author: IRVING, J., for the Court.

text:
    Rosemary BOLTON and Clemmie Bolton, Marvia N. Bolton and Byron Bolton, James Brooks and Geneva Brooks, Peggy L. Brown, Thomas Bruce and Cawandra Bruce, Ruby N. Butler, Sylvia J. Collins, Vincent K. Cross and Sherlie E. Cross, Charles R. Davis and Raymonda C. Davis, Anthony Dobson and Trina Dobson, Rex Everett and Cassandra Everett, K.C. Gates, Karen Stout Carnell Harden and Jerry B. Harden, Vickie S. Jones and Leo F. Jones, Jr., Harold Mincy and Marguerite Mincy, Inez McCullum, Estella Morgan and James Morgan, Michael S. Netto and Salena L. Netto, Vivian J. Nichols, Esserlena G. Pickens, Richard Dale Pierce and Tina Pierce, Rita Reynolds and James Mitchell Reynolds, Benny L. Spann and Pamela J. Spann, Charles Sutton and Evelyn Sutton, and Robert J. Thomas and Martha S. Thomas, Appellants v. EQUIPRIME, INC., Appellee.
    No. 2005-CA-01744-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.

      R. Charles Robb, attorney for appellants.
    Kenneth B. Rector, Vicksburg, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   IRVING, J., for the Court.

¶ 1. The Circuit Court of Hinds County dismissed a lawsuit filed by mortgagor Rosemary Bolton and several other mortgagors against Equiprime, Inc., an Alabama corporation. The circuit court determined that the mortgagors had alleged fraud on the part of Equiprime but had not pleaded fraud with the specificity required by Rule 9(b) of the Mississippi Rules of Civil Procedure. Additionally, the circuit court found that the mortgagors had not pleaded any affirmative acts by Equiprime which were designed to conceal the fraud allegedly committed by Equi-prime. The circuit court also ruled, alternatively, that the mortgagors’ action was barred by the three-year statute of limitations and that the claims of the mortgagors who had sued an assignee of Equi-prime in the Chancery Court of Hinds County were also barred by the doctrines of res judicata and collateral estoppel. Consequently, the circuit court granted Equiprime’s Rule 12(b)(6) motion to dismiss.

¶ 2. The mortgagors appeal, asserting that the circuit court erred in finding the doctrines of res judicata and collateral es-toppel applicable and in not hearing their claims regarding clouds on their titles due to the assignment of their mortgages by Equiprime.

¶ 3. We find that the trial court erred in granting the motion to dismiss. However, we find that summary judgment was appropriate; therefore we affirm on this ground.

FACTS

¶ 4. Bolton and forty-two individuals acquired home mortgage loans from Southern Mortgage, Inc. d/b/a Heritage Mortgage. On the day the mortgages were closed, Southern assigned the mortgages to Equiprime. One of the closing documents advised the mortgagors that the assignment was being made. More than three years after the closing of the loans, the mortgagors filed suit against Equi-prime and Southern’s sole stockholders. The mortgagors also sued two of Southern’s employees: Douglas Carson and Artie Armstrong. Southern itself was not made a defendant. However, this appeal involves only Equiprime.

¶ 5. The mortgagors alleged in their complaint that Equiprime and Southern’s stockholders were generally engaged in a scheme that targeted “high-interest and otherwise high-cost residential mortgage transactions [involving] non-wealthy persons, who for one reason or another were in situations of economic duress, had limited or ‘sub-prime’ credit histories, and had limited experience with complex mortgage or other commercial transactions.” More specifically, the mortgagors alleged that Southern’s stockholders and Equiprime “combined their money, time and skills and aided in [a] common undertaking ... to cause the [mortgagors] to incur a debt and encumber [their] residenee[s] by a mortgage lien thereon so as to pay to [Equiprime and Southern’s stockholders] unreasonable and unnecessary closing costs and expenses associated with the mortgage loan[s], including future interest, all to the [mortgagors’] damages.”

¶ 6. In the prayer of their amended complaint, the mortgagors sought a finding that:

a) the DEED OF TRUST and PROMISSORY NOTE was [sic] procured by fraud, [and] gross negligence that amounted to willful conduct as to be an intentional tort or gross negligence and should be set aside, can-celled and be declared null, void and of no effect,
b) all documents, instruments of indebtedness, and mortgage evidencing the security interests arising from the subject transaction and all assignments thereof held by any Defendant or by Trustee or Substituted Trustee in Plaintiffs’ home be declared as null, void and of no effect and all clouds arising from said documents be removed from the Plaintiffs’ title,
c) Royce McNeal, Brent McNeal, Brian Michael Pellissier, James R. Hall, and Craig A. Netterville, and Equiprime, Inc. shall forthwith provide an accounting of all monies paid by the Plaintiffs to any person or entity arising from the transaction, including but not limited to a copy of evidence of the payment, including the payor and payee, of each item on the loan closing statement and the source of the mortgage proceeds,
d) the Plaintiffs have of and from Royce McNeal, Brent McNeal, Brian Michael Pellissier, James R. Hall, and Craig A. Netterville, and Equiprime, Inc., jointly and severally, all closing costs, the pre-payment penalty of their previous mortgage, interest on said sums at the Disclosure rate from and after the date of closing, the costs of the interest differential between their previous mortgage and the subject mortgage on the amount of the promissory note, pre-judgment and post-judgment interest from the date of judicial demand at the contractual rate as provided by § 75-17-7 of the Mississippi Code of 1972 as amended, attorneys fees and such legal expenses reasonably and necessarily incurred, and
e) in addition to the above relief and damages, each Plaintiffs have judgment against Royce McNeal, Brent McNeal, Brian Michael Pellissier, James R. Hall, and Craig A. Netter-ville, and Equiprime, Inc., jointly and severally, compensatory and punitive damages in a sum in excess of $1,360,000.00, together with interest from and after the date of each loan closing.

¶ 7. In response, Equiprime filed an answer generally denying the material allegations of the amended complaint and asserting certain defenses, including the doctrines of res judicata and collateral es-toppel, estoppel and waiver, and the statute of limitations. After discovery, Equi-prime filed a motion to dismiss or for summary judgment. Additional facts, as appropriate, will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION

¶8. As stated, the mortgagors assert that the circuit court erred in finding the doctrines of res judicata and collateral es-toppel applicable and in not hearing their claims regarding clouds on their titles due to the assignment of their mortgages by Equiprime. As best we can tell, the mortgagors also assert that it was error for the circuit court to apply the statute of limitations to their equitable claims, although they apparently admit that the statute of limitations may be applied to their law claims. We quote from their brief:

Where title of a person who is in undisputed possession of land is brought into question, he may set forth any equitable defense in favor of his right to the property, and the statute of limitations will not run so as to prevent him from setting forth such a defense. 37 C.J. 804. McLendon [v. McGee, 189 Miss. 712, 721, 198 So. 725,] 727 (1940) ].
While the trial court may make findings as to the running of the statute of limitations by the legislature with regard to the damage cause of action, this Court has found that substantive rights may not be impaired.

¶ 9. The mortgagors argue that they have “a right of recoupment in defense of enforcement of and as a parry to the debt via foreclosure of the mortgage” and that “recoupment is a substantive defensive right that is not subject to legislative impairment through the setting of a statute of limitations.” However, the mortgagors do not explain how they can have a viable equitable right to either some future re-coupment or the cancellation of their mortgages without first proving that the mortgages were obtained illegally or fraudulently, nor do they explain why the statute of limitations does not apply to that part of their action in which they seek to have the mortgages declared illegal.

¶ 10. We decline to address in detail the specific issues raised by the mortgagors because, as is explained later in this opinion, we find that, on the facts of this case, the appropriateness of the trial court’s judgment does not turn on the applicability vel non of the doctrines of res judicata and collateral estoppel. We further find that the mortgagors’ third issue, that the trial court erred in refusing to hear their claims concerning clouds on their titles, must fail because the mortgagors failed to refute the showing by Equi-prime that no genuine issue of material fact exists with respect to this issue. Notwithstanding our findings regarding the applicability of the doctrines of res judica-ta and collateral estoppel and the mortgagors’ failure to controvert Equiprime’s showing that no genuine issue of material facts exists with respect to the cloud-on-title issue, we also find that the trial court erred in dismissing the mortgagors’ lawsuit pursuant to rule 12(b)(6). However, we find that dismissed nevertheless was warranted under the summary judgment standard. Consequently, for the reasons to be explained below, we affirm the judgment of the trial court.

¶ 11. Rule 12(b)(6) of the Mississippi Rules of Civil Procedure authorizes a trial judge to dismiss a complaint for its “failure to state a claim upon which relief can be granted.” In considering a dismissal for the failure of the complaint to state a claim upon which relief can be granted, the trial judge is limited to a perusal of the complaint and should grant the motion only when “it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Brewer v. Burdette, 768 So.2d 920, 922(¶ 9) (Miss.2000). If matters outside the pleadings are presented and accepted by the court during consideration of a Rule 12(b)(6) motion, the motion is converted to a motion for summary judgment and disposed of pursuant to the dictates of Rule 56 of the Mississippi Rules of Civil Procedure. M.R.C.P 12(b). However, when this occurs, “all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Id. If “matters outside the pleadings are not presented, and if the motion is granted, leave to amend shall be granted in accordance with Rule 15(a).” Id. Rule 15(a) provides that upon the grant of either a Rule 12(b)(6) motion or a judgment on the pleadings pursuant to Rule 12(c), “leave to amend shall be [freely] granted when justice so requires upon [the] conditions and within [the] time as determined by the court....”

¶ 12. In this case, the pleadings consist of an amended complaint and an answer. The court’s findings, in some respects, went well beyond the pleadings. For example, nothing in either the mortgagors’ amended complaint or Equiprime’s answer contained any facts from which the court could determine the applicability of the doctrines of res judicata and collateral estoppel. However, the “Motion of Equi-prime to Dismiss, or for Summary Judgment” contains facts and information relied upon by the court in reaching its decision that the doctrines are applicable. More specifically, the trial court discussed, and relied upon, the judgment rendered in another case brought by some of the mortgagors in the Chancery Court of Hinds County: Bolton v. Equicredit Corp. of America, G-2001-1283, decided July 17, 2003. This action by the trial court had the effect of treating Equiprime’s motion as a motion for summary judgment.

