author: MYERS, P.J., LEE, P.J.,

text:
    Linda STRIBLING, Appellant v. Carl William STRIBLING, Appellee.
    No. 2005-CA-00467-COA.
    Court of Appeals of Mississippi.
    Jan. 2, 2007.
    Rehearing Denied July 17, 2007.

      John W. Christopher, attorney for appellant.
    Mark A. Chinn, Dar Kenya W. Waller, Jackson, W. Matthew Thompson, attorneys for appellee.
    Before MYERS, P.J., SOUTHWICK, and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Linda Stribling appeals the judgment of the Madison County Chancery Court finding her in contempt of a divorce decree and ordering her incarcerated until she purged herself of the contempt by compliance. Mrs. Stribling defended against the contempt order by claiming inability to perform according to the dictates of the order and inability to obey the order due to vagueness; however, both of her defenses were rejected by the chancellor. Finding no reversible error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. This Court has reviewed this divorce case once before. Stribling v. Stribling, 906 So.2d 863 (Miss.Ct.App.2005), reh’g denied, 2003-CA-00731-COA (Miss.Ct.App. Apr. 5, 2005), cert. denied, 904 So.2d 184 (Miss.2005). There, we affirmed the chancellor’s grant of periodic alimony, division of marital assets, and award of attorney’s fees to Carl William “Bill” Stribling. Since the divorce and the final decision entered by this Court, Mrs. Stribling has not paid, save a small amount, towards the judgment entered against her.

¶ 3. While awaiting the result of the former appeal in this Court, Mr. Stribling filed a motion seeking to have Mrs. Stri-bling cited for contempt. Mrs. Stribling then filed motions for modification of the decree and to stay the execution of the judgment pending this Court’s decision, as well as responded to Mr. Stribling’s contempt motion. The chancery court then held hearings on Mrs. Stribling’s motion for modification and motion to stay, and Mr. Stribling’s motion for contempt in March and August of 2004. Mrs. Stri-bling’s motion to stay was denied and the court entered its original order granting Mr. Stribling’s motion for contempt on November 8, 2004. Mrs. Stribling then filed her motion for reconsideration. On February 9, 2005, the chancellor issued an amended order granting, in part, Mrs. Stribling’s motion to reconsider and amending the original order due to calculation errors. This amended order, however, denied Mrs. Stribling’s other claims of error, continuing to find Mrs. Stribling in contempt. The amended order of the chancellor, as it now stands, holds Mrs. Stribling in contempt with a judgment of incarceration until she purges herself of the contempt. Mrs. Stribling now appeals this order of contempt, seeking review of the'following issues:

I. THE CHANCELLOR COMMITTED MANIFEST ERROR IN FINDING THAT MRS. STRI-BLING HAD THE PRESENT ABILITY TO PURGE HERSELF OF CONTEMPT AND ORDERING HER INCARCERATED.

II. THE ORDER OF CONTEMPT INCARCERATING MRS. STRI-BLING IS AMBIGUOUS AS TO THE AMOUNT MRS. STRI-BLING MUST PAY TO BE RELEASED FROM INCARCERATION AND IS THEREFORE VOID.

DISCUSSION

¶ 4. “A prima facie case of contempt has been established when the party entitled to receive support introduces evidence that the party required to pay the support has failed to do so.” McIntosh v. Dep’t of Human Servs., 886 So.2d 721, 724(¶ 11) (Miss.2004). Here, neither party contests the fact that Mrs. Stribling has failed to comply with the terms of the divorce decree and, therefore, a case of contempt has been established.

¶ 5. Once a party is held in contempt, that party may defend upon several grounds. Dunaway v. Busbin, 498 So.2d 1218, 1222 (Miss.1986). Mrs. Stribling defended herself by asserting an inability to pay and by arguing that the contempt order is vague so that she cannot perform due to the ambiguity. It is well established that one may avoid contempt by showing that their violation of an order is not willful or contumacious, but rather a product of their honest inability to comply with the order. Id. Another valid defense to contempt exists where a party establishes that their inability to conform to a judgment is due to the order’s vagueness or because of insufficient detail. Id.

STANDARD OF REVIEW

¶ 6. Both of Mrs. Stribling’s issues on appeal concern the chancellor’s rejection of her defenses to the contempt citation and are controlled by the same standard of review. This Court is required to give substantial deference to the chancellor’s finding of fact, particularly in the areas of divorce and child support, overturning the determination only if it is manifestly wrong. Fancher v. Pell, 831 So.2d 1137, 1140(¶ 15) (Miss.2002). “In the absence of manifest abuse of discretion, coupled with the presence of substantial credible evidence, we should not disturb the learned chancellor’s decision substituting our judgment for that of the chancellor.” Mabus v. Mabus, 910 So.2d 486, 488(¶ 6) (Miss.2005). “We must consider the entire record before us and accept all those facts and reasonable inferences therefrom which support the chancellor’s findings.” Madden v. Rhodes, 626 So.2d 608, 616 (Miss. 1993).

I. PRESENT ABILITY TO PURGE CONTEMPT AND ORDER OF INCARCERATION

¶ 7. This Court is to decide whether the chancellor committed manifest error or abused her discretion in finding that Mrs. Stribling was, at the time of the contempt hearing, able to pay the judgment and alimony to Mr. Stribling. In our review, this Court defers to the chancellor’s ability to view the witnesses, to determine their credibility and to review the exhibits before the chancery court. Wesson v. Wesson, 818 So.2d 1272, 1279(¶ 20) (Miss.Ct.App.2002).

¶ 8. At the hearings, Mrs. Stribling sought to excuse her failure to comply with the divorce decree by presenting testimony and exhibits reflecting various bank account information, her company’s financial records, foreclosure notices, outstanding bills and promissory notes. Notwithstanding Mrs. Stribling’s defense presentation, the chancellor issued an order on February 9, 2005, addressing both Mrs. Stribling’s motion for reconsideration and Mr. Stribling’s motion for contempt. The chancellor found that the original November 8, 2004 order contained calculation errors. The order was re-issued and found that between February 1, 2003, and July 31, 2004, Mrs. Stribling’s business accounts reflected total deposits of $971,051.81 and that the business expenses during that time were only $643,852.85, leaving Mrs. Stribling with the disposable income of $327,198.96. While some of Mrs. Stribling’s arguments charging miscalculation prevailed, the chancellor noted that Mrs. Stribling’s other assignments of error were not valid, stating:

As to other claims of error by [Mrs. Stribling], this Court finds that such errors are not valid since the Court discovered at least 19 times that [Mrs. Stri-bling] manufactured figures that did not exist, and had understated her income ... which leads this Court to believe that any evidence presented by [Mrs. Stribling] is not credible.

After making this finding regarding Mrs. Stribling’s motion to reconsider, the chancellor in the next paragraph of the order found Mrs. Stribling in contempt and ordered her incarcerated until she purged herself of the contempt. Mrs. Stri-bling argues that a judgment of incarceration is improper because she established at the hearing and through her exhibits that she was without the present ability to pay the amount of the judgment to Mr. Stri-bling.

¶ 9. Should a party refuse to comply with the terms of a divorce decree, a chancellor unquestionably has the power to commit the contemner to jail until he or she complies. See Miss.Code Ann. §§ 9-5-87 (Rev.2002); 9-1-17 (Rev.2002). However, “[i]t is also a well-settled rule in this state that the court’s power to commit a person to jail until he complies with the terms of a decree depends upon his present ability to comply with the decree.” Wilborn v. Wilborn, 258 So.2d 804, 805 (Miss.1972). “[T]he [contemner] may avoid judgment of contempt by establishing that he is without present ability to discharge his obligation, but he has the burden of proving his inability to pay, and such a showing must be made with particularity and not in general terms.” Jones v. Hargrove, 516 So.2d 1354, 1357 (Miss.1987). This assertion of inability to pay must be proven by a preponderance of the evidence. Miss.Code Ann. § 11-51-12(4) (Rev.2002).

¶ 10. In the case sub judice, it is apparent that the chancellor chose not to believe Mrs. Stribling’s testimony concerning her inability to pay because the judgment of contempt continued, even after the defenses were presented. Reading the chancellor’s order as a whole, we find that the chancellor’s decision not to believe Mrs. Stribling was based, in part, on the finding that Mrs. Stribling had previously “manufactured figures” and “understated” her income. The chancellor found in her order of contempt that Mrs. Stribling’s disposable income of $327,198.96 still existed as of the day of the contempt hearing, and discredited Mrs. Stribling’s testimony regarding her inability to pay the judgment. The chancellor’s disbelief of Mrs. Stribling’s assertions regarding her inability to pay is evinced by the chancellor’s continuing order of contempt and incarceration.

¶ 11. We must review the chancellor’s order of contempt by considering whether the chancellor had a reasonable basis not to believe Mrs. Stribling’s testimony regarding her inability to pay and thereby holding Mrs. Stribling in contempt. “Generally speaking, contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than are we.” Cumberland v. Cumberland, 564 So.2d 839, 845 (Miss.1990). Furthermore, we are mindful of the supreme court’s command that “[t]he chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is to judge their credibility.” Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993). “[The chancellor] is best able to determine the veracity of their testimony, and this Court will not undermine the chancellor’s authority by replacing [her] judgment with its own.” Id.

