author: ROBERTS, J.,

text:
    HINDS COUNTY BOARD OF SUPERVISORS and Mississippi Municipal Workers’ Compensation Group, Appellants v. Jay JOHNSON, Appellee.
    No. 2006-WC-01297-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.
    Rehearing Denied Dec. 11, 2007.

      Robert J. Arnold, Mary Frances Stall-ings-England, Jackson, attorneys for appellant.
    Steven Hiser Funderburg, Jackson, attorney for appellee.
    Before LEE, P.J., IRVING, CHANDLER, and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

SUMMARY OF THE CASE

¶ 1. Jay Johnson was employed as a guard at the Hinds County Detention Center in Raymond, Mississippi. As will be shown, a series of events centered around Johnson’s employment culminated in Johnson’s loss of consciousness due to a condition known as “sudden death syndrome.” Johnson brought a claim for workers’ compensation benefits, and an administrative law judge found that Johnson suffered a compensable injury during his employment. Further, the administrative judge found that Johnson was entitled to permanent total disability benefits and that apportionment was inappropriate. The Full Mississippi Workers’ Compensation Commission affirmed, as did the Second Judicial District of the Hinds County Circuit Court. Aggrieved, Hinds County appeals and raises four issues, listed verbatim:

A. WHETHER THE CLAIMANT’S SYNCOPE EPISODE ON SEPTEMBER 4, 2002, WAS WORK RELATED.

B. WHETHER, ASSUMING ARGUEN-DO THAT THE SEPTEMBER 4, 2002 EPISODE IS WORK-RELATED, SUBSTANTIAL EVIDENCE SUPPORTS A FINDING THAT THE EPISODE WAS A TEMPORARY AGGRAVATION.

C. WHETHER, ASSUMING ARGUEN-DO THE CLAIMANT SUFFERED A PERMANENT DISABILITY RESULTING FROM THE SEPTEMBER 4, 2002, EPISODE, APPORTIONMENT APPLIES, SUBSTANTIALLY REDUCING THE AWARD.

D. WHETHER, ASSUMING ARGUEN-DO THE SEPTEMBER 4, 2002 EPISODE IS WORK-RELATED, ALL MEDICAL TREATMENT RELATING TO AND SUBSEQUENT TO THE SEPTEMBER 9, 2002, IS COMPENSABLE.

Finding no error, we affirm.

FACTS

¶ 2. In August or September of 2001, Jay Johnson began working as a housing deputy at the Hinds County Detention Center in Raymond, Mississippi. Johnson’s duties included supervision of approximately sixty-six prisoners. A series of events involving Johnson’s supervision of prisoners led to Johnson’s claim for a compensable injury.

¶ 3. The facts of this case indicate that Johnson was threatened by the prisoners. Additionally, Johnson felt as though there was a significant lack of discipline at the Hinds County Detention Center. In November of 2001, a young inmate was discovered hanging dead in his cell. Shortly afterwards, Johnson began having headaches, stomach problems, and difficulty sleeping.

¶ 4. In March of 2002, Johnson was assigned to the “hole,” where, by Johnson’s description, the “worst of the worst” inmates were housed. An inmate advised Johnson that the inmate was scared for his life and that his housing unit should be thoroughly searched. That search later revealed a Swiss hunting knife. In August of 2002, prisoners attacked an inmate isolated in protective custody. Those prisoners attempted to rape the inmate and they beat the isolated inmate until he was “unrecognizable.” Johnson testified that no one was disciplined as a result of the incident and that he began getting threats from the prisoners under his supervision. According to Johnson, the prisoners threatened that Johnson would suffer the same treatment as the prisoner in isolated protective custody. That is, the prisoners purportedly threatened to beat and rape Johnson. Johnson continued to have headaches and an upset stomach. Also, in August of 2002, an inmate in an adjacent unit approached Johnson and told him that Johnson should “watch his back.”

¶ 5. On September 2, 2002, a prisoner approached Johnson and told him that he would like to cut off his “m-f-— head and that he would like to kill all Christians.” Johnson told the prisoner to back away, but the prisoner came back and indicated that he intended to follow through on his threat. Johnson ordered a “lock down” and the prisoner was subdued. Even so, the prisoner screamed at Johnson under the door. Johnson’s supervisor heard the screaming and investigated, but the prisoner berated the lieutenant. The lieutenant told Johnson to enter the cell with him and talk to the belligerent prisoner. When Johnson complied, the prisoner punched Johnson in the face. Johnson wrote up the incident, but nothing happened to the prisoner and the prisoner was not removed from the unit. Johnson was concerned that the other prisoners would feel as though they could attack him without fear of retribution.

¶ 6. On September 4, 2002, Johnson supervised prisoners in “the gang unit.” Because of a shortage of guards, the prisoners had not been out of their cells for thirty-six hours. According to Johnson, the prisoners were aware that he had been punched in the face. Johnson testified that they laughed at him and that they were “clowning.”

¶ 7. The prisoners were reportedly upset because of certain delays in the process involved with releasing them for their recreation period. When Johnson finally released them and opened the cell doors, the prisoners “rushed” Johnson and crossed the yellow line intended to separate the prisoners and the guards. According to Johnson, the prisoners “descended on [him] screaming. Some of them were thanking me. Some of them ... were heckling me for what had happened, and I seen a flash of red, and that was it.” Johnson lost consciousness.

¶ 8. Johnson was rushed by ambulance to Central Mississippi Medical Center (CMMC) and placed under the care of Dr. Tellis B. Ellis, a cardiologist. Dr. Ellis described Johnson’s loss of consciousness as a “sudden onset of syncope.” Dr. Ellis ordered an echocardiogram, EKGs, “based on telemetry monitoring,” and standard blood work. Dr. Ellis found that Johnson had an enlarged heart. Having found such, Dr. Ellis was concerned that Johnson’s syncope could have been related to “any possible cardiac arrhythmia.” Accordingly, Dr. Ellis ordered a “tilt table test.” Dr. Ellis stated that, during a tilt table test, “we place a patient at 75 degrees for about 35 minutes in a standing position to see if we can provoke syncope.”

¶ 9. As a result of the tilt table test, Johnson lost consciousness, “had a cardiac arrest,” and “sudden death.” Dr. Ellis testified that “[t]his is where his heart went into ventricular tachycardia, and he required resuscitation.” At that point, Dr. Ellis transferred Johnson to St. Dominic’s hospital “to obtain electrophysiological studies on the heart to find out more about what was happening and also to implant an internal defibrillator.” Dr. Ellis clarified that it was “a pacemaker defibrillator ... that monitors the heart’s rhythm [and] ... [i]f the heart goes into a fast tachycardia, potentially lethal tachycardia, then it delivers a[n] ... electrical shock to the heart.” Dr. Ellis also wanted to eliminate the possibility that “coronary artery disease” could be the cause of Johnson’s syncope.

¶ 10. .A catheterization at St. Dominic’s revealed that Johnson had no blockages, though he did have an enlarged heart. In December of 2002, Dr. Jimmy Lott implanted a combined defibrillator/pacemaker,

PROCEDURAL HISTORY

¶ 11. On March 13, 2003, Johnson filed his petition to controvert. The County and Mississippi Municipal Workers’ Compensation Group, denied that Johnson’s claim was compensable. On September 3, 2004, the administrative judge conducted a hearing on Johnson’s petition.

¶ 12. Johnson submitted Dr. Ellis’s deposition and Dr. Lott’s deposition. Next, Johnson testified and rested afterwards. The County called Johnson’s supervisor, Lieutenant Carl Medlock. Lieutenant Médlock testified as to his recollection of the events of September 4, 2002. The County rested after Lieutenant Medlock finished testifying.

¶ 13. On February 25, 2005, the administrative judge entered a very thorough order. The administrative judge noted that both Dr. Ellis and Dr. Lott agreed that Johnson’s medical problems were due to his enlarged heart, that “the probable cause of his enlarged heart was hypertension,” and “that stress, including job stress, can increase blood pressure.” The administrative judge also noted that Dr. Ellis and Dr. Lott disagreed as to whether Johnson’s “job stress was related through his hypertension to his enlarged heart.”

¶ 14. The administrative judge then considered that Dr. Ellis, Johnson’s primary treating physician, “readily connected Mr. Johnson’s job stress with his hypertension and his enlarged heart” while Dr: Lott “made a general statement that the pertinent medical studies had not established an association between stress— even prolonged stress over time — and a weakened, enlarged heart muscle.” The administrative judge then pointed out that, in the presence of a disagreement between the primary treating physician and another doctor, “our case law permits courts [and administrative judges] to favor the testimony of treating physicians.” As such, the administrative judge gave greater weight to Dr. Ellis’s opinion and found that Johnson suffered a work-related injury.

¶ 15. The administrative judge then discussed the degree of disability attributable to Johnson’s injury. The administrative judge again noted that Dr. Ellis and Dr. Lott disagreed. While Dr. Ellis opined in his December 12, 2003 deposition that Johnson was totally disabled and unlikely to return to work, Dr. Lott concluded that Johnson was capable of returning to work “at a desk.” Again, the administrative judge applied greater weight to Dr. Ellis’s opinion and found Johnson permanently and totally disabled.

