author: MYERS, J., for the Court. IRVING, J.,

text:
    William F. TRUAX, III, Philip W. Shaw, Jr., Donnis Yates, Fred Kunz, Hannah Phillips, Frances Roberts and Jerry McCall, Appellants v. CITY OF GULFPORT and Humane Society of South Mississippi, Inc., Appellees.
    No. 2003-CC-02524-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2005.
    Rehearing Denied March 14, 2006.
    Certiorari Denied June 15, 2006.

      Dustin Norman Thomas, Ocean Springs, attorney for appellant.
    Harry P. Hewes, Reilly Morse, Gulfport, Margaret E. Murdock, attorneys for appel-lee.
    Before LEE, P.J., MYERS and BARNES, JJ.
   MYERS, J., for the Court.

¶ 1. This case arises from the Circuit Court of Harrison County’s dismissal of William Truax, Ill’s, and six additional appellants appeal. For the sake of brevity we will refer to them singularly as Truax. The appeal was from the decisions of the Gulfport City Council granting a zoning change and a special use permit for the construction of a new humane shelter complex within the City of Gulfport. Aggrieved by the circuit court’s dismissal of his action, Truax appeals raising the following three issues:

I. WHETHER THE CIRCUIT COURT’S DISMISSAL OF TRUAX’S APPEAL BASED ON FAILURE TO FILE A BRIEF WAS AN ABUSE OF DISCRETION.

II. WHETHER THE CIRCUIT COURT’S DISMISSAL OF TRUAX’S APPEAL WAS IN VIOLATION OF RULE 2 OF THE MISSISSIPPI RULES OF APPELLATE PROCEDURE AND WAS, THEREFORE, AN ABUSE OF DISCRETION.

III. WHETHER THE CIRCUIT COURT’S DISMISSAL OF TRUAX’S APPEAL SHOULD BE REVERSED DUE TO EXCUSABLE NEGLECT.

Finding no reversible error, we affirm.

STATEMENT OF FACTS

¶2. On June 26, 2002, Eric Aschaffen-burg, acting on behalf of the Humane Society of South Mississippi, Inc. and 5 Star Development, LLC, filed an application for a special use exception for the purpose of allowing a humane shelter to be placed in an area zoned as B-2, General Business. On July 1, 2002, Aschaffenburg also petitioned the City of Gulfport to rezone the subject property from B-2 to 1-2, Light Industrial, for the purpose of locating the new humane shelter.

___ ¶ 3. On July 25, 2002, the Gulfport City Planning Commission held a hearing on both topics, and made a recommendation to approve the zoning change. On August 15, 2002, the Zoning Board of Adjustment and Appeals held a hearing and the special use exception was recommended for approval.

¶ 4. On August 20, 2002, Truax filed his notice of appeal pertaining to the August 15, 2002 decision of the Zoning Board of Adjustment and Appeals which recommended the special use exception be granted. On the same day, the Gulfport City Council approved the zoning change requested, and in response to this approval, on August 30, 2002, Truax filed a bill of exceptions.

¶ 5. On September 17, 2002, the Gulfport City Council approved the special use permit requested. In response to this approval, Truax filed his second bill of exceptions, this one dealing with the approval of the City’s grant of the special use permit. The Humane Society then filed its motion to intervene which was granted, making Truax, the Humane Society, and the City of Gulfport the three parties to the action.

¶ 6. On March 6, 2003, a briefing schedule was entered, setting the due date for Truax’s brief as March 12, 2003. The parties agreed to a one week extension. One day prior to the briefs due date, Truax’s counsel sought a second extension, claiming a lack of the record pertaining to the rezoning decision.

¶ 7. Both the Humane Society and the City of Gulfport opposed this request and in response filed their motion to dismiss on April 2, 2003. The reason given for their opposition to an additional extension was that the Humane Society was unable to move forward with its multimillion dollar project as long as Truax’s appeal was pending. On April 11, 2003, the Harrison County Circuit Court held a hearing on the matter, at which time Truax’s counsel did not appear due to an emergency medical condition. The motion to dismiss was continued until April 22, 2003, at which time Judge Kosta Vlahos dismissed Truax’s appeal for failure to comply with Uniform Circuit Court Rule 5.06.

¶ 8. On appeal, Truax argues that dismissal of his claim was not mandatory under the Mississippi Rules of Appellate Procedure. Further, Truax argues that the brief is not to be considered as evidence and that on a review of the decision of an administrative agency, the circuit court’s decision should be based solely on the record; therefore, a brief is not required.

LEGAL ANALYSIS

I. WHETHER THE CIRCUIT COURT’S DISMISSAL OF TRUAX’S APPEAL BASED ON FAILURE TO FILE A BRIEF WAS AN ABUSE OF DISCRETION.

STANDARD OF REVIEW

“Since the adoption of the Mississippi Rules of Civil Procedure, it is clear that the granting of motions to dismiss is subject to the discretion of the trial court. This Court can only reverse when there has been an abuse of that discretion.” Roebuck v. City of Aberdeen, 671 So.2d 49, 50 (Miss.1996) (citing Carter v. Clegg, 557 So.2d 1187, 1190 (Miss.1990)).

DISCUSSION

¶ 9. In Truax’s first assignment of error, he argues that the circuit court’s dismissal of his appeal for failure to file a brief was an abuse of discretion. Further, Truax argues that the Gulfport City Council erred in approving the requested zoning amendments.

¶ 10. Truax argues that the appellate brief is not itself evidence, but rather the only actual evidence which is necessary to make a determination, is that which is contained in the official record. Further, Truax argues that dismissal of his action, for failure to file an appellate brief, would be a “draconian sanction” as stated by Pub. Employees Ret. Sys. v. Allen, 834 So.2d 50, 53(¶ 8) (Miss.Ct.App.2002), and that such drastic action was improper.

¶ 11., In determining whether dismissal of Truax’s action was proper, this Court must first look to the rules relied upon by the trial judge in making his determination. First, Uniform Circuit Court Rule 5.06, Briefs on Appeals on the Record, states as follows:

Briefs filed in an appeal on the record must conform to the practice in the Supreme Court, including form, time of filing and service, except that the parties should file only an original and one copy of each brief. The consequences of failure to timely file a brief will be the same as in the Supreme Court.

As stated by this rule, failure to timely file a brief is subject to the same consequence as would be applicable if the failure had occurred before the Mississippi Supreme Court. In order to determine the proper remedy, we must look to Rule 31(b) and (d) of the Rules of Appellate Procedure, which reads as follows:

Rule 31. Filing and Service of Briefs

(b) Time for Filing and Service of Briefs. The appellant shall serve and file the appellant’s brief within 40 days after the date on which the record is filed. The appellee shall serve and file the appellee’s brief within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee. In cross-appeals, the appellant and cross-appellee may serve and file a combined responsive brief within 30 days after service of the combined brief of the appellee and cross-appellant. The cross-appellant’s reply under Rule 28(c) may then be served within 14 days after service of the appellant’s combined responsive brief.
(d) Consequences of Failure to File Briefs. If an appellant fails to file the appellant’s brief within the time provided by this rule or within the time as extended, the appeal may be dismissed on motion of appellee or on the Supreme Court’s own motion as provided in Rule 2. If an appellee fails to file the appel-lee’s brief as required, such brief, if later filed, may be stricken from the record on motion of appellant or on the motion of the appropriate appellate court. An appellee who fails to file a brief will not be heard at oral argument except by permission of the court.

¶ 12. As stated by Rule of Appellate Procedure Rule 31(b) and (d), Truax was granted forty days after filing of the record in which to file his appellate brief. Failure to comply with this timeframe subjects one to the provisions of Rule 31(d) which states that the appeal may be dismissed upon motion of the appellee or on the Supreme Court’s own motion. The circuit court below dismissed Truax’s appeal pursuant to these rules and it can hardly be stated that a judge has abused his discretion by taking such an action clearly prescribed by our rules. Additionally, such action has been recognized as proper in our jurisprudence. See Zurich American Ins. Co. of Illinois v. Beasley Contracting Co., 779 So.2d 1132, 1134-35 (¶¶ 12-14) (Miss.Ct.App.2000). Therefore, Truax’s first contention is without merit.

¶ 13. Next, Truax argues that the Gulfport City Council erred by approving the special use permit and by allowing a zoning amendment. The applicable standard of review concerning matters of rezoning is limited and is stated as follows:

In order to re-zone property, it must be shown by substantial evidence that there was a mistake in the original zoning or that the character of the neighborhood has changed to justify reclassification, and that there is a public need for rezoning. Old Canton Hills Homeowners Ass’n v. Mayor of Jackson, 749 So.2d 54, 62(¶ 22) (Miss.1999). Judicial review is limited in matters involving re-zoning. “The zoning decision of a local governing body which appears to be fairly debatable will not be disturbed on appeal, and will be set aside only if it clearly appears the decision is arbitrary, capricious, discriminatory, illegal or is not supported by substantial evidence.” Fondren North Renaissance v. Mayor of Jackson, 749 So.2d 974, 977(¶ 7) (Miss.1999); City of Biloxi v. M.C. Hilbert, 597 So.2d 1276, 1280 (Miss.1992). “Courts should not constitute themselves as a zoning board for a municipality.” McWaters v. City of Biloxi, 591 So.2d 824, 828 (Miss.1991).
The decision of a local governing board is presumed valid, and the burden is upon the person seeking to set it aside to show that it was arbitrary, capricious and unreasonable. Board of Aldermen, City of Clinton v. Conerly, 509 So.2d 877, 884 (Miss.1987); Walters v. City of Greenville, 751 So.2d 1206, 1211 (Miss.Ct.App.1999). If the re-zoning decision of the City of [Gulfport] is to be reversed, the residents appealing the decision bear the burden of proving that the decision rendered was arbitrary, capricious, discriminatory, or beyond the legal authority of the city’s board or unsupported by substantial evidence. McWaters, 591 So.2d at 827. The terms “arbitrary” and “capricious” were defined by our supreme court in Burks v. Amite County School Dist., 708 So.2d 1366, 1370(¶ 14) (Miss.1998) (citing McGowan v. Mississippi State Oil & Gas Bd., 604 So.2d 312, 322 (Miss.1992)). An act is arbitrary when it is not done according to reason or judgment, but depending on the will alone. “Capricious” is defined as any act done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles. Id.
Since “fairly debatable” is the opposite of arbitrary and capricious, if the decision to re-zone the property is found to be fairly debatable it must be allowed to stand. Fondren, 749 So.2d at 977.

