author: COOKS, Judge. AMY, J.,

text:
    Jimmy VIDRINE, et al. v. CONSTRUCTORS, INC., et al.
    No. 06-544.
    Court of Appeal of Louisiana, Third Circuit.
    March 21, 2007.

      Gary A. Bezet, Kean Miller Hawthorne, D’Armond McCowan & Jarman, LLP, Baton Rouge, Louisiana, Robert Michael Kal-lam, Jennifer A. Wells, Preis, Kraft, & Roy, Lafayette, Louisiana, for Defendant/Appellant, Constructors, Inc.
    Joseph Richard Kutch, Pineville, Louisiana, for Secondary Plaintiff/Appellant, Spencer Bertrand.
    Howard N. Nugent, Jr., Alexandria, Louisiana, for Secondary Plaintiffs/Appellants, Jimmy Vidrine, Deborah Vidrine.
    Joseph J. Bailey, Provosty, Sadler, De-launay Fiorenza and Sobel, Alexandria, Louisiana, for Secondary Defendants/Appellants, Cleco Midstream Resources, LLC, Cleco Evangeline, Inc.
    Henry H. LeBas, Lafayette, Louisiana, for Intervenor/Appellee, Eagle Pacific Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

| STATEMENT OF THE CASE

This appeal arises from two asbestos exposure lawsuits. The Plaintiffs, welders, pipe fitters and their helpers, sued their employer, Constructors, IneJCon-structors), and Cleco, seeking damages for alleged exposure to asbestos during their employment with Constructors in the renovation of a Cleco utility plant. Eagle Pacific Insurance Company (Eagle), Constructor’s workers’ compensation insurer, filed a petition of intervention on the issue of insurance coverage and duty to defend. Eagle alleged the policy of insurance issued to Constructors’, which provided workers’ compensation coverage for work-related injuries during the policy period of January 1,1999 to January 1, 2000, excluded coverage for plaintiffs’ claims because, according to Plaintiffs’ petition, the last date of alleged exposure to asbestos occurred after the policy period. Eagle also asserted it had no duty to defend Constructors against Plaintiffs’ claims.

Constructors filed a motion for summary judgment asserting Plaintiffs’ exclusive remedy is in workers’ compensation. Cle-co filed a motion for summary judgment asserting Constructors was working as an independent contractor and Cleco owed no duty to employees of Constructors. Alternatively, Cleco asserted it was acting as a statutory employer and was immune from liability absent an intentional tort. Eagle filed a motion for summary judgment asserting it provided no workers’ compensation coverage under the policy and it had no duty to defend Constructors. The trial court granted Constructors’ and Cleco’s motion for summary judgment, finding the Plaintiffs’ remedy is exclusively limited by the workers’ compensation 14act. The trial court also granted Eagle’s motion for summary judgment finding it had no duty to provide a defense to Constructors.

The Plaintiffs appeal asserting the summary judgment in favor of Constructors and Cleco was improper because the evidence presented supports a claim of intentional tort. Constructors and Cleco appeal the summary judgment granted in favor of Eagle. For the reasons assigned below, we affirm, in part, and reverse, in part, and remand for further proceedings.

Intentional Tort

The Plaintiffs contend the circumstances of the alleged exposure supports a finding that Constructors and Cleco either knew asbestos was present on the work site or knew it was substantially certain that asbestos material would be inhaled and adhere to their clothing during the removal process. Thus, Plaintiffs contend their claim against Constructors and Cleco falls under the intentional tort exception to the workers’ compensation statute found in La.R.S. 2S:1032(B), which provides, in relevant part:

Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional tort.

In the Written Reasons for Judgment, the trial court defined this provision as follows:

In White v. Monsanto Co., 585 So.2d 1205,1208 (La.1991), the Supreme Court explained the meaning of “intentional act” under La.R.S. 23:1032(B):
The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Only |Rwhere the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional.
The term “substantially certain” has been interpreted to mean “nearly inevitable,” “virtually sure,” and “incapable of failing.” It requires more than a reasonable probability, even more than a high probability, that an accident or injury will occur. Mere knowledge and appreciation of risk does not constitute intent, nor does reckless or wanton conduct or gross negligence

The plaintiff has the burden of proving the work-related injury resulted from an intentional act. Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984). The jurisprudence has narrowly construed the intentional tort exception to the exclusivity clause in the workers’ compensation statute. “ ‘Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, or willfully failing to furnish a safe place to work, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.’ ” Reeves v. Structural Preservation Systems, 98-1795, p. 5 (La.3/12/99), 731 So.2d 208, 210, quoting Larson, 2 A Workmen’s Compensation Law, § 68.13 (1989). “[A]llegations of failure to provide a safe place to work, deficiently designed machinery and disregard of OSHA safety provisions, failure to correct unsafe working conditions, and failure to provide specifically requested safety equipment are not sufficient to invoke the intentional act exception of Revised Statute 23:1032(B) absent proof (or in the case of summary judgment, disputed issues of fact) of either defendant’s desire to harm plaintiff or defendant’s knowledge that his conduct would nearly inevitably cause injury to plaintiff.” Labbe v. Chemical Waste Management, Inc., 99-1562, p. 5 (La.App. 3 Cir. 3/29/00), 756 So.2d 613, 617; Reeves, 731 So.2d 208; Mouton v. Blue Marlin Specialty Tools, Inc., 01-648 (La. App. 3 Cir. 10/31/01), |fi799 So.2d 1215. In Mouton, the plaintiff was hired by Blue Marlin to clean and recondition used oilfield pipe and rental equipment. He sought medical treatment when a piece of metal became lodged in his eye. He also complained of severe headaches, dizziness, breathing difficulty, and chest pains. His physician wrote a note to his supervisors advising that he “ ‘avoid Varsol and other solvent exposures to skin or to strong fumes.’ ” Mouton, 799 So.2d at 1217. The plaintiff gave the note to his employer, but continued to perform the same duties. When he became ill, he sued his employer under the intentional tort exception. This court found the plaintiff failed to carry his burden of proof, stating: “The statute as enacted limits the availability of tort recovery only to employees whose injuries are caused by genuine intentional acts, anything less than intentional, whether it be gross negligence or violation of a safety rule, remains in workers’ compensation.” Id. at 1218.

The Plaintiffs attempted to carry their burden of proof by offering the affidavit of David Odom, a pipe fitter’s helper, employed by Constructors on the Cleco utility plant job from December 1999 to March 2000. Mr. Odom stated he and other employees of Constructors were “called upon and worked with or around asbestos or asbestos-containing products during their entire employment with CONSTRUCTORS, INC. so much so that my clothes and my fellow workers’ clothes from time to time were laden and covered with the asbestos fibers.... ” He further stated Constructors’ supervisor, Robert Moore, was aware the employees were exposed to asbestos during the job at the Cleco plant, but never “provided any employee of CONSTRUCTORS, INC. at the CLECO Project meaningful access to and/or use of any safety gear or safety equipment that would be indicated or appropriate to working around friable asbestos” Other affidavits submitted by Plaintiffs contained substantially similar statements.

|7The deposition testimony of the Plaintiff, Jimmy Vidrine, confirms the allegations of the affidavits that Constructors knew asbestos was present on the job-site and would require removal before the renovation work was begun. In fact, the contract between Cleco and Constructors disclosed that asbestos insulation was contained in some of the structures on the plant. However, Constructors insists it took measures to remove the asbestos pri- or to the renovations. Mr. Vidrine confirms the removal of the asbestos was subcontracted to AmPol and AmPol employees were present on the job site and removed asbestos insulation from the areas requiring renovation. Mr. Vidrine testified the areas within the plant containing asbestos, where Constructors’ employee would be working, were identified by Cleco, its engineering firm or by Robert Moore, Constructors’ construction supervisor. Mr. Vidrine also testified an OSHA inspection was performed before any work on the line was done. However, Mr. Vidrine testified he believes not all the asbestos was removed from the site and he contends he was exposed to asbestos as a result of work being done in connection with two drums scheduled for removal. He stated there was a two to three week time period when work was being done on the drums. Mr. Vidrine testified the asbestos insulation was disturbed from crew members walking on the drums and a substance, he believes was asbestos, fell from the drums onto the scaffolding. The substance remained there until a Constructors maintenance crew cleaned up the area. The following exchange took place regarding whether the substance was asbestos:

Q: Well, do you know that those drums, that that material was asbestos containing—
A: No, I did not.
Q: You did not know that?
A: No.
Q: You don’t know one way or the other?
A: I don’t know one way or the other.
Q: What about the line, do you know that for sure, one way or the other?
A: No. Do I know it for sure, no.

| sAlthough Mr. Vidrine could not positively state the substance was asbestos, it was rumored one of the employees performed a burn test on the insulation and it reacted positive for asbestos. Mr. Vidrine reported his concerns to Robert Moore. He testified as follows:

Q: And what did you tell them [the employees].
A: I told them I did not know. I would ask Robert Moore.
Q: Okay. And did you ask Mr. Moore?
A: Yes, I did.
Q: And what did he tell you?
A: He told me that it was not asbestos and I told him that the employees are concerned about it because they think it is asbestos.

