author: SMITH, Chief Justice, DIAZ, Presiding Justice, DICKINSON, Justice,

text:
    Eddie GILMER v. STATE of Mississippi.
    No. 2004-KA-02236-SCT.
    Supreme Court of Mississippi.
    May 10, 2007.

      Julie Ann Epps, Michael V. Ward, Canton, attorneys for appellant.

      Office of the Attorney General by Jacob Ray W. Daniel Hinchcliff, attorneys for appellee.
   SMITH, Chief Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. This case comes to the Court on first impression as to whether the evidence was sufficient to support a conviction under the “video voyeur” statute, Miss.Code Ann. § 97-29-63 (Rev.2006). Finding that the evidence provided satisfied the statute, we affirm the defendant’s conviction.

FACTS AND PROCEDURAL HISTORY

¶ 2. Eddie Gilmer was an elected constable in Madison County at the time of his alleged criminal behavior. He served warrants in Madison County, including at the Pear Orchard Apartments in Ridgeland, Mississippi, where Debra Clayton occupied a second-floor apartment. In March 2003, Clayton noticed that Gilmer would arrive at the Pear Orchard Apartments in his official vehicle marked “Madison County Constable, District Number 3, Eddie Gil-mer” around 9:00 p.m. and park his car in a space in the apartment complex parking lot with his vehicle facing Clayton’s apartment about 87 feet from her balcony. Gil-mer would stay in his parked car for an hour or an hour and a half before driving away.

¶ 3. Clayton contacted the police about Gilmer’s suspicious behavior. Consequently, police officers conducted five separate surveillance operations. Officers captured Gilmer on tape, recording Clayton with a hand-held video camera while she was sitting inside her apartment in front of her balcony door, which was open about eighteen inches. The evidence demonstrated that, while filming, Gilmer often zoomed in on Clayton’s chest and crotch area. Gil-mer was indicted on May 23, 2003, charged with ten counts of photographing a person in privacy without permission. A jury trial culminated in a conviction on counts six through ten, and, on August 20, 2004, for each count the trial court sentenced Gil-mer to serve a term of five years, each to run consecutively, in the custody of the Mississippi Department of Corrections. The judge suspended the sentences for two counts, resulting in a sentence of fifteen years in prison and five years of supervised probation upon release.

¶ 4. Gilmer filed a Motion for New Trial and/or Judgment of Acquittal Notwithstanding the Verdict (JNOV) on August 23, 2004. The trial court denied Gilmer’s motion, and Gilmer timely filed an appeal to this Court seeking reversal of that denial as well as of the jury verdict of guilty. Gilmer raises five errors on appeal:

I. The Trial Court Erred in Overruling Gilmer’s Motions for Directed Verdict as Well as His Post-trial Motions for JNOV and New Trial Due to the Insufficiency of the Evidence.

II. The Trial Court Committed Reversible Error in Overruling Gil-mer’s Motion to Quash the Indictment for Failure to State an Essential Element of the Offense.

III. The Statute Is Unconstitutionally Vague and Overbroad on its Face and as Applied to Gilmer.

IV. The Trial Court Erred in Overruling Gilmer’s Objection to the Instructions Which Failed to Require That the Jury Find That Clayton Was in a Place Where a Person Would Intend to Be in a State of Undress and Have a Reasonable Expectation of Privacy.

V. This Court Should Reverse Gil-mer’s Conviction Because the Jury Was Not Told That it Had to Find That Clayton’s Expectation of Privacy, If Any, Had to Be Reasonable under the Circumstances.

DISCUSSION

I. Whether the Trial Court Erred in Overruling Gilmer’s Motions for Directed Verdict as Well as His Post-trial Motions for JNOV and New Trial Due to the Insufficiency of the Evidence.

¶ 5. This Court reviews whether the Court erred in denying a motion for directed verdict under a de novo standard of review. White v. Stewman, 932 So.2d 27, 32 (Miss.2006). “[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows ‘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.’ ” Ivy v. State, 949 So.2d 748, at *9 (Miss.2007) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)).

¶ 6. When considering a trial court’s denial of a motion for judgment notwithstanding the verdict, the standard of review is de novo. Poole v. Avara, 908 So.2d 716, 726 (Miss.2005). The trial court must view the evidence in the light most favorable to the non-moving party and look only to the sufficiency, and not the weight of the evidence. Id. When evaluating the denial of a motion for new trial, this Court will overturn the trial court only if it abused its discretion in that it denied a new trial though the verdict was against the overwhelming weight of the evidence. Id. at 727.

¶ 7. The weight and the sufficiency of the evidence are not synonymous. Id. at 726. When determining whether the evidence was sufficient, the critical inquiry is whether the evidence is of such quality that reasonable and fairminded jurors in the exercise of fair and impartial judgment might reach different conclusions. Id. When determining whether the verdict was against the overwhelming weight of the evidence, we will not order a new trial unless we are convinced that the verdict was contrary to the substantial weight of the evidence so that justice requires that a new trial be granted. Id. at 727.

¶ 8. Gilmer places in dispute for the first time the interpretation of Miss.Code Ann. § 97-29-63, the statute under which he was convicted, asserting that according to the plain language of the statute, the evidence was insufficient to prove two of the elements of the statutory crime.

119. The interpretation of a statute is reviewed de novo by this Court. McLamb v. State, 456 So.2d 743, 745 (Miss.1984). The first question in interpreting a statute is whether the statute is ambiguous. Harrison v. State, 800 So.2d 1134, 1137 (Miss.2001). When a statute is unambiguous, this Court applies the plain meaning of the statute and refrains from the use of statutory construction principals. Pinkton v. State, 481 So.2d 306, 309 (Miss.1985). The court may not enlarge or restrict a statute where the meaning of the statute is clear. State v. Traylor, 100 Miss. 544, 558-59, 56 So. 521, 523 (1911). In interpreting statutes, this Court’s primary objective is to employ that interpretation which best suits the legislature’s true intent or meaning. Clark v. State ex. rel Mississippi State Med. Ass’n, 381 So.2d 1046, 1048 (Miss.1980).

¶ 10. Miss.Code Ann. § 97-29-63 (Rev. 2006) reads:

Any person who with lewd, licentious or indecent intent secretly photographs, films, videotapes, records or otherwise reproduces the image of another person without the permission of such person when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom shall be guilty of a felony and upon conviction shall be punished by a fine of Five Thousand Dollars ($5,000.00) or by imprisonment of not more than five (5) years in the custody of the Department of Corrections, or both.

¶ 11. We find that Miss.Code Ann. § 97-29-63 is not ambiguous. The statute provides four elements to this statutory crime: (1) intent — “lewd, licentious or indecent intent;” (2) act — “secretly photographing], filming], videotaping], recording] or otherwise;” (3) lack of consent — “without the permission of [the victim];” and (4) protected location — “when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom.” See Miss.Code Ann. § 97-29-63 (Rev.2006).

¶ 12. Regarding the first element, lewd intent, and the third element, lack of consent, Gilmer does not raise insufficiency of evidence of the State’s proof on appeal. Gilmer’s first assertion of insufficiency concerns the second element, the act of “secretly” recording the victim. Gilmer contends that the evidence did not sufficiently show he “secretly” recorded Clayton based on the fact that Clayton was aware that Gilmer was recording her on each occasion for which he was convicted.

¶ 13. As we are applying the plain meaning of this statute, we will look to Webster’s Dictionary. “Secretly” is defined as “in secret,” “in secrecy,” and “not openly.” Webster’s Third New International Dictionary unabridged 2052 (1986). Of numerous definitions for “secret,” two pertinent ones are “done or undertaken with evident purpose of concealment” and “constructed so as to elude observation or detection.” Id.

¶ 14. The undisputed facts are that Gil-mer recorded Clayton starting around 9:00 at night, sitting inside his vehicle, the interior of which was dark, about 87 feet away from Clayton’s apartment, using a camera and its zoom feature and carrying in his vehicle two sets of binoculars. The time of day, dark location, distance from Clayton’s apartment and equipment for producing close-up recordings from such a distance clearly indicate an attempt by Gilmer to conceal his actions and elude observation or detection. Therefore, the facts were sufficient to support a jury finding beyond a reasonable doubt that Gilmer acted “secretly” in recording Clayton.

¶15. Gilmer further contends that the evidence is insufficient to prove the final element, the location element— that the recording took place “where a person would intend to be in a state of undress and have a reasonable expectation of privacy.” However, as the State asserts, Gilmer has overlooked a significant portion of the statute within the location element.

¶ 16. The entirety of the location element reads that the criminal act of recording must take place: “when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom.” See Miss.Code Ann. § 97-29-63 (Rev.2006). As this is an issue of first impression, we will parse each phrase in this portion of the statute in order to promote clarity.

¶ 17. The language “when such a person is located in a place” introduces the location element and encompasses every phrase in that element which follows. Id. Next, qualifying a location as covered under this statute, are two descriptors: (1) “where a person would intend to be in a state of undress” and (2) “have a reasonable expectation of privacy.” Id. This is the language which Gilmer asserts provides necessary elements which must be proven. We agree.

