author: SMITH, Chief Justice, for the Court.

text:
    Rosie THOMAS, Individually and on Behalf of the Wrongful Death Beneficiaries of Wilson Thomas, Jr., Deceased v. The COLUMBIA GROUP, LLC; The Columbia Group, LLC d/b/a Shady Lane Apartments.
    No. 2006-CA-01945-SCT.
    Supreme Court of Mississippi.
    Nov. 29, 2007.

      James Ashley Ogden, Jackson, Attorney for Appellant.
    Walker Reece Gibson, Michael Wayne Baxter, Ridgeland, Attorneys for Appellee.
    Before SMITH, C.J., GRAVES and RANDOLPH, JJ.
   SMITH, Chief Justice, for the Court.

¶ 1. This appeal arises from a wrongful-death action in which the Plaintiffs, Rosie Thomas, individually and on behalf of the wrongful-death beneficiaries of Wilson Thomas, Jr., deceased (“Thomas”), alleges negligence against Defendants, The Columbia Group, LLC, The Columbia Group, LLC d/b/a Shady Lane Apartments (“Shady Lane”).

¶2. On July 27, 2004, in the Circuit Court of Yazoo County, Thomas filed a complaint alleging negligent security, failure to warn, and failure to maintain the apartment complex in a reasonably safe condition. The complaint further alleged that Shady Lane’s negligence caused the shooting and death of Wilson Thomas, Jr., on August 1, 2003. The complaint was amended March 21, 2005, and the amended complaint was answered May 5, 2005.

¶ 3. On February 16, 2006, Shady Lane filed a motion for summary judgment. Arguments on the motion for summary judgment were heard on April 24, 2006, before Judge Jannie Lewis. Four days later, Judge Lewis entered an order denying Shady Lane’s motion for summary judgment. On August 3, 2006, citing a newly published case, Shady Lane renewed its motion for summary judgment. The renewed motion was argued before a special judge, Judge Mike Smith, who granted the motion for summary judgment.

¶ 4. Thomas then filed a motion for new trial, amendment of judgment, judgment notwithstanding' the verdict, relief from judgment, and a separate motion to reconsider. Judge Smith entered an order denying Thomas’s motions on October 16, 2006, and Thomas filed a notice of appeal on November 7, 2006.

¶ 5. On appeal is the issue of whether the trial court improperly granted Shady Lane’s motion for summary judgment. We hold that these are issues of material fact, thus the trial court erred in granting summary judgment. We reverse and remand.

STATEMENT OF FACTS

¶ 6. Shady Lane is an apartment complex in Yazoo City controlled by The Columbia Group and subsidized by the United States Department of Housing and Urban Development (HUD). ' Wilson Thomas, Jr., lived at Shady Lane Apartments with his girlfriend, Teresa Mitchell, for approximately two years. Thomas was not listed on the lease, but the manager, Catherine Washington, knew or had reason to know that he was living there, and did not seem to have any problem with it.

¶ 7. Shady Lane is located in a high-crime area. Sometime in the late 1980s Shady Lane hired armed security guards to patrol the property. In the late 1990s Shady Lane installed an iron fence around the entire property. There was only one entrance to the property, and it was controlled by a guard stationed in a booth to monitor who entered and exited the property. Around 2000, the guards were removed and within a few months replaced by security cameras located around the entire property.

¶ 8. On Thursday, July 24, 2003, Wilson Thomas was shot by Cornelius Young after trying to calm an argument between Young and his girlfriend. The shot merely grazed Thomas, but he required medical treatment and later that day filed a police report. The apartment manager was informed of the shooting, and held a meeting to discuss what to do about it. The apartment manager said that she was going to get security and keep Young off the property. This was not enforced.

¶ 9. On August 1, 2003, Young entered the Shady Lane property through the front gate, parked his car, got out and shot and killed Thomas.

STANDARD OF REVIEW

¶ 10. This Court employs a de novo standard of review when reviewing orders granting or denying summary judgment. Mantachie Natural Gas v. Miss. Valley Gas Co., 594 So.2d 1170 (Miss.1992). The moving party must show that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Titus v. Williams, 844 So.2d 459, 464 (Miss.2003). All evidence, including admissions in pleadings, answers to interrogatories, depositions and affidavits must be viewed in the light most favorable to the party against whom the motion has been made, as “he is given the benefit of every reasonable doubt.” Spartan Foods Sys., Inc. v. American Nat’l Ins. Co., 582 So.2d 399, 402 (Miss.1991).

DISCUSSION

¶ 11. At issue is whether the trial court properly granted Shady Lane’s motion for summary judgment. The traditional elements of negligence are duty or standard of care, breach of that duty, proximate causation, and damages or injury. Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991). The analysis of premises liability involves three steps: first, the court must determine the status of the injured party as invitee, licensee, or trespasser; second, based on the injured’s status, the court must determine what duty the landowner/business operator owed the injured party; and third, the court must determine whether the landowner/business operator breached the duty owed the injured party. Little ex rel. Little v. Bell, 719 So.2d 757, 760 (Miss.1998). In this case, damages clearly consist of the death of Wilson Thomas, but we will discuss each of the other elements in turn.

I. Status.

¶ 12. A person is considered an invitee if he enters the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. Holliday v. Pizza Inn, Inc., 659 So.2d 860, 865 (Miss.1995). A person is considered a licensee if he enters the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner, and a person is considered a trespasser if he enters the property of another without license, invitation or other right. Id.

¶ 13. The Plaintiff contends that Thomas was an invitee at the time of the shooting. In Joiner v. Haley, 777 So.2d 50, 52 (Miss.App.2000), this Court stated that “it would appear that an invited guest on the premises of rental property would be afforded the same protections extended to the tenant.” This Court also has noted that in multi-unit apartment buildings, where the owner expressly or impliedly reserves parts for common use, “[i]t is the landlord’s duty to keep safe such parts over which he reserves control, and, if he is negligent in this respect, and personal injury results to a tenant or to a person there in the right of the tenant, he is liable in tort.” Lucas v. Miss. Hous. Auth. No. 8, 441 So.2d 101, 103 (Miss.1983) (quoting Turnipseed v. McGee, 236 Miss. 159, 109 So.2d 551 (1959)). It is undisputed that, at the very least, Thomas was an invited guest of tenant Theresa Mitchell and therefore was afforded the same protections extended to the tenant.

¶ 14. Plaintiff contends that Thomas was living at the apartments and that the manager knew he was living there. Shady Lane argues that the manager had no knowledge that Thomas was living there, and that he was not listed on the lease and therefore not a legal tenant. Plaintiff also notes that Shady Lane derived a benefit from Thomas living on the property, and as such meets the “for-their-mutual-advantage” portion of the definition of invitee. Thomas made monetary contributions in the form of paying for laundry at the apartment laundromat and paying Mitchell’s maintenance bill. There is suitable evidence that Thomas was at Shady Lane under the implied invitation of the owner, and for their mutual benefit. Giving Thomas the benefit of every reasonable doubt for the purposes of summary judgment, it should be concluded that he was an invitee.

II. Duty.

¶ 15. Having characterized Thomas as an invitee, the duty owed is simply an issue of law already established by this Court. A landowner owes an invitee the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view. Titus, 844 So.2d at 467. In Gatewood v. Sampson, 812 So.2d 212, 219-220 (Miss. 2002) (quoting Lyle v. Mladinich, 584 So.2d 397 (Miss.1991)), the Court stated that “[t]he duty imposed upon a business proprietor to protect a patron from assaults by other patrons is that the business owner, though not an insurer of the invitee’s safety, has a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injury at the hands of the other patrons.” The Court went on to clarify that the area where the duty is owed extends to the parking area around the building. Id. This means that in the current situation for the purposes of summary judgment, Shady Lane owed Thomas a duty to exercise reasonable care to protect him from reasonably foreseeable injury at the hands of Young.

¶ 16. Shady Lane argues that Thomas was owed no duty because he was in a position to observe and fully appreciate the peril he was in. In Titus the Court upheld a summary judgment, stating that “it is a general rule of law that the duty to warn disappears entirely when it is shown that the injured person did, in fact, observe and fully appreciate the peril.” Titus, 844 So.2d at 467. Whereas the statement in Titus certainly is true, the facts of this case are significantly different than those of Titus. In Titus, the victim intervened in an argument between the shooter and a third party at approximately 9:00 p.m. in a convenience store parking lot. Id. at 462. The crowd was peacefully dispersed. Id. Some forty minutes later, the victim returned to the parking lot and was spotted by the shooter. Id. at 463. At this point the shooter fired two shots at the victim, missed, and the victim fled. Id. Twenty minutes later the victim again returned to the parking lot, but this time the victim approached the shooter and attacked him. Id. The shooter then retrieved his gun and killed the victim. Id. at 464.

¶ 17. In Titus, the entire affair from first confrontation to shooting took just over an hour. Id. at 463-64. In this case, Young first fired at Thomas on July 25, 2003, and the next interaction, the second shooting, did not occur until a week later on August 1, 2003. In Titus, the victim approached the shooter and attacked him, at which time the shooter retrieved his gun and killed the victim. Titus, 844 So.2d at 463-64. In this case, Thomas was simply sitting in the Shady Lane parking lot when Young pulled up, parked his car, got out and shot Thomas. Thomas did hot say anything to Young. Thomas did not have a weapon. Thomas did nothing to instigate the shooting.

¶18. The distinction is clear. In one situation, a victim willfully placed himself in peril. He attacked the shooter even though he knew that the shooter was currently armed and willing to use the weapon. He assumed the risk. In this case, Thomas tried to break up a fight between Young and Young’s girlfriend and was shot at by Young. A full week later, Thomas had not gone after Young, but instead was sitting with two friends in the parking lot when he was approached by Young. It was an unprovoked attack. Shady Lane repeatedly refers to an ongoing feud between Thomas and Young. However, there is no evidence in the record to support this. Giving Thomas the benefit of every reasonable doubt for the purposes of summary judgment, it should be concluded that Shady Lane did in fact owe him a duty to exercise reasonable care to protect him from reasonably foreseeable injury.