Gentry v. City of Baldwyn, 821 So.2d 870, 872-73 (¶¶ 5-7) (Miss.Ct.App.2002).

¶ 14. In the case sub judice, the record indicates that the character of the neighborhood had been in decline for some period of time and that the humane society’s locating in the area would be beneficial. From the record, both the humane society as well as the residents in the subject area acknowledge the presence of vagrants around the proposed location and the record further indicates that the city has experienced problems with people using the proposed site as an area to deposit their trash. Lastly, the record states that a large amount of asbestos is present in at least one of the buildings located on the proposed site which would be professionally removed during remodeling, and that the buildings have been vacant and in a state of disrepair for a number of years.

¶ 15. Further, the record indicates that a need was present for the relocation and that the improvements to the existing facilities would increase the property values of the surrounding area. With such testimony present in the record, we cannot say that the decision to grant .the requested zoning change was arbitrary, capricious, discriminatory, or illegal, to the contrary, given this testimony, the decision of the city was at the very least, fairly debatable. Therefore, this issue is without merit.

II. WHETHER THE CIRCUIT COURT’S DISMISSAL OF TRUAX’S APPEAL WAS IN VIOLATION OF RULE 2 OF THE MISSISSIPPI RULES OF APPELLATE PROCEDURE AND WAS, THEREFORE, AN ABUSE OF DISCRETION.

STANDARD OF REVIEW

¶ 16. The applicable standard of review for Truax’s second contention of error is the same as that addressed in Truax’s first issue. As stated previously, the grant of a motion to dismiss is subject to the trial court’s discretion and this Court will only reverse when there has been an abuse of that discretion. Roebuck, 671 So.2d at 50.

DISCUSSION

¶ 17. Truax next argues that the dismissal of his appeal by the Circuit Court of Harrison County was in error, as the procedure applied in dismissing his appeal did not conform to Rule 2(a)(2) of the Mississippi Rules of Appellate Procedure. This issue is raised for the first time on appeal, and “failure to raise the issue in the trial court bars it from being raised for the first time on appeal.” Zurich Am. Ins. Co., 779 So.2d at 1134(¶ 11) (quoting Riggs v. State, 744 So.2d 365, 372(¶26) (Miss.Ct.App.1999)). We note that Truax failed to raise this issue at any point before the circuit court, although numerous opportunities were available. As such, this issue is procedurally barred, and we decline to address this issue.

III. WHETHER THE CIRCUIT COURT’S DISMISSAL OF TRUAX’S APPEAL SHOULD BE REVERSED DUE TO EXCUSABLE NEGLECT.

DISCUSSION

¶ 18. Truax lastly argues that the dismissal of his appeal should be reversed due to excusable neglect by his former attorney. In support of this contention, Truax submits, as Exhibit A “under seal” to his brief, a letter from a board certified psychiatrist stating that his former attorney was prescribed pain medications for lower back disc herniations. The letter explains that as a side-effect to taking these medications, one may experience depression with symptoms of problems with concentration and motivation, as well as forgetfulness that can cause missed deadlines and other problems. Truax’s argument fails as these contentions are not properly before this Court and they are without merit.

¶ 19. First, by providing this document “under seal,” both the City of Gulfport and Humane Society of South Mississippi, Inc. have been denied an opportunity to meaningfully address these issues. Truax has not followed the proper procedures for filing a document under seal (see Mississippi Rules of Appellate Procedure, Rules 10(f), 25(b), and 48A(b) and (e)) and by doing so, has denied both the City of Gulf-port and Humane Society of South Mississippi, Inc. a meaningful opportunity to address this issue. Rather, both the City of Gulfport and Humane Society of South Mississippi, Inc. have been forced to resort to speculation in an effort to argue the issue. As stated by the Mississippi Supreme Court, “[t]his Court will consider only those matters that actually appear in the record and does not rely on mere assertions in briefs.” Touchstone v. Touchstone, 682 So.2d 374, 380 (Miss.1996) (citing American Fire Protection, Inc. v. Lewis, 653 So.2d 1387, 1390 (Miss.1995)). As such, the trial court cannot be held in error for issues never presented before it. American Fire Protection, Inc., 653 So.2d at 1390. As such, this issue is procedurally barred.

¶ 20. Truax’s argument fails for a second reason as well. During the hearing on the Humane Society’s and City’s motion to dismiss, Truax’s former attorney testified as follows:

[BY TRUAX’S FORMER ATTORNEY]: It was my assumption that we had as well received the documents that we requested directly from the city. It came to my attention—The person in our office that writes briefs is [a colleague of Truax’s former attorney]. And when she sat down and started to write these briefs, she brought to my attention that there were no documents in our file involving the rezoning.

¶ 21. As is demonstrated by the record, Truax’s former attorney was not responsible for authoring the appellate brief. As such, any alleged medical condition which may have affected his attorney’s performance has no bearing on the failure to prepare the appellate brief. As such, this issue is without merit.

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

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

IRVING, J.,

Dissenting.

¶ 23. The majority finds that the circuit court committed no error in relying upon Uniform Circuit and County Court Rule 5.06 to dismiss Truax’s appeal. That rule provides:

Briefs filed in an appeal on the record must conform to the practice in the Supreme Court, including form, time of filing and service, except that the parties should file only an original and one copy of each brief. The consequences of failure to timely file a brief will be the same as in the Supreme Court.

The rule provides that the consequences of failing to timely file a brief shall be the same as in the Supreme Court.

¶ 24. The consequences of an appellant’s failure to file the appellant’s brief in the Mississippi Supreme Court are set forth in Rule 31(d) of the Rules of Appellate Procedure. Subsection (d) provides that “[i]f an appellant fails to file the appellant’s brief within the time provided by this rule or within the time as extended, the appeal may be dismissed on motion of appellee or on the Supreme Court’s own motion as provided in Rule 2.”

¶ 25. Rule 2 of the Rules of Appellate Procedure provides in part as follows:

(a) Dismissal of Appeal
(1) Mandatory Dismissal. An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.
(2) Discretionary Dismissal. An appeal may be dismissed upon motion of a party or on motion of the appropriate appellate court (i) when the court determines that there is an obvious failure to prosecute an appeal; or (ii) when a party fails to comply substantially with these rules. When either court, on its on motion or on motion of a party, determines that dismissal may be warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within fourteen (14) days after the notification, the appeal shall be dismissed by the clerk of the Supreme Court. The attorney for the party in default has the burden to correct promptly any deficiency or to see that the default is corrected by the appropriate official. Motions for additional time in which to file briefs will not be entertained after the notice of the deficiency has issued.

(emphasis added).

¶26. While dismissing the appellant’s appeal is a permissible consequence of not timely filing the appellant’s brief, the dismissal is neither required nor automatic. As the plain reading of the rule reveals — ■ before a dismissal can occur — the defaulting party must be given notice of the deficiency (the failure to file the appellant’s brief) and fourteen days to cure the deficiency.

¶ 27. In the case before us, the circuit court, prior to dismissing Truax’s appeal, did not cause notice to be given to him by the clerk of the circuit court; therefore, the court did not comply with Rule 5.06 of the Uniform Rules of Circuit and County Court Practice. Executing the consequence without following the procedure which is a prerequisite to acquiring the authority to execute the consequence is hardly what is contemplated by the rule.

¶ 28. On these facts, I am compelled to conclude that the circuit court abused its discretion when it dismissed Truax’s appeal without following the notice procedure mandated by Rule 31(d) and made applicable by its own Rule 5.06. For the reasons presented, I respectfully dissent. I would reverse and remand.

GRIFFIS, J., JOINS THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

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

license: Public Domain

text:
    David Lee LAWRENCE, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01968-COA.
    Court of Appeals of Mississippi.
    Aug. 16, 2005.
    Rehearing Denied Jan. 3, 2006.
    Certiorari Denied June 22, 2006.

      Bentley E. Conner, Canton, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., MYERS and ISHEE, JJ.
   KING, C.J., for the Court.

¶ 1. This conviction stems from a horrific wreck in which the defendant, David Lawrence, while driving intoxicated ran a stop sign and collided with another automobile resulting in the injury of the driver and the death of five children who were her passengers. Lawrence was convicted of one count of negligent operation of a motor vehicle while under the influence of intoxicating liquors; aggravated assault for his injury of the driver, Lisa Miller, and five counts of manslaughter by culpable negligence for the deaths of three of Miller’s children Kenneth Miller, Joslyn Miller, and Jorian Miller and the death of two of their friends Ashley Bradley and Alexis Bradley. Following sentencing and the denial of the usual motions, Lawrence appeals to this Court.

¶ 2. Lawrence raises the following issues as errors which we quote verbatim:

1. Was it error to restrict production of discovery in this case to only those matters listed in TJCCR [sic] 9.04?
2. Whether the trial judge committed reversible error by not acting as a gate keeper to exclude the testimony of Ray Steed and Maury Phillips and requiring them instead to be tested by cross-examination in the presence of the jury?
3. Whether the trial judge committed reversible error by not allowing and requiring a hearing outside the presence of the jury by allowing the admission of a blood test result not performed in accord with methods adopted by the Commissioner of Public Safety.
4. Whether the trial judge committed reversible error by not having a hearing outside the presence of the jury to exclude the opinions of the state’s accident reconstructionist which were based on erroneous factual bases [sic]and not a complete reconstruction explaining loss of energy of both vehicles from inception of collision to their final resting point[.]
5. Whether Aggravated DUI is a lesser included offense to Culpable Negligence Manslaughter and Reckless Indifference Aggravated Assault[.]
6. Whether it is reversible error to fail to instruct the jury that Aggravated DUI is a lesser included offense to Culpable Negligence Manslaughter and Aggravated Assault.