¶ 18. However, Gilmer fails to acknowledge that immediately following these descriptors, the statute explicitly names certain places, which fit the preceding descriptors, “including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom.” Id. It is obvious that the Legislature intended by using the language “including” to designate as a matter of law a list of places which were included in, or satisfied, the preceding descriptors.

¶ 19. Gilmer maintains that the listing of locations which satisfy the location element is redundant with regard to the preceding descriptors. However, this Court is obliged, whenever reasonable, to reach an interpretation which gives effect to all the statutory language. Davis v. Miller, 202 Miss. 880, 32 So.2d 871, 873 (Miss.1947). This obligation is easily achieved and in accord with a logical reading of the statute. Clearly, all locations in which a person is protected from voyeurism under this statute were not covered by the Legislature in its list as evidenced by its language “including, but not limited to.” This language suggests that the list of places was not exhaustive and that places other than those listed might also satisfy the descriptors.

¶ 20. Consistent with the plain language of the statute, when the prohibited recording happens in one of the explicitly listed locations, the State need not prove at trial, and this Court need not analyze on appeal, whether these places are “where a person would intend to be in a state of undress and have a reasonable expectation of privacy,” as these certain places are locations deemed as a matter of law to satisfy such qualifications. However, when the prohibited recording occurs in a location other than one of those explicitly listed, the State must show at trial and this Court must determine on appeal whether the location was one “where a person would intend to be in a state of undress and have a reasonable expectation of privacy.” Accordingly, the inquiry as to whether the evidence was sufficient to meet the location element, becomes whether the two descriptors are satisfied as a matter of law in that the recording happened in one of the listed locations and if not, whether the evidence was sufficient to satisfy the two descriptors.

¶21. The places which meet the location element as a matter of law are: “private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom.” Miss.Code Ann. § 97-29-63 (Rev.2006) (emphasis added). The “or” indicates that there are two categories of places in the list. The first category is private dwellings. The second category of places consists of public and private facilities, a number of which are named. Without question, proof that Gilmer recorded Clayton while she was in her apartment is equivalent to proving that she was recorded while in her private dwelling.

¶ 22. The location element of Miss.Code Ann. § 97-29-63 is satisfied by proving that at the time of the criminal act, the victim was in a place which meets the two descriptors in the statute. Further, we further hold that in accordance with the plain meaning of the statute, proving that the victim was in one of the places explicitly listed in the statute when the crime occurred is, as a matter of law, sufficient to prove that the victim was in a place which satisfies the two statutory descriptors of the protected locations. Adopting Gil-mer’s interpretation would, in direct contradiction of precedent, restrict the explicit language of the statute and not give effect to the legislative intent. Therefore, we give effect to the entire statute and find that, as it is undisputed that Clayton was in her private dwelling at the time Gilmer recorded her, there was sufficient evidence that the location element was met. Thus, Gilmer’s first assertion of error is without merit, and the trial court did not err in denying Gilmer’s motion for directed verdict, JNOV or a new trial.

II. Whether the Trial Court Committed Reversible Error in Overruling Gilmer’s Motion to Quash the Indictment for Failure to State an Essential Element of the Offense.

¶ 23. The second assertion of error Gil-mer raised is that the indictment is defective because it fails to include an essential statutory element.

¶ 24. The question of whether an indictment is fatally defective is an issue of law, and, therefore, is reviewed de novo by this Court. Peterson v. State, 671 So.2d 647, 652 (Miss.1996). An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); Love v. State, 52 So.2d 470, 472 (Miss.1951). Gil-mer does not raise error with the sufficiency of the facts but with the completeness of the elements.

¶ 25. For each count, the indictment read that Gilmer:

did willfully, unlawfully and feloniously and with lewd, licentious, or indecent intent, secretly videotape and record the image of person, Debra Clayton, without her permission, while Debra Clayton was inside of her apartment having a reasonable expectation of privacy, in the City of Ridgeland, Madison County, Mississippi, in violation of Mississippi Code Annotated § 97-29-68 (1972), as amended.

¶ 26. Gilmer contends that the location element is incomplete in that it is lacking the statutory language “when such a person is located in a place where a person would intend to be in a state of undress.” See Miss.Code Ann. § 97-29-63 (Rev. 2006). We reject that argument as this Court has held:

It is not essential, in an indictment for a statutory crime, that the exact descriptive language of the statute be used. Equivalent words of substantially the same meaning as those of the statute may be substituted. Where the language used in the indictment is sufficiently specific to give notice of the act made unlawful, and exclusive enough to prevents its application to other acts, it is sufficient.

Price v. State, 898 So.2d 641, 654 (Miss.2005). As mentioned in the first issue, the statute has defined a private dwelling as a place where a person would intend to be in a state of undress. Clayton being “inside of her apartment,” as stated in the indictment, is equivalent to her being inside her private dwelling. Thus, as the statute assigns to the language in the indictment the same meaning as the language the absence of which Gilmer asserts is fatal, the indictment language is sufficient. Gilmer’s second assertion of error is without merit.

III. The Statute Is Unconstitutionally Vague and Overbroad on its Face and as Applied to Gilmer.

¶ 27. This Court reviews the constitutionality of Mississippi statutes de novo. Thoms v. Thoms, 928 So.2d 852, 855 (Miss.2006).

¶ 28. Gilmer argues that Miss.Code Ann. § 97-29-63 is overbroad. He cites State v. Stevenson, 236 Wis.2d 86, 613 N.W.2d 90 (2000), to support his assertion that the Mississippi statute has a chilling effect on protected speech in that law enforcement, private investigators and reporters could be subjected to prosecution for legitimate activities such as filming a fully clothed person through an open window.

¶ 29. First, it should be noted that while it is raised as an assertion of error, Gilmer neither addressed nor briefed vagueness. Thus, that argument is procedurally barred. Misso v. Oliver, 666 So.2d 1366, 1369-70 (Miss.1996) (declining to address issues raised by the appellant when he did not comply with his affirmative duty to specifically address the issue and provide authoritative support for its position). Further, Stevenson addresses the overbreadth of the Wisconsin voyeurism statute, which is distinguishable from the Mississippi statute. The Wisconsin statute provides in pertinent part:

(2) Whoever does any of the following is guilty of a Class E felony:
(a) Takes a photograph or makes a motion picture, videotape or other visual representation or reproduction that depicts nudity without the knowledge or consent of the person who is depicted nude, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the taking or making of the photograph, motion picture, videotape or other visual representation or reproduction.

Wis. Stat. § 944.205(2)(a).

In finding the statute overbroad, the Wisconsin Supreme Court stated:

[t]he statute not only properly prohibits Stevenson’s surreptitious videotaping of his former girlfriend in the nude, but also improperly prohibits all visual expression of nudity without explicit consent, including political satire and newsworthy images.
Wisconsin Stat. § 944.205(2)(a) does not limit its reach to original depictions of nudity but rather overreaches to all reproductions. It chills the ability to include copies of masterpieces like Mi-chaelangelo’s “David” in a book devoted to famous sculptures and also prevents the dissemination of materials that may portray nudity for health or educational purposes.

Stevenson, 613 N.W.2d at 95. Gilmer’s reliance on Stevenson is misplaced because the grounds for the chilling effect of the Wisconsin statute are absent in the Mississippi statute. As the State asserts, the Wisconsin statute lacks a lewd-intent requirement and a victim-location requirement. The lewd-intent element of the Mississippi statute prevents an overbroad reach to legitimate recording of persons for legitimate purposes, such as political satire, newsworthy images, law enforcement surveillance, and socially valued artistic productions. Beyond the simple act of recording a person without his or her consent, the State must prove that the defendant recorded the victim with a lewd intent and that the defendant did so in a place which constitutes a protected location pursuant to the statute. The combination of the lewd-intent requirement and the victim-location requirement makes the Mississippi statute a much more narrowly tailored statute. In fact, since conviction under Miss.Code Ann. § 97-29-63 requires a showing that the defendant acted with a lewd intent, recordings which meet all the other statutory elements — secretly recording, lack of consent, and in a protected location, such recordings which might be properly undertaken by a police officer— are put in no danger by this statute. Therefore, Gilmer’s assertion as to the overbreadth of the Mississippi statute in that legitimate activities will be implicated is without merit.

IV. The Trial Court Erred in Overruling Gilmer’s Objection to the Instructions Which Failed to Require That the Jury Find That Clayton Was in a Place Where a Person Would Intend to Be in a State of Undress and Have a Reasonable Expectation of Privacy.

V. This Court Should Reverse Gil-mer’s Conviction Because the Jury Was Not Told That it Had to Find That Clayton’s Expectation of Privacy, If Any, Had to Be Reasonable under the Circumstances.

¶ 30. Gilmer’s fourth and fifth designations of error concern alleged errors in the jury instructions and thus, will be addressed simultaneously. His fourth assignment of error asserts that the instruction incorrectly informed the jury that Gilmer could be found guilty, with regard to the victim-location element, upon the mere finding that Clayton was in her private dwelling at the time of the alleged criminal activity. Gilmer contends that this instruction is incorrect because it assumes that a private dwelling is a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy. Gilmer’s fifth assertion of error is that the jury instructions are defective since they do not inform the jury that it must find that Clayton had a subjective expectation of privacy as well as that her expectation must have been reasonable.