III. Breach of Duty/Proximate Cause.

¶ 19. Shady Lane argues that the shooting was an intervening and superced-ing cause of Thomas’s death. However, this Court has found that for an “intervening and superceding cause to extinguish liability of the original actor, the cause must be unforeseeable.” Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (Miss. 2002) (emphasis added). In this case the cause was not unforeseeable.

¶ 20. In order to establish legal causation, or foreseeability, in cases of assault by a third person, one must show actual or constructive knowledge of the assailant’s violent nature, or actual or constructive knowledge that an atmosphere of violence exists on the premises. Gatewood, 812 So.2d at 220. Evidence of an existing atmosphere of violence may include “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises, as well as the frequency of criminal activity on the premises.” Lyle v. Mladinich, 584 So.2d at 399.

¶ 21. This case presents both. The apartment manager at Shady Lane knew about the first shooting at least two days after it happened. Even if she did not hear about the shooting until two days after it happened, it was still several days before the second shooting, resulting in Thomas’s death, occurred. There is even testimony that the apartment manager “knew something like this was going to happen,” and that she was going to do something about it. As to the existing atmosphere of violence, there is evidence in the record of several previous shootings on the premises and lots of fighting. Specifically, there were more than five shootings at Shady Lane prior to the incident between Thomas and Young, each of which resulted in death: Matthew Wright in 1993; Harry Smith in 1995; James Clark in 1996; and two unidentified Mexican men in 2002. Again, testimony shows that the apartment manager was aware of these occurrences. In this situation, there is at least enough evidence of foreseeability to establish a question of material fact for the jury to determine.

¶22. Shady Lane also argues, and the trial court relied on, the notion that Thomas “can’t put together a set of facts to prove that the defendants did anything to cause Young to kill Thomas.” Plaintiff argues that if Shady Lane had maintained security guards at the gate, and maintained the banned list, Young would not have gotten on the property to shoot Thomas. This Court has held that “[p]roximate cause arises when the omission of a duty contributes to cause an injury.” Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1192 (Miss.1994) (quoting Drummond v. Buckley, 627 So.2d 264, 270 (Miss.1993)). The apartment manager stated that she was going to evict Young, and that she was going to get security and ban Young from the premises. This was not done. In Crain, the Court found that no evidence was presented in the record showing a causal link between a lack of security measures and the injury sustained. Id. In this case, however, there is direct evidence from experts Tyrone Lewis and John Tis-dale that Shady Lane’s failure to follow through with security proximately caused the second shooting of Wilson Thomas. This testimony from experts, coupled with the manager’s statement that she was going to ban and evict Young as well as improve security, is clearly an issue of material fact that should be determined by a jury.

CONCLUSION

¶23. Based on the foregoing analysis, we conclude that there are issues of material fact, and that the trial court erred in granting summary judgment as a matter of law. As such, the trial court’s decision is reversed and remanded for trial.

¶ 24. REVERSED AND REMANDED.

WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ„ CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . Judge Lewis was out on medical leave at this time.


source: Caselaw Access Project

author: CARLSON, Justice, for the Court. DIAZ, Presiding Justice,

license: Public Domain

text:
    Derrick BROWN a/k/a Derrick Latory Brown a/k/a Dedrick Brown v. STATE of Mississippi.
    No. 2005-CT-02291-SCT.
    Supreme Court of Mississippi.
    Nov. 29, 2007.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   ON WRIT OF CERTIORARI

CARLSON, Justice, for the Court.

¶ 1. After a jury trial in the Tate County Circuit Court, Derrick Brown was found guilty of the sale of a controlled substance, cocaine, in violation of Mississippi Code Annotated section § 41 — 29—139(a)(1) (Rev. 2005). The trial judge sentenced Brown to a term of fifteen years in the custody of the Mississippi Department of Corrections, with six years suspended pending his future good behavior, and to pay a fine of $5,000. From the circuit court judgment of conviction and sentence, Brown appealed to us, and we assigned this case to the Court of Appeals. Brown alleged that his federal and state constitutional rights to confront the witnesses against him were violated by the trial court’s erroneous admission of hearsay evidence, and that the trial court erroneously denied his proffered jury instruction on his entrapment defense. The Court of Appeals found that Brown’s claimed error regarding hearsay evidence had merit; therefore, it reversed the trial court judgment and remanded the case for a new trial. Brown v. State, 969 So.2d 891 (Miss.Ct.App.2007). After the Court of Appeals denied the State’s motion for rehearing, the State filed with us a petition for writ of certiorari, which we granted. Brown v. State, 962 So.2d 38, 2007 Miss. LEXIS 480 (Miss. Aug. 23, 2007). After consideration of the record and the applicable law, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of conviction and sentence entered by the Circuit Court of Tate County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. On November 3, 2003, Antonio Echols, a confidential informant (C.I.) for the Panola County Narcotics Task Force (Task Force), contacted Task Force Commander Jason Chrestman about the possibility of buying four ounces of crack cocaine from Elmer “Little Fudge” Armstrong. Chrestman and the Task Force had used Echols as a C.I. on several occasions in the past. By the time Echols contacted Chrestman, Echols already had made telephone contact with Armstrong, whom Echols had met while incarcerated. Armstrong, who resided in Tunica, placed Echols on a three-way call with two unidentified individuals to set up the drug deal. Chrestman wanted to set up the drug buy to occur around Crenshaw, in northern Panola County, but either Armstrong or the unidentified individuals refused to come to Panola County; therefore, the cocaine sale was scheduled to take place at the Wal-Mart store in Sen-atobia, the county seat of Tate County. This phone conversation was not recorded. Following established protocol, Chrestman contacted Tate County Sheriff Shelton Ingram to inform him of the Task Force’s anticipated presence in Tate County, whereupon Sheriff Ingram offered the assistance of his department in this undercover controlled buy.

¶ 3. Commander Chrestman had Echols come to the Panola County Narcotics Task Force office to set up the buy. After arriving at the Task Force office, Echols made a phone call to certain unidentified individuals while the Task Force recorded the phone call with Echols’s knowledge. These unknown individuals informed Echols that they had only two ounces of crack cocaine which they could sell him. Echols agreed to the buy. Thereafter, Echols was searched by Task Force officials, wired and given $1,600 with which to buy the drugs. Echols was dropped off at the Wal-Mart to await the drug purchase. With law enforcement officials providing surveillance and security in this “controlled-buy,” Echols waited in the Wal-Mart parking lot approximately two hours, during which time he made several calls to the individual(s) to inquire about their progress toward Wal-Mart. The individu-ales) told Echols that they were coming in a blue Monte Carlo, which later was changed to a white Delta 88. The Task Force recorded all the calls through Echols’s body wire. During trial, the Task Force’s audiotape recording of Echols’s phone conversations prior to the drug buy, as well as a transcript of the tape-recorded phone conversations, were admitted into evidence by the trial. However, Echols and several law enforcement officers testified that the identity of the individual(s) with whom Echols was speaking was unknown.

¶ 4. After dropping Echols off in the Wal-Mart parking lot, officers from the Task Force, the Drug Enforcement Agency in Oxford, and the Tate County Sheriffs Department positioned themselves in several locations in and near the Wal-Mart parking lot. The officers observed a white Oldsmobile Delta 88 enter the parking lot of the Rascals gas station and convenience store near the Wal-Mart parking lot. A man wearing a red shirt stepped out of the Delta 88 and entered the gas station, while the driver proceeded to Wal-Mart, where he approached Echols. Echols opened the back passenger door of the car. The driver instructed Echols to get in the car. However, Echols refused, claiming that he had been robbed in the past. Instead, Echols showed the driver the money. The driver told Echols he would be right back. In fact, the driver returned two to three minutes later, after picking up the man (wearing the red shirt) whom he had previously dropped off at the gas station. Echols got into the back seat of the Delta 88 and handed the passenger $1,600 in exchange for a plastic baggie, which appeared to contain crack cocaine. Law enforcement officers immediately descended on the car and arrested the driver, identified as Derrick Brown, and the passenger wearing the red shirt, who was identified as Derrick Black.

¶ 5. The plastic baggie was sent to the Mississippi Crime Laboratory and found to contain 1.58 ounces of crack cocaine. A videotape depicting the activities at the Rascals gas station and the Wal-Mart parking lot, including the post-buy arrest, was introduced at trial. Found inside the white Delta 88 were several cell phones, a box of sandwich bags in the trunk, and the $1,600 identified as the “buy money” which Task Force officials had given to Echols. Agent Jamie Tedford of the Drug Enforcement Agency testified that it is normal for narcotics to be sealed in sandwich bags. Tedford also testified that he interviewed Brown after advising him of his Miranda rights. Tedford told the jury that Brown had said that Little Fudge had supplied the drugs and that Brown had given Ted-ford a description of Little Fudge’s vehicle and residence.

¶ 6. After the State rested its case-in-chief, and during the defendant’s case-in-chief, Brown testified in his own behalf He stated that on November 8, 2003, he had planned to go to Wal-Mart in Senatobia to place a toy on layaway for his son. According to Brown, Black had told Brown that he wanted to go with him and had asked Brown to drive because Black did not have a driver’s license. When they arrived at the Rascals gas station and convenience store, Black asked to be dropped off, and Brown stated he assumed Black had to use the rest room. Brown dropped off Black and continued to Wal-Mart. Brown further testified that as he proceeded to Wal-Mart, Echols, a man Brown claimed not to have known prior to that day, flagged him down. Echols showed Brown some money, and Brown left to go back to the gas station to pick up Black, whereupon the two of them then returned to the Wal-Mart parking lot. Brown approached Echols a second time, this time with Black in the passenger seat. Echols got into the back seat of the car. Black and Echols then transacted the drug sale. Brown testified that he previously had not been aware that a drug sale would occur. Brown stated that he never would have agreed to come to Senatobia with Black had he known about the drug deal. Brown did admit, however, that he knew Armstrong because “we basically went to school together, you know, from first grade all the way through.”