Finding no error, this Court affirms the convictions and sentences.

FACTS

¶ 3. On August 24, 2002, Lawrence drove a friend’s Nissan Altima to the Ratliff Ferry Landing in Rankin County where he met other friends. Lawrence and his friends went boating. They brought along some beer, which was consumed while boating.

¶ 4. At some point during the afternoon, Lawrence’s friends thought that he had consumed enough beer and should refrain from further drinking. Lawrence was angered by this suggestion. When the group returned to the landing, Joel Gordon, who had not consumed any alcoholic beverages, offered to drive Lawrence home. Lawrence refused the offer. Lawrence then got car keys, got into the car and left the parking lot at a high rate of speed. As Lawrence did so, several of his friends, among them, Lee Chandler, Joel Chandler, and Michael Peusch, were in the parking lot and witnessed these events.

¶ 5. After Lawrence left the landing, Joel Chandler contacted Officer Cline Wy-man of the Madison County Sheriffs Department, who was also a friend of Lawrence. Chandler testified, “David was mad when he left. And Cline lives out that way. You know, if he saw him maybe he could help calm him down.”

¶ 6. Shortly after Lawrence left, a collision, at the intersection of Ratliff Ferry Road and the Natchez Trace, was reported at approximately 7:00 p.m. The collision was between the vehicle driven by Lawrence and a vehicle driven by Lisa Miller. Miller was proceeding northerly on the Natchez Trace and had the right of way. Lawrence, who was traveling west on Ratliff Ferry Road, was required to stop for the stop sign prior to entering the intersection of the Natchez Trace and Ratliff Ferry Road. It was later determined that Lawrence had failed to stop for the stop sign and collided with the vehicle driven by Miller. Miller had as passengers in her vehicle, five children.

¶ 7. Miller testified that she was driving at approximately fifty-five miles per hour as she approached the intersection. Upon noting that the driver of the other vehicle apparently was not intending to stop at the stop sign, Miller sped up in an effort to avoid a collision. Unfortunately, Miller’s efforts to avoid the collision were unsuccessful. The five children, who were passengers in Miller’s vehicle, died from the injuries sustained in the collision, and Miller was seriously injured.

¶ 8. Lawrence, who was also injured, was transported to the University Medical Center (UMC) in Jackson. While at UMC, blood was drawn from Lawrence for analysis. That analysis revealed that Lawrence had a blood alcohol content of .21 percent well above the legal limit. As a result these charges were brought against Lawrence.

¶ 9. At the trial, both the State and the defense called accident reconstructionists to testify. Ray Steed, the accident recon-structionist presented by the State, testified that according to his calculations, Miller was traveling approximately fifty-one miles per hour at the point of impact and Lawrence was traveling approximately eighty-one miles per hour at the point of impact. Sam Green, Lawrence’s accident reconstruetionist, testified that according to his calculations, Miller’s speed was approximately fifty-nine miles per hour at the point of impact and that Lawrence’s speed was approximately forty-seven miles per hour at the point of impact, and below the speed limit. Lawrence testified that he did not intentionally run the stop sign at the intersection of Ratliff Ferry Road and the Trace. He acknowledged having consumed “a couple of beers” prior to the collision, and stated that he did not recall much of what transpired prior to the collision.

¶ 10. Lawrence was found guilty of negligent operation of a motor vehicle, aggravated assault, and five counts of culpable negligence manslaughter.

¶ 11. Since Lawrence’s issues are intertwined, they will be recast into three errors.

I.

Was it error to restrict production of discovery in this case to only those matters listed in UCCCR 9.04(A)?

¶ 12. Lawrence contends that the trial court erred by restricting discovery to only those matters in URCCC 9.04(A). Lawrence argues that under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Hentz v. State, 489 So.2d 1386 (Miss.1986), and M.R.E. 705, the State should have produced in discovery all of the facts and data relied upon by its expert witnesses in formulating their opinions. Lawrence claims that the State (1) failed to produce the data used by the accident reconstructionist, (2) failed to produce the methods by which the data was analyzed, and (3) failed to produce evidence of how the “gas chromatograph” was calibrated.

¶ 13. Brady requires that the State make available to the defendant any exculpatory evidence. Brady, 373 U.S. at 88, 83 S.Ct. 1194. In Hentz our supreme court indicated that the State should not decide what evidence may or may not be exculpatory, but should instead make the evidence available to the defense for that determination. Hentz, 489 So.2d at 1388. Under M.R.E. 705, the court may require that the foundation for an expert’s opinion be disclosed prior to trial, or it may allow disclosure of the facts and data underlying an opinion on cross-examination.

¶ 14. Lawrence filed a motion for discovery on November 20, 2002. The State filed its discovery response and discoverable materials on January 22, 2003. Supplemental discovery was provided by the State pursuant to Rule 9.04. As part of the discovery, an accident reconstruction disc was provided to the defense (June 4, 2003).

¶ 15. On June 9, 2003, defense counsel filed a motion for discovery and to compel discovery requesting copies of “all facts or data relied upon by any state’s expert witness used by the expert in forming an opinion.” On June 9, 2003, the trial judge signed an order to compel discovery. That order required that the prosecution disclose the following:

1. All facts or data relied upon by any state’s expert witness used by the expert in forming an opinion.
2. A full description of the educational and experiential background of any expert witness, describing all knowledge, skill, experience, training, or education bearing on the opinion he intends to offer.
3. The substance of any opinion to be offered by any state’s witness.
4. The Director of the Mississippi Crime Laboratory is ordered to immediately perform a full drug screen or toxicology test on the blood drawn from Lisa Miller and submitted to the Crime Laboratory concerning the collision between her car and the Defendant’s car. This test is ordered to be performed instanter and the results provided to the District Attorney and Defense Counsel immediately upon completion. This case is set for trial on June 23, 2003, and it is imperative to perform this test and provide the results in order for the trial to proceed. A copy of this order shall be delivered to the Director of the Crime Lab by tele-copier and also by in-hand delivery.
5. The District Attorney is ordered to make Officer Gary Davis, Ridgeland Police Department, available for an interview by Defense counsel, to be conducted in the office of Jimmy Dixon, who is the investigator for the Madison County District Attorney’s office.

However, the trial judge later declined to enforce that order. He stated that the court felt “hoodwinked in the execution of that order.... Had I read that order, I would not have signed that order because it does not comply with Rule 9.04. The Court accepted that motion of discovery as one to obtain discovery as stated under Rule 9.04. It went further than that.”

¶ 16. “In reviewing rulings of a trial court regarding matters of evidence, relevancy and discovery violations, the standard of review is abuse of discretion.” Montgomery v. State, 891 So.2d 179(¶ 6) (Miss.2004). The supreme court has enumerated the following procedures when a discovery violation is asserted before the trial court:

1. Upon defense objection, the trial court should give the defendant a reasonable opportunity to become familiar with the undisclosed evidence by interviewing the witness, inspecting the physical evidence, etc.
2. If, after this opportunity for familiarization, the defendant believes he may be prejudiced by lack of opportunity to prepare to meet the evidence, he must request a continuance. Failure to do so constitutes a waiver of the issue.
3. If the defendant does request a continuance, the State may choose to proceed with trial and forego using the undisclosed evidence. If the State is not willing to proceed without the evidence, the trial court must grant the requested continuance.
Norris v. State, 735 So.2d 363, 364 (Miss.1999)(citing Cole v. State, 525 So.2d 365, 367-68 (Miss.1987)). When the State fails to follow discovery procedures a reversal is not warranted in every case. Box v. State, 437 So.2d at 21. This Court has held that a “[n]on-discovered evidence may be admitted at trial if the party against whom that evidence is offered is given a reasonable opportunity to make adequate accommodation.” Robinson v. State, 508 So.2d 1067, 1071 (Miss.1987).

Randolph v. State, 852 So.2d 547, 564(¶ 52) (Miss.2002).

¶ 17. We find no abuse of discretion by the trial judge. M.R.E. 705 gives to the trial court the option of requiring that the foundational data upon which an expert’s opinion is based be provided to the opposing party prior to trial or revealed at trial through cross-examination. The defense was provided the reports from the various expert witnesses of the State. The defense objected to the testimony of Dr. Hayne, the pathologist, because the foundational facts for his opinion were not specifically set out in the discovery response. The trial court found that there was no timely objection to the testimony of Dr. Hayne. However, it did allow the defense the opportunity to conduct voir dire of Dr. Hayne as to the foundation for his opinion and allowed a short recess before going forward. After doing so the defense proceeded without further objection.

¶ 18. The defense objected to the testimony of Maury Phillips, a forensic toxicologist, relating to blood alcohol, saying that there was no proper evidence of his certification to conduct these tests, or that the machine was properly calibrated to run these tests. The court allowed the evidence, after Phillips presented his certificate, testified as to his qualifications, and how he calibrated the machine which conducted the analysis.

¶ 19. After voir dire of Ray Steed, the State’s accident reconstructionist, as to his qualifications, the trial court accepted him as an expert. The court then informed the defense, that it could cross-examine him as to how he arrived at his conclusions and the methods used in making his determinations.

¶ 20. After reviewing the trial court’s actions regarding discovery, this Court finds no merit in this issue.

II.

Admissibility of Evidence

¶21. Lawrence argues that the trial court erred by (1) failing to act as “gatekeeper” and exclude the testimony of Steed, the state’s accident reconstructionist, and Phillips, a forensic toxicologist; (2) allowing the admission of a blood test result not performed within methods adopted by the commissioner of public safety, and (3) failing to have a hearing outside the presence of the jury to exclude the opinions of the State’s accident recon-structionist.