Mr. Vidrine testified Robert Moore called AmPol back to perform further abatement work as per construction change orders. Mr. Vidrine also testified he believes they were exposed to lead-based paints during the course of the job. He stated AmPol was called in to remove lead-based paints on the pipes before welding was done. Mr. Vidrine testified he did not believe Mr. Moore intentionally exposed any employee to asbestos. Mr. Vid-rine testified as follows:

Q: Do you believe that Mr. Moore wanted you or the other employees to be injured in the workplace?
A: No.
Q: Do you believe that he thought you would be injured as a result of the work practices going on in the work place?
A: No.
Q: Why?
A: Why do I say I believe he didn’t think we would be injured?
Q: Yes.
A: Because I don’t think he looked for — and that’s Jimmy’s opinion.
Q: Okay.
A: I don’t think he looked farsighted enough to consider the long term effect of asbestos.
Q: So to the extent that you think that he ordered you and others to work in an environment where asbestos was present, do you think that was just a mistake in judgment that he made rather than an intentional decision to hurt you?
A: Yes, I would say that I don’t think anyone ever intentionally ever hurts anyone, in a construction environment.
Q: You’ve told us that at the beginning of the project there was some abatement work done by Am-Pol. And you’ve told us that from time to time afterwards, that Mr. Moore called Am-Pol out to do further I «abatement work.
A: (Indicating affirmative response.)
Q: Why do you think he decided to abate some of the asbestos material and decided not to abate others? The decision—
A: I think it was a cost issue.
Q: Is that just you speculating?
A: That’s me speculating.

Constructors submitted the affidavit of Robert Moore, construction supervisor on the Cleco project. Mr. Moore testified he oversaw the operations and work activities at the utility plant and to his personal knowledge, the Plaintiffs never worked with or around asbestos or asbestos-containing products during the course of the project. He also denied he or other Constructors supervisors refused any employee access to or use of any safety gear/equipment required by regulation or policy. With regard to intent, Mr. Moore testified he never “intended, wanted, expected or consciously desired” for the Plaintiffs to be exposed to asbestos or asbestos-containing product nor was he aware of anyone at Constructors or Cleco who had such an intention. Further, Mr. Moore denied he “had knowledge nor knew of any of the job duties and work activities placed upon any of the Plaintiffs ... which would result or were substantially certain to result in the contraction of asbestosis, cancer or any other type of occupational disease or illness.” Finally, Mr. Moore stated he was not aware and had no knowledge of a Constructors or Cleco personnel who instructed Plaintiffs to “perform job duties or work activities” substantially certain to result in the contraction of these conditions. In addition to Mr. Moore’s affidavit, Constructors offered the corroborating affidavit of Robby Toups, its supervisor of pipefitting operations on the Cleco project.

We agree with the trial court that Plaintiffs will be unable to support a claim under the intentional act exception of the workers’ compensation statute. It is undisputed asbestos insulation was present in areas of the Cleco structure contracted | infor renovation. The site was inspected by OSHA, and AmPol was called in to remove the asbestos. Even if Plaintiffs succeed in demonstrating the presence of some remaining asbestos in the work area, which Constructors vehemently denies, the Plaintiffs have not presented any facts to raise a genuine dispute that Constructors intentionally and consciously desired that they be exposed to asbestos or that Constructors knew, that by requiring Plaintiffs to continue on the job, exposure to asbestos was inevitable or substantially certain to occur.

In support of its motion for summary judgment, Cleco offered the affidavits of its own representatives stating that Constructors was responsible for the renovation work and denying any intent on the part of Cleco to expose Plaintiffs to asbestos. The Plaintiffs did not offer any evidence to refute the affidavits of Cleco. Accordingly, we affirm the decision of the trial court granting Constructors and Cle-co’s motion for summary judgment.

Insurance Coverage

Eagle filed a motion for summary judgment asserting it has no duty to indemnify Constructors’ and no duty to defend Constructors’ against Plaintiffs’ claims. Eagle relies on the following Exclusion Provision in the policy:

Bodily injury by disease must be caused or aggravated by the conditions of your employment. The employee’s last day of last exposure to the conditions causing or aggravating such bodily injury must occur during the policy period.

InEagle asserts the Plaintiffs’ petition and discovery responses allege exposure to asbestos beyond the last day of the policy period. The relevant portion of the Plaintiffs’ petition provides, as follows:

On December 12,1999 on a daily basis through the last date any work was performed by the Plaintiffs as employees of Constructors, Inc., the petitioners herein were exposed to foyable asbestos until after February 2, 2000, resulting in individuals requiring medical care (hereinafter, “the Exposure Allegations”).

Eagle cites Beason v. Red Ball Oxygen Company, Inc., 29,894 (La.App. 2 Cir. 10/29/97), 702 So.2d 26 and Schilling v. Bigelow Liptak Corp., 427 So.2d 452 (La. App. 1 Cir.1982), writ denied, 433 So.2d 181 (La.1983). in support of its position. We find these cases distinguishable from the present one. Beason involved two insurers of the same employer litigating coverage based on an exclusion provision identical to the one in the present case. However, in Beason, there was no dispute that the claimant suffered a work-related injury as a result of repeatedly performing arm, hand and wrist movements and no dispute as to “last injurious exposure” occurred. Wausau provided workers’ compensation coverage to Red Ball from April 1, 1991 to April 1, 1993. Thereafter, Red Ball secured workers’ compensation insurance from Louisiana Workers’ Compensation Corporation (LWCC). When the claimant filed a workers’ compensation claim against Red Ball, Wausau filed a third party demand against LWCC for contribution and indemnification based on the coverage dates of the policy. The claimant then amended its petition to add LWCC as a defendant. The appellate court granted summary judgment in favor of Wausau finding no dispute that the “claimant’s last injurious exposure to the injury causing conditions occurred on September 14, 1995, his last day of employment. Claimant does not dispute the fact that Wausau’s | ^insurance policy was not in effect at that time.” Beason, 702 So.2d at 28. Schilling also involved a dispute between two insurers. Coverage was determined following trial on the merits.

However, in this case, the allegations of the petition regarding work-related exposure to asbestos, are very much in dispute. In fact, Constructors alleges the Plaintiffs were not exposed to asbestos at all during their employment. If we accept Eagle’s argument, Constructors is placed in the paradoxical position of having to establish liability (exposure to injury causing asbestos) in order to obtain a defense and coverage under the policy. Even Eagle, in brief, acknowledges the dilemma: “In order to support a claim of coverage under the Eagle policy, Constructors would have to show that the exposure occurred and that it last occurred within the Eagle policy period.... Constructors has not shown that it occurred within the Eagle policy period. Accordingly, Constructors failed to meet its burden of proving that these claims fall within the Eagle policy. This in turn supports Eagle’s coverage defense .... ” We have examined the petition and find it does not allege the last day of Plaintiffs’ employment with Constructors. The pleadings do not foreclose a factual finding that one or several of the Plaintiffs’ last date of employment with Constructors was prior to December 1999 and that the bodily injury, if any, was not caused by post-policy exposure, but rather caused by exposure during the policy period. There can be no determination of Eagle’s obligation to indemnify Constructors until there is a final determination of (1) if and when Plaintiffs were exposed to asbestos, which are still disputed issues of material fact in this case, and (2) whether any post-policy period exposure caused their injuries, which again is a material disputed fact. Because we find genuine disputes of material facts exist in this case, the trial court erred in granting summary judgment in favor of Eagle. 113Accordingly, we reverse the decision of the trial court granting summary judgment finding no duty to defend and no coverage under the policy.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court finding Plaintiffs’ exclusive remedy is in workers’ compensation. We reverse the decision of the trial court granting Eagle’s motion for summary judgment finding Eagle had no duty to defend Constructors against Plaintiffs’ claims and no coverage under the policy. All costs of this appeal are divided equally among the parties.

AFFIRMED, IN PART; REVERSED, IN PART.

AMY, J., concurs in part and dissents in part and assigns reasons.

AMY, J.,

concurring in part, dissenting in part.

hi agree with the majority that summary judgment was appropriately entered in favor of Constructors and Cleco on the intentional tort issue. However, I respectfully dissent from the reversal of the summary judgment entered declaring that the Eagle policy offers neither coverage nor a duty to defend.

The Eagle policy period is listed as “1/1/99 to 1/1/00” and contains the following provision:

A. How This Insurance Applies
This workers compensation insurance applies to bodily injury by accident or bodily injury by disease. Bodily injury includes resulting death.
2. Bodily injury by disease must be caused or aggravated by the conditions of your employment. The employee’s last day of last exposure to the conditions causing or aggravating such bodily injury by disease must occur during the policy period.

(Emphasis added.)

|Jn addressing the duty to defend, the Louisiana Supreme Court has explained that:

[T]he duty to defend under an insurance agreement is broader than the scope of the duty to provide coverage. Steptore v. Masco Constr. Co., 93-2064 (La.8/18/94), 643 So.2d 1213, 1218. A court must examine the well-pleaded allegations of the plaintiffs petition to determine whether the plaintiffs allegations “unambiguously exelude[]” coverage. Id. Unless unambiguous exclusion of all of the plaintiffs claims is shown, the duty to defend arises. Id. Thus, the duty to defend does not depend upon the outcome of the suit, as it does where the purported source of the duty is an indemnity agreement; rather, where the pleadings disclose “even a possibility of liability” under the contract, the duty is triggered. Id.

Suire v. Lafayette City-Parish Consolidated Government, 04-1459, p. 18 (La.4/12/05), 907 So.2d 37, 51-52.

After reviewing the plaintiffs’ petitions in light of the above-standard, I find that the summary judgment was appropriately entered in favor of Eagle. The petition in Vidrine alleges that:

Petitioners show that sometime in early February of 2000, the exact date being unknown, certain white powdery material was uncovered at the work site and inquiries were made, out of an abundance of caution, as to the nature of the material in which various workers were performing their duties, especially if the material was asbestos ...
Petitioners show that other areas of the work site were covered in a white, powdery material and in March, April, May and June of 2000, the material was virtually everywhere and workers were removing it by hand in plastic trash bags and were covered in the material but were offered no protective gear of any type. Petitioners show that there were two distinct operations, one for Unit 6 and one for Unit 7 and that asbestos was present on both of the work sites.

(Emphasis added.) In Bertrand, the plaintiffs allege:

On December 12, 1999 on a daily basis through the last date any work was performed by the Plaintiffs as employees of Constructors, Inc., the petitioners herein were exposed to foyable [sic] asbestos until after February 2, 2000, resulting in individuals requiring medical care.

|s(Emphasis added.)