¶ 13. If the trial court had considered only the complaint and then granted Equiprime’s motion to dismiss, the court would have been required to allow the mortgagors an opportunity to amend their complaint. The mortgagors argue that the trial court erred in not allowing them to do so. The problem with this argument is that, as we have already pointed out, the trial court made certain findings which were not restricted to an analysis of the allegations in the mortgagors’ amended complaint. Therefore, the mortgagors were not entitled to amend but were entitled to a reasonable opportunity to respond to the allegations made by Equiprime and accepted by the court in Equiprime’s “Motion to Dismiss, or for Summary Judgment.” On this point, we note that, in response to Equiprime’s motion to dismiss, the mortgagors filed a motion for an extension of time to respond but the record contains no evidence that the mortgagors ever noticed their motion for hearing. We further note that Equiprime’s motion to dismiss was filed on August 25, 2004, that the mortgagors’ motion for an extension of time to respond was filed on September 21, 2004, and that the trial court did not rule on the motion to dismiss until November 3, 2004, or approximately sixty-eight days after the filing of the motion to dismiss and thirty-three days after the filing of the motion for an extension of time.

¶ 14. As we have pointed out, the mortgagors were entitled to a reasonable opportunity to respond to the matters outside of the pleadings which were presented by Equiprime and accepted by the court. While the court never formally granted the mortgagors an extension of time, we are satisfied that the mortgagors had adequate time to respond to the matters raised by Equiprime and failed to do so.

¶ 15. We have carefully examined the allegations in Equiprime’s “Motion to Dismiss, or for Summary Judgment,” including the attached exhibits and affidavit. We find that, based on the allegations contained in Equiprime’s motion and the mortgagors’ lack of response, Equiprime is entitled to summary judgment, because Equiprime’s motion alleges facts, coupled with an affidavit, which clearly shows the absence of any genuine issue of material fact. Rule 56(e) of the Mississippi Rules of Civil Procedure provides in part:

When a motion for summary judgment is made and supported as provided in this rule, and adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specified fact showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Therefore, even though the trial court erroneously granted judgment on the motion to dismiss, no reversible error occurred because Equiprime was entitled to summary judgment. “On appeal, we will affirm a decision of the circuit court where the right result is reached even though we may disagree with the reason for that result.” Puckett v. Stuckey, 638 So.2d 978, 980 (Miss.1993). Consequently, we affirm the judgment of the trial court on the alternative ground of summary judgment.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . For convenience and clarity, we collectively refer to Bolton and the other individuals by their status as mortgagors.

      . The mortgagors also sued the sole stockholders: Royce McNeal, Brent McNeal, Brian Michael Pellissier, James Hall, and Craig A. Netterville, and two employees of Southern Mortgage, Inc. d/b/a Heritage Mortgage: Artie Armstrong and Douglas Carson.

      . It may be more accurate to say that the court elected to rule on the summary judgment portion of Equiprime’s motion, because Equiprime’s motion sought either a dismissal or summaiy judgment. However, the trial court never said that was what it was doing, and its order was captioned “Order Granting Motion to Dismiss.”


source: Caselaw Access Project

author: KING, C.J., for the Court.

license: Public Domain

text:
    Edna R. CROSS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CA-00426-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.
    Rehearing Denied Sept. 11, 2007.

      Imhotep Alkebu-Lan, Attorney for Appellant.
    Office of the Attorney General by John R. Henry, Attorney for Appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J., for the Court.

¶ 1. Edna Cross appeals the dismissal of her motion for post-conviction relief. Cross asserted in her motion that her guilty plea was not knowing and voluntary. Finding no error, this Court affirms.

FACTS

¶ 2. Cross was indicted on two counts of aggravated assault, in violation of Mississippi Code Annotated Section 97-3-7(2) (Rev.2006). The charges stemmed from an altercation with her neighbors, in which her daughter, who was a co-defendant, also participated. Specifically, the State contended that Cross attacked her neighbor with a knife and that Cross’ daughter attacked a neighbor with a hammer.

¶ 3. The case was scheduled for trial on April 13, 2005. During voir dire, Cross announced her desire to change her plea from not guilty to guilty and to enter into an open guilty plea. The trial court stopped the trial in order to hold the hearing on Cross’ guilty plea. Following the guilty plea colloquy, the trial court accepted the guilty plea.

¶ 4. The trial court entered a judgment of guilty on both counts on April 14, 2005. Sentencing was set for May 26, 2005. Following a hearing, the trial court sentenced Cross to fifteen years’ imprisonment on each count of aggravated assault, with the sentences to run concurrently. He then suspended eight years on each of those sentences.

¶ 5. Cross filed her petition for post-conviction relief on January 17, 2006. In that petition, Cross argued that the trial court erred in accepting her guilty plea because it was not knowing or voluntary. The trial court dismissed the petition without a hearing on February 16, 2006. Cross timely appealed.

STANDARD OF REVIEW

¶ 6. The standard of review for denial of a petition for post-conviction relief is whether the trial court’s decision is “clearly erroneous.” Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). See also Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999). Questions of law are reviewed de novo. Brown, 731 So.2d at 598(¶ 6).

ANALYSIS

¶ 7. In this case, the trial court did not hold a hearing. In its order, the trial court noted that it had reviewed the entire record and that it was plain from the face of the motion that Cross was not entitled to the relief requested.

¶ 8. When the trial court reviews a petition for post-conviction relief, the trial court has an obligation to review the “original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack” to determine whether the defendant has proven the merit of the allegations by a preponderance of the evidence. Bilbo v. State, 881 So.2d 966, 967-68 (¶¶ 3-7) (Miss.2004) (citing Miss.Code Ann. § 99-39-11(1), -23(7)). In those situations where the trial court “can determine that a factual assertion by the movant in a post-conviction relief proceeding is belied by unimpeachable evidence in the transcript of the case that led to conviction, no hearing is required and the trial court may summarily dismiss the motion.” Id. at 968(118) (citing Harris v. State, 578 So.2d 617, 620 (Miss.1991)).

¶ 9. Cross’ petition for post-conviction relief raised the following issues: (1) that the plea was not knowing and voluntary because Cross had an eighth-grade education and had never before been charged with a crime and, therefore, was confused and did not understand the impact and implications of a guilty plea; (2) that Cross did not possess a weapon; (8) that Cross maintained her innocence and did not wish to plead guilty; and (4) that Cross did not receive adequate counsel.

¶ 10. In her appellate brief, Cross only addresses the following issues: (1) that at the time of her guilty plea, Cross was being treated for depression, which her counsel characterizes as a “mental illness;” (2) that Cross was confused by the proceedings, including the maximum sentence and fíne that she might face and her waiver of her right to appeal if she pled guilty; and (8) that Cross proclaimed her innocence in the pre-sentencing report and at the sentencing hearing.

The issue of Cross’ depression as a factor is procedurally barred.

¶ 11. Cross raises the issue of her depression for the first time on appeal. Accordingly, this Court is procedurally barred from addressing Cross’ depression as grounds for finding her plea unknowing or involuntary. See Gardner v. State, 531 So.2d 805, 809 (Miss.1988) (citing Colburn v. State, 431 So.2d 1111, 1114 (Miss.1983)).

The trial court did not err in accepting Cross’ guilty plea on the grounds that she was confused by the proceedings.

¶ 12. Cross also asserts that she was confused by the proceedings. She claims that she did not understand the possibility of receiving the maximum sentence and fíne or that she waived her right to a direct appeal by pleading guilty. The trial transcript reveals that Cross initially indicated that she understood that she could receive up to twenty years for each of the two counts. When the trial judge realized that he had given an incorrect minimum sentence, however, he corrected his mistake and then reviewed again with Cross the maximum sentences she was facing. At that point, the trial court advised Cross that he could sentence her to consecutive sentences, which translated into forty years’ imprisonment. When the trial court asked if she understood that, she responded, “I wasn’t counseled on that.” The trial judge repeated to Cross that she could receive consecutive sentences and asked her twice if she understood. She responded affirmatively but then asked to speak with her attorney.

¶ 13. Her attorney then asked her if she wished to proceed, given the possibility of a forty year sentence. She said no, but when asked by the trial court if she wanted to proceed with a trial or to plead guilty, she said she wanted to plead guilty. The trial court then asked Cross again if she understood the maximum penalty and fines. She said she did.

¶ 14. The plea colloquy proceeded, and the State set forth the evidence that it intended to prove at trial. Following the state’s presentation, the trial court asked Cross if she understood that she was giving up her right to appeal by pleading guilty. She responded, “No sir, I didn’t know that.” The trial court then asked Cross twice if, knowing that she waived her right to appeal, she wished to proceed with the guilty plea. Twice, she responded, ‘Tes, sir.”

¶ 15. Finally, as the trial court was preparing to end the plea colloquy and accept Cross’s guilty plea, the following exchange occurred:

By the Court: At this point it is not too late to stop the hearing, but it will be if I accept your guilty plea. I want to make sure that you want to plead guilty. Do you want to plead guilty?
Cross: No, sir.
Q: Okay. Then you will need to have a seat, and we will take your daughter’s guilty plea, and we will start this trial up. You are telling me you do not want to plead guilty?
A: I’m not understanding what you are saying. I’m not understanding.
Q: I don’t understand how to make it any clearer than the question “Do you want to plead guilty”?
A: Yes, sir.

¶ 16. The trial court again explained that he could stop the hearing and continue with the trial if Cross did not want to plead guilty, and she assured the trial court that she did desire to enter a guilty plea. The trial court then asked Cross whether she had any more questions regarding the minimum and maximum sentences and fines and the waiver of her right to appeal. Cross said, “No, sir” and then entered her plea of guilty on both counts of aggravated assault.

¶ 17. Under Mississippi law, “[a] plea is voluntary if the defendant knows what the elements are in the charge against him, including an understanding of the charge and its relation to him, the effect of the plea, and the possible sentence.” State v. Santiago, 773 So.2d 921, 924(¶ 15) (Miss.2000) (citation omitted). The burden of proof lies with Cross to show involuntariness and that burden must be proven by a preponderance of the evidence. See Miss.Code Ann. § 99-39-23(7) (Rev.2000).