¶ 22. Admissibility and relevancy of evidence are within the discretion of the trial court and, “absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal.” McCoy v. State, 820 So.2d 25(¶ 15) (Miss.Ct.App.2002). The trial court found that Steed and Phillips were qualified by either education, training or experience to render their respective opinions. Their areas of expertise have been accepted by the courts of this state for many years as recognized areas of expertise. In Roberts v. Grafe Auto Co., 701 So.2d 1093, 1099 (Miss.1997), the supreme court held that “[i]t is well-entrenched in Mississippi law that a qualified expert’s opinion testimony regarding accident reconstruction may be admissible.” Regarding chemical tests, the supreme court has stated that “[ejxtraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol.” Cutchens v. State, 310 So.2d 273, 278 (Miss.1975). That recognition was not eliminated by the adoption of M.R.E. 702.

¶ 23. Lawrence also claims that the testimony of Steed and Phillips should have been excluded because the defense was not allowed to voir dire these witnesses about the principles and methods used in arriving at their opinions. The defense extensively cross-examined the witnesses at issue regarding the methods used to arrive at their opinions on speed determination and the qualifications to calibrate the machine used to determine the blood alcohol level of Lawrence. This Court cannot say that the trial court erred in its handling of these matters.

¶24. Next, Lawrence claims that the trial court should not have allowed the admission of the blood test results because the result was not achieved within the methods adopted by the commissioner of public safety. Lawrence maintains that the State failed to produce documentation during discovery which showed that Phillips was certified to operate the gas chro-matograph machine used to determine Lawrence’s blood alcohol level. In Bearden v. State, 662 So.2d 620, 624 (Miss.1995) our supreme court held that a blood alcohol test was admissible as long as there was substantial compliance with Mississippi Code Annotated § 63-11-19.

¶ 25. Phillips provided testimony on how the gas chromatograph operates and how it was calibrated before and after each test. Phillips also established that the machine was run in accordance with crime lab procedures.

¶ 26. Finally, Lawrence claims that a hearing should have been held outside the jury’s presence to exclude those opinions of Steed which were not factual. Lawrence alleges that Steed’s testimony explaining the loss of energy of both vehicles from the inception of the collision to the vehicles’ final resting place was not a complete reconstruction. Lawrence claims that Steed miscalculated the speed of Lawrence’s vehicle. Sam Green, Lawrence’s accident reconstruction witness, testified that Lawrence was traveling below fifty miles per hour and Steed indicated that Lawrence’s speed was approximately eighty-one miles per hour at impact. These would appear to be matters which go more to the weight to be given the testimony.

¶ 27. When experts reach different conclusions, the trial court is not required to exclude their testimony as long as it is relevant and is provided through some type of scientific basis. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

¶ 28. These issues are without merit.

III.

Whether aggravated DUI is lesser included offense of culpable negligence manslaughter.

¶ 29. Lawrence argues that aggravated DUI set out in Mississippi Code Annotated Section 63-11-30 (2004) is a lesser-included offense of manslaughter by culpable negligence and that an instruction should have been given stating such. As support for his position, Lawrence cites Mayfield v. State, 612 So.2d 1120, 1124 (Miss.1992), where the supreme court noted the following:

This Court has often held that a criminal defendant may be convicted of a crime not expressly charged if the crime is logically and necessarily included in whatever crime the indictment sets out. Mayfield argues that the crime of aggravated D.U.I. which § 63-11-30(4) describes is not “included” in the crime of manslaughter by culpable negligence since conviction of aggravated D.U.I. requires the State to prove intoxication— an element not included in the offense of manslaughter.
In Craig v. State, 520 So.2d 487, 493 (Miss.1988), the Court expressly found that the crime of aggravated D.U.I. set out in § 63-11-30(4) is “a lesser included offense necessarily encompassed ... under the more serious charge of manslaughter by culpable negligence.” The Court has repeatedly reaffirmed that position.

(citations omitted).

¶ 30. The supreme court went on to state:

The Grayer [v. State, 519 So.2d 438 (Miss.1988)] rationale is instructive in the instant case. When comparing the elements of aggravated D.U.I. to the elements of manslaughter by culpable negligence, we find that the unmatched element, driving while intoxicated, is “not inconsistent” with the greater offense. In fact, the act of operating a motor vehicle while under the influence of intoxicating liquor is a factor a jury is permitted to consider in determining whether a defendant is guilty of culpable negligence.

Mayfield, 612 So.2d at 1126.

¶ 31. Lawrence also requested an instruction on aggravated DUI as a lesser-included offense, which was denied by the trial court. The trial court found that in Wilkerson v. State, 731 So.2d 1173, 1179-80 (¶ 23) (Miss.1999), the supreme court held:

The charge of DUI homicide was the only charge brought against Wilkerson. Therefore, the term “lesser included offense” is incorrectly used in this brief. While when it was first enacted “DUI homicide” carried a smaller potential penalty than manslaughter and could under certain circumstances have been considered a lesser-included offense to manslaughter there is nothing which compels it to retain that status. It is now and has always been a free standing criminal offense. The fact that it now carries a criminal sanction greater than that for manslaughter creates no constitutional infirmity. Thus, appellant’s assignment of error has no merit.

¶ 32. Given the holding in Wilkerson, this Court declines to find error in this issue.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION IN COUNT I OF DEATH BY NEGLIGENT OPERATION OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUORS AND SENTENCE OF TWENTY-FIVE YEARS; IN COUNT II OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS; IN COUNTS III, IV, V, AND VI OF MANSLAUGHTER BY CULPABLE NEGLIGENCE AND SENTENCE OF TWENTY YEARS ON EACH COUNT ALL IN THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE SENTENCES IMPOSED IN COUNTS III AND IV SHALL BE SERVED CONCURRENTLY; THE SENTENCES IMPOSED IN COUNTS V AND VI SHALL BE SERVED CONCURRENTLY BUT CONSECUTIVELY TO THE SENTENCES IMPOSED IN COUNTS III AND IV. THE SENTENCE IMPOSED IN COUNT I SHALL BE SERVED CONSECUTIVELY TO THE SENTENCES IMPOSED IN COUNTS III, IV, V, AND VI. THE SENTENCE IMPOSED IN COUNT II SHALL BE SERVED CONSECUTIVELY TO THE SENTENCES IMPOSED IN COUNTS I, III, IV, V AND VI. THE SENTENCE IN COUNT II IS SUSPENDED AND THE DEFENDANT SHALL SERVE A TERM OF FIVE YEARS SUPERVISED PROBATION WITH THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TERMS SET OUT BY THE TRIAL COURT AS STATED IN ITS JULY 3, 2003 ORDER. ALL SENTENCES ARE AFFIRMED. FURTHER THE ORDER FOR THE DEFENDANT TO PAY COURT COSTS AND FEES IN THE AMOUNT OF $2,275 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR. IRVING, J., NOT PARTICIPATING.

      .URCCC 9.04(A) provides: A. Subject to the exceptions of subsection "B”, below, the prosecution must disclose to each defendant or to defendant's attorney, and permit the defendant or defendant’s attorney to inspect, copy, test, and photograph upon written request and without the necessity of court order the following which is in the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution:
      1. Names and addresses of all witnesses in chief proposéd to be offered by the prosecution at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statement made by any such witness;
      2. Copy of any written or recorded statement of the defendant and the substance of any oral statement made by the defendant;
      3. Copy of the criminal record of the defendant, if proposed to be used to impeach;
      4. Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case and the substance of any oral statement made by any such expert;
      5. Any physical evidence and photographs relevant to the case or which may be offered in evidence; and
      6. Any exculpatory material concerning the defendant.
      Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to the defense attorney as justice may require.


author: ISHEE, J., for the Court.

text:
    Frederick Daniel DENDY, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00041-COA.
    Court of Appeals of Mississippi.
    Nov. 15, 2005.
    Rehearing Denied March 14, 2006.
    Certiorari Denied June 22, 2006.

      William C. Stennett, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., GRIFFIS, and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Frederick Daniel Dendy appeals his conviction for murder and sentence of life in the custody of the Mississippi Department of Corrections. Finding no error, we affirm

STATEMENT OF FACTS

¶2. In December 2001, Windle Dendy (Windle) was found dead by her husband, Frederick Daniel Dendy (Dendy), in the home which they shared in Monroe County Mississippi. When the police arrived, they found broken glass on the floor at the rear door of the house and Windle lying on her stomach on her bed with two gunshot wounds to her back.

¶ 3. After an investigation, Dendy was indicted for her murder in October 2002. A jury trial was held in September 2003 and Dendy was subsequently convicted. Dendy then filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied.

¶ 4. Aggrieved by his conviction, Dendy appeals to this Court arguing the following: (1) whether the trial court erred in failing to conduct an investigation into whether juror misconduct resulted in an unfair trial; (2) whether the trial court erred in denying Dendy’s motion for a mistrial based on the mention of polygraph test results; (3) whether the trial court erred in its evidentiary rulings; (4) whether the trial court erred in revoking Den-dy’s bond due to perjury; and (5) whether the trial court erred in denying Dendy’s motion for a directed verdict or, in the alternative, a judgment notwithstanding the verdict.

ISSUES AND ANALYSIS

I. Whether the trial court erred in failing to conduct an investigation into whether juror misconduct resulted in an unfair trial.

¶ 5. During voir dire, the trial court asked that any member of the venire make it known to the court if any of them knew Windle through “whatever personal relationship that might have been, church, school” and if they “[knew] something about the knowledge of the facts of this case through Windle or through [Windle’s] family members.” As a result of the trial court’s inquiry, several potential jurors presented information to the court and each was individually questioned. A jury was subsequently impaneled and the trial was conducted.

¶ 6. Following the verdict, Dendy asserted that one of the jurors had known Win-dle and had attended her funeral. In support of his argument, Dendy submitted an unsworn affidavit from a former spouse who claimed that she had seen the juror at both the Windle’s visitation at the funeral home and then later at the funeral. Den-dy maintains that he should be granted a new trial because the juror withheld this information which evidences that he did not receive a fair and impartial trial. See Collins v. State, 691 So.2d 918 (Miss.1997).

