author: DIAZ, Presiding Justice,

text:
    Gary Donnell PARKER v. STATE of Mississippi.
    No. 2006-KA-00722-SCT.
    Supreme Court of Mississippi.
    Aug. 2, 2007.
    Jonathan Michael Farris, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before DIAZ, P.J., CARLSON and GRAVES, JJ.
   DIAZ, Presiding Justice,

for the Court.

¶ 1. Gary Donnell Parker was indicted for burglary of a dwelling as a habitual offender under Miss.Code Ann. §§ 97-17-23 (Rev.2006) and 99-19-81 (Rev.2000). A jury trial was held, resulting in a guilty verdict. Aggrieved, Parker appealed to this Court claiming the verdict was against the sufficiency of the evidence. Finding that there is material evidence to support the guilty verdict, we affirm his conviction.

Facts

¶ 2. In the early morning hours on November 25, 2004, Catina Evans called 9-1-1 to report that someone had broken into her home. She testified that she had been sleeping and was awakened by noises. When she went to investigate, she bumped into the defendant in her hallway, and he immediately fled the house. Evans testified that she was acquainted with Parker, and could see his face illuminated by the bathroom light.

¶ 3. Evans told the responding officers that the intruder lived approximately a hundred yards away. The officers proceeded to Parker’s house and were met at the door by his mother. Ms. Parker told the police that her son was in his bedroom. They followed Ms. Parker to her son’s bedroom, but the defendant was not there.

¶4. The officers returned to Evans’s house and discovered a broken window with glass and a rock on the floor below the window. They could not lift any fingerprints from the glass or the rock. Outside the window was a footprint. Evans informed the officers that her purse and approximately $85 were missing.

¶ 5. On December 6, 2004, a detective showed Evans a photo lineup. After she picked Parker out of the lineup, a warrant was issued for his arrest. Upon interrogation, the defendant made a written statement admitting that he was in her house that night. However, Parker stated that he and Evans had gone to a motel earlier that evening to have consensual sex and that she had invited him back to her house. At trial, Evans’s boyfriend testified that she had been with him that night until around 11:00 p.m.

¶ 6. At the end of the State’s presentation of the evidence, the defense moved for a directed verdict claiming the evidence was legally insufficient. The trial judge denied the motion and the defense rested without presenting any evidence.

DISCUSSION

¶ 7. The defendant raises one issue on appeal: whether the trial judge erred in denying his motion for a directed verdict and his post-trial motion for judgment notwithstanding the verdict based on the sufficiency of the evidence.

¶ 8. When reviewing a case for sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence must show “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If, keeping in mind the reasonable doubt standard, “reasonable and fair-minded men in the exercise of impartial judgement might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 9. Miss.Code Ann. § 97-17-23 (Rev.2006) sets forth the elements of the crime of burglary of a dwelling:

Every 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.

Accordingly, the elements of the crime of burglary of a dwelling are “(1) the unlawful breaking and entering; and (2) the intent to commit some crime when entry is attained.” Edwards v. State, 800 So.2d 454, 463-64 (Miss.2001) (citing Harrison v. State, 722 So.2d 681, 685 (Miss.1998); Washington v. State, 753 So.2d 475, 478 (Miss.Ct.App.1999)). ¶ 10.

¶ 10. Here, the evidence demonstrated that Evans’s window was broken with a rock, then unlocked and slid open. Though the defendant argues there is no forensic or physical evidence tying him to the broken window, reasonable jurors could have concluded that Parker broke the window to gain entry to the house. The fact that Parker entered the dwelling is undisputed. In Parker’s written statement, presented to the jury at trial, he admitted to being inside Evans’s home. Finally, the State provided evidence that Parker intended to commit a crime based upon Evans’s testimony that her purse, along with $85, was missing from her home after the defendant fled.

¶ 11. Parker argues that Evans’s testimony and identification, the main evidence against him, is insufficient to support his conviction because she is not a credible witness. During cross-examination of both Evans and her boyfriend, the defense solicited testimony that Evans had a drug problem and had entered a drug rehabilitation program at the time of the trial. Evans admitted to using Ecstasy and Lor-tab, a prescription pain-killer. Her boyfriend testified that she had also used crack-cocaine. He also testified that he had given her money to buy their child a Christmas present, but that she had used the money to buy drugs.

¶ 12. “This Court has in numerous cases, too many to mention, said that when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Scott v. State, 796 So.2d 959, 968 (Miss.2001). In this case, the jury was presented with evidence of Evans’s drug abuse, but still found her to be a credible witness. The trial court properly allowed the defense to impeach Evans on cross-examination, and the defendant does not argue that there was other evidence that was not admitted that could have impeached her testimony.

¶ 13. For the foregoing reasons, the State presented sufficient evidence every element of the crime of burglary of a dwelling. Accordingly, the verdict must be affirmed.

¶ 14. CONVICTION OF RESIDENTIAL BURGLARY AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE BENEFIT OR POSSIBILITY OF PAROLE OR EARLY RELEASE, AFFIRMED.

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


source: Caselaw Access Project

author: SMITH, Chief Justice,

license: Public Domain

text:
    Melissa ENTRICAN v. Doug MING, Jeremy Campbell and HMA Corporation, Inc. d/b/a Rankin Medical Center Ambulance Services a/k/a REMS.
    No. 2006-CA-00669-SCT.
    Supreme Court of Mississippi.
    Aug. 2, 2007.

      Alan D. Lancaster, Winona, attorney for appellant.
    Kimberly Nelson Howland, Jackson, attorney for appellees.
    Before SMITH, C.J., DICKINSON and LAMAR, JJ.
   SMITH, Chief Justice,

for the Court.