Both petitions allege exposure after the January 1, 2000 expiration date of the Eagle policy. As noted above, the workers’ compensation policy provided coverage for bodily injury by disease caused or aggravated by employment. However, "[t]he employee’s last day of last exposure to the conditions causing or aggravating such bodily injury by disease must occur during the policy period.” Thus, when the allegations of the plaintiffs’ petitions are accepted, see Suire, 907 So.2d 37 and Steptore v. Masco Constr. Co., 93-2064 (La.8/18/94), 643 So.2d 1213, 1218, coverage under the policy is unambiguously excluded and no corresponding duty to defend exists. The trial court correctly entered Eagle’s motion for summary judgment.

Neither do I find merit in Constructors’ claim that, notwithstanding the duty to defend question, genuine issues of material fact exist with regard to the policy’s coverage. Again, the policy language precludes Constructors’ argument in this regard. Insofar as exposure has been alleged, the policy language as to its term of applicability excludes coverage.

For these reasons, I would affirm the summary judgment entered in favor of Eagle.

      . Jimmy Vidrine, et al. v. Constmctors, Inc., et at, Civil No. 203,194 (Ninth Judicial District Court, Parish of Rapides) and Spencer Regan Bertrand, et al. v. Robert Moore, et al., Civil No. 207,105 (Ninth Judicial District Court, Parish of Rapides).

      . The Exclusion Provision in the Eagle policy embodies the last injurious exposure rule, which was articulated in Gales v. Gold Bond Bldg. Products, Div. of Nat. Gypsum Co., 493 So.2d 611 (La. 1986) and is applicable in occupational disease cases involving successive employers. Under the last injurious exposure rule “the last obligor during whose employment the employee was injuriously exposed to a cause of disease is liable for the whole compensation obligation.... The last injurious exposure rule is particularly useful for allocating liability in occupational disease cases, which often involve a number of employers and insurers.” Gales, 493 So.2d at 616. However, this rule does not require a claimant to chose between several potentially liable employers. "Any employer whose employment of a claimant has contributed causally to his disabling occupational disease is solidarily obligated to him fully for workers' compensation. As between successive employers contributing to an employee's disabling occupational disease, the employer during whose employment the employee was last injuriously exposed to the cause of the occupational disease is fully responsible for all workers' compensation due.” Id. at 612. Gales articulated a principle of substantive law which placed the whole of the obligation on the last employer and, therefore, on the workers’ compensation insurer of the last employer.


source: Caselaw Access Project

license: Public Domain

text:
    Spencer BERTRAND, et al. v. Robert MOORE, et al.
    No. 06-545.
    Court of Appeal of Louisiana, Third Circuit.
    March 21, 2007.
    Gary A. Bezet, Kean Miller Hawthorne, D’Armond McCowan & Jarman, LLP, Baton Rouge, Louisiana, for Defendant/Appellant, Constructors, Inc.
    Joseph Richard Kutch, Pineville, Louisiana, for Secondary PlaintiffAppellant, Spencer Bertrand.
    Howard N. Nugent, Jr., Alexandria, Louisiana, for Secondary Plaintiffs/Appellants, Jimmy Vidrine, Deborah Vidrine.
    Joseph J. Bailey, Provosty, Sadler, De-launay, Fiorenza and Sobel, Alexandria, Louisiana, for Secondary Defendants/Appellants, Cleco Midstream Resources, LLC, Cleco Evangeline, Inc.
    Robert Michael Kallam, Jennifer A. Wells, Preis, Kraft, & Roy, Lafayette, Louisiana, for Defendant/Appellant, Constructors, Inc.
    Henry H. LeBas, Lafayette, Louisiana, for Intervenor/Appellee, Eagle Pacific Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

It For disposition, see companion case of Jimmy Vidrine, et al. v. Constructors, Inc., et al., 06-544 (La.App. 3 Cir 0/21/07), 953 So.2d 193, 2007 WL 837114.

AMY, J., concurs in part and dissents in part and assigns reasons.

AMY, J.,

concurring in part, dissenting in part.

hi agree with the majority that summary judgment was appropriately entered in favor of Constructors and Cleco on the intentional tort issue. However, I respectfully dissent from the reversal of the summary judgment entered declaring that the Eagle policy offers neither coverage nor a duty to defend.

The Eagle policy period is listed as “1/1/99 to 1/1/00” and contains the following provision:

A. How This Insurance Applies
This workers compensation insurance applies to bodily injury by accident or-bodily injury by disease. Bodily injury includes resulting death.
2. Bodily injury by disease must be caused or aggravated by the conditions of your employment. The employee’s last day of last exposure to the conditions causing or aggravating such bodily injury by disease must occur during the policy period.

(Emphasis added.)

| yin addressing the duty to defend, the Louisiana Supreme Court has explained that:

[T]he duty to defend under an insurance agreement is broader than the scope of the duty to provide coverage. Steptore v. Masco Constr. Co., 93-2064 (La.8/18/94), 643 So.2d 1213, 1218. A court must examine the well-pleaded allegations of the plaintiffs petition to determine whether the plaintiffs allegations “unambiguously exelude[]” coverage. Id. Unless unambiguous exclusion of all of the plaintiffs claims is shown, the duty to defend arises. Id. Thus, the duty to defend does not depend upon the outcome of the suit, as it does where the purported source of the duty is an indemnity agreement; rather, where the pleadings disclose “even a possibility of liability” under the contract, the duty is triggered. Id.

Suire v. Lafayette City-Parish Consolidated Government, 04-1459, p. 18 (La.4/12/05), 907 So.2d 37, 51-52.

After reviewing the plaintiffs’ petitions in light of the above-standard, I find that the summary judgment was appropriately entered in favor of Eagle. The petition in Vidrine alleges that:

Petitioners show that sometime in early February of 2000, the exact date being unknown, certain white powdery material was uncovered at the work site and inquiries were made, out of an abundance of caution, as to the nature of the material in which various workers were performing their duties, especially if the material was asbestos ...
Petitioners show that other areas of the work site were covered in a white, powdery material and in March, April, May and June of 2000, the material was virtually everywhere and workers were removing it by hand in plastic trash bags and were covered in the material but were offered no protective gear of any type. Petitioners show that there were two distinct operations, one for Unit 6 and one for Unit 7 and that asbestos was present on both of the work sites.

(Emphasis added.) In Bertrand, the plaintiffs allege:

On December 12,1999 on a daily basis through the last date any work was performed by the Plaintiffs as employees of Constructors, Inc., the petitioners herein were exposed to foyable [sic] asbestos until after February 2, 2000, resulting in individuals requiring medical care. |a(Emphasis added.)

Both petitions allege exposure after the January 1, 2000 expiration date of the Eagle policy. As noted above, the workers’ compensation policy provided coverage for bodily injury by disease caused or aggravated by employment. However, “[t]he employee’s last day of last exposure to the conditions causing or aggravating such bodily injury by disease must occur during the policy period.” Thus, when the allegations of the plaintiffs’ petitions are accepted, see Suire, 907 So.2d 37 and Steptore v. Masco Constr. Co., 93-2064 (La.8/18/94), 643 So.2d 1213, 1218, coverage under the policy is unambiguously excluded and no corresponding duty to defend exists. The trial court correctly entered Eagle’s motion for summary judgment.

Neither do I find merit in Constructors’ claim that, notwithstanding the duty to defend question, genuine issues of material fact exist with regard to the policy’s coverage. Again, the policy language precludes Constructors’ argument in this regard. Insofar as exposure has been alleged, the policy language as to its term of applicability excludes coverage.

For these reasons, I would affirm the summary judgment entered in favor of Eagle.


author: WALLER, Presiding Justice, for the Court. DICKINSON, Justice,

text:
    Jerry McGEE v. STATE of Mississippi.
    No. 2003-CT-01686-SCT.
    Supreme Court of Mississippi.
    Jan. 18, 2007.
    Dickinson, J., specially concurred and filed opinion in which Smith, C.J., Waller and Cobb, P.JJ., and Diaz, Carlson, and Randolph, JJ., joined.

      Thomas W. Powell, attorney for appellant.
    Office of the Attorney General, by W. Daniel Hinchcliff, attorney for appellee.
   EN BANC.

ON MOTIONS FOR REHEARING ON WRIT OF CERTIORARI

WALLER, Presiding Justice, for the Court.

¶ 1. The motions for rehearing filed by Jerry McGee are granted. The previous opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Jerry McGee was convicted of two counts of armed robbery by a Hinds County Circuit Court jury and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. The Court of Appeals reversed the judgment of conviction. See McGee v. State, 953 So.2d 241, 2005 WL 2739827 (Miss.Ct.App.2005). We affirm the decision of the Court of Appeals, reverse the judgment entered and sentence imposed by the Circuit Court of the First Judicial District of Hinds County, and remand for a new trial in accordance with this opinion.

FACTS

¶ 3. On January 4, 2000, McGee approached two women with an unloaded .12 gauge pistol grip shotgun, which was wrapped up in a yellow cloth, and demanded their money. The women testified they never saw the gun, but they could tell it was a gun under the yellow cloth. The women screamed and ran, and McGee grabbed one of their purses. A nearby security guard heard the screams and saw McGee running toward him with a purse. When the guard gave chase, McGee threw the purse at the guard. The guard tackled McGee, and the shotgun fell to the ground. The guard was able to restrain McGee until police arrived. A Jackson police officer testified that he saw the shotgun on the ground with a yellow cloth wrapped around the handle. He retrieved the gun but left the yellow cloth. McGee signed a confession but denied that he ever exhibited the shotgun or pointed it at the victims.

¶ 4. In McGee’s first trial, a mistrial was declared because of a hung jury. The second trial resulted in a conviction. The Court of Appeals reversed the conviction, finding that gender discrimination by the State in the selection of the jury warranted a new trial under the plain error doctrine. We granted the State’s petition for writ of certiorari and now find that the Court of Appeals was correct in its decision.