¶ 7. In response, the State maintains that the juror did not withhold any information from the trial court because she did not have any personal knowledge of Windle, nor did she have any knowledge of the facts of the case gained from either Windle or Windle’s family. In support of their assertion, the State provided a sworn affidavit from the juror which stated the following:

I ... did go by the funeral home and sign the book for [Windle]. It is common practice at the bank where I work to go by the funeral home and sign in when a customer or their relative dies. Fred Dendy was a former customer of [the bank] and I did not know him personally. I was not a friend or relative of [Windle] or any immediate family member of [Windle] and I had never- met [Windle]. I did not attend the funeral of [Windle].

In analyzing this issue, we are reminded that it is a judicial question as to whether a jury is fair and impartial, and the trial court’s judgment will not be disturbed unless it appears that it is clearly wrong. Doss v. State, 882 So.2d 176, 183(¶ 10) (Miss.2004). In addressing issues of this nature, the Mississippi Supreme Court has held:

[W]here, as here, a prospective juror in a criminal case fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the juror reasonably could be inferred from the juror’s failure to respond.

Doss, 882 So.2d at 181(¶ 5) (quoting Odom v. State, 355 So.2d 1381, 1383 (Miss.1978)).

¶ 8. Based on the record and the juror’s sworn affidavit contained therein, we conclude the following in relation to the so-called Odom test: (1) the trial court’s question as to whether any juror had personal knowledge of Windle or facts of the case gained from either Windle or Win-dle’s family was certainly relevant; (2) the question was unambiguous; and (3) the juror at issue had no substantial knowledge of information which the trial court was seeking to elicit.

¶ 9. After a thorough review of the record, this Court finds that, although the juror did go to Windle’s visitation at the funeral home and sign the guest book, she did so in an employment capacity and not as a result of having personally known Windle or her family. This Court further finds that there is no credible basis in the record to support a claim that the juror gained any knowledge of the facts of the case either from Windle or from Windle’s family. As a result, this Court is unable to conclude that Dendy received an unfair trial based on this issue. This Court specifically finds that the trial court was not clearly wrong, and therefore, Dendy’s argument is without merit.

II. Whether the trial court erred in denying Dendy’s motion for a mistrial based on the mention of polygraph test results.

¶ 10. During the State’s case-in-chief, when asked about other possible suspects, a police investigator stated in part of her response that another suspect had taken and passed a polygraph test. Dendy immediately objected to the polygraph testimony and made a motion for a mistrial. After a recess to consider the parties’ respective arguments, the trial court subsequently denied the motion. Consequently, Dendy argues that the trial court abused its discretion since it is well established that neither the fact of taking a polygraph nor the results are admissible at trial. See Fagan v. State, 894 So.2d 576 (Miss.2004); Carr v. State, 655 So.2d 824 (Miss.1995).

¶ 11. Before proceeding with our analysis, we are mindful of the standard of review. “ ‘Whether to grant a motion for a mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for a mistrial is abuse of discretion.’ ” Caston v. State, 823 So.2d 473, 492(¶ 54) (Miss.2002) (quoting Pulphus v. State, 782 So.2d 1220, 1222(¶ 10) (Miss.2001)).

¶ 12. After a thorough analysis of the relevant case law, we conclude that Den-dy’s position does not reflect the complete state of the law. The Mississippi Supreme Court has held that although evidence regarding a witness’s offer ,to take a polygraph, refusal to take a polygraph, the fact that a witness took a polygraph, or the results of a polygraph are inadmissible, an inadvertent admission of such evidence does not automatically require a reversal. Weatherspoon v. State, 732 So.2d 158, 161— 63 (¶¶ 12-15) (Miss.1999). Furthermore, this Court has repeatedly held that:

A mistrial is not the inevitable result every time the jury is permitted to hear inadmissible evidence. The trial court is in the best position to assess the prejudicial impact of the improper evidence and decide whether a mistrial is necessary or whether the prejudice can be cured by admonishing the jury to disregard it.

Reed v. State, 764 So.2d 511, 514(¶12) (Miss.Ct.App.2000).

¶ 13. Unlike the polygraph reference in Fagan, the record in this case reveals that a single polygraph reference was made by a prosecution witness. See Fagan, 894 So.2d at 578-80 (¶¶ 6-9). Furthermore, in overruling the motion for a mistrial, the trial court determined that the single reference to the polygraph results was an inadvertent, unexpected comment which was unsolicited by the State. Finally, the trial court admonished the jury to disregard the reference to the offending testimony. “ ‘It is presumed that the jury follows the judge’s instruction.’ ” Moody v. State, 841 So.2d 1067, 1076(¶ 18) (Miss.2003) (quoting Davis v. State, 660 So.2d 1228,1253 (Miss.1995)).

¶ 14. After a thorough review of the record and the relevant case law, we conclude that neither the record nor Dendy’s assertion provides a sufficient basis for supporting a finding that the trial court abused its discretion in denying the motion for a mistrial. Therefore, this Court specifically finds that Dendy’s argument is without merit.

III. Whether the trial court erred in its evidentiary rulings.

¶ 15. Dendy argues that his conviction and sentence should be reversed because the trial court erred in its evidentiary rulings. Each of Dendy’s arguments will be discussed in turn. We begin our discussion of this issue with the standard of review. The standard of review for a challenge to the admissibility of evidence is abuse of discretion, and the reviewing court may only reverse for abuse of discretion. Brown v. State, 864 So.2d 1009, 1011(¶ 8) (Miss.Ct.App.2004) (citing Gray v. State, 846 So.2d 260, 262(¶3) (Miss.Ct.App.2002)).

1. Victim’s blood stained clothing.

¶ 16. Dendy maintains that the admission by the State of photographs of the clothes Windle was wearing when she was shot was sufficiently effective for presenting the State’s theory of the case, and that the introduction of the clothing itself was prejudicial. Dendy offers Humphrey v. State, 759 So.2d 368 (Miss.2000) (holding regarding admissibility of expert witness testimony superceded by statute as discussed in Mississippi Transp. Comm’n v. McLemore, 863 So.2d 31 (Miss.2003)) in support of his argument. That case, however, dealt with the admissibility of gruesome crime photographs and is unpersuasive as to the issue Dendy has presented for our review. Nevertheless, Dendy maintains that the clothing was unnecessarily prejudicial because the witness testimony and the photographs provided sufficient evidence as to the crime scene, and the position, and state of the victim’s body.

¶ 17. The State points out that the trial court determined that the clothing was admissible in part due to the fact that it was the subject of testimony regarding forensic testing which had been performed on it. The State maintains that the trial court ruling was appropriate in that bloody clothes which confirm witness testimony are admissible even against any alleged prejudicial effect. See Overstreet v. State, 369 So.2d 275 (Miss.1979).

¶ 18. We are mindful that blood stained clothes may be admissible if they have probative value. Kniep v. State, 525 So.2d 385, 389 (Miss.1988). Rule 401 of the Mississippi Rules of Evidence provides that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Furthermore, the Comment to M.R.E. 401 states that “[i]f the evidence has any probative value at all, the rule favors its admission.”

¶ 19. Ever aware of the possibility of prejudice, we point out that in this case, Dendy argued that he tested positive for gunshot residue on his hand due to touching the victim’s clothes; however, there was testimony that Dendy did not have any blood on his hands at the crime scene. The record reflects that the clothing had blood stains on it, and the issue of how and why Dendy had gunshot residue on his hands was critical to the jury’s determination of whether he was the person who killed Windle: Furthermore, the clothing corroborated the testimony of the investigators and the photographs of the scene. Physically seeing the clothing, and the quantity and location of the blood stains, was certainly probative of the ultimate issue in the case. Bearing in mind the parties’ respective theories of the case, and the fact that crime scene photographs were introduced into evidence, Dendy has failed to provide this Court with a sufficient basis for concluding that the trial court abused its discretion in allowing the clothing to be admitted into evidence. Therefore, we find this issue to be without merit.

2. Statements made by the victim.

¶ 20. Dendy asserts that the trial court erred in admitting into evidence hearsay statements that witnesses said Windle made to them prior to her murder. Dendy argues that the statements were inadmissible because he did not have an opportunity to cross-examine the declar-ant. When the issue was raised in the trial court, the State argued that they were relevant to rebut Dendy’s assertion that the only thing he and Windle ever fought about was who loved the other the most. The State further argued that the statements were admissible as hearsay exceptions pursuant to M.R.E. 803(3) which provides that “[a] statement of the declar-ant’s then existing state of mind, emotion, sensation, or physical condition ... is not excluded by the hearsay rule.”

¶21. Before proceeding, we note that “the admissibility of testimonial evidence is left to the sound discretion of the trial court within the boundaries of the Mississippi Rules of Evidence, and it will not be found in error unless it is has abused its discretion.” Harris v. State, 861 So.2d 1003, 1018(¶ 41) (Miss.2003). Furthermore, the Mississippi Supreme Court has held that a relevant statement made by a murder victim prior to his death may be admissible as an exception to the hearsay rule under the declarant’s then-existing mental condition, or state of mind exception under M.R.E. 803(3). Brown v. State, 890 So.2d 901, 914-15 (¶¶ 42-46) (Miss.2004); Harris, 861 So.2d at 1019(¶ 42).

¶ 22. Additionally, we note that the trial court made detailed findings on the record that the statements were more probative on the point for which they were offered by the proponent than any other evidence which the proponent could procure through reasonable efforts, the statements had a high degree of trustworthiness, and the defense was given reasonable notice as to the State’s intent to offer them at trial.

¶ 23. Based on these record findings and the relevant case law, this Court is unable to conclude that the trial court abused its discretion. Therefore, we specifically'find this issue to be without merit.

IV. Whether the trial court erred in revoking Dendy’s bond due to perjury.

¶ 24. Prior to trial, the trial court conducted a hearing to determine the substance of Dendy’s affidavit of poverty which he had submitted requesting court-appointed counsel to represent him in his upcoming murder trial. At that hearing, the trial court questioned Dendy regarding information he had submitted regarding his financial assets and status. When asked about his assets under oath, Dendy did not tell the court about his substantial firearms collection, the money he had received from Windle’s final pay check, the money he had received as the beneficiary of Windle’s bank account, nor the money he had received from the sale of their household goods. Based on his evasive and deceptive answers and the bank records in its possession, the trial court determined that Dendy had committed perjury. Dendy was later indicted for the felony of perjury and the trial court revoked his bail pursuant to the Mississippi Constitution Article 3, § 29(2) (Rev.1998).