¶ 1. On January 26, 2000, Melissa Entri-can filed suit against Doug Ming, Jeremy Campbell, and REMS (sometimes referred to hereinafter as “Ambulance Service Defendants”), along with Frank B. Briggs, M.D., Martha D. Dickens, M.D., Beverly McMillan, M.D., Karl Hatten, M.D., and River Oaks Hospital, alleging that the negligence of these parties caused or contributed to the death of her minor daughter, Alisha Peavy. By stipulation of the parties, River Oaks Hospital and its employee physicians, Dr. Dickens, Dr. McMillan, and Dr. Hatten, were dismissed from the suit with prejudice. After this dismissal, only Entrican’s claims against the Ambulance Service Defendants and Dr. Briggs remained.

¶ 2. The trial began on January 17, 2006, and at the close of Entrican’s case-in-chief, counsel for the Ambulance Service Defendants moved for a directed verdict on the basis that the negligence of River Oaks Hospital, by and through its emergency department physician, Dr. Dickens, super-ceded any alleged negligence of the Ambulance Service and rendered any alleged negligence of the Ambulance Service Defendants only a remote and non-actionable cause of Alisha’s death.

¶ 3. On February 9, 2006, Judge Yerger granted the Ambulance Service Defendants’ motion for a directed verdict, holding that the negligent omissions of Dr. Dickens in failing to recognize that Alisha was in hypovelemic shock, in failing to adequately resuscitate Alisha by giving blood and intravenous fluids, and/or in failing to transfer Alisha to another medical facility, were not foreseeable by the Ambulance Service Defendants when they decided to transport Alisha to River Oaks, the nearest hospital. He further concluded that the negligence of Dr. Dickens and/or other River Oaks employees was an intervening and superceding cause of Alisha’s death, and therefore any negligence on the part of the Ambulance Service Defendants was only a remote and non-actionable cause. Judge Yerger then dismissed the Ambulance Service Defendants with prejudice. Entrican filed a motion for a new trial, which Judge Yerger denied on March 22, 2006, and she now appeals to this Court for review. On appeal, Entrican asserts the following errors:

I. The Trial Court Committed a Prejudicial Legal Error by Improperly Granting the Motion for Directed Verdict of the Defendant on the Ground That the Negligence of the River Oaks Hospital and its Emergency Room Physician Constituted a Superceding Intervening Cause of the Death of Alisha Peavy.
II. The Trial Court Committed a Prejudicial Legal Error in Granting the Motion for Directed Verdict of Defendants on the Ground That the Negligence of the Defendants Constituted Only a Remote Cause of the Death of Alisha Peavy.
III. The Trial Court Committed a Prejudicial Legal Error in Granting the Motion for Directed Verdict of Defendants on the Ground That the Negligence of the River Oaks Hospital and its Emergency Room Physician and the Negligence of Dr. Briggs Were Not Foreseeable by the Defendants.
IV. The Trial Court Committed a Prejudicial Legal Error in Granting the Motion for Directed Verdict of Defendants in That in Rendering its Decision, the Trial Court Failed to View the Evidence in a Light Most Favorable to the Plaintiff Together With All Reasonable Inferences That Could Be Drawn Therefrom.

¶ 4. However, these issues have been combined and restated by the Court, and therefore we will address only the following issue:

I. Whether the Ambulance Service Defendants Knew or Should Have Known That River Oaks Hospital Was Not Capable of Managing Alisha’s Condition, and Whether Their Actions in Transporting Alisha to That Hospital Were Only a Remote Cause of Her Death.

FACTS

¶ 5. Appellant Melissa Entrican is an adult resident citizen of Rankin County, Mississippi, and is the mother of Alisha Peavy, the deceased. Appellees Doug Ming and Jeremy Campbell are adult resident citizens of the State of Mississippi and emergency medical technicians employed by Appellee Rankin Medical Center Ambulance Services (hereinafter “REMS”). At all relevant times, REMS was acting by and through its emergency medical technicians, Ming and Campbell, who were acting within the scope of their employment with REMS.

¶ 6. On January 26, 1998, at approximately 11:30 a.m., Alisha was involved in a motor vehicle collision which occurred at the intersection of Highway 471 and Bay Pointe Road within Rankin County, Mississippi. In response to a call at REMS for emergency assistance at the scene of the collision, Ming and Campbell arrived at the scene in a REMS ambulance. Upon arrival, Ming and Campbell noted massive damage to Alisha’s side of the automobile and found Alisha trapped in the passenger seat. They also noted that she was approximately eight (8) months pregnant and had a soft abdomen with bruising. With episodes of decreased responsiveness, a systolic blood pressure in the 80 to 90 range, and signs of internal bleeding, Alisha was classified by Ming and Campbell as a Code 2 case (indicating that she was deteriorating) and taken to the River Oaks Hospital.

¶ 7. At approximately 12: 40 p.m., Alisha was admitted to the emergency department at River Oaks. After this time, Ming and Campbell no longer took care of Alisha but remained at River Oaks Hospital in case the physicians determined that transport to another hospital was needed after initial stabilization. Martha Dickens, M.D., the physician in River Oaks Hospital’s emergency department, accepted Alisha as a patient. Dr. Dickens, employed nine years as a full-time emergency physician, testified at trial that she was trained in Advanced Trauma Life Support, which is a system of generally accepted protocols for the treatment of trauma patients. As an ATLS-certified physician, Dickens was trained to recognize the signs and symptoms of hypovolemic shock. Dr. Dickens also testified that when someone is in hy-povolemic shock, the correct procedure is to administer fluids to the patient, and then if vital signs continue to deteriorate, to administer blood. Dr. Dickens also testified that she feared Alisha was in hypo-volemic shock and proceeded to administer fluids in an attempt to improve Alisha’s vital signs. However, the vital signs continued to deteriorate, and, although Dr. Dickens admitted in her testimony that when this happens, it is a “fundamental principle” to then start transfusing blood, she further admitted that she did not do this.