¶ 12. Our thorough review of the record reflects that although the lower court might have found from the evidence that Mrs. Stribling’s argument concerning her inability to pay was well-taken, there is also sufficient basis in the evidence, we think, for the court’s conclusion that Mrs. Stribling was not credible and failed to establish that she was unable in good faith to make the prescribed payments. We note that other proceedings in this divorce have been before the same chancellor. The chancellor’s order stated that in these previous proceedings Mrs. Stribling had presented false statements to the court, at a minimum, nineteen times. The chancellor is better situated than we to determine from the evidence heard by her whether Mrs. Stribling is credible in her testimony as to her ability to make the payments as ordered. For these reasons, we affirm the chancellor’s findings and order of contempt.

II. VAGUENESS IN THE ORDER OF CONTEMPT

¶ 13. Mrs. Stribling’s second defense to the contempt order was premised on her inability to obey an order that she claims was vague or insufficiently specific. Mrs. Stribling contends that the language of the order finding her in contempt was unclear as to the exact amount that she must pay to rid herself of contempt. She cites to several different paragraphs, pointing out alleged inconsistencies in the amounts. Mr. Stribling contends that the order of the chancellor is clear in its language, ordering Mrs. Stribling to remedy the arrearage owed to Mr. Stribling for the periodic alimony. We are charged with determining whether the chancellor’s order of contempt was clear enough for interpretation of the amounts Mrs. Stri-bling would owe to purge herself of contempt.

¶ 14. In Balius v. Gaines, 908 So.2d 791, 798(¶ 16) (Miss.Ct.App.2005), this Court considered whether a provision of a child visitation order was ambiguous. We stated: “ ‘[w]hen questions of meaning arise’ as to a judgment, ‘answers are sought by the same rules of construction which appertain to other legal documents.’” Id. at (¶ 16) (quoting Estate of Stamper v. Edwards, 607 So.2d 1141, 1145 (Miss.1992)). In determining whether an order is ambiguous, we focus on the intent of the chancery court and read the judgment as a whole. Id. at (¶ 16). However, we decline interpreting or construing an order if the language of a judgment is unambiguous. Id.

¶ 15. Paragraph eight of the contempt order states:

The Sheriff of Madison County is hereby directed to immediately take physical custody of the Plaintiff, Linda Stribling, and incarcerate her in the Madison County Jail or such other holding facility as may be designated by the County, until such time as she has purged herself of her contempt by the payment of the aforementioned sums or until further order of this Court.

(emphasis added). A reading of the entire order results in this Court’s finding that the aforementioned sums the chancellor addressed in paragraph eight was the sum of the periodic alimony arrearage. Paragraph five states that at the time of the chancellor’s order, Mrs. Stribling was in arrears of this periodic alimony for twenty-five months in the amount of $125,000. No further construction need be made by this Court, as the order is unambiguous. We thus find no error in the chancery court’s overruling Mrs. Stribling’s defense to the contempt due to vagueness in the order.

CONCLUSION

¶ 16. Upon our review of the entire record before us, and considering all applicable law, we cannot find that the chancellor committed manifest error in holding Mrs. Stribling in contempt. In our review of the chancellor’s order, we accept all those facts and reasonable inferences therefrom which support the chancellor’s findings. We find that the chancellor had a substantial basis, and that the power was within her confine, for disbelieving Mrs. Stribling’s assertion regarding her present ability to conform to the divorce decree, and that no error was committed in so doing. Further, we find Mrs. Stribling’s assertion of ambiguity in the order unavailing and dismiss this assignment of error.

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

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

LEE, P.J.,

dissenting.

¶ 18. With respect for the majority, I am nevertheless compelled to dissent.

¶ 19. There is little doubt that Linda Stribling has failed to comply with the judgment of the Madison County Chancery Court, and it certainly should be to no one’s surprise. How could she? There simply was no justification for the chancellor to award such amounts based on the financial conditions of the parties.

¶ 20. When the original Stribling v. Stribling, 906 So.2d 863 (Miss.Ct.App.2005), was before this Court I likewise dissented which I repeat in full:

With respect to the majority, I dissent. After reading the record, I cannot find that substantial evidence existed to support the chancellor’s award of periodic alimony in the amount of $5,000 per month or the award of $221,229.37 as half of the marital assets. Athough some amount of alimony may be appropriate in this case, I fail to see the justification for an award of that amount. Furthermore, I would cite to In re: Dissolution of the Marriage of Profilet, 826 So.2d 91 (Miss.2002), where the supreme court found that the husband’s financial status was misrepresented in the chancellor’s findings and, as a result, the chancellor erred in calculating the amount of alimony. In the case at bar I am not convinced that the chancellor either relied on Linda’s net income or took into account her debts in determining alimony payments or equitable distribution. Therefore, I would reverse and remand on this issue for the chancellor to determine a more appropriate award of alimony, if any, and likewise, equitable distribution.

Id. at 874(¶ 47).

¶ 21. I could not fathom how such an award could be granted by the chancellor. The financial statements certainly did not support it, and I could only conclude that the chancellor looked at the gross income and totally ignored any indebtedness or liabilities. To award such large amounts based solely on gross income is a recipe for disaster. For example, in In re: Dissolution of the Marriage of Profilet, 826 So.2d at 96(¶ 17), the supreme court noted “that the chancellor apparently confused the gross receipts from William’s medical practice with his net income. She also relied on his personal total assets without taking his liabilities into account.” That is exactly what happened in the case sub judice.

¶ 22. “It is well established that in domestic relations cases, when a party has demonstrated a prima facie case of contempt, the contemnor may avoid the judgment of contempt by establishing that he is without the present ability to pay his obligations.” Kennedy v. Kennedy, 650 So.2d 1362, 1366 (Miss.1995). In Riser v. Peterson, 566 So.2d 210, 211-12 (Miss.1990), the supreme court emphatically stated:

We do not know how to over-emphasize that the law in Mississippi is INABILITY TO CURRENTLY DISCHARGE AN OBLIGATION IN A CIVIL CONTEMPT CASE IS A DEFENSE TO A JUDGMENT OF CONTEMPT. The defendant does have the burden of proving inability to pay and that showing must be in particular terms.... For the benefit of the bench and bar, let us attempt to state clearly that a litigant may be incarcerated for civil contempt for failure to pay a judgment but THAT LITIGANT IS ALWAYS ENTITLED TO OFFER EVIDENCE OF INABILITY TO PAY AS A DEFENSE, NOT TO THE CONTEMPT, but to the incarceration.

See also Howard v. Howard, 913 So.2d 1030, 1040(¶ 22) (Miss.Ct.App.2005).

¶ 23. Linda Stribling has been unable to comply with the terms of the judgment and will continue to be unable to do so simply because the judgment is so out of proportion to her financial condition that payment by her is unattainable.

      . The hearings held on the various motions are collectively referred to as "hearings” hereinafter.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Cynthia Jo STAGGS, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CA-01579-COA.
    Court of Appeals of Mississippi.
    Jan. 9, 2007.
    Rehearing Denied May 15, 2007.

      David L. Walker, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Cynthia Jo Staggs timely filed a motion for post-conviction relief (PCR) on June 1, 2005, attacking her January 21, 2004 guilty plea to sexual battery and sentence of thirty years. Staggs argued that her guilty plea was involuntary and that there was no factual basis for the plea. The Circuit Court of DeSoto County dismissed her PCR without an evidentiary hearing. Staggs appeals. We find no error and affirm.

STANDARD OF REVIEW

¶ 2. The circuit court may dismiss a PCR without an evidentiary hearing if “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Rev.2000). On appeal, this Court reviews the record de novo, and will affirm the summary dismissal of a PCR if the petitioner has failed to demonstrate “ ‘a claim proeedurally alive substantially] showing denial of a state or federal right....’” Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 176 (Miss.1991)). No hearing is required if the sole support for the petitioner’s allegations is her own contentions and those contentions are effectively contradicted by other record evidence, such as a transcript of the plea hearing. Donnelly v. State, 841 So.2d 207, 212(¶ 12) (Miss.Ct.App.2003).

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION FOR POST-CONVICTION RELIEF WITHOUT AN EVI-DENTIARY HEARING.

¶ 3. Staggs argues that she was entitled to an evidentiary hearing because her PCR substantially demonstrated that her guilty plea was involuntary and that there was no factual basis supporting her guilt of sexual battery. For a guilty plea to be binding upon a defendant, the plea must be entered voluntarily and intelligently. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). A guilty plea is considered to be voluntarily and intelligently entered only when the defendant is advised concerning the nature of the charges against her and the consequences of the plea. Id. The defendant must know the elements of the charge against her, including an understanding of the charge and its relation to her, what effect the plea will have, and what possible sentence might result from the plea. Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991). Moreover, the defendant must be informed that a guilty plea waives the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination. Alexander, 605 So.2d at 1172. Pursuant to Uniform Rule of Circuit and County Court 8.04(A)(4)(b), during the plea colloquy, the trial court must determine that the accused understands the maximum and minimum penalties for the charge.

¶ 4. The defendant bears the burden of proving by a preponderance of the evidence that the guilty plea was involuntary. Miss.Code Ann. § 99-39-23(7) (Supp.2006). In a statement of facts attached to Staggs’s PCR, Staggs averred that, when she entered the plea, she thought she was pleading guilty to being an accomplice to sexual battery. Staggs further averred that she had been under the belief that she would not be sentenced to the maximum penalty of thirty years. Staggs argues that these misconceptions about the nature of the crime charged and the consequences of the plea rendered her guilty plea involuntary. A trial court may disregard the movant’s assertions where they are substantially contradicted by the court record that culminated in the entry of the guilty plea. Wilson v. State, 760 So.2d 862, 864(¶ 5) (Miss.Ct.App.2000). Staggs’s assertions in her PCR are substantially contradicted by the transcript of the guilty plea hearing.