DISCUSSION

BATSON VIOLATION

¶ 5. McGee raised a Batson challenge during voir dire arguing the State was impermissibly striking African-American jurors. The prosecutor gave gender as her race-neutral reason for striking a juror:

BY THE STATE: Your Honor, on panel number 5 juror number 4, Mr. Washington. I actually liked him. He has a college education, is well-educated except for the fact that his brother apparently was convicted in a drug trial in Madison County, and that did give me some concern. That was the reason I struck him.
BY THE COURT: But Ms. Deandrea’s [another juror] mama was convicted of a drug crime in Hinds County. You didn’t strike her.
BY THE STATE: I agree, Your Honor.
BY THE COURT: Tell me the difference between her and a black man whose [brother was convicted].
BY THE STATE: Well, Your Honor, it’s difficult to take it on a juror by juror basis. I took these jurors as a whole. There weren’t any specific things other than the way they-like I said with Mr. Washington, it concerned me that his brother was in Madison County.
Q. But Ms. Deandrea’s mama being convicted didn’t concern you?
A. And, Your Honor, the reason I don’t like trying to do these Batson challenges piecemeal is because it’s difficult because there are going to be jurors as we go along throughout this panel that I absolutely accept that are African-Americans that have relatives that have convictions. So it’s difficult for me to explain in one case when—
Q. Right now all I’m asking you is explain why you weren’t concerned about Ms. Deandrea’s mother who has this conviction for a drug offense.
A. Your Honor, that did concern me. The other reason — and it had nothing to do with Mr. Washington’s race — it’s that he’s a male. And I don’t know if gender is discrimination or something, but Ms. Deandrea is a female, so between the two, a female or a male, I would rather have a female, you know, taking criminal convictions, if that family member have [sic] criminal convictions.

¶ 6. McGee made no objection to the State’s use of gender as a race-neutral reason for excluding the juror. The Court of Appeals characterized defense counsel’s failure to object as a failure to raise a Batson issue and found that neglecting to raise such an objection would normally bar McGee’s argument concerning the State’s use of gender in jury selection. McGee, 953 So.2d at 243-45, 2005 WL 2739827, at *2-3; see also Weeks v. State, 804 So.2d 980, 987 (Miss.2001). Despite the purported procedural bar, the Court of Appeals reviewed the issue of the juror’s exclusion by relying on McGee’s right to raise the issue for the first time on appeal under the plain error doctrine. McGee, 953 So.2d at 246, 2005 WL 2739827 at *4. The Court of Appeals found the State’s on-the-record admission of gender discrimination cast doubt on the integrity of McGee’s entire trial and reversed his conviction and remanded the case for a new trial. We agree with the Court of Appeals’ decision.

¶ 7. Batson and its progeny anticipated a defendant’s struggle to show a prosecutor’s use of peremptory challenges to rid a jury of members of a specific group based on some distinct characteristic like race or gender. See Batson, 476 U.S. at 92-95, 106 S.Ct. 1712. See also J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). The language of Batson, however, clearly applies to situations where a pattern of discrimina-

tion is present in one party’s use of its peremptory challenges. See Batson, 476 U.S. at 96-98, 106 S.Ct. 1712; Horne v. State, 819 So.2d 1186, 1188 (Miss.2001); Randall v. State, 716 So.2d 584, 587 (Miss.1998). The present case, however, did not involve the systematic exclusion of males from a jury but only the exclusion of a single male juror. The State’s use of gender as a reason for the exclusion of a male juror from the jury panel violated McGee’s rights under the equal protection clause. See J.E.B., 511 U.S. at 130-31, 114 S.Ct. 1419.

¶ 8. The failure to object to the State’s actions during jury selection normally bars the defendant from raising the issue on appeal. Spicer v. State, 921 So.2d 292, 309 (Miss.2006) (citing Williams v. State, 684 So.2d 1179, 1203 (Miss.1996)); see also Chase v. State, 645 So.2d 829, 843-44 (Miss.1994) (where we applied a procedural bar to a Batson issue when the defendant failed to raise it during his trial). However, if there is a finding of plain error, a reviewing court may consider the issue regardless of the procedural bar. A review under the plain error doctrine is necessary when a party’s fundamental rights are affected, and the error results in a manifest miscarriage of justice. Williams v. State, 794 So.2d 181, 187-88 (Miss.2001). To determine if plain error has occurred, we must determine “if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.” Cox v. State, 793 So.2d 591, 597 (Miss.2001) (relying on Grubb v. State, 584 So.2d 786, 789 (Miss.1991); Porter v. State, 749 So.2d 250, 260-61 (Miss.Ct.App.1999)).

¶ 9. Allowing the State to exclude the potential juror based on his gender was indeed a deviation from sound precedent. See J.E.B., 511 U.S. at 139-41, 114 S.Ct. 1419; Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994). Therefore, we will review McGee’s claim of a Batson violation under the plain error doctrine. The record undoubtedly shows the prosecutor had a discriminatory intent in her attempt to prevent Washington from being seated as a juror.

¶ 10. A “defendant [has] the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. J.E.B., 511 U.S. at 129, 114 S.Ct. 1419. In J.E.B., the Supreme Court stated,

we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.

Id. (emphasis added). More specifically, the Court held “[ijntentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.” Id. at 130-31, 114 S.Ct. 1419. Moreover, “a consistent pattern of official racial discrimination is [not] a necessary predicate to a violation of the Equal Protection Clause.” Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 n. 14, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).

¶ 11. Based on the above precedent, we find that, because the State admitted that it was discriminating against a man in its use of a peremptory strike, McGee’s right to equal protection was violated. We further find that, based on the above precedent, only one instance — not a consistent pattern — of purposeful discrimination is enough to prove a discriminatory purpose. Because McGee’s right to equal protection was violated, the entire judicial process was infected, and we must reverse the judgment of conviction and remand for a new trial.

CONCLUSION

¶ 12. We affirm the judgment of the Court of Appeals, reverse the judgment entered by and the sentence imposed by the Circuit Court of the First Judicial District of Hinds County, Mississippi, and remand this case to the circuit court for a new trial in accordance with this opinion.

¶ 13. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS REVERSED, AND THIS CASE IS REMANDED TO THAT COURT FOR A NEW TRIAL.

SMITH, C.J., COBB, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON AND RANDOLPH, JJ. GRAVES, J., NOT PARTICIPATING.

DICKINSON, Justice,

Specially Concurring:

¶ 14. This case presents us with an unusually stark and clear episode of a prosecutor violating the fundamental constitutional rights of both the accused and a prospective juror by excluding the juror because of his gender. When challenged by the trial court as to whether her peremptory strike was racially motivated, the prosecutor unambiguously stated on the record that she was exercising a peremptory strike on Juror Washington, not because of his race, but because “he’s a male.” The prosecutor attempted to justify this discriminatory strike by saying, “[a]nd I don’t know if gender is discrimination or something, but Ms. Deandrea is a female, so between the two, a female or a male, I would rather have a female.... ” Suffice it to say, the prosecutor in this case engaged in blatant, impermissible discrimination.

¶ 15. The law pertaining to racial discrimination in jury selection applies equally to gender discrimination. Undeniably, lawful discrimination based upon gender in jury selection continued long after the United States Supreme Court held in Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664 (1880), that purposeful exclusion of jurors based on race violates the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution. In fact, the Strauder Court specifically held that the State “may confine the selection [of jurors] to males.” Id.

¶ 16. This wall of discrimination began to crumble, though, in 1946 when the Court held that, in states where local law allowed women to serve on juries in state court, women could not be excluded from the venire in federal court. Ballard v. United States, 329 U.S. 187, 193, 67 S.Ct. 261, 91 L.Ed. 181 (1946). The coup de grace was delivered in 1994 when the Court held in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) that “[discrimination in jury selection, whether based on race or on gender” violates the Equal Protection Clause of the Fourteenth Amendment. 511 U.S. at 140,114 S.Ct. 1419. The Court went on to state

the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man. As with race, the ‘core guarantee of equal protection, ensuring citizens that their State will not discriminate ..., would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ [gender].

Id. at 146, 114 S.Ct. 1419 (quoting Batson v. Kentucky, 476 U.S. 79, 97-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). The J.E.B. Court also stated that “[flailing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself.” 511 U.S. at 145, 114 S.Ct. 1419. Thus, any discussion of the law pertaining to racial discrimination in jury selection applies equally to discrimination based upon gender.

A pattern of discrimination is not required.

¶ 17. Although the Supreme Court’s decision in Batson postdated Strauder by over a century, Batson provided significant elaboration and the process to be followed when discrimination in jury selection is suspected. In Batson, the prosecutor used peremptory strikes to exclude all four African-Americans on the venire, and the defendant was convicted by an all-white jury. 476 U.S. at 83, 106 S.Ct. 1712. Relying on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Supreme Court of Kentucky affirmed the conviction, stating “a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire.” Batson, 476 U.S. at 84, 106 S.Ct. 1712. In reversing the Kentucky court, the United States Supreme Court made it crystal clear that to prevail on a “Batson challenge,” a defendant is not required to demonstrate a pattern or multiple instances of discrimination:

[T]his Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. These decisions are in accordance with the proposition, articulated in Arlington Heights v. Metropolitan Housing Development Corp., that ‘a consistent pattern of official racial discrimination’ is not ‘a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act’ is not ‘immunized by the absence of such discrimination in the making of other comparable decisions.’ 429 U.S. at 266 n. 14[, 97 S.Ct. 555]. For evidentiary requirements to dictate that ‘several must suffer discrimination’ before one could object, McCray v. New York, 461 U.S. [961] at 965[, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983)] (Marshall, J., dissenting from denial of certiorari), would be inconsistent with the promise of equal protection to all.