¶ 31. The jury instruction for each of the ten counts read:

If you find from the evidence in this case, beyond a reasonable doubt, that the Defendant Eddie Gilmer, did willfully, unlawfully, knowingly, and felo-niously, in Madison County, Mississippi,
1. on or about the_day of_, 2003,
2. with lewd, licentious or indecent intent,
3. secretly photograph, film, videotape, record, or otherwise reproduce the image of Debra Clayton without the permission of the said Debra Clayton,
4. when Debra Clayton was located in her private dwelling where a person would intend to be in a state of undress and have a reasonable expectation of privacy; then you shall find the Defendant, Eddie Gilmer, guilty as charged in Count I of the indictment.
If the State has failed to prove any one or more of the above listed elements, beyond a reasonable doubt, then you shall find the Defendant not guilty.

¶ 32. Each assertion fails for the same reason. As aforementioned, since the showing that the victim was “in her private dwelling” alone is sufficient to meet the victim location element, the finding beyond a reasonable doubt that the victim was “in her private dwelling” is alone a sufficient jury instruction with regard to that element of the statutory crime. Therefore, both of these errors are without merit.

CONCLUSION

¶ 33. In order to obtain a conviction under Miss.Code Ann. § 97-29-63 (Rev. 2006), four elements must be proven: (1) mens rea — lewd intent; (2) lack of consent; and (3) actus reus — secretly recording (4) in a protected location. This Court holds that the fact that a victim was in her private dwelling when the defendant committed the actus reus is sufficient, according to the plain language of the statute, to satisfy the protected-location element. Accordingly, each of Gilmer’s assertions of error are without merit, as each is based on a premise contrary to that holding. Therefore, we affirm the judgment of the Circuit Court of Madison County.

¶ 34. COUNT VI: CONVICTION OF PHOTOGRAPHING A PERSON IN PRIVATE WITHOUT PERMISSION AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT VII: CONVICTION OF PHOTOGRAPHING A PERSON IN PRIVATE WITHOUT PERMISSION AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT VIII: CONVICTION OF PHOTOGRAPHING A PERSON IN PRIVATE WITHOUT PERMISSION AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IX: CONVICTION OF PHOTOGRAPHING A PERSON IN PRIVATE WITHOUT PERMISSION AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT X: CONVICTION OF PHOTOGRAPHING A PERSON IN PRIVATE WITHOUT PERMISSION AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THE SENTENCE IN COUNTS VI, VII, VIII, IX AND X SHALL RUN CONSECUTIVELY WITH EACH OTHER. PURSUANT TO SECTION 47-7-33 or SECTION 47-7-34 MISSISSIPPI CODE OF 1972, THE EXECUTION OF THE LAST FIVE (5) YEARS OF THE SENTENCES IMPOSED IN COUNT IX AND COUNT X ARE STAYED AND THAT PORTION OF THE SENTENCE(S) IS/ARE SUSPENDED AND THE APPELLANT SHALL BE RELEASED ON SUPERVISED PROBATION FOR A TERM OF FIVE (5) YEARS WITH CONDITIONS UNDER THE SUPERVISION OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.

WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES AND DICKINSON, JJ. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, P.J. AND GRAVES, JJ.

DIAZ, Presiding Justice,

dissenting.

¶ 35. Because the majority incorrectly defines the elements of video voyeurism, in violation of fundamental principles of due process, I must respectfully dissent.

¶ 36. As this Court recently noted, “[i]t is bedrock law in Mississippi that criminal statutes are to be strictly construed against the State and liberally in favor of the accused.” Coleman v. State, 947 So.2d 878, 881 (Miss.2006) (citing McLamb v. State, 456 So.2d 743, 745 (Miss.1984)). Chief Justice John Marshall wrote that this ancient rule of statutory interpretation “is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.” U.S. v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37, 42 (1820). Judicial constructions not construing statutes in favor of the offender violate fundamental principles of due process. Duke v. U. of Tex., 663 F.2d 522, 526 (5th Cir.1981), 527 (citing Dunn v. U.S., 442 U.S. 100, 112, 99 S.Ct. 2190, 2197, 60 L.Ed.2d 743 (1979); Marks v. U.S., 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Rabe v.Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 258 (1972); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)). Finally, any “[ajmbiguities concerning the ambit of criminal statutes should be resolved in favor of lenity.” Id. (citing Busic v. U.S., 446 U.S. 398, 406, 100 S.Ct. 1747, 1753, 64 L.Ed.2d 381 (1980); Dunn, 442 U.S. at 112, 99 S.Ct. 2190; Mourning v. Family Publications Service, Inc., 411 U.S. 356, 375, 93 S.Ct. 1652, 1663, 36 L.Ed.2d 318 (1973); U.S. v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971); McBoyle v. U.S., 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931); U.S. v. Scrimgeour, 636 F.2d 1019, 1022 (5th Cir.1981); Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814 (Tex.1970)).

¶ 37. Accordingly, the State was required to prove the following elements: (1) “lewd, licentious or indecent intent;” (2) “secretly photographing], filming], videotaping], recording] or otherwise reproducing] the image of another person;” (3) without their permission; (4) when the other person “is located in a place where a person would intend to be in a state of undress; ” and (5) where that person would “have a reasonable expectation of privacy.” Miss Code Ann. § 97-29-63 (Rev.2006) (emphasis supplied).

¶ 38. Under the majority’s interpretation, the State is able to meet the fourth and fifth elements merely by proving the person was located in a private dwelling. This is a clear violation of our rules of statutory construction, and results in a violation of due process. Duke v. U. of Tex., 663 F.2d 522, 526 (5th Cir.1981). The opinion neither addresses the age-old rule of construction regarding criminal statutes nor does it explain how its interpretation of the statute does not violate due process. Instead, the opinion relies on Davis v. Miller, 202 Miss. 880, 890, 32 So.2d 871, 873 (Miss.1947) in support of its liberal interpretation in favor of the state. Davis held that courts may not construe a statute such that a portion of it becomes meaningless. Id. (citing 50 Am.Jur., Statutes, Sec. 358, 361-64). This proposition actually undermines the majority’s conclusion, for under its interpretation, the undress and privacy portions of the statute become meaningless. Id.

¶ 39. The State presented no evidence that Clayton was “located in a place where a person would intend to be in a state of undress.” This element cannot be met by the mere fact that she was inside her apartment. At all times, Clayton was fully clothed, seated in front of an open door and facing a public parking lot. Consistent with her testimony, reasonable persons would not intend to be in a state of undress while sitting in front of an open door. She repeatedly testified that she never intended to be undressed with the blinds or door open:

Q: At anytime when the defendant was present, were you disrobed?
A: No.
Q: Were there occasions, however, in your home when you were disrobed?
A: As long as my window was shut and my blinds were pulled.
Q: Would it be fair to say that you generally don’t intend to be in a state of undress in your living room or den in front of a plate glass window with it open, do you?
A: Not open.
Q: Or with the blinds open. Would you agree with that?
A: Yes, I would.

¶ 40. Given that the State failed to provide sufficient evidence of an essential element of the crime, the trial court erred in refusing to grant a directed verdict.

¶41. The majority’s broad interpretation of the crime has alarming implications for all persons who use a video camera or any other recording device. The Legislature was clear in its intent: This law was to protect persons from intrusive and invasive private recording — a “Peeping Tom” law for this ever-more digital world. Yet under the majority’s interpretation of the statute, virtually any use of a recording device could prove to be a felony. Under their reasoning, many persons who utilize recording devices in otherwise legal employment might be criminals. Beware then to the television reporter who covers a high school football match and conducts interviews in the team’s locker room. Beware also to the private investigator who is lawfully paid by a spouse to record the night-time activities of a straying mate. Under the majority’s view of the law, any “lewd intent” might be established if the camera happens to zoom in on a sensitive area of the person’s body.

¶ 42. The majority’s elimination of two critical elements from the crime of video voyeurism distorts legislative intent and violates centuries-old, fundamental principles of due process. Because the State has failed to provide sufficient evidence of all the elements of the crime, I would reverse Gilmer’s conviction.

GRAVES AND DICKINSON, JJ., JOIN THIS OPINION.

DICKINSON, Justice,

dissenting.

¶ 43. To be clear, Gilmer did not video someone who believed she was enjoying a moment of privacy where she could not be seen or filmed. Gilmer is charged with video taping Clayton at a time when she was fully clothed and sitting in a place where she freely admits that people outside in the parking lot could see her. While Gilmer’s conduct may be bizarre, distasteful, and perhaps even civilly actionable, it does not constitute voyeurism. Voyeurism is not taking pictures of a person who is aware that the public may be looking. What an absurdity for the law to allow one to stand and look with impunity at a person who knows they are being looked at, but the moment a picture is taken or a video is made, the looker becomes a voyeur, that is to say, a criminal.

¶44. Debra Clayton freely admits she was aware that anyone in the parking lot of her apartment complex could easily see her while she was sitting in front of her balcony door. Thus, from the State’s (and the majority’s) point of view, even though Clayton knew that Gilmer (and others) might be looking at her, they could not take a picture of what they saw without violating Mississippi Code Annotated Section 97-29-63 (the ‘Voyeur Statute”).