¶ 16. Finally, the administrative judge considered whether to apportion Johnson’s benefits. The administrative judge cited Mississippi Code Annotated Section 71-3-7 (Rev.2000) and Stuart’s, Inc. v. Brown, 543 So.2d 649, 655 (Miss.1989) and found that Johnson did not suffer a heart attack and, as such, his benefits should not be apportioned.

¶ 17. On March 10, 2005, the County appealed to the Full Commission. On October 3, 2005, the Commission conducted a hearing on the County’s appeal. The next day, the Commission affirmed the administrative judge’s decision without adding any additional comments. On October 21, 2005, the County appealed to the Second Judicial District of the Hinds County Circuit Court. On June 5, 2006, the circuit court affirmed the Commission’s finding that Johnson suffered a compensable work-related injury. However, the circuit court reversed the Commission’s refusal to grant apportionment.

¶ 18. On June 16, 2006, Johnson filed a motion to reconsider. Within his motion, Johnson noted that he was diagnosed as having an enlarged heart and that he did not suffer a heart attack. Johnson also cited authority that a workers’ compensation claimant must have suffered a heart attack before apportionment applies to a claim. On July 5, 2006, the circuit court entered an order and granted Johnson’s motion to reconsider. Accordingly, the circuit court reinstated the Commission’s decision. The County appeals.

STANDARD OF REVIEW

¶ 19. In reviewing appeals from rulings of the Workers’ Compensation Commission, this Court must resolve whether a quantum of credible evidence supports the Commission’s decision. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224 (Miss.1997). We may not resolve conflicts in the evidence. Id. at 1224-25. Rather, we presume that the trier of fact, the Commission, resolved all conflicts in the evidence. Id. This is a highly deferential standard of review. Id. at 1225. Essentially, we will overturn the Commission if its decision was arbitrary and capricious. Id. We will also overturn the Commission if its decision was based on an error of law or an unsupported finding of fact. Meridian Professional Baseball Club v. Jensen, 828 So.2d 740(¶ 8) (Miss.2002).

ANALYSIS

A. WHETHER THE CLAIMANT’S SYNCOPE EPISODE ON SEPTEMBER 4, 2002, WAS WORK RELATED.

¶ 20. Before we delve into this particular issue, we again note that the administrative judge rendered a very thorough findings of facts and conclusions of law in his opinion and order. The Commission affirmed and did not comment beyond its decision to affirm. It is very well possible that the Commission did not comment because of the detail involved in the administrative judge’s opinion. In any event, under these circumstances, it is appropriate to address our review toward the decision of the administrative judge, rather than the Commission. With that in mind, we turn to the County’s first assertion of error.

¶21. The County attacks the administrative judge’s finding that Johnson’s September 2002 syncope episode was work related. According to the County, the administrative judge’s finding was not based on substantial evidence because (a) the administrative judge incorrectly found that Dr. Lott was not Johnson’s primary treating physician, and (b) Johnson was not involved in any particularly stressful situation at the time of his syncope episode.

¶22. As for the County’s first contention, we find this argument unpersuasive. The County’s argument is not entirely meritless, as Dr. Lott did not merely examine Johnson in preparation of Johnson’s workers’ compensation claim. Rather, Dr. Lott implanted Johnson’s combined pacemaker and defibrillator well in advance of Johnson’s petition to controvert. In addition, Johnson returned to Dr. Lott for periodic examinations approximately every three to four months afterwards. However, the administrative judge’s findings cannot be said to be arbitrary and capricious. Dr. Ellis treated Johnson upon his admission at CMMC. Dr. Ellis determined the cause of Johnson’s syncope episode. Dr. Ellis administered various tests, including the tilt table test. Johnson visited Dr. Ellis approximately once a month after Dr. Lott implanted Johnson’s pacemaker. Considering the facts and circumstances of this case, it was within the administrative judge’s discretion to determine that Dr. Ellis was Johnson’s primary treating physician.

¶ 23. Assuming, for the sake of discussion only, that the administrative judge’s finding was not supported by substantial evidence, it would still be within the administrative judge’s discretion to apply greater weight to Dr. Ellis’s medical conclusion above Dr. Lott’s. Even if neither Dr. Ellis nor Dr. Lott could be said to be Johnson’s primary treating physician, it is within the administrative judge’s discretion to apply greater weight and worth to the testimony of one fully qualified physician over another. Additionally, “in doubtful cases the doubt should be resolved in favor of compensation so that the beneficent purposes of the Workers’ Compensation Act may be carried out.” Mitchell Buick, Pontiac and Equip. Co. v. Cash, 592 So.2d 978, 981 (Miss.1991). Said differently, based on the “broad policy considerations undergirding the Workers’ Compensation Act and the liberal construction to be given the compensation statutes,” the injured worker should prevail when the evidence is “even.” Nichols-Banks v. Lenscrafters, 814 So.2d 808(¶ 21) (Miss.Ct.App.2002).

¶24. Next, the County claims that Johnson was not involved in “any particularly stressful activity or situation at the time of his episode; he was simply talking to a group of prisoners.” That is a gross mischaracterization of Johnson’s version of events. As detailed above, Johnson related a series of events that he perceived as stressful. We cannot find that Johnson’s perception was unreasonable. Further, we cannot find that the administrative judge’s decision was unsupported by substantial evidence.

B. WHETHER, ASSUMING ARGUEN-DO THAT THE SEPTEMBER 4, 2002 EPISODE IS WORK-RELATED, SUBSTANTIAL EVIDENCE SUPPORTS A FINDING THAT THE EPISODE WAS A TEMPORARY AGGRAVATION.

¶ 25. The County claims that the administrative judge erred because neither Dr. Ellis nor Dr. Lott stated that the September 4, 2002 episode was anything more than a temporary aggravation of Johnson’s pre-existing hypertension and heart disease. Be that as it may, it is also true that neither Dr. Ellis nor Dr. Lott testified that Johnson’s September 4, 2002 episode was a temporary aggravation of Johnson’s pre-existing hypertension and heart disease. While Dr. Lott opined that Johnson would have returned to baseline within a couple of hours, we cannot agree that Dr. Lott’s testimony amounts to an opinion that the episode was temporary in nature. It could indicate that the syncope episode was temporary, but that does not amount to evidence that Johnson’s entire condition was temporary — at least not evidence that would suffice to reverse the administrative judge’s decision.

C. WHETHER, ASSUMING AR-GUENDO THE CLAIMANT SUFFERED A PERMANENT DISABILITY RESULTING FROM THE SEPTEMBER 4, 2002, EPISODE, APPORTIONMENT APPLIES, SUBSTANTIALLY REDUCING THE AWARD.

¶ 26. The County claims that apportionment was appropriate. Pursuant to Mississippi Code Annotated Section 71-3-7 (Rev.2000):

Where a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this paragraph, would be payable shall be reduced by that proportion which such preexisting physical handicap, disease, or lesion contributed to the production of the results following the injury.

The Mississippi Supreme Court addressed apportionment of pre-existing conditions in Stuart’s, Inc. v. Brown, 543 So.2d 649 (Miss.1989). According to Stuart’s Inc., “[a] preexisting physical handicap, disease or lesion which did not impair wage earning capacity ex ante by definition cannot be that which impairs wage earning capacity ex post.” Id. at 655 (emphasis in original) (internal quotations omitted). Stuart’s Inc., goes on to state:

On the other hand, in cases where (1) there is evidence of a medically cognizable, identifiable, symptomatic condition which antedated the injury; and (2) the employee experienced some absence of normal (for him or her) wage earning capacity, then apportionment must be ordered.

Id. The supreme court clarified its ruling by citing 2 Larson, The Law of Workers Compensation (1987):

Apart from special statute, apportiona-ble “disability” does not include a prior non-disabling defect or disease that contributes to the end result. Nothing is better established in compensation law than the rule that, when industrial injury precipitates disability from a latent prior condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable, and except in states having special statutes on the aggravation of disease, no attempt is made to weigh the relative contribution of the accident and the preexisting condition to the final disability or death. Apportionment does not apply in such cases, nor in any case in which the prior condition was not a disability in the compensation sense.

Larson, § 59.21 (1987) (emphasis added) (footnotes omitted). Finally, Stuart’s Inc. held that, “not all preexisting conditions generate a duty to apportion, only those which have produced in the claimant a preexisting occupational disability.” Stuarts, 548 So.2d at 656.

¶ 27. Dr. Ellis testified that Johnson’s heart problems were due to his enlarged heart, and Johnson’s enlarged heart could have been attributed to several factors, including genetics, obesity, and stress — including job stress. Said differently, Dr. Ellis also testified that “[t]he hypertension caused the heart disease. The heart disease caused the tachycardia which caused the cardiac arrest.” There was also medical evidence that Johnson suffered from hypertension as early as 1996. There was no proof that Johnson’s pre-existing high blood pressure or his enlarged heart caused him any loss of wage earning capacity prior to September 4, 2002. Until that time, he was able to perform the functions of his employment without limitation. Under these circumstances, apportionment of Johnson’s benefits is inappropriate.

D. WHETHER, ASSUMING ARGUEN-DO THE SEPTEMBER 4, 2002 EPISODE IS WORK-RELATED, ALL MEDICAL TREATMENT RELATING TO AND SUBSEQUENT TO THE SEPTEMBER 9, 2002, IS NOT RELATED TO THE SEPTEMBER 4, 2002, EPISODE AND IS THEREFORE NOT COMPENSABLE.