Batson, 476 U.S. at 95-96, 106 S.Ct. 1712 (first emphasis in original; remaining emphasis added).

¶ 18. In light of this clear guidance, a pattern of discrimination is not a prerequisite for demonstrating a Batson violation. The prosecutor’s admittedly discriminatory reasoning for striking Juror Washington was sufficient.

Batson protects the rights of both the defendant and the potential juror.

¶ 19. I wholeheartedly agree with the majority’s conclusion that Jerry McGee’s constitutional rights were violated. I also find the conclusion inescapable that the discriminatory exclusion of Juror Washington violated his own constitutional rights as well.

¶ 20. The Batson Court squarely addressed this issue. After establishing that “[p]urposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection,” id. at 86, 106 S.Ct. 1712, the Court went on to say

[r]acial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. See Thiel v. Southern Pacific Co., 328 U.S. 217, 223-24[, 66 S.Ct. 984, 90 L.Ed. 1181]. A person’s race simply ‘is unrelated to his fitness as a juror.’ Id. at 227[, 66 S.Ct. 984] (Frankfurter, J., dissenting). As long ago as Strauder, therefore, the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror. 100 U.S. at 308.

Batson, 476 U.S. at 87, 106 S.Ct. 1712. The Court later, in J.E.B., echoed this holding and applied it to discrimination based on gender:

In recent cases we have emphasized that individual jurors themselves have a right to nondiscriminatory jury selection procedures. [Citations omitted.] Contrary to respondent’s suggestion, this right extends to both men and women. See Mississippi Univ. For Women v. Hogan, 458 U.S. [718] at 723[, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982)] (that a state practice ‘discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review').... All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination.

J.E.B., 511 U.S. at 140-42, 114 S.Ct. 1419. Thus, it is beyond debate that the prosecutor in this case violated not only the constitutional rights of Jerry McGee, but also those of Juror Washington.

Plain error—certain errors are never harmless

¶21. The exclusion of Juror Washington based on his gender was, indeed, plain error. Significantly, the defendant, in this ease, was not required to demonstrate that the constitutional violation prejudiced the outcome of his trial.

¶ 22. First, in the context of harmless error analysis, the United States Supreme Court has categorized constitutional errors into two groups: trial errors and framework errors. Trial errors are those “which occur[ ] during the presentation of the ease to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determined whether its admission was harmless beyond a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 307—08, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). These errors are subject to harmless error analysis.

¶ 23. Certain errors, however, may never be considered harmless. These include constitutional deprivations involving a “structural defect affecting the framework within which the trial proceeds,” rather than an error in the trial itself. Id. at 310, 111 S.Ct. 1246. Clearly, the discriminatory striking of a juror based on his gender directly impacts the integrity of the judicial process and “affect[s] the framework within which the trial proceeds.” Id. Cf. Vasquez v. Hillery, 474 U.S. 254,106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (unlawful exclusion of African-Americans from grand jury is not subject to harmless error analysis).

¶ 24. Where, as here, a clear, unambiguous violation of a defendant’s fundamental constitutional right affects the structure of the trial itself, this Court will not excuse that violation because of the defendant’s inability or failure to demonstrate prejudice. Were such a demonstration required, how would any defendant in McGee’s position meet such a burden? The argument that excluding one male is permissible where other men on the jury can represent the “male point of view” is anathema to the United States Supreme Court’s guiding principle in J.E.B. that gender stereotypes and generalizations have no place in the courtroom. 511 U.S. at 140, 114 S.Ct. 1419. A defendant cannot be called upon to pinpoint or demonstrate what prejudice he suffered in the outcome of his trial when the framework of the trial itself is compromised.

¶ 25. This Court has held “that a finding of plain error is necessary when a party’s fundamental rights are affected.” Williams v. State, 794 So.2d 181, 188 (Miss.2001) (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991)). The United States Supreme Court has also categorized as plain error “those errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Young, 470 U.S. 1,15,105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). Regardless of whether a defendant can demonstrate prejudice, we will not excuse discrimination when it infects our judicial system:

Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. The litigants are harmed by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings. See Edmonson, 500 U.S. at 628[, 111 S.Ct. 2077] (discrimination in the courtroom ‘raises serious questions as to the fairness of the proceedings conducted there.”). The community is harmed by the State’s participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders.

J.E.B., 511 U.S. at 140,114 S.Ct. 1419.

¶ 26. There must be clear and certain consequences to the blatant violation of a fundamental constitutional right. To hold otherwise is to free the State to commit those violations so long as the case against the defendant is strong. This Court must refuse to emasculate fundamental rights by expanding exceptions to create a disincentive for the protection of those rights. The erosion of constitutional rights inevitably leads to ignorance by some that those rights even exist. As the United States Supreme Court has explained, “[t]he message it sends to all those in the courtroom, and all those who may later learn of the discriminatory act, is that certain individuals, for no reason other than gender, are presumed unqualified by state actors to decide important questions upon which reasonable persons could disagree.” Id. at 141, 114 S.Ct. 1419. This Court will not permit such a message to be broadcast to the citizens of Mississippi.

¶ 27. Finally, Juror Washington had a constitutional right not be excluded from jury service simply because of his gender. As stated above, “individual jurors themselves have a right to nondiscriminatory jury selection procedures.” Id. at 140-41, 114 S.Ct. 1419. However, even if we were to require Juror Washington to demonstrate prejudice in this case, the prejudice is quite obvious; he was sent home.

¶ 28. For the reasons stated, I concur with the majority’s decision to affirm the Court of Appeals’ judgment, reverse the trial court’s judgment, and remand this case for a new trial, free of violation of the constitutional rights of the defendant and the prospective jurors.

SMITH, C. J., WALLER AND COBB, P.JJ., DIAZ, CARLSON AND RANDOLPH, JJ., JOIN THIS OPINION.

      . When a Batson challenge is raised, a three-pronged inquiry ensues. First, the party objecting to the peremptory challenge "must make a prima facie showing that race was the criteria for the exercise of the peremptory strike.” Lynch v. State, 877 So.2d 1254, 1270-71 (Miss.2004). Second, the burden shifts to the party who exercised the challenge to give a race-neutral reason for exercising the peremptory strike. Id. at 1271. Finally, the trial court determines whether the party objecting to the peremptory strike has shown the presence of purposeful discrimination in the strike’s use. Id. at 1272. See Batson v.

        Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Mississippi continued to prohibit women from serving on juries as late as 1961. See J.E.B. v. Alabama ex reí T.B., 511 U.S. 127, 132 n. 3, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (citing Hoyt v. Florida, 368 U.S. 57, 62, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961)).

      . In fact Batson overruled Swain to the extent that case required a petitioner to establish a systematic pattern of discrimination in jury selection in order to prevail. Batson, 476 U.S. at 100, 106 S.Ct. 1712.

      . While a "pattern” of strikes against a set of jurors can give rise to an inference of discrimination, "the prosecutor's questions and statements during voir dire examination and in exercising his challenges may [also] support ... an inference of discriminatory purpose.” Batson, 476 U.S. at 97, 106 S.Ct. 1712 (emphasis added). This is precisely the scenario presented for our consideration in this case.

      . Indeed, the prosecutor in this case was completely unaware that gender discrimination was unconstitutional.


author: GRAVES, Justice, for the Court.

text:
    Roy R. GATLIN and Nelda T. Gatlin v. SANDERSON FARMS, INC.
    No. 2005-CA-01056-SCT.
    Supreme Court of Mississippi.
    Feb. 8, 2007.
    Rehearing Denied April 19, 2007.

      Diaz and Easley, JJ., dissented.
    John Dudley Butler, Benton, Lawrence E. Abernathy, III, Laurel, attorneys for appellants.
    Ryan Jeffrey Mitchell, Richard 0. Bur-son, Laurel, attorneys for appellee.
   EN BANC.

GRAVES, Justice, for the Court.

¶ 1. This appeal arises from a contract between a chicken processor, Sanderson Farms Inc. (Sanderson), and a chicken grower, Roy Gatlin, for Gatlin to grow broiler chickens. After Gatlin admitted that he had breached the terms of the contract, Sanderson immediately terminated the contract. Gatlin filed suit and the jury returned a verdict in favor of Sander-son. Subsequently, Gatlin filed this appeal. Because the jury properly found that Gatlin was in breach of contract and that Sanderson rightfully terminated the contract, we affirm the decision of the trial court.

FACTS

¶ 2. Sanderson and Gatlin entered into a contract whereby Sanderson would deliver “baby broiler chicks” to Gatlin to raise in chicken houses on his property. Gatlin would grow and care for the flocks in accordance with Sanderson standards until the chickens reached marketable weight. The contract further set out the manner in which all dead birds would be disposed of and that all disposal would be in compliance with federal, state and local laws and regulations. In 1997, the Gatlin farm had a high mortality rate apparently due to e-coli, “spiking disease,” and other infections. Although there is no suggestion that Gatlin was to blame for the high mortality rate, evidence was presented that Gatlin failed to properly dispose of the bird carcasses. After receiving complaints of illegal disposal, a Sanderson inspector found the skeletal remains and feathers of numerous chickens scattered in a thicket on Gatlin’s property. Gatlin admitted that he dumped the carcasses in violation of both his contract and the regulations of the Mississippi Board of Animal Health. Sanderson immediately terminated Gat-lin’s contract. Subsequently, Gatlin sued Sanderson for breach of contract in Jones County Circuit Court. The jury returned a verdict in favor of Sanderson and Gatlin perfected this appeal.