¶ 25. Dendy maintains that his conviction and sentence should be reversed because the trial court asked him for information that directly related to his murder trial. Specifically, Dendy was asked if he met with an attorney to discuss a divorce prior to his wife’s death. Dendy also argues that the revocation of his bond severely limited his ability to assist in the preparation of his own defense at his murder trial. Dendy offers Clay v. State, 757 So.2d 236 (Miss.2000) in support of his argument.

¶ 26. After reviewing the case, we find that Clay is instructive as to the standard of review. “Both the determination of indigent status and the setting of bail are left to the sound discretion of the trial judge. Such judgment shall not be overturned unless there is a showing of manifest error or abuse of discretion.” Clay, 757 So.2d at 239(¶ 12) (citing Lee v. Lawson, 375 So.2d 1019, 1021 (Miss.1979)). However, beyond that point, the case provides nothing more to aid in the resolution of this issue based on the facts of this appeal. The trial court’s ruling in Clay was reversed by the Mississippi Supreme Court because the trial court’s ruling had been impermissibly based on the opinion of Clay’s attorney that Clay was not indigent. Clay, 757 So.2d at 239(¶ 14). The attorney provided neither an affidavit nor any evidence to support his claim. Id. Furthermore, the Mississippi Supreme Court concluded that the trial court evidenced a bias toward Clay in revoking his indigent status based on the trial court’s comments regarding Clay’s perceived delaying tactics. Clay, 757 So.2d at 240(¶ 18).

¶ 27. The record in this appeal reflects that none of these factors were present during Dendy’s indigency hearing. The record reflects evidentiary support for the trial court’s ruling, and there is nothing in the record to indicate that the trial court did not act impartially. Therefore, this Court specifically finds that the trial court acted within its discretion in revoking Den-dy’s bail due to his indictment for the felony charge of perjury.

V. Whether the trial court erred in denying Dendy’s motion for a directed verdict or, in the alternative, a judgment notwithstanding the verdict.

¶ 28. Dendy argues that there was insufficient evidence presented by the State to support the conviction. He also argues that the conviction was not supported by the weight of the evidence. Both assertions implicate different standards of review, and each will be discussed in turn.

1. Sufficiency of the evidence.

¶ 29. A motion for a directed verdict or a judgment notwithstanding the verdict challenges the legal sufficiency of the evidence. The standard of review is as follows: the evidence is examined in the light most favorable to the State; all credible evidence found consistent with the defendant’s guilt must be accepted as true; and, the prosecution is allowed the benefit of all sound and reasonable inferences which may be drawn from the evidence. Jones v. State, 669 So.2d 1383, 1388 (Miss.1995). This Court may only reverse a jury’s conviction based on insufficient evidence where the evidence viewed in the light most favorable to the prosecution is such that a fair and reasonable jury could not find the defendant guilty. Id. To employ a “less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal justice system.” Malone v. State, 486 So.2d 360, 366 (Miss.1986).

2. Weight of the evidence.

¶ 30. The standard of review regarding the denial of a motion for a new trial based on the verdict being against the overwhelming weight of the evidence is as follows: “[w]hen reviewing a denial of a motion for a new trial, based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). “The evidence should be viewed in the light most favorable to the verdict.” Id. The reviewing court sits as a limited “thirteenth juror” and weighs the evidence which was presented to the jury. Id. The reviewing court, however, must be mindful that “the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (citing Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).

¶ 31. Dendy was indicted for murder pursuant to Mississippi Code Annotated § 97-3-19 (Rev.2000). Therefore, the State was required to prove beyond a reasonable doubt that Dendy killed Windle wilfully, unlawfully, and feloniously, with malice aforethought or deliberate design in Monroe County. Miss.Code Ann. § 97-3-19. With these standards of review in mind, this Court must consider whether the evidence offered by the State had the requisite weight and sufficiency to prove beyond a reasonable doubt that Dendy unlawfully killed Windle in Monroe County with deliberate design or malice aforethought.

¶ 32. We begin our analysis with the undisputed issues of jurisdiction and cause of death. The record reflects undisputed testimony that the murder occurred in Monroe County. Furthermore, the state pathologist’s testimony reflects that there was a deliberate design on the part of Windle’s attacker to effect her death, based on the nature of the injuries she received. The state pathologist testified that Windle died as a result of two gunshot wounds to her back. The pathologist further testified that Windle had been shot while lying on her stomach on her bed and that her body contained no evidence of defensive wounds or a struggle.

¶ 33. The sole issue in dispute for the jury was the identity of the person who unlawfully, willfully, and feloniously killed Windle. The record reflects that the State presented expert testimony from the State’s pathologist as to the approximate time of Windle’s death. Dendy testified that he had dinner with Windle shortly before she was killed, and his inconsistent testimony regarding when he left the house could support the jury’s conclusion that he was present at the time she was shot. Shortly after the murder, Dendy tested positive for gunshot residue on the back of his right hand and the palm and back of his left hand. Dendy again offered inconsistent testimony as to why he had gunshot residue on his hands in an attempt to refute the State’s expert witness testimony that the residue on the back of Den-dy’s right hand was consistent with his having fired a pistol. In addition, the State presented expert witness testimony that the broken glass on the floor at the crime scene had been staged to indicate that there had been an intruder at the house the night Windle was murdered. The expert witness testified that the physical evidence at the crime scene was not consistent with a burglary and that money and guns were left alone even though in plain sight. Furthermore, the State offered multiple witnesses who testified that Dendy and Windle had financial problems which caused tensions between them and that Dendy had called a former high school girlfriend repeatedly before Windle’s death. Finally, we emphasize that Dendy had every opportunity to present his theory of the case to the jury, and that each of the State’s witnesses was subjected to the crucible of cross-examination.

¶ 34. After examining the evidence in the light most favorable to the State, and after accepting as true all credible evidence found consistent with the defendant’s guilt, and after affording the prosecution the benefit of the sound and reasonable inferences which may be drawn from the evidence, we find that a fair and reasonable jury could conclude, based on the sufficiency of the evidence, that Dendy unlawfully murdered Windle with deliberate design in Monroe County. We conclude that the State offered sufficient evidence as to each element of the murder charge against Dendy.

¶35. Furthermore, after viewing the evidence in the light most favorable to the verdict, and after weighing the evidence as a limited “thirteenth juror,” we find that the evidence does not preponderate heavily against the verdict, and that the verdict does not sanction an unconscionable injustice. We agree that there were difficult issues of credibility for the jury to make. However, matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. Drake v. State, 800 So.2d 508, 516(¶ 34) (Miss.2001). This Court’s role as a limited “thirteenth juror” is restricted to considering whether the jury’s resolution of the conflicting testimony amounted to an unconscionable injustice. In this case, after viewing the evidence in the light most favorable to the verdict, we are unable to conclude that the jury’s decision to find Dendy guilty of murder was beyond the weight of the evidence.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


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

text:
    UNIVERSAL UNDERWRITERS GROUP, INC., Appellant v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee.
    No. 2004-CA-01818-COA.
    Court of Appeals of Mississippi.
    Nov. 29, 2005.
    Rehearing Denied April 11, 2006.
    Certiorari Denied June 15, 2006.

      Jeffrey Lee Ingram, attorney for appellant.
    J. Niles McNeel, Louisville, attorney for appellee.
   LEE, P.J., for the Court.

¶ 1. Universal Underwriters Group, Inc. (“Universal”) appeals the decision of the trial court granting summary judgment in favor of State Farm Fire and Casualty Company (“State Farm”). On appeal, Universal contends that Dylan Hawkins (“Hawkins”) was not required by law to be insured by Universal under the policy issued to Griffis Ford Mercury, Inc. (“Grif-fis”). We find no error and affirm.

FACTS

¶ 2. Kathy Massey rented a 2000 Ford Focus from Griffis. On May 13, 2002, the rental car, being driven by Hawkins with Massey’s consent, was involved in a motor vehicle accident with Claude Chambers. As a result of the accident, Chambers’ vehicle was damaged and the cost of repairs totaled $5,066.50. At the time of the accident, Griffis was insured by an insurance policy issued by Universal and Hawkins was insured by an insurance policy issued by State Farm. State Farm paid Chambers’ $5,066.50 claim and subsequently requested reimbursement from Universal. When Universal denied the request, State Farm sued. The Chancery Court of Neshoba County granted summary judgment for $5,000 in favor of State Farm. Universal now appeals.

STANDARD OF REVIEW

¶ 3. This Court employs a de novo standard of review of a lower court’s grant or denial of summary judgment and examines all the evidentiary matters before it. McMillan v. Rodriguez, 823 So.2d 1173, 1176(¶ 9) (Miss.2002). The evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his or her favor. Id. Otherwise, the motion should be denied. Id. The burden of demonstrating that no genuine issue of material fact exists is on the moving party. Id. The non-moving party should be given the benefit of the doubt. Id.

ANALYSIS

¶ 4. Universal contends that its policy does not apply because Hawkins was not an insured under its policy. In support of this argument, Universal relies on State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 797 So.2d 981 (Miss.2001). There, the driver of the vehicle was insured by a garage policy which covered “any other person or organization required by law to be an insured while using an auto covered by this coverage part within the scope of your permission.” Id. at 983(¶ 5). The court found that since there was no requirement of law that the driver be insured, the driver of the vehicle covered by the garage policy was not an insured according to the policy. Id. at 986(¶ 16). The accident in that case occurred in November 1996. Since that date the Mississippi legislature amended the “Mississippi Motor Vehicle Safety Responsibility Law” by enacting mandatory insurance coverage. Mississippi Code Annotated Section 63-15-4(2) (Rev.2004) provides:

(a) Every motor vehicle operated in this state shall have an insurance card maintained in the vehicle as proof of Lability insurance that is in compliance with the liability limits required by Section 63-15-3®. The insured parties shall be responsible for maintaining the insurance card in each vehicle.
(b) An insurance company issuing a policy of motor vehicle liability insurance as required by this section shall furnish to the insured an insurance card for each vehicle at the time the insurance policy becomes effective.