¶ 7. Based on testimony presented at trial, the jury found Brown guilty of the sale of cocaine as an aider and abettor. Brown filed a motion for a new trial or in the alternative, judgment notwithstanding the verdict (JNOV), and the trial court denied both motions.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 8. On appeal, Brown asserted two issues which the Court of Appeals considered: (1) whether the trial court’s admission of hearsay evidence violated Brown’s federal and state constitutional rights to confront the witnesses against him; and (2) whether the trial court erroneously denied his proffered jury instruction on entrapment. While the Court of Appeals found no error in the trial court’s refusal of a jury instruction on entrapment, it did find that the trial court erroneously admitted hearsay evidence that substantially prejudiced Brown. Brown, 969 So.2d at 894-99, ¶¶ 11-22. Therefore, the Court of Appeals reversed and remanded this casé for a new trial. ■

¶ 9. In particular, the Court of Appeals determined that the Task Force’s audiotape recording of Echols’s phone conversations prior to the drug sale, as well as the transcript of the tape-recorded phone conversations, constituted inadmissible hearsay. Id. The trial court had ruled that, because the persons to whom Echols had been speaking were unidentified, the tape was admissible for the purpose of showing that the conversations took place and the gist of those conversations. However, the Court of Appeals held that the evidentiary function of the audio recording was to relay impermissible hearsay evidence to the jury, tending to show the planning of a drug transaction by either Brown or Black. Id., at 898, ¶ 19. Additionally, the Court of Appeals found that the admission of the taped conversations substantially prejudiced Brown, requiring reversal of the jury verdict and a new trial. Id., at 899, ¶ 22.

¶ ,10. The Court of Appeals found Brown’s contention involving his entrapment defense to be without merit. Id., at 899-900, ¶¶ 23-26.

DISCUSSION

¶ 11. The Court of Appeals addressed both the hearsay issue as to the taped phone conversations and the entrapment issue. However, since it granted relief to Brown on the hearsay issue, the Court of Appeals understandably chose not to address the issue of whether the admission of the taped phone conversations violated Brown’s federal and. state constitutional rights of confrontation. In its petition for writ of certiorari, the State addressed only the issue on which the Court of Appeals reversed the trial court judgment. Finding that the Court of Appeals properly concluded the issue was without merit, ,we will limit the question for review on certiorari. Yelverton v. Yelverton, 961 So.2d 19, 23-24 (Miss.2007) (citing M.R.A.P. 17(h)). See also Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 900, 903 (Miss.2007).

¶ 12. We will address not only the issue on which the Court of Appeals reversed the trial court judgment — whether the statements in the audiotaped phone conversations, and the written transcription of these tapes constituted impermissible hearsay — but also the issue not addressed by the Court of Appeals: whether Brown’s federal and state constitutional rights to confront the witnesses against him were violated by the trial court’s admission of alleged hearsay, evidence via the taped phone conversations.

I. WHETHER THE PRE-DRUG-BUY STATEMENTS CONTAINED IN THE AUDIOTAPED PHONE CONVERSATIONS BETWEEN THE CONFIDENTIAL INFORMANT AND UNKNOWN PERSONS CONSTITUTED IMPERMISSIBLE HEARSAY.

¶ 13. Our well-founded standard of review for the admission or exclusion of evidence in Mississippi is abuse of discretion. Troupe v. McAuley, 955 So.2d 848, 855 (Miss.2007) (citing Poole v. Avara, 908 So.2d 716, 721 (Miss.2005)). Thus, “[a] trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to - be prejudicial to the accused, the Court will not reverse this ruling.” Shaw v. State, 915 So.2d 442, 445 (Miss.2005) (citing Jefferson v. State, 818 So.2d 1099, 1104 (Miss.2002) (quoting Fisher v. State, 690 So.2d 268, 274 (Miss. 1996))). M.R.E. 103(a). See also Hill v. State, 774 So.2d 441, 444 (Miss.2000); Crawford v. State, 754 So.2d 1211, 1215 (Miss.2000); Gilley v. State, 748 So.2d 123, 126 (Miss.1999); Hughes v. State, 735 So.2d 238, 269 (Miss.1999).

¶ 14. During the trial, an audiotape was received into evidence and played for the jury. The tape depicted, inter alia, the pre-buy arrangements among Echols and unknown persons as to the quantity of the purchase and the pre-arranged location for the sale to take place. At the time the tape was offered, defense counsel objected on grounds of hearsay and constitutional violations, namely the denial of the right of a defendant to confront the witnesses against him. On this issue, the record reveals the following:

By [Defense Counsel]: Judge, I would again object to this hearsay and cite the constitutional provisions I previously cited and the Mississippi Rule of Evidence 611. Mr. Echols doesn’t even know these individuals’ names, Judge and it deprives Mr. Brown of his constitutional right to cross-examine witnesses because we can’t subpoena them to be here without knowing who their names are nor confront them because obviously we don’t know who they are.
The Court: I believe the testimony from this witness is he doesn’t know the name but the prosecutor is offering this tape for the purposes of showing that the conversation took place and this is the gist of that conversation. You are not trying to tell who is on the tape, are you?
[Echols]: No, sir.
The Court: Okay. It can be received into evidence.

Other than the voice of Echols on the tape, neither Echols nor any of the law enforcement witnesses could identify the voices on the audiotape. The State asserts that, contrary to the position taken by the Court of Appeals, the trial court did not abuse its discretion by admitting the tape into evidence, or if it was error, the error was harmless.

¶ 15. Brown argues that the admission of the audiotape made prior to the drug transaction was error. Specifically, Brown contends that no witness was able to identify the voices on the audiotape, other than the C.I.’s voice; thus, Brown asserts the audiotape was inadmissible hearsay which prohibited Brown from confronting the witnesses against him. Furthermore, Brown contends that the audiotape was introduced into evidence and heard by the jury, yet his voice was never identified on the tape.

¶ 16. Mississippi Rule Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Stated another way, an out-of-court statement is not hearsay unless the party offering the statement is attempting to prove that the statement is true. While it is true that neither the C.I. nor the law enforcement officers who testified for the State could identify Brown’s voice on the tape, the failure to identify Brown does not render the tape inadmissible.

¶ 17. In fact, the tape was offered to prove that pre-arrangement conversations had taken place, as Echols and other law enforcement officers had previously testified. In effect, the audiotape corroborated the various witnesses’ testimony. Therefore, sufficient testimony existed to admit the tape for the purpose of proving that the conversations had taken place as well as the gist of those conversations. The audiotape was not offered to show that Brown was involved in the prearrangement conversations, nor could it have been. A careful review of every word and sentence on the audiotape reveals no statement which the State needed to prove as true. The tape contains such utterances as, “Ain’t got but two left” ... “I want it hard man” ... “Yeah. I’m with my bride but I’m going to be walking out where I can see you man.” The State had no need to prove these statements, or any of the other statements on the audiotape, were true. Thus, the statements were not hearsay, and the trial court properly overruled Brown’s hearsay objection.

¶ 18. On this issue, the Court of Appeals reasoned that:

Because the State presented no evidence identifying the persons on the tape, this Court is unable to determine whether the statements on the tape would be exempt from hearsay as admissions by a party-opponent under Rule 801(d)(2)(A) (in the case of Brown’s own statements) or 801(d)(2)(E) (in the case of statements by a co-conspirator, Black, offered against Brown). As the declarants were anonymous, we also are unable to assess the applicability of any hearsay exceptions dependant upon the declarant’s unavailability. M.R.E. 804. Further, insufficient, evidence of the context of the anonymous declarant’s statements was established by the proponent to enable our assessment of the applicability of hearsay exceptions under Rule 803.

Brown v. State, 969 So.2d at 898, ¶20 (Miss.2007). However such analysis is inapplicable to the facts of today’s case. Clearly, a discussion of hearsay exceptions is unnecessary when the statements under attack are not hearsay.

¶ 19. Furthermore, the Court of Appeals stated:

Moreover, the erroneous admission of the taped conversations substantially prejudiced Brown, necessitating reversal and remand for a new trial. M.R.E. 103(a). Brown testified in his defense that, until the moment of the drug sale, he had not known or intended that any drug sale would occur. As already stated, the taped conversations invited the jury to assume either that Brown was the person on the tape planning the drug transaction, or that Brown was riding'in the car listening to Black as Black planned the drug transaction. Therefore, the taped conversations substantially eroded the credibility of Brown’s testimony.

Brown, 969 So.2d at 899, ¶ 22. However, as we already have stated, the audiotape was not offered for any purpose other than to corroborate the witnesses’ testimony for the State that pre-buy conversations occurred between Echols and unknown persons. The State in no way attempted to identify voices on the tape other than the voice of the C.I., Echols. Additionally, the identity of the voices on the tape was irrelevant in the State’s offer of the audiotape. The State was merely showing that pre-arrangement conversations had taken place, as well as the gist of those conversations. That being said, the introduction of the audiotape into evidence was proper.

¶ 20. For these reasons, we find that the trial court did not abuse its discretion in allowing into evidence, over hearsay objections, the tape-recorded conversations between Echols and unknown persons.

II. WHETHER THE TRIAL COURT’S ADMISSION OF ALLEGED HEARSAY EVIDENCE VIA THE TAPED TELEPHONE CONVERSATIONS VIOLATED BROWN’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESSES AGAINST HIM.

¶ 21. Brown asserts that, since Echols did not know the identity of the voices on the tape recording, other than his own, Brown was unable to subpoena these witnesses to testify at trial and thus to confront and cross-examine them; therefore, his rights under the Sixth Amendment to the United States Constitution, and Article 3, Section 26, Mississippi Constitution (1890) were violated. However, we again note that neither Echols nor the law enforcement officials knew the identity of the voices on the tape, other than Echols, nor did the State or any of its witnesses attempt to state or imply that one of the unidentified voices on the tape recording was Brown’s. The State was under no obligation to determine the identity of those persons whose voices were on the tape. If Brown believed that the voices on the tape were those of individuals other than himself and Black, he could have subpoenaed anyone he desired. Brown could have subpoenaed Elmer “Little Fudge” Armstrong, for the record reveals that both the State and Brown were interested in determining Armstrong’s location. Evidently, no one appeared to know the location of Armstrong at the time of the trial of this case.

