author: CLARENCE E. McMANUS, Judge.

text:
    Nichole R. PENN v. LOUISIANA-1 GAMING (A Louisiana Partnership in Commendam), Louisiana Gaming Enterprises, Inc./Boomtown, Inc.
    No. 06-CA-928.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2007.
    Rehearing Denied May 7, 2007.

      Roderick T. Morris, Attorney at Law, New Roads, Louisiana, for PlaintiffiAppel-lant.
    Peter J. Butler, Gretna, Louisiana, and Peter J. Butler, Jr., Michael C. Luquet, Ralph T. Rabalais, Breazeale, Sachse & Wilson, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.

      Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

1 STATEMENT OF THE CASE

Plaintiff, Nichole Penn, was employed by Boomtown Belle Casino in the Food and Beverage Department. On November 16, 2002, Penn was injured while in the course and scope of her employment with Boomtown when she slipped and fell onto the floor in the kitchen. She was treated by Boomtown’s workers’ compensation physician and diagnosed with a strained abdominal wall and contusion to her chest wall. Penn returned to work at full duty on November 23, 2002. On that date she complained that her abdominal strain was still causing problems and requested that she see a physician of her choosing. Boomtown authorized treatment by Dr. Joseph Serio.

Dr. Serio examined Penn on November 26, 2002 and diagnosed her with strained abdominal wall and contusion in the lower chest. Dr. Serio prescribed light duty work, if available. Dr. Serio’s report states Penn could lift, carry, push or pull a maximum of 5 pounds, and could participate in occasional bending, stooping, twisting, squatting and kneeling. Penn returned to work at Boomtown on November 27, 2002. On that date, Penn dropped a sleeve of Styrofoam cups in the storeroom, but failed to pick it up. Penn’s supervisor, Jim Cameron, asked Penn to |spick the cups up. Penn advised Cameron she was on light duty and would not pick up the cups. Cameron then looked at Dr. Serio’s instructions and directed Penn that picking up the cups was within the light duty activities prescribed. Penn got upset, told Cameron she was quitting and immediately left the job site. - Penn did not return to work, nor did she call in over the next two weeks, even though she was scheduled to work.

On December 10, 2003, Boomtown terminated Penn on the grounds that she had resigned and walked off the job. Penn then requested an Employee Board of Review to review the termination. The Board upheld her termination. Penn then filed a workers’ compensation claim on January 6, 2003. In addition, Penn filed a Petition for Wrongful Discharge in the Twenty Fourth Judicial District Court against Louisiana-I gaming, a Louisiana Partnership in Commendam, and Louisiana Gaming Enterprises, Inc. d/b/a Boom-town Belle Casino. Penn alleged she was terminated by Boomtown for the filing of the workers’ compensation claim.

Boomtown filed an Answer to.the Petition contending that Penn was not involuntarily terminated, but rather she voluntarily quit. Boomtown alternatively contended that if Penn was involuntarily terminated, the reason for termination was not the filing of the workers’ compensation claim, but rather belligerence, insubordination, leaving the workplace and not returning, and a bad attitude on the part of Penn. Boomtown also pointed out that at the time of Penn’s separation from employment, no workers’ compensation claim had been filed by Penn.

Following discovery, on December 1, 2005, Boomtown filed a motion for summary judgment. A hearing was held on April 12, 2006. The trial court issued a Judgment on April 18, 2006, granting summary judgment in favor of Boomtown and dismissing all of plaintiffs claims against Boomtown, with prejudice at Lplaintiffs costs. Also on April 18, 2006, the trial court provided Reasons for Judgment. The trial court found that Penn had failed to establish a prima facie case of retaliatory discharge. The trial court found that Penn’s failure to return to light-duty work offered to her is a non-discriminatory and valid reason for discharge.

Penn now appeals the trial court’s ruling. For the reasons which follow, we affirm the trial court’s judgment granting summary judgment in favor of Boomtown and dismissing all plaintiffs claims against Boomtown with prejudice.

DISCUSSION

Penn appeals the trial court’s granting of summary judgment in favor of Boomtown. Appellate courts review summary judgments de novo to determine whether summary judgment is appropriate, using the same criteria applied by trial courts. Chivleatto v. Sportsman’s Cove, Inc., 05-186 (La.App. 5 Cir. 6/28/05), 907 So.2d 815, citing, Duhe v. Weber’s IGA Store, 01-383, p. 3 (La.App. 5 Cir. 10/17/01), 800 So.2d 1002, 1004. An appellate court must determine whether there is any genuine issue of material fact, and whether the mover/appellant is entitled to judgment as a matter of law.

In her Petition, Penn alleged Boomtown had violated La. R.S. 23:1361, which prohibits discharge of an employee because of the filing of a workers’ compensation claim for benefits. The purpose of La. R.S. 23:1361 is to allow employees to exercise their right to workers’ compensation benefits without fear of retaliatory action by their employers and to prevent unjust dismissals. Chivleatto v. Sportsman’s Cove, Inc., supra, citing, Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App. 2 Cir. 4/7/04), 870 So.2d 1131, 1136. La. R.S. 23:1361 is penal; therefore, it must be strictly construed. Chivleatto v. Sportsman’s Cove, Inc., supra, citing, Nicholson v. Transit Management of Southeast Louisiana, 00-706 |5(La.App. 4 Cir. 2/14/01), 781 So.2d 661, 667, writ denied, 01-0721 (La.5/11/01), 792 So.2d 735.

In order to be entitled to recover for retaliatory discharge under LSA-R.S. 23:1361, the plaintiff/employee must establish by a preponderance of the evidence that he was discharged because he asserted a workers’ compensation claim, either by presenting direct evidence that the assertion of a workers’ compensation claim was the reason for the discharge, or presenting circumstantial evidence sufficient to establish more probably than not that the reason for the discharge was the assertion of the workers’ compensation claim. Chivleatto v. Sportsman’s Cove, Inc., supra, citing, Nicholson v. Transit Management of Southeast Louisiana, 781 So.2d at 668-669.

Generally, direct evidence that the employee was discharged, because he asserted a workers’ compensation claim, is proof that the employer admitted that reason for discharging the employee. Id. Since an employer will rarely admit that the employee was fired for filing a compensation claim, most plaintiffs rely on circumstantial evidence to prove more probably than not that they were discharged because they filed a workers’ compensation claim. Id. If the employer gives a nondiscriminatory reason for the discharge, and presents sufficient evidence to prove more probably than not that the real reason for the employee’s discharge was something other than the assertion of the workers’ compensation claim, the plaintiff is precluded from recovery. Id. If, the employer offers another reason for firing the workers’ compensation claimant, the trial court must ascertain the employer’s true reason or motive based on the facts presented. Chivleatto v. Sportsman’s Cove, Inc., supra, citing, Hooker v. Wal-Mart Stores, Inc., supra. If, the trial court finds that it is more probable than not that the employer’s non-discriminatory explanation for the discharge is just a guise for retaliatory discharge, the employee's entitled to recovery. Chivleatto v. Sportsman’s Cove, Inc., supra, citing, Nicholson v. Transit Management of Southeast Louisiana, supra. Therefore, the statute cannot be circumvented by an employer stretching the facts out of context or inventing an excuse for firing the workers’ compensation claimant. Chivleatto v. Sportsman’s Cove, Inc., supra, citing, Hooker v. Wal-Mart Stores, Inc., supra.