¶ 5. The Universal policy applying to this case defines “Auto Hazard” as follows:

“AUTO HAZARD” means the ownership, maintenance, or use of any AUTO YOU own or which is in YOUR care, custody or control and:
(1) used for the purpose of GARAGE OPERATIONS;
(2) used principally in GARAGE OPERATIONS with occasional use for other business or rionbusiness purposes;
(3) furnished for the use of any person or organization, (emphasis added).

¶ 6. The Universal policy defines an insured under the AUTO HAZARD coverage as follows:

With respect to the AUTO HAZARD:
(1) YOU;
(2) Any of YOUR partners, paid employees, directors, stockholders, executive officers, a member of their household or a member of YOUR household, while using an AUTO covered by this Coverage Part, or when legally responsible for its use. The actual use of the AUTO must be YOU or within the scope of YOUR permission;
(3) any CONTRACT DRIVER;
(4) Any other person or organization required by law to be an INSURED while using an AUTO covered by this Coverage Part within the scope of YOUR permissions, (emphasis added).

¶ 7. The AUTO HAZARD coverage referred to above applies to the rental car owned by Griffis because the car was “furnished for the use of any person or organization” and that “person,” Hawkins, was “required by law to be an INSURED while using the AUTO.... ”

¶ 8. Universal concedes that under the current statutory law, no vehicle is to be operated in Mississippi without proper insurance. Universal argues, however, that the insurance can be provided by the operator of the vehicle (Hawkins) or by the owner of the vehicle (Griffis). Universal therefore contends that because Hawkins, as operator of the vehicle involved in the accident, had applicable insurance with State Farm, she was not required by law to be insured by Universal and thus does not meet the definition of an insured under Universal’s policy. However, if two policies are in effect at the time of the accident, the insurer for the owner of the vehicle involved is the primary insurer. U.S. Fid. and Guar. Co. v. John Deere Ins. Co., 830 So.2d 1145, 1148(¶ 16) (Miss.2002); Travelers Indem. Co. v. Chappell, 246 So.2d 498, 505 (Miss.1971). Thus, Universal, as the insurer for Griffis, the owner of the vehicle involved, is the primary insurer.

¶ 9. Pursuant to Section 63-15^1(2) (Rev.2004), Mississippi now requires liability insurance coverage on every vehicle operated in this state. Specifically, the law states that “insured parties shall be responsible for maintaining the insurance card in each vehicle.” Miss.Code Ann. § 63-15-4(2)(a) (Rev.2004). This provision vests the responsibility of providing insurance on the person with an insurable interest in the property. The general rule that anyone who derives a benefit from property or would suffer loss from its destruction has an insurable interest in the property has been applied to motor vehicle insurance. Dorsey Mississippi Sales, Inc. v. Newell, 251 Miss. 77, 168 So.2d 645 (Miss.1964). This rule places the burden of providing insurance and proof thereof on Grif-fis, which was done through the Universal Underwriters policy.

¶ 10. Based on the language of the Universal policy, there was liability coverage for anyone driving a Griffis-owned vehicle with proper permission. Despite its argument to the contrary, Universal was not relieved of its obligation to provide insurance simply because some other coverage was available. Since coverage on the Grif-fis vehicle was primary, Universal has liability for damage to Chambers’ car up to the $5,000 as required by Mississippi Code Annotated Section 63-15-3® (Supp.2005).

¶ 11. Upon review, we find that State Farm is entitled to summary judgment against Universal for $5,000. Thus, the decision of the Chancery Court of Neshoba County is affirmed.

¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF NESHOBA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., BRIDGES, CHANDLER, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT A SEPARATE WRITTEN OPINION. GRIFFIS, J., NOT PARTICIPATING.


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    R.L.N., Appellant v. C.P.N., Appellee.
    No. 2004-CA-01013-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2005.
    Rehearing Denied Feb. 14, 2006.
    Certiorari Denied June 15, 2006.

      James D. Bell, Jackson, attorney for appellant.
    Debra Lynn Allen, Jackson, attorney for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   KING, C.J., for the Court.

¶ 1. At the conclusion of four years of examinations and hearings, the Chancery Court of Madison County ordered R.L.N. to cease all visitation with his son based on the court’s finding that R.L.N. had sexually molested him. Aggrieved, R.L.N. raises the following issues on appeal which we quote verbatim:

I. Did the chancellor err in placing the burden on the father, accused of sexually abusing his four year old son, to prove his innocence before ending four years of strict supervised visitation, where a D.H.S. investigation and two independent psychologists did not confirm abuse?
II. Did the chancellor commit manifest error in determining that a four year old child had been the victim of sexual abuse committed' by his father, when the child made inconsistent statements about whether he was abused during the first two years of the investigation, but after four years of almost continual examination the child began to “remember” additional episodes of abuse by his father from years earlier?
III.Did the chancellor commit manifest error in suspending all visitation of the father with his minor son, where the expert testimony was that the child will be harmed by the suspension of visitation and that in all probability the child will not be harmed by expanding visitation with the father?

PROCEDURAL HISTORY

¶ 2. C.P.N. and R.L.N. were divorced in March of 2000. The chancellor ordered joint legal custody of their then four-year-old son, B.N., with the mother (C.P.N.) having primary physical custody. After B.N. began exhibiting disturbing behavior and making allegation of sexual abuse at the hands of his father (R.L.N.), C.P.N. filed a motion to restrict R.L.N.’s visitation with B.N. A hearing on this motion was held on June 12, 2001. On July 25, 2001, the chancellor ordered restricted visitation. The order provided that R.L.N. was to have professionally supervised visitation with B.N. no less than twice a week and would be allowed daily telephone conversations with B.N. The order further provided that B.N. was to be evaluated by Dr. Nancy Horton, a court appointed psychologist, in an attempt to determine the source of the allegations. On November 28, 2001, Hermine Welch, the guardian ad litem, filed a Motion for Order in Conformity With Expert Opinion. The motion referenced the recommendation of Dr. Horton that restricted visitation continue and that B.N. be placed in counseling. On November 30, 2001, the chancellor granted the motion. On March 11, 2002, R.L.N. filed a pro se motion to restore unsupervised custody. The chancellor denied R.L.N.’s motion.

¶ 3. Again on January 2, 2003, R.L.N., this time through counsel, filed a Motion for Unsupervised and Extended Visitation. A hearing on this motion was held on January 15, 2004, in which the testimony was substantially similar to that presented in the June 12, 2001 hearing. The hearing continued on January 23, 2004. On March 23, 2004, the chancellor rendered a final judgment terminating visitation between R.L.N. and his son.

STATEMENT OF FACTS

¶ 4. B.N.’s parents had been divorced for about six months when B.N. began exhibiting very disturbing behavior at daycare. His teachers observed that B.N. displayed extremely aggressive behavior, usually with little or no provocation. In addition to violent behavior, B.N. also frequently exhibited advanced sexual knowledge. B.N. was expelled from one daycare for such misconduct, including exploring little girls’ bodies in a way that teachers described as unusual for a child of his age. After these reports, C.P.N. began taking B.N. to see Dr. Angela Herzog, a psychologist appointed by the court during the couple’s divorce.

¶ 5. While enrolled in a second daycare, B.N.’s teacher saw him on the playground kneeling next to a little girl who was lying on her stomach with her panties down while B.N. fondled her buttocks with his finger. When asked by the teacher about the incident, B.N. responded that his father put pencils in his “hiney.” The teacher testified that she had several conversations with B.N. about his father, and B.N. mentioned the pencil incident three or four times. She also asked B.N. if he could describe how his dad hurt him, to which he got on all fours and stuck his bottom up. Other teachers also testified about B.N.’s behavioral problems.

¶ 6. In November of 2000, Dr. Herzog contacted the Department of Human Services (D.H.S.) to investigate possible sexual abuse. D.H.S. reported that they were unable to find any signs of sexual abuse. Dr. Herzog also told C.P.N. that she wanted her to take B.N. to Dr. Meeks for a physical examination. While D.H.S. found no signs of abuse, Dr. Meeks’ report suggested that although there was no tearing, it appeared that B.N. may have become desensitized in the area of his anus. However, Herzog ultimately concluded that she was uncertain as to whether B.N. had been sexually abused.

¶ 7. C.P.N. testified that based on B.N.’s behavior, she believed that R.L.N. had molested B.N. She also testified that she did not believe that R.L.N. had molested B.N. since November or December of 2000.

¶ 8. At the June 2001 hearing, Hermine Welch, the guardian ad litem, declined to give a recommendation to the court regarding visitation. She stated her belief that something terrible had happened to B.N. but that she was not convinced that his father was the perpetrator. She did recommend placing B.N. in counseling. Welch also testified at the January 2004 hearing. Her only recommendation was that B.N. submit to a psychiatric evaluation.

¶ 9. At the 2004 hearing, B.N.’s new teachers testified and expressed similar concerns to those of B.N.’s previous teachers. At the January 2004 hearing, R.L.N.’s relatives testified favorably for R.L.N., while C.P.N.⅛ sister testified that she believed R.L.N. had molested B.N. Most disturbing was the sister’s testimony in which she recounted something B.N. cried out in his sleep one night while he was staying with her; “Please stop. It’s uncomfortable. I don’t like it.... Please, take it out. It hurts. It hurts.”

¶ 10. Paul Davey, a child therapist who began counseling B.N. in 2002, testified that he believed that B.N. had been sexually abused by his father. However, Da-vey also testified that B.N. had repeatedly told Davey that he still wanted to see his father so long as Davey or someone like him was present.

¶ 11. In his final judgment the chancellor ordered (1) that all visitation between B.N. and his father stop immediately, (2) that B.N. see a specialist who could treat him, (3) that B.N. be placed in an after school program for troubled children, and (4) that B.N.’s guardian ad litem report back to the court within six months regarding B.N.’s progress. The guardian ad litem’s report should have been submitted to the court by the end of September 2004. However, no such report or any evidence of B.N.’s progress since the final judgment appears in the record.