¶ 22. As we stated in Ahmad v. State, 603 So.2d 843, 847 (Miss.1992):

Abdusabr Ahmad urges this Court to find reversible error because his constitutional right to confront his accuser was denied. Abdusabr Ahmad argues that his accuser is his wife and that he was not allowed to “confront” her. While he is correct that the Sixth Amendment of the U.S. Constitution guarantees a defendant the right of cross examination, see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), Abdusabr Ahmad was not deprived of that right. As the State has pointed out, neither the appellant, nor the court, instructs the State what witnesses that party shall put on the stand or how that party shall present its case. Hickson v. State, 512 So.2d 1 (Miss. 1987). The State in the case at bar could not be required to present every witness, although Abdusabr Ahmad did have the right to cross examine any witness that the State did present. The record reveals that Abdusabr Ahmad was allowed to fully cross examine all State witnesses against him. Rashee-dah Ahmad was not a witness at the trial. There is no indication in the record that this wife, Rasheedah Ahmad, ever accused him of felonious child abuse.

Id. at 847.

¶ 23. At trial, the State called Jason Chrestman, commander of the Panola County Narcotics Task Force; Kenny Laughter, a narcotics investigator with the Tate County Sheriffs Department; Antonio Echols, the C.I.; Jamie Tedford, a Batesville policeman assigned to the Drug Enforcement Administration; and Teresia Hickman, a forensic scientist with the Batesville branch of the Mississippi Crime Laboratory. The record reveals that each of these witnesses was subjected to cross-examination by Brown, through his attorney. No issue was made of the admissibility of the videotape, which the jury viewed during the course of the trial. Upon consideration of the entire record, including a viewing of the videotape, this Court is firmly convinced that Brown suffered no prejudice, much less substantial prejudice, by the admission of the audiotaped phone conversations. The videotape shows: (1) a white Delta 88 pulling up to Echols in the Wal-Mart parking lot (the driver of the car was later identified as Derrick Brown); (2) Echols walking away from the car, which then pulled out of the Wal-Mart parking lot and traveled across the street to the Rascal’s convenience store; (3) a man at Rascals in a red shirt (later identified as Derrick Black) getting into the white Delta 88 on the front passenger side; and (4) the-white car, with Brown and Black inside, returning to the Wal-Mart parking lot.

¶ 24. The actual drug buy is not captured on the video, but the events occurring immediately thereafter are. These events include: (1) the drug purchase cash (in denominations of twenties and hundreds) lying on the front passenger seat of the car (where Black was situated); and (2) four cell phones on the front seats and in the console, as well as a Fred’s Dollar Store box of sandwich bags, and rocks of what appeared to be (and were later identified to be) crack cocaine.

¶ 25. In sum, Brown suffered no substantial prejudice in that he was not denied his federal and state constitutional rights to confront witnesses based on the admission of the audiotaped telephone recordings of the pre-drug-buy conversations between the C.I. and unknown persons. As the trial judge stated in ruling on post-trial motions, “[t]his was a fairly straightforward drug deal. It is a situation where the C.I. was on a cell phone talking to two men who were willing to deliver and sell ... $1,600 worth of cocaine. If you recall these cases were severed. Two separate trials were conducted by juries which freed these defendants to call witnesses, have a trial without co-defendant having to testify against co-defendant, or any way implicate.”

¶ 26. We therefore find this issue is without merit.

CONCLUSION

¶ 27. For the reasons stated, the judgment of the Court of Appeals is reversed and the judgment of conviction and sentence entered by the Circuit Court of Tate County is reinstated and affirmed.

¶ 28. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED. CONVICTION OF THE SALE OF A CONTROLLED SUBSTANCE, COCAINE, AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SIX (6) YEARS SUSPENDED PENDING FUTURE GOOD BEHAVIOR AND OTHER CONDITIONS, AFFIRMED. APPELLANT SHALL PAY A FINE OF $5,000.00 AND A LAB FEE OF $125.00.

SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. LAMAR, J., NOT PARTICIPATING.

DIAZ, Presiding Justice,

Dissenting.

¶ 29. I agree with the well-reasoned, unanimous opinion of the Court of Appeals that the audio recordings were impermissible hearsay and that the admission of these recordings substantially prejudiced Brown’s defense. Accordingly, I would affirm the Court of Appeals in reversing the case and remanding for a new trial. I also write to address the majority’s analysis of the confrontation issue.

I. Hearsay.

¶ 30. For the reasons set forth by the Court of Appeals, I find that the recorded telephone conversations were impermissible hearsay that substantially prejudiced the defendant. Derrick Brown v. State, 969 So.2d 891, 899, ¶22 (2007). As the court correctly noted, an objective test is used in determining whether evidence is hearsay; the question is “how a reasonable objective observer would under the circumstances be likely to perceive the statement.” Brown at ¶ 19 (quoting Harrison v. State, 722 So.2d 681, 684 (Miss.1998)). Although the State argues, and the majority agrees, that the statements were offered simply to corroborate witness testimony, “the most powerful evidentiary function of the taped conversations was to relay hearsay evidence to the jury tending to show Brown and/or Black’s prior planning of the drug transaction.” Brown at ¶ 19.

The following excerpt is taken from the Court of Appeals’s opinion:
[first phone call]
MB1: Hey what happen ... what happen man?
MB2: What happened?
MB1: ... I’m already in Senatobia man. (Inaudible) N* * * *r ain’t got but two left now.
MB2: Ain’t got but two left.
MB1: A ... a ... hey go on and bring two of them then. Bring them two. I need them real bad man.
MB2: I’m fixing to do that man. I don’t know you. You don’t know me but you know I’m fixing to come over there. MB1: Hey I’m being watched now man. Hey you going to have the phone?
MB2: Yeah I’m going to be in a blue Monte Carlo man.
MB1: You going to be in a blue Monte Carlo?
MB2: Yeah
MB1: (Inaudible) if I was you I’d probably in and out of Wal-Mart because there be a lot of you know security around. I’m going to be in and out of Wal-Mart.
MB2: All right
MB1: Like I’m shopping. Then I’ll be calling you.
MB2: I tell yall I’m on my way now man.
MB1: I’m all ready up there man.
MB: A ... yall bring the scales too cause I ain’t got no scales.
MB1: I’m going to bring the scale.
[second phone call]
MB1: Hello. Where you at man?
MB2: [ ] I’m ... what you want hard or soft man. You never did say?
MB1: I want it hard man.
MB1: How long you going to be man?
MB2: About thirty-five minutes.
MB1: What ... What you going to be man?
MB2: I’m going be in a blue Monte Carlo.
MB1: You wouldn’t be sh* *ting me man?
MB2: Hey look man you at Wal-Mart man?
MB1: Yeah I’m at Wal-Mart.
MB2: All right I’ll be there.
[third phone call]
MB1: You on your way man?
MB2: Yeah I’m on my way now (Inaudible)
MB1: All right
MB2: (Inaudible) twenty-five minutes. MB1: Are you in a old model or new model? I’m going to be looking for you?
MB2: Huh ... in a white Delta 88 man MB1: You going to be in a white Delta 88?
MB2: (Inaudible)
MB1: O.K. you know how long you’re going to be about what?
MB2: About twenty minutes
MB1: All right I’m waiting on you man.
[fourth phone call]
MB2: Hello.
MB1: How far are you man?
MB2: Give me about two minutes man. MB1: (Inaudible) I don’t want to miss you man. That’s why I’m steady calling man. I’m going to call you in about another five minutes you be on it.
MB2: All right Rick.
MB1: Alright.
[another phone call]
MBl: Hello
MB2: Hello
MBl: Man
MB2: Yeah I got your (Inaudible)
MBl: H* *1 yeah man (Inaudible) security guard hangs around man.
MB2: S* *t give me about ... about ten minutes man.
MBl: All right
MB2: (Inaudible) hooked up
MBl: Come on man (Inaudible)
MB2: Hey you know where that store is man?
MBl: What store?
MB2: Right across ... you know where that little gas station (Inaudible)
MBl: That little gas station?
MB2: Yeah since you’re going to be sitting in the parking lot you know what I’m saying.
MBl: Yeah
MB2: You outside of Wal-Mart?
MBl: We’re right here I told you I’m going to see you when you pull up man. I’m going to be right ... I’m going to see you when you pull up.
MB2: All right what did you say you were in?
MBl: I’m ...
MB2: Or are you walking?
MBl: Yeah. I’m with my bride but I’m going to be walking out where I can see you though man.
MB2: All right Rick.
MBl: Hey I’m going to see you when you come in (Inaudible) though man. MB2: All right Rick.
MBl: All right.

¶ 31. I cannot agree with the majority that these statements were mere “utterances” that were not offered to prove Brown’s involvement. The excerpt contains statements that the seller would be arriving in a white Delta 88 and that the seller would be bringing two ounces of hard cocaine and a scale. There were also numerous statements regarding the speakers’ progress to the buy location. Thus, the jury was invited to credit these statements as true and infer that Brown was involved in the transaction. Indeed, the State admits in its brief that the taped conversations were evidence that Brown was an accomplice to the sale. Clearly “[t]he evidentiary value of the tape for the prosecution’s stated purpose [i.e., proving the conversations took place] was marginal.” Brown at ¶ 18.

¶ 32. The majority’s analysis is troubling for other reasons as well. First, while holding that the evidence could have been used only to corroborate witness testimony, the majority states that the jury was properly instructed on the elements of aiding and abetting. I see no connection between this instruction and the admissibility of the evidence, other than to infer that the conversations were presented as evidence of Brown’s involvement.