¶ 45. According to its very language, the Voyeur Statute is violated only when the person photographed or videotaped is in a place where that person has a reasonable expectation of privacy. By Clayton’s own admission, there was no expectation of privacy where the video was made, and, therefore, the Voyeur Statute was not violated. For this reason, and for those stated by Justice Diaz in his dissent, I respectfully dissent.

DIAZ, P.J., AND GRAVES, J., JOIN THIS OPINION.

      . We take seriously our responsibility to neither enlarge nor restrict a statute. Traylor, 100 Miss, at 558-59, 56 So. 521. The dissent alleges that we have restricted the statute in doing away with a portion of the location element. Quite the contrary, we have parsed the requirement to give effect to all the words in the statute. The proof of location must either meet the two descriptors, in which case both must be proven, or establish that the victim was in one of the explicit locations named in the statute, which according to the structure and plain language of the statute indicate that such locations are deemed by the legislature as meeting the two descriptors. These places are per se places where a person intends to be in a state of undress and has a reasonable expectation of privacy. It seems the dissent would have us discard such a list of places as meaningless and superfluous. The legislators did not choose to precede the list with potentially ambiguous language, such as “for example” but with the word “including” which indicates that the preceding word or phrase is definitely encompassed by the subsequent word or phrase. The only reading which gives effect to the plain meaning of each word and phrase in the statute is that which acknowledges that the Legislature laid out two routes by which the State can prove the location element. We simply give effect to each phrase. The dissent attempts to point out a restrictive approach by the majority, when, in fact, it is the dissent who attempts to restrict the language of the statute and disregard an entire listing of locations in the statute as superfluous.

      . In order to prevent potential confusion resulting from the dissent's allegations of a due process violation in that we have removed the burden of proving lewd intent, this Court reiterates the requirement that the State must prove each element of this statutory offense in order to obtain a valid conviction. As for what is sufficient to prove this element, since Gilmer did not raise an issue of sufficiency of evidence of lewd intent, that issue is not before this Court, and therefore, we will not engage in an examination of the sufficiency of such evidence. See Excello Feed Milling Co. v. United States Fidelity & Guaranty Co., 145 Miss. 599, 608, 111 So. 94 (1927) ("a ground for the reversal of a judgment is waived when the brief of the appellant contains no reference thereto was expressly decided in N.M. & C.R.R. Co. v. State, 110 Miss. 290, 70 So. 355”); McCaleb v. McCaleb, 110 Miss. 486, 70 So. 563 (1915), modified, 113 Miss. 337, 74 So. 275 (1917) (a question, not raised either by assignment of error or mentioned in brief of the appellant, need not be considered on appeal).
      We do note, however, that the lewd-intent element clearly distinguishes the police officers, who secretly recorded Gilmer without his consent for an evidentiary purpose, from Gilmer, against whom evidence was presented of his recording Clayton without her consent in a manner to conceal his activities, zooming in on Clayton’s crotch and chest areas, engaging in back-and-forth hand motions behind the wheel during recording, and stating on the night of his arrest, "Ain't it funny what p**** will make you do?” As such, the dissent can rest assured that a per se violation of this statute is not established when a television reporter simply records persons in the locker room or when a private investigator simply records night-time adulterous activities. The dissent's conclusion that people all over the state are in danger of committing a felony simply because they are using a recording device is unfounded. The only person in danger of a conviction under this statute is one for whom each element, including lewd intent, can be proven beyond a reasonable doubt.

      . The ten counts with which Gilmer was charged occurred during April and May of 2003.


source: Caselaw Access Project

author: DICKINSON, Justice,

license: Public Domain

text:
    Willie Mae VEAL, individually and as Administratrix of the Estate of Willie Mae Smith, for the Use and Benefit of the Estate and Wrongful Death Beneficiaries of Willie Mae Smith v. J.P. MORGAN TRUST COMPANY, N.A. f/k/a Chase Manhattan Trust Company, NAtional Association; Eaton Vance Corp.; Eaton Vance Municipals Trust and Eaton Vance Municipals Trust II.
    No. 2005-IA-00607-SCT.
    Supreme Court of Mississippi.
    May 10, 2007.

      Douglas Bryant Chaffin, Garry James Rhoden, Kenneth L. Conner, Susan Nichols Estes, attorneys for appellant.
    Mark Herndon Tyson, H. Hunter Twi-ford, Jackson, Lawrence D. Wade, Bradley Farel Hathaway, Greenville, Leann W. Nealey, Chad Roberts Hutchinson, Jackson, attorneys for appellees.
   DICKINSON, Justice,

for the Court:

¶ 1. We granted plaintiffs’ interlocutory appeal to consider whether the Circuit Court of Washington County erred in striking the amended complaint and dismissing newly named defendants. Finding no error, we affirm the trial judge’s order.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. On December 26, 2002, Willie Mae Veal (“Veal”) brought an action on behalf of the Estate of Willie Mae Smith (“Smith”) against two corporations alleged to be in control of Autumn Leaves Nursing Home, the nursing home’s administrator and licensee, as well as ten “John Does” and ten “Unidentified Entities.” The complaint alleged negligence, medical malpractice, malice and/or gross negligence, fraud, statutory survival, and statutory wrongful death claims against all of the defendants. Before any responsive pleadings were filed, the plaintiff filed an Amended Complaint to add that Veal had been appointed Administratrix of Smith’s Estate. On March 27, 2003, the named defendants filed an answer, and discovery followed.

¶ 3. On August 31, 2004, after obtaining the written consent of the named defendants, Veal filed a Second Amended Complaint, which purported to substitute the true names of several fictitious parties, who were referred to in her Original and First Amended Complaints as “John Does” and “Unidentified Entities.” The newly named defendants included: J.P. Morgan Trust Co.; Eaton Vance Corp.; Eaton Vance Municipals Trust; Eaton Vance Municipals Trust II; and Donald R. Dwight, James B. Hawkes, and Jessica M. Bibliow-icz as Trustees of Eaton Vance Municipals Trust and Eaton Vance Municipals Trust II. In addition, the Second Amended Complaint included new facts and allegations regarding the “substituted” defendants’ involvement and alleged control over the defendant corporations.

¶ 4. In response to Veal’s Second Amended Complaint, J.P. Morgan Trust Co. (“J.P.Morgan”) filed a motion to dismiss, arguing that Veal had failed to comply with Rules 15(a), 10(d), 9(b), and 12(e) of the Mississippi Rules of Civil Procedure. Defendants Eaton Vance Municipals Trust, Eaton Vance Municipals Trust II and Eaton Vance Corp. (collectively “Eaton Vance”) also filed a motion to dismiss, arguing that the plaintiff failed to obtain leave to file her Second Amended Complaint as required by Rule 21 or, in the alternative, Rule 15(a). Veal responded, arguing that under Rule 15(a), she was not required to obtain leave of the court, because she had obtained the written consent of the existing defendants to the action prior to filing her Second Amended Complaint.

¶ 5. After a hearing on the motions, the trial judge issued an order striking Veal’s Second Amended Complaint and dismissing J.P. Morgan without prejudice because Veal had failed to obtain leave of the court as required by Rule 21 of the Mississippi Rules of Civil Procedure. The trial court reasoned that Rule 15(a)’s provision allowing “written consent of the adverse party” could not apply when new defendants were added, because counsel for the existing defendants could not consent to an amendment of the complaint on behalf of the proposed new defendants. The trial court resolved the issue by looking to Mississippi Rule of Civil Procedure 21, which addresses the addition of a party, and requires an order of the court. Four days later, on March 7, 2005, the trial judge issued another order dismissing Eaton Vance without prejudice, without stating the reasons for dismissal. Aggrieved by the orders, Veal sought an Interlocutory Appeal. We granted the appeal and stayed all trial court proceedings.

ANALYSIS

¶ 6. Veal’s single issue on appeal is whether Rule 9(h) of the Mississippi Rules of Civil Procedure requires leave of the court before a fictitious party may be substituted. Although we find that it does not, we further find that Veal’s Second Amended Complaint did not substitute fictitious parties, but rather added new parties to the cause of action, asserting additional facts and allegations against these newly added defendants. Thus, in adding new defendants, Veal was required by Rule 21 of the Mississippi Rules of Civil Procedure to obtain leave of the court.

¶ 7. The application of the Mississippi Rules of Civil Procedure in this case is a question of law. “When the issues presented on an interlocutory appeal are questions of law, this Court will review those issues, as other questions of law, de novo.” Gant v. Maness, 786 So.2d 401, 403 (Miss.2001). Furthermore, this Court is bound to follow the plain and ordinary meanings of the Rules of Civil Procedure. See Poindexter v. Southern United Fire Ins. Co., 838 So.2d 964, 971 (Miss.2003); Van Meter v. Alford, 774 So.2d 430, 432 (Miss.2000).

I. Substituted Parties Pursuant to Rule 9(h).

¶ 8. In addressing the question presented, we must first determine whether “John Does 1 through 10,” and “Unidentified Entities 1 through 10” were truly “fictitious parties,” so as to come under the purview of Rule 9(h). This, in turn, requires that we examine whether J.P. Morgan; Eaton Vance; Donald R. Dwight, James B. Hawkes, and Jessica M. Bibliowicz as Trustees of Eaton Vance, are legitimate substitutions for the fictitious parties named in the complaint, or instead, are new parties brought into the litigation.