¶ 28. The County failed to cite any authority for its position in this issue. Arguments advanced on appeal must “contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6). Failure to comply with M.R.A.P. 28(a)(6) renders an argument procedurally barred. See Read v. Southern Pine Elec. Power Assoc., 515 So.2d 916, 921 (Miss.1987).

¶ 29. THE JUDGMENT OF THE SECOND JUDICIAL DISTRICT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . According to Dr. Ellis's deposition testimony, syncope is an "abrupt blackout spell.” A "syncope” is a loss of consciousness due to lack of oxygen to the brain.

      . Dr. Ellis testified that "[flelemetry ... is a continuous cardiac rhythm monitoring to see if there-is any arrhythmia that would explain the syncope.”

      . Dr. Jimmy Lott testified during his deposition that “[s]udden death syndrome is someone that dies suddenly. It can have lots [of] causes, but the most common cause in our adult society is a weakened heart -pump that then has rapid heart rhythm that leads to sudden death.”

      . According to Dr. Lott, "[t]achycardia is a fast heartbeat.”

      . The circuit court filed its initial opinion and order on June 20, 2006. As such, Johnson's motion to reconsider appears in the record before the circuit court’s initial opinion and order.


source: Caselaw Access Project

author: MYERS, P.J., IRVING, J.,

license: Public Domain

text:
    Robert Lee MOSS, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02340-COA.
    Court of Appeals of Mississippi.
    Sept. 25, 2007.
    Rehearing Denied Jan. 15, 2008.

      Phillip W. Broadhead, University, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Robert Lee Moss, Jr. was convicted in the Clarke County Circuit Court of aggravated assault and rape and sentenced as a habitual offender to serve two life terms of imprisonment in the custody of the Mississippi Department of Corrections. Following his conviction, Moss moved the lower court to grant him a new trial; however, his motion was denied. Moss now appeals the lower court’s denial of his post-trial motion, seeking review of several issues. Finding no error, we affirm.

FACTS

¶ 2. On the evening of July 4, 2004, Y.M., a twenty-six year old female, was hosting a small get-together at her home when Moss showed up at her house uninvited and joined the party. Moss and V.M. had known each other since childhood and dated briefly in the past when V.M. was approximately sixteen or seventeen years of age, but V.M. testified she had not spoken to or seen Moss in the five years preceding that evening. Sometime around midnight, V.M.’s guests began leaving, but Moss stayed behind and helped V.M. cover her patio chairs. V.M. testified that she told Moss that she was getting ready to go to bed and she then went inside, believing that Moss had departed. V.M. testified that she proceeded to the back door to let her dog into the house, but when she reached her back door, Moss entered her house, appeared behind her and placed a knife at her neck. Testimony at trial adduced that Moss, thereafter, proceeded to threaten and cut V.M. with the knife as he sexually assaulted and raped her.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO SUSTAIN OBJECTIONS MADE BY DEFENSE COUNSEL THAT LED TO MULTIPLE INADMISSIBLE HEARSAY STATEMENTS BEING ADMITTED INTO EVIDENCE FOR THE SOLE PURPOSE OF BOLSTERING THE TESTIMONY OF THE ACCUSER?

¶ 3. The first issue presented generally concerns the admissibility of testimony of three of the State’s witnesses detailing the statements made to them by V.M. the day after the attack. After V.M. testified and was cross-examined regarding the attack and her actions afterwards, the State called V.M.’s boyfriend, boss and cousin to testify. Each of these witnesses described V.M.’s physical appearance and demeanor the day after the rape, and testified that V.M. told them she was raped. Moss objected to each of the witnesses’ testimony regarding V.M.’s statements to them; however, the trial judge overruled the objection in each instance, finding that the statements were not introduced for the purpose of proving the truth of the matter asserted. Moss now argues that the trial court erred in allowing these witnesses to testify regarding their conversations with V.M. because this testimony was inadmissible hearsay.

¶ 4. The admissibility of 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 the trial court has abused its discretion. Harris v. State, 861 So.2d 1003, 1018(¶ 41) (Miss.2003). “Such error will warrant reversal only when the abuse of discretion has resulted in prejudice to the accused.” Id.

¶ 5. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter” and is generally not admissible at trial. M.R.E. 801(c); M.R.E. 802. One exception to the general rule barring hearsay testimony is found in Mississippi Rule of Evidence 801(d)(1)(B). Rule 801(d)(1)(B) permits the introduction of a prior consistent statement if (1) the declar-ant has testified at the trial and been subject to cross-examination, (2) the testimony of the witness as to the prior statement was consistent with the declarant’s testimony as a witness, (3) the prior statement was offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

¶ 6. At the time that the statements of which Moss complains were introduced during trial, the declarant, V.M., had already testified that Moss raped her and her testimony was subject to cross-examination. After V.M. testified, the State called V.M.’s boyfriend, boss and cousin to testify. Each of these witnesses confirmed that V.M. told them she was raped. Thus, the first two requirements of the rule are satisfied so as to allow the introduction of the V.M.’s prior consistent statements.

¶ 7. Lastly, the party seeking to introduce the prior statement must offer the statement to counter the opposing party’s assertion that the declarant is untruthful. Our discussion of this issue turns to Moss’ pre-trial motion requesting the introduction of evidence that the encounter between Moss and V.M. was consensual and part of an ongoing sexual relationship. Within his defense motion, Moss stated that the purpose of entering the affirmative defense that he and V.M. participated in consensual sex was to attack the credibility of V.M. and to show that he had sexual intercourse with V.M. on a number of occasions prior to the evening of the alleged rape. Furthermore, at trial, the defense questioned V.M. regarding her former relationship with Moss in attempts to establish that the sexual encounter on the evening of July 4th was consensual, and thus that V.M. was untruthful while testifying against him on the stand. The purpose of allowing the statements of the witnesses was to rebut Moss’ express and implicit accusations that V.M. was untruthful about her allegations of rape. Through the introduction of these prior consistent statements, the prosecution sought to demonstrate that V.M.’s testimony at trial was consistent with the version of events she gave to her boyfriend, boss and cousin the day after the attack.

¶ 8. Each of the prerequisites of Rule 801(d)(1)(B) were satisfied so as to remove the witnesses’ statements from the category of .impermissible ■ hearsay. Therefore, because evidence of a prior consistent statement is not hearsay if the statement fits the definition of Rule 801(d)(1)(B), such a statement would ordinarily be very “relevant evidence” as defined in Rule 401 of the Mississippi Rules of Evidence and thus, the statement becomes admissible under Rule 402. We find that the trial judge properly allowed the State to elicit these statements of the witnesses in order to rebut Moss’ defense of consensual sex. Accordingly, we hold that the trial court did not err in admitting testimony from V.M.’s boyfriend, boss and cousin regarding V.M.’s prior consistent statements.

¶ 9. We must note, however, that even if we were to find that the statements made by the witnesses were hearsay statements, we would have to find that the introduction of those statements was harmless error, as they were cumulative. V.M. was the first witness the State called. During her direct examination, V.M. testified that she told her boyfriend, boss and cousin, that she was raped or violated. The defense never objected to V.M.’s testimony regarding these statements. Then, after V.M. testified, the State called V.M.’s boyfriend, boss and cousin to the stand. Each of them testified that V.M. told them the day after the rape that she had been raped or violated. It is well-established that “[ujnless timely and specific objection is made to allegedly improper testimony, the objection is deemed waived and may not be raised on appeal.” Hall v. State, 691 So.2d 415, 418 (Miss.1997). In light of the fact that V.M. previously testified, without objection, to having told her boyfriend, boss and cousin that she was raped, their later .testimony repeating the same statements is harmless, as the testimony is merely cumulative.

II. WHETHER THERE WAS PLAIN ERROR DUE TO PROSECUTORIAL MISCONDUCT, INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE TRIAL COURT’S FAILURE TO CORRECTLY APPLY MISSISSIPPI RULE OF EVIDENCE 609, INCLUDING CONDUCTING A BALANCING TEST ON THE RECORD AND/OR GIVING A LIMITING INSTRUCTION WHEN THE STATE IMPROPERLY ELICITED THE APPELLANT’S CROSS-EXAMINATION AND THE STATE’S CLOSING ARGUMENT?

¶ 10. Moss asserts that the prosecutor improperly elicited evidence during his cross-examination of Moss regarding his prior convictions of aggravated assault and assaulting a police officer, then repeated Moss’ answers regarding his prior convictions during summation, thereby causing him severe reversible prejudice. Moss argues that Mississippi Rule of Evidence 609(a)(1)(B) prohibits the introduction of such evidence. Moss also asserts that the trial court abused its discretion by failing to perform an on-the-record balancing test pursuant to Rule 609 to determine whether the probative value of the testimony regarding the prior crime substantially outweighed the prejudice to Moss under Rule 403. However, Moss admits that no contemporaneous objection was made when he was cross-examined regarding his prior convictions. Because there was no objection to the trial judge’s allowance of such questioning, along with other trial court errors, Moss relies on the argument of plain error warranting reversal. Moss further argues that he was entitled to a limiting instruction regarding the admission of his prior convictions. His lawyer’s failure to object to the introduction of such evidence and failure to request a limiting instruction forms the basis of his claim of ineffective assistance of counsel.