¶ 33. Second, the majority finds that the audiotape was not hearsay because “[t]he State had no need to prove these statements ... were true.” Whether the State needed to prove the truth of these statements is of no matter. The question is whether the statements were offered to prove their truth. M.R.E. 801(c) (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). Because a reasonable, objective observer would perceive the statements as proof of the defendant’s involvement, they fall within the definition of hearsay. Harrison, 722 So.2d at 684.

¶ 34. I also find, as did the Court of Appeals, that this hearsay testimony substantially prejudiced the defendant and, therefore, constituted reversible error. Brown testified that he had not known about the drug sale and that he never intended to participate in the illegal transaction. With the exception of Agent Ted-ford’s testimony that Brown identified Little Fudge as the source of the drugs — a statement Brown denied making — there was no direct evidence that contradicted Brown’s version of events. Therefore, because the taped conversations “invited the jury to assume either that Brown was the person on the tape planning the drug transaction, or that Brown was riding in the car listening to Black as Black planned the drug transaction,” the recordings substantially prejudiced Brown’s defense. Brown, 969 So.2d at 899, ¶ 22.

II. Right to Confrontation.

¶ 35. Although I find reversible error in the hearsay admission, I also write to address the majority’s analysis of the confrontation issue. First, the opinion grossly misstates the law and improperly shifts the burden of proof onto the defendant by holding that “[t]he State was under no obligation to determine the identity of those persons whose voices were on the tape,” and that Brown “could have subpoenaed anyone he so desired.” Such a holding is directly contrary to the fundamental concept in criminal law that “it is the State’s burden to put on witnesses to establish guilt.” Fox v. State, 756 So.2d 753, 762 (Miss.2000) (citing McVeay v. State, 355 So.2d 1389 (Miss.1978)). The majority assumes that Brown knew the identity of the individuals on the tape, which, in turn, assumes his guilt. In other words, Brown must prove his innocence before he may claim any right to confront the witnesses against him. The law prohibits the prosecution from commenting on the failure of the defendant to call a witness, and this Court cannot use such reasoning to find that a defendant’s constitutional right to confront the witnesses against him was not violated. See Ross v. State, 603 So.2d 857, 864 (Miss.1992) (“the failure of either party to examine a witness equally accessible to both parties is not a proper subject for comment before a jury”) (quoting Brown v. State, 200 Miss. 881, 887, 27 So.2d 838, 840 (1946)).

¶ 36. Second, as the proponent of the evidence, the State has “the burden of laying the proper foundation for the evidence.” Buford v. Riverboat Corp., 756 So.2d 765, 770 (Miss.2000). Because the identity of the voices goes directly to the foundation of the evidence, the State most certainly had some obligation to determine their source. Again, this holding improperly shifts the burden of proof onto the defendant.

¶ 37. Third, the opinion finds that Brown “could have subpoenaed ‘Little Fudge’ Armstrong.” Even if Brown bore the burden of presenting his accusers to the jury, I fad to see how testimony from Armstrong could have remedied a confrontation violation — Armstrong’s voice was not on the tapes.

¶ 38. Finally, the opinion proceeds to quote, at length, this Court’s decision in Ahmad v. State, 603 So.2d 843, 847 (Miss. 1992). That decision is easily distinguishable from the present case. In Ahmad, the defendant claimed he was denied the right to confront his wife who “was not a witness at the trial.” Id. Nothing in that opinion indicates that any statement by Ahmad’s wife was entered into evidence. In the present case, the accusers’ statements were entered into evidence via a transcribed audio recording. Thus, unlike Ahmad, Brown was not permitted “to fully cross examine all State witnesses against him.” Id.

¶ 39. For the foregoing reasons, I would reverse the trial court’s judgment and remand for a new trial.

GRAVES, J., JOINS THIS OPINION.

      . Derrick Brown and Derrick Black were indicted together for this crime. By the time Brown was sentenced for this crime, Black had already been tried, convicted, and sentenced by the same trial judge. Both defendants received identical sentences.

      . Additionally, by way of written instructions, the trial court instructed the jury, inter alia, that it must consider whether Brown aided, abetted or encouraged the "commission of the elements” of sale of cocaine; and the trial court also gave the verbatim jury instruction on aiding and abetting as adopted by this Court in Milano v. State, 790 So.2d 179, 185 (Miss.2001).

      . Officer Jamie Tedford testified that when law enforcement officials converged on the vehicle after the drug deal, the money actually was discovered on the ground (where Black had thrown it) and on the front-passenger-side floorboard. The money was recovered and placed on the front passenger seat for videotaping.

      . The opinion notes that the jury was given the jury instruction adopted by this Court in Milano v. State, 790 So.2d 179, 185 (Miss. 2001). However, the Court recently held that failure to give such an instruction did not constitute error. Wilson v. State, 967 So.2d 32 (2007).

      . Contrary to the majority’s finding, the videotape does not show "a white Delta 88 pulling up to Echols in the Wal-Mart parking lot” or "Echols walking away from the car." The video never shows any encounter between Echols and Brown. As stated by Tedford, the camera's line of sight was blocked by another vehicle.


author: CARLSON, Justice, DIAZ, Presiding Justice,

text:
    Elizabeth M. FLEMING v. Brandy M. Thomas FLOYD.
    No. 2005-CT-00042-SCT.
    Supreme Court of Mississippi.
    Nov. 29, 2007.
    Robert E. O’Dell, Pascagoula, attorney for appellant.
    H. Benjamin Mullen, Pascagoula, attorney for Appellee.
   ON WRIT OF CERTIORARI

CARLSON, Justice,

for the Court.

¶ 1. Elizabeth M. Fleming sued Brandy M. Thomas Floyd in the Jackson County Circuit Court, alleging that Floyd’s negligence caused an accident resulting in injuries and damages to Fleming. A jury trial resulted in a verdict in favor of Floyd. Fleming appealed to this Court, and we assigned the case to the Court of Appeals. Finding that the jury gave too much weight to a police accident report whjle disregarding the testimony of Fleming’s expert witness, the Court of Appeals reversed the final judgment of the Jackson County Circuit Court in favor of Floyd and remanded this case to the trial court for a new trial. Upon consideration of the record before us and the applicable law, we find that the Court of Appeals improperly re-weighed the evidence; therefore, we reverse the judgment of the Court of Appeals and reinstate and affirm the final judgment of the Circuit Court of Jackson County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Elizabeth Fleming filed suit in the Jackson County Circuit Court on October 31, 2000, alleging that the negligence of Brandy Thomas Floyd was the sole proximate cause, or a proximate contributing cause, of an accident which resulted in injuries and damages to her.

¶ 3. A jury trial was duly conducted November 1-2, 2004, with Judge Dale Harkey presiding. At trial, Fleming testified that she lived at 1021 Old Spanish Trail in Gautier. Fleming’s driveway is on the south side of Old Spanish Trail, and the driveway is situated in a curve for approaching eastbound traffic. Fleming, who was on her way to a store to buy a shirt for her granddaughter at approximately 1:35 p.m. on November 14, 1997, pulled out from her house and drove to the end of her driveway. Fleming testified that she “looked several times in each direction” and that she looked left, right, then left again, a habit instilled in her through her driver’s education class when she was fifteen years old. Fleming testified that it was a clear day and that it had not been raining, but that the view of the curve to the west was obscured because it was situated on a hill, and there were bushes on a neighbor’s property. Seeing no traffic on the road, Fleming pulled out of her driveway and onto Old Spanish Trail, attempting to enter the westbound lane of travel. While Floyd was traveling around the curve going east, she collided with Fleming. Officer Don Jones, a Gautier policeman, arrived on the scene and questioned Fleming and Floyd.

4'. On cross-examination, Fleming testified that four days after the accident, she hired a lawyer because she felt that Floyd was being untruthful to her (Floyd’s) insurance company regarding her speed at the time of the accident. In Fleming’s opinion, Floyd was “flying” when she ran into her. Fleming further testified that she hired an attorney and an accident reconstruction expert because her insurance company advised her to do so to prove her claim so that Floyd’s insurance company would pay the damages. Fleming also testified that she did not fail to yield the right-of-way to Floyd because she looked and. did not see Floyd when she pulled out onto Old Spanish Trail. Likewise, Fleming testified that Floyd was traveling in the eastbound lane when she (Fleming) first saw her.

¶ 5. Fleming called as a witness James Bowman, who was tendered as an expert in accident reconstruction, and the trial court, without objection from Floyd, accepted Bowman as an expert in that field. Bowman testified that he had conducted tests at the accident scene to determine the speed and location of the vehicles on the roadway at the time of the accident. Bowman said that he had conducted two tests on the roadway, one when it was dry and one “after a light drizzle” because, as he testified, he believed the roadway had some moisture on it from a previous rain. His test on the dry roadway was conducted with a coefficient of friction of .9, while the test on the wet roadway was conducted with a coefficient of friction of .7. The coefficient of .7 reduced the speed at which Bowman believed Floyd had been traveling. Bowman further testified that he “always gives the driver the benefit of the doubt and always use[s] the lowest coefficient of friction.” From those tests, Bowman determined that Floyd was “driving too fast for prevailing conditions” and that “had she been within the speed limit or even a slower speed, that the collision would not have happened.” The posted speed limit in the area was thirty miles per hour. Bowman opined that Floyd was traveling at least forty-seven miles per hour when she began to skid into Fleming, and seventeen miles per hour at impact. Bowman determined the speeds of the vehicles at impact by conducting a “360 momentum” study based upon the positions and weights of the vehicles after the accident. Also, Bowman opined that Fleming was traveling “between three and a half to four and a half miles per hour” at impact. Bowman also testified that he believed that it was impossible for Fleming to see Floyd before she exited her driveway and that Fleming’s vehicle was close to the center of the road when Floyd first saw Fleming and reacted.