115. The plea hearing transcript shows that, at the same proceeding, the trial court accepted the guilty pleas of both Staggs and her husband to sexual battery. The assistant district attorney informed the trial court that, were the case to go to trial, the State would be prepared to prove that Staggs and her husband had placed the penis of Staggs’s husband into the mouth of a minor child. During the plea colloquy, the trial court asked Staggs if she understood that she was being charged with sexual battery, and Staggs responded, “Yes, sir.” The trial court ascertained that Staggs understood that there was no minimum penalty for the crime but that the maximum penalty was thirty years. The court asked Staggs if she had discussed all the facts and circumstances surrounding her case with her attorney and if the attorney had explained what the charge meant and discussed any defenses Staggs might have. Staggs responded in the affirmative. Staggs also indicated that she had entered a petition to enter a plea of guilty, that she had reviewed the petition with her attorney, that she understood the petition, and that it was true and correct. Staggs identified her signature on the plea petition. When the trial court asked her why she was pleading guilty, Staggs responded, “Because I was an accomplice.”

¶ 6. Staggs contends that her statement to the court that she was pleading guilty because she was an accomplice indicated that she thought she was pleading guilty as an accomplice to sexual battery, not to sexual battery itself. This argument intimates, without expressly so stating, that Staggs believed she was pleading guilty to some crime less than sexual battery or having a lesser penalty than sexual battery. Staggs argues that when she told the court that she was pleading guilty because she was an accomplice, the court should have made a detailed inquiry of Staggs to make sure she understood the nature of the charge to which she was pleading guilty.

¶ 7. “Any person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an ‘aider and abettor’ and is equally guilty with the principal offender.” Hoops v. State, 681 So.2d 521, 533 (Miss.1996). Staggs’s status as an accomplice to sexual battery subjected her to full criminal liability for sexual battery. Id. While the trial court did not explain accomplice liability to Staggs, the transcript of the plea hearing substantially contradicts the notion that Staggs thought she was pleading guilty to some offense lesser than sexual battery. The trial court asked Staggs if she understood that she was pleading guilty to sexual battery, and Staggs responded affirmatively. The court further determined that Staggs had conferred with counsel about the nature of the charge and had executed a petition to enter a plea of guilty. The court informed Staggs that she could receive the maximum penalty for sexual battery. Staggs’s statement that she was pleading guilty “because she was an accomplice” was consistent with Staggs having had an understanding that acting as an accomplice subjected her to criminal liability for sexual battery. It is manifest from the plea hearing transcript that Staggs understood that she was pleading guilty to sexual battery.

¶ 8. Staggs further argues that her plea was involuntary because she thought she would receive less than the maximum penalty of thirty years. Again, this contention is belied by the plea hearing transcript. Addressing Staggs and her husband, the trial court stated:

Q. You realize that I’m not bound by any plea bargain which may have occurred between your lawyer and the DA’s office; and I can sentence you anywhere between the maximum and the minimum? The maximum is 30 years and $10,000. There is no minimum, but I could give you 30 years.
A. Yes, sir.
A. Yes, sir.
Q. You also realize you might not get parole, you might not get good time; and if I gave you 30 years, you might serve every single day?
A. Yes, sir.
A. Yes, sir.

Thus, the plea hearing transcript shows that Staggs was fully informed before entering the plea that the trial court could impose the maximum penalty of thirty years.

¶ 9. Next, Staggs argues that there was no factual basis to support her guilty plea. Pursuant to URCCC 8.04(A)(3), in order for the trial court to accept a guilty plea, the court must determine that there is a factual basis for the plea. The factual basis requirement is met when the record “contain[s] ‘enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged.’” Jones v. State, 936 So.2d 993, 999(¶ 21) (Miss.Ct.App.2006) (quoting Corley v. State, 585 So.2d 765, 767 (Miss.1991)). In this case, the assistant district attorney stated that the State was prepared to prove that, between November 1, 2002 and April 24, 2004, Staggs and her husband engaged in sexual penetration with a child who at the time was at least fourteen years old but under sixteen years old by placing the penis of Staggs’s husband into the mouth of the minor child. The assistant district attorney further stated that Staggs had given a full and voluntary confession as to her involvement in the matter. At the conclusion of the assistant district attorney’s statement, the court asked Staggs if she disagreed with anything the assistant district attorney had said. Staggs stated, “No, sir.” Later, Staggs stated that she was pleading guilty to sexual battery because she was an accomplice.

¶ 10. Staggs argues that there was no factual basis for the guilty plea because her confession was neither read into evidence nor introduced as an exhibit at the plea hearing. This argument is without merit. At a guilty plea hearing, the rules of evidence are relaxed and it is not necessary “to flesh out the details which might be brought forth at trial.” Corley, 585 So.2d at 767. Rather, an adequate factual basis for the plea may be formed by any record evidence before the court, including the defendant’s admission of guilt. Id. Here, in addition to the information provided by the assistant district attorney, Staggs stated she was pleading guilty to sexual battery because she was an accomplice, and she stated that she agreed with the assistant district attorney’s summation of her crime and the evidence against her. There was an adequate factual basis in the record for Staggs’s guilty plea to sexual battery. We observe that the trial court otherwise complied with URCCC 8.04 and the constitutional requirements for ascertaining that Staggs’s guilty plea was voluntarily and intelligently entered. Staggs’s arguments that her plea was involuntary and lacked an adequate factual basis are without merit and, therefore, we affirm the summary dismissal of Staggs’s PCR.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.


author: CHANDLER, J„

text:
    Regan PRITCHARD, Appellant v. Harold VON HOUTEN and The University of Southern Mississippi, Appellees.
    No. 2005-CA-00710-COA.
    Court of Appeals of Mississippi.
    Feb. 6, 2007.
    Rehearing Denied May 15, 2007.

      Leonard Brown Melvin, Hattiesburg, attorney for appellant.
    Stephen P. Kruger, Michael Jeffrey Wolf, Jackson, attorneys for appellees.
    Before KING, C.J., CHANDLER and ROBERTS, JJ.
   CHANDLER, J„

for the Court.

¶ 1. On November 17, 2000, Regan Pritchard received a third degree burn injury to her ankle at an iron pour demonstration conducted by a tenured University of Southern Mississippi professor at the University of Kentucky. Pritchard sued the professor, Harold “Skip” Von Houten, the University of Southern Mississippi (USM), and several unknown defendants, alleging that Von Houten’s negligent acts and omissions at the iron pour had caused her injury. USM answered and asserted that it was immune from suit pursuant to Mississippi Code Annotated section 11-46-9(l)(d) (Rev.2002), which provides for immunity from claims based upon a state employee’s exercise of a discretionary function. Later, Yon Houten was dismissed from the suit because Pritchard had alleged that Von Houten was acting within the course and scope of his employment with USM when he committed the negligent acts and omissions, and he was, therefore, immune from suit in his individual capacity pursuant to Mississippi Code Annotated section 11-46-7(2) (Rev.2002).

¶2. After a bench trial, the trial court found that Von Houten and USM were not negligent and that USM was immune from suit for the injury because Pritchard’s claim was based on Von Houten’s exercise of a discretionary function. Pritchard appeals, arguing that the trial court erroneously found that USM was not negligent and that USM was entitled to discretionary function immunity.

¶ 3. We find that all of the credible record evidence substantially showed that USM was negligent and that the trial court’s decision was manifestly wrong. We further find that USM was not entitled to discretionary function immunity under section 11^16-9(l)(d). Therefore, we reverse and remand this case for a new trial limited to the issue of damages.

FACTS

¶ 4. Professor Von Houten taught sculpture at USM. In the fall 2000 semester, Regan Pritchard was a student at USM working toward a Bachelor of Arts degree with an emphasis in three dimensional design. At that time, Pritchard had taken several classes from Professor Von Houten, and was enrolled in Von Houten’s iron casting class. Pritchard’s ambition was to become a sculpture and ceramics teacher.

¶ 5. Von Houten testified that he had done artistic iron casting since 1986 and had established USM as a leader in the field. He was self-taught, and conducted three to four iron pours per year. Von Houten and others testified about the process of iron pouring to create artistic sculpture. A special furnace, called a “cupola,” is used to heat scrap iron, coke, and flux. When the iron reaches between 2500 and 2700 degrees Fahrenheit, it flows out of a hole in the bottom of the cupola. This process is called “tapping” the cupola. A ladle is used to collect the molten iron. Slag, a byproduct, is skimmed from the surface of the molten iron in the ladle. Then, the molten iron is poured from the ladle into prepared sculpture molds, where it cools and solidifies. During an iron pour, the hole in the cupola can be plugged and the iron flow stopped with a device called a “bott.” A ladle used to collect the molten iron must be heated, or “burned in” before use. Von Houten testified that neither he nor the art department promulgated any safety information, manuals or checklists applicable to iron pours.