¶ 11. We begin our discussion by pointing out that the issue regarding Moss’ prior convictions was not raised by Moss in his motion for a new trial. It is well settled that “[t]he assertion on appeal of grounds for an objection which was not the assertion at trial is not an issue properly preserved on appeal.” Haddox v. State, 636 So.2d 1229, 1240 (Miss.1994). Because Moss did not raise the issue of the admittance of his prior convictions in his motion for a new trial it is this Court’s finding that Issue II is procedurally barred. Notwithstanding the procedural bar, we address the merits of the issue, addressing several sub-issues separately.

A. Admission of the Prior Conviction under 609(a)(1)(B)

¶ 12. Evidence of Moss’ prior conviction was admitted when Moss took the stand in his own defense. Moss argues that the testimony regarding his prior convictions was improperly elicited from him because the trial judge failed to first perform an on-the-record analysis as required by Peterson v. State, 518 So.2d 632 (Miss.1987), before allowing such testimony to be introduced. He asserts that the evidence of his prior conviction substantially outweighed its probative value under the balancing test mandated by Mississippi Rule of Evidence 609(a)(1)(B), and therefore its admission constitutes such unfairness that he is warranted a new trial.

¶ 13. Our review of the admissibility of evidence is limited. The admissibility of evidence is within the discretion of the trial court, and absent abuse of that discretion, the trial court’s decision regarding the admissibility of evidence will not be disturbed on appeal. McCoy v. State, 820 So.2d 25, 31(¶ 15) (Miss.Ct.App.2002). When the trial court stays within the parameters of the Rules of Evidence, the decision to exclude or admit evidence will be afforded a high degree of deference. Id. Also, “the admission or exclusion of evidence must result in prejudice or harm, if a cause is to be reversed on that account.” Id. at 31 (¶ 15) (quoting Jackson v. State, 594 So.2d 20, 25 (Miss.1992)).

¶ 14. “The general rule is that evidence of a crime, other than the one for which the accused is being tried, is not admissible.” Palmer v. State, 939 So.2d 792, 795(¶8) (Miss.2006). However, Mississippi Rule of Evidence 609(a)(1)(B) allows the introduction of prior convictions for the limited purpose of attacking the credibility of the witness. The rule requires that before evidence of a prior conviction is introduced for the purpose of attacking the credibility of a witness, “the court [is to] determine[ ] that the probative value of admitting this evidence outweighs its prejudicial effect to the party.” M.R.E. 609(a)(1)(B).

¶ 15. Our discussion of this issue necessarily involves the context in which the cross-examination of Moss developed. Pri- or to his trial, Moss entered an affirmative defense alleging that the intercourse between Moss and V.M. was consensual. At trial, Moss testified during direct examination that he and V.M. had consensual intercourse and had been having an ongoing series of “one-night stands” for many years after he ended their relationship. When Moss was questioned during cross-examination about the former relationship and its end, the following colloquy occurred:

Prosecutor: And you said that you broke up with [V.M.] in '96; is that right?
Moss: That’s right.
Prosecutor: Is that the — for what reason did you break up with her in '96?
Moss: Because I had to.
Prosecutor: Because you had to. For what reason?
Moss: She had an attitude that I didn’t like. She was bossy. She wanted to tell me what to do, when to do it, how to do it.
Prosecutor: Did you see her between '96 and 2001?
Moss: Well, when we broke up, I left out of town.
Prosecutor: For what reason?
Moss: I went to the restitution center in Pascagoula. I came back in July '96. And then from July to September, I was seeing her. And then in September of '96, I left and went to the penitentiary. I got out in 2000.
Prosecutor: What did you go to the penitentiary for?
Moss: For parole violation.
Prosecutor: For what crime?
Moss: For — it was simple assault on a police officer, state trooper.
Prosecutor: Is that all?
Moss: That’s what I was on probation for, yeah.
Prosecutor: You didn’t have another charge you served time on, too?
Moss: It was accessory to aggravated assault.
Prosecutor: All right. So you’re not seeing her for this period of time didn’t necessarily have anything to do with, at least according to your claim, that you were broke up. The fact of the matter is, you didn’t see her because you were either in the Mississippi Department of Corrections Restitution Center or you were in the Mississippi Department of Corrections at Parchman, Mississippi; is that right?
Prosecutor: Is the reason that you didn’t see her because you were either in some MDOC facility, Mississippi Department of Corrections facility from November 13, 1996 until March 11, 2001?
Moss: Yes, that’s correct.

¶ 16. “[W]here an accused, on direct examination, seeks to exculpate himself, such testimony is subject to normal impeachment via cross-examination, and this is so though it would bring out that the accused may have committed another crime.” Stewart v. State, 596 So.2d 851, 853 (Miss.1992). It is well established that if a defendant opens the door to the admission of otherwise inadmissible evidence, the State then may proceed to question further into the matter. Crenshaw v. State, 520 So.2d 131, 133 (Miss.1988); Washington v. State, 726 So.2d 209, 216(¶ 34) (Miss.Ct.App.1998). But, “[t]he impeachment evidence is admissible only for the purpose of impeaching credibility and may not be used for the purpose of establishing its truth.” Bush v. State, 895 So.2d 836, 848(1131) (Miss.2005) (citing Johnson v. State, 666 So.2d 499, 503 (Miss.1995)). “The State is further limited in that its ‘impeachment privilege may not exceed the invitation extended.’” Bush, 895 So.2d at 848(¶31) (quoting Stewart, 596 So.2d at 853). However, “if a defendant opens the door to line of testimony, ordinarily he may not complain about the prosecutor’s decision to accept the benevolent invitation to cross the threshold.” Kolberg v. State, 829 So.2d 29, 56(¶ 56) (Miss.2002) (citing Randall v. State, 806 So.2d 185, 195 (Miss.2001)).

¶ 17. Normally, our review of the use of prior convictions for the purpose of impeachment arises in a context where a prosecutor introduces such evidence. In that instance, it has become trial court practice that before such evidence is allowed to be introduced against a defendant, the judge conducts a balancing test, considering the potential for prejudice against the probative value of the evidence, pursuant to the suggestions of Peterson. Bush, 895 So.2d at 848(1130). However, we must note that our supreme court does not require on-the-record strict compliance with the Peterson factors. See Young v. State, 731 So.2d 1145, 1152 (Miss.1999). In this case, however, we face a different set of circumstances.

¶ 18. The trial transcript reveals that Moss, himself, brought to light his previous convictions for aggravated assault and assaulting a police officer. Here, Moss opened the door to the admittance of his previous convictions by his testimony on direct examination that he “broke up” with the victim during 1996 and 2001, but that before then he had sexual access to the victim at his will. On cross-examination, the State then questioned whether he saw V.M. during the years of 1996 and 2001, in attempts to discredit Moss’ former testimony that he had sexual access to V.M. at any time, even after their relationship ended. In response, Moss testified that he actually did not retain sexual access to V.M. because he “left out of town.” It was at this point that the State gained the opportunity to delve further into Moss’ response and Moss volunteered that he was incarcerated during this time period. After this volunteering of information, the prosecutor was able to cross-examine Moss regarding his response and utilize Moss’ response to build his closing argument. Consequently, at the time of Moss’ introduction of his prior convictions, the trial judge had no opportunity to perform an analysis to determine whether to admit the evidence of Moss’ prior convictions. It is for these reasons that we cannot consider the issue of the introduction of Moss’ prior convictions on appeal. Therefore, we find that the trial judge did not abuse his discretion by allowing the State to question Moss about his prior conviction, after Moss volunteered such information.

B. Prosecutorial Misconduct

¶ 19. Moss complains of the prosecutor’s use of his testimony regarding his prior criminal convictions, urging us to find prosecutorial misconduct. Specifically, he points to the prosecutor’s mention of Moss’ prior convictions during his closing argument.

¶ 20. The standard used in reviewing closing arguments is “whether the natural and probable effect of the prosecuting attorney’s improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.” Rushing v. State, 711 So.2d 450, 455(¶ 15) (Miss.1998) (quoting Taylor v. State, 672 So.2d 1246, 1270 (Miss.1996)). In reviewing whether a prosecutor’s closing remarks constitute reversible error, we are to employ a two-part test. Spicer v. State, 921 So.2d 292, 318(¶ 55) (Miss.2006). First, we review the remarks and determine whether the remarks were improper. Id. If we find that the prosecutor’s statements during summation were improper, then we analyze whether the remarks prejudicially affected the accused’s rights. Id. “It must be clear beyond a reasonable doubt, that absent the prosecutor’s comments, the jury could have found the defendant guilty.” Id.

¶ 21. Our supreme court has held that a prosecutor’s remarks during summation “actually quoting the testimony of appellant taken from the record ... do[es] not constitute error ... [and is] entirely proper.” Crenshaw v. State, 513 So.2d 898, 900 (Miss.1987). Our review of the trial transcript reveals that the prosecutor paraphrased, nearly quoting, Moss’ own testimony regarding his prior convictions. After Moss testified regarding his prior convictions, the prosecution was entitled to mention the convictions during summation. We cannot find that the trial court’s affir-mance of the prosecutor’s use of this testimony during summation was improper. This issue is without merit.