DISCUSSION

¶ 3. We have implemented a three-tiered process for contract interpretation. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 351-53 (Miss.1990). First we look to the “four corners” of the contract and at the language the parties used in expressing their agreement. Id. at 352. “When an instrument’s substance is determined to be clear or unambiguous, the parties’ intent must be effectuated.” Id Where the instrument is not so clear, we “will, if possible, harmonize the provisions in accord with the parties’ apparent intent.” Id. If we are unable to determine the parties’ intent from examining the four corners of the instrument, we may apply the canons of contract construction. Id. If the intent is still unclear, we may then consider parol or extrinsic evidence. Id.

¶ 4. Gatlin asserts that Sanderson breached its contract with Gatlin by immediately terminating him for allegedly violating the law when he had not been found in violation by the Board of Animal Health. Further, Gatlin argues that Sanderson had a duty to exhaust other contractual remedies involving Farm Management Deficiencies pursuant to the Broiler Growing Program. We disagree.

¶ 5. The contract or Broiler Production Agreement (Agreement) in this matter specifically states the terms of the contract and the parties involved. The Agreement clearly sets out the manner for disposing of dead birds:

9. BIRD DISPOSAL. The Grower, at his or her expense, agrees to dispose of all dead birds and used litter in a timely manner in compliance with all federal, state and local laws and regulations and the Broiler Growing Program. In the event of a catastrophic loss, Sand-erson will assist the Grower in disposing of dead birds.

¶ 6. The Agreement also clearly states the grounds for termination, including, in applicable part:

23. IMMEDIATE TERMINATION.
This Agreement may be immediately terminated by Sanderson at any time upon written notice for any of the following reasons:
c. The Grower fails to comply with applicable federal, state, or local laws or regulations....
The Agreement further provides:
35. COMPLETE AGREEMENT. The Grower acknowledges that this Agreement is the complete understanding between the parties with regard to the subject matter hereof and no representation or promise inconsistent with any provisions of the Agreement has been made to the Grower by any employee of Sanderson.... Although the Broiler Growing Program attached hereto is an integral document in the relationship between the Grower and Sand-erson, in the event any provision of this Agreement conflicts with or is inconsistent with any provisions of the Broiler Growing Program, the provisions of this Agreement will control.

¶ 7. Gatlin signed the Agreement indicating that he “DOES HEREBY DECLARE THAT THE TERMS OF THIS AGREEMENT HAVE BEEN COMPLETELY READ AND FULLY UNDERSTOOD.”

¶ 8. Attached to the Agreement is a document entitled “Broiler Growing Program — Overview,” which includes provisions on Culling and Dead Bird Disposal and Evaluation Procedures, including Farm Management Deficiencies. However, there are no such provisions in the Broiler Production Agreement. Those provisions are included only in the Broiler Growing Program. More importantly, we reiterate that the Broiler Production Agreement clearly states: “Although the Broiler Growing Program attached hereto is an integral document in the relationship between the Grower and Sanderson, in the event any provision of this Agreement conflicts with or is inconsistent with any provisions of the Broiler Growing Program, the provisions of this Agreement will control.” (Emphasis added).

¶ 9. The contract clearly states that the Agreement is controlling. That Agreement includes the language set out previously herein as to the disposal of dead birds and the grounds for termination. There is no ambiguity in the Agreement. See Pursue Energy Corp., 558 So.2d at 352 (Miss.1990). The intent of the parties is clear. The language of the contract is not subject to more than one fair reading. Therefore, Sanderson, had the right to immediately terminate the contract.

¶ 10. Gatlin argues that Sanderson had to invoke some disciplinary procedure and that there had to be a finding of a violation by the State Board of Animal Health before Sanderson could successfully assert that he had breached the contract. Such an argument, absent a specific contractual provision requiring that the State Board of Animal Health has investigated the matter and found the grower to be in violation, is meritless. The Agreement clearly states the manner for bird disposal and that the “Agreement may be immediately terminated by Sanderson” if the “Grower fails to comply with applicable federal, state, or local laws or regulations.” While it may be unfortunate for Gatlin, the contract does not include any language stating that only the Mississippi Board of Animal Health or some other administrative, regulatory or law enforcement agency, can determine whether the grower has failed to comply with applicable federal, state, or local laws or regulations. In fact, the Agreement doesn’t even use the terms “violated” or “violation” as used by Gatlin, but rather the Agreement states “fails to comply.”

¶ 11. Regulation 13 of the Mississippi Board of Animal Health states: “No dead poultry, carcasses, offal or any parts of any dead poultry shall be disposed of by throwing or leaving along public roads, in fields or woods or in any place; but must be properly disposed of in an approved incinerator, compost system, or pit.” Witnesses saw the carcasses illegally dumped on Gatlin’s property. More importantly, Gatlin admitted that he illegally disposed of the carcasses, but argues that Sander-son should not be able to hold that against him because he was never cited by the Mississippi Board of Animal Health. Clearly, such evidence supported Sander-son in exercising the right to determine that Gatlin breached the contract. Further, under the terms of the contract, such evidence gave Sanderson the right to immediately terminate the contract. To suggest otherwise, particularly in this day of increased health and safety awareness, is not only irresponsible, but absurd.

¶ 12. Gatlin confuses Sanderson’s finding that he had breached the terms of the contract with Sanderson finding him in violation of a state regulation and imposing the appropriate punishment for said violation. Sanderson did not issue a citation, levy a fine or impose any other punishment for the illegal disposal of dead poultry pursuant to Regulation 13 of the Mississippi Board of Animal Health. Sanderson was not acting in the capacity of the Mississippi Board of Animal Health. Instead, Sanderson was acting in the capacity of a party to the contract, and, as a party to the contract, Sanderson had every right to determine that the other party was in violation of the terms of the contract.

¶ 13. Accordingly, we find that the jury properly found that Gatlin was in breach of contract and that Sanderson properly terminated the contract. Further, we find the remaining issues raised by Gatlin to be without merit. The verdict of the jury and the judgment of the trial court are affirmed.

¶ 14. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND EASLEY, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.


author: RANDOLPH, Justice,

text:
    Ricky CARTER a/k/a Rickie Carter v. STATE of Mississippi.
    No. 2005-KA-01589-SCT.
    Supreme Court of Mississippi.
    April 5, 2007.
    Diaz and Graves, JJ., dissented.

      Pearson Liddell, Jr., attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   RANDOLPH, Justice,

for The Court.

¶ 1. Following a jury trial in the Circuit Court of Oktibbeha County, Ricky Carter was convicted of attempted burglary of a dwelling and sentenced, as a habitual offender, to serve a term of twenty-five (25) years in the custody of the Mississippi Department of Corrections (“MDOC”). After Carter’s motion for new trial or J.N.O.V. was denied by the circuit court, he filed notice of appeal. On appeal, Carter raises the following assignments of error: (1) whether the circuit court erred by admitting Carter’s prior felony convictions into evidence and (2) whether the circuit court erred in instructing the jury that it could consider Carter’s prior felony convictions as motive when they had not been introduced for that purpose.

FACTS

¶ 2. Paul Buckley lived on a secluded, gravel road in Oktibbeha County, Mississippi. On January 7, 2003, at approximately 3:00 p.m., Buckley arrived home early from work and sat down at the desk in his living room. Buckley’s desk was not visible from any windows with the blinds open. Soon thereafter, Buckley:

heard the rear door.... []t was locked, and the doorknob was not locked. And I heard the distinct sound that it was being tried and forced open but the deadbolt caught it.[ ] I thought it might be my wife coming home ... early. So, I walked around ... and I saw a man going around this way quickly from the door and it looked like he was trying to look into [the house through] this [bay] window. I went to the phone ... [because I was immediately alarmed and called 911.
Then, I came back at this door to make sure it was locked. And he came around and then got a few feet away and saw me, and he was startled. Then, he became very agitated that I was there.

According to Buckley, the accused began “talking very quickly ... saying that he was looking for a job, and wasn’t this the 16th section road? And I said, no. He said he was trying to find a plumber named David Montgomery, I think.” Remaining on the line with 911, Buckley told Carter through the door that he had called the police. At that point, Carter “said a few more things about he was just looking for a job from this plumber.”

¶ 3. Officer Tommy Whitfield, a deputy sheriff with the Oktibbeha County Sheriffs Department at the time of this incident, testified that as he pulled into Buckley’s driveway, he “met [Carter] coming across the front yard, toward my car.” At that point, Officer Whitfield:

asked him who he was. He gave me a name. I don’t remember what name he gave me. And I started to call it in, and then he stopped me and told me that he had lied to me, that that wasn’t his real name. He said that he didn’t give me his real name because ... he thought there was a warrant for his arrest from Clay County. He gave me his real name. I called it in and ha[d] them chee[k] it, and there was a warrant from Clay County. So, I went ahead and placed him in custody....

¶ 4. Once Officer Whitfield left with Carter in custody, Buckley went into his back yard and noticed that a gate which he “never left ... open” and only used rarely “for taking debris out of [his] garden[,]” was open. While Buckley admitted that he had not checked if the gate was open or closed when he arrived home that day, he further stated that he had probably not used the gate “for two or three months.”

¶ 5. According to Officer Whitfield, while Carter was in custody, he:

told me that he had caught a ride out there with a person who he had known since high school, Ken Wilkerson [sic]. He said it was his classmate and he had given him a ride out there to try to talk to a David Montgomery about a job. I didn’t know Ken personally. But I knew ... one of the corrections officer[s] knew him. So, I had him ... try to get in touch with Mr. Wilkinson to see if that was true....

Later that afternoon, Wilkinson received a phone call from the Oktibbeha County Sheriffs Department while he was in Mobile, Alabama. He stated that he had left for Mobile around 10:00 a.m. that day and had not seen Carter. Furthermore, Wilkinson testified that while he and Carter were classmates at Starkville High in the mid-1980’s, he had not seen Carter in years. Officer Whitfield then:

had the dispatcher’s pul[l] up the driver records for Mississippi for David Montgomery’s. There were no David Montgomery’s in Oktibbeha or Clay County. I checked the ... 911 books and the 911 center that have who owns houses in Oktibbeha County, there were no David Montgomery’s listed in any of the registers.