In this case, Boomtown completed a Personnel Action Form on December 10, 2002. That form indicated Penn’s last day of work was November 27, 2002 and effective December 10, 2002, Penn’s employment with Boomtown was terminated. The termination was marked “voluntary” and the reason given was “Resigned-walked off shift.” A Separation Notice Alleging Disqualification was completed on December 11, 2002 indicating that Penn was voluntarily leaving. According to the affidavit of Joseph Robertson, Jr., Human Resources Manager of Boomtown, and the Boomtown employee handbook, Boomtown has a “No call/No show” policy which provides that in the absence of a true emergency, the failure to report to work when scheduled or to call in within two hours of the start of the shift to inform of the absence and reason for it, is grounds for termination. Also according to Robertson’s affidavit, Penn was scheduled to work in the employee dining room, at light duty, from November 27, 2002 until December 4, 2002. Penn left voluntarily on November 27, 2002 before the end of her shift. Thereafter, she failed to report to work or to call in anytime during those weeks. Therefore, Penn violated Boom-town’s “No call/No show” policy. In addition, Penn was insubordinate and disrespectful to her supervisor, Jim Cameron, on November 27, 2002.

On December 27, 2002, Penn submitted a Request for Employee Board of Review. The Employee Board of Review was held on January 7, 2003 and on |7January 9, 2003, the Board of Review decided to uphold the disciplinary action, which was termination.

Boomtown had offered Penn light duty work and she chose to leave work on November 27, 2002 and not return. She voluntarily left work and clearly violated Boomtown’s “No call/No. show” policy. Those reasons, along with her insubordinate and disrespectful actions, were valid reasons for termination. and had no connection to . her workers’ compensation claim. Failure to return to light duty w;ork offered is a non-discriminatory and valid reason for discharge. Myers v. Omni Hotel, 654 So.2d 771 (La.App. 4th Cir.1995).

Accordingly, we affirm the trial court’s judgment granting summary judgment in favor of Boomtown and dismissing all claims against Boomtown with prejudice.

AFFIRMED.


source: Caselaw Access Project

author: SMITH, Chief Justice, for the Court.

license: Public Domain

text:
    Brenda SAVORY v. FIRST UNION NATIONAL BANK OF DELAWARE.
    No. 2003-CA-02773-SCT.
    Supreme Court of Mississippi.
    March 1, 2007.
    Rehearing Denied May 10, 2007.

      Frank Thaekston, Jr., C.W. Walker, III, Greenville, attorneys for appellant.
    H. Mitchell Cowan, Vikki J. Taylor, Jackson, attorneys for appellee.
    Before SMITH, C.J., EASLEY and GRAVES, JJ.
   SMITH, Chief Justice, for the Court.

¶ 1. This case comes to this Court on appeal from the Circuit Court of Leflore County by the plaintiff, Brenda Savory. Savory claims that she was defrauded by First Union National Bank of Delaware (hereinafter “First Union”) and mortgage brokers John Emory and Joni Goss, doing business as Mississippi Mortgage Corporation (“Mississippi Mortgage”), while she was obtaining a loan with First Union. Specifically, the alleged fraud involves the falsification of documents, which Savory argues exaggerated her net worth and bolstered her credit worthiness. On appeal, Savory asserts that First Union was either actively involved in this fraudulent scheme, should have detected the fraud, or that the actions of Emory and Mississippi Mortgage should have been imputed to First Union because they were agents of First Union.

¶ 2. We hold that the trial court erred in giving Jury Instructions 26 and SO, as they likely confused and misled the jury as to the correct principle of law. Accordingly, we reverse and remand.

FACTS

¶ 3. In 2000, Savory contacted Orin Parrish, to inquire about a house that was listed for sale. Parrish told Savory that the selling price of the house would not be less than $40,000. Savory subsequently contacted Emory, a loan officer with Wholesale Mortgage, about financing options for the house. Emory took Savory’s loan application over the phone and entered information that she provided on a standard Housing and Urban Development (HUD) Form 1003. He also obtained employment and rent verifications, verification of Savory’s deposit account and assets, a borrower’s authorization and an appraisal of the property to be financed. These documents were submitted to Equicredit, one of Wholesale Mortgage’s lending sources. After Equicredit notified Emory that Savory’s application had been denied, he transferred her loan application packet to Joni Goss with Mississippi Mortgage.

¶4. At all times relevant to Savory’s Complaint, Mississippi Mortgage had applied to be but had not yet been placed on First Union’s list of approved brokers. Darrell Carroll, who was the Underwriting Manager for First Union’s Broker Division at the time of the events in question, testified that Mississippi Mortgage was allowed to submit Savory’s loan application packet on a trial basis while approval of the Broker Agreement between First Union and Mississippi Mortgage was being considered. Carroll testified that, based on representations that the selling price of the house was $53,000 and that Savory would be paying a required ten percent down payment of $9,658, First Union approved Savory’s application. First Union loaned $47,7000 on property that actually cost $40,000. On October 6, 2000, the closing on the loan was held at Bobby Fisher, Jr.’s law office. Savory received a cash payment of $1,350 at the loan closing, which is not reflected on the Settlement Statement or other signed loan documents provided to First Union. Savory moved in to the house in November of 2000 but never made any of the scheduled $470.55 monthly mortgage payments to First Union.

¶ 5. On March 2, 2001, Savory filed a complaint against First Union, Emory; Mississippi Mortgage; Bobby Fisher, Jr.; Fisher Law Offices and other defendants, charging them with negligence, misrepresentation, fraud, breach of contract and various other claims. On October 3, 2002, a Leflore County jury found that First Union was not liable to Savory. However, the jury awarded Savory $30,000 in actual damages and $20,000 in punitive damages as a result of the fraud by Emory and Mississippi Mortgage. On November 1, 2002, the Circuit Court entered final judgment on the jury’s verdict. Savory’s motion for a directed verdict against First Union on the issue of liability was denied. Aggrieved by this decision, Savory asserts seven issues on appeal.

I. Whether the Lower Court Erred in Refusing to Rule First Union Was Liable to Brenda Savory as a Matter of Law for its Admitted Preparation of an Admitted Fraudulent Loan Document Applicable to Brenda Savory’s Loan from First Union.
II. Whether the Lower Court Erred in Refusing to Rule That Mississippi Mortgage Was First Union’s Agent as a Matter of Undisputed Fact and Law.
III. Whether the Lower Court Erred in Refusing to Rule That Mississippi Mortgage Acted Within the Scope of its Employment as Agent for First Union as a Matter of Undisputed Fact and Law.
IV. Whether the Lower Court Erred in Allowing the Jury to Decide Whether Emory/Mississippi Mortgage Acted as an “Independent Contractor” or “Agent.”
V. Whether the Lower Court Erred in Excluding from Evidence the Broker’s Agreement, Which Both Parties Testified Was Applicable to Savory’s Loan from First Union.
VI. Whether Jury Instructions 26 and 30 Were Accurate Statements of Law.
VII. Whether the Lower Court Erred in Denying Savory’s Motion for J.N.O.V.