C. Limiting Instruction

¶ 22. After Moss’ prior convictions were disclosed to the jury, neither the government nor the defense offered a limiting instruction regarding the jury’s use of Moss’ prior conviction evidence in deciding Moss’ guilt and none was given. Moss now argues that the trial court’s failure to sua sponte give the jury a limiting instruction on the use of his prior convictions in their deliberation of his guilt contributed to the warranting of a new trial based upon plain error. Our review of the record indicates that Moss never asked for a limiting instruction, even though at one point the trial judge reminded Moss that he would have an opportunity to request a limiting instruction if needed. While we have already found that the introduction of Moss’ prior conviction was a product of his own introduction, we find that the merit of this argument also fails.

¶ 23. Mississippi Rule of Evidence 105 provides in pertinent part that “[w]hen evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” (emphasis added). The rule requires that the party affected by the introduction of the evidence bears the burden of requesting the limiting instruction. In the absence of such a request, a trial court cannot be held in error. See M.R.E. 105 cmt.

¶ 24. Our supreme court has interpreted Rule 105 to provide that a trial court is not obligated to sua sponte give a limiting instruction regarding the admittance of a prior conviction under Rule 404(b), overruling a line of cases requiring such an instruction. Brown v. State, 890 So.2d 901, 913(¶ 36) (Miss.2004). The court held that Mississippi Rule of Evidence 105 “clearly places the burden of requesting a Rule 404(b) limiting instruction upon counsel.” Id. As the admittance of evidence of a prior conviction under Rule 404(b) has been analogized to the admittance of such evidence for the purpose of impeachment under Rule 609, Bounds v. State, 688 So.2d 1362, 1369 (Miss.1997), we can find no reason why the same rule should not apply in this instance. Thus, we hold that because the burden to request a limiting instruction falls upon defense counsel in the admittance of 404(b) evidence, the burden falls upon defense counsel to request a limiting instruction in the context of the admittance of prior convictions through impeachment under Rule 609.

¶ 25. Moss did not request such a limiting instruction and is barred from bringing the issue to us on appeal. The trial judge was not obligated to provide a limiting instruction sua sponte regarding the admission of Moss’ prior convictions. Thus, we cannot find error in the trial court’s omission to provide a limiting instruction regarding Moss’ prior convictions. Accordingly, we do not find that the failure to provide the jury with a limiting instruction attributes to a reversal based upon plain error.

D. Plain Error

¶26. Although Moss admits that no contemporaneous objection was made to the introduction of the evidence concerning his prior convictions and there was no limiting instruction proffered, he argues that notwithstanding the lack of objections, he is entitled to a new trial because of plain error. Moss argues that plain error occurred at trial when the trial judge failed to perform an on-the-record balancing test that the probative value of prior conviction evidence outweighed the prejudice of such evidence.

¶27. A contemporaneous objection must be made when a witness gives objectionable testimony so that the trial judge has the opportunity to correct the error and properly instruct the jury. Wells v. State, 903 So.2d 739, 742 (Miss.2005) (citing Ballenger v. State, 667 So.2d 1242, 1272 (Miss.1995)). Failure to raise a timely objection constitutes waiver of the issue on appeal. Id. “[A] party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because it is otherwise procedurally barred.” Williams v. State, 794 So.2d 181, 187(¶23) (Miss.2001) (citing Foster v. State, 639 So.2d 1263, 1288-89 (Miss.1994)). Only an error so fundamental that it creates a miscarriage of justice rises to the level of plain error. Dixon v. State,. 953 So.2d 1108, 1116(122) (Miss.2007). Error is plain when it violates the substantive rights of a defendant. Id.

¶28. As we have found supra, the testimony regarding Moss’ prior convictions came directly from his own mouth while on the stand. Nothing in the record indicates that the prosecution improperly elicited such testimony. That being said, in this case, we cannot impose a requirement on a trial judge to foresee the introduction of evidence regarding prior convictions and perform a balancing test before allowing the introduction of such. We can find no plain error. This issue is without merit.

E. Ineffective Assistance of Counsel

¶ 29. Moss claims that his counsel’s failure to object to the introduction of his prior convictions and failure to request a limiting instruction regarding the jury’s use of this evidence amounts to ineffective assistance. He argues that had his lawyer objected properly, this objection would have triggered the trial court to perform a balancing test to determine whether to admit the evidence. Moss points out that, at the minimum, the issue of the admittance of his prior convictions should have been preserved for appeal. He asserts that his counsel’s omission to act in these instances warrants reversal of his conviction and a new trial. The State argues that Moss’ counsel’s failure to object and request a limiting instruction may have been part of his trial strategy. Once Moss testified to the prior convictions, the State suggests that his counsel chose not to request a limiting instruction for the purpose of reducing any further attention to the matter.

¶ 30. Claims of ineffective assistance of counsel are reviewed by using the familiar two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a claim of ineffective assistance of counsel, Moss has the burden of proof to show by a preponderance of the evidence that (1) his counsel’s performance was deficient, and (2) that the deficiency did, in fact, prejudice the defense’s case so as to prevent a fair trial. Id.; Hall v. State, 735 So.2d 1124, 1127(¶ 6) (Miss.Ct.App.1999). In determining whether the first prong of Strickland concerning counsel’s performance has been satisfied, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.... ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The second prong of the Strickland test requires that Moss prove prejudice by showing that there was a reasonable probability that but for counsel’s errors, the trial court’s result would have been different. Id. at 699, 104 S.Ct. 2052. Whether the prongs of this test are met is determined by an examination of the totality of the circumstances. Id.

¶ 31. We find no error in Moss’' attorney’s decision not to object. Moss’ prior convictions surfaced as a product of his impeachment regarding his assertions of the ongoing, consensual sexual relationship with V.M. “Failure to raise meritless objections is not ineffective law-yering.” Hodges v. State, 912 So.2d 730, 761 (¶ 57) (Miss.2005) (quoting Brown v. State, 798 So.2d 481, 494(¶ 15) (Miss.2001)). Decisions to make particular objections fall within the purview of the attorney’s trial strategy and “cannot give rise to an ineffective assistance of counsel claim.” Carr v. State, 873 So.2d 991, 1003(¶27) (Miss.2004).

¶ 32. We are also mindful that counsel’s decision whether to request a limiting instruction regarding a part of the evidence against the accused may also be a part of trial strategy. Our supreme court has pointed out that a limiting instruction “can actually focus the jury’s attention on sensitive information” Sipp v. State, 936 So.2d 326, 331(¶ 9) (Miss.2006) (citing Brown, 890 So.2d at 913(¶ 35)). We have held that a lawyer’s failure, to request such a limiting instruction as a tactical decision does not amount to ineffective assistance. Hill v. State, 749 So.2d 1143, 1151(¶20) (Miss.Ct.App.1999). Moss’ arguments did not meet the first prong of the Strickland test, as his counsel’s performance was not deficient. Therefore, we decline further review of the issue.

III. WHETHER THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT APPELLANT HIS MOTION FOR A NEW TRIAL ON THE GROUNDS THAT THE WEIGHT OF THE EVIDENCE WAS SUCH THAT THE APPELLANT SHOULD NOT HAVE BEEN CONVICTED OF AGGRAVATED ASSAULT AND RAPE?

¶ 33. Moss moved the lower court to grant him a new trial, but his motion was denied. He appeals the denial of his motion for a new trial, arguing that the lower court erred because the verdict was contrary to the weight of the evidence before the jury to convict him of aggravated assault and rape. Moss argues to this Court that because V.M. did not testify as to the exact type of knife used to cut her neck and a knife was not entered into evidence at trial, the evidence against him was weak, holding insufficient weight for conviction. He further argues that part of V.M.’s testimony regarding her phone call to her boyfriend after the attack is contradictory.

¶ 34. Motions for a new trial challenge the weight of the evidence presented to the jury, and we will only reverse if we find that the lower court abused its discretion in denying the motion. Dilworth v. State, 909 So.2d 731, 737(¶20) (Miss.2005). In our review of a trial court’s denial of a motion for a new trial, we consider the evidence in the light most favorable to the verdict and will only grant a new trial in exceptional cases where the evidence preponderates heavily against the verdict. Bush, 895 So.2d at 844(¶ 18). The verdict will stand unless an unconscionable injustice would result. Id.

¶ 35. At trial, the State put forth testimony from several witnesses, as well as introduced photographic evidence. V.M. testified that Moss raped her, during which time he held a knife at her throat, threatening to kill her. V.M.’s boyfriend, boss and cousin testified regarding their observation of V.M.’s physical cuts the day after she alleged she was attacked by Moss. Photographs were introduced showing V.M.’s cuts and bruises taken after she alleged that Moss raped her at knifepoint. Other photographs were introduced depicting the scene where V.M. alleged the attack occurred, showing blood stains located on a pillow in her home and her dress.