¶ 6. Bowman testified that, based on the weather report, the “whole week, it had been rainy, even up to that morning, it had been rainy.” He believed that moisture on the roadway was the reason Floyd left only one skid mark, rather than two. That skid mark left by Floyd was 93.91 feet in length. Bowman believed that Floyd was 205 feet from Fleming when she first “perceived” Fleming’s car while in the curve, and that Floyd could not see Fleming’s driveway from that point. However, Bowman went on to testify that Floyd would have first seen Fleming’s front bumper when she (Fleming) began to pull out from her driveway, and if Floyd had been traveling at the speed limit of thirty miles per hour, her (Floyd’s) skid would have been only forty-three feet rather than almost ninety-four feet. This would have allowed Fleming to pull safely from her driveway, he opined, thus avoiding the accident.

¶ 7. Continuing with this testimony, Bowman stated that, according to his calculations, if Floyd had been going “right at 45 miles per hour,” rather than the 47.54 miles per hour he believed she was going, the accident would have been avoided. Bowman believed that Fleming had not completed her turn into the westbound lane at the time of impact. In Bowman’s words, Fleming “was not completely out of the eastbound lane.” However, Bowman concluded that the accident occurred entirely in the westbound lane.

¶ 8. On cross-examination, Bowman testified that, in his opinion, Floyd tried to stop and moved to the left to avoid Fleming, who was coming from Floyd’s right. Further, Fleming and Floyd could see each other when Floyd was at “the top of that little grade and the curve,” if they were looking as they should.

¶ 9. Floyd’s counsel also cross-examined Bowman about Officer Jones’s accident report; however, neither party called Officer Jones to testify. We now refer to the record concerning the cross-examination of Bowman. For clarity, we note here that “Mr. O’Dell” is Fleming’s counsel, and “Mr. Mullen” is Floyd’s counsel:

Q. And you also notice on there the section where it says “contributing circumstances”?
A. Right.
BY MR. O’DELL: I object, Your Honor.
BY MR. MULLEN: It’s already in, he’s testified about it.
BY THE COURT: Your objection based on?
BY MR. O’DELL: My objection, Your Honor, is where he’s going with this. He’s trying to get opinion evidence of the police officer into evidence. It’s not admissible unless the police officer were here to sponsor it.
BY THE COURT: Well, that document has been admitted by stipulation. Overruled.
BY MR. O’DELL: Yes, Your Honor, it has, but the opinion evidence is not admissible unless the officer is here to sponsor any opinions stated in the ... I’ve had that ruling against me before, Your Honor, so I’m familiar with that one.
BY MR. MULLEN: Judge, the entire document went into evidence.
BY THE COURT: Overruled.

Over the continuing objection of Fleming’s counsel, Bowman discussed Officer Jones’s accident report completed at the scene. The accident report contained block codes for Officer Jones to mark appropriately, along with a space to write a narrative description. The report contained the following opinions: (1) Fleming had failed to yield the right-of-way; (2) there was no improper driving on Floyd’s part; (3) the roadway was dry; and (4) Floyd’s brakes may not have been working properly. Fleming had stated to Officer Jones that she was pulling out of her driveway and did not see Floyd’s vehicle until it was too late to avoid being hit. Nothing in the report indicated that Floyd had been speeding.

¶ 10. Bowman then testified that the rate of error of his calculation of Floyd’s speed was plus-or-minus two-and-one-half miles per hour. In other words, Floyd could have been traveling anywhere from forty-five to fifty miles per hour. Bowman went on to state that if Floyd was indeed traveling at forty-five miles per hour, the collision would not have happened. Bowman also testified that he believed the crash occurred as Floyd slammed on her brakes when she could see Fleming exiting her driveway.

¶ 11. At the close of Fleming’s case-in-chief, Floyd moved for a directed verdict, which the trial court denied. In her casein-chief, Floyd testified that, on the day of the accident, she was traveling home from Yancleave High School, where she was a student. She was familiar with Old Spanish Trail as she traveled it twice a day at least five days each week. Floyd further testified that as she came to a certain position on the curve in the road, she could see Fleming’s driveway and that she saw Fleming’s vehicle sitting “at a dead stop” at the end of the driveway, with her front bumper out in the road. Floyd then veered slightly to the left. Floyd stated that she saw Fleming look to her right, but not again to her left; instead, Fleming then looked straight ahead and proceeded to pull out onto Old Spanish Trail. Floyd had assumed that Fleming would remain stopped in her driveway and that she (Floyd) could proceed; however, Fleming had proceeded into the roadway, and Floyd had slammed on her brakes when she realized that Fleming did not see her coming. Floyd skidded in the road and collided with Fleming’s vehicle. Floyd likewise testified that she did not know exactly how fast she was traveling, but she did not think she was going forty-seven miles per hour as testified by Bowman. Instead, Floyd believed that she was traveling within the posted speed limit of thirty miles per hour. Floyd further testified that she always slowed down in this particular area because a day-care center was located there.

¶ 12. After hearing the trial court’s jury instructions and closing arguments, the jury deliberated and returned a unanimous verdict in favor of Floyd. On November 3, 2004, the trial judge entered a judgment consistent with the jury verdict in favor of Floyd. On November 5, 2004, Fleming filed a motion for a judgment notwithstanding the verdict on the issue of liability and for a new trial. By order entered on December 6, 2004, the trial court denied this post-trial motion, and this appeal ensued, whereupon this Court assigned this case to the Court of Appeals.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 13. The Court of Appeals addressed three issues: (1) whether the opinion evidence contained in the accident report was admissible; (2) whether sufficient evidence supported the jury verdict; and (3) whether the jury verdict was contrary to the overwhelming weight of the evidence.

¶ 14. As to the first issue, the Court of Appeals found that Bowman was allowed to explain the opinion evidence in Officer Jones’s accident report. However, the Court of Appeals disagreed with the trial judge’s holding that, since the report was stipulated into evidence, “anything on the document could be explained.” Fleming v. Floyd, 969 So.2d 881, 884, ¶ 12 (Miss.Ct. App.2006). The Court of Appeals stated:

We conclude that the effect of the parties’ consent to admitting this accident report was more limited than the trial court ruled. Certainly such evidence as could be understood without scientific or technical knowledge was effectively in front of the jury when the document was admitted. Having a witness testify from that same level of understanding about the document does not go beyond the reach of the agreed admission of the document. The introduction of expert testimony, though, or offering another document explaining the codes, creates additional usable evidence that was not before the average juror simply from the stipulated document. Consenting to admit the report does not consent to allowing new evidence in the form of technical or scientific proof.
Deciding that the stipulated admission did not permit the expert testimony does not end the analysis, though. The report was first discussed by the plaintiff Fleming’s own expert, Jim Bowman. In his narrative explanation of his methods and conclusions, he presented evidence from the coded entries. It is true that the plaintiffs attorney did not specifically ask the witness for coded information, but the witness was asked without counsel’s imposing limits to explain how different pieces of evidence — including the accident report — allowed him to conclude that the accident was solely the fault of the defendant Floyd.
Experts are subject to cross-examination concerning the basis of their conclusions. Hollingsworth v. Bovaird Supply Co., 465 So.2d 311, 315 (Miss.1985). The scope of cross-examination is not limited to the specific subject matter of the direct examination. - M.R.E. 611(b). Bowman had been qualified as an expert for accident reconstruction. His testimony concerning the accident report and some of the coded information “opened the door” for the defense to pursue that line of questioning further. Cooper Tire & Rubber Co. v. Tuckier, 826 So.2d 679, 687 (Miss.2002). Since the plaintiffs attorney elicited expert testimony from his own witness about coded information on this report, he waived any objection to defense counsel’s pursuing explanation of other codes.

Id. at 887, ¶¶ 23-25.

¶ 15. As to the second issue, the Court of Appeals discussed the sufficiency of the evidence:

Fleming argues that the trial court erred in denying her motion for directed verdict and later for a judgment notwithstanding the verdict. It appears that Fleming never moved for a directed verdict, but she did request a peremptory instruction and a JNOV.
The evidence that Fleming finds so compelling concerns Floyd’s speed. The only witness who analyzed the physical evidence available after the accident was the plaintiffs expert Bowman. He testified that Floyd was speeding, and that with such close margins between the occurrence and the avoidance of this accident, the speed was the sole proximate cause of the collision. The defendant Floyd provided no expert of her own. She simply testified that she was not driving as fast as Bowman calculated. Floyd said she saw Fleming looking in the opposite direction immediately before Fleming pulled out. Conversely, Fleming testified she looked to her left just before pulling onto Old Spanish Trail and was habitually extra-cautious about entering that street.
Fleming’s expert Bowman examined the skid marks and made various assumptions to cause him to calculate that Floyd was driving at least forty-seven miles an hour in this thirty mile per hour zone. Bowman also believed that it was impossible for plaintiff Fleming to have seen Floyd in time to avoid pulling out due to Floyd’s excessive rate of speed.
Though the evidence exonerating Floyd from having any fault in this accident was weak, there was at least some evidence on which jurors might rely. We do not find that as a matter of law Floyd had to be at fault.

Id. at 887-88, ¶¶ 28-30, ¶ 32 (emphasis added).

¶ 16. Finally, as to the third issue, the Court of Appeals found, inter alia, that, even though Officer Jones’s opinions from the accident report were admissible, the jury gave too much weight to that evidence. The Court of Appeals concluded that as to the failure of Officer Jones to note on the accident report that Floyd was speeding, Officer Jones “may have had little on which to base a conclusion about anyone’s speed.” Id. at 888, ¶ 34.

¶ 17. From the exhibits, which included both ground and aerial photographs of the accident scene, as well as the “measurements” evidence, the Court of Appeals found that Fleming would have been unable to see an eastbound vehicle (approaching from the west) until that vehicle was only 200 feet away from her driveway. The Court of Appeals found that “[a]t forty-seven miles per hour, which is the only substantial evidence as to speed [of Floyd’s vehicle],” and when considering all of Bowman’s testimony concerning skid marks and other calculations Bowman made, this evidence “required a finding that Floyd was exceeding the speed limit when she began to brake. Had the defendant Floyd been able to dispute that evidence with reliable expert testimony admissible under Rule of Evidence 702, there would have been a substantial jury question.” Id. at 889, ¶ 35 (emphasis added).