As the determination of Issues IV and VI control the outcome of this appeal, we address only those issues.

STANDARD OF REVIEW

¶ 6. This Court will not set aside a jury verdict unless it is against the overwhelming weight of the evidence and credibility testimony. SW. Miss. Reg’l Med. Ctr. v. Lawrence, et al., 684 So.2d 1257, 1267 (Miss.1996). This Court reviews jury instructions as a whole. Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992). Defects in particular instructions do not require reversal when the instructions, taken as a whole, fairly express the primary rules of law. Id.

DISCUSSION

I. Whether the Lower Court Erred in Allowing the Jury to Decide Whether Emory/Mississippi Mortgage Acted as an “Independent Contractor” or “Agent.”

¶ 7. Savory asserts that the fraud committed by the mortgage brokers was at First Union’s express direction because the brokers were controlled by First Union. Savory submits that the trial court should have instructed the jury that First Union was vicariously liable for the wrongful conduct of its agents; therefore the court erred in submitting to the jury the issue of whether the mortgage brokers were agents or independent contractors. First Union counters that the mortgage brokers were not agents of First Union. First Union argues that the brokers were actually independent contractors or agents of Savory.

¶ 8. This Court has held that a question of whether an agency relationship exists, or whether a party is an independent contractor, is a question of fact to be resolved by the jury. Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989). One legal authority states “when the facts pertaining to the existence or non-existence of an agency are conflicting, or conflicting inferences may be drawn from the evidence, the question presented is one of fact for the jury, ... and even though the evidence is not full or satisfactory, it is the better practice to submit the question to the trier of fact.” 3 Am.Jur.2d Agency § 372 (1986).

¶ 9. In Elder v. Sears, Roebuck & Co., the Court held that, due to conflicting evidence presented, the jury reasonably could have found that Sears exercised sufficient control over its agent, that it should be vicariously liable for the negligence of its agent, and therefore, the agency relationship was a question of fact for jury determination, and not one of law. Elder v. Sears, Roebuck & Co., 516 So.2d 231, 236 (Miss.1987). At trial, First Union and Savory presented conflicting evidence regarding whether Emory and Mississippi Mortgage were agents or independent contractors. In support of its position that Emory and Mississippi Mortgage were independent contractors, First Union stated that Mississippi Mortgage independently did the following: (1) selected their own business location; (2) hired and fired their own employees and determined their salaries; (3) conducted their own advertising with no reference to First Union; (4) solicited mortgage customers; (5) took loan applications in their name; (6) managed the daily activities of their office; (7) purchased their own equipment; (8) determined which lender to which the loan application would be submitted; and (9) did not participate in the loan approval process. First Union also introduced testimony showing that Emory followed this same practice. Conversely, Savory introduced ■evidence that: (1) Mississippi Mortgage and First Union were parties to a contract when Mississippi Mortgage arranged the loan with First Union; (2) First Union controlled the procedures that Mississippi Mortgage was to follow in making Savory’s loan; (3) First Union devised loan criteria that was binding on Mississippi Mortgage; (4) First Union required Mississippi Mortgage to keep records relating to the borrowers’ loans that it submitted to First Union.

¶ 10. Due to the conflicting evidence introduced at trial’ by Savory and First Union relating to the question of an agency relationship between the mortgage brokers and First Union, we find that the trial court did not err in submitting this issue to the jury. Furthermore, we decline to address the sufficiency of the evidence supporting the jury’s finding of whether Mississippi Mortgage and Emory were agents or independent contractors, as the resolution of the next issue controls the outcome of this appeal.

II. Whether Jury Instructions 26 and 30 Were Accurate Statements of Law.

¶ 11. Savory argues that Jury Instructions No. 26 and 30 were incorrect statements of law. However, First Union asserts that the jury was properly instructed as a whole. First Union also argues that Savory has now waived her objections based on her failure to object to these instructions at trial.

¶ 12. Rule 3.07 of the Mississippi Uniform Circuit and County Court Rules requires attorneys to “dictate into the record their specific objections to the requested instructions stating the grounds for each objection.” Miss. URCCC Rule 3.07. Rule 51(b)(3) of the Mississippi Rules of Civil Procedure requires that objections to jury instructions be stated distinctly into the record before the instructions are presented to the jury. Miss. R. Civ. P. 51(b)(3). Further, this Court will not consider an alleged erroneous instruction on appeal unless a contemporaneous objection was made at trial. Ducker v. Moore, 680 So.2d 808, 810 (Miss.1996).

¶ 13. A thorough review of the trial record reveals that Savory objected to both instructions in a jury instruction conference held out of the jury’s presence before the instructions were given. Savory objected to Instruction No. 26 on grounds that the factors listed to determine the independent contractor status were an abstract statement of law that was neither applicable to the facts of the case nor clear to the jury. Additionally, Savory argued that the jury could find that the defendants were not agents of First Union without finding that they were independent contractors. Savory also objected to Instruction No. 30, arguing that Emory and Mississippi Mortgage were agents as a matter of undisputed fact, and the instruction was an inaccurate statement of law regarding agency.

A. Instruction No. 26

¶ 14. Savory claims that Instruction No. 26 is confusing and misleading. Instruction No. 26 in pertinent part states that “the court instructs you that First Union is not responsible for the actions or conduct of Bobby F. Fisher, Jr., Fisher Law Offices [], John Emory, Mississippi Mortgage Corporation, Jason O’Bryant and/or Statewide Real Estate Valuation and Title Corporation if you determine that any of those parties were independent contractors.” (Emphasis added). Instead of correctly directing the jury to consider the status of each of these parties, the instruction directed the jury to consider all of the parties as one group. Under the instruction given, the jury could exonerate First Union from the fraudulent conduct of Emory or Mississippi Mortgage, if the jury found that Fisher or O’Bryant were independent contractors but Mississippi Mortgage and Emory were not. Under the correct standard of law, the jury’s finding that any one of these parties was an independent contractor would not exonerate First Union from the wrongful conduct of any of the other parties whom the jury believed to be agents of First Union. Therefore, this instruction as written is misleading and conflicts with the applicable rule of law.

¶ 15. The Court has held that “[i]t is the province of the court to instruct the jury on the law applicable to the case, and it is the duty of the jury to act on the law as received by them from the court.” Griffin v. Fletcher, 362 So.2d 594, 595 (Miss.1978). Furthermore, “[i]t is error for the court in any case to grant instructions which are likely to mislead or confuse the jury as to the principles of law applicable to the facts in evidence.” Id. at 596 (citing Moak v. Black, 230 Miss. 337, 351, 92 So.2d 845, 851 (1957)); Puckett Machinery Co. v. Edwards, 641 So.2d 29, 34 (1994)(holding that it is reversible error to give instructions likely to mislead or confuse the jury as to the principles of law applicable to the facts in evidence).

B. Instruction No. 30

¶ 16. The first paragraph of Instruction No. 30 states:

If you find against Bobby F. Fisher, Fisher Law Offices [], John Emory, Mississippi Mortgage Corporation, Jason O’Bryant and/or Statewide Real Estate Valuation and Title Corporation on Brenda Savory’s claims and further find that that party was acting as an agent of First Union, you shall not return a verdict against First Union unless that party was acting within the scope and course of his employment as an agent.