¶ 6. In November 2000, Von Houten was invited by the University of Kentucky (UK) to give a lecture and demonstrate an iron pour at UK, which is located in Lexington, Kentucky. UK paid Von Houten $550 for the lecture, plus room and board. Von Houten asked Pritchard to participate in the iron pour at UK. Other USM students attended the iron pour as well. USM paid for the students’ trip expenses. Von Houten testified that the UK iron pour benefitted USM by enhancing its reputation in the field of iron pouring. Von Houten and Pritchard testified that the USM students benefitted from participating in the UK iron pour because it was an opportunity to make connections with other art faculty and students. Pritchard testified that her participation in the pour had a bearing on her grade for the course. Pritchard had attended approximately ten previous iron pours conducted by Von Houten at USM, and had been involved in iron casting for approximately two years.

¶ 7. Von Houten testified that he was totally in charge of the trip to UK and the UK iron pour. Von Houten testified that they drove to Lexington on November 14, 2000. Von Houten brought his own car. An adjunct professor, Dan Askew, drove USM students in a van which he checked out from the USM motor pool. Von Houten and Askew were the only USM employees who went on the trip. As found by the trial court, Askew permitted marijuana to be smoked in the van on the drive to Lexington.

¶8. The UK iron pour was a group effort with students performing various duties and Von Houten in charge. Two people, including Von Houten’s sixteen-year-old son, acted as the “pour masters” who set things up for the pour. However, Von Houten testified that he was in charge of how the pour was set up and conducted. Von Houten testified that the students were responsible for their own safety at the iron pour, and had the option of purchasing their own safety equipment from Master Safety in Birmingham, Alabama or using safety equipment provided by USM. Some of the safety equipment used by persons working around the cupola included leather leggings worn over safety boots, aprons, and face shields. Von Houten stated that he never inspected the students to make sure their equipment was worn properly, but that his practice was to look around at the students’ gear and to point out any safety problems that he noticed.

¶ 9. Pritchard testified that she spent the first two days of the UK trip working on her sculpture molds and assisting the UK students with their molds. On November 17, 2000, she attended Von Houten’s lecture and then went to the UK foundry which was to be the site of the iron pour demonstration. The UK foundry had an outdoor area where the iron pour was to be conducted. At the foundry, Pritchard was working on the molds when someone told her the molten iron was ready. Pritchard put on her safety equipment with the assistance of Cara Johnston, another USM student. Pritchard wore a face shield, welding overalls, cotton socks, boots that came up over her ankles, and leather leggings worn over her boots. The leggings covered the front of her legs and tied in the back of her legs. The leggings were further secured at the top and bottom with four inch strips of duct tape wrapped several times around her leg and boot. Pritchard and Johnston testified that Pritchard’s safety equipment was on correctly. Von Houten testified that he did not notice any problems with the safety equipment that Pritchard was wearing at the pour.

¶ 10. All the evidence indicated that the temperature at the UK iron pour was about freezing with light snow falling, which melted when it touched the ground, and that the ground was wet. Pritchard testified that Von Houten had assigned her to the position of scraping slag off the ladle of molten iron, and that she went to that position after putting on her safety equipment. Pritchard testified that, at that time, the other students were not ready and were still getting dressed. In fact, the evidence was in agreement that only one of the pour masters was in attendance and that only one ladle had been heated. At this time, one of students participating in the pour had been sent out by Von Houten to buy a case of beer.

¶ 11. Pritchard testified about how she was injured. When the cupola was tapped, molten iron flowed into the ladle. Two students, Jason Cones and James Davis, held each end of the ladle. The molten iron was coming out too fast and overflowed the ladle onto the ground, where it began popping up into the air in an explosive fashion. Von Houten told Pritchard to grab a second ladle. She and another student picked up a second ladle and approached the cupola. As they approached the cupola, Cones and Davis were carrying the first ladle, filled with molten iron, away from the cupola. Cones and Davis were four or five feet away from Pritchard. At that point, Pritchard felt something burning her ankle in the area of her Achilles tendon. She set her end of the ladle down and began screaming that she had iron in her boot. She was unable to immediately remove her boot due to the duct tape, but located a bucket of water and put her foot in it. Finally, Pritchard was able to remove her boot and Von Houten looked at the injury. He told Pritchard to put Silva-dene burn cream on it and advised her not to go to the hospital. Pritchard testified that she thought the iron that burned her had spilled out of the first ladle and popped into her boot. Pritchard stated that a UK student was also burned. Several students witnessed the molten metal popping up from the ground at the first tap, one student describing it as an “explosive” and “uncontrolled” situation.

¶ 12. After her injury, Pritchard remained at the foundry for the duration of the iron pour. She testified that, based on Von Houten’s advice, she did not go to the hospital until the morning of November 19, when she returned from the trip. Pritch-ard sustained a third degree burn, for which she had a debridement surgery to remove iron and dead tissue from the wound, and had a subsequent surgery to apply a skin graft. Pritchard required bed rest and had to drop out of school, forfeiting $4,000 in tuition and a semester of work. As a result of the injury, Pritchard has limited range of motion and strength in her left ankle and hypersensitivity on her skin graft. She has medical bills in excess of $13,000, is limited to working at the light work level,- and can no longer participate in iron casting.

¶ 13. Von Houten also testified about how the injury occurred. Von Houten admitted that on the day of the iron pour he had consumed one beer with lunch, another before the pour began, and another during the pour after Pritchard was burned. He testified that the cupola they used at the UK iron pour had been transported from USM. Von Houten testified that the cupola was lit at 3:30 p.m. At 5:00 p.m., cold air was blown into the cupola to increase burning. About fifteen to twenty minutes later, the molten iron was ready. Von Houten stated that he was working the bott and the tap pole, which is used to manipulate the bott. When Von Houten tapped the cupola, the molten iron poured into the first ladle. Von Houten testified that he had difficulty replacing the bott, the ladle overflowed, and approximately seventy pounds of molten iron struck the wet ground and began popping off the ground. He called for a second ladle. Then, Pritchard was burned. After that incident, the pour continued for about two hours. At the trial, Von Houten was unable to say exactly how Pritchard had been burned.

¶ 14. There was substantial evidence tending to show that, when molten iron falls on wet ground, the iron can pop up from the ground explosively. Shortly after the iron pour, Von Houten drafted notes about the pour that were admitted into evidence. The notes stated, in pertinent part: “Metal was good and hot. No short pours. 1st tap bad because we didn’t have two ladles ready. One ladle full went on wet ground. Metal flying everywhere. Two people burned. Poured at least 50 molds.” On November 30, 2000, Von Houten drafted a written memorandum reporting the accident to Jennifer Torres, the Chair of the Art Department. The memorandum stated that Pritchard’s burn was the cast iron program’s first hospitalized burn in the program’s twelve year history. The memorandum also described how the accident occurred:,

The first tap was troublesome in that there was too much metal coming out of the furnace. The ladle filled completely and an unsuccessful attempt was made by me to stop the stream. This is not unusual for metal to run out onto the ground but it is undesirable. About 70 lbs. of molten metal hit the wet ground. When molten metal hits wet soil the reaction caused by steam pressure makes the metal dissipate and fly into the air in sparks and steam. It seems as i[f] some of this flying metal entered her boot somehow working into part of the leggings she was wearing. The burn looked to be a little larger than a quarter in size. Silverdine burn ointment was applied to the burn. The student declined further medical treatment and remained for the rest of the iron pour.

Moreover, Von Houten testified that when hot metal hits wet ground, “it is not good.” He stated that hot metal will bounce up more with wet ground and that it is better not to have wet ground during an iron pour.

¶ 15. There was also evidence pertaining to the practice of putting down dry sand before an iron pour. Von Houten testified that it is common for metal to splash on the ground during an iron pour. Von Houten admitted that, had dry sand been put down, there would have been less of a chance for metal to pop up off the ground when spilled, and that dry ground would have been better. Von Houten stated that he was responsible for preparing the site for the pour and conducting the pour. Von Houten stated that he observed that the floor of the UK foundry was a sandy soil mixture and that he did not put down any dry sand.

¶ 16. Pritchard’s iron casting expert, Peter H. Meyst, testified that the metal popping and flying everywhere at the UK iron pour was a direct result of sand not being put down on a wet surface. He testified that, in industrial settings, the American National Standards Institute safety requirements call for a layer of dry sand to be placed under and around furnaces where molten metal is being handled. Meyst also testified that, in industrial settings, molten iron is heated to the same temperature as it is in art casting. Meyst testified that molten iron spills are common at iron pours and that people can be burned even if their safety equipment is worn properly. In Meyst’s opinion, to a reasonable degree of probability, the failure to put down dry sand caused or contributed to Pritchard’s burn injury. On cross-examination, Meyst acknowledged his deposition testimony in which he stated that he could not say to a reasonable degree of probability whether the failure to put down sand caused or contributed to the injury. However, on redirect examination, Meyst indicated that his opinion had changed since reading witness depositions and hearing all of the trial testimony.

¶ 17. Professor Barry Bailey, a friend of Von Houten’s and the head of the sculpture area at Tulane University, testified as an expert witness for USM. Bailey stated that he had attended over one hundred iron pours and had thirty years of art casting experience. He stated that he did not always adhere to the American National Standards Institute safety requirements because those were drafted for industrial settings. Bailey stated that, in preparing for an iron pour when the ground was wet, he sometimes put down dry sand. He opined that, when molten iron hits a cold surface, it congeals and does not pop up and fly around. Bailey agreed, however, with Von Houten’s written statement that, when molten metal hits wet soil, the steam reaction makes the metal dissipate and fly into various parts of the steam. Bailey stated that the molten iron would “dissipate!] into little b-b size pieces.” Bailey stated that he had poured iron in “a driving rain storm” with puddles on the ground and that he had learned from that exercise that spilled molten iron “just dissipates” in those conditions. Bailey stated that he did not know if the condition of the ground at the UK pour caused or contributed to Pritchard’s injury. He stated that, to a reasonable degree of probability, USM was not negligent.