¶ 18. The transcript of the guilty plea hearing reflects that the trial court addressed all of the requirements to establish a knowing guilty plea, including the elements of the crime, the waiver of rights, and the minimum and maximum sentences. When Cross appeared to be uninformed of the consequences of her guilty plea-the possibility of consecutive sentences and the waiver of her right to appeal-the trial court consistently continued to address the perceived point of confusion with Cross until she stated that she understood the proceedings and until the trial court was satisfied that she understood the consequences of her guilty plea and the rights that she would waive if she did plead guilty. Cross fails to present any evidence other than the transcript itself that would contradict the trial court’s holding that the plea was knowing and voluntary. Based upon this Court’s review of the trial transcript, the Court cannot say that the trial court’s decision to proceed with the guilty plea in the face of Cross’ apparent initial misunderstandings was clearly erroneous, as the trial court did explain the consequences of the guilty plea to Cross until she understood the proceedings.

The trial court did not err in sentencing Cross despite her attempts to minimize her criminal behavior.

¶ 19. Cross’ final point on appeal is that the trial court erred in sentencing Cross after she maintained that she was not armed with a weapon during the incident that led to her indictment on charges of aggravated assault, statements that her counsel labeled as proclamations of innocence. In the pre-senteneing report and at the sentencing hearing, Cross denied having a weapon. The pre-sentencing report states that Cross painted the victims as the aggressors and said, “We were fighting with our hands.” When the trial judge questioned her about the pre-sen-tencing report at the sentencing hearing, she stated that she did not have a weapon. Instead, Cross claimed that, she “had a ring on. I had a ring. They held it. When I got arrested, they got the ring. It’s real sharp.” Cross denied that she told the victim that she would cut her throat and further denied that her daughter had a hammer at the time of the incident.

¶ 20. These statements directly contradict Cross’ statement under oath during her guilty plea. During the plea colloquy, the State advised the trial court that, at trial, the State would show that Cross attacked Darrel Craven with a knife, that Cross’ daughter attacked Rachel Goodwin with a hammer, and that each woman was “aiding, abetting, assisting, and encouraging the other in the attack, so that each would be responsible for the actions of the other in using the weapons.” Cross stated, at the guilty plea hearing, that she did not disagree with the facts as presented by the State. Additionally, in her Petition to Enter Guilty Plea, Cross, under oath, Cross stated that she did “cause or attempt to cause bodily injury to Darrel Craven, by striking him in the back with a knife, a deadly weapon and cause or attempt to cause bodily injury to Rachel Goodwin, by hitting her in the head with a hammer, a deadly weapon.”

¶ 21. When the trial court heard Cross’ second version of the events during the sentencing hearing, it concluded that Cross likely was ashamed to admit to her actions in front of her family and friends in attendance at the sentencing hearing. Notwithstanding those contradictory statements, however, the trial court decided to proceed with sentencing.

¶ 22. The trial court did not err in proceeding with sentencing. Cross did not attempt to withdraw her guilty plea at the sentencing hearing, nor should the trial court have been required to raise the issue sua sponte in response to Cross’ allegations that her role in the crime was less than she previously stated. In order for a trial court to accept a guilty plea, “the law does not require that a defendant admit every aspect of a charge against him. Instead, a guilty plea will be considered valid even though the defendant makes only a ‘bare admission of guilt.’ ” Gaskin v. State, 618 So.2d 103, 106 (Miss.1993). Further, a guilty plea may be accepted, even when accompanied by protestations of innocence, if the evidence against the defendant is sufficient to sustain the guilty plea. See Reynolds v. State, 521 So.2d 914, 917 (Miss.1988) (citations omitted) (stating that “in sum, admission of guilt is not a constitutional requisite of an enforceable plea. Knowing and voluntary action by the accused is, and, as well, an independent evidentiary suggestion of guilt.”).

¶ 23. A review of the record reveals that Cross did enter her guilty plea knowingly and voluntarily. Additionally the State provided the testimony of five eyewitnesses who observed all or part of the incident. Accordingly, Cross’ subsequent equivocation with regard to the extent of her culpability (i.e. her possession of a weapon and her claims that she was not the aggressor) at the sentencing phase is simply not sufficient to establish that Cross’ plea was not knowing and voluntary.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY DISMISSING APPELLANT’S MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: CHANDLER, J., for the Court.

text:
    Yolanda Fay WILLIAMS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-00109-COA.
    Court of Appeals of Mississippi.
    May 8, 2007.
    Rehearing Denied Sept. 18, 2007.

      Carol L. White-Richard, Phillip W. Broadhead, Oxford, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J., for the Court.

¶ 1. Yolanda Fay Williams was indicted in Washington County for the murder of Robert Brown. A jury found Williams guilty of the lesser charge of manslaughter. The circuit court sentenced Williams to fifteen years in the custody of the Mississippi Department of Corrections. She appeals, arguing the following issues:

(1) Whether the trial court erred in refusing to grant her motions for directed verdict and for judgment not withstanding the verdict when the Weathers-by Rule applies to this case.
(2) Whether Williams’s conviction should be reversed when she was unjustly prejudiced by the State’s multiple acts of prosecutorial misconduct and the jury’s decision was influenced by the prejudice.
¶ 2. Finding no error, we affirm.

FACTS

¶ 3. The evidence is undisputed that Yolanda Williams shot and killed Robert Brown, her lover and the father of her unborn child, on October 14, 2003. Williams fired a .25 caliber pistol at close range. The bullet struck Brown in the back of the left forearm, traveled through his forearm and into the left side of his chest wall, and lodged in the superior vena cava, causing Brown to bleed to death. At the trial, Williams contended that she shot Brown in self-defense.

¶4. On the afternoon of October 14, 2003, Williams called 911 from a store near her house and told emergency personnel to send an ambulance to her address because she had “shot somebody.” The call came in at 2:44 p.m. Williams communicated her name and address and then said that she was on her way back to her house. Emergency personnel, including Paramedic Angela Dearman, were dispatched to Williams’s house. The ambulance service records showed Dearman was dispatched at 2:43 p.m. Dearman testified that she arrived at 2:45 p.m. and was at Brown’s body a minute later. She said Brown was not breathing and had no pulse.

¶ 5. The first officer on the scene, Corporal Brian Payne of the Greenville Police Department, testified that when he arrived Williams was standing in her driveway near the road and seemed “rather calm.” Williams told Corporal Payne that Brown was in the house and that she shot him because he was assaulting her. Williams said the gun was in her car. Officer Payne found a .25 caliber weapon in her car.

¶ 6. Sergeant Patsy Selders was dispatched to the scene. Sergeant Selders said she found Williams at the end of the driveway saying that all she was trying to do was to “just get him off of me” and that she was seven months pregnant. Sergeant Selders stated that Williams was not crying. Sergeant Selders observed that Williams’s hair was disheveled but that Williams had no injuries to her face or bruises or cuts anywhere.

¶ 7. Corporal Payne testified that he went into the house and found Brown lying on the floor in the doorway between the kitchen and carport. Brown was dressed only in boxer shorts and was bleeding from his left forearm and side. Sergeant Seld-ers helped load Brown onto the stretcher and was able to observe him closely. She saw no scratches on Brown’s face or injuries to his head. Corporal Payne said he found a trail of blood drops and smears in the house. The trail led from the bedroom down the hall to the locked front door, back up the hall, through the kitchen, and to the place where Brown was found. Police photographed a telephone base and receiver, pencils, and other objects lying in disarray on the bed.

¶ 8. Dr. Stephen Hayne performed an autopsy of Brown and offered expert testimony in the field of forensic pathology and its subfield of terminal ballistics. Dr. Hayne testified that he found no abrasions, contusions, bruises, cuts, or torn fingernails on Brown. There were no injuries to Brown’s hands. Dr. Hayne testified that the photographs from the autopsy that were admitted into evidence showed the absence of these injuries. Dr. Hayne testified that the superior vena cava was a low pressure vein and it would have taken about twenty or thirty minutes for Brown to bleed to death.

¶ 9. Dr. Hayne further testified that the path of the bullet wound showed Brown was at a right angle from the weapon. In other words, Brown was shot by someone standing perpendicular to him on his left side. The weapon was fired from at least one and a half to two feet away from Brown. The bullet crossed the body with a ten degree upward trajectory, almost a level angle. Dr. Hayne testified that the entry wound showed Brown had his left forearm raised when Williams fired, which was consistent with defensive posturing. Dr. Hayne stated that, at the time of Brown’s death, his blood alcohol level was .20. He was five feet, ten inches tall and weighed 170 pounds.

¶ 10. Williams was five feet, ten inches tall and weighed 227 pounds. Williams was taken into custody and gave police two statements on the day of the shooting. In her first statement at 4:05 p.m. to Investigator Veronica Velasquez, Williams related that she and Brown had been in a relationship for almost two years but that Brown was married to someone else. Williams stated that she was seven months pregnant with Brown’s baby. Williams indicated that her telephone had caller identification. She said that she was taking a bath when the telephone rang. Brown answered it. Then, Brown began screaming her name.

¶ 11. Williams got out of the bath, dried off, dressed, and went into the bedroom. Williams told Brown that she did not know who called. Then, Brown, yelling, asked who had called and said he was not the baby’s father. Brown grabbed Williams, started choking her, pushed her down on the bed, straddled her stomach, hit her repeatedly with his fist and choked her. Williams wrestled her way loose and grabbed the gun from her dresser. Williams stated that Brown kept coming toward her and the gun went off. Williams said Brown said “something like b — - take me to the hospital or something — I don’t know. I just ran out of the house and I didn’t go back in until after the police came.” She said that Brown had never hit her before but on that day he was upset about a recent medical diagnosis. She said that as far as she knew, Brown had not had a drink that day.

¶ 12. Officer Velasquez testified that she looked Williams over for red marks or scratches that people usually obtain in a struggle but did not see any. After giving her first statement, Williams learned that Brown had died. Officer Velasquez testified that Williams began hyperventilating and, fearing for her health, police had her taken to the hospital where she was observed and released the same day.