¶ 8. At 1:25 p.m., Alisha was taken to x-ray for cervical spine, and chest x-rays but while she was waiting to be placed on the CT machine, her respirations became more labored and rapid. Alisha was then returned to the emergency department, and on the way back, she stopped breathing. Her respirations were assisted with a bag valve mask. At 2:35 p.m., Alisha was again taken to CT, where she remained until 3:45 p.m., at which time she was taken to the holding room (preoperative area). At 3:52 p.m., she was taken to the operating room, where surgical procedures were performed by Dr. Briggs and Dr. McMillan. Id. During surgery, the decedent’s heart stopped, and resuscitation attempts were unsuccessful. Id. Alisha was pronounced dead at 5:15 p.m.

DISCUSSION

I. Whether the Ambulance Service Defendants knew or should have known that River Oaks Hospital was not capable of managing Alisha’s condition, and whether their actions in transporting Alisha to that hospital were only a remote cause of her death.

A. Standard of Review

¶ 9. The standard of review for determining whether a motion for directed verdict should be granted is de novo. Windmon v. Marshall, 926 So.2d 867, 872 (Miss.2006). All evidence is considered “in the light most favorable to the non-mov-ant, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Forbes v. GMC, 935 So.2d 869, 872 (citing Cousar v. State, 855 So.2d 993, 998 (Miss.2003)). If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted. Pace v. Financial Sec. Life, 608 So.2d 1135, 1138 (Miss.1992). This Court has also held that “[a] trial court should submit an issue to the jury only if the evidence creates a question of fact concerning which reasonable jurors could disagree.” Vines v. Windham, 606 So.2d 128, 131 (Miss.1992).

B. Rule 50(a) Motion for a Directed Verdict

¶ 10. M.R.C.P. 50(a) provides guidelines for granting a directed verdict. Commentary following the rule states:

In ruling on the motion for a directed verdict, the court should proceed along the same guidelines and standards that have governed prior peremptory instruction and directed verdict practice in Mississippi: the court should look solely to the testimony on behalf of the opposing party; if such testimony, along with all reasonable inferences which can be drawn therefrom, could support a verdict for that party, the case should not be taken from the jury.

See White v. Thomason, 310 So.2d 914 (Miss.1975); Ezell v. Metropolitan Ins. Co., 228 So.2d 890 (Miss.1969); Holmes v. Simon, 71 Miss. 245, 15 So. 70 (1893).

C. Duty and Breach

¶ 11. The elements of a negligence suit, which are well-settled in Mississippi, are duty, breach of duty, causation, and injury. Patterson v. Liberty Assocs., L.P., 910 So.2d 1014, 1019 (Miss.2004) (citing Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 262 (Miss.2003)). The existence of a duty is clear and undisputed in this case. Under the Central Mississippi Emergency Medical Services Protocol Manual (“EMS Protocol”), it is evident that Ming, Campbell, and REMS owed a duty to provide care and treatment to Alisha. Furthermore, under the standard for a Rule 50(a) motion, the trial court looked solely to the testimony on behalf of the appellant, and assumed, for the purposes of this ruling, that the Ambulance Service Defendants breached this duty by taking Alisha to River Oaks Hospital instead of University Medical Center (UMC).

D. Proximate Cause

¶ 12. To prove the element of causation, both cause in fact and proximate cause must be shown. Patterson, 910 So.2d at 1019 (citing Jackson v. Swinney, 244 Miss. 117, 123, 140 So.2d 555, 557 (1962)). Proximate cause has been defined as “cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.” Patterson, 910 So.2d at 1019 (quoting Delahoussaye v. Mary Mahoney’s, Inc., 783 So.2d 666, 671 (Miss.2001)). Furthermore, to be held liable, a person “need not be the sole cause of an injury. It is sufficient that his negligence concurring with one or more efficient causes, other than the plaintiffs, is the proximate cause of the injury.” Foster v. Bass, 575 So.2d 967, 992 (Miss.1990) (quoting Smith v. Dillon Cab Co., Inc., 245 Miss. 198, 205-06, 146 So.2d 879, 882 (1962)).

¶ 13. In her testimony, Dr. Dickens, employed nine years as a full-time emergency room physician, stated that she was trained in ATLS. Dr. Dickens also testified that when someone is in hypovolemic shock, the correct procedure is to administer fluids to the patient, and then if vital signs continue to deteriorate, to administer blood. She went on to admit that she feared Alisha was in hypovolemic shock and proceeded to administer fluids in an attempt to increase Alisha’s vital signs. However, the vital signs continued to deteriorate, and although Dr. Dickens admitted in her testimony that when this happens, it is a “fundamental principle” to then start transfusing blood, she further admitted that she did not do this.

¶ 14. Dr. Carl Hauser, a surgeon and specialist in trauma and critical care, also stated on cross-examination that the practice of giving fluids and then blood if vital signs do not improve is “one of the basic tenents of ATLS” and that failing to transfuse blood was “violation of the standard” of care. Therefore, it is clear by Dr. Dickens’s own admission, along with Dr. Hauser’s testimony, that Dickens was negligent in not transfusing blood in this situation, as a trained ATLS physician who should have known and admittedly did know that such procedures were the accepted standard in the medical community.