This portion properly allows a judgment against First Union if the jury found one or more of the parties to be acting within the scope of that party’s employment as an agent of First Union. However, in the paragraph immediately following this sentence, the instruction directs the jury that “if you find that Bobby F. Fisher, Jr., Fisher Law Offices [ ], John Emory, Mississippi Mortgage Corporation, Jason O’Bryant and/or Statewide Real Estate Valuation and Title Corporation each acted as agents of First Union, you shall not return a verdict against First Union if you find that their actions were outside the scope of their employment as agents.” (Emphasis added). Under this instruction, for the jury to return a verdict against First Union, they had to find that each party acted as an agent of First Union. We find that the language in the first and second part of the instruction conflicts, creating probable confusion. Under the correct statement of law, if the jury found that any one of these parties were acting within their scope of employment as agents of First Union, the fraudulent actions of that agent could bind First Union. Clearly, Instruction No. 30 failed to instruct the jury as to the applicable rule of law and was likely to cause confusion due to the use of conflicting language within the instruction.

¶ 17. Because these two instructions were likely to mislead and confuse the jury as to the correct principles of law applicable to the facts in evidence, we find that it was reversible error to grant and give Instructions Nos. 26 and 30.

CONCLUSION

¶ 18. While we find no error by the trial court in submitting the question of agency to the jury, we find that the trial court erred in giving Jury Instructions Nos. 26 and 30, as these instructions were confusing and likely to mislead the jury as to the applicable statements of law. Accordingly, the final judgment is reversed and remanded for a new trial.

¶ 19. REVERSED AND REMANDED.

WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. COBB, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.


text:
    TROWBRIDGE PARTNERS, L.P., A Mississippi Limited Partnership; Phil Moore; and Neal Clement v. MISSISSIPPI TRANSPORTATION COMMISSION.
    No. 2005-CA-02167-SCT.
    Supreme Court of Mississippi.
    March 22, 2007.
    Rehearing Denied May 10, 2007.

      W. Whitaker Rayner, Stephen W. Rim-mer, Jackson, attorneys for appellants.
    Ricky L. Boggan, and Alan M. Purdie, Grenada, attorneys for appellee.
   SMITH, Chief Justice, for the Court.

¶ 1. This appeal arises from an eminent domain proceeding brought by the Mississippi Transportation Commission (hereinafter “the Commission”). On April 22, 2004, the Commission filed a complaint in the Madison County Special Court of Eminent Domain against Trowbridge Partners (hereinafter “Trowbridge”) to condemn 5.05 acres of 8.45 acres of undeveloped land in the City of Madison. The purpose of the condemnation was to reconstruct and relocate a segment of State Route 463 from east of Interstate 55 to U.S. 51 in Madison, Mississippi. On November 15, 2004, the Madison County Special Court of Eminent Domain awarded the Commission title and immediate possession of the condemned 5.05 acres. At the trial to establish just compensation, the Commission and Trowbridge submitted differing evidence as to the value of the land taken. The jury returned a verdict of $1,108,941, upon which judgment was entered. Trow-bridge appeals the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. The condemned 5.05 acres are a part of an 8.45-acre tract of undeveloped land owned by Trowbridge Partners, L.P., a Mississippi Limited Partnership, with two limited partners — Phil Moore of Madison, Mississippi and Neal Clement of Jackson, Mississippi. The 5.05 acres that the Commission sought to condemn are located directly in the center of the 8.45-acre tract of land. After the taking, the remainder of the subject property included two smaller parcels of land. The parcel located in the northern corner of the subject property was approximately 1.47 acres fronting Hoy Road. The parcel located in the southern corner of the subject property was approximately 1.93 acres.

¶ 3. The trial commenced on August 9, 2005, to establish the total amount of compensation due to Trowbridge. At trial, the expert appraiser for the Commission, Terry Wells, testified that size is an important factor in determining the value of property and that smaller parcels are worth more per square foot than larger parcels. Wells also testified that the subject property was zoned for C-2 or general commercial development. However, he opined that despite the zoning restrictions, the highest and the best use of the remaining property was for restricted commercial development. During Trowbridge’s cross examination of Wells, he explained “that the remaining property would only be developed as restricted commercial [development] for [an] office building or a dentist office or [a] barber shop because it lacks access [to] a heavily-traveled road.” Wells opined that the fair market value of the entire 8.45 acres immediately before the taking was $1,582,800, and that the value of the remaining property immediately after the taking was $631,200, for a difference of $951,600 total compensation due to Trowbridge.

¶ 4. At the conclusion of Wells’s testimony, Trowbridge moved to strike his testimony regarding the valuation of the subject property on two grounds. First, Trowbridge contended that Wells’s testimony regarding the general appraisal guideline that smaller parcels are worth more per square foot improperly enhanced the fair market value of the remainder property. Secondly, Trowbridge asserted that Wells improperly disregarded the zoning restrictions when determining the highest and best use of the remainder property.

¶ 5. The trial court judge denied Trow-bridge’s motion. The trial court ruled that Wells did not'offer any testimony stating that the remaining property would be enhanced by the highway expansion project. The court further concluded that Wells testified only as to the general appraisal rule when determining the value of smaller parcels of land. Lastly, the court concluded that the Commission had no requirement to establish a potential zoning change, because C-l restricted commercial development is a lesser included use of. C-2 general commercial development.

¶ 6. The appraiser for Trowbridge, Hugh Hogue, offered his opinion that, because the remainder property was zoned for C-2 development, the highest and best use of the property was for retail commercial development. Hogue further testified that the fair market value of the 8.45 acres immediately before the taking was $2,208,492 and that the value of the remaining property immediately after the taking was $286,189, for a difference of $1,922,303 total compensation due to Trow-bridge.

¶ 7. After hearing the evidence and viewing the property, the jury returned a verdict in favor of Trowbridge in the amount of $1,108,941 as jiist compensation. Trowbridge filed a motion for Judgment Notwithstanding the Verdict (JNOV), with alternative motions for Amendment of Judgment, or a New Trial and Additur. The trial court denied Trowbridge’s motions. Trowbridge filed a timely notice of appeal. On appeal, Trowbridge raises two issues: (1) Whether the trial court erred in allowing the Commission’s expert appraiser, Wells, in his valuation to consider benefits conferred on the remainder property by the taking; and (2) Whether the trial court erred in allowing Wells to testify that, although the remainder property is zoned for C-2 general commercial development, the lesser included use of C-l restricted commercial development was the highest and best use of the property.

DISCUSSION

¶,8. Generally, the admission or exclusion of expert testimony is within the discretion of the trial judge. Terrain Enter. v. Mockbee, 654 So.2d 1122, 1128 (Miss.1995). However, “[w]here a court has exercised its discretionary authority in such a way that it misperceives the correct legal standard for admitting the evidence, the deference customarily afforded trial courts in decisions concerning the admissibility of evidence is precluded, because the error has become one of law.” Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997) (citing Bean v. Broussard, 587 So.2d 908, 913 (Miss.1991)). This Court “will reverse for erroneous interpretation or applications of the law.” Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992). Evidentiary objections which concern the appropriate legal standard to apply when determining the value of property in eminent domain proceedings are questions of law. Fires, 693 So.2d at 920..