¶ 18. In continuing its discussion of the third issue concerning the weight of the evidence, the Court of Appeals found that the “overwhelming weight of evidence required a finding by the jury that any significant speeding would have been one proximate cause of the accident,” and that because Officer Jones had not testified in this case concerning the bases for his conclusions on the accident report, “the jurors had no evidence on which to validate that opinion either.” Id. at 889, ¶ 36. Thus, the Court of Appeals concluded that “[t]his unverified opinion was not entitled to much weight in comparison to the opinion of a witness, qualified at trial as an expert, that Floyd was speeding.” Id. at 889, ¶ 37. The Court of Appeals also opined that “[i]f the jury perceived Fleming as the person whose failure to enter the roadway with care made a collision with the speeding Floyd unavoidable, perhaps it concluded that she was responsible. Mississippi long ago adopted comparative negligence principles.” Id. at 890, ¶ 38. On this point, we take particular note that the trial judge in the case sub judice gave Instruction No. 8, which was a comparative-negligence instruction. The Court of Appeals also found:

The evidence that Floyd was also at fault is overwhelming. The speed at which the only reliable evidence indicates Floyd was traveling afforded both drivers less time to avoid the collision. All entities who negligently contribute to an injury should be allocated some fault. Dawson v. Townsend & Sons, Inc., 735 So.2d 1131, 1134 (Miss. Ct.App.1999). The jury’s assessment of fault solely to Fleming is implausible based on the physical evidence. More importantly, the verdict was against the overwhelming weight of the credible evidence.

Id. at 890, ¶ 39 (emphasis added).

¶ 19. Finally, in finding that a new trial must be granted in this case, the Court of Appeals stated:

Ordinarily this court does not disturb the finding of fact by a jury, nor review such finding except to determine whether or not there is sufficient evidence, if believed by the jury, to support the verdict. ... However, an exception to this rule may arise in exceedingly rare cases where, from the whole circumstances, the testimony is contradictory and unreasonable, and so highly improbable that the truth of it becomes so extremely doubtful that it is repulsive to the reasoning of the ordinary mind. In such a case we think it proper to award a new trial on the facts, and let another jury have an opportunity to weigh and judge the testimony at another time, and under different circumstances. Thomas v. State, 129 Miss. 332, 92 So. 225, 226 (1922) (quoted in Edwards v. State, 736 So.2d 475, 485 (Miss.Ct.App.1999)). Reversing due to deficiencies in the weight of evidence is not the functional equivalent of directing a verdict for the new trial. If a second trial has the same outcome as the first, such a jury reconfirmation would suggest that the judicial scales used to test for overwhelming weight in this record need to be recalib-rated. “If the exact evidence and no more is admitted again, the fact that a different jury looking at the same proof reaches the same conclusion means that a second reversal would not necessarily be appropriate in the interests of justice.” Edwards, 736 So.2d at 484 (citing Tibbs v. Florida, 457 U.S. 31, 43 n. 18, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)).

Id. at 890, ¶ 40.

¶ 20. In the end, the Court of Appeals found no merit in the first two issues (whether the opinion evidence contained in the accident report was admissible, and whether there was sufficient evidence to support the jury verdict); however, as to the remaining issue (whether the jury verdict was contrary to the overwhelming weight of the evidence), the Court of Appeals found this issue had merit and thus reversed and remanded for a new trial. After Floyd’s motion for rehearing was denied by the Court of Appeals, Floyd filed her petition for writ of certiorari, which this Court granted.

DISCUSSION

¶21. While this Court’s order reveals a general grant of Floyd’s petition for writ of certiorari, we granted certiorari to address the Court of Appeals’ opinion concerning the third issue on which it reversed the trial court’s judgment and remanded this case to the trial court for a new trial. However, we have carefully considered all three issues which were raised before the Court of Appeals, and while we may not be in total agreement with the Court of Appeals regarding some of the language the court used in addressing the first two issues, we agree with, and adopt, the Court of Appeals’ analysis and conclusions reached as to those issues. (Those issues are: whether the opinion evidence contained in the accident report was admissible, and whether there was sufficient evidence to support the jury verdict). We thus move now to the third issue.

WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 22. Our cases are legion discussing the appropriate appellate standard of review when considering the issue of whether a jury verdict is against the overwhelming weight of the evidence. In Patterson v. Liberty Assocs., L.P., 910 So.2d 1014, 1018 (Miss.2004), we stated:

The applicable standard of review is set forth in Venton v. Beckham, 845 So.2d 676, 684 (¶¶ 26-27) (Miss.2003) (citing Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 389 (Miss.2001)):

Where an appellant challenges a jury verdict as being against the overwhelming weight of the evidence or the product of bias, prejudice or improper passion, this Court will show great deference to the jury verdict by resolving all conflicts in the evidence and every permissible inference from the evidence in the appellee’s favor. Bobby Kitchens, Inc. v. Mississippi Ins. Guar. Ass’n, 560 So.2d 129, 131 (Miss.1989). “Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Herrington v. Spell, 692 So.2d 93, 103-04 (Miss. 1997).

Id. at 1018.

¶23. The record reveals that Fleming testified that she “felt” she was in her lane of travel (the westbound lane) at the time of impact. However, Fleming’s testimony is contradicted by her expert’s testimony. Bowman testified that at the time of impact, Fleming was still in the process of pulling into the westbound lane and that Fleming had not gotten completely into the westbound lane. We turn to Fleming’s testimony:

Q. And do those look to you to be fair and accurate representations of how the, where you were at the time of the accident and where the vehicles were positioned after impact?
A. I felt like I was in my lane, going my way.
Q. So, what did you do when you pulled out?
A. I pulled out as I do. And I feel like I was in my lane. And I ... When I, when I realized that she was there so quickly, she was coming at me already. It was just boom, that fast. Just ... Not long.
Q. What was the position of your vehicle? The best you know from your — let me finish.
A. I was headed in my lane, going to town. West.
Q. Let me finish my question, please, Elizabeth. To the best of your knowledge — I understand it was exigency at the time, you know, something going on. To the best of your knowledge, what was the position of your vehicle in relation to Old Spanish Trail? Had it entered the— entirely entered the westbound lane at the time that Ms. Floyd’s vehicle struck you?
A. I feel like I was already in my lane.
Q. Completely.
Q. Completely. I feel like my whole car was there, is what I feel like.
Q. Had you straightened up—
A. Yes.
Q. —to the point where you were headed down the roadway?
A. Yes. I felt like I was. To my recollection of what I felt, what happened that day.
Q. And you disagree with where the accident reconstruction expert has drawn your vehicle at the point of impact; don’t you?
A. No, I don’t disagree with him. It’s just what I remember.
Q. Okay. Well, your recollection is that you were in the westbound lane and you had already started moving in a westerly direction.
A. Right.
Q. And he’s got your vehicle there at sort of an angle, with part of it in the eastbound lane; is that right?
A. Yes.
Q. And you disagree with that, now; don’t you?
A. Not necessarily. I ... That was a very traumatic day for me, and I thought I was all the way in my lane. If he says I wasn’t, I guess there’s a, a measure of something there. I’m not going to disrespect some who is — knows how to do that.
Q. Well' — -and I don’t want you to disrespect anybody, and I know you’re not trying to, but I guess my question to you — let me ask you this way. Mr. Bowman, the accident reconstruction individual who drew that, he wasn’t there on the day of this accident, was he?
A. No.
Q. So, he wouldn’t actually have a recollection of what happened, because he didn’t see it; right?
A. That’s right.
Q. You were there. Correct?
A. That’s right.
Q. And understanding, of course, it was traumatic, because it was an accident, your recollection, since you were there, was that you had gotten in the westbound lane and started going west. Right?
A. That’s right.
Q. And that would be different from what he has drawn on this drawing, isn’t it?
A. Slightly, yes.
Q. Slightly? All right.

On the other hand, Bowman testified that according to his calculations, if Floyd had been driving her vehicle at forty-five miles per hour, the accident would never have happened. Bowman was asked that “[i]n other words, [Floyd] wouldn’t have had to have been going much slower at all for this accident to be avoided than your 47.54 miles per hour that you calculated,” and Bowman responded that “[t]hey would not have crashed, yes.” Specifically, Bowman testified:

Q. All right. So, at 45, didn’t you testify that this collision wouldn’t have occurred?
A. Right.

¶ 24. The reality of this case is that the jury had the benefit of the testimony of various witnesses, including Fleming, Floyd, and Bowman. Not only did the testimony of Floyd conflict with that of Fleming, and not only did the testimony of Floyd conflict with that of Bowman, but also Fleming’s testimony conflicted with that of her own expert, Bowman, the accident reconstructionist. We are constrained to find, from the record before us and the Court of Appeals’ opinion, that the Court of Appeals improperly re-weighed the conflicting evidence before the jury, which had the practical effect of improperly invading the province of the jury. The Court of Appeals found that “[t]he defendant Floyd provided no expert of her own. She simply testified that she was not driving as fast as Bowman calculated.” Fleming, 969 So.2d 881, 888, ¶ 29. The Court of Appeals also found:

There was no evidence to contradict that a ninety-four foot skid, which would have been even longer if not for the collision, required a finding that Floyd was exceeding the speed limit when she began to brake. Had the defendant Floyd been able to dispute that evidence with reliable expert testimony admissible under Rule of Evidence 702, there would have been a substantial jury question.

Id. at 889, ¶ 35.