¶ 36. The jury sits as the fact-finder and determines the credibility of the witnesses and gives value to the weight of the evidence against the accused. Ward v. State, 881 So.2d 316, 323(¶31) (Miss.Ct.App.2004). In this case, the jury considered the evidence and returned a verdict against Moss. In viewing the evidence in the light most favorable to the verdict, we find that a reasonable juror could have found Moss guilty of aggravated assault and rape based on the evidence presented. Therefore, the verdict was not so contrary to the weight of the evidence or manifest error so that' to allow- it to stand would sanction an unconscionable injustice, which is the standard required for this Court to disturb the jury’s verdict on appeal. We, therefore, affirm the decision of the lower court denying Moss’ motion for a new trial.

CONCLUSION

¶ 37. We hold that the court did not err in admitting V.M.’s prior consistent statements, as they were relevant, nonhearsay statements that were admissible pursuant to Mississippi Rule of Evidence 801(d)(1)(B). We further find that the issue of the admittance of Moss’ prior convictions is procedurally barred; however, the issue lacks merit, as well. The trial court did not err in denying Moss’ motion for a new trial, as the weight of the evidence was sufficient to support the conviction of aggravated assault and rape. Accordingly, we affirm the conviction and sentence of Moss.

¶ 38. THE JUDGMENT OF THE CLARKE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I-AGGRAVATED ASSAULT AND SENTENCE OF LIFE AND COUNT II-RAPE AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND SHALL NOT BE CONSIDERED FOR ANY TYPE OF EARNED RELEASE PROGRAM, PAROLE, PROBATION, PRS OR ANY OTHER FORM OF EARLY RELEASE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLARKE COUNTY.

LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY KING, C.J.

IRVING, J.,

Dissenting;

¶ 39. I cannot agree with the majority that the testimony of V.M.’s boyfriend, boss, and cousin was properly admitted or that the admission of the testimony was harmless error. Therefore, I dissent.

¶ 40. The challenged testimony was these witnesses’ testimony that V.M. confided .in them within twenty-four hours after the attack that she had been raped. The majority finds that this testimony was admissible under Rule 801(d)(1) of the Mississippi Rules of Evidence, which reads:

A statement is not hearsay if:
The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him;....

¶ 41. More specifically, the majority finds that the testimony was admissible under subsection (B), that is, that the testimony was offered to “rebut an express or implied charge ... of recent fabrication” by Y.M. that she was raped.

¶ 42. With respect, I must say that this is a misapplication of the rule. First, there is nothing in this record even remotely suggesting that Moss ever alleged or charged that V.M.’s rape complaint was one of recent fabrication. Indeed, no such allegation could be made because V.M. made the rape allegation - to authorities within twenty-four hours of the occurrence of the incident. In discussing this requirement, the majority cites to Moss’s pretrial motion seeking permission to introduce testimony regarding the prior sexual history between him and V.M. In that motion, styled “Motion for Introducing Evidence of Sexual Conduct of Complaining Witness,” Moss alleged (1) that he had had a prior sexual relationship with V.M., (2) that on numerous occasions he had been dropped off at V.M.’s house by friends who would come back later and pick him up, (3) that on each of the occasions when he was dropped off he had consensual sexual intercourse with V.M., (4) that on the day in question he had had consensual sexual intercourse with V.M. and was picked up later at V.M.’s house by some friends, and (5) that V.M. did not mention to them that she had been raped, waiting instead until the next day to make the charge.

¶ 43. It is obvious that the purpose of Moss’s motion was to comply with the requirements of Rule 412 of the Mississippi Rules of Evidence, which prohibits generally the admissibility of evidence of the past sexual behavior of a victim of a sex crime. The rule also provides the procedural framework for obtaining court permission for the admission of evidence regarding past sexual behavior by the victim with the accused when the accused’s defense is that the victim consented to the current sexual behavior for which the accused is being tried.

¶ 44. Under the majority’s construction of Rule 801(d)(1), statements made outside of a court proceeding by a rape victim attesting to others that she has been raped will always be admissible when an accused’s defense is consent and he seeks to support that defense by showing prior consensual sexual relations between him and the victim, regardless of whether there has been an allegation of recent fabrication. This is so because in every such defense, before the accused may offer testimony regarding the prior consensual sexual activity between him and the victim, he must file a written motion to offer such evidence at least fifteen days before trial. M.R.E. 412(c)(1). Obviously, in such a motion the accused will charge that the victim is fabricating the rape accusation, although the alleged fabrication may not necessarily be of recent origin. This is exactly the case here.

¶45. V.M.’s testimony concerning her activities prior to and after the rape raises serious questions regarding .her assertion that she did not consent to the sexual relations between her and Moss. It is abundantly clear from reading her testimony that reasonable jurors could find her testimony incredible in several critical aspects since she admitted she had had a past girlfriend-boyfriend relationship with Moss. She described their relationship at the time of the incident as friends. Therefore, testimony that she had told others right after the incident that she was raped could help overcome her trial credibility problems. In my judgment, that was the sole purpose of offering the testimony of her boyfriend, boss, and cousin. Rule 801(d)(1) does not lend itself to be used in this manner.

¶ 46. Finally, I cannot agree with the majority that admission of these witnesses’ testimony was harmless error, given the credibility problems that are clearly evident with V.M.’s testimony. To illustrate my point, I cite some examples of V.M.’s testimony that I believe a jury could find problematic.

¶ 47. First, according to V.M., it had been approximately ten years since she and Moss had dated (she was twenty-seven at the time of trial). She offered no explanation why, after such a long gap in time, Moss would suddenly show up at her house, without an invitation, on the Fourth of July when she and two other males (a cousin and a friend) were just sitting around talking. More importantly, she did not explain why she instructed her male friends to unlock the gate and allow Moss to join them. For approximately two hours, V.M., Moss, and her other friends sat around at her house, engaging in friendly talk. Things got a bit strange after V.M.’s cousin and friend left. Aside from letting them leave her there alone with Moss, she even allowed Moss to help her cover her patio chairs. It is after Moss assisted her with the covering of the chairs that I find V.M.’s testimony to be a bit confusing, to say the least:

A. Well, I started putting my patio chairs, the covers back up on. He helped me do that. Once I got out the gate, I didn’t lock my gate, because I had to come back and get my dog. So he proceeded to leave.
Q. Okay. Now, where did he leave from?
A. He—
Q. Go ahead. Where did he leave? How did he leave?
A. He left when — I went — he had a cup in his hand and he went on the front porch with me. He was throwing the cup away. And from there, he was supposed to leave. I thought he was gone.
Q. Okay. I am trying to make sure that I have a clear understanding of how your home is laid out. You have a front door, I assume?
A. Yes.
Q. And you have a back door where this patio is?
A. No, it’s not like that. I have a — it’s an outside gate. It’s separate. It’s not connected to my home. It’s connected around my home. So you have to — I have two doors on that gate. The door closest to my home is the door we are entering in and out. Still you have to come up, walk on my car porch to go on my car porch.
Q. Where is your patio, at the back of your house?
A. On the side of my house.
Q. And your porch is on the front of the house?
A. Yes.
Q. Which exit did Robert use?
A. The exit from which end?
Q. How did he leave your home?
A. He exited out that gate [door?] onto the porch, and then he was supposed to leave out the front door [gate?].
Q. Okay. So he was at the front door?
A. Yes.
Q. Now, where — okay. You walked him to the front door, I assume?
A. No. I just told him: Okay, I will see you later.
Q. He threw the cup away and proceeded towards the front?
A. Yes.
Q. What did you do?
A. I went out the back door to get my dog in.
* * * *
Q. Okay. Tell us what happened. Did you get the dog in?
A. Yes. Actually how I did it, I opened my door. I have steps. I may have about five or six steps. The dog was right there by the tree, chained to a long tree. Kantwon [the dog] comes to me. I unlatch it. I had a foot on the step and a foot on the ground, so I am just hanging out the door. As I proceed, I don’t have to hold my dog or anything. He runs back in the house, and he runs through every room. As I was proceeding to turn around, that is when Robert Moss grabs me from behind. He is pressure cutting me. How he grabbed me first is a pinpoint, you know.

¶ 48. It is apparent that V.M. gave contradictory testimony about the location of the dog. At one point, she suggests that her dog was outside the gate through which Moss was supposed to have exited when he came out her front door. That was the front gate, yet she later testified that she went to the back door to get her dog in and did not mention having to go out a gate. Additionally, it seems strange indeed that her dog apparently remained silent while she was being attacked by a stranger.

¶ 49. During cross-examination, V.M. testified that she talked to Moss about thirty minutes after the attack, trying to assure him that she was not going to tell anyone. However, immediately after he left, she drove to the Stonewall Police Department to report the incident. No one was there, so she drove to where she worked, the Super Stop. She explained that she went there because sometimes the police park there. Finding no police officer there, she returned home, going first to her grandmother’s house to use the telephone to call her boyfriend in Meridian. She explained that she went next door to her grandmother’s house to use the telephone because she could not call Meridian, which is twenty-three miles from Stonewall, on her telephone. Presumably, V.M. was referring to her home telephone. Nevertheless, her testimony on this point is also confusing:

Q. Okay, And why didn’t you use your own phone?
A. I couldn’t call Meridian on my phone. I don’t have — didn’t have area calling.