I. Whether the Trial Court Erred in Allowing the Commission’s Expert Appraiser, Terry Wells, During his Determination of Value, to Consider Benefits Conferred on the Remainder Property by the Taking.

¶ 9. Trowbridge argues that Wells’s testimony that smaller parcels of land are worth more per square foot enhanced the value of the two remaining parcels. Trow-bridge cites two errors in support of its position. First, Trowbridge alleges that the trial court committed error by allowing Wells to make adjustments to the comparable sales used to determine the value of the property before the taking, when he did not make any adjustments to the comparable sales used to determine the value of the remaining property. The improper adjustments enhanced the per-square-foot value of the two remaining parcels. Second, Trowbridge claims that Wells improperly reduced Trowbridge’s award of damages by the alleged enhanced value of the remaining parcels.

¶ 10. In Mississippi State Highway Commission v. Hancock, the Commission condemned the landowners’ property on both sides of Highway 49, to widen it to four lanes. Mississippi State Highway Commission v. Hancock, 309 So.2d 867 (Miss.1975). The Commission contended that the highway expansion project enhanced the value of the landowners’ remaining property. Id. at 871. After the taking, the landowners’ remaining land, although previously classified by the Commission as farmland, was now also suitable and adaptable for residential property. Id. “Thus, [the Commission contended that] the landowners will still have as much residential property as they had before the taking.” Id. The Commission sought to set off the value of the enhancement from the value of the land taken. This Court held that:

The rule in this state is that when a part of a larger tract of land is taken for public use, the owners should be awarded the difference between the fair market value of the whole tract immediately before the taking and the fair market value of the remaining property immediately after the taking, without considering the general benefits or injuries to the use of the taken land. This rule leaves no room for a deduction for any enhancement of the remaining land due to the nature of the facility to be built on the land taken. Furthermore, the landowner is entitled to due compensation not only for the value of the property actually taken, but also for the damages, if any, which may result to the landowner as a consequence of the taking without any deduction therefrom on account of any supposed benefits incident to public use for which the application is made.

Hancock, 309 So.2d at 871 (citing Pearl River Water Supply Dist. v. Wood, 252 Miss. 580, 172 So.2d 196 (1965)).

¶ 11. In Mississippi Transportation Commission v. Bridgforth, this Court reiterated its previous holding in Hancock, that expert appraisers may not seek to set off the value of the enhancement from the value of the land taken. Miss. Transp. Comm’n v. Bridgforth, 709 So.2d 430 (Miss.1998). In Bridgforth, the Commission asserted that the landowners’ property in the “after” condition was still suitable for high intensity commercial purposes, although less of the land was available for large-scale development. Id. at 440. This Court held that the Commission’s argument was essentially the same as in Hancock. Id. Accordingly, the Court ruled against the Commission. Id. at 440-41.

¶ 12. Unlike the expert appraisers in Hancock and Bridgforth, Wells gave no testimony stating that the value of the remainder parcels was enhanced by the taking. Wells testified only that smaller parcels are worth more per square foot than larger parcels. This Court has held that size, use, location, topography, and other, like factors determine the value of land in eminent domain proceedings. Sanderson Farms v. Miss. Highway Comm’n, 324 So.2d 243, 244 (Miss.1975). Additionally, this Court in Miss. Highway Comm’n v. Havard, also held that:

the fair market value of the remainder of the property following the taking is a matter of common sense [sic] a product of the influence that numerous specifics respecting the taking may have in the market place. Accordingly, witnesses may testify concerning any specific quality, item or change in the property or its attributes, so long as this is ultimately related to the value of the property remaining after the taking.

Mississippi Highway Commission v. Havard, 508 So.2d 1099 at 1101 (citing Wade Baptist Church v. Miss. Highway Comm’n, 469 So.2d 1241, 1245 (Miss.1985)). Wells’s testimony that smaller parcels are worth more per square foot was relevant to the issue of the fair market value of the remainder property. Because there is no evidence that Wells testified that the highway expansion project would enhance the value of the remainder property or that he reduced his assessment of compensation by the alleged enhancements, and for the reasons discussed below, Trowbridge’s arguments are without merit.

A. Adjustments for size to the comparable sales

¶ 13. Wells considered seven comparable sales, with similar qualities to the sale in question, to determine the fair market value of the property. Wells made positive adjustments for size to the comparable sales that involved larger tracts of land than the condemned property. However, in his determination of the value of the remainder property, Wells relied solely upon the comparable sales that were similar in size to the remaining parcels. He did not consider the comparable sales involving larger tracts of land, so he did not make adjustments for size. Trowbridge alleges that the court erred in allowing Wells to make adjustments for size to the comparable sales during his determination of value of the property before the taking, when he did not make any adjustments for size to the comparable sales during his determination of value of the remaining property. According to Trowbridge, Wells’s adjustments to the comparable sales used to determine the fair market value of the property before the taking improperly enhanced the fair market value of the remaining parcels. Trowbridge’s arguments are without merit.

¶ 14. Comparable sales must relate to and possess similar qualities to the land involved in the sale. Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 923 (citing Miss. Highway Comm’n v. Daniels, 235 Miss. 185, 108 So.2d 854 (1959)). Moreover, recognizing the difficulty in finding comparable real estate transactions with similar size, location, topography, and other like factors, this Court allows appraisers to make adjustments to comparable sales to determine the value of the subject property in eminent domain proceedings. See Fires, 693 So.2d at 923, Bridgforth, 709 So.2d at 433. Therefore, the trial court did not err in allowing Wells during his determination of value of the remainder property to consider only the comparable sales similar in size to the remaining parcels.

B. Deductions from just compensation for the enhanced value of the remaining property.

¶ 15/ In Hancock and Bridgforth, the Commission’s expert appraisers asserted that the value of the remaining property was enhanced by the taking. Hancock, 309 So.2d at 870. Bridgforth, 709 So.2d at 440. The expert appraisers also contended that the landowners’ damages should be reduced by the enhanced value of the remaining property. Hancock, 309 So.2d at 870; Bridgforth, 709 So.2d at 440. However, in both Hancock and Bridgforth, this Court held that expert appraisers may not consider the enhanced value of the remaining property when determining its fair market value. Hancock, 309 So.2d at 870; Bridgforth, 709 So.2d at 440. In this case, the Commission’s expert appraiser gave no testimony requesting that Trowbridge’s damages be reduced by the enhanced value of the remaining property. Moreover, the judge instructed the jurors not to consider any enhancements conferred on the property by the taking.

¶ 16. Despite the lack of evidence to support Trowbridge’s claim, it alleges that Wells testified that there were various damages to the remainder property. Because Wells concluded that the per-acre value of the remainder property was the same before the taking and after the taking, Trowbridge finds error with his assessment of compensation. Trowbridge asserts that Wells’s assessment of compensation did not account for all of the alleged damages to the remainder property. Trowbridge directs this Court’s attention to Wells’s testimony and explanation of his opinion as to the value of the remainder property.