¶ 9. Rule 9(h) reads:

When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered the process and all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party.

Miss. R. Civ. P. 9(h) (emphasis added). Thus, where a plaintiff wishes to file suit against a defendant whose name is not known, the suit may be filed by providing the defendant a fictitious name. Rule 9(h) is not intended to serve as an insurance policy to plaintiffs who wish to protect themselves in case they discover new defendants in the course of litigation. Rule 9(h) authorizes the plaintiff to deviate in only one respect from the requirements of the Mississippi Rules of Civil Procedure in bringing a claim. That is, the plaintiff is allowed to use a fictitious name, rather than the true name of the defendant. In other words, the purpose of Rule 9(h) is to allow a plaintiff to proceed with a lawsuit where the plaintiff knows and can articulate the wrongful conduct of, and claims against, the fictitious party, but simply does not know that party’s name.

¶ 10. Rule 9(h) does not say that a plaintiff may include a fictitious party because the plaintiff suspects that there might be someone out there who might have engaged in conduct which might be actionable. For instance, if the plaintiff knew that a nurse was assisting a doctor with a procedure and that the nurse engaged in negligent conduct, the plaintiff is not prevented from proceeding with litigation against the nurse simply because the plaintiff does not know the name of the nurse. The plaintiff may sue “Nurse X” and upon learning the nurse’s name, substitute it for the fictitious party under Rule 9(h). See Miss. R. Civ. P. 9(h).

¶ 11. However, where a plaintiff suspects that there might have been others involved in the procedure who might have been negligent, but is, at the time suit is filed, unaware of who they are or what negligent act they are alleged to have committed, the plaintiff may not include a fictitious party in the complaint. This Court has previously stated that “the purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but unidentified, who can only be ascertained through the use of judicial mechanisms such as discovery.” Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 896-97 (Miss.2006) (emphasis added).

¶ 12. Having said that, we find it important to point out that the explicit language of Rule 9(h) does not require leave of the court to amend pursuant to Mississippi Rule of Civil Procedure 15(a). In cases where it is unnecessary to amend the content or the substance of a plaintiffs complaint, and the only change is to substitute the defendant’s true name for the fictitious name Rule 9(h) applies, and leave of court is not required.

¶ 13. Here, however, Veal included in her complaint allegations against “fictitious” parties “Defendants John Does 1 through 10,” and “Defendants Unidentified Entities 1 through 10.” With respect to these fictitiously named defendants, Veal alleged the following:

Said Defendants are named pursuant to Miss. R. Civ. P. 9(h), insofar as their acts and/or omissions were negligent and/or otherwise tortious with respect to the care and treatment of, or in the staffing, supervision, administration and direction of the care and treatment of, [the deceased] during her residency at AUTUMN LEAVES NURSING HOME. Alternatively, said Defendants are liable for the negligent and/or otherwise tortious acts and/or omissions of others with respect to the care and treatment of [the deceased] during her residency at AUTUMN LEAVES NURSING HOME.

¶ 14. These general allegations provide no indication that Veal was aware of the existence of any of the additional defendants added by the Second Amended Complaint. Veal simply attempted to substitute newly discovered defendants for the previously named fictitious parties. Veal not only added new allegations against these “substituted” defendants, but also included new facts in support of these allegations. As to the new allegations, Veal asserted that the newly named defendants were negligent and/or tortious with respect to the care and treatment of the deceased, “and/or in the staffing, supervision, administration, operation, oversight, and/or control of the Autumn Leaves Nursing Home which harmed [the deceased].” (Emphasis added). In addition, Veal included an eight-page factual summary titled “The Control by Defendants of the Autumn Leaves Nursing Home,” which described in detail the purchasing and financing of the Autumn Leaves Nursing Home as well as the alleged wrongdoing by the newly named defendants alleged to be in the control and operation of Autumn Leaves Nursing Home. This factual summary included new theories of “bondholders’ control” and “lender liability” against the newly named defendants, none of which were included in Veal’s Original and First Amended Complaints.

¶ 15. Because these substituted defendants were not fictitious parties, they could not have been simply substituted in accordance with the provisions of Rule 9(h).

II. Amended Pleadings Pursuant to Rule 15(a).

¶ 16. Veal argues that she obtained written consent from the original defendants to amend the complaint and, in accordance with Rule 15(a), she was entitled to file a Second Amended Complaint which “substituted” fictitious defendants without leave of the court. It is true that once a responsive pleading has been filed, a complaint may be amended by written consent of the adverse party without leave of court. Rule 15(a) states in pertinent part:

A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served ... Otherwise a party may amend a plead-iny only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires....

Miss. R. Civ. P. 15(a) (emphasis added).

¶ 17. However, even where a plaintiff has obtained consent from the adverse party to amend the complaint, leave of court may still be required by a different rule. Where, as here, the amendment sought is to add new defendants, Mississippi Rule of Civil Procedure 21 is applicable, and requires an order from the court to add a new defendant. See 61A Am. Jur.2d Pleading § 787 (stating that “when a proposed amendment seeks to add parties to the suit ... Rule 21 provides that in such a situation, the parties must obtain approval of the amendment from the court.”). Although we have not previously addressed this precise issue, it has been addressed by several federal circuit courts of appeal in interpreting analogous Federal Rules of Civil Procedure. Under such circumstances, we find this federal authority persuasive. See Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1215 (Miss.2001) (this Court looking to federal interpretations of our state counterparts as persuasive authority when interpreting the Mississippi Rules of Civil Procedure).

¶ 18. In Moore v. Indiana, the Seventh Circuit stated that “[although Rule 15(a) generally permits the plaintiff to amend his complaint once as a matter of course before a response pleading is served ... the plaintiffs requested amendment required leave from the court because it souyht to assert claims against additional defendants.” 999 F.2d 1125, 1128 (7th Cir.1993) (emphasis added). Similarly, in Age of Majority Educ. Corp. v. Preller, the Fourth Circuit held that, pursuant to Rule 21 of the Federal Rules of Civil Procedure, leave of the court is required to be “sought and obtained as a prerequisite to filing the amended complaint.” 512 F.2d 1241, 1246 (4th Cir.1975).

¶ 19. Veal’s Second Amended Complaint includes new language which was included with consent from the original named defendants. If these amendments had been the only changes to the First Amended Complaint, leave of court would not have been necessary. See Miss. R. Civ. P. 15(a). However, because the Second Amended Complaint added new defendants, it also included an amendment which required court approval pursuant to Rule 21. Veal’s failure to obtain court approval rendered the entire Second Amended Complaint improper. Therefore, we affirm the trial judge’s order striking Veal’s Second Amended Complaint.

CONCLUSION

¶20. For the foregoing reasons, the orders of the Circuit Court of Washington County dismissing J.P. Morgan and Eaton Vance and striking Veal’s Second Amended Complaint are affirmed.

¶ 21. AFFIRMED.

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


author: CARLSON, Justice,

text:
    Charlean TROUPE v. James McAULEY, M.D., North Mississippi Medical Center, Inc., North Mississippi Health Services, Inc., and North Mississippi Surgical Center, Inc.
    No. 2006-CA-00252-SCT.
    Supreme Court of Mississippi.
    May 10, 2007.

      James H. Arnold, Durant, Johnnie E. Walls, Jr., Greenville, Jim Davis Hull, Moss Point, Attorneys for Appellant.
    Janelle Marie Lowrey, Robert K. Up-church, John G. Wheeler, William Daniel Prestage, Tupelo, Attorneys for Appellees.
    Before SMITH, C.J., CARLSON AND DICKINSON, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. From the trial court’s refusal to accept the plaintiffs expert medical witness, grant of a directed verdict against the plaintiff, and entry of a final judgment in favor of the medical providers in this medical malpractice case, the plaintiff, Charlean Troupe (Bradley), appeals to us. Finding no reversible error, we affirm the final judgment entered by the Lee County Circuit Court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Charlean Troupe Bradley (Troupe) was referred to Dr. James McAuley, a neuro-otolaryngologist, by Dr. Harold Hudson, who was Dr. McAuley’s partner. The referral to Dr. McAuley was for the purpose of reviewing what Dr. Hudson suspected was a glomus tympanicum, or a benign tumor, in Troupe’s left middle ear. Dr. Hudson had performed a physical examination of Troupe and had ordered a Computerized Tomography Scan (CT Scan). Dr. McAuley then conducted a physical examination of Troupe’s ear and ordered Magnetic Resonance Imaging (MRI) to be done. Based upon the information provided by the CT scan and MRI, Dr. McAuley concluded that Troupe did indeed have a glomus tympanicum and scheduled surgery.

¶ 3. On March 1, 2001, Dr. McAuley performed surgery on Troupe’s middle ear at North Mississippi Medical Center (NMMC) in Tupelo. During the surgery, Dr. McAuley made contact with what he thought was a tumor. Instead, what was thought to be a tumor turned out to be a doubly anomalous carotid artery, which he could not see on the CT scan and MRI that had been conducted. The artery tore, and because Dr. McAuley could not seal it with stitches, he used surgical packing to control the bleeding.