Later, during cross-examination, she gave this'testimony:

Q. And I think you testified earlier it doesn’t go outside of Clarke County, it’s basically just—
A. Area calling, yes.

¶ 50. As reflected in the quoted passages, V.M. initially said she did not have area calling on her telephone but later attested that she did. More importantly, V.M. offered no explanation as to why she could not have called her boyfriend on her cellular telephone, as the record reflects that she had one. She even testified that her boyfriend called her on it and that she called him on it the morning after the attack.

¶51. Perhaps the strangest aspect of V.M.’s testimony is her explanation of why she did not call or drive the five miles to the Clarke County Sheriffs Department in Quitman to report the incident. She explained that she was too afraid because Moss had threatened to kill her. Yet, she was not too afraid to drive the twenty-three miles to Meridian to see her boyfriend around 3:00 a.m. When she got to Meridian she did not tell her boyfriend about the attack or report the incident to the Meridian Police Department, even though her boyfriend could have accompanied her to the Meridian Police Department. Giving V.M. the benefit of the doubt and assuming that she was too afraid to drive to either the Clarke County Sheriffs Department or the Meridian Police Department, she offers no explanation as to why she could not have just called 911. Calling 911 would have made it unnecessary for her to risk driving to any of law enforcement agencies, even to the Stonewall Police Department to which she admitted driving.

¶ 52. Finally, I should point out that when V.M.’s boyfriend was alerted to what had allegedly happened, she testified that he tried to get her to go to the police department to report the incident but that she refused because she had to go to work. When the boyfriend told her that if she refused to report the incident to the police, he was going to call them himself, V.M responded that she was not going to report it “because the police is not going to do anything. They are not going to do anything.” This position seems strange indeed for V.M. who, according to her testimony, only hours earlier had gone to the police department to report the incident.

¶ 53. Based on these facts, I cannot agree that it was harmless error to allow V.M.’s boss, boyfriend, and cousin to tell the jury that she informed them, within thirty-six hours of the incident, that she had been raped. I would reverse and remand for a new trial without this testimony.

KING, C.J., Joins this Opinion.

      . Initials are being used to ensure the victim’s privacy.

      . She dated him when she was sixteen or seventeen or when she was sixteen, as well as when she was seventeen. During direct examination, she testified that she dated Moss in "1994, '95.” However, during cross-examination, she vacillated on the period of time that she dated Moss, saying initially, "maybe a couple of months” and then at another point saying, “I don’t know how long it was. Probably not even a good month or so.”

      . I accept that members of Generations X and Y may not find this, and some of the later episodes, unusual. However, members of the jury are not limited to such generations.

      . Her friend, Lionel Moore, left first around 11:00 or 11:15 p.m. Her cousin, Derrick, left about 11:30 p.m. or 12:00 a.m. V.M. testified that Moss was there when Lionel left and that Moss was going in and out (meaning leaving her house, staying gone for a while and then returning).

      . Previously during the trial, V.M. had testified that she opened the gate near the patio to allow Derrick to leave and that she proceeded back to where Moss was to tell him that she "was getting ready to go in the house and get ready for work for the next day.”

      . V.M. testified that she got in the bed with her boyfriend but that they did not have sex. She testified that she left at 8:00 a.m., leaving her boyfriend asleep. According to her, she did not have to be at work until 1:00 p.m.


author: LEE, P.J.,

text:
    Mary C. COOPER, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-00009-COA.
    Court of Appeals of Mississippi.
    Oct. 16, 2007.
    Rehearing Denied Jan. 22, 2008.

      George T. Holmes, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On October 31, 2006, Mary Cooper was convicted of murder by a jury in the Circuit Court of Winston County. Cooper was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. On appeal, Cooper assigns the following points of error: (1) the trial court erred in denying a jury instruction for heat of passion manslaughter, (2) the court’s instructions to the jury regarding culpable negligence manslaughter and depraved heart murder were confusing to the jury or improperly stated the law, (3) the verdict was not supported by the evidence, and (4) the trial court improperly allowed statements of opinion to be admitted into evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On September 5, 2004, Vincent Hudson, Joe Mack Speight, and Derrick Edwards, after a morning of drinking alcohol heavily, visited the trailer home of Mary Cooper in Winston County.

¶ 4. Hudson and several other witnesses at trial testified that Hudson and Cooper began arguing. Hudson and Cooper had known each other for years and, according to Hudson, were in a romantic relationship. Hudson testified that he “choked” Cooper “a little bit” and pushed her down. Hudson, Speight, and Edwards then left Cooper’s trailer. Hudson and Edwards got into a Ford Explorer parked outside. Edwards sat in the driver’s seat and Hudson was in the passenger seat. Before they could drive away, multiple gun shots were fired. Hudson ducked when he heard the gunshots. After the shooting stopped, he sat up and saw Edwards, still in the driver’s seat, covered in blood and dead. Hudson did not see who fired the shots. Speight testified that he was standing outside the Explorer near Cooper’s trailer and saw Cooper fire a pistol multiple times from the front door of her trailer in the direction of the Explorer. Lee Hardy, Cooper’s niece, also testified that she saw Cooper shoot Edwards from the front doorway of the trailer.

¶ 5. Hardy testified that after the shooting, Cooper gave her the murder weapon to deliver to Hardy’s mother, who is Cooper’s sister. The mother accepted the pistol and set it somewhere outside. Hardy’s father, Lonnie Ingram, found the pistol, took it to his house, and buried it in his backyard. When police officers arrived at Ingram’s home, Ingram promptly directed the officers to the buried pistol. The pistol was a .38 caliber. Hudson testified that Cooper owned a weapon of this caliber. Also, an unfired cartridge of this caliber was found by the police next to the front door of Cooper’s trailer.

¶ 6. Cooper testified in her own defense. Her position was that she had nothing to do with Edward’s death. Contrary to the testimony of other witnesses, Cooper denied that she had engaged in an argument with Hudson, that any physical contact between herself and Hudson had occurred, that she had fired a gun, that she owned a gun, and that Hardy was at her trailer on the day of the shooting.

¶ 7. Cooper claimed that Hudson and/or Speight killed Edwards, possibly over a gambling debt, because Edwards had won a substantial amount of money the previous night. Ethyl Jackson, a mutual friend of Hudson and Cooper, testified for the defense that she overheard Hudson and Speight plotting to rob Edwards. Cooper alleged that Hardy’s parents convinced her to fabricate the story. Cooper also implied that Hardy’s parents conspired with Hudson regarding the burial of the gun. Finally, Cooper emphasized that Hudson and Speight had been drinking heavily all day and using drugs.

¶ 8. Hardy was the only witness who testified that Cooper’s gunfire was in retaliation to gunfire by Hudson. Expert testimony was presented at trial that gunpowder residue was found on Hudson following the shooting. According to the expert, the gunpowder residue on Hudson indicated that he was standing within three feet of a pistol when it was discharged. The expert testified that the residue from a pistol fired from the doorway of the trailer would not have reached him in the passenger seat of the Explorer. Cooper tested negative for gunpowder residue. However, she was tested seven hours after Edwards’s death and testimony indicated that she had washed her hands following the shooting. According to the expert, both of these factors would have reduced the likelihood that the test would yield positive results.

DISCUSSION

I. DID THE TRIAL COURT ERR IN DENYING THE HEAT OF PASSION MANSLAUGHTER INSTRUCTION?

¶ 9. In her first issue on appeal, Cooper argues that the trial court erred in denying a heat of passion manslaughter jury instruction. The trial court enjoys considerable discretion regarding the form and substance of jury instructions. Clemons v. State, 952 So.2d 314, 317(¶ 8) (Miss.Ct.App.2007). The defendant is entitled to have instructions given that present her theory of the case unless an instruction “incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Livingston v. State, 943 So.2d 66, 71(¶ 14) (Miss.Ct.App.2006).

¶ 10. Cooper argues that a heat of passion jury instruction should have been given because the doctrine of transferred intent applies to heat of passion manslaughter. She contends that a heat of passion instruction was warranted because of Hudson’s and Hardy’s testimony that she and Hudson had a physical altercation before the killing occurred. However, Cooper herself denied recalling any confrontation between herself' and Hudson. Further, Hudson was not the ultimate victim, and the victim, Edwards, had no role in the alleged provocation. The issue of whether transferred intent may apply to heat of passion manslaughter has not been definitively decided by Mississippi case law. However, we decline to answer this question because we find no foundation in the evidence for a heat of passion manslaughter instruction.

¶ 11. Heat of passion manslaughter is “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense. ...” Miss.Code Ann. § 97-3-35 (Rev.2006). Our case law has defined heat of passion as follows:

A state of violent and uncontrollable rage engendered by a blow or some other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Clemons, 952 So.2d at 319(¶ 14). The law is well-settled that words alone are not enough to require a heat of passion manslaughter instruction. Myers v. State, 832 So.2d 540, 542(¶ 10) (Miss.Ct.App.2002). Pushing or shoving is also insufficient to require the instruction • absent testimony that the defendant was acting out of violent or uncontrollable rage. Turner v. State, 773 So.2d 952, 954(¶ 8) (Miss.Ct.App.2000). In the case sub judice, the record indicates nothing more than a verbal argument and perhaps some pushing, tussling, and/or choking “a little bit.” Neither Hudson nor Hardy testified in detail about the verbal or physical altercation, and neither testified that Cooper was in a state of violent and uncontrollable rage.