Q. What is that opinion?
A. It was the same as the value in the before, $4.30.
Q. And I’d like to point out that although we’re talking about the property in the before and the property in the after being two different sizes, the property in the after being a lot smaller than the before, I’m still indicating the same value per square foot; but you have a “different scenario” in the after as you did in the before.
Q. Mr. Wells, did you take into consideration the change in the access from 51 as opposed to the before and the after?
A. Yes, I did.
Q. All right. Now what if any other damage did you determine the landowner were [sic] due?
A. In the before scenario, we said that this property had frontage of approximately 1100 feet that ran along Hoy Road where any development could access the availability of utilities — water, electrical, and gas— that were, you know within easement along this right of way.

(Emphasis added).

¶ 17. Trowbridge contends that Wells’s “different scenario” testimony supports its position that he did not account for all the damages to the remainder property and that he reduced his assessment of damages by the enhanced value of the remaining parcels. However, Trowbridge takes Wells’s “different scenario” testimony out of the context in which it occurred. Before giving his assessment of compensation, Wells explained that he relied on comparable sales to determine the fair market value of the property. Wells further explained each comparable sale and the adjustments made to ensure that they were similar to this sale. In each of the comparable sales, Wells made a positive adjustment for the irregular shape of the remaining parcels and the additional cost of development.

¶ 18. Wells’s testimony regarding the “different scenario” in the before and the after condition of the remaining property relates to the irregular shape of the parcels and the increased development cost. Although Wells did not agree with Trow-bridge regarding the extent of the damages to the remainder property, he made no error in testifying that the fair market value of the remainder property was the same before and after the taking. Green Acres Mem. Park v. Miss. Highway Comm’n, 246 Miss. 855, 863, 153 So.2d 286, 289-90 (1963) (holding that there is no requirement in eminent domain proceedings that an expert appraiser regard the taking as damaging to the remainder).

II. Whether the Trial Court Erred in Allowing the Commission’s Expert Appraiser, Terry Wells, to Testify that the Remainder Property is Zoned for General Commercial Development but that the Lesser Included Use Restricted Commercial Development is the Highest and Best Use of the Property.

¶ 19. Trowbridge argues that Wells improperly disregarded the zoning classifications when determining the highest and the best use of the remainder property. Trowbridge relies on Dennis v. City Council of Greenville, 646 So.2d 1290 (Miss.1994) and Mississippi Highway Commission v. Wagley, 231 So.2d 507, 509 (Miss.1970) to support its argument that property must be evaluated under the existing zoning restrictions; therefore, Trow-bridge asserts, the trial judge erred in allowing Wells to testify that the highest and best use was a lesser included use of restricted commercial development, when the subject property was zoned for general commercial development. Trowbridge also argues that Wells did not provide any evidence that a change in zoning was likely to occur, and instead, acted as if the subject property had already been rezoned for restricted commercial development.

¶20. In Dennis v. City Council of Greenville, the City’s appraiser testified that the highest and best use of the property was for agricultural development, although the zoning classification for the property was for residential development. Dennis v. City Council of Greenville, 646 So.2d 1290, 1291 (Miss.1994). In Dennis, this Court reiterated its holding in Mississippi Highway Commission v. Wagley that property in eminent domain proceedings must be evaluated in accordance with the restrictions of existing zoning classifications, and that consideration must be given to the impact potential zoning changes may have on the fair market value of the subject property. Dennis, 646 So.2d at 1294 (citing Wagley, 231 So.2d 507, 509 (Miss.1970)). This Court further held that the trial judge disregarded the existing zoning restrictions. Id. The City’s appraiser evaluated the land under the restrictions of agricultural development, although the property was zoned for residential development. Id. This Court concluded that even if there was a potential change of the zoning classification of the landowners’ property from residential to agricultural development, the City’s appraiser evaluated the property as if the rezoning had already occurred, when no such changed had occurred. Id.

¶ 21. Clearly, this is not the same factual situation as the present case. Trow-bridge’s reliance oh Dennis is misplaced for two reasons. First, in contrast to Dennis, the Commission’s expert appraiser, Wells, did not conclude that- the highest and best use of the property was a potential use not allowed by the existing zoning restrictions. Instead, Wells opined that, although the property was zoned for C-2 general commercial development, the highest and best use of property was for C-l restricted commercial development, a lesser included use of property zoned' for general commercial development.

¶ 22. Second, unlike this case, the trial court in Dennis refused to consider the valuation of the landowner’s appraisers. Dennis, 646 So.2d at 1293. The Court stated:

[T]he trial court, by not allowing the landowners to put the testimony of expert appraisers into evidence regarding sales of lots for single-family residences, thereby prevented the landowners from substantiating their valuation and appraisals with comparables. Consequently, the landowners’ evidence, which would have provided an alternative valuation for consideration and which may have refuted the City’s valuation testimony which was supported by compara-bles of distant agricultural sales, was excluded from evidence by the trial judge.

Id. In the present case, the testimony of Trowbridge’s expert appraiser that the best use of the subject property was retail commercial use was allowed. Therefore, valuations by both parties’ expert appraisers were admitted to be considered by the jurors in reaching their decision.

¶ 23. Further, this Court’s discussion of expert valuation testimony in Potters II v. State Highway Comm’n is particularly relevant to Mr. Well’s testimony in this case. Potters II v. State Highway Commission, 608 So.2d 1227, 1233 (Miss.1992) The Court in Potters II stated:

Oftentimes parties to eminent domain proceedings proceed within broad, general use categories and talk of commercial use and residential use and the like. See, e.g., Howell v. State Highway Commission of Mississippi, 573 So.2d 754, 755 (Miss.1990); Dykes v. State Highway Commission of Mississippi, 535 So.2d 1349, 1351 (Miss.1988). On other occasions, not inappropriately, these broad categories are narrowed so that a highest and best use for a given property may be for multi-family residences as distinguished from single-family dwellings, see, e.g., Hudspeth v. State Highway Commission of Mississippi, 534 So.2d 210, 211 (Miss.1988). Within commercial properties, there are many uses of differing values. Franklin County Timber talks of sawmilling as the most profitable use. We think it fair on the present facts that expert valuation testimony may assume the highest and best use of subject property was as a fast food restaurant. We say this notwithstanding that MSHC Appraiser Pritch-ard limited himself to the broader characterization: commercial. Obviously, the extent to which the categories are narrowed is a matter of professional judgment and, within limits, experts may give their opinion regarding the appropriate level of specificity. (Emphasis added).

Id. Accordingly, we find that Well’s testimony that a lesser included use of the existing zoning restrictions was the highest and best use of property for purposes of valuation was permissible. Because Wells evaluated the subject property in accordance with the legal parameters of the existing zoning restrictions, there was no requirement that any consideration should have been given to potential zoning changes.