¶ 4. Immediately after surgery, Dr. Robert Becker (Dr. Becker), NMMC’s in-terventional radiologist, then performed another CT Scan and an arteriogram on Troupe’s ear. Dr. Becker confirmed that Dr. McAuley did not lift a tumor, but in fact lifted Troupe’s carotid artery. Because Dr. Becker was going to be out of town the next day, Dr. McAuley arranged for Troupe to be transferred to the University of Alabama Hospital in Birmingham, Alabama (UABH), for treatment, because he wanted to make sure an inter-ventional radiologist would be available if needed. Troupe was prescribed narcotics for pain by Dr. Ethel Beasley at North Mississippi Health Services, Inc. (NMHS), prior to being transported from NMMC to UABH.

¶ 5. Upon her return home from UABH, Troupe was sent to Mississippi Methodist Rehabilitation Center (MMRC) in Jackson for therapy. While at MMRC, Troupe developed a movement disorder that physicians determined was not due to the injury to her artery but was instead due to a psychological problem. The record revealed the medical opinion was that Troupe’s “pattern of apparent abnormal movements is not compatible with any neu-rologic disorder,” but instead, “improvement with distraction is a strong indication that these are psychologically and not neurologically mediated.”

¶ 6. On June 4, 2001, Troupe filed her original complaint against Dr. McAuley, NMMC, Mississippi Methodist Rehabilitation Center Auxiliary, Inc. (MMRCA), and “John Doe Person(s)” and “John Doe Entity(ies),” in the Circuit Court for the First Judicial District of Hinds County. On July 6, 2001, MMRCA filed a motion to dismiss based on a failure to state a claim and failure to sue the correct entity. On July 12, 2001, Dr. McAuley and NMMC filed a joint Motion for Change of Venue, or in the Alternative, to Sever and Change Venue. On February 14, 2002, the Hinds County Circuit Court, Judge Swan Yerger, presiding, entered an Order Severing Claims and Transferring Venue, thereby transferring Troupe’s severed claims against Dr. McAuley and NMMC to the Circuit Court of Lee County.

¶ 7. In her first amended complaint filed in the Lee County Circuit Court on December 23, 2002, Troupe added as party-defendants North Mississippi Health Services, Inc. (NMHS), North Mississippi Surgical Center, Inc. (NMSC), Dr. Robert Becker, and Dr. Etha S. Beasley as defendants. However, the trial judge eventually entered orders dismissing Dr. Becker and Dr. Beasley, with prejudice.

¶ 8. On September 26, 2005, NMMC, NMHS, and NMSC filed a Motion to Strike Plaintiffs Designation of Expert Witnesses. This motion, asserted, inter alia, that Troupe’s “formal designation of trial experts, dated September 6, 2005, was submitted less than the sixty (60) days required by Rule 4.04 of the Uniform Circuit and County Rules,” inasmuch as the trial was scheduled to begin on October 31, 2005. On September 28, 2005, Dr. McAu-ley filed a Joinder of the Defendant, James McAuley, M.D., in Motion of North Mississippi Medical Center, Inc., et al., to Strike Plaintiffs Designation of Expert Witnesses. We find nothing in the record concerning the trial court’s disposition of these motions.

¶ 9. On October 31, 2005, and November 1, 2005, a jury trial was conducted in the Circuit Court of Lee County, Judge Thomas J. Gardner, III, presiding. Troupe commenced her presentation of the evidence by calling Dr. McAuley as an adverse witness. Troupe then called Dr. Charles E. Rawlings to the witness stand in an effort to qualify him as an expert witness in the field of neurosurgery as opposed to otolaryngology or neuro-otolar-yngology.

¶ 10. During his voir dire of Dr. Rawl-ings in an effort to qualify him as an expert, Troupe’s attorney elicited from Dr. Rawlings before the jury, inter alia, that he was a physician, neurosurgeon and attorney; that he was board certified in neurosurgery, current on his continuing medical education, but he was not currently practicing neurosurgery; that he had a law degree from Wake Forest University; and that, as to Troupe’s litigation, he had reviewed her medical records from NMMC and UABH. Troupe’s attorney then asked Dr. Rawlings, “[biased upon your review of [Troupe’s] records, medical records and your opinion to a reasonable degree of medical certainty, tell the jury what happened to [Troupe].” At this point, the attorneys for Dr. McAuley and NMMC objected, and Troupe’s counsel then asked Judge Gardner to accept Dr. Rawlings as an expert in the specialty of neurosurgery rather than otolaryngology or neuro-oto-laryngology. Judge Gardner put the jury in recess, and outside the presence of the jury, Troupe’s counsel argued that Dr. Rawlings’s testimony was acceptable because Dr. Rawlings had training in surgery, and because the doctor who treated Troupe at UABH was a neurologist. Outside the presence of the jury, Judge Gardner allowed Troupe’s counsel to continue to attempt to qualify Dr. Rawlings as an expert in neuro-otolaryngology, and the following questioning occurred:

Q. Dr. Rawlings, are you trained in surgery in the head area?
A. Yes.
Q. Is it sometimes commonly referred to a neurosurgeon as a brain surgery (sic)?
A. It is.
Q. Okay. And are you competent to do any type of surgery involving the area of the brain and the internal organs of the head?
A. Neurosurgery is that part of the surgery that does procedures upon the head, the scalp, the skull, the covering of the brain, the brain and the arteries that lead to the brain.
Q. Okay. Would you be familiar with the left internal carotid artery?
A. I would be.
Q. And the other arteries communicating or surrounding, receiving blood off of that main artery and all of the vessels of the head, including those in and around the ear?
A. Yes, sir.
Q. Doctor, you read the records, medical records concerning Charlean. Have you had experience, direct experience with things, cases involving the carotid artery and the matters concerning the vascular system about which we’re here today in the case of Charlean Troupe Bradley?
A. Yes. I mean the neurosurgeons operate upon the carotid artery, and the case today is primarily about biopsying a normal carotid artery.
Q. How many such cases have you performed or been involved in involving the carotid artery and the items that would relate to the case that we’re here about today?
A. It would be hard to put a number on them, but doing carotid endarterec-tomies and also clipping aneurisms you’re dealing with the carotid artery yourself.
Q. Could you tell the Court what percentage of your practice dealt with that type surgery?
A. Intracranial procedures were about 30 to 40 percent.
[PLAINTIFF’S COUNSEL]:
May it please the Court, based upon Doctor Rawlings’ testimony regarding his experience and training, we again offer him as an expert in this case.

¶ 11. In refusing to accept Dr. Rawl-ings as an expert in neuro-otolaryngology where he was tendered as an expert in neurosurgery, Judge Gardner stated, inter alia:

The Court is of the opinion that the burden imposed on the Plaintiff in this case is to establish as to the defendant doctor in his particular field of specialty a standard of care which he owed to the Plaintiff in this case and to demonstrate — and that standard of care is because of where he is in the discipline that he is trained in. It’s not a general practitioner’s standard, it’s higher than that, and the voir dire or qualification, the attempt to qualify this witness doesn’t even touch on that.
Further, there must be some showing of some violation of that standard of care imposed on the doctor within the specialty that he pursues and that that in some way resulted in the damages or injuries sustained by the Plaintiff.
To say that a neurosurgeon knows intuitively what the standard of care is as to Dr. McAuley or in any other discipline within the practice of medicine presupposes a whole lot of information that’s not made clear here by his qualification and voir dire or your questions directed to him. And as to the requirement that the Defendants participate in qualifying him by voir dire examination, I think that’s ludicrous.[] They’re certainly within their right to stand on the qualifications tendered and to not expand on that inadvertently or giving any further opportunity if they elect to do that.
The opinion of the Court is that this witness is not competent to testify against Dr. McAuley in this case simply because he has not established by virtue of training or otherwise that he knows the standard of care, that he’s familiar with that and can testify about how, if any, in any way that standard was breached and the causal connection.
Now, the matters having to do with neurosurgery, I don’t have any question but that he is a competent witness. If you’re going to question him concerning causation, violation of the standard or the standard itself, I think he is not qualified to testify about that.
Now, if you wish to make a record, you may do so by proffer or by asking him questions.