ANALYSIS

¶ 12. This Court will not disturb a chancellor’s findings of fact unless such findings are manifestly wrong or unsupported by substantial credible evidence. Fountain v. Fountain, 877 So.2d 474, 477 (¶ 9) (Miss.Ct.App.2003). The Mississippi Supreme Court defines substantial evidence as “such .relevant evidence as reasonable minds might accept as adequate to support a conclusion or to put it simply, more than a mere scintilla of evidence.” Tucker v. Prisock, 791 So.2d 190, 192 (¶11) (Miss.2001) (internal quotations omitted).

I.

¶ 13. R.L.N. complains that the chancellor erroneously placed the burden on him to prove that he did not molest his son. This Court finds that the record does not support that contention. Instead, the record reveals that the chancellor wanted to hear from everyone with personal knowledge that was involved in B.N.’s life. The chancellor was faced with differing opinions from expert and lay witnesses as to whether B.N. had been sexually molested by his father. R.L.N. seems to suggest that the inquiry should have ended with the inconclusive DHS report and the findings of Dr. Herzog. However, the chancellor is charged with the responsibility of protecting children and determining both custody and visitation based on the child’s best interest. Newsom v. Newsom, 557 So.2d 511, 517 (Miss.1990). We find that it was in B.N.’s best interest for the chancellor to hear from everyone involved, and this did not amount to placing the burden on R.L.N. to prove his innocence.

¶ 14. The evidence in this case was highly contentious. DHS reported that they were unable to find any signs of sexual abuse. However, Dr. Meeks’ report suggested that although there was no tearing, it appeared that B.N. may have become desensitized in the area of his anus.

¶ 15. In addition several of B.N.’s teachers testifying about B.N.’s violent and sexual behavior, the director of the daycare testified that she had concerns that B.N. had been physically or sexually abused. The chancellor, in his opinion, noted the director’s credibility, citing the director’s extensive history of working with abused children.

¶ 16. Dr. Herzog testified that she questioned the veracity of B.N.’s accusations. Regarding the “pencil in the hiney” allegation, Dr. Herzog said that at one point B.N. told her that his mom told him to say that. Another time, B.N. told Dr. Herzog that his uncle told him to say that. In addition to inconsistencies, Dr. Herzog said she doubted the allegations because there was no medical corroboration and B.N. could not give any contextual clues about the incident — the how, when, where or why. Dr. Herzog also testified that B.N. appeared to be much more comfortable and relaxed around his father than around his mother. Dr. Herzog’s ultimate conclusion was that she could not be certain that B.N. had even been sexually-abused, much less by his father. Rather, she attributed B.N.’s behavior to the “messy divorce.” Dr. Herzog also testified that she believed that B.N. may not always be able to distinguish reality from fantasy. She further testified that B.N. may be genetically predisposed to psychological difficulties.

¶ 17. While Dr. Herzog testified that she could not conclude that B.N. had been sexually abused, the chancellor clearly called her credibility into question. Specifically, the chancellor noted that Dr. Her-zog was unable to answer direct questions with precision and accuracy, and it appeared to the chancellor that Dr. Herzog “shot from the hip” when the court pressed her for a recommendation.

¶ 18. Davey testified that he believed that B.N. had been sexually abused, and he believed that B.N.’s father was his abuser. His main concern was that B.N. had repeatedly named his father, and no one else, as his abuser and would not recant the allegation.

¶ 19. On cross-examination Davey testified that during their first meeting B.N. told him that he had made up the stories about his father. Also, B.N. made new allegations to Davey that had not been reported to teachers or other counselors, such as his father forced him to drink urine when he was three years old. B.N. also made up stories about having brothers and sisters. Additionally, B.N. told Davey that during a supervised visitation that took place at a local church his father whispered in his ear that he wanted to play with B.N.’s penis. B.N. also said that he reported this to an intern charged with supervising the visits. However, when the intern was questioned about this, he testified that it never happened. While Dr. Herzog evaluated these inconsistencies in a way that challenged B.N.’s veracity, Da-vey opined that the inconsistencies were due to B.N.’s age and lack of vocabulary at the time he was evaluated by other practitioners.- Davey was also asked about Dr. Horton’s use of anatomically correct dolls when she examined B.N., and Davey confirmed that nearly half of all children made false accusations of sexual abuse when exposed to these dolls. Davey was also asked if it was possible that B.N.’s memories of abuse could be the result of years of questioning about his father and about his sexual behavior along with B.N.’s observations of the extremely restricted visitation. Davey said that it was possible but in his opinion unlikely that these were false memories.

¶ 20. In his opinion, the chancellor cited the testimony of B.N.’s teachers, Dr. Her-zog, Paul Davey, R.L.N., and C.P.N. The chancellor also noted that since the hearing Davey’s license had been revoked by the Mississippi State Board of Examiners for Licensed Professional Counselors for falsifying and misrepresenting test results. We cannot say that we are unconcerned with this revelation about Davey. However, the chancellor is exclusively charged with determining the weight and worth of a witness’ testimony. Doe v. Doe, 644 So.2d 1199, 1207 (Miss.1994).

¶ 21. While R.L.N. construes the chancellor’s actions as placing the burden on him to prove his innocence, this Court finds that the chancellor exercised an abundance of caution in keeping B.N.’s best interest in the forefront of his decision. Accordingly, we find that this issue is without merit.

II.

¶22. R.L.N. next argues that the chancellor erred in finding that B.N. had been sexually abused by his father. Whether a child has been sexually abused is a question of fact, and when such testimony is in conflict, the chancellor must resolve the question by making a determination of the credibility of the witnesses. Doe, 644 So.2d at 1207. The case at hand is strikingly similar to Doe in that there seems to be little question about whether B.N. was sexually abused. The murkier question seems to be whether there was enough proof to establish that B.N.’s father was in fact the abuser.

¶ 23. In the present case, the chancellor specifically stated in his findings of fact the testimony upon which he based his decision. Additionally, the chancellor noted the credibility he afforded each witness. Certainly, the chancellor’s finding that B.N. had been sexually abused by R.L.N. was based on more than a “mere scintilla” of evidence. We must note that while R.L.N. points to inconsistencies in B.N.’s allegations, B.N. has never named another person as his abuser. During four years of hearings and examinations, no one else has been implicated as sexually abusing B.N. Therefore, we cannot find that the chancellor’s finding was based on insufficient credible evidence or that the chancellor was manifestly wrong.

III.

¶ 24. R.L.N.’s final argument is that the chancellor erred in suspending all visitation between R.L.N. and B.N. “The chancery court has the power to restrict visitation in circumstances which present an appreciable danger of hazard cognizable in our law.” Newsom, 557 So.2d at 517. Restrictions placed on visitation are within the sound discretion of the chancellor. White v. Thompson, 569 So.2d 1181, 1185 (Miss.1990).

¶ 25. R.L.N. states that the expert testimony was that B.N. will be harmed by the suspension of visitation and that in all probability the child will not be harmed by expanding visitation with the father. However, we disagree with this interpretation. Davey clearly testified that B.N. will likely be adversely effected if all ties between he and his father are severed, but that B.N. has already been and will continue to be adversely effected if he continues to see his father. Davey also testified that if B.N. were telling him that he did not want to see his father, Davey would not hesitate recommending to the court that visitation cease. However, B.N. tells Da-vey that he wants to get to know his father and wants to see him on a supervised basis. When asked by B.N.’s guardian ad litem if Davey had a suggestion for the court on the ultimate issue of R.L.N.’ visitation, Davey stated that there was no good clean answer. However, Davey’s ultimate recommendation to the court was to suspend visitation for a period of time, and that after sixty or ninety days, B.N. should be examined to determine the impact.

¶ 26. This Court finds that the chancellor did not err in ordering visitation to stop immediately. He clearly had B.N.’s best interest in mind, and based his decision on more than a “mere scintilla” of evidence.

¶ 27. In our reading of the chancellor’s order, we do not believe that the possibility of R.L.N. regaining supervised visitation with B.N. has been foreclosed. While part one of the chancellor’s order states that visitation between R.L.N. and B.N. shall stop immediately, part five of the order concludes by stating that the guardian ad litem shall report back to the court in six months regarding B.N.’s progress.

¶ 28. In Harrington v. Harrington, our supreme court stated:

The chancellor has broad discretion when determining appropriate visitation and the limitations thereon. When the chancellor determines visitation, he must keep the best interest of the child as his paramount concern while always being attentive to the rights of the non-custodial parent, recognizing the need to maintain a healthy, loving relationship between the non-custodial parent and his child.

648 So.2d 543, 545 (Miss.1994).

¶ 29. The chancellor’s order along with the conclusion of his accompanying opinion indicates that the chancellor intends to retain jurisdiction over this matter. The guardian ad litem’s report detailing B.N.’s progress should have been submitted to the chancellor by September 23, 2004. However no such report appears in the record. If this report reveals that B.N.’s mental and emotional state has improved due to the termination of visitation with his father, the chancellor should permanently terminate visitation between R.L.N. and his son. However, if it is found that the termination of visitation has detrimentally effected B.N., and R.L.N. can show that it is in B.N.’s best interest to resume visitation, the chancellor should revisit this matter, keeping in mind the importance of fostering as healthy a relationship as possible between R.L.N. and B.N.

¶ 30. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., BRIDGES, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY.

      . Due to the sensitive nature of this case, we refer to the parties by their initials only.

      . We also note that in the Appellant's brief counsel for R.L.N. erroneously refers to this case as one seeking to terminate the rights of the father. R.L.N. then cites to P.K.C.G. v. M.K.G, 793 So.2d 669 (Miss.Ct.App.2001) and insists that C.P.N. was bound to prove her case by clear and convincing evidence. However, custody and visitation considerations differ from termination of parental rights, as parental rights encompass more than just custody and visitation. In re T.A.P., 742 So.2d 1095, 1104 (¶ 41) (Miss.1999). This case was clearly one involving visitation. No one involved filed a petition to terminate parental rights.