CONCLUSION

¶ 24. The trial court did not err in denying Trowbridge’s motion to strike the testimony of Wells, the Commission’s expert appraiser. Where the testimony of the expert appraisers is competent and relevant, the jury has the responsibility of considering the weight and credibility of their testimony. Hancock, 309 So.2d at 870. Wells is a competent expert appraiser, and his testimony regarding the fair market value of the property was relevant to the issue of just compensation. The jury evaluated the weight and credibility of Wells’s testimony and returned a verdict in favor of Trowbridge in the amount of $1,108,941. This Court has a long-standing history of not disturbing jury verdicts in eminent domain proceedings, especially when the jury has viewed the property being taken and the evidence in the record supports the jury’s finding. Miss. Highway Comm’n v. Havard, 508 So.2d 1099, 1105 (Miss 1987) (citing Miss. Highway Comm’n v. Franklin County Timber Co., Inc., 488 So.2d 782, 787 (Miss.1986)). Since the jury had the opportunity to view the property, and its findings ■ are supported by the record, this Court affirms the judgment of the trial court.

¶ 25. AFFIRMED.

WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. COBB, P.J., AND GRAVES, J., NOT PARTICIPATING. ,


author: DIAZ, Justice, for the Court.

text:
    Bobby TAYLOR v. STATE of Mississippi.
    No. 2004-KA-02384-SCT.
    Supreme Court of Mississippi.
    March 22, 2007.
    Rehearing Denied May 10, 2007.

      James L. Penley, Jr., Vicksburg, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before WALLER, P.J., DIAZ and CARLSON, JJ.
   DIAZ, Justice, for the Court.

Statement of the Case

¶ 1. Bobby Taylor was convicted of one count of aggravated assault under Miss. Code Ann. § 97 — 3—7(2)(a) (Rev.2006) for pouring a bottle of rubbing alcohol on his girlfriend and then setting her on fire. While both the defendant and the victim testified that the incident was purely accidental, the State provided other evidence that substantially contradicted their testimony. Taylor was found guilty and sentenced to fifteen years in the State’s custody with the last five years suspended on post-release supervision.

¶ 2. The defendant had been living in an apartment with his girlfriend, Doris Jackson, for two years. They had been involved in an on-and-off romantic relationship for roughly nine years. Though the couple testified that they had not experienced any problems in the past three years, the State introduced several domestic violence charges that Jackson filed against the defendant. None of the charges were ever prosecuted and both the defendant and Jackson denied knowledge of the charges. However, both Jackson and the defendant admitted that he had hit her in the past. They also admitted that he had once shot her in the hand, though they both claimed it was an accident.

¶ 3. On the night of July 16, 2003, Jackson went to the casino where she gambled and drank for four to five hours. She came back to the apartment where the defendant was playing dominos with some of his friends. After the defendant refused to give her more money for gambling, Jackson went to the neighbor’s apartment to drink some more and watch a movie. When she returned to her apartment, the visitors had left and she was alone with the defendant. The events that followed are disputed.

¶ 4. Both the defendant and Jackson gave similar testimony regarding the sequence of events. Both testified that she was fully clothed and that the defendant had a bottle of rubbing alcohol and had put “a dab” of the liquid on her hand. They both testified that he had put alcohol in his hand before and lit it, but that he was always “just playing.” When the defendant went to answer a knock at the door, he gave Jackson the bottle of alcohol to hold. She testified that she accidentally spilt the contents of the bottle on her clothes and then walked out of the bedroom into the hallway. At this point, the defendant was coming back down the hallway to meet her, and Jackson testified, “[the defendant] was just flicking a lighter, and my arm caught afire. Then I just rubbed my shirt, and it caught everywhere else just by me rubbing my hand.” The defendant then tried to use the bedspread to put out the fire, but Jackson had to get in the shower to finally extinguish the flames. He then helped her change clothes and called a friend to drive her to the hospital.

¶ 5. Upon examination, the local hospital sent Jackson to the Greenwood Burn Center, where she remained for two weeks. She sustained first and second degree burns over the front of her body, covering large portions of her face, neck, chest, stomach, and inner thighs.

¶ 6. The State offered two expert witnesses who testified that the burns were not a result of an accident. Both experts found that the burn patterns indicated that Jackson was lying on her back and that someone had poured the alcohol on her. One expert also testified that the fire started in the bedroom, not in the hallway as both the defendant and the victim alleged. The evidence indicated that while she was wearing a bra at the time, she could not have been wearing a shirt or pants as neither article of clothing was damaged. Additionally, the investigating police officers testified that the bed was still warm and partially damp. The sheets also were charred, but the defendant claimed that they had .been burned six months earlier, and he could not offer an explanation for why the mattress was scorched.

Issues

¶ 7. The defendant raises four issues on appeal: (1) whether the court erred in allowing evidence of prior bad acts; (2) whether the court erred in certifying Leslie Decareaux as an expert and allowing her to testify; (3) whether the court erred in allowing evidence to be presented to the jury that the State did not produce in discovery; and (4) whether the verdict was against the sufficiency of the evidence.

Discussion

(1) Whether the Court Erred in Allowing Evidence of Prior Bad Acts.

¶ 8. The defendant argues that the court erred in allowing the State to admit evidence of prior acts of domestic violence. The standard of review governing the admissibility of evidence is whether the trial court abused its discretion. Peterson v. State, 671 So.2d 647, 655 (Miss.1996) (citing Baine v. State, 606 So.2d 1076, 1078 (Miss.1992); Wade v. State, 583 So.2d 965, 967 (Miss.1991)). This Court must first determine if the proper legal standards were applied. Id. at 655-56 (citing Baine, 606 So.2d at 1078). If the trial court incorrectly applied the rules of evidence, resulting in prejudice to the accused, then a reversal is warranted. Id. at 656 (citing Parker v. State, 606 So.2d 1132, 1137-1138 (Miss.1992)).

¶ 9. Before trial, the defendant moved to exclude any evidence of prior acts of violence against the victim, arguing that they were remote in time and that all charges had been dismissed. The court ruled that the evidence could be admitted both as impeachment evidence and as evidence of motive under Rule 404(b). The court also found that any prejudicial effect was outweighed by the probative value of the evidence because the central issue of the case was whether the fire was an accident.

¶ 10. On the stand, Jackson denied that the defendant had ever hurt her before. When asked about four prior charges which she filed against the defendant, she either denied filing them or claimed that she could not remember. Jackson also testified that the entire incident at issue was an accident. As a result, the prosecutor was allowed to introduce four separate instances in which Jackson had filed domestic violence charges against the defendant, both as impeachment evidence and as substantive evidence of motive. These charges were filed on January 1, 1997; April 15, Í998; May 5, 1998; and September 15, 2000.

¶ 11. The defendant argues that evidence of these charges was improper character evidence that should not have been admitted. He cites Levy v. State, 724 So.2d 405, 408 (Miss.Ct.App.1998) for the proposition that “[ejvidence of a prior criminal activity on the part of one criminally accused is inadmissible where the prior offense has not resulted in a conviction.” However, Levy goes on to explain that “the State has a ‘legitimate interest in telling a rational and coherent story of what happened.’ Where substantially necessary to present to the jury ‘the complete story of the crime,’ evidence or testimony may be given though it may reveal qr suggest other crimes.” Id. (citing Brown v. State, 483 So.2d 328, 330 (Miss.1986)). Brown was written only a month after the Rules of Evidence came into effect, and Rule 404(b) clearly - provides instances where evidence of other crimes may be admissible to present “the complete story”:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan knowledge, identity, or absence of mistake or accident.

M.R.E. 404(b).