¶ 12. Accepting this invitation from the trial judge, Troupe’s attorney continued his questioning of Dr. Rawlings (again, outside the presence of the jury), in order to make his proffer for the record. During this proffer, Dr. Rawlings testified, to a reasonable degree of medical certainty, inter alia: that when Troupe presented to Dr. McAuley, she complained of dizziness and decreased hearing in her left ear; that the CT scan and MRI performed under the supervision of Dr. Hudson or Dr. McAuley were normal; that Dr. McAuley eventually discovered a mass behind Troupe’s left eardrum, which he believed to be a benign vascular tumor; that based on this diagnosis, Dr. McAuley performed surgery, resulting in the tearing which damaged Troupe’s left internal carotid artery, necessitating an occlusion of the left carotid artery; that during her hospitalization, Troupe had several episodes of hypo-tension resulting in a tremor disorder; that there was a breach of the standard of care in the inappropriate administration of morphine at NMMC prior to Troupe’s transportation from NMMC to UABH; that the resulting hypoxia “more than likely damaged or at least physiologically changed, damaged her deep brain structures that subserve movement, in other words, coordination;” that Dr. McAuley specifically breached the standard of care to which Troupe was entitled “[b]y not ruling out the presence of an aberrant internal carotid artery and by upon the surgery lacerating or biopsying or tearing the aberrant internal carotid artery;” that Dr. McAuley breached the standard of care by not ruling out the presence of an aneurism or an aberrant artery upon his discovery of the reddish-bluish mass behind Troupe’s left eardrum; and, that Troupe’s ultimate injury caused by Dr. McAuley’s breach of the standard of care resulted in Troupe’s movement disorder. The following colloquy then occurred between Troupe’s counsel and Dr. Rawlings:

Q. Doctor, as a neurosurgeon would you be familiar with the damages to her deep brain structures? Is that a part of your training?
A. It is.
Q. Okay. Doctor, to a reasonable degree of medical certainty can hypoxia cause various types of movement disorders?
A. It can.
Q. And Doctor, based upon your medical knowledge and training to a reasonable degree of medical certainty can hypoxia cause progressively deteriorating movement disorders?
A. It could, yes.
Q. Okay. And would that explain why Mrs. Troupe had episodes of some clarity in her movement disorder after taking Mysoline and then ultimately the condition progressing to a point where Mysoline by itself would not alleviate her condition?
A. It’s one possibility, yes.
Q. Okay. Doctor, are you saying to a reasonable degree of medical certainty that Dr. McAuley and the North Mississippi Medical Center violated the standard of medical care that was due Mrs. Troupe in her treatment?
A. In my opinion, yes.

¶ 13. Upon Dr. Rawlings being tendered by Troupe’s attorney, the attorneys for Dr. McAuley and NMMC conducted their voir dire of Dr. Rawlings for the record. During defense counsels’ voir dire, it was revealed: that Dr. Rawlings last performed surgery in December, 1999; that in March, 2001, when Troupe presented to Dr. McAuley, Dr. Rawlings, a neurosurgeon, was a full-time law student, and as of July, 2001, he had relinquished all staff privileges at hospitals; that in 2002, Dr. Rawlings graduated from law school and was admitted to practice law in North Carolina, where he specialized in medical negligence eases; that Dr. Rawlings had never pursued an otolaryngology residency or fellowship; that Dr. Rawlings was aware that Dr. McAuley had a fellowship in neuro-otolaryngology; and, that while on the medical staff at Forsyth Hospital in Winston-Salem, North Carolina, Dr. Rawl-ings never had privileges to perform middle ear surgery, because such privileges were reserved for physicians who specialized in otolaryngology.

¶ 14. Finally, upon further questioning by Troupe’s attorney, Dr. Rawlings testified as follows:

Q. Doctor, to a reasonable degree of medical certainty is it ever appropriate for a physician doing the type operation that Dr. McAuley or any other physician was doing or purported to do in his records to cut the carotid artery?
A. No.
Q. Is that always a breach of the standard of care?
A. It is.
Q. Doctor, would it be possible for a neurosurgeon to give an opinion as to the laceration of a carotid artery?
[Objection by opposing counsel.]
Q. Regardless of whether or not it was done by an ENT specialist or perhaps even a doctor with your specialty?
[Objection overruled.]
A. Yes.

¶ 15. Again, Judge Gardner refused to declare Dr. Rawlings as an expert to offer opinions before the jury as to Dr. McAu-ley’s alleged breach of the standard of care owed to Troupe, whereupon the attorney for Troupe then requested Judge Gardner to certify this issue to this Court via an interlocutory appeal, and Judge Gardner denied this request.

¶ 16. Upon Judge Gardner’s disallowance of Dr. Rawlings’s testimony, Troupe’s counsel rested the plaintiffs case-in-chief. The attorneys for Dr. McAuley and NMMC then moved for a directed verdict, which Judge Gardner granted. Consistent with the grant of a directed verdict, Judge Gardner subsequently entered a final judgment in favor of Dr. McAuley and NMMC on November 10, 2005. On November 14, 2005, Troupe filed a motion requesting the trial court to reconsider its ruling prohibiting Dr. Rawlings to testify as an expert witness pursuant to Miss. R. Evid. 702, and also requesting a new trial. Judge Gardner denied these post-trial motions by order entered on January 23, 2006. Troupe timely filed her notice of appeal on February 6, 2006.

DISCUSSION

¶ 17. There is but one critical issue for this Court to decide today. Charlean Troupe phrases the issue as follows: “The trial court erred in refusing to accept Dr. Rawlings as an expert on the standard of care on the basis that a neurosurgeon can not testify as to the standard of care owed by a neuro-otolaryngologist.” NMMC asserts that “[t]he trial court herein acted well within its discretion in excluding the opinion testimony of Ms. Troupe’s tendered expert, Charles E. Rawlings, M.D., after finding that Dr. Rawlings failed to demonstrate education, training, or experience in the medical specialty of the health care provider defendants or knowledge of the applicable standards of care.” Finally, Dr. McAuley presents to us that the trial court appropriately found that Dr. Rawl-ings was as a matter of law incapable, as “a neurosurgeon and lawyer,” of offering an expert opinion as to the proper standard of care applicable to a neuro-otolar-yngologist, and that the trial court (1) properly excluded the testimony of Dr. Rawlings, and thus correctly granted a directed verdict in favor of Dr. McAuley; and (2) properly refused to accept Dr. Rawlings as an expert, but that this refusal on the part of the trial court “was not based upon [Dr. Rawlings] being a neurosurgeon, but was based upon Dr. Rawlings not knowing the standard of care applicable to Dr. McAuley.”

¶ 18. We thus rephrase the sole issue before us for clarity in discussion.

WHETHER THE TRIAL COURT ERRED IN REFUSING TO ACCEPT DR. RAWLINGS, TENDERED AS AN EXPERT IN NEUROSURGERY, TO TESTIFY AS TO THE STANDARD OF CARE OWED BY A NEURO-OTOLARYNGOLOGIST.

¶ 19. “The standard of review for the admission or suppression of evidence in Mississippi is abuse of discretion.” Poole v. Avara, 908 So.2d 716, 721 (Miss.2005) (citing Miss. Trans. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003)). “The trial judge has the sound discretion to admit or refuse expert testimony; an abuse of discretion standard means the judge’s decision will stand unless the discretion he used is found to be arbitrary and clearly erroneous.” Id. When considering a trial court’s grant of a directed verdict, this Court’s standard of review is de novo. White v. Stewman, 932 So.2d 27, 32 (Miss.2006).

¶ 20. Troupe argues that the trial court refused to accept Dr. Rawlings as an expert witness simply because he was a neurosurgeon rather than an otolaryngologist or neuro-otolaryngologist. However, Dr. McAuley and NMMC argue that the trial court correctly refused to accept Dr. Rawl-ings as an expert witness because he lacked the requisite knowledge to testify as to the standard of care owed by a neuro-otolaryngologist where he was tendered only as an expert in neurosurgery.

¶ 21. Miss. R. Evid. 702 (amended 2003) states:

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

¶ 22. This Court recently had an occasion to once again address the issue of expert witness testimony in a medical malpractice setting. In Cheeks v. Bio-Medical Applications, Inc., 908 So.2d 117 (Miss.2005), this Court stated:

To present a prima facie case of medical malpractice, a plaintiff, (1) after establishing the doctor-patient relationship and its attendant duty, is generally required to present expert testimony (2) identifying and articulating the requisite standard of care; and (3) establishing that the defendant physician failed to conform to the standard of care. In addition, (4) the plaintiff must prove the physician’s noncompliance with the standard of care caused the plaintiffs injury, as well as proving (5) the extent of the plaintiffs damages. McCaffrey v. Puckett, 784 So.2d 197, 206 (Miss.2001) (citing Ladner v. Campbell, 515 So.2d 882, 887-88 (Miss.1987)). A physician who is sufficiently “familiar with the standards of [a medical] specialty, [may testify as an expert, even] though he [does] not practice the specialty himself.” West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 718-19 (Miss.1995). “It is our general rule that in a medical malpractice action negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care.” Brooks v. Roberts, 882 So.2d 229, 232 (Miss.2004) (citing Sheffield v. Goodwin, 740 So.2d 854, 858 (Miss.1999)).

Id. at 120. Thus, this Court makes it clear that there is no per se rule that Dr. Rawl-ings had to be a neuro-otolaryngologist in order to be qualified to testify as an expert in the case sub judice. However, Dr. Rawlings had to demonstrate that he was sufficiently “familiar with the standards of’ neuro-otolaryngology by knowledge, skill, experience, training, or education in accordance with Miss. R. Evid. 702.