¶ 13. Williams gave her second statement at 10:30 p.m. to Detective Darrel Saxton and Lieutenant Russell Frazier. In that statement, Williams said that her friend Gregory Pennington called before she got in the bathtub. She answered, told Pennington she was about to get in the tub, and hung up. Then, Brown asked her who called. Williams walked off and got into the tub. When Williams got out of the tub, she went into the bedroom, sat down on the bed and put on lotion. Brown began hollering and cursing. Then, Brown grabbed her from behind, pulled her by the hair and neck, pulled her down on the bed, held her by the neck, straddled her stomach, and started hitting her. Brown called her names and said that the baby was not his. He hit her on the left side of the face and body with his fist and with the telephone. She tried to block him. When Williams wrestled loose, she grabbed the gun from inside a metal box on her dresser. Williams said she grabbed the gun to defend herself from Brown. Brown kept coming toward her “like he was going to take the gun or whatever.” She told him to stay back and leave her alone. Then, the gun went off. Williams said that, when the gun went off, Brown was standing in front of her trying to get the gun. She heard Brown say, “b — -, you shot me,” and she ran out of the house. Brown walked out of the bedroom and down the hallway after her.

¶ 14. Williams said that she thought Brown got Pennington’s number from the caller identification, that Brown called Pennington, and that Pennington was on the phone when Brown attacked her. Detective Saxton asked Williams if she had any marks on her and Williams indicated that she had an injury around her left eye area. Detective Saxton looked closely at Williams’s face but saw “no marks whatsoever.” Lieutenant Frazier also testified that he saw no marks whatsoever on her face.

¶ 15. Pennington, a school teacher and Williams’s old boyfriend, testified that on October 14, 2003, he had not seen Williams for over a year. He thought Williams had called his cell phone that morning when he was in class. Pennington said he returned Williams’s call after his class between 11:30 a.m. and 12:30 p.m. Williams answered and said she was about to take a bath and would call him back. Pennington said that at least one hour later he received a call from Brown. Brown identified himself and asked Pennington what the nature of his relationship was with Williams. Pennington testified that Brown sounded jealous. Pennington told Brown that he and Williams were strictly friends. Thirty to forty minutes later, Brown called back. When Pennington answered, no one was talking directly to him, but he could hear Brown tell Williams to take the phone. Williams said, “no, you called him. You talk to him.” Pennington heard Brown repeatedly tell Williams to take the phone. Then, Pennington heard scuffling as if someone was gripping the receiver to cover it up or just gripping the receiver too tightly. Then, the line went dead.

¶ 16. The State examined Pennington with the telephone log for Williams’s phone number that was earlier introduced into evidence. The log did not show a call from Williams’s number to Pennington that morning. Nor did the log show a call from Pennington to Williams between 11:30 a.m. and 12:30 p.m., but it did show a call to Williams from an unknown number at 1:10 p.m. That call lasted one minute. The log also showed calls from Williams’s number to Pennington at 2:33 p.m. and 2:38 p.m. Each of those calls lasted one minute.

¶ 17. Brown’s sister, Pauline Brown, testified that in February 2004 after Williams’s baby was born, Williams called her and asked if Brown’s family would like to see the baby. Pauline testified about the rest of the conversation: “I said, I know my brother isn’t no violent person. Then she go laugh. Your brother — you brother killed himself. I said, what do you mean killed himself? She said, I had the gun in my hand and he bumped into me, and it went off.”

¶ 18. Dr. Frank Peretti, a forensic pathologist at the Arkansas State Crime Laboratory, testified for the defense. He testified that forensic pathology does not include a subfield of terminal ballistics. He disagreed with Dr. Hayne’s conclusion that Brown’s left forearm wound was consistent with defensive posturing. He testified that a forensic pathologist could not have discerned from the bullet wounds the exact position of the shooter and the victim at the time of the shooting.

¶ 19. Brown’s widow, Hazel Brown, testified that Brown was a peaceful person who had not been abusive throughout the marriage. She said he became violent once early in their marriage when he pushed her.

¶ 20. Williams testified on her own behalf. Williams testified that Brown arrived that morning at about 9:30 a.m. and they lay on the bed together talking. She had called Pennington the previous day, and he called her back around noon. They spoke briefly and she went to take a bath. She bathed for about twenty minutes. Brown was in the bedroom and began yelling “who was that on the phone.” During her bath, she heard Brown yelling on the phone. After her bath, she went into the bedroom to dress. Brown handed her the phone and said “tell him not to call you.” She refused to speak to Pennington. Williams testified that Brown was wild with jealousy. He grabbed her by the hair and neck, straddled her, and hit her repeatedly on the left side of the face with his fist. She got up, grabbed her gun and pointed it at him, and told him to leave. He approached her “like he was reaching toward the gun,” and the gun went off. She did not recall pulling the trigger. He said, “b — r, you shot me.” She ran out of the house and he followed her. Williams testified she grabbed the gun because she was afraid for herself and her child and did not know what Brown would do to her. She said that she had bought the gun for protection months earlier after an attempted break-in of her house.

¶21. On cross-examination, Williams stated that Brown struck her with his fist a couple of times. She said that the beating by Brown had lasted two to three minutes. She said she had smelled alcohol on Brown but had not seen him drinking that day. She again testified that Brown was coming straight at her and specifically denied that he was sideways when she shot him. When asked why she didn’t flee down the hall when she stood at the door of the bedroom with the gun pointed at Brown who was in the room, she said, “it was my house, and I figured he should leave.”

¶ 22. ■ The jury was instructed on the theories of murder, imperfect self-defense manslaughter, heat of passion manslaughter, self-defense, and accident. The jury found Williams guilty of manslaughter and the court imposed a sentence of fifteen years.

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT’S MOTIONS FOR DIRECTED VERDICT AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT WHEN THE WEATHERSBY RULE APPLIES TO THIS CASE.

¶ 23. Williams contends that, under the facts of this case, the trial court should have applied the Weathersby rule and granted her motion for a directed verdict or her motion for a judgment notwithstanding the verdict. The Weathersby rule states that “where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” Weathersby v. State, 165 Miss. 207, 147 So. 481, 482 (1938). When the evidence shows circumstances which materially contradict the defendant’s version of facts, then the matter of guilt is properly an issue for the jury. Mallett v. State, 606 So.2d 1092, 1094 (Miss.1992). Williams argues that the Weathersby rule applied to her case because she was the only eyewitness to the shooting and her version of events showed that she shot Brown in defense of herself and her unborn baby. She contends that her version of events was not materially contradicted by physical or other evidence.

¶24. A Weathersby challenge essentially tests the sufficiency of the evidence. Green v. State, 614 So.2d 926, 931 (Miss.1992). In reviewing the denial of a motion attacking the sufficiency of the evidence, this Court asks whether, considering the evidence in the light most favorable to the State, any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). A Weathersby challenge tests the sufficiency of the evidence because, if the defendant was the only eyewitness to the homicide and if her version of events is both reasonable, consistent with innocence, and uncontradicted by physical facts, facts of common knowledge or other credible evidence, then it follows that no reasonable juror could find the defendant guilty beyond a reasonable doubt. Green, 614 So.2d at 932 (citing Harveston v. State, 493 So.2d 365, 371 (Miss.1986)). In reviewing the trial court’s Weathersby ruling, we accept all credible evidence consistent with the verdict as true and give the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. Id. We will reverse only when the evidence is such that reasonable and fair-minded jurors could only have found the defendant not guilty. Id.

¶ 25. In support of her Weath-ersby argument, Williams argues that none of Dr. Hayne’s opinions were a credible basis for contradicting her version of events. Williams objected to Dr. Hayne’s qualification as an expert witness. After voir dire at which Dr. Hayne testified about his qualifications, the court accepted Dr. Hayne as an expert in the area of forensic pathology. On appeal, citing Dr. Hayne’s testimony that he sleeps two to three hours per night and performs fifteen hundred to seventeen hundred autopsies per year, Williams argues that Dr. Hayne was unqualified to render expert testimony as a forensic pathologist. This Court reviews the lower court’s rulings on the admission or exclusion of evidence for abuse of discretion. Ladnier v. State, 878 So.2d 926, 933(¶ 27) (Miss.2004). An error in the admission or exclusion of evidence is not grounds for reversal unless the error affected a substantial right of a party. Id.; M.R.E. 103(a). Since Mississippi’s adoption of the Daubert standard, Dr. Hayne has been found qualified to render expert testimony in the area of forensic pathology on numerous occasions by the courts of this State. See Powers v. State, 945 So.2d 386, 392(¶ 10) (Miss.2006); Wright v. State, 915 So.2d 527, 529(¶ 3) (Miss.Ct.App.2005); Cowart v. State, 910 So.2d 726, 729(¶ 14) (Miss.Ct.App.2005). There is nothing about Williams’s argument to indicate the trial court abused its discretion in accepting Dr. Hayne as an expert in the area of forensic pathology.

¶ 26. It is a rare case which meets all the requirements of Weathersby. Berry v. State, 455 So.2d 774, 776 (Miss.1984). “Usually, a factual issue is presented which requires submission of the case to the jury.” Buchanan v. State, 567 So.2d 194, 196 (Miss.1990). We find that this case was properly submitted to the jury. The facts in this case bears similarity to the facts in Buchanan, in which the court rejected the defendant’s argument for the application of the Weathersby rule. Id. at 197. Buchanan shot and killed her boyfriend, Norman Boykin, when the two were alone in the house after a night out. Id. at 195. According to Buchanan, Boy-kin was in a violent mood and she became afraid of him. Id. She said he grabbed her and backhanded her across the face and forehead. Id. She attempted to run out the front door, but Boykin grabbed her by the hair. Id. After further tussling, Boy-kin said he was going to kill her. Id. Buchanan took a pistol from a dresser drawer and fired one shot wide at the door. Id. Then, Boykin came toward her and she fired the fatal shot. Id. Buchanan called the police. Id. When they arrived, the police observed that Buchanan had no marks, lacerations, or bruises on her face, though records from a hospital visit hours after the shooting indicated Buchanan had a one-centimeter laceration to the inner lip and a laceration and two bruises to the forehead. Id. at 195-96. Police stated Buchanan was not hysterical and appeared to know what she was doing and saying. Id.

¶ 27. The court rejected Buchanan’s Weathersby argument because her testimony supporting self-defense was substantially contradicted by the pathologist’s testimony that Boykin had been shot in the back and could not have been coming toward Buchanan when she fired the fatal shot. Id. at 197. And, the evidence showed Boykin had not been armed. Id. Further, all the blood was five or six feet away from where Buchanan claimed Boy-kin was standing when she fired the fatal shot. Id.