¶ 6. On July 10, 2003, an indictment was filed against Carter, stating:

Ricky Carter ... on or about [the] 7th day of January 2003 ... did unlawfully, wilfully, feloniously, and burglariously attempt to break and enter the dwelling house of Paul Buckley, with the intent to unlawfully, willfully, feloniously, and burglariously take, steal, and carry away the property that was then inside, and in furtherance thereof, did the following overt acts:
1. by going to the residence of Paul Buckley;
2. by attempting to open the back door of the said residence,
but was intercepted and failed therein; in violation of MCA § 97-17-23[ ]....

On November 5, 2003, Carter entered a plea of not guilty to the charge of attempted burglary. Thereafter, on February 5, 2004, the State filed a motion to amend the indictment for the purpose of “including] the Habitual Offender language pursuant to Section 99-19-81 M.C.A. (1972)[ ]

In support thereof, the State sought to introduce evidence of six of Carter’s prior convictions.

¶ 7. The jury trial commenced on July 26, 2005, in the Circuit Court of Oktibbeha County. Following testimony, the State moved to introduce evidence of Carter’s prior convictions. In so doing, the State argued that:

[Carter’s] prior convictions would prove to show his intent along with other factors ... that the Court has already heard: [c]oming in through the back gate, not using the front door, things of that nature that Mr. Buckley has obviously already testified to.... [T]hese should be admissible to prove solely the intent of this defendant. It is not use[d] for character evidence.... And the Court can give the jury a limiting] instruction to that effect.

(Emphasis added). In granting the State’s motion, the circuit court determined that:

in this particular case, given the facts thus far, the intent of the defendant is greatly an issue.... [This evidence] is extremely probative of his intent, a necessary element, and that outweighs the prejudicial effect in this case.... If requested, the limiting instruction will be given to the jury that they can only use prior convictions to show intent.

¶ 8. Evidence of Carter’s prior convictions included:

(1) An indictment in Cause # 11-068 in Oktibbeha County charging Carter with automobile burglary with the intent to take, steal, and carry away. Attached was a sentencing order from February 5, 1986, whereby Carter withdrew his plea of not guilty and entered a plea of guilty to the charge of burglary and was sentenced to serve seven (7) years in the custody of the MDOC.
(2) An indictment in Cause # 11-069 in Oktibbeha County charging Carter with automobile burglary with the intent to take, steal, and carry away. Attached was a sentencing order from February 5, 1986, whereby Carter withdrew his plea of not guilty and entered a plea of guilty to the charge of burglary and was sentenced to serve seven (7) years in the custody of the MDOC, to run concurrently with Cause # 11-068.
(3) An indictment in Cause # 11-622 in Oktibbeha County charging Carter with grand larceny, specifically with the intent to take, steal, and carry away a 1988 Nissan Sentra. Attached was a sentencing order from April 24, 1989, whereby Carter withdrew his plea of not guilty and entered a plea of guilty to the charge of grand larceny and was sentenced to serve three (3) years in the custody of the MDOC, “to run consecutively with the terms of [Carter’s] sentence under revocation of his probation.”
(4) An indictment in Cause # 12-480 in Oktibbeha County charging Carter with burglary of a dwelling with the intent to take, steal, and carry away. Attached was a sentencing order from October 20, 1992, whereby a jury found Carter guilty as charged and he was sentenced as a habitual offender to serve ten (10) years in the custody of the MDOC, with the additional condition that “such sentence shall not be reduced nor suspended nor shall [Carter] be eligible for parole or probation.”
(5) An indictment in Cause # 6876 in Clay County charging Carter with burglary and larceny of a business with the intent to take, steal, and carry away the property of another. Attached was a sentencing order from October 14, 1994, whereby Carter withdrew his plea of not guilty and entered a plea of guilty to the charge of burglary and larceny of a business and was sentenced to serve seven (7) years in the custody of the MDOC, to run concurrently with the sentence he was serving from Cause # 12-480 in Ok-tibbeha County, with the additional condition that “such sentence shall not be reduced nor suspended nor shall [Carter] be eligible for parole or probation.”
(6) An indictment in Cause #8496 in Clay County charging Carter with the felony of taking a motor vehicle with the specific intent of taking possession of the property of another. Attached was a sentencing order from April 6, 2005, whereby Carter withdrew his plea of not guilty and entered a plea of guilty to the charge of taking of an automobile in violation of Miss.Code Ann. Section 97-17-42 and was sentenced to serve sixteen (16) months in the custody of the MDOC.

¶ 9. After granting the State’s motion to introduce Carter’s prior convictions, the circuit court granted the State’s motion to amend the indictment to reflect Carter’s status as a habitual offender. Furthermore, the circuit court overruled Carter’s motion for directed verdict. Thereafter, the jury found Carter “guilty as charged” and, by virtue of Miss.Code Ann. Section 99-19-81 (Rev.2006), the circuit judge stated “the only sentence that I am authorized to impose is a sentence of 25 years in the [MDOC] as a habitual offender, not to be reduced by any early release whatsoever.” Carter filed his motion for new trial or J.N.O.V., which was subsequently denied by the circuit court. Carter timely filed notice of appeal.

ISSUES

¶ 10. This Court will consider:
(1) Whether the circuit court erred by admitting Carter’s prior felony convictions into evidence.
(2) Whether the circuit court erred in instructing the jury that it could consider Carter’s prior felony convictions as motive when they had not been introduced for that purpose.

ANALYSIS

I. Whether the circuit court erred by admitting Carter’s prior felony convictions into evidence.

¶ 11. Mississippi Rule of Evidence 404(b) provides that:

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

Miss. R. Evid. 404(b). In admitting evidence of Carter’s prior felony convictions for the limited purposes of showing intent, the circuit court determined that “in this particular case, given the facts thus far, the intent of [Carter] is greatly an issue.” (Emphasis added). That determination was permissible under Miss. R. Evid. 404(b). See Miss. R. Evid. 404(b) (“may ... be admissible for ... proof of ... intent....”). Moreover, the circuit court analyzed the evidence under Miss. R. Evid. 403 and found that it was “extremely probative of [Carter’s] intent, a necessary element, and that outweighs the prejudicial effect in this ease.” “[O]ur task as an appellate court reviewing a Rule 403 determination is not to engage anew in the Rule 403 balancing process. Rather, this Court must simply determine whether the trial court abused its discretion in weighing the factors and admitting or excluding the evidence.” Baldwin v. State, 784 So.2d 148, 156 (Miss.2001) (citations omitted) (emphasis added).

¶ 12. Carter concedes that “[b]ecause of the closeness of the evidence and the inchoate nature of the crime, the jury’s key duty was having to determine [Carter’s] intent, namely, whether it was burglarious or whether he was merely a trespasser gone horribly awry.” However, he argues that prior convictions are inherently prejudicial and, therefore, “the trial court should not have allowed the admission of the prior convictions because their probative value was far outweighed by the unfair prejudice standard.” In so arguing, Carter attempts to distinguish his case from Jones v. State, 904 So.2d 149 (Miss.2005).

¶ 13. In Jones, the defendant: approached the home of Kevin Voyles and knocked on the door. Voyles testified that it was his belief that Jones was attempting to break into his house. Jones admitted he may have knocked too hard, but denied kicking, or in any other way, attempting to force entry. Voyles, on the other hand, testified that Jones banged and kicked on his door to the point that it scared him. Voyles called 911 and then retrieved a gun. Voyles also testified that he peered through the window and saw Jones with a knife in his hand.
The investigating officer testified that the door had dents and scratches on it, particularly around the peephole. Items were knocked off the interior wall of the house and were found lying on the floor near the door. The peephole of the door was also found lying on the floor inside the house.
When first questioned, Jones claimed that he knew nothing about the incident. Later, Jones admitted that he was at the residence, but said he was there in an attempt to retrieve water for his overheated car.... [Tjhere was no corroborating evidence that supported Jones’[s] claim that he had radiator problems on the specific day of the incident.
Jones was convicted of attempted burglary of a dwelling.

Id. at 151-52. In Jones, the State “introduced evidence of Jones’[s] prior convictions for burglary and attempted burglary solely for the purpose of proving his intent to commit larceny in the Voyles’ home.” Id. at 152. This Court found that “[i]ntent was shown by the fact that Jones admitted (by pleading guilty) to five prior burglaries and to one attempted burglary.... The prior convictions tend to prove, along with other facts, that Jones’[s] intent was to burglarize the house, not to obtain help.” Id. at 153. As such, this Court concluded that the circuit court did not abuse its discretion in admitting evidence of Jones’s prior convictions. See id.

¶ 14. Carter argues that Jones presented a “ ‘perfect storm’ of facts that would reasonably allow prior crimes into evidence against a Defendant to show intent without unfairly prejudicing the Defendant.” In support thereof, Carter notes that Jones had “six times previously admitted to burglary or attempted burglary with the intent to commit larceny” and that the door which Jones admitted to “attempting to open had been scratched and kicked, apparently with such force to dislodge the peephole our of the door and shaken items from the wall.” Carter contends both that Jones’s actions were far more egregious than his, as well as that two of his prior convictions which were admitted by the circuit court are distinguishable from the guilty pleas involved in Jones. First, Carter maintains he did not plead guilty, but was convicted by a jury, in his October 20, 1992, conviction for burglary of a dwelling. For this reason, he insists that “the essential element for the Jones Court justifying allowance into evidence to show intent, admission of larcenous intent in a burglarious situation, was absent.” Second, Carter argues that Ms April 6, 2005, conviction for taking a motor vehicle can be committed “without a requisite mens rea or intent.” As such, he argues that while his “guilty plea does constitute an admission to take, it does not necessarily admit to steal and carry away. Without those elements, there is insufficient similarity to the intent charged in the present indictment against [Carter].”