¶ 15. Furthermore, Dr. Hauser’s testimony made it clear that breaching the generally-accepted medical standard for the treatment of hypovolemic shock, this action became a proximate cause of Alisha’s death. Dr. Hauser stated that “the arrest would not have occurred ... had the patient been electively intubated and given blood. He also stated that if blood had been given, Alisha would have tolerated the transfer to UMC for surgery if River Oaks had decided that such a transfer was needed. Furthermore, Dr. Hauser stated that if Alisha had been transported to UMC, she “would have survived with a very high likelihood, greater than ninety percent ... depending upon exact timing and so forth.”

¶ 16. Dr. Vernon Henderson, another expert witness offered by the plaintiff-appellant, reiterated Dr. Hauser’s statements regarding Dr. Dickens’s and River Oak’s negligence in their treatment of Alisha. As a general surgeon with a special interest in trauma surgery, Henderson stated that before Alisha arrested, she had a ninety-five percent or better chance of surviving. Taken along with Dr. Hauser’s testimony — that but for the failure to give blood, Alisha would not have arrested — it is clear that this failure to follow proper ATLS procedures was a proximate cause of Alisha’s death. Furthermore, even if she had arrested and surgery was performed in a timely fashion, Henderson stated that “her chances were better than eighty percent” for survival.

¶ 17. The Ambulance Service Defendants argue that, even assuming they were negligent in transporting Alisha to River Oaks, they escape liability because they could not have foreseen that Dr. Dickens would have deviated from the standard of care. However, Entrican asserts that River Oaks was not capable of handling Alisha’s condition and that everyone in the medical community was well aware of that fact. Therefore, Entrican alleges that any negligence on the part of River Oaks or its physicians was foreseeable.

¶ 18. Several witnesses for Entrican testified that River Oaks" did not have trauma care capability and that- this was common knowledge in the Jackson area. Steven Eskridge, a paramedic and expert qualified in the field of emergency medical services, stated that River Oaks did not have the personnel on hand to immediately take care of trauma patients. Dr. Reginald Martin, a general surgeon, testified that River Oaks was “certainly not the ideal place for a multi-system trauma patient. ... There is only one place in this area where Alisha Peavy belongs, and that’s at the University of Mississippi Medical Center. Therefore, Entrican argues that because the Ambulance Service Defendants knew or should have known that River Oaks was not capable of handling the types of injuries that Alisha sustained, negligence on the part of River Oaks’s physicians when attempting to treat her injuries was foreseeable and concurrent with the Ambulance Service Defendants’ negligence in causing Alisha’s death.

¶ 19. In response, the Ambulance Service Defendants assert that when delivering Alisha to River Oaks, they were placing her in the care of a hospital with a twenty-four hour emergency department and a ATLS-trained emergency department physician in Dr. Dickens. Dr. Dickens had been certified three different times in ATLS training and testified that during her time as an emergency department physician, she has seen many patients in shock. The Defendants argue that because ATLS procedures are generally accepted and well-known throughout the medical community and because of the training and years of experience that Dr. Dickens had with shock patients, it was unforeseeable that Dr. Dickens would fail to administer the proper treatment of giving fluids and then blood in response to Alisha deteriorating vital signs.

¶20. EMS Protocol includes a section entitled “Choosing a Hospital Destination” which aids paramedics in making a determination as to which hospital a patient should be transported. The Protocol states that severe or multisystem trauma patients with a trauma score of ten or less should be transported directly to a hospital with the equivalent of Level I or II trauma center capabilities. This paragraph also states that the mortality rate for these patients increases dramatically if there is a delay in reaching the trauma center. However, it is undisputed that Alisha’s trauma score never reached ten or below while en route to the hospital. Rather, Alisha’s initial score was thirteen at the accident scene and dropped to twelve while in the ambulance. Therefore, Ambulance Service Defendants argue that this requirement did not apply to their determination of the proper hospital destination. Ming testified that due to the seriousness of Alisha’s condition, UMC was considered when the ambulance initially left the accident scene. However, Alisha’s deteriorating condition, as well as traffic flow problems between River Oaks Drive at Lakeland Drive and UMC at noon on a weekday, weighed against the continuing transport to UMC. Ming testified that he noticed that in a short period of time Alisha’s mental status and vital signs changed, increasing her need of emergency treatment by a physician. Therefore, they transported Alisha to the closest facility that could stabilize her, which was River Oaks. Ming testified that in making this decision, he knew that River Oaks could do more for her than he could do, as River Oaks would be able to give blood products and stabilize her vital signs.

¶21. Dr. Rick Carlton, Medical Director for the Central Mississippi EMS District, who is responsible for writing the protocols, testified that as Alisha’s trauma score never reached ten while en route to the hospital, the requirement to transport her to a level I or II trauma center did not apply. Rather, Dr. Carlton testified that the Section of the protocol on “Emergencies” was applicable, which states that “[ejmergency patients should be transported directly to the nearest hospital capable of managing their emergency condition. However, the patient’s (and family’s) hospital preference must be considered when making this decision.” Dr. Carlton further testified that after reviewing the evidence in this case, it was his opinion that the Ambulance Service Defendants met the standard of care required of them in this situation. Dr. Carlton also testified that the trauma system in 1998 was dramatically different from the system which is in place today. He testified that, at the time of the incident, there was no organized system for accessing hospitals with the proper capabilities for the care of trauma patients. Dr. Carlton stated, at the time of Alisha’s accident there was no way to know that a given hospital would have a problem treating a certain category of patient. Dr. Carlton also testified that, at the time of this incident, neither River Oaks nor anyone associated with River Oaks had made a request to the EMS office or online Medical Control regarding not bringing trauma of any kind to River Oaks.