¶ 18. The trial court adopted many of Pritchard’s proposed findings of fact, some of USM’s proposed findings of fact, and USM’s proposed conclusions of law. The court found that Von Houten was the supervisor of the iron pour and was responsible for the conduction of the iron pour. The court found that the metal that burned Pritchard did not come from the cupola. The court found that the ground in the area of the iron pour was wet, but that “in rainy conditions, metal would more tend to solidify and contain itself quicker, being less dangerous.” Yet, the court found that “the first tap of the iron pour was ‘bad’ as two ladles were not ready, one ladle fell on the wet ground, metal was flying everywhere, and the Plaintiff was burned.” The court found that, while dry sand had not been put down prior to the iron pour, Von Houten had testified that he had elected not to put down dry sand because the foundry floor was composed of sandy soil. The court found that Pritchard did not cause or contribute to her injury by any act or omission of her own.

¶ 19. The court concluded that USM was not negligent. The court found that, pursuant to Garrett v. Northwest Mississippi Junior College, 674 So.2d 1 (Miss.1996), USM owed no duty of care to Pritchard given her age and her experience with iron pouring. The court opined that Pritchard had not shown that USM had breached any duty to her. Regarding causation, the court found that there was no showing that there was any defect in Pritchard’s safety equipment, and that Pritchard’s expert could not testify to a reasonable degree of probability that the wet ground caused the burn. The court concluded that the dangerous nature of the iron pour was obvious and would have been obvious to Pritchard given her experience. Finally, the court found that USM was immune from liability because the iron pour involved completely discretionary decisions by USM’s employees made in the course and scope of their employment.

STANDARD OF REVIEW

¶ 20. A circuit court judge sitting without a jury is afforded the same deference as a chancellor. City of Jackson v. Perry, 764 So.2d 373, 376 (¶ 9) (Miss.2000). On review of the outcome of a bench trial, after reviewing the entire record, we will affirm if the judge’s findings of fact are supported by substantial, credible, and reasonable evidence. Id. We review all questions of law de novo, including the proper application of the Mississippi Tort Claims Act. Maldonado v. Kelly, 768 So.2d 906, 908 (¶ 4) (Miss.2000). Thus, we will not disturb the trial court’s findings unless they were manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. City of Jackson, 764 So.2d at 376 (¶ 9).

¶ 21. In this case, the trial court substantially adopted the proposed findings of fact of both parties and the conclusions of law submitted by USM. In this scenario, our deference to the trial court’s fact-findings is lessened. Omnibank of Mantee v. United So. Bank, 607 So.2d 76, 83 (Miss.1992) (citing Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1266 (Miss.1987)). We must “view the challenged findings of fact and the appellate record as a whole with a more critical eye to ensure that the trial court has adequately performed its judicial function.” Rice Researchers, 512 So.2d at 1265.

LAW AND ANALYSIS

I. THE TRIAL COURT ERRED IN FINDING THAT THE UNIVERSITY OF SOUTHERN MISSISSIPPI WAS NOT NEGLIGENT.

¶ 22. USM is responsible for the negligence of its employees acting within the course and scope of their employment. Miss.Code Ann. § 11-46-6(1) (Rev.2002). A plaintiff asserting a claim of negligence must prove by the preponderance of the evidence the elements of duty, breach, proximate causation, and damages. May v. V.F.W. Post No. 2539, 577 So.2d 372, 375 (Miss.1991). As discussed below, we find that all of the credible evidence substantially showed that Pritchard had proved by a preponderance of the evidence that Von Houten owed Pritchard a duty of ordinary care in conducting the iron pour, that Von Houten breached that duty by failing to put down dry sand in the areas where molten iron was handled, and that this failure was the proximate cause of Pritch-ard’s burn injury.

¶ 23. The trial court held that, due to Pritchard’s age and experience, USM owed Pritchard no duty of care in its conduct of the UK iron pour. In so holding, the trial court relied upon Garrett v. Northwest Mississippi Junior College, 674 So.2d 1 (Miss.1996). In Garrett, a junior college student sued Northwest Mississippi Junior College after he accidentally cut off his thumb while using a milling machine in his tool and die class. Id. at 1. The trial court granted summary judgment for the junior college. Id. The supreme court reversed, finding that genuine issues of material fact existed concerning the extent of the safety and use instruction which Garrett received about the machine and the adequacy of the instructor supervision. Id. at 2. The court reviewed case law from other jurisdictions and held that the extent of the duty owed by vocational education teachers and schools to their students “is framed largely in terms of the degree of safety and use instruction that students receive on the particular machine that is being used when an accident occurs, as well as the extent of teacher supervision at the time of the accident.” Id.

¶ 24. The Garrett court considered Miles v. School District No. 138 of Cheyenne County, 204 Neb. 105, 281 N.W.2d 396 (1979), in which the court concluded that the student’s own negligence was the sole proximate cause of injuries she received while operating a jointer machine in shop class. In that case, the court examined the extent of training she had received on the machine, the safety instruction she received, her performance on safety examinations, and the frequency of her use of the jointer machine. Id. at 2-3. The court in Miles found that, due to the plaintiffs education and experience pertaining to the jointer machine, she was thoroughly familiar with operating the machine and the hazards of using the machine. Id. The Garrett court also reviewed Paulsen v. Unified School District No. 368, 239 Kan. 180, 717 P.2d 1051 (1986). Id. at 3. In Paulsen, a student was injured when using a table saw without the safety-guard. Id. The court stated that the teacher had a duty to properly supervise the student and the school district had a duty to properly supervise the teacher and to provide a reasonably safe environment for the students. Id. The court found that the duty had not been breached because the student had received extensive instruction on using the table saw, having been instructed multiple times on safe tool use and having passed a test on safe use of the saw. Id. The Garrett court also relied upon Roberts v. Robertson County Board of Education, 692 S.W.2d 863 (Tenn.Ct.App.1985), where a student was injured while using a power driven drill press. Id. at 3-^4. The Tennessee court imposed a duty of care upon a high school vocational teacher “to take those precautions that any ordinary reasonable and prudent person would take to protect his shop students from the unreasonable risk of injury.” Id. (quoting Roberts, 692 S.W.2d at 870). The Roberts court further stated:

The extent of these precautions must be determined with reference to the age and inexperience of the students involved, their less than mature judgment with regard to their conduct, and the inherently dangerous nature of the power driven equipment available for their use in the shop. In order to discharge this duty, it is incumbent upon a teacher, at a minimum, to instruct his students in the safe and proper use of the equipment, to warn the students of known dangers, and to supervise the students to the extent necessary for the enforcement of adequate rules of shop safety.
Once the trial court has determined that the defendant was under a duty to protect the plaintiff against the event that did, in fact, occur, then it must be proven that the defendant’s actions or failure to act constituted a breach of this duty. This second element of proof in a negligence case usually requires a factual determination that can only be made upon the unique facts of each case.

Id. After reviewing these cases, the Garrett court concluded that “[mjatters of safety and use instruction on specific machinery and the extent of instructor supervision have been outcome determinative in the shop class injury eases from other jurisdictions.” Id. The court reversed and remanded the case for a trial because there were disputed fact questions regarding the instruction and supervision Garrett had received. Id.

¶ 25. In this case, the trial court held, pursuant to Garrett, that any duty owed by USM to Pritchard in conducting the iron pour “must be determined with reference to the age and experience of the plaintiff.” The court found that, given Pritchard’s adulthood and years of experience with iron pouring, no duty of care was owed. Garrett held that, in college vocational classes, the more instruction, experience, and maturity a student possesses, the less instructor supervision is necessary to comply with the duty of care. Thus, if a student is mature and has had voluminous experience with and instruction on using a dangerous machine, the instructor exercises reasonable care by rendering less supervision than would be required for a student who is using the same machine but has less education, experience, and maturity.

¶ 26. This analysis is inapposite to Pritchard’s claim that Von Houten negligently prepared the iron pour site. Pritchard’s claim based on the failure to put down dry sand was not dependent upon inadequate supervision by Von Houten. Rather, it was dependent on Von Houten’s acts and omissions in his preparation of the site of the iron pour. Von Houten testified that it was his sole responsibility to make sure the iron pour was properly set up and pursuant to that responsibility he omitted to put down dry sand. Thus, the negligent act or omission complained of by Pritchard concerning the sand was not based upon Von Houten’s negligent supervision of Pritchard, but upon his negligent preparation of the site. Concerning the site preparation, Pritch-ard’s age, experience, and maturity were irrelevant to the question of duty because those qualities would not have protected her or any other participating student from a site preparation error by the instructor responsible for site preparation decisions.

