 So.2d 521, 526 (Miss.1996)); Kelly v. State, 553 So.2d 517, 521 (Miss.1989). Nevertheless, the summation of Joiner’s argument contained in his brief is as follows:

In Hopson, this Court held that neither autopsy nor medical evidence is required to establish corpus delicti in a homicide case. This Court held that criminal agency causing death may be proved by circumstantial evidence and by reasonable inferences to be drawn from evidence.
While this ruling certainly meets the preponderance of the evidence standard, appellant argues that the reasonable doubt standard requires such proof. While it may be an unlikely coincidence, it is still entirely possible for the victim to die of natural causes before the collision. Here, there was a finding of cardiac arrest. Dr. Fowlkes stated his opinion that the arrest was a result of the collision. He may be more likely than not to be right — but that is not the standard. Reasonable doubt still exists. An autopsy presents more conclusive evidence and protects the right of the accused to demand proof of his guilt beyond a reasonable doubt.

We disagree with Joiner’s contention.

¶ 8. Hopson is just one of many longstanding cases holding that there is no need for an autopsy or medical evidence when proving corpus delicti. Hopson, 615 So.2d at 579. In Hopson, the defendant was driving his vehicle while heavily intoxicated, and veered off the paved road striking a five-year-old boy. One eyewitness saw all of the events transpire while another eyewitness only saw the events immediately before and after the child was struck. Hopson contended that the State failed to prove corpus delicti because it did not establish the child’s death resulted from criminal agency. Id. The defendant stated “[N]o one gave their opinion as [to] the cause of death.” This Court held that “the testimony of the examining physician, when viewed in harmony with the testimony elicited from the two eyewitnesses observing the incident, either in whole or in part, overwhelmingly established that the cause of the child’s death was blunt trauma received when he was struck by the Hop-son’s automobile.” Id. at 580.

¶ 9. “The state may prove the crime (corpus delicti) by circumstantial evidence, but where the case is based wholly on circumstantial evidence, the state must prove the defendant’s guilt beyond a reasonable hypothesis consistent with innocence.” Steele v. State, 544 So.2d at 808 (quoting Hester v. State, 463 So.2d 1087, 1093 (Miss.1985)); Hemphill v. State, 304 So.2d 654, 655 (Miss.1974) (quoting Westbrook v. State, 202 Miss. 426, 32 So.2d 251, 251 (1947)). The hypothesis Joiner asserts, that Harwell died of natural causes prior to the collision, is not reasonable. By his own admission, “it may be an unlikely coincidence.” (emphasis added). Joiner further admits, that “[Dr. Fowlkes] may be more likely than not to be right.” Whether Harwell died of natural causes or as a result of the collision was a question for the jury.

¶ 10. The overwhelming weight of the evidence shows Joiner had a blood alcohol level of .18%. Several eyewitnesses saw Joiner drive through a stop sign without stopping just an instant prior to colliding with Harwell’s vehicle. Dr. Fowlkes, the emergency room physician who examined Harwell’s body, determined that she died of traumatic cardiac arrest caused by the trauma received in the collision. We know that Harwell was driving her vehicle. For Joiner to assert that an autopsy is necessary because, regardless of the likelihood, Harwell may have died of natural causes just seconds before he negligently ran a stop sign while intoxicated is not a reasonable hypothesis consistent with innocence.

CONCLUSION

¶ 11. Joiner has not established a compelling rationale or provided legal authority to persuade this Court to overrule Hop-son, and the numerous cases that preceded it. Accordingly, the judgment of the trial court is affirmed.

¶ 12. CONVICTION OF AGGRAVATED DUI AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

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