¶ 28. As in Buchanan, the testimony of the forensic pathologist substantially contradicted Williams’s version of the events. Williams testified that Brown was coming straight at her and reaching for the gun when she shot him. Williams argues that Dr. Hayne’s and Williams’s description of Brown’s position with respect to the weapon were both reasonable and not inconsistent with each other. Williams contends that Brown reasonably could have been described as coming straight at her though his body twisted sideways he reached for the gun. However, Williams specifically denied that Brown’s side was facing her when she shot him. We find that Williams’s contention that Brown was coming straight at her was materially contradicted by Dr. Hayne’s finding, corroborated by the photographic evidence of the bullet wounds, that Brown’s side was perpendicular to the weapon when he was shot.

¶ 29. Williams’s version of events was also called into question by material conflicts in her statements and testimony and by material discrepancies in the timing of the events described in her statements and testimony when compared with the other evidence. In her initial statement, Williams said that the phone rang while she was taking a bath, that Brown answered, and that she did not know who called. In her second statement, Williams said it was Pennington who had called, that he had called before her bath, and that she answered the phone. At trial Williams testified that she took her bath at about noon and that she bathed for about twenty minutes. The phone log revealed that the only call that could have been from Pennington was a one-minute call at 1:10 p.m. A reasonable jury could find from this evidence that Williams began bathing around 1:10 p.m., after Pennington’s call, then took a twenty minute bath and was out of the bath around 1:30 p.m. Williams testified that, after her bath, Brown began screaming at her and then beat her for two to three minutes, after which she shot him. But the two calls from Williams’s house to Pennington’s phone number did not occur until 2:33 p.m. and 2:38 p.m. Williams’s call to 911 did not occur until approximately 2:43 p.m. or 2:44 p.m. Also, Dr. Hayne testified that it would have taken Brown between twenty and thirty minutes to bleed to death from the bullet wound. When emergency personnel found Brown at about 2:46 p.m., Brown was not breathing. However, Pennington testified that he heard Brown alive during the second phone call which the phone company logged at 2:38 p.m. These time discrepancies east material doubt upon Williams’s narration of the events.

¶ 30. Physical evidence also substantially contradicted Williams’s version of events. A lack of evidence of physical injury when the shooter claims to have been beaten can remove a case from the application of the Weathersby rule. Miller v. State, 919 So.2d 1137, 1140 (¶¶8-9) (Miss.Ct.App.2005). Williams stated at various times that Brown had beaten her with his fists and the telephone. Officer Velasquez observed Williams at 4:03 p.m. and saw no marks on her face. Officers Saxton and Frazier observed Williams at 10:30 and saw no marks on her face. And, there was no injury to Brown’s hands, tending to show he had not administered a beating before his death. From this evidence, the jury reasonably could have inferred that Williams lied about having been beaten by Brown. Considering the evidence as a whole, circumstances materially contradicted Williams’s version of events. Viewing all of the evidence in the light most favorable to the verdict, a rational jury could find that Williams did not kill Brown in self-defense but was guilty of manslaughter, and the trial court did not err by denying Williams’s motions for a directed verdict and a JNOV.

II. WHETHER APPELLANT’S CONVICTION SHOULD BE REVERSED WHEN SHE WAS UNJUSTLY PREJUDICED BY THE STATE’S MULTIPLE ACTS OF PROSECUTORIAL MISCONDUCT AND THE JURY’S DECISION WAS INFLUENCED BY THE PREJUDICE.

¶ 31. Williams claims that comments made by the prosecutor during the opening statement and closing argument amounted to prosecutorial misconduct which adversely affected the trial’s outcome. Williams also claims that the trial court erred by denying her request for a mistrial after a tape recording of excluded evidence was mistakenly played for the jury. She contends that these errors, considered cumulatively, denied her a fundamentally fair trial.

¶ 32. Our standard of review for alleged attorney misconduct during opening statements or closing remarks is “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Slaughter v. State, 815 So.2d 1122, 1130(¶ 45) (Miss.2002).

A. Opening statement.

¶ 33. Williams filed a motion in limine to exclude the medical records from her hospital visit on the day of the shooting. The court granted the motion during the trial and excluded the medical records. The opening statements occurred when the motion in limine was pending. Williams argues that two of the prosecutor’s remarks in the opening statement prejudiced her by referencing the medical records which were the subject of her pending motion in limine. In the first instance of alleged misconduct, the prosecutor stated that the officers who responded to Williams’s house did not see any marks on her, “[a]nd later on, other people did not notice any injuries to her.” The second instance was when the prosecutor described how Williams began hyperventilating at the police station after learning of Brown’s death and was taken to the hospital. The prosecutor said, “She has to be taken to the hospital, Delta Regional, in an ambulance, and she is seen by the same doctor and the same nurse; that had just earlier been working on Mr. Brown and pronounced him dead.” Again there was no objection from Williams. The failure to make a contemporaneous objection at trial constitutes a waiver of any error subsequently assigned. Cole v. State, 525 So.2d 365, 369 (Miss.1987). Therefore any error concerning these statements is not properly before the Court. Id.

¶ 34. Notwithstanding Williams’s waiver of these arguments, we observe that Williams was not prejudiced by the prosecutor’s remarks. The evidence admitted at trial established that Detective Sax-ton and Lieutenant Frazier were “other people” who saw no injuries to Williams hours after she was arrested. Therefore, the prosecutor was not necessarily referencing medical personnel as the “other people” who observed no injuries to Williams “later on.” And, it was established at trial that Williams was hyperventilating and was taken to the hospital. The information that Williams was seen by the same doctor and nurse that had pronounced Brown dead was extraneous to the evidence admitted at trial. However, that extraneous information was not particularly prejudicial to Williams.

¶ 35. Brown also argues that the prosecutor committed misconduct in opening statements by stating that he was “going to be trying to introduce some phone records of her phone number, and the purpose of the records is to show that — .” At that point the judge cut the prosecutor off and reminded him that there was a pending motion in limine about the telephone records. Correctly the court noted, “The opening statement is supposed to say what you expect to prove. I think we’re going way into some details that — [I] just want to be careful about that.” The prosecutor agreed and did not pursue the matter further. Again, there was no contemporaneous objection from Williams. Therefore, Williams waived this issue for appeal. Cole, 525 So.2d at 369. Moreover, the remarks were not unduly prejudicial. The prosecutor never intimated to the jury what would be proven from the phone records. And, the records of Williams’s phone number were admitted into evidence.

B. Closing Argument.

¶ 36. Williams argues that prosecutorial misconduct occurred on two instances during closing arguments when the prosecutor attempted to introduce facts that were not in evidence. In the first instance, the prosecutor stated that after calling 911 Williams decided to return home “because she knew [Brown] was lying on the floor in the house without a pulse and not breathing.” Williams objected to facts not in evidence. The prosecutor said he thought he could “connect this up” but that he would move on. The judge thanked him for moving on. In the second instance, the prosecutor speculated that the two calls to Pennington shown by the telephone records were made by Williams after she killed Brown in order to ask Pennington what to do. Williams objected, and the judge sustained the objection. “When a trial court sustains an objection, it cures any error.” Holland v. State, 705 So.2d 307, 335 (Miss.1997). The court sustained both of Williams’s objections and, therefore, any error caused by the prosecutor’s remarks was cured.

C. Request for a mistrial.

¶ 37. During the direct testimony of Detective Saxton, the tape and transcript of Williams’s second statement to police was admitted into evidence. The prosecutor asked Saxton to play the tape and the following occurred:

Q. Investigator Saxton, do you have a tape recorder to play this tape with? A. Yes, sir.
Q. If you would, if you would put S-7 [the audiotape of the statement] into your tape recorder and bring it over here on this little ledge in front of the jury box and start the tape recording with the Court’s permission.
(WITNESS COMPLIED. TAPE PLAYED FOR THE JURY.)
BY [the prosecutor]: That’s the wrong tape.
BY THE COURT: Please stop it.
BY [the prosecutor]: I’ll be right back, your honor.
BY THE COURT: That’s not something you’re supposed to hear and [I] ask that you disregard that.

The prosecutor explained that “we’ve got a mix up on the tapes” and found the correct tape. The correct tape was played but Williams’s attorney objected and the tape was stopped. Williams asserted that the tape was about to reveal medical information that had been excluded from evidence. The court and attorneys met in chambers and the court decided to redact two objectionable statements from the tape and transcript. The tape was replayed. However, the objectionable statements were mistakenly played for the jury as follows:

[By Police]: Earlier you had to go out to the hospital. You got checked out by the doctors. What did they tell you when you was [sic] out there?
[Williams]: That I was hyperventilating.

Then the following occurred:

[Attorney for Williams]: Your honor, may we stop it and just object for the record. And, I guess at this point, ask for a mistrial. That’s exactly what we asked not come in.
[By the Court]: It’s not on the transcript.
[Attorney for Williams]: I know, but they played it on the tape. We just had it set prior. That’s what we spent time back there in chambers doing setting this tape up so it wouldn’t play that, and it just played it.
[By the Court]: I’m going to instruct the jury again to go by the transcript. All right. I don’t know — for the record, I don’t know if they could even understand what it said. Did you all understand what was said, and I was looking for a place on the sheet, but please, in your deliberations, follow what is on this sheet. For the record, some jurors are shaking their head to say, no, we did not — that part of it was not clear. We did not understand it. All right. You may continue.

¶ 38. Williams argues that the trial court erroneously denied her motion for a mistrial. The granting of a mistrial is within the sound discretion of the trial judge. Hoops v. State, 681 So.2d 521, 528 (Miss.1996). The court may grant a mistrial only when the harm done would render the defendant without hope of receiving a fair trial. Reed v. State, 764 So.2d 511, 513(¶ 7) (Miss.Ct.App.2000). This Court reviews the denial of a motion for a mistrial for abuse of discretion. Spann v. State, 771 So.2d 883, 889(¶ 9) (Miss.2000). The trial court is in the best position to determine the prejudicial effect of an objectionable remark and the judge is given considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. Weeks v. State, 804 So.2d 980(¶ 37) (Miss.2004). Where no “serious or irreparable damage” has resulted and no mistrial is declared, the trial judge should direct the jury to disregard the remark. Id.