¶ 27. Having determined that the trial court misapplied Garrett in determining the question of duty, we turn to that question ourselves. The existence of a duty is a question of law. Rein v. Benchmark Const Co., 865 So.2d 1134, 1143(¶ 29) (Miss.2004). An important component of the existence of a duty is that the injury is reasonably foreseeable. Id. While Garrett involved an injury allegedly caused by the negligent supervision of a student’s use of a dangerous machine and this case involves an injury allegedly caused by the negligent preparation of the site of a dangerous vocational activity, Garrett is instructive concerning the applicable duty of care in this case. In arriving at its holding, the Garrett court extensively quoted from Roberts, including the holding that a vocational teacher “has the duty to take those precautions that any ordinary reasonable and prudent person would take to protect his shop students from the unreasonable risk of injury.” Garrett, 674 So.2d at 3 (quoting Roberts, 692 S.W.2d at 870). In Garrett and Roberts, that duty included providing that level of supervision of shop students deemed necessary in light of the student’s age, experience, and maturity. It is reasonably foreseeable that an injury to shop students engaged in dangerous activities could occur not only from inadequate supervision, but also from an improperly prepared activity site. Therefore, we find that a vocational instructor’s duty to take those precautions that any ordinary and reasonable person would take to protect shop students from the unreasonable risk of injury extends to preparation for the activity and preparation of the site for the activity.

¶ 28. Our decision is supported by the fact that other jurisdictions have recognized as a general rule that a college teacher owes a duty of reasonable care to students. See Allen E. Korpela, Annotation, Tort Liability of Public Schools and Institutions of Higher Learning for Accidents Associated with Chemistry Experiments, Shopwork, and Manual or Vocational Training, 35 A.L.R.3d 758 (1971). In Doe v. Yale University, 252 Conn. 641, 748 A.2d 834, 847 (2000), the court, citing Garrett and other cases, recognized that “[t]he duty of an educator or supervisor to use reasonable care so as not to cause physical injury to a trainee during the course of instruction or supervision is not novel.” In Arizona, a college owes its student a duty of reasonable care not to expose the student to an unreasonable risk of harm. Delbridge v. Maricopa Cty. Community Coll. Dist., 182 Ariz. 55, 893 P.2d 55, 59 (Ct.App.1994) (duty of reasonable care was owed by a college to a student rendered a paraplegic in a fall from a pole during a lineman training course). In New York, a teacher has a duty to exercise reasonable care to prevent injury to students, including an obligation not to direct a student to do that which is unreasonably dangerous, to see that any equipment supplied is reasonably safe for its intended use, and to provide such instruction or supervision that is reasonably necessary to safely perform the intended tasks or to use the equipment supplied. Yarborough v. City Univ. of New York, 137 Misc.2d 282, 520 N.Y.S.2d 518, 520-21 (N.Y.Ct.Cl.1987).

¶ 29. As a college instructor responsible for conducting an iron pour with student participants, Von Houten had a duty to take those precautions in preparing for the iron pour which any ordinary and reasonable person would take to protect the participating students from the unreasonable risk of injury. A defendant charged with a duty to exercise ordinary care “must only take reasonable measures to remove or protect against ‘foreseeable hazards’ that he knows about or should know about in the exercise of due care.” Donald v. Amoco Prod. Co., 735 So.2d 161, 175 (¶ 48) (Miss.1999). Such a defendant must safeguard against reasonable probabilities, “and is not charged with foreseeing all occurrences, even though such occurrences are within the range of possibility.” Id. A defendant whose conduct is reasonable in light of the foreseeable risks will not be found liable for negligence. Id.

¶ 30. There was substantial evidence in the form of testimony from Von Houten, Meyst, and Bailey that molten iron spillage is a common occurrence during iron pours. The testimony was undisputed that burn injuries can occur during iron pours despite the use of proper safety equipment. All of the evidence indicated that the ground was wet at the UK pour. Meyst testified and Von Houten testified and indicated in his notes that molten iron pops and flies into the air when it contacts wet ground. The testimony of Bailey, USM’s expert, did not substantially contradict this evidence. This evidence indicates that it should have been reasonably foreseeable to Von Houten that molten iron would spill during the iron pour and that, given the wet ground at the UK foundry, the spilled iron would have had a dangerously explosive effect. Further, there was substantial evidence that at iron pours the risk of injury from molten iron spills is minimized by the practice of placing dry sand on the ground in the areas where molten iron is to be handled. The substantial, credible evidence introduced at the trial showed that, as a reasonable precaution against burn injuries, Von Houten should have placed dry sand on the wet ground at the foundry to protect participants from burns caused by foreseeable molten iron spillage. Von Houten’s failure to do this breached his duty to take reasonable precautions to protect his students from injury.

¶ 31. Moreover, the evidence substantially showed that the failure to place sand in the areas where molten iron was handled proximately caused Pritch-ard’s burn injury. “Proximate cause of an injury is that cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred.” Gulledge v. Shaw, 880 So.2d 288, 293 (¶ 11) (Miss.2004). All of the credible evidence, including Pritchard’s testimony, Von Houten’s notes following the accident, and the testimony of the other student witnesses indicated that Pritch-ard’s burn injury occurred when molten iron popped up off the wet ground during the first tap of the cupola. There was no dispute that Pritchard was injured when spilled molten iron became airborne after contacting the ground. Meyst testified to a reasonable degree of probability that, whether the specific piece of iron that burned Pritchard spilled from the cupola or from the ladle, it was the wet condition of the ground that caused it to pop up and into Pritchard’s boot. Von Houten’s notes also indicate that Pritchard was burned when the molten iron popped up “in a reaction caused by steam pressure” after striking the wet ground. There was simply no other explanation for how Pritchard was injured.

¶ 32. We find that, because the evidence substantially established negligence on the part of Von Houten and USM, the trial court’s ruling constituted manifest error and was clearly erroneous.

II. THE TRIAL COURT ERRED BY FINDING THAT THE HEATING, POURING, AND ART CASTING OF IRON IS A DISCRETIONARY FUNCTION ENTITLING THE AP-PELLEES TO IMMUNITY UNDER THE MTCA.

¶ 33. In the lower court, USM argued it was entitled to discretionary function immunity under the Mississippi Tort Claims Act (MTCA). USM is a state university that falls within the coverage of the MTCA. Miss.Code Ann. § 11 — 46—l(j) (Rev. 2002); Miss.Code Ann. § 37-119-1 (Rev. 2001). Section ll-46-9(l)(d) of the MTCA provides immunity for a governmental entity and its employees acting within the course and scope of employment for any claim “[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” Miss.Code Ann. § 11— 46-9(l)(d) (Rev.2002).

¶ 34. In Jones v. Mississippi Department of Transportation, 744 So.2d 256, 260(¶ 10) (Miss.1999), our supreme court adopted a two-part public policy function test for determining whether governmental conduct is protected by discretionary function immunity. Id. The test provides that, in determining whether governmental conduct is afforded discretionary function immunity, the court first must determine whether the activity involved an element of choice or judgment, and, if so, whether the choice involved social, economic, or political policy. Id. Under the discretionary function exemption, “only those functions which by nature are policy decisions, whether made at the operational or planning level, are protected.” Id. (citing U.S. v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). “The purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. The court observed that section 11-46-9(1)(d) appears to be patterned after the discretionary function exemption to the Federal Tort Claims Act. 28 U.S.C. § 2680(a).

¶ 35. In the instant case, the trial court found that a duty is discretionary when the government employee must use his own judgment or discretion in performing that duty, and that USM was entitled to immunity because the iron pour involved decisions by USM employees that were completely discretionary. Pritchard argues that, in holding that discretionary function immunity applied, the trial court erroneously neglected to apply the second part of the two-part public policy function test articulated in Jones, pursuant to which immunity lies only where the government actor’s choice or judgment involved social, economic, or political policy. USM contends that the Jones analysis has not been consistently applied since its adoption, and urges this Court to resolve the discretionary function issue without regard to whether the choice or judgment involved social, economic, or political policy. Mississippi’s most recent precedent on this issue has recognized the two-part test; therefore, this Court has no doubt that it is to adhere to the two-part public policy function test in determining the application of discretionary function immunity. Miss. Dept. of Mental Health v. Hall, 936 So.2d 917, 925 (¶ 19) (Miss.2006); Dotts v. Pat Harrison Waterway Dist., 933 So.2d 322, 326 (¶ 9) (Miss.Ct.App.2006).

A Whether the activity involved an element of choice or judgment

¶ 36. Applying the public policy function test, we proceed to determine whether the government activity at issue in this case was subject to discretionary function immunity. Under the first part of the test, we must determine whether the government activity involved an element of choice or judgment. An act is not discretionary, but is ministerial, if “the duty is one which has been positively imposed by law and its performance required at a time and in a manner or under conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion.” Stewart ex rel. Womack v. City of Jackson, 804 So.2d 1041, 1048 (¶ 15) (Miss.2002) (quoting L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1136, 1141 (Miss.1999)). Pritchard and USM have no disagreement that Von Houten’s conduct of the iron pour was not pursuant to any statute, regulation, or policy, and, therefore, it was not ministerial and involved an element of choice or judgment.

B. Whether the choice or judgment involves social, economic, or political policy

¶ 37. The act involving choice or judgment at issue is Von Houten’s failure to put down dry sand before conducting the iron pour. While we have found that failure to have been negligent, the failure to exercise ordinary care does not remove a governmental act from the protection of discretionary function immunity. Collins v. Tallahatchie County, 876 So.2d 284, 289 (¶ 17) (Miss.2004). Thus, we examine whether Von Houten’s choice or judgment involved social, economic, or political policy.