¶ 25. Thus, we can reach but one conclusion — the Court of Appeals found that because Floyd did not have her own expert to rebut the testimony of Fleming’s expert, there was no jury issue as to liability. Such a conclusion is contrary to the law in Mississippi as to how the jury may consider expert testimony. In Daniels v. GNB, Inc., 629 So.2d 595, 603 (Miss.1993), we stated that “judging the expert’s testimony and weight to be accorded thereto is the province of the jury.” Id. at 603 (citing Ford Motor Co. v. Cockrell, 211 So.2d 833, 837 (Miss.1968)). In Chisolm v. Eakes, 573 So.2d 764, 767 (Miss.1990), this Court stated that “[t]he jury may consider the expert testimony for what they feel that it is worth, and may discard it entirely.” Id. at 767 (citation omitted). In BFGoodrich, Inc. v. Taylor, 509 So.2d 895, 903 (Miss. 1987), this Court stated:

This Court, of course, is not the jury. The weight and credibility of the witnesses, primarily experts, was for the jury, who were free to accept or reject whatever part of their testimony they chose. See, e.g., Jackson v. Griffin, 390 So.2d 287 (Miss.1980).

Id. at 903. See also Tunica County v. Matthews, 926 So.2d 209, 215 (Miss.2006) (long-standing rule in Mississippi that jury in eminent domain case “may reject or accept any expert testimony it chooses in cases involving land valuation”).

¶ 26. Consistent with our case law, the learned trial judge in today’s case thoroughly instructed the jury in this case as to its solemn duties and responsibilities, including, inter alia, how the jurors were to consider the evidence. In Jury Instruction No. 1, the jury was instructed that “[i]t is your exclusive province to determine the facts in this case and to consider and weigh the evidence for that purpose,” and that the parties had “a right to expect that you will conscientiously consider and weigh the evidence and apply the law, and reach a just verdict regardless of what the consequences of that verdict may be.” The jurors were further informed via this instruction that they were “required and expected to use your good common sense and sound honest judgment in considering and weighing the testimony of each witness that testifies”; and that the jury had before it the testimony and statements of the witnesses and the exhibits received into evidence, and that they thus were “permitted to draw such reasonable inferences from the evidence as seem justified in the light of your own experience.”

¶27. Of significant import, the trial judge in today’s case also gave Jury Instruction No. 2, which stated:

The Court instructs the jury that you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate.
You are the sole judges of the credibility or “believability” of each witness and the weight to be given to his testimony. In weighing the testimony of a witness you should consider his interest, if any, in the outcome of the case; his manner of testifying; his opportunity to observe or acquire knowledge concerning the facts about which he testified; his candor, fairness and intelligence; and the extent to which he has been supported or contradicted by other credible evidence.
Also, the weight of the evidence is not necessarily determined by the number of witnesses testifying as to the existence or non-existence of any fact. You may find that the testimony of a smaller number of witnesses as to any fact is more credible than the testimony of a large number of witnesses to the contrary.

¶ 28. Thus, based on these appropriate instructions, the jurors in the case sub judice were aware that, during deliberations, they could believe or disbelieve any part of, or all of, the testimony of any of the witnesses, including Fleming, Floyd and Bowman. It can be reasonably inferred that the jury, by its verdict, obviously chose to believe Floyd when she testified, contrary to Bowman’s testimony, that immediately prior to the collision, she was driving within the posted speed limit. It can be reasonably inferred that the jury, by its verdict, obviously chose to believe Floyd when she testified, contrary to Fleming’s testimony, that Fleming did not look back in Floyd’s direction prior to pulling out of her driveway and onto Old Spanish Trail. It can be reasonably inferred that the jury, by its verdict, chose to believe Bowman when he testified, contrary to Fleming’s testimony, that Fleming’s vehicle was not totally in the westbound lane of travel when the collision occurred.

¶29. Finally, we note that the trial judge also gave Jury Instruction No. 8, which was a comparative-negligence instruction; therefore, the jury certainly had the opportunity to find, from conflicting evidence, that both Fleming and Floyd were negligent and that their combined negligence was proximate contributing causes of the accident, thus allowing the jury to arrive at an award representing just compensation for Fleming, but then reducing that award by the percentage of Fleming’s negligence. Even so the jury, having this option, chose to find from the credible evidence that Fleming was negligent, and that Fleming’s negligence was the sole proximate cause of the accident and her resulting injuries and damages.

¶ 30. Certainly, when we consider the totality of the record, classic jury issues were created by the conflicting testimony of the witnesses, and thus it became the responsibility of the properly-instructed jury to determine what weight and credibility it wished to assign to the testimony of the various witnesses. With this being said, we can state with confidence that by allowing the jury verdict in favor of Floyd to stand, we are not by any stretch of the imagination sanctioning an unconscionable injustice. Patterson, 910 So.2d at 1018 (citing Herrington, 692 So.2d at 103-04). The jury verdict therefore is beyond the authority of an appellate court to disturb. Id. at 1022 (citing Maddox v. Muirhead, 738 So.2d 742, 743-44 (Miss.1999)).

CONCLUSION

¶ 31. For the reasons stated, we reverse the judgment of the Court of Appeals and reinstate and affirm the final judgment of the Circuit Court of Jackson County in favor of Brandy M. Thomas Floyd and against Elizabeth M. Fleming.

¶ 32. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

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

DIAZ, Presiding Justice,

Dissenting.

¶ 33. This Court has held that “[v]er-dicts are to be founded upon probabilities according to common knowledge, common experience, and common sense, and not upon possibilities; and a verdict cannot convert a possibility or any number of possibilities into a probability.” Elsworth v. Glindmeyer, 234 So.2d 312, 319 (Miss. 1970). Furthermore, a jury’s findings of fact must be “set aside when ... [they are] clearly or manifestly against all reasonable probability.” Id.

¶ 34. In the present case, the jury’s determination that Floyd was not at fault for the accident is “against all reasonable probability.” The overwhelming weight of the evidence showed that Floyd was speeding before she slammed on her brakes and collided with Fleming. Fleming’s expert witness, Bowman, testified that, based on the tests he conducted at the scene of the accident, Floyd was traveling at least forty-seven miles per hour when she began to skid. Moreover, Floyd’s vehicle left a ninety-four-foot skid mark on the road. According to Bowman, the skid mark would have been only forty-three feet if Floyd had been going thirty miles per hour. No evidence was presented to demonstrate how Floyd could have left a ninety-four-foot skid mark if she had been driving within the speed limit. The only evidence that Floyd was not speeding was her own self-serving testimony and the investigating officer’s accident report. Because there was absolutely no evidence indicating that the officer’s opinion that Floyd was not speeding was reliable or remotely accurate, his opinion was entitled to very little weight.

¶ 35. Furthermore, the evidence presented at trial that Floyd’s speeding was a proximate cause of the accident was also overwhelming. Clearly, if Floyd had been traveling within the speed limit, she would not have skidded as far as she did and crashed into Fleming. Moreover, Fleming would have had more time to pull out of her driveway into the westbound lane and avoid the accident if Floyd had been going slower.

¶ 36. The jury’s finding that Fleming failed to yield the right of way to Floyd and that this failure was a proximate cause of the accident was supported by the evidence. However, the jury’s apportionment of fault solely to Fleming was contrary to the overwhelming weight of the evidence. In light of the physical evidence and the uncontroverted testimony of Fleming’s expert witness, the jury’s refusal to apportion any fault to Floyd strains credulity.

¶ 37. The jury’s verdict in this case was not founded upon probabilities, but upon the extremely unlikely possibility that Floyd was not speeding. To allow the jury’s verdict to stand “would [be to] sanction an unconscionable injustice.” Herrington v. Spell, 692 So.2d 93, 104 (Miss. 1997) (citations omitted). Accordingly, the verdict should be set aside. Id.

¶ 38. I would affirm the judgment of the Court of Appeals, reverse the judgment of the circuit court and remand the case for a new trial. Therefore, I respectfully dissent.

GRAVES, J., JOINS THIS OPINION.

      . At the time of the accident, Brandy Thomas was dating Conner Floyd. Subsequent to the accident, Thomas married Floyd. When Fleming filed her Complaint commencing this action, she also named Conner Floyd as a party-defendant pursuant to a negligent en-trustment theory because he owned and insured the vehicle that Floyd was driving at the time of the accident. However, the record reflects that at trial, Fleming focused only on Brandy Floyd’s negligence, and presented no theory of recovery against Conner Floyd via jury instructions. The form of the verdict instruction (Jury Instruction No. 16) offered the jury only two options, either finding for the plaintiff, Fleming, and assessing damages, or finding for the defendant, Brandy Floyd. The jury rendered a verdict in favor of the defendant, Brandy Floyd, and the trial court entered a final judgment in favor of Brandy Floyd, consistent with the jury verdict. Fleming’s notice of appeal reflects that she is appealing from the final judgment entered in favor of Brandy Floyd. There is no issue before us regarding the finality of the trial court judgment. See Miss. R. Civ. P. 54(b).

      . However, the photographs entered into evidence indicate that Fleming's view from her driveway looking back to the west was not as obscured as she would have us believe.

      . Thus, Bowman concluded that Floyd was going 47.5 miles per hour when she first "perceived” Fleming at 205 feet away. Bowman further concluded that Floyd’s vehicle traveled approximately 111 feet before she slammed on her brakes, thus locking her brakes and making a slide of approximately ninety-four feet into Fleming’s vehicle.

      . Bowman testified, on direct examination, that he disagreed with the accident report written by the policeman who investigated at the accident scene. The accident report, which was admitted into evidence by stipulation of the parties at the request of Fleming's counsel, stated that Floyd’s brakes were defective, thus leaving only one skid mark from Floyd’s right tires instead of two skid marks by both the left and right tires on the roadway. However, Bowman testified that because the skid mark was straight rather than curved, there was no indication that Floyd’s brakes were not working properly. In fact, the record reveals that Bowman actually tested the brakes on Floyd’s vehicle.

      . Because Officer Jones made certain conclusions by noting the codes in the accident report, Bowman had to explain what the codes meant to the jury. Otherwise, the codes would have been meaningless to the jury.

      . Although Fleming did not file a formal response to Floyd’s petition for writ of certiora-ri, Fleming’s counsel requested us to consider Fleming's response to the motion for rehearing before the Court of Appeals as her response to the petition for writ of certiorari, which we have done.

      . Although Floyd was not certain as to her speed, she drove this road twice a day and she stated that she always drove within the speed limit on this stretch of the road because of the day-care center in the area.