¶ 22. However, in Ming’s statement, which was written a couple of hours after Alisha was taken to River Oaks, Ming stated that Dr. Dickens advised him that River Oaks could not handle this type of trauma and that the surgeon (Dr. Briggs) was on call. Ming told Dr. Dickens that the patient’s guardian requested the facility and because of Alisha’s deteriorating condition, River Oaks was the closest facility to stabilize her. Ming further stated that he thought River Oaks had the capability to stabilize the patient. When Dr. Briggs arrived, he asked which ambulance brought Alisha to the hospital and why it did so. Ming responded as he had to Dr. Dickens. Dr. Briggs told Ming that River Oaks could not handle this type of trauma and that he should have transported Alisha to UMC, as they had the staff to treat this type of patient. Dr. Briggs further stated that Ming “probably did more harm than good for the patient.” Dr. Briggs advised Ming to explain to the family that Alisha should have gone to UMC with this type of trauma. Additionally, the EMS protocol states that when making a hospital destination decision, a paramedic should “contact medical control if there is any doubt as to which hospital a patient should be transported to.” On cross-examination, Ming stated that he did not call Medical Control prior to transporting Alisha .to River Oaks to seek their input as to which hospital she needed to go to.

¶ 23. Additionally, testimony 'showed that while Ming was primarily responsible for the decision to transport Alisha to River Oaks, Alice Little, Alisha’s grandmother, who was with her in the ambulance, concurred with this decision. Acting according to EMS protocol, Ming was required to consult with Little about her wishes for Alisha’s treatment. Little advised Ming that she wanted Alisha to be taken to Methodist North, which is where Alisha’s baby was to be delivered. Ming explained that Methodist North did not have an emergency room, and therefore, in his opinion, was not a appropriate option considering Alisha’s severe condition. Ming advised Little that because Alisha’s mental status and vital signs were diminishing, the ambulance should proceed to the closest hospital with an emergency room so emergency treatment could begin. At this point, Little gave her consent to take Alisha to River Oaks. Ming radioed River Oaks to inform the staff of the status of the patient he was bringing to the hospital. At this time, River Oaks made no attempt to divert the ambulance to another hospital or inform Ming that they were not equipped to handle Alisha’s condition.

¶ 24. “The law dealing with the duty to foresee the imprudent acts of others appears under the general rubric of the jurisprudence of ‘intervening cause.’ ” Southland Mgmt. Co. v. Brown by & Through Brown, 730 So.2d 43, 46 (Miss.1998). The Second Restatement of Torts defines a superseding cause as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” Id. (citing Restatement (Second) of Torts § 440 (1965)). Under this theory, an original actor’s negligence may be superceded by a subsequent actor’s negligence, if the subsequent negligence was unforeseeable. Southland Mgmt. Co., 730 So.2d at 46. However, merely finding that the negligence of River Oaks, by and through Dr. Dickens, was an intervening cause in the chain of events leading from the Ambulance Service Defendants action in transporting Alisha to River. Oaks to Alisha’s death is not sufficient to render the Ambulance Service Defendants’ earlier actions non-actionable. Id. Instead, this Court has held that if “the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances,” the subsequent actor’s negligence is foreseeable and does not break the chain of events between the negligence of the first actor and the injury. Id. (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 44 (5th ed.1984)). As such, under principles of “foreseeability,” a defendant may be held liable for his failure to anticipate an easily-predicted intervening cause and to properly guard against it. Id. See also Pargas of Taylorsville, Inc. v. Craft, 249 So.2d 403, 408 (Miss.1971) (holding that a defendant is chargeable only with anticipating reasonable probabilities, therefore a person is not bound to anticipate the unusual, improbable, or extraordinary occurrence, although such happening is within the range of possibilities (citation omitted)).

¶ 25. Notwithstanding, this Court also has held that “negligence which merely furnished the condition or occasion upon which injuries are received, but does not put in motion the agency by or through which the injuries are inflicted, is not the proximate cause thereof.” Robison v. McDowell, 247 So.2d 686, 688 (Miss.1971) (quoting Hoke v. W.L. Holcomb & Assoc., Inc., 186 So.2d 474 (Miss.1966); Mississippi City Lines, Inc. v. Bullock, 194 Miss. 630, 13 So.2d 34 (1943)). Thus, “[i]f the act complained of is only a remote cause, superseded by an independent, efficient intervening cause that leads in unbroken sequence to the injury, the original negligent act is not a proximate, but a remote, cause. Thus, not being foreseeable, the original cause is not actionable.” Robison, 247 So.2d. at 689. In Robison, a driver pulled a tractor out into a highway and blocked both lanes of travel. As a result, the injured party was required to stop his vehicle. Id. While the injured party was stopped, a second vehicle hit him from behind. The driver appealed the judgment entered in favor of the injured party. Id. This Court found that although the jury was justified in finding that the driver negligently pulled the tractor out into the highway, his negligence was not the proximate cause of the accident. Id. at 688-689. Rather, the intervening negligence of the second operator superceded that of the driver, thus rendering the driver’s negligence a remote cause. Id. at 688-689. Additionally, this Court stated that “[t]he question of superceding intervening cause is so inextricably tied to causation, it is difficult to imagine a circumstance where such issue would not be one for the trier of fact.” O’Cain v. Harvey Freeman & Sons, Inc., 603 So.2d 824, 830 (Miss.1991).