¶ 38. Not all discretionary duties are protected by immunity. Jones, 744 So.2d at 260. While the majority of day-to-day acts in governmental operations involve the exercise of some form of discretion, it is only those decisions which are based on considerations of public policy that are protected. Dotts, 933 So.2d at 327 (¶ 15) (citing Elder v. U.S., 312 F.3d 1172, 1176 (10th Cir.2002)). The proper inquiry is whether the decision “ ‘implicates the exercise of a policy judgment of a social, economic, or political nature.’ ” Id. Our focus is on the nature of the acts taken and their susceptibility to policy analysis; we do not examine the actual subjective thought processes of the government decisionmaker. Id. at 328 (¶ 16). For example, in Dotts, the decisions of the Pat Harrison Waterway District concerning the enclosure of a swimming area, the placement of signage, and the provision of safety equipment and lifeguards were grounded in public policy because the costs and practicality of those decisions could be weighed against their value to the public. Id. at 327-28(¶ 16).

¶ 39. However, “[i]n certain circumstances, it may be obvious that a decision implicates none of the public policies that ordinarily inform an agency’s decisionmak-ing.” Elder, 312 F.3d at 1182. Thus, the activity of driving an automobile in the course and scope of an official’s employment, though requiring the official’s use of discretion, is not protected by discretionary function immunity because the official’s discretionary decisions could not be based upon any regulatory purposes the government authority seeks to accomplish. Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. USM argues that Yon Houten’s conduct at the iron pour furthered a public policy favoring a well-rounded education. However, in Duke v. Department of Agriculture, 131 F.3d 1407, 1411 (10th Cir.1997), the Tenth Circuit rejected the idea that a choice involving any hint of policy concerns would be within discretionary function immunity because that approach would “eviscerate” the social, economic, or political policy prong of the test and would allow the discretionary function immunity exception to “swallow the FTCA’s sweeping waiver of sovereign immunity.” Duke reiterated Gaubert’s holding that the task before the court was to discern if the decision or nondecision implicated the exercise of a policy judgment of a social, economic or political nature. Id. at 1411.

1140. In this case, it is difficult for this Court to fathom how Von Houten’s failure to put down dry sand involved a policy judgment of a social, political, or economic nature. The failure to put down dry sand did not necessitate a selection between alternative policy objectives, and, like driving an automobile in the course and scope of employment, could not have been based upon any government regulatory purpose. Therefore, the act is not susceptible to policy analysis. We find that USM is not protected by discretionary function immunity and that it is liable for Von Houten’s negligence pursuant to the waiver of sovereign immunity codified at Mississippi Code Annotated section 11-46-5. Therefore, we reverse and remand this case for a trial limited to the issue of damages.

¶ 41. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

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


text:
    James Preston BAILEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02109-COA.
    Court of Appeals of Mississippi.
    June 19, 2007.

      James Donald Evans, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. James Preston Bailey was found guilty of murder in the Circuit Court of Harrison County. He was sentenced to life in the custody of the Mississippi Department of Corrections as an habitual offender without the benefit of parole. From this conviction he appeals, asserting the following errors:

I. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A GUILTY VERDICT.
II. WHETHER THE TESTIMONY OF THARPE WAS INSUFFICIENT TO SUPPORT A GUILTY VERDICT.
III. WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT BAILEY’S MOTION FOR A DIRECTED VERDICT.
IV. WHETHER THE TRIAL COURT ERRED BY DENYING BAILEY’S MOTION FOR A JUDG- ■ MENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, MOTION FOR A NEW TRIAL. ■
V. WHETHER THE TRIAL- COURT ERRED BY DENYING THE TESTIMONY OF DEFENSE WITNESS CHAIX WHOSE TESTIMONY WAS ESSENTIAL TO BAILEY’S DEFENSE.
VI. WHETHER THE TRIAL COURT ERRED BY REFUSING JURY INSTRUCTION D-4.

¶ 2. Finding no error, we affirm.

STATEMENT OF THE FACTS

¶ 3. Eyewitness accounts differ as to the factual events which occurred on the night of September 20, 2002. However, testimony is uncontroverted that Kenneth Kirt-land, Sr. (Kirtland) and his wife, Hope Kirtland (Hope), met with Bailey and his live-in girlfriend, Laura Tharpe (Tharpe), that night. The group went to Tharpe’s and Bailey’s rental home in Gulfport. Kirtland and Bailey entered into a heated discussion concerning the Confederate flag. Bailey went into the kitchen and returned with a butcher knife. He then proceeded to fatally stab Kirtland.

¶4. Hope contends that she and her husband met Bailey and Tharpe when the Kirtlands went to a Circle K convenience store on Pass Road in Gulfport to buy cigarettes: Upon arrival at the Circle K, Hope went into the store to purchase the cigarettes. When she returned, Hope stated that there was a black man and a white woman, whom she had never met before, in the van with her husband. Hope later identified the couple as Bailey and Tharpe. The Kirtlands drove Bailey and Tharpe home, which was located on an isolated road in an area known for drug activity.

¶ 5. The Kirtlands entered Bailey’s and Tharpe’s home, where the foursome began talking. There had been some conversation in the van between Kirtland and Bailey about a rebel flag and its placement in a flag display on the beach. Kirtland told Bailey and Tharpe that Hope was a racist, and Hope subsequently left the home, stating that her husband’s remarks made her uneasy. Hope claims that she walked to her son-in-law’s home where she spent the night.

¶ 6. Tharpe gave a slightly different version of events. She said that she and a girlfriend came home from a club and saw the Kirtlands’ white van in the driveway. When Tharpe entered her home, she did not recognize the Kirtlands. Bailey and Kirtland were conversing and having a disagreement about the rebel flag. Tharpe said the only words she spoke to the Kirtlands were that she asked Hope where she worked and Hope said that she worked at the Waffle House. Tharpe told Hope that she also worked at a Waffle House. Hope verified that this bit of conversation took place between the two women at the house. Other than that, Tharpe said that she did not speak to the Kirt-lands, that she was not introduced to them and did not know their names until later.

¶ 7. Tharpe testified that Kirtland and Bailey left with Hope in the van to take her home and that Bailey and Kirtland came back about forty five minutes later without Hope. Kirtland and Bailey continued drinking and talking. Tharpe said that Bailey got up, went into the kitchen, came back with a butcher knife and stabbed Kirtland in the right side of his chest. She said that Kirtland stood and asked Bailey, “Why did you do that to me?” She said Bailey told Kirtland to get out of his house. As Kirtland walked toward the door, he kept asking Bailey why he had stabbed him, so Bailey stabbed him again in the side and Tharpe said “his intestines and everything” came out. Kirtland didn’t say anything else but staggered toward the front door and fell into a chair by the door.

¶ 8. Tharpe said she ran into a bedroom where Bailey’s nephew, Leonard Buckley, was in the bathroom and she told him Bailey was stabbing a man and to stop him. She said Buckley went to the door and told his uncle, “Don’t kill the man.” Buckley, who was in jail on a drug charge at the time of the trial, testified and denied knowing anything about the murder. Kirtland’s body was taken outside by Bailey and dropped by Tharpe’s truck. Tharpe said that after about twenty minutes, Bailey came back in the house with blood all over his shirt and hands. She said she and Bailey went into the bathroom and she helped him wash the blood off of his body and change clothes. After cleaning up, Bailey and Tharpe went to a casino.

¶ 9. Tharpe testified that as they were leaving the house she saw Kirtland “lying down dead” beside her truck in the front yard. The couple stayed at the casino for approximately six hours. Upon leaving the casino, Bailey determined that he needed to dispose of the body so he organized a burial party. He picked up Donald Ray Osby and later Odell Evans joined the group. Osby testified that Bailey told him he wanted him to dig a hole for a dead dog. Osby admitted that he dug the hole, but he never saw a dead dog. Instead, he said he saw the heel of a human body which was wrapped in a sheet. The men dug a grave not far from the house while Tharpe kept a lookout. Tharpe said Bailey and Osby dug the grave and put Kirt-land’s body in. She said Kirtland was dressed only in shorts. After covering the grave, the men placed a piece of carpet and a pallet over it. Bailey instructed Osby and Evans to dispose of the van.

¶ 10. The day after she left Kirtland at Bailey’s house, Hope filed a missing persons report on him with the Gulfport Police Department. She claimed that she was unable to assist police in locating the site of Bailey’s house because she was taken there at night and was unfamiliar with the area. On September 25, 2002, Kirtland’s van was found abandoned in Westside Park in Gulfport.

¶ 11. A year later, the Gulfport police received a break in the case from Officer Chris Wingfield of the Union Parish Sheriffs Office in North Louisiana. Wingfield had received an anonymous tip on the Crime Stoppers line, in which the caller said that Bailey had murdered Kirtland and buried him in Bailey’s backyard. On October 24, 2003, Gulfport police went to Bailey’s house where two police cadaver dogs separately signaled the presence of a body buried in the yard. The police recovered a knife with the handle missing and found the remains of a human body.

¶ 12. The body was later determined to be Kirtland’s. An autopsy showed a cut wound on the upper edge of Kirtland’s third rib going downward and to the left toward his heart, indicating that a sharp object had been jammed forcefully between the second and third ribs. Another stab wound was observed in the upper back. The pathologist concluded that Kirtland was stabbed at least twice and maybe more with an object shaped like a butcher knife. The pathologist testified that Kirtland’s cause of death was as the result of the two noted injuries, particularly the one in the front of the chest which caused damage to his left heart and lung and most likely was the fatal wound.