¶ 39. We find that the trial court did not err in failing to grant a mistrial. The information that a doctor told Williams she was hyperventilating, though the opinion of an expert, was largely cumulative of Officer Velasquez’s testimony that Williams was sent to the hospital because she was hyperventilating. Moreover, after the jury was exposed to the information, the court directed the jury to “go by the transcript.” This issue is without merit.

D. Cumulative error.

¶ 40. Williams’s final argument is that the errors in this case, while perhaps not reversible alone, combine to create cumulative error. The supreme court has held that errors, though not reversible in themselves, will require reversal if the errors in combination denied the defendant the right to a fundamentally fair and impartial trial. Byrom v. State, 863 So.2d 836, 847(¶ 12) (Miss.2003). The only error we have identified is the error in playing the wrong portion of Williams’s taped statement. We have affirmed the trial court’s decision not to grant a mistrial regarding that error. There are no other errors to view in combination with the tape error. Since we have found that multiple errors did not occur, there can be no cumulative error or cumulative prejudicial effect. Sullinger v. State, 935 So.2d 1067, 1074(¶ 29) (Miss.Ct.App.2006).

¶ 41. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR.

      . The trial testimony acknowledged a slight discrepancy between the Emergency 911 time records and the time records of the ambulance service.


author: LEE, P.J., for the Court. CHANDLER, J.,

text:
    Carl Edward BECKWITH and Stanley Marshall, et al., Executors of the Estate of Helen Beckwith, Deceased, Appellants, v. Nikhil S. SHAH, M.D., Appellee.
    No. 2003-CA-01624-COA.
    Court of Appeals of Mississippi.
    June 5, 2007.
    Rehearing Denied Sept. 11, 2007.

      David L. Merideth, Ridgeland, Philip Mansour, Greenville, Attorneys for Appellants.
    Lonnie D. Bailey, Greenwood, Willie L. Bailey, Tommie G. Williams, Attorneys for Appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On the morning of July 3, 1999, Helen Beckwith entered Delta Regional Medical Center in Greenville, Mississippi, to have a colonoscopy performed by Dr. Nikhil Shah. There were complications during the procedure; specifically, a perforation of Helen’s colon. After an unsuccessful surgery to correct the perforation, Helen died later that same day. Other pertinent facts will be discussed as necessary.

¶ 2. On December 21, 1999, Carl Beck-with and Stanley Marshall, executors of Beckwith’s estate (hereinafter Beckwith), filed a complaint in the Washington County Circuit Court against Dr. Shah. Beck-with alleged that Dr. Shah was grossly negligent in his treatment of Helen and therefore liable for her death. Beckwith sought actual, compensatory and punitive damages. Dr. Shah then filed an answer in which he denied the allegations. After a one week trial beginning April 16, 2001, the jury returned a verdict in favor of Dr. Shah. After Beckwith’s posttrial motions were denied, he appealed to this Court asserting that the jury was not properly instructed on the applicable standard of care in medical malpractice cases.

DISCUSSION

I. WAS THE JURY PROPERLY INSTRUCTED ON THE APPLICABLE STANDARD OF CARE?

¶ 3. In the only issue on appeal, Beckwith argues that the jury was not properly instructed on the applicable standard of care in medical malpractice actions. Specifically, Beckwith claims that instructions C-7 and D-4 were abstract and should not have been given to the jury. Beckwith states that instructions P-8 and P-15, both of which the trial court refused, should have been given instead. Our standard of review for jury instructions is as follows:

The instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may also properly refuse the instructions if he finds them to incorrectly state the law or to repeat a theory fairly covered in another instruction or to be without proper foundation in the evidence of the case.

Howell v. State, 860 So.2d 704, 761 (¶ 203) (Miss.2003). “If an instruction merely relates a principle of law without relating it to an issue in the case, it is an abstract instruction, and should not be given to the jury.” McCarty v. Kellum, 667 So.2d 1277, 1288 (Miss.1995). However, granting an abstract instruction is not always reversible error unless the instruction confuses and misleads the jury. Freeze v. Taylor, 257 So.2d 509, 511 (Miss.1972). In T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 952 (Miss.1992), the supreme court found that an example of an abstract instruction included the definition of “air pollution” but failed to direct the jury to do anything.

¶ 4. Initially, Beckwith agreed to C-7 but withdrew consent a few hours before the trial court submitted the instructions to the jury. Instruction C-7 reads as follows:

In this case the plaintiff has charged Dr. Nikhil S. Shah with medical negligence. A physician, such as Dr. Shah, is required to provide his patients with that same degree of care, skill and diligence which would be provided by a minimally competent, reasonably prudent physician in the same general field of practice, under the same or similar circumstances, and who has available to him the same general facilities, resources and options. Therefore, medical negligence or “malpractice” is defined as a physician’s failure to provide a patient with that degree of care, skill and diligence which would be provided by a minimally competent, reasonably prudent physician in the same specialty when faced with the same or similar circumstances.
If you find from a preponderance of the evidence in this case that Dr. Nikhil S. Shah, in the care and treatment of Mrs. Beckwith, complied with the standards of care expected of a reasonably prudent, minimally competent physician under the circumstances, then you shall return your verdict for the defendant, Dr. Nikhil S. Shah.
If you find from a preponderance of the evidence in this case that Dr. Nikhil S. Shah, in the care and treatment of Mrs. Beckwith, failed to comply with the standards of care expected of a reasonably prudent, minimally competent physician under the circumstances, then you shall return your verdict for the Beck-with family.

Instruction D-4 reads as follows:

You are instructed that negligence on the part of a physician such as Dr. Shah may not be presumed to have occurred simply because Mrs. Beckwith died.
Physicians are not the guarantors or insurers of the success of the medical treatment which they provide to their patients, nor is a physician liable to a patient’s family simply because a death has occurred. A physician may be held liable for medical negligence only when the treatment which he provides falls below the minimally acceptable level of care as defined in these instructions and when such results in an injury to a patient.

¶ 5. Beckwith argues that these instructions mirror the instructions which the supreme court in McCarty found to be abstract. The instructions are similar, but, in McCarty, the court found that, although inclined to find that the instructions in question were inadequate, the jury instructions when read as a whole adequately instructed the jury. McCarty, 667 So.2d at 1288. However, in McCarty v. Mladineo, 636 So.2d 377, 381 (Miss.1994), the supreme court suggested that lawyers use a jury instruction similar to C-7 when applicable. C-7 correctly states the proper standard of care and instructs the jury to return a verdict for Beckwith or Shah depending upon what the evidence showed. Although D-4 is more abstract than C-7, when read in toto with the other instructions, we find that the jury was provided with appropriate standards and facts.

¶ 6. In reviewing all of the jury instructions, we do not find that instructions C-7 and D-4 are confusing or misleading as to suggest that the jury misunderstood its role or the law. This issue is without merit.

¶ 7. Beckwith also argues that P-8 or P-15 should have been given instead of C-7 and D-4. P-8 was initially proffered but rejected by the trial court. P-15, which was a revamped version of P-8, was proffered a few hours before instructions were given to the jury. Instruction P-8 reads as follows:

The term “proximate cause” or “cause” of an injury or damage are those acts which occur in a natural and continuous sequence that produce injury or damage and, without which, the injury or damage would not have occurred.
If you find from a preponderance of the evidence in this case that Dr. Shah did, or failed to do, any one or more of the following acts, to-wit:
(1) To recognize that Helen Beckwith had acute diverticulitis and did not perform a CAT scan on Helen Beckwith that would have probably disclosed that Helen Beckwith had acute diverticulitis and that the colonoscopy should not have been performed; or
(2) Dr. Shah made a hole in Helen Beckwith’s colon and he should not have reinserted the colonoscope into Helen Beckwith’s body; or
(3) When Helen Beckwith first got into distress, Dr. Shah should have inserted a needle into her stomach to relieve the air; or
(4) To order an X-ray that probably would have shown the free air in Helen Beckwith’s body when she got into distress and before Dr. Sandefur arrived; or
(5) To timely call Dr. John Sandefur after Helen Beckwith’s colon was perforated; or
(6) When Helen Beckwith’s condition became life-threatening while she was under the exclusive care of Dr. Shah, he did not treat Helen Beckwith for such life-threatening condition, and that such acts by Dr. Shah caused Helen Beck-with’s death, but another doctor with Dr. Shah’s ability and equipment:
1. Would not have performed the colo-noscopy; or
2. Would not have reinserted the colo-noscope; or
3. Would have inserted a needle into her stomach to relieve the free air; or
4. Would have ordered an X-ray after Helen Beckwith got into distress and before Dr. Sandefur arrived; or
5. Would have treated Helen Beckwith for the life threatening conditions, and that such acts would probably have saved Helen Beckwith’s life, then you should return a verdict for the Beckwith family against Dr. Shah.

Instruction P-15 reads as follows:

The term “proximate cause” or “cause” of an injury or damage are those acts which occur in a natural and continuous sequence that produce injury or damage and, without which, the injury or damage would not have occurred.
If you find from a preponderance of the evidence in this ease that the Defendant Shah, at the time he saw and treated Helen Beckwith, a minimally competent physician in the same field of practice who had available the same general facilities, services, equipment and options as the Defendant had and that he did to or failed to do any one or more of the following acts to wit:
(1) Failed to diagnose or recognize that Helen Beckwith had acute diverticulitis and performed colonoscopy; or
(2) Pumped a massive amount of free air into Helen Beckwith’s body; or
(3) After Dr. Shah punctured Helen Beckwith’s colon he should not have reinserted the scope; or
(4) That Dr. Shah failed to properly and timely react after he punctured Helen Beckwith’s colon; or
(5) Failed to timely order an X-ray which would have shown free air in Helen Beckwith’s body; or
(6) Failed to timely call a surgeon after Helen Beckwith’s colon was perforated; or
(7) When Helen Beckwith’s condition became life-threatening while she was under the exclusive care of Dr. Shah, he did not treat Helen Beckwith for such life-threatening condition; and that such acts by Dr. Shah proximately caused and/or contributed to Helen Beckwith’s death, then you should return a verdict for the Beckwith family against Defendant Shah.
¶ 8. Both instructions were confusing and peremptory in nature and the trial court found P-15 to be an improper statement of the law. We find no error by the trial court in denying the instructions.
¶ 9. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

MYERS, P.J., IRVING, GRIFFIS, ISHEE AND CARLTON, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BARNES AND ROBERTS, JJ. KING, C.J., NOT PARTICIPATING.