¶ 15. In response, the State maintains that “[a]s this was an attempted burglary, it is incumbent upon the State to prove that Carter actually intended to break and enter.” See Harris v. State, 642 So.2d 1325,1327 (Miss.1994) (quoting Edwards v. State, 500 So.2d 967, 969 (Miss.1986)) (the attempt to commit a crime “consists of three elements: (1) an intent to commit a particular crime; (2) a direct ineffectual act done toward its commission; and (3) the failure to consummate its commission.”) (emphasis added). Moreover, “from the outset ... Carter’s entire defense ... is that he was drunk, lost, and looking for work, [and] that he had no intent to break and enter and no intent to steal. Evidence of Carter’s intentions was accordingly highly probative.” (Emphasis added). As to the admissibility of the two contested convictions, the State insists that Jones does not stand for the proposition that the admissible prior conviction must be accompanied by a guilty plea. Rather, “it is the prior conviction (or other evidence of a prior bad act), that must be considered, not the method by which it was attained.” In total, the State argues that the circuit court did not abuse its discretion in “admitting] evidence of [Carter’s] criminal history to confirm his present criminal intent.”

¶ 16. This Court concludes that Carter’s argument is without merit. Even Carter concedes that his intent in this incident was the key issue for the jury to resolve. In admitting Carter’s prior felony convictions into evidence, the circuit court was careful to limit the scope of that admission as “the intent of [Carter] is greatly an issue.” Admitting such evidence for the purpose of showing intent is permissible under Miss. R. Evid. 404(b). Furthermore, in its Miss. R. Evid. 403 analysis, the trial court found that because the evidence was “extremely probative of [Carter’s] intent ... that outweighs the prejudicial effect in this case.” Carter attempts to obscure the issue by arguing that Jones is a jurisprudential anomaly where prior convictions, each attained through guilty pleas, were admissible because of the “perfect storm” of facts present in that particular case. Assuming ar-guendo that the facts of Jones were more egregious than those of the case sub judi-ce, that case in no way limits the admissibility of prior felony convictions to those arrived at via guilty pleas. Moreover, five of Carter’s six prior felony convictions involved guilty pleas.

¶ 17. Carter’s intent was a necessary element for his conviction, and his prior felony convictions were admitted for limited purposes, permissible under Miss. R. Evid. 404(b), including intent. As such, this Court cannot conclude that the trial court abused its discretion in admitting Carter’s prior felony convictions into evidence.

II. Whether the circuit court erred in instructing the jury that it could consider Carter’s prior felony convictions as motive when they had not been introduced for that purpose.

¶ 18. According to Armstrong v. State, 828 So.2d 239 (Miss.Ct.App.2002):

[t]he lower court enjoys considerable discretion regarding the form and substance of jury instructions. Rester v. Lott, 566 So.2d 1266, 1269 (Miss.1990). The dispositive question is whether the jury was fully and correctly instructed on the principles of law involved.
If the instructions given provide correct statements of the law and are supported by the evidence, there is no prejudice to the defendant. Johnson v. State, 792 So.2d 253, 258 (Miss.2001). If the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Fielder v. Magnolia Beverage Co., 757 So.2d 925, 929 (Miss.1999).

Id. at 244.

¶ 19. Jury Instruction 3A provided:

[t]he Court instructs the [jjury that evidence of other crimes of the defendant have been introduced into evidence. Such evidence of other crimes is not admissible to prove the character of the defendant in order to show that he acted in conformity with that character on January 7, 2003. However, this evidence of other crimes of the defendant is admissible for the purpose of showing the motive or intent of the defendant on January 7, 2003.

Regarding this jury instruction, Carter argued at trial that “when the State introduced those prior crimes, they only mentioned intent, not motive. And that’s all we’ve argued is intent.” The circuit judge replied that, “[tjhat’s all they argued. But motive is one of the reasons that you can introduce it. A defendant’s motive in committing a crime is not normally necessary, but it is admissible. The motive is to obtain something of value.” While Carter conceded that “it’s allowed under the rules,” he asserted that “[the State] never argued that they wanted it for that purpose.” Carter’s subsequent objection to the “motive” language in Jury Instruction 3A was overruled by the circuit court.

¶20. Carter argues that he “was not given an opportunity to be heard on this issue,” because “[t]here was no mention of this evidence being admitted for the purpose of motive until the prosecution submitted its jury instructions.” He further asserts that “this evidence never received a separate Mississippi Rule of Evidence 403 evaluation as to motive. For these reasons, the instruction should not have been given.” See Edlin v. State, 533 So.2d 403, 408 (Miss.1988) (quoting 2 Weinstein’s Evidence, paragraph 404[08] at pp. 404-58) (“Rule 404(b) is a specialized rule of relevancy. Accordingly, as with any determination pursuant to Rule 401, counsel must be prepared to (1) identify the consequential fact to which the proffered evidence of other crimes, wrongs or acts is directed, (2) prove the other crimes, wrongs, or acts, and (3) articulate precisely the evidential hypothesis by which the consequential fact may be inferred from the proffered evidence. Evidence which passes muster up to this point must, in addition, satisfy the balancing test imposed by Rule 403....”).

¶ 21. This Court finds that jury instruction 3A is a correct statement of the law, as evidence of Carter’s prior felony convictions was not admissible to prove Carter’s character in order to show that he acted in conformity therewith, but was admissible to show Carter’s intent or motive. See Miss. R. Evid. 404(b). If one concludes that it was error for the circuit judge to give the jury instruction without engaging in a separate Miss. R. Evid. 403 evaluation as to motive, it is harmless error. Prior to admission of the prior convictions for the purpose of showing intent, the State did not offer a separate argument that the evidence was also admissible to prove motive. Thus, the circuit court was not called upon to make a separate Miss. R. Evid. 403 finding. Carter argues that the State’s failure to “articulate precisely the evidential hypothesis by which the consequential fact may be inferred from the proffered evidence[,]” and, thereafter, the circuit court’s failure to “satisfy the balancing test imposed by Rule 403” is a basis for reversal. Edlin, 533 So.2d at 408. In Jones v. State, 920 So.2d 465 (Miss.2006), Justice Carlson, writing for the Court, stated:

[i]n asserting that his due process rights were violated when the trial court judge failed to perform an on-the-record Rule 403 balancing test, Jones has misapprehended the nature of our rules of evidence and the discretion afforded to trial judges when applying these rules. Accordingly, while we clearly interpret the rules of evidence as requiring that all otherwise admissible evidence be ‘filtered’ through the balancing test set forth in Rule 403, we do not interpret this requirement to be a regimented procedure that must be explicitly performed on pain of reversal. Though this Court certainly expects trial judges to have considered Rule 403 in making their evidentiary rulings, we certainly do not predicate the soundness of these determinations on the express use of magic words_ [Wjhile a judge’s on-the-record analysis is recommended as it serves to fortify the judge’s position for purposes of review, the lack of such analysis is harmless unless we deem the evidence to be patently prejudicial.

Id. at 476. As the trial court had already made a Rule 403 analysis, and admitted the evidence, it cannot be fairly argued that Carter was prejudiced by the circuit court’s silence to support the additional exception granted by the very same evi-dentiary rule. As these instructions “fairly announce the law of the case and create no injustice,” Armstrong, 828 So.2d at 244, even if one concludes it was error, under the circumstances and overwhelming evidence of guilt, it was harmless. Therefore, this Court concludes that no reversible error is present.

CONCLUSION

¶ 22. We affirm the final judgment and sentence of the Circuit Court of Oktibbeha County which found Carter guilty of attempted burglary of a dwelling and sentenced him to twenty-five (25) years in the custody of the MDOC pursuant to the habitual offender statute, Miss.Code Ann. Section 99-19-81 (Rev.2006).

¶ 23. CONVICTION OF ATTEMPTED BURGLARY OF A DWELLING AND SENTENCE OF TWENTY FIVE YEARS (25), AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ„ CONCUR. DIAZ AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . According to Buckley, Hewlett Road is "a cul-de-sac road, so there’s no traffic on it, really. And you can’t see the houses from the Old West Point Road.” His home faces Hewlett Road and is one of four houses thereon, each spaced roughly 100-150 yards apart.

      . Buckley testified that he never heard knocking or the doorbell ringing at either the front or back door of his home. Furthermore, he stated that the door "was jiggling and it was being forced against the deadbolt. You know, [they were] coming in." (Emphasis added).

      . That section provides:
      [e]very person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by imprisonment in the Penitentiary not less than three (3) years nor more than twenty-five (25) years.

      Miss.Code Ann. Section 97-17-23 (Rev.2006) (emphasis added).

      . That section provides:
      [e]very person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall he sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
      Miss.Code Ann. Section 99-19-81 (Rev.2006) (emphasis added).

      .The State further asserted that, “Carter did in fact on five of these convictions stand before the Court and pled guilty to each one. Burglary of a dwelling, he was found guilty of the crime by a jury. I believe that would be admissible to show that is his intent in that particular crime.''

      . The circuit court determined that "[t]here can be no issues of unfairly surprised since prior convictions and the [m]otions were known both to the defendant and to defendant’s counsel. Therefore, under [Uniform Circuit and County Court] Rule 7.09, the amendment shall be allowed.”

      . Which states, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Miss. R. Evid. 403 (emphasis added).

      . Of further significance to this Court in Jones was the fact that "the circuit court, even when defense counsel did not request one, gave a limiting instruction on the evidence. ..." Id. at 153. In the case sub judice, the circuit court provided that "[i]f requested, the limiting instruction will be given to the jury that [the Stale] can only use prior convictions to show intent.”

      . Carter concedes that four of his prior convictions, each of which he pled guilty to, involved “an element of intent to take, steal, and carry away.”

      . In support of that proposition, Carter cites Richmond v. State, 751 So.2d 1038, 1047-48 (Miss. 1999).