¶ 26. While the trial court ruled that the alleged negligence of the Ambulance Service Defendants in transporting Alisha to River Oaks rather than to another hospital could be only a remote cause of Alisha’s death, we find that there is evidence in the record to support the arguments for both sides, thereby creating a question for the jury. Therefore, whether the Ambulance Service Defendants knew or should have known that River Oaks was not capable of managing Alisha’s condition and whether their alleged negligence, if any, in taking her to that hospital was only a remote, and thus not proximate, cause of her death, is question to be determined by the jury. We suggest no opinion on the merits of Entrican’s claim or her ability to meet the requisites of a negligence action. We find only that the directed verdict in favor of the Ambulance Service Defendants was not proper, as the issue of causation in this case is a jury question. Accordingly, we remand to the trial court to submit this issue to the jury in accordance with-this opinion.

CONCLUSION

¶ 27. For the foregoing reasons, the directed verdict is reversed and this case is remanded to the trial court.

¶ 28. REVERSED AND REMANDED.

WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ„ CONCUR. GRAVES, J„ NOT PARTICIPATING.

      . The emergency department UMC has Level I trauma care capability.

      . Stated differently, these cases hold that "negligence is remote and non-actionable which merely causes a person to be at a particular place at a particular time where such person is injured as a result of the negligent act of another, who puts in motion a different and intervening cause which efficiently leads in unbroken sequence to the injury.” Id.


author: SOUTHWICK, J„

text:
    Dontay WALKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KP-00611-COA.
    Court of Appeals of Mississippi.
    Dec. 12, 2006.
    Rehearing Denied May 8, 2007.

      Dontay Walker, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   SOUTHWICK, J„

for the Court.

¶ 1. Dontay Walker was convicted by an Oktibbeha County Circuit Court jury of possession of marijuana and possession of cocaine. On appeal, his claims of error include issues regarding instructions and the admissibility and sufficiency of evidence. We find no error and affirm.

FACTS

¶ 2. Walker was the passenger in a car that was driven by Shaundrysus Frazier. Frazier testified that he purchased the vehicle from a friend about one month prior to the stop but that the vehicle was not yet titled in his name. The vehicle was stopped by Oktibbeha Deputy Sheriff Michael Hunter. Deputy Hunter noticed that the windows of the vehicle were almost completely and illegally black from being heavily tinted. Hunter recognized the vehicle as one he had previously stopped for the same violation. As Hunter passed the vehicle traveling in the opposite direction, he also noticed that both the driver and passenger were not wearing their seat belts. Hunter stopped the vehicle based on the tint-law violation. Hunter questioned Frazier and then proceeded to question Walker. Walker was visibly nervous as evidenced by his hands shaking. He was talking on a cell phone and would not make eye contact with Hunter.

¶ 3. While talking to Walker, Hunter was notified by radio that Frazier’s license was suspended. Frazier was arrested and searched. Frazier had almost $700 cash in his pants pocket. Hunter told Frazier that Walker could drive the vehicle away because Walker had a valid driver’s license. Frazier refused the offer. A deputy named Whitfield arrived to assist Hunter. Officer Shawn Word of the Starkville Police Department contacted Deputy Whitfield about the stop. Officer Word was informed as to the identity of the two passengers and recognized them both. Due to Walker’s reputation as a drug dealer, Officer Word wanted to speak with him and proceeded to the traffic stop. Frazier had already been taken into custody but Walker was still seated in the passenger side of the vehicle. Officer Word arrived on the scene and approached the passenger side of the vehicle.

¶4. Officer Word testified that Walker was talking on a cell phone but ended the conversation when he saw Word approaching. Officer Word noticed the distinctive smell of marijuana emanating from within the vehicle and believed Walker looked nervous. Officer Word observed Walker moving his right foot in a manner that indicated he was trying to push something underneath the passenger seat. Officer Word had talked with Walker prior to the day of the traffic stop. Walker would not look Officer Word in the eye but persisted in staring straight forward. Due to Walker’s suspicious behavior and the smell of marijuana, Officer Word asked Walker to step out of the vehicle. Deputy Whitfield was at the rear of the vehicle and took control of Walker. Deputy Whitfield searched Walker by patting him down and found $1,390 in Walker’s front pants pocket. Officer Word immediately located a container under the passenger seat. The container contained marijuana and a substantial amount of crack cocaine. Officer Word told Deputy Whitfield that drugs were found and to arrest Walker. Walker and Frazier were taken into police custody and transported for booking and questioning.

DISCUSSION

1. Admissibility of Seized Evidence

¶ 5. Walker initially argues that Deputy Hunter did not have probable cause to stop Frazier’s vehicle and therefore the evidenced seized should have been suppressed at trial. Walker in his pro se brief recites at length the development of search and seizure case law to support his argument. He argues that there was no testimony that Frazier was driving erratically or that any traffic violations occurred to cause the stop.

¶ 6. The trial court denied Walker’s motion to suppress, finding that the traffic stop was valid. The action of an officer stopping a vehicle is reasonable when there is “probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Probable cause for a traffic stop may arise from an officer’s reasonable belief that windows of the vehicle are excessively tinted in violation of law. McCollins v. State, 798 So.2d 624, 627 (Miss.Ct.App.2001). The stop was a valid one.