CHANDLER, J.,

Dissenting.

¶ 10. I respectfully dissent. In my opinion, the trial court erred by granting jury instructions C-7 and D-4 because they were abstract instructions on medical negligence and were the sole negligence instructions given. Therefore, I believe it is necessary for this Court to reverse and remand this case for a new trial in which the jury would be properly instructed.

¶ 11. I begin by pointing out that Beckwith successfully preserved appellate review of the trial court’s grant of instructions C-7 and D-4 and refusal of instructions P-8 and P-15. The defense rested its case before the noon recess on April 20, 2001. The trial court held a jury instruction conference after the noon recess. At the conference, Beckwith proffered jury instruction P-8. That instruction stated:

The term “proximate cause” or “cause” of an injury or damage are those acts which occur in a natural and continuous sequence that produce injury or damage and, without which, the injury or damage would not have occurred. If you find from a preponderance of the evidence in this case that Dr. Shah did, or failed to do, any one or more of the following acts, to-wit:
(1) To recognize that Helen Beckwith had acute diverticulitis and did not perform a CAT scan on Helen Beckwith that would probably have disclosed that Helen Beckwith had acute diverticulitis and that the colonoscopy should not have been performed; or
(2) Dr. Shah made a hole in Helen Beckwith’s colon and he should not have reinserted the colonoscope into Helen Beckwith’s body; or
(3) When Helen Beckwith first got into distress, Dr. Shah should have inserted a needle into her stomach to relieve the air; or
(4) To order an X-ray that probably would have shown free air in Helen Beckwith’s body when she got into distress and before Dr. Sandefur arrived; or
(5) To timely call Dr. John Sandefur after Helen Beckwith’s colon was perforated; or
(6) When Helen Beckwith’s condition became life-threatening while she was under the exclusive care of Dr. Shah, he did not treat Helen Beckwith for such life-threatening condition, and that such acts by Dr. Shah caused Helen Beck-with’s death, but another doctor with Dr. Shah’s ability and equipment:
1. Would not have performed the co-lonoscopy; or
2. Would have inserted a needle into her stomach to relieve the free air; or
3. Would have ordered an X-ray after Helen Beckwith got into distress and before Dr. Sandefur arrived; or
4. Would have treated Helen Beck-with for the life threatening conditions, and that such acts would probably have saved Helen Beckwith’s life, then you should return a verdict for the Beckwith family against Dr. Shah.

¶ 12. Beckwith argued that P-8 was a correct instruction because it articulated each act done or not done by Dr. Shah upon which Beckwith claimed liability. Beckwith admitted that the instruction might need rewording. The trial court refused P-8 because it invaded the jury’s duty to make the factual determination of whether or not Helen suffered from acute diverticulitis.

¶ 13. Next, the court considered Dr. Shah’s instruction D-5. Beckwith’s counsel stated he would accept D-5 provided it was given as the court’s instruction and that certain language was added. The court granted C-7 with Beckwith’s suggested language comprising the last paragraph. As given, C-7 read:

In this case the plaintiff has charged Dr. Nikhil S. Shah with medical negligence. A physician, such as Dr. Shah, is required to provide his patients with that same degree of care, skill and diligence which would be provided by a minimally competent, reasonably prudent physician in the same general field of practice, under the same or similar circumstances, and who has available to him the same general facilities, resources, and options. Therefore, medical negligence or “malpractice” is defined as a physician’s failure to provide a patient with that degree of care, skill and diligence which would be provided by a minimally competent, reasonably prudent physician in the same specialty when faced with the same or similar circumstances.
If you find from a preponderance of the evidence in this case that Dr. Nikhil S. Shah, in the care and treatment of Mrs. Beckwith, complied with the standards of care expected of a reasonably prudent, minimally competent physician under the circumstances, then you shall return your verdict for the defendant, Dr. Nikhil S. Shah.
If you find from a preponderance of the evidence in this case that Dr. Nikhil S. Shah, in the care and treatment of Mrs. Beckwith, failed to comply with the standards of care expected of a reasonably prudent, minimally competent physician under the circumstances, then you shall return your verdict for the Beck-with family.

¶ 14. The court next turned to Dr. Shah’s proffered instruction D-4. Beckwith objected to D-4 on the ground that it was abstract and did not relate to the facts of the case. The court granted a modified version of D-4, which read:

You are instructed that negligence on the part of a physician such as Dr. Shah may not be presumed to have occurred simply because Mrs. Beckwith died.
Physicians are not the guarantors or insurers of the success of the medical treatment which they provide to their patients, nor is a physician liable to a patient’s family simply because a death has occurred. A physician may be held liable for medical negligence only when the treatment which he provides falls below the minimally acceptable level of care as defined in these instructions and when such results in injury to a patient.

¶ 15. At the conclusion of the charge conference, the court recessed for the day. When the court reconvened the next day, Beckwith immediately withdrew his consent to instruction C-7. Beckwith argued that granting C-7 would amount to reversible error because C-7 was an improper abstract instruction on medical negligence. Beckwith proffered instruction P-15 as a substitute negligence instruction that purported to apply medical negligence law to the specific facts of the case. P-15 was a redrawn version of P-8, and stated:

The term “proximate cause” or “cause” of an injury or damage are those acts which occur in a natural and continuous sequence that produce injury or damage and, without which, the injury or damage would not have occurred.
If you find from a preponderance of the evidence in this case that Defendant Shah, at the time he saw and treated Helen Beckwith, a minimally competent physician in the same field of practice who had available the same general facilities, services, equipment and options as the Defendant had and that he did or failed to do any one or more of the following acts to wit:
(1) Failed to diagnose or recognize that Helen Beckwith had acute diverticulitis and performed colonoscopy; or
(2) Pumped a massive amount of free air into Helen Beckwith’s body; or
(3) After Dr. Shah punctured Helen Beckwith’s colon he should not have reinserted the scope; or
(4) That Dr. Shah failed to properly and timely react after he punctured Helen Beckwith’s colon; or
(5) Failed to timely order an X-ray which would have shown free air in Helen Beckwith’s body; or
(6) Failed to timely call a surgeon after Helen Beckwith’s colon was perforated; or
(7) When Helen Beckwith’s condition became life-threatening while she was under the exclusive care of Dr. Shah, he did not treat Helen Beckwith for such life-threatening condition;
and that such acts by Dr. Shah proximately caused and/or contributed to Helen Beckwith’s death, then you should return a verdict for the Beckwith family against Defendant Shah.

Dr. Shah objected to P-15 as being peremptory in nature. The court refused to substitute P-15 for C-7, stating that, while an instruction more specific than C-7 could be given, P-15 was an improper statement of the law and invaded the province of the jury in some respects.

¶ 16. The timing of Beckwith’s filing of his jury instructions raises a question about the propriety of the trial court’s consideration of those instructions. Beck-with filed a set of jury instructions before the commencement of the trial, but after the close of evidence he withdrew those instructions and filed a new set including instruction P-8. He filed instruction P-15 a day later on April 21, 2001. According to Mississippi Rule of Civil Procedure 51(b)(1), jury instructions must be delivered to the court and counsel for all parties not later than twenty-four hours before the time the action is scheduled to be tried. See also URCCC 3.07 (jury instructions must be pre-filed at least twenty-four hours prior to trial). However, it is within the trial court’s discretion to allow jury instructions to be offered or amended after the trial has begun. Caskey v. Treadwell, 299 So.2d 691, 693 (Miss.1974) (stating that “[i]n some cases the content of an instruction cannot be determined until all the proof has been offered” and that “the trial judges necessarily have discretion in allowing instructions to be requested or amended after the evidence is in.”). Thus, as is routinely done in the circuit courts of this state, the trial court exercised its discretion to consider Beckwith’s jury instructions filed after the commencement of the trial. It was well within the trial court’s discretion to consider Beckwith’s untimely filed jury instructions. And, by requesting instructions P-8 and P-15 and specifically objecting to instructions C-7 and D-4, Beckwith preserved appellate review of the trial court’s rulings on those instructions. Nichols v. Tubb, 609 So.2d 377, 388 (Miss.1992); Young v. Robinson, 538 So.2d 781, 783 (Miss.1989).

¶ 17. I proceed to the merits of Beck-with’s arguments. The jury must be instructed on all material issues presented by the evidence. Eckman v. Moore, 876 So.2d 975, 982(¶ 19) (Miss.2004). The trial court enjoys considerable discretion regarding the form and substance of the jury instructions. Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992). On review of the trial court’s grant or refusal of jury instructions, this Court reads the jury instructions as a whole to determine if the jury was properly instructed. Id.

Our overarching concern is that the jury was fairly instructed and that each party’s proof-grounded theory of the case was placed before it. [citation omitted]. We read the jury instructions as a whole, our focus upon what the jury heard and not on what was kept from it. We see how full the glass, not how empty. Defects or inadequacies in particular instructions do not trouble us, so long as the aggregate of the instructions, taken as a whole, fairly, though not necessarily perfectly, express the applicable primary rules of law.

Id. We will reverse only if the instructions, read in their entirety, failed to fairly and adequately instruct the jury. Starcher v. Byrne, 687 So.2d 737, 743 (Miss.1997).

¶ 18. Beckwith argues that the trial court erred by granting jury instruction C-7. He avers that, though C-7 correctly stated the law, C-7 was impermissibly abstract because it did not relate to the facts of the case. Beckwith further argues that none of the other instructions provided the jury with sufficient facts to properly decide the case.

¶ 19. In Freeze v. Taylor, 257 So.2d 509, 511 (Miss.1972), the court stated that abstract instructions on legal principles unrelated to the facts and issues are dangerous because of their tendency to confuse and mislead the jury. The Freeze court set out a test for determining whether a jury instruction is abstract:

The test to determine whether or not an instruction is abstract is to determine whether or not the instruction relates to facts shown by the evidence on the issues involved in the case. If an instruction merely relates a principle of law without relating it to an issue in the case, it is an abstract instruction and should not be given by the Court.