¶ 12. Here, the evidence was not admitted to prove that the defendant acted in conformity with his prior bad acts, but to rebut his allegation that the incident was an accident. Therefore, the trial judge properly admitted evidence of the prior domestic violence charges as evidence of motive and absence of accident. See Stallworth v. State, 797 So.2d 905 (Miss.2001) (evidence of domestic violence charge relevant to show motive in murder case); Kolberg v. State, 829 So.2d 29 (Miss.2002) (prior bruising on child’s body relevant to show absence of accident).

¶ 13. The defendant also argues that these incidents should not have been admitted at trial because they were highly prejudicial to the defendant. Rule 403 provides, “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403. Because the evidence was highly relevant to show motive and absence of accident, it cannot be said that the judge abused his discretion in admitting the prior charges.

¶ 14. Finally, the defendant argues that the remoteness of the prior acts detracted from their relevance. The previous domestic violence charges occurred from three to six years prior to the incident. Again, it cannot be said that the judge abused his discretion in allowing evidence of the prior bad acts as it was highly relevant to prove motive and absence of accident.

(2) Whether the Court Erred in Certifying Leslie Decareaux as an Expert and Allowing Her to Testify.

¶ 15. The defendant argues that the trial court erred in admitting the expert testimony of Leslie Decareaux. De-careaux was a fire inspector who investigated the fire and testified regarding the burn patterns on Jackson’s body. As with other evidence, the standard of review for the admission or suppression of expert testimony is abuse of discretion. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003).

Rule 702 governs the admission of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

M.R.E. 702. In this case, the trial judge found that Decareaux met the rule’s requirements. Before allowing her to testify, the trial court conducted a Daubert hearing and found that she was qualified to give expert testimony. The court found that because of her training and experience, Decareaux was able to apply reliable principles and methods to the facts of the case and offer her expert opinions on the burn pattern.

¶ 16. The defendant argues that Decareaux should not have been certified as an expert for several reasons. He argues that she has never been qualified as an expert, that her main areas of expertise are structure fires, that she had only worked on two or three death cases, that she was not certified by the International Association of Arson Investigation, and that she manipulated facts to fit her opinions. First, no prior expert qualification in a court of law is necessary under Rule 702. Second, her Daubert testimony revealed extensive training in fire and arson investigation, including a thirteen-year employment with the Vicksburg Fire Department and various certifications from nationally recognized fire investigation organizations, including certifications in the field of burn patterns. She further testified that she had investigated more than 100 fires and that she had been certified as an emergency medical technician since 1994. Finally, nothing in her testimony suggests that she manipulated the facts to fit her opinions. Though the defendant claims she stated as fact that the comforter was on the bed, the transcript reveals otherwise: “As I testified to earlier, I can’t be one hundred percent conclusive that it was on the bed.”

¶ 17. In light of the Daubert hearing and Ms. Decareaux’s training and experience, the trial judge did not abuse his discretion in allowing her to give expert testimony on the burn patterns.

(3) Whether the Court Erred in Allowing Evidence to be Presented to the Jury that the State Did Not Produce in Discovery.

¶ 18. The defendant argues that the trial court erred by allowing the State to introduce affidavits from prior charges filed by the victim because these documents had never been produced by the State. Initially, the trial court sustained the defendant’s objection to the introduction of the affidavits. However, once Jackson denied fifing any charges against the defendant, the trial court allowed the affidavits to be introduced as impeachment evidence.

¶ 19. On review, this Court “may reverse a trial judge’s ruling regarding discovery issues only if we find an abuse of discretion.” Conley v. State, 790 So.2d 773, 782 (Miss.2001) (citing Harkins v. Paschall, 348 So.2d 1019, 1022 (Miss.1977)). M.R.E. 103 provides that “error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” This comports with the purpose of Uniform Circuit and County Court Rule Rule 9.04, which is “to avoid ambush or unfair surprise to either party at trial.” Le v. State, 913 So.2d 913, 938 (Miss.2005) (citing Hunt v. State, 687 So.2d 1154, 1164 (Miss.1996)).

Rule 9.04 (A) of the Uniform Circuit and County Court Rules states in part:

The prosecution must disclose to each defendant or to defendant’s attorney, and permit the defendant or defendant’s attorney to inspect, copy, test, and photograph upon written request and without the necessity of court order the following which is in the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution:
3. Copy of the criminal record of the defendant, if proposed to be used to impeach.

Accordingly, the State was required to provide a copy of the defendant’s criminal record to defense counsel prior to trial.

¶ 20. U.C.C.C.R. 9.04(1) sets out the procedure trial courts must follow in case of discovery violations:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows: .
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
3.The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence.

¶21. Under this rule, the trial court was required to give the defense a reasonable opportunity to examine the affidavits. However, because the defendant is unable to show prejudice or • that a substantial right was affected, the issue is without merit. The defendant argues that although he was aware that testimony of prior acts would be allowed, he was unaware of the affidavits and the potential of their introduction. The State countered that these affidavits were discussed at a prior hearing. Although the defendant was represented by different counsel at trial, trial counsel was provided a transcript from this hearing. The’ State argues that because he was provided with a transcript, defense counsel should have been aware of the affidavits’ contents.

¶ 22. Neither the affidavits nor the pri- or hearing are included in the record. However, the defendant- was fully aware that the prior domestic violence charges would be presented at trial as evidence of motive or absence of accident. Because trial counsel was aware of the previous charges, he could have easily discovered the contents of the affidavits. Additionally, it cannot be said from the record before us that the trial judge abused his discretion in allowing the affidavits to be presented as impeachment evidence.

(4) Whether the Verdict was Contrary to the Sufficiency of the Evidence.

¶ 23. When reviewing a case for sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence must show “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)).

¶ 24. The defendant was convicted under Miss.Code Ann. § 97-3-7(2)(a) (Rev.2006), which reads “[a] person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” The defendant argues that the evidence could not support his conviction because even though both experts agreed that a liquid was poured on the victim, they could not testify as to how the liquid ignited. The defendant further argues that the ignition could have been accidental and that neither he nor the victim may “have been aware of all the circumstances surrounding the incident.”

¶25. It is clear from the record that there was sufficient evidence to support a conviction of aggravated assault. Although both the defendant and the victim argued the fire was an accident, the State offered substantial evidence to contradict their testimony. The defendant’s version of the story is simply not supported by the physical evidence. While the defendant and the victim testified that she was standing up in the hallway and fully clothed, the evidence indicates that, she was in fact lying down on her back, in the bedroom, and not wearing her shirt or jeans. Her extensive burns also' support a finding that the act was intentional and further discredit the defendant’s testimony that he only put a “dab” of alcohol on the victim. Therefore, the State provided sufficient evidence to support the verdict, and this issue is without merit.

Conclusion

¶ 26. Because none of the issues merit reversal, the conviction and sentence of the Warren County Circuit Court is affirmed.

¶ 27. CONVICTION OP AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN (15)YEARS WITH TEN (10) YEARS TO SERVE, THE REMAINDER SUSPENDED, WITH FIVE (5) YEARS POST RELEASE SUPERVISION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.

SMITH, C.J., WALLER AND COBB P.JJ., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.