¶ 23. Therefore, it is crucial to understand the factual basis for this Court’s decision in Cheeks, involving a medical negligence claim due to the death of a dialysis patient who suffered severe hemorrhaging at the site where a shunt for dialysis had been implanted. We quote here from Cheeks:

In order to testify, Dr. Myers, a family physician, must have been familiar with the standard of care to which a dialysis clinic, a nephrologist and a radiologist are held. McCaffrey, 784 So.2d at 203. Dr. Myers was not board certified in family practice or any other specialty; was not a member of the American Medical Association; was not on staff at any hospital and could not admit patients to any hospital; had no special training or experience in the field of nephrology; had never been inside a dialysis clinic in Mississippi; had never participated in a dialysis procedure; had never operated a dialysis machine; had never monitored a patient while he was receiving the actual dialysis treatment; relied on the expertise of a nephrologist when determining whether one of his patients was receiving the appropriate type of dialysis treatment or responding to the treatment as he should; had never inserted a gortex graft; had never seen a graft inserted into a patient; had never inserted a dialysis needle into a graft; had never inspected a graft which was implanted in a patient; had never recommended that a graft be replaced; was, by his own admission, not qualified to render opinions as to when or whether a graft should be replaced, because these medical opinions fall within a specialized area in which he had no experience or training; had never read any literature on the specific type of graft at issue; and did not know who manufactured the graft in question or the manufacturer’s recommendation as to the life of the graft. Dr. Myers further admitted that it was the job of a radiologist to determine whether a particular graft is functioning properly; that a radiologist inspected Henry’s graft approximately 30 days prior to Henry’s death and found it to be operating properly; and that he (Dr. Myers) could find nothing wrong with that radiologist’s report.

Id.

¶ 24. Similarly, Dr. Rawlings was not qualified to testify against Dr. McAu-ley. Dr. Rawlings was not board certified in otolaryngology or neuro-otolaryngology; he was board certified in neurosurgery. He last performed surgery in December 1999. At the time of Troupe’s surgery, Dr. Rawlings was not actively practicing medicine. Dr. Rawlings had no special training or experience in the field of oto-laryngology or neuro-otolaryngology. He had never conducted middle ear surgery, had never had privileges at any hospital to conduct middle ear surgery, and was not qualified to conduct middle ear surgery. Dr. Rawlings did not hold himself out to be an expert in otolaryngology or neuro-otolaryngology. His curriculum vitae did not demonstrate any articles that he had written nor any presentations that he had given regarding otolaryngology or neuro-otolaryngology. Furthermore, Troupe tendered Dr. Rawlings as an expert in neurosurgery. Troupe’s counsel repeatedly asked Dr. Rawlings about his qualifications concerning the carotid artery. Dr. McAuley was not conducting surgery on Troupe’s carotid artery; he was conducting surgery on Troupe’s left middle ear, as Dr. Rawlings admitted. Dr. Rawlings readily admitted that he had never performed middle ear surgery, because he never had privileges to perform middle ear surgery.

¶ 25. We have consistently stated that when considering Miss. R. Evid. 702 issues, our trial judges are placed in the role of gatekeepers, “ensuring that expert testimony is both relevant and reliable.” Poole, 908 So.2d at 723 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238, 249 (1999)). See Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 35 (Miss.2003), wherein this Court adopted the rule laid down in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Poole, we likewise reiterated that “[t]he rule is that the expert must exercise the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” 908 So.2d at 724 (citing McLemore, 863 So.2d at 37-38).

¶ 26. With this in mind, and in remembering the proffer which was before the trial judge when he refused to accept Dr. Rawlings (a neurologist who had never performed middle ear surgery), as an expert to offer an opinion on the appropriate standard of care which Dr. McAuley (a neuro-otolaryngologist performing middle ear surgery) owed to his patient, Charlean Troupe, we are unquestionably compelled to find as a matter of well-established law that the trial judge did not abuse his discretion in excluding this opinion testimony on the part of Dr. Rawlings.

¶ 27. The practical effect of Judge Gardner’s ruling as to Dr. Rawlings was that Troupe was undeniably left with the inability to meet her burden of proof in this medical negligence case. Again, “ ‘[i]t is our general rule that in a medical malpractice action negligence cannot be established without medical testimony that the defendant failed to use ordinary skill and care.’ Brooks v. Roberts, 882 So.2d 229, 232 (Miss.2004) (citing Sheffield v. Goodwin, 740 So.2d 854, 858 (Miss.1999)).” Cheeks, 908 So.2d at 120. Without expert medical testimony, Troupe was unable to carry her required burden of proof in this medical malpractice case.

¶ 28. We recently once again discussed our solemn responsibility in reviewing a trial judge’s grant or denial of a motion for a directed verdict. In conducting such a review, we “must decide whether the facts presented, together with any reasonable inferences, considered in the light most favorable to the nonmoving party, point so overwhelmingly in favor of the movant that reasonable jurors could not have returned a verdict for the plaintiff.” Robley v. Blue Cross/Blue Shield, 935 So.2d 990, 996 (Miss.2006) (citing Drennan v. Kroger Co., 672 So.2d 1168, 1170 (Miss.1996)). Therefore, in applying a de novo standard of review as to the trial judge’s grant of a directed verdict in favor of Dr. McAuley and NMMC, we find that the trial judge did not err in directing a verdict in favor of these defendants. Clearly, without the testimony of Dr. Rawlings, when considering all the evidence offered during the plaintiffs case-in-chief, as well as all reasonable inferences which could be drawn from the evidence, all in the light most favorable to the plaintiff, the plaintiff was unable to make out a prima facie case sufficient to require the defendants to go forward with their proof.

¶ 29. Consistent with our discussion of this issue, we reach the inescapable conclusion that this issue is without merit.

CONCLUSION

¶ 30. Serving as the gatekeeper of Rule 702 opinion testimony, the trial judge did not abuse his discretion in disallowing the plaintiffs proffered testimony of Dr. Rawl-ings as to the appropriate standard of care which Dr. McAuley owed to his patient, Charlean Troupe. It necessarily follows that, consistent with our case law, the trial judge likewise did not err in granting a directed verdict in favor of the defendants at the close of the plaintiffs case-in-chief.

¶ 31. Consistent with the directed verdict, the trial court subsequently entered a final judgment dismissing the plaintiffs claims against the defendants. For the reasons stated, the Lee County Circuit Court’s final judgment in favor of Dr. James McAuley, North Mississippi Medical Center, Inc., North Mississippi Health Services, Inc. and North Mississippi Surgical Center, Inc., and against Charlean Troupe, is affirmed.

¶ 32. AFFIRMED.

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

      . Troupe’s last name at the time of trial was Bradley.

      . A neuro-otolaryngologist is a physician who has completed a five-year minimum residency training program in otolaryngology (ear, nose, and throat surgery) followed by advanced fellowship training in otology/neuro-otology. A neuro-otolaryngologist quite often will restrict his or her practice to problems relating to the ear.

      . The CT Scan and the MRI showed the anatomy of Troupe’s ear to be in a normal position. Dr. McAuley saw what he believed to be a tumor while looking into Troupe's ear during the physical examination.

      . Troupe’s surgery was conducted in NMMC's surgery unit, North Mississippi Surgical Unit, Inc.

      . Dr. McAuley testified that he had never seen or read about a doubly anomalous carotid artery. He further testified that, in his training, based upon his physical examination of Troupe’s ear, "the only thing it could be is a glomus tympanicum."

      . NMHS is a unit of NMMC.

      . MMRCA’s motion states: "The hospital where Plaintiff received rehabilitation treatment is owned and operated by The Mississippi Methodist Hospital and Rehabilitation Center, Inc. (Exhibit “C"). Mississippi Methodist Rehabilitation Center Auxiliary, Inc. is a separate corporation formed for the purpose of providing financial and spiritual support to the hospital and its patients. (Exhibit "D”). Mississippi Methodist Rehabilitation Center Auxiliary, Inc., does not own or operate the hospital to which Plaintiff was admitted on March 15, 2001.” Troupe filed a Motion to Amend the Complaint on July 30, 2001, to amend the name of the defendant, MMRCA, to Mississippi Methodist Rehabilitation Center, Inc.

      .In Judge Yerger’s order of February 14, 2002, the Hinds County Circuit Court retained the claims against Mississippi Methodist Rehabilitation Center Auxiliary, Inc. and Mississippi Methodist Rehabilitation Center, Inc., and transferred the claims against Dr. McAuley and NMMC to the Circuit Court of Lee County, which ultimately entered a final judgment on the claims asserted against Dr. McAuley, NMMC, and the other defendants added after the transfer to Lee County. Thus, Mississippi Methodist Rehabilitation Center Auxiliary, Inc., and Mississippi Methodist Rehabilitation Center, Inc., are not parties to this appeal.

      . Because NMHS and NMSC are units of NMMC and were defended at trial as one entity by the same attorney, we will refer to these defendants collectively as NMMC.

        . Dr. Beasley’s first name is actually Ethel.

      . Troupe’s attorney had argued to Judge Gardner that the attorneys for Dr. McAuley and NMMC, as a prerequisite to arguing that Dr. Rawlings was not qualified to testify as an expert, should have conducted voir dire of Dr. Rawlings upon his being tendered as an expert.

      . Effective December 9, 2004, as to trial court orders entered from and after March 1, 2005, the provisions of Miss. R.App. P. 5(a) and 5(b) were amended to eliminate the requirement of seeking trial court certification of an interlocutory appeal to this Court. Since the trial of today’s case occurred on October 31 and November 1, 2005, Troupe was not required to seek trial court certification of an interlocutory appeal to this Court. In any event, Troupe never sought relief from this Court via an interlocutory appeal.

      . Thus, in McLemore, this Court abandoned and "rejected” the standard laid down in Frye v. United States, 293 F. 1013, 1014 (D.C.Circ.1923). McLemore, 863 So.2d at 42-43.