¶ 12. Turner is analogous to the case at bar. In Turner, the defendant himself testified that he had no part in the victim’s death. Id. While at a party, the defendant engaged in a shoving match with the eventual victim and pushed the victim over a table. Id. The defendant responded by shooting the victim in the chest. Id. at 953(¶2). The trial judge instructed the jury on murder but denied the requested instruction for heat of passion manslaughter. Id. at 954(¶ 5). The jury found the defendant guilty of murder. The supreme court affirmed the conviction on appeal, holding.that the evidence did not support the instruction for heat of passion manslaughter. Id. at 954-55 (¶¶ 8-12). We find Turner instructive here.

¶ 13. The verbal argument and the physical confrontation between Cooper and Hudson are, as in Turner, insufficient to require a heat of passion manslaughter instruction. The record is void of any evidence that Cooper was in a state of violent and uncontrollable rage. Additionally, like the defendant in Turner, Cooper denied shooting the victim. Cooper even went further and denied that any physical or verbal altercation took place. Even if Hardy’s testimony that Hudson fired a gun at Cooper and that Cooper’s shots were in response was true, a self-defense instruction, which Cooper did not submit, would have been appropriate rather than a heat of passion manslaughter instruction. Moreover, the jury was provided the option of convicting Cooper of the lesser-included offense of culpable negligence manslaughter. Bearing in mind that “lesser-included offense instructions should not be indiscriminately granted,” we find that no injustice has occurred by the denial of the heat of passion instruction since it lacked evidentiary support. Havard v. State, 928 So.2d 771, 790(¶30) (Miss.2006) (quoting Lee v. State, 469 So.2d 1225, 1230 (Miss.1985)). Accordingly, we find Issue I without merit.

II. WERE THE JURY INSTRUCTIONS CONFUSING AND/OR INCORRECT STATEMENTS OF LAW?

¶ 14. Cooper argues that the jury instructions requested by the State and accepted by the trial court for murder and culpable negligence manslaughter were confusing to the jury or improperly stated the law. However, in order for this Court to consider a jury instruction issue on appeal, the defendant must have made a specific objection to the jury instruction in question at the trial level. Harris v. State, 861 So.2d 1003, 1013(¶ 18) (Miss.2003). In addition, a trial court has no obligation to provide jury instructions sua sponte. Gray v. State, 728 So.2d 36, 60(¶ 111) (Miss.1998). Since Cooper made no specific objection to the instructions regarding culpable negligence manslaughter and depraved heart murder, this issue is procedurally barred.

III. WAS THE VERDICT UNSUPPORTED BY SUFFICIENT EVIDENCE OR AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 15. Although not articulated as such, Cooper argues that the verdict was not supported by the sufficiency and weight of the evidence. Since these claims each have a different standard of review, they will be analyzed separately.

¶ 16. First, in reviewing whether the evidence supporting a jury verdict is legally sufficient, this Court does not ask whether from the evidence we would have voted to convict or acquit. Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005). Rather, we inquire whether, viewing the evidence in the light most favorable to the prosecution, a rational juror could have concluded beyond a reasonable doubt that all elements of the crime were satisfied. Id. The proper remedy for insufficient evidence is for the Court to reverse and render. Id.

¶ 17. After a thorough review of the record, construing the evidence in favor of the prosecution, we find that a rational juror could conclude beyond a reasonable doubt that Cooper was guilty of murder. The instructions for deliberate design murder and depraved heart murder were submitted together for the jury’s consideration. Although the evidence for deliberate design murder appears slight, we need not consider it because the evidence for depraved heart murder was substantial. Mississippi Code Annotated Section 97-3-19(l)(b) (Rev.2006) defines depraved heart murder as follows:

The killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done in the commission of an act eminently [sic] dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.]

¶ 18. The classic example of depraved heart murder is shooting into a crowd of people. Lett v. State, 902 So.2d 630, 637(¶ 21) (Miss.Ct.App.2005). Here, Speight and Hardy were eyewitnesses to the shooting and both testified that Cooper fired at an occupied vehicle. We fail to see how this act is any different from shooting into a crowd, and, in light of the testimony of these two eyewitnesses, we find that a rational juror could conclude that Cooper committed depraved heart murder.

¶ 19. Second, in reviewing a weight of the evidence issue, we will not reverse unless the verdict is “so contrary to the overwhelming weight of evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18). The reviewing court weighs the evidence in the light most favorable to the verdict. Id. If the verdict is contrary to the overwhelming weight of the evidence, the proper remedy is a new trial, but this remedy is reserved for “exceptional cases in which the evidence preponderates heavily against the verdict.” Id. Unlike reversal for insufficiency of the evidence, reversal based on the weight of the evidence does not mean that acquittal was the only appropriate remedy, but simply that the court, sitting as a hypothetical “thirteenth juror,” disagrees with the jury’s assessment of conflicting testimony and therefore believes that a new trial is necessary. Id.

¶ 20. In the present case, the jury was presented with contradictory evidence. Most notably, Hardy testified that Hudson had fired gunshots at Cooper, which contradicted Hudson’s testimony that he neither fired a gun nor had a gun in his possession on the date of Edwards’s death. Also, there was the unexplained gunpowder residue on Hudson. Nevertheless, two eyewitnesses testified that Cooper fired a gun at an occupied vehicle. Speight testified to seeing Cooper fire at the occupied vehicle from the front door of her trailer, and Hardy testified that she saw Cooper shoot the victim and then a family member buried the murder weapon at Cooper’s request. Hudson did not see who fired the shots, but his testimony added to the evidence against Cooper. Viewing the record as a whole and in the light most favorable to the verdict, we cannot say that allowing the verdict to stand would sanction an unconscionable injustice. We find no merit to this issue.

IV. DID THE TRIAL COURT IMPROPERLY ALLOW STATEMENTS OF OPINION TO BE ADMITTED INTO EVIDENCE?

¶ 21. In her final issue on appeal, Cooper argues that the trial court improperly allowed statements of opinion to be admitted into evidence. Greg Clark, an investigator for the Louisville, Mississippi, Police Department, testified at trial that he examined the Explorer, in which Edwards was seated when he was shot, by placing colored dowel rods into the bullet holes in the vehicle in order to assess the bullets’ angles of entry. Clark measured the distance from the vehicle to the front door of Cooper’s trailer and shined a laser beam from the bullet holes to determine where the gunshots that killed Edwards had originated. Clark testified as a lay witness that he believed that the bullet holes in the vehicle showed that one or more shots had been fired from approximately four feet above ground level from the doorway of Cooper’s trailer. Pictures showing the positioning of the colored dowels were entered into evidence.

¶ 22. Defense counsel did not contemporaneously object to Clark’s testimony or the pictures. Towards the end of cross-examination, defense counsel requested that Clark’s testimony be struck from the record and that the jury be instructed to disregard the testimony and the pictures, which the trial judge denied. The following is an excerpt from the record:

BY MR. BRIDGES (Defense Counsel): Are you an expert on—
BY CLARK: —no, sir—
Q. —on the laser beam?
A. No, sir.
Q. Are you an expert accident recon-structionist?
A. No, sir.
BY MR. BRIDGES: Your Honor, at this time we move that these pictures be struck and the testimony regarding where the laser put the shooting at the door be struck and the jury to disregard it.
BY THE COURT: Haven’t they already been admitted?
BY MR. HOWIE (Prosecutor): Yes, sir. They have.
BY THE COURT: Overruled.
BY MR. BRIDGES: I am now asking for it to be struck.
BY THE COURT: You should have objected back then. It’s overruled.

¶ 23. On appeal, the defense argues that the trial court improperly allowed Clark to provide testimony outside the scope of permissible lay testimony and intruding into the realm of the expert. The State argues that, with no contemporaneous objection having been made to Clark’s testimony, the defendant is procedurally barred from raising this issue. The State cites Dixon v. State, 953 So.2d 1108, 1116 (¶¶ 21-22) (Miss.2007), in support of this assertion. In Dixon, however, no objection was made to the testimony at the trial level and the issue was raised for the first time on direct appeal. Id. at (¶ 21). In the case at bar, no contemporaneous objection to Clark’s testimony was raised, but defense counsel did later request that the testimony of Clark be struck from the record. Defense counsel did not object to the testimony or the pictures until the proceedings were well into Clark’s cross-examination. Clark had already been thoroughly questioned regarding his findings and the pictures had long been admitted into evidence. We find that the defendant is procedurally barred from raising this issue on appeal.

¶ 24. Notwithstanding the procedural bar, this issue lacks merit. Even if it were error for the trial judge to admit Clark’s testimony, the error was harmless. The law is settled that “[f]or a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party.” Palmer v. Volkswagen of Am., Inc., 904 So.2d 1077, 1092(¶ 65) (Miss.2005) (quoting Terrain Enter., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995)). Here, there was no harm or prejudice to the defendant because of the evidence in question. Clark’s testimony was merely cumulative of the testimony of the two eyewitnesses, Speight and Hardy, who testified that Cooper fired multiple shots at the vehicle from the doorway of her trailer. The pictures were likewise corroborative. Therefore, if the trial judge committed error, it was harmless and does not warrant reversal.

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

KING, C.J., MYERS, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. IRVING, J., CONCURS IN RESULT ONLY.