Id. However, the court stated, an abstract instruction will not be grounds for reversal unless it tends to confuse or mislead the jury. Id.

¶ 20. The issue of abstract jury instructions has frequently arisen in appeals from the grant or denial of jury instructions on negligence. See, e.g., McWilliams v. City of Pascagoula, 657 So.2d 1110, 1111-12 (Miss.1995); Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1159 (Miss.1992); Vines v. Windham, 606 So.2d 128, 133 (Miss.1992); Rucker v. Hopkins, 499 So.2d 766, 773 (Miss.1986). The supreme court has stated that “it is elementary that an instruction allowing the jury to find negligence must do so other than in the abstract.” Lloyd Wood Const. Co. v. Little, 623 So.2d 968, 971 (Miss.1993). “[A] charge of negligence must be grounded in an allegation of specific conduct, acts or failures to act, which may be deemed inconsistent with reasonable prudence under the circumstances.” Id. Thus a jury instruction on negligence, in addition to instructing the jury that it must find for the plaintiff if it finds the defendant was negligent and the negligence was the proximate cause of the injury, must also relate the acts of the defendant alleged to be negligent. Id. at 972 (citing Mills v. Balius, 254 Miss. 353, 360-61,180 So.2d 914, 916-17 (1965)). For example, in Mills, the court condemned as abstract a jury instruction stating that “if you find from a preponderance of the evidence that the Defendant, Edward Mills, was negligent and that his negligence was the proximate cause of the accident, then you should award to the Plaintiff the following [damages].” Mills, 254 Miss, at 359, 180 So.2d at 915-16. The court held that the instruction was erroneous because it failed to designate what acts by Mills constituted negligence under the circumstances. Id. at 361, 917.

¶21. A reason that a negligence instruction must be grounded in specific conduct is “that jurors must not be left to guess or speculate as to which of the defendant’s acts or omissions might have been negligent.” Williams, 657 So.2d at 1111. There is a danger that, without such instruction, the jury might grasp any act which it felt constituted a lack of reasonable care and adjudge the defendant guilty of negligence. Id. at 1112. To avoid this danger, the court has held that the jury must be instructed as to the ground or grounds of negligence alleged and which are supported by substantial proof. Id. Of course, because this Court reviews the jury instructions as a whole, an abstract negligence instruction will not be reversible error if the instructions in their entirety adequately establish the facts upon which the jury may find negligence. Flight Line, 608 So.2d at 1159. Accordingly, in Flight Line, while one instruction provided a boilerplate definition of negligence, the court concluded that the jury instructions, read as a whole, adequately instructed the jury on the facts undergird-ing the negligence claim and did not leave the jury with “a free floating definition of negligence.” Id.

¶22. The rule that, to avoid abstraction, a negligence instruction must specify the manner in which the defendant was negligent has been applied in the medical malpractice arena. McCarty v. Kellum, 667 So.2d 1277, 1287-88 (Miss.1995). In Kellum, the plaintiff-appellants argued that two jury instructions were impermis-sibly vague and abstract because they did not relate to the facts as shown by the evidence relating to the standard of care issue in the case. Id. at 1287. The two instructions stated:

The court instructs the jury that the word “negligence” as used in these instructions means the doing of some act which a minimally competent obstetrician treating a patient would not have done under the same or similar circumstances or the failure to do some act which a minimally competent obstetrician would have done under the same or similar circumstances. Therefore, if you believe that, during his care and treatment of Mrs. McCarty and the delivery of her baby, Dr. Kellum acted as a minimally competent obstetrician would have acted when faced with the same or similar circumstances, it is your duty to return a verdict for the defendants....
The court instructs the jury that physicians and surgeons are not guarantors of the success of any medical treatment provided to a patient. Likewise, a physician is not automatically liable for the occurrence of an undesirable result. A doctor is only required to provide a patient with that degree of care, skill, and diligence that would be practiced in the same or similar circumstances by a minimally competent physician in the same area of medicine. Therefore, if you find from a preponderance of the evidence that, during his care, treatment, and delivery of Lucas McCarty, Dr. Kellum provided him with that degree of care, skill and diligence which would have been provided by a minimally competent obstetrician, then you must return a verdict for [the defendants].

Id. The appellants argued that the instructions failed to provide the jury with any guidance in resolving the ultimate issue of how Dr. Kellum deviated from the standard of care. Id.

¶ 23. Applying the Freeze test, the court held that, while the instructions correctly stated the law, they were not made applicable to the facts of the case and were abstract. Id. at 1288. “Mere definition of the standard of care does not direct the jury to do anything.” Id. (citing T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 954 (Miss.1992)). The court stated that “the use of an abstract instruction without application of the specific facts of the case under consideration invites reversible error.” Id. (citing Harkins v. Paschall, 348 So.2d 1019, 1023 (Miss.1977)). The court opined that the instructions, considered alone, were inadequate. Id. However, the court found no reversible error because other jury instructions were given that adequately set out “specific facts and appropriate standards.” Id.

¶ 24. As argued by Beckwith, instructions C-7 and D-4 were substantially similar to the two instructions found to be abstract and inadequate in Kellum. The majority recognizes this argument, but finds no reversible error because “the instructions read as a whole adequately instructed the jury.” But critically, unlike in Kellum, in this case there were no other jury instructions given on negligence that would enable this Court to read the instructions as a whole and find that the jury was correctly instructed. While the grant of C-7 would not be reversible error had other instructions been given that provided the jury “with appropriate facts and specific standards,” in this case no other jury instructions on negligence were given.

¶ 25. Moreover, I must respectfully disagree with the majority’s reliance on McCarty v. Mladineo, 636 So.2d 377, 381 (Miss.1994) as authority for affirming this case. The supreme court did approve a jury instruction on medical negligence in Mladineo. But the purpose of the court’s approval of the instruction was to provide the bench and bar with a correct statement of the standard of care. The court did not address the issue of vagueness as it was not a matter before the court. And, Mladineo was decided over one year before Kellum, making Kellum not only the on-point precedent but also the more recent precedent on medical negligence jury instructions. I would find Kellum, not Mladineo, to be the controlling precedent. Pursuant to Kellum and the other aforementioned case law on negligence instructions, I would find that the grant of instructions C-7 and D-4 as the sole negligence instructions in this case constituted reversible error.

¶ 26. I also observe that, though Beck-with did not specifically object on this ground, instruction C-7 was an insufficient statement of the law. To prove a medical malpractice claim, a plaintiff must show: (1) the existence of a duty on the part of the physician to conform to a specific standard of conduct; (2) the specific standard of conduct; (3) that the physician’s breach of the duty was the proximate cause of the plaintiffs injury, and (4) that damages resulted. Barner v. Gorman, 605 So.2d 805, 808-09 (Miss.1992). In a medical malpractice case, it is essential that the jurors be instructed as to the duty owed by the physician to the plaintiff and that they must believe by a preponderance of the evidence that the defendant violated said duty by negligently doing, or failing to do, certain acts which proximately caused or contributed to the plaintiffs injuries. Trapp v. Cayson, 471 So.2d 375, 383 (Miss.1985).

¶ 27. Instruction C-7 properly instructed the jury on Dr. Shah’s duty of care. And, it correctly stated that the jury should find for Dr. Shah if it concluded Dr. Shah complied with the standard of care in his care and treatment of Helen Beckwith. However, instruction C-7 did not set out each and every element the jury had to find in order to reach a verdict for Beck-with. Instruction C-7 provided that the jury could return a verdict for Beckwith upon a finding that Dr. Shah breached the standard of care. Plainly, instruction C-7 did not charge the jury that to find for Beckwith it must also conclude that the breach proximately caused or contributed to Helen Beckwith’s injuries. Therefore, in addition to being abstract, instruction C-7 was an inadequate statement of the law that was uncorrected by any other jury instruction.

¶ 28. Finally, I briefly address the trial court’s refusal of Beckwith’s instruction P-15. The trial court found that some statements in P-15 were peremptory and invaded the jury’s role as the fact-finder. For example, P-15 stated that the jury could return a verdict for Beckwith if it found that Dr. Shah “failed to diagnose or recognize that Helen Beckwith had acute diverticulitis and performed colonoscopy” and that this failure proximately caused or contributed to Helen Beckwith’s death. The court found the instruction assumed as fact that Helen Beckwith suffered from acute diverticulitis, when at trial the question of whether she suffered from acute diverticulitis was a disputed fact. The court also stated that P-15 was an improper statement of the law.

¶ 29. The proffer of P-15 was an attempt by to have the jury instructed on the elements of medical negligence applied to the specific facts of the case and to cure the reversible error created by the grant of C-7 and D-4 alone. The supreme court has stated:

[Wjhere under the evidence a party is entitled to have the jury instructed regarding a particular issue and where that party requests an instruction which for whatever reason is inadequate in form or content, the trial judge has the responsibility either to reform and correct the proffered instruction himself or to advise counsel on the record of the perceived deficiencies therein and to afford counsel a reasonable opportunity to prepare a new, corrected instruction.

McKee v. State, 791 So.2d 804, 809(¶ 18) (Miss.2001) (quoting Harper v. State, 478 So.2d 1017, 1018 (Miss.1985)). This rule has been applied in civil actions. Byrd v. McGill, 478 So.2d 302, 305 (Miss.1985). After identifying inaccuracies in P-15, the trial court did not reform and correct P-15 or give Beckwith the opportunity to correct P-15 so that the jury could be given a proper instruction on negligence. This failure on behalf of the trial court resulted in the submission of the case to the jury upon inadequate instructions.

¶ 30. The jury instructions given in this case, considered as a whole, were abstract and did not inform the jurors of the specific acts or omissions by Dr. Shah which they could find to have breached the standard of care. For that reason, I would reverse and remand for a new trial.

BARNES AND ROBERTS, JJ., JOIN THIS OPINION.

      . The instruction provided:
      The court instructs the jury that if you find from a preponderance of the credible evidence in this case that during his care and treatment of Mrs. Plaintiff, Dr. Defendant has failed to provide her with that degree of care, skill, and diligence which would have been provided by a reasonably prudent, minimally competent physician administering mini-dose heparin therapy when faced with same or similar circumstances, and that such failure was the sole proximate cause or proximate contributing cause of Plaintiffs injuries, if any, then you shall return a verdict for the Plaintiffs.