¶ 7. The smell of marijuana constitutes reasonable suspicion and supports further investigation of a suspected criminal offense, including the search of the passengers and interior of a vehicle. Dies v. State, 926 So.2d 910, 918 (Miss.2006) (citing Boches v. State, 506 So.2d 254, 264 (Miss.1987)). In addition, Walker does not have standing to argue error in the vehicle search: “Fourth Amendment rights are personal rights ... which may not be vicariously asserted.” Spicer v. State, 921 So.2d 292, 310 (Miss.2006) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)). A passenger who does not own the vehicle cannot complain about the legality of its search. Spicer, 921 So.2d at 310 (citing Walker v. State, 913 So.2d 198, 225 (Miss.2005)). The motion to suppress the contraband was properly denied.

2. Refused Jury Instructions

a. Co-Defendant Cautionary Instruction

¶ 8. Walker argues that the trial court erred in refusing to grant certain jury instructions. One refused instruction, D-9, would have stated among other things that “the testimony of a co-defendant must be weighed with great care and be scrutinized closely,” which apparently refers to, but does not name, Shaundrysus Frazier. The trial court refused the instruction because was not a co-defendant. A petition to revoke Frazier’s probation from an earlier offense had been filed, but he was not a co-defendant nor is there evidence that he was indicted for any offense arising from the events that led to Walker’s arrest. After denying the instruction, the court invited the defense to present a differently worded instruction for the court to consider. None was offered.

¶ 9. Granting a cautionary instruction due to the testimony of an accomplice who is not being tried with the defendant is within the discretion of the trial court. Slaughter v. State, 815 So.2d 1122, 1133 (Miss.2002) (citing Wheeler v. State, 560 So.2d 171 (Miss.1990)). The instruction should be given when the witness is in fact an accomplice, but only if the testimony is uncorroborated. Id. An accomplice is a person who is implicated in the commission of the crime for which the defendant is being tried. Id. The Slaughter court concluded that a witness charged as an accessory after the fact was not an accomplice. Id.

¶ 10. The difficulties with Walker’s allegation of error include that the instruction referred to Frazier as a co-defendant, which he was not. Walker was given the opportunity to submit a corrected instruction and chose not to do so. Frazier’s presence in the vehicle alone is insufficient to classify him as an accomplice. Garner v. State, 832 So.2d 624, 627 (Miss.Ct.App.2002). The only portion of Frazier’s testimony that could be viewed as uncorroborated is that Walker was in physical possession of the bag containing the narcotics. On these facts, the trial court did not commit an abuse of discretion in refusing to grant the cautionary instruction.

b. Instruction on Lesser Charge of Possession

¶ 11. The second disputed instruction rejected by the trial court would have allowed the jury to consider the lesser offense of possession of less than one ounce of marijuana. Walker argues that there was evidence supporting his possession of less than an ounce of marijuana. Walker admitted to paying $70 for marijuana for his own use. There was evidence that an ounce of marijuana would cost about $100. The laboratory testing revealed that there was more than an ounce of marijuana in the bag found under the seat in which Walker was sitting. An instruction that was given advised jurors that they could convict Walker for possession if they did not find proof beyond a reasonable doubt that he had the intent to distribute, but that instruction referred to more than 30 grams (about 1.05 ounces) and less than 250 grams (8.8 ounces). Walker alleges that the possession instruction that was given was inadequate, because he wanted an opportunity to focus jurors on the argument that he did not possess more than an ounce.

¶ 12. The only evidentiary basis for the instruction that he possessed less than an ounce was that he had not paid enough to have bought an ounce. The laboratory report indicated that the marijuana found under Walker’s seat weighed over one ounce. The effort to argue that price was so fixed in the drug business as to create a fact issue that a $70 package would not contain an ounce of marijuana was not sufficient to override the otherwise undisputed evidence of weight. Denial of the instruction was proper.

c. Peremptory Instruction

¶ 13. The third jury instruction Walker argues was erroneously refused is an instruction requiring the jury to return a verdict of not guilty. Walker argues there was insufficient evidence presented to the jury to support his conviction because Frazier was the driver of the vehicle.

¶ 14. A request for a peremptory instruction challenges the legal sufficiency of the evidence. Flora v. State, 925 So.2d 797, 822 (Miss.2006). We review a refusal of a peremptory instruction by considering all of the evidence in a light most favorable to the State, meaning that the State is given the benefit of all favorable inferences that could be drawn from the evidence. Id. The relevant question is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)).

¶ 15. The previously discussed facts support the finding of the jury that Walker was in constructive possession of the package containing the contraband, and that he knew the package contained those substances. Denial of a peremptory instruction was appropriate.

3. Weight of the Evidence

¶ 16. Walker argues that the verdict convicting him of the lesser included offense of possession of marijuana and the lesser included offense of possession of cocaine were against the overwhelming weight of the evidence. In a precedent on which Walker relies, the incriminating items of evidence in addition to proximity to the drugs were that the defendant-passenger repeatedly looked out the back window while the police were pursing the vehicle, the driver and passenger were friends, and the driver’s story that the vehicle had recently been loaned to a friend was not an explanation that the driver originally gave the arresting officer. Cunningham v. State, 583 So.2d 960, 962 (Miss.1991). That evidence did not adequately incriminate the accused. Id.

¶ 17. Walker also relies on a holding that reversed a conviction for possession of marijuana when no evidence connected the defendant to the drugs other than his presence in the vehicle in which drugs were found. Jones v. State, 693 So.2d 375, 377 (Miss.1997).

¶ 18. A challenge to the weight of the evidence by a motion for a new trial is reviewed by examining all the evidence in a light most favorable to the verdict. Bush v. State, 895 So.2d 836, 843 (Miss.2005). An appellate court will disturb the verdict only if allowing it to stand would “sanction an unconscionable injustice.” Id. The remedy in situations where the evidence is against the weight of the evidence is a new trial, not acquittal. Id.

¶ 19. Walker may be convicted if he was “aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Kerns v. State, 923 So.2d 196, 199-200 (Miss.2005) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). The possession may be actual or constructive. Id. Constructive possession arises from “dominion and control” over drugs and requires “incriminating circumstances” to connect an accused to the substance. Id. Proximity alone is not sufficient evidence to prove possession. Id.

¶ 20. Here, Officer Word testified that he saw Walker attempting to conceal something under his seat. Word and Walker had spoken in previous encounters. Word testified that when he pulled the narcotics out from under the passenger seat, and even though Walker could not see inside the vehicle, Walker said that “none of that” belonged to him. Frazier, the driver of the vehicle, testified that Walker had the bag containing the drugs when Walker entered the vehicle. The overwhelming weight of evidence did not require that a new trial be granted.

J. Overruled Objections

¶ 21. Starkville Police Officer Maurice Johnson arrived at the scene of the traffic stop after both Frazier and Walker were arrested. Johnson interviewed Walker at the Oktibbeha County Sheriffs office. After Johnson testified for the prosecution at the suppression hearing, the defense called him at that same hearing as its own witness. Walker alleges that some questions asked by the prosecution during cross—examination were leading and his objections were improperly overruled.

¶ 22. The issue focuses on questions that were in response to earlier defense questions about whether Johnson was in the interrogation room the entire time with Walker. Johnson testified that he always remained in close proximity to Walker. The prosecution cross-examined this way:

Q. You say close proximity. What you’re saying is you had one foot in the doorway and sticking part of the way—
By Mr. Rozier [defense counsel]: Object, you Honor. It’s Officer Johnsons’s to say, not the—

By the Court: Sit down. This is cross. Walker supports his argument with a holding that reversed a conviction for sale of cocaine. McDavid v. State, 594 So.2d 12 (Miss.1992). That conviction was reversed in part because the trial court erred in allowing the prosecution repeatedly to ask leading questions; the resulting harm was found to be significant. Id. at 16-17.

¶23. The trial court has discretion whether to allow leading questions. Neal v. State, 805 So.2d 520, 527 (Miss.2002). Leading questions are “ordinarily permitted on cross-examination.” M.R.E. 611(c). The comments to Rule 611 make clear that leading questions may not be proper during cross-examination when it is cross-examination in form only. The example given in the comments is when a party is cross-examined by that party’s own counsel after being called by the opponent. Here too, we find the label of cross-examination to be mere form.

¶ 24. In one precedent, it was found to be error for the prosecution to ask leading questions on cross-examination when a witness for the prosecution was called back to the stand by the defense. Moffett v. State, 456 So.2d 714, 718-21 (Miss.1984). Technically, the State was not authorized to ask Johnson any leading questions after he was recalled by the State. Yet we fail to find prejudicial effect. At worst, harm was “inconsiderable and speculative.” McDavid, 594 So.2d at 17 (quoting Whitlock v. State, 419 So.2d 200, 203 (Miss.1982)). There was no reversible error.

5. Ineffective Assistance of Counsel

¶ 25. Walker was represented by two attorneys at trial. Walker first argues that his counsel failed to object and preserve for appeal issues relating to the testimony of Officer Carl Carrithers. Officer Carrithers testified that about one week prior to Walker’s arrest, he observed Walker carrying a bag similar to the bag that was found underneath the passenger seat when Walker was arrested. Walker believes that Carrithers’ testimony should have been excluded by a pre-trial motion in limine and subjected to a defense objection. Walker does not articulate what prejudice resulted from his defense counsel failing to make an effort to exclude Carrithers’ testimony.

¶ 26. Walker also argues that his counsel failed to attack thoroughly Frazier’s actions and testimony. Walker believes his counsel could have elicited testimony from Frazier to demonstrate that some of the drugs belonged to Frazier. Walker also believes that his counsel was ineffective by not eliciting from Frazier why he did not immediately notify the police about the drugs when stopped. Walker also claims that his counsel never discredited or impeached Frazier with evidence that he was a drug dealer and had been under investigation for drug dealing.

¶ 27. Counsel is constitutionally ineffective if his performance was deficient and this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is proven by showing that there is a “reasonable probability” that without the deficiency of counsel the trial would have had a different outcome; the probability requires examining all the circumstances of trial. Nicolaou v. State, 612 So.2d 1080, 1086 (Miss.1992). The burden of proof is on the defendant, Walker. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Walker does not articulate how he was prejudiced by the alleged deficiency of his counsel. We also fail to discern any prejudice from the alleged deficiencies. Consequently, there was constitutionally adequate representation.

6. Cumulative Error

¶28. Walker argues that even if the previously discussed claims do not constitute error, their cumulative effect deprived Walker of his constitutional right to a fair trial.

¶29. Specific reversible error is not required before we should consider the possibility of cumulative error. Byrom v. State, 863 So.2d 836, 847 (Miss.2003). Still, after examining all alleged deficiencies in the trial, we do not find their cumulative effect to require reversal.

¶ 30. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I POSSESSION OF MARIJUANA, MORE THAN 30 GRAMS BUT LESS THAN 250 GRAMS, AND SENTENCE OF THREE YEARS; AND COUNT II POSSESSION OF COCAINE MORE THAN 30 GRAMS, AND SENTENCE OF TWENTY-TWO YEARS ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAY A FINE OF $1,000 ON EACH COUNT IS AFFIRMED WITH SENTENCES FOR COUNT I AND COUNT II TO RUN CONSECUTIVELY FOR A TOTAL OF TWENTY-FIVE YEARS TO SERVE AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND A FINE OF $2,000. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

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