¶ 13. Hope identified Bailey in a photo lineup. At the time of his identification, Bailey was serving time for a marijuana charge. Tharpe was later detained and questioned and confessed to the events surrounding Kirtland’s murder. Thereafter, Bailey and Tharpe were charged with murder. Odell Evans and Donald Ray Osby, Sr. were each charged as an accessory-after-the-fact. Tharpe pled guilty to the lesser charge of accessory-after-the-fact. After a jury trial, Bailey was convicted of murder and sentenced as an habitual offender to life in prison without parole.

LAW AND ANALYSIS

I. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A GUILTY VERDICT.

¶ 14. Issues I, III and IV challenge the weight and sufficiency of the evidence and will be discussed together. Bailey argues that the guilty verdict is against the overwhelming weight of the evidence and that the evidence was insufficient to sustain the verdict.

A. Sufficiency of the Evidence

¶ 15. When a challenge is made to the verdict based upon the sufficiency of the evidence by a motion for a directed verdict or for a judgment notwithstanding the verdict, the inquiry is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If the evidence fails to meet this test, then it is insufficient to support the conviction. Id. We are not to ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Rather, the relevant question is, when viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 16. Pursuant to section 97-3-19(l)(a) of the Mississippi Code Annotated (Rev. 2006), the State was required to prove beyond a reasonable doubt that Bailey: (1) killed Kirtland; (2) without authority of law; and (3) with a deliberate design to bring about Kirtland’s death. Bailey contends that there was no physical evidence to prove he murdered Kirtland. Considering the evidence and relevant testimony in the light most favorable to the State, we disagree.

¶ 17. Hope, Kirtland’s wife, made an in-court identification of Bailey as the man with whom Kirtland had argued after giving Bailey and Tharpe a ride home on the night in question. She verified that all parties were drinking that night and that she left the home because Kirtland was “acting strange.” The next day, Hope filed a missing person’s report in which she reported that Kirtland was last seen in the company of Bailey and Tharpe. She also noted in the report that Kirtland was wearing shorts with a Sherwin-Williams logo.

¶ 18. Detective Chayo Ing, of the Gulf-port Police Department, testified that she assembled a photographic lineup containing a photo of Bailey and others and presented the lineup to Hope. Hope identified Bailey from the lineup as the man whom she saw in Kirtland’s van and as the last person she saw with her husband. Detective Ing also obtained a statement from Tharpe. At trial, Ing stated that Tharpe did not immediately disclose any information about the killing, but eventually Tharpe told Ing that she was worried about what was going to happen to her if she disclosed information because she was present and “knew exactly what had occurred.” Ing said that Tharpe then identified Bailey as the killer.

¶ 19. Louisiana Deputy Wing-field testified that he received an anonymous tip naming Bailey as the killer of an unknown white man in Gulfport, Mississippi, and that Bailey had buried this man in Bailey’s backyard. Bailey claims that the testimony of Wingfield was hearsay and incompetent. However, we note that Bailey made no objection as to hearsay during Wingfield’s testimony, and Bailey declined to question Wingfield on cross examination. An appellate court is under no obligation to review an assignment of error when no objection is made at trial. Hampton v. State, 910 So.2d 651, 656(¶ 18) (Miss.Ct.App.2005) (citing Caston v. State, 823 So.2d 473, 503 (¶ 102) (Miss.2002)). A specific and contemporaneous objection to the admission of the hearsay testimony must be made at the admission of the evidence in order for the admissibility to be considered on appeal. Id. Therefore, any objections Bailey had to Wingfield’s testimony as hearsay are waived.

¶20. Detective Craig Peterson of the Gulfport Police Department testified that upon receiving the information from Wing-field regarding the anonymous tip, he obtained a search warrant and conducted a search of Bailey’s premises. Peterson stated that dogs trained in locating cadavers searched the area and each separately designated the same spot which was later excavated and contained the remains of Kirtland.

¶ 21. Tharpe’s landlord, John L. Box, testified that Tharpe rented from him the house where the body was found and that he was aware that Bailey lived there with Tharpe.

¶ 22. Detective George Chaix was one of the officers who assisted in exhuming Kirtland’s body from Bailey’s backyard. He testified that he saw a Sherwin-Williams logo on Kirtland’s shorts and later confirmed that the missing person’s report described a similar pair of shorts that Kirtland had been wearing on the night of his disappearance.

¶ 23. Donald Ray Osby’s testimony further implicated Bailey. Osby said that Bailey picked him up and told him he wanted to dig a hole for a dog. Odell Evans was also present. The men went to Bailey’s house and dug a grave. Osby said he never saw a dog, but he did see “the heel of a human,” with the rest of the body covered underneath a white sheet. Bailey argues that Osby did not identify Bailey as the killer. While this is true, Osby did provide details about Kirtland’s grave and that he dug the grave per Bailey’s instructions. Osby also verified Tharpe’s testimony that Bailey told Evans to dispose of Kirtland’s van.

¶24. Dr. Paul McGarry, the forensic pathologist who performed Kirtland’s autopsy, testified that Kirtland sustained a cut on the upper edge of the third rib going downward and to the left toward his heart. Dr. McGarry said the wound indicated that a sharp object had been jammed forcefully between the second and third ribs. He noted a second stab wound in the upper back which was also made by a sharp object. Dr. McGarry testified that Kirtland’s cause of death was the result of the stab wounds. Bailey argues that Dr. McGarry’s testimony refutes Tharpe’s version of events in that Dr. McGarry testified that there was some skin which covered the abdomen and went around the side to the buttocks in which he detected no stab wounds. However, the substance of Tharpe’s testimony was that Bailey stabbed Kirtland twice, once in the chest and once in his side. The fact that Tharpe said she saw “intestines and things come out” after the second knife blow does not take away from her testimony that Bailey stabbed Kirtland twice. Dr. McGarry said that he could not say exactly how many wounds there were because of the condition of the body, but that he did know there were at least two and that the one which was in the chest would have ultimately caused Kirtland’s death.

¶ 25. Bailey only called his nephew, Leonard Buckley, whom Tharpe said was at the home when the killing occurred, as a witness. Buckley, who was in jail on a drug charge at the time of his testimony, said he knew nothing about the killing of Kirtland. He said he lived with Bailey and Tharpe at the time of the murder but denied any knowledge of the events surrounding that night.

¶ 26. When we consider the relevant testimony in a light most favorable to the State, we find that there was sufficient proof for a jury to find beyond a reasonable doubt that Bailey murdered Kirtland.

B. Weight of the Evidence

¶ 27. Bailey further argues that the weight of the evidence does not support a guilty verdict. “Matters regarding the weight and credibility of the evidence are to be resolved by the jury.” McClain v. State, 625 So.2d 774, 778 (Miss.1993). Bailey filed a motion for a new trial, which was denied. A motion for a new trial is addressed to the discretion of the trial court. Bush, 895 So.2d at 844(¶ 18). The motion should be granted only if the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Id. On review of the denial of a motion for a new trial, we view the evidence in the light most favorable to the verdict, and will reverse only in exceptional cases where the evidence preponderated heavily against the verdict. Id.

¶ 28. Based on the evidence discussed above, we find that a reasonable jury could have found Bailey guilty of murder. Accordingly, we find this issue to be without merit.

II. WHETHER THE TESTIMONY OF THARPE WAS INSUFFICIENT TO SUPPORT A GUILTY VERDICT.

¶ 29. In this claim of error, Bailey contends that the only evidence to support the charge of murder against him was the testimony of his alleged accomplice, Tharpe. Bailey cites the general rule in Mississippi that the uncorroborated testimony of an accomplice may be sufficient to sustain a conviction. Doby v. State, 532 So.2d 584, 591 (Miss.1988). However, the general rule is inapplicable if the testimony is unreasonable, self-contradictory, or substantially impeached. Flan agan v. State, 605 So.2d 753, 758 (Miss.1992). Further, Bailey argues that our courts have held that the uncorroborated testimony of an accomplice “should be viewed with great caution and suspicion.” Black v. State, 336 So.2d 1302, 1303 (Miss.1976) (citing Hutchins v. State, 220 So.2d 276 (Miss.1969)).

¶ 30. We disagree with Bailey’s conclusions applying the law, the first being that Tharpe was an accomplice to the murder of Kirtland. Our supreme court has described an accomplice as “a person who is implicated in the commission of the crime.” Slaughter v. State, 815 So.2d 1122, 1134(¶ 66) (Miss.2002). In other words, if the evidence gives a reasonable inference that the person may have been a co-perpetrator or the sole perpetrator, then the person is an accomplice. Id. (quoting Williams v. State, 729 So.2d 1181, 1188(¶ 31) (Miss.1998)). On the other hand, an accessory-after-the-fact has been defined as “a person assisting one who has completed the commission of a felony to avoid being apprehended, arrested, convicted, etc.” Chase v. State, 645 So.2d 829, 851 (Miss.1994).

¶ 31. No evidence was shown that Tharpe agreed with Bailey to murder Kirt-land, that she planned the murder, that she helped Bailey stab Kirtland or that she encouraged Bailey at any time during the murder. The evidence does demonstrate how Tharpe helped Bailey clean up his bloody clothes, served as lookout during Kirtland’s burial and did not notify authorities of the murder until police confronted her more than a year later with the evidence. It is clear that Tharpe’s actions assisted Bailey after the murder and that her silence allowed Bailey to avoid being apprehended and punished. Thus, Tharpe’s actions are considered those of an accessory-after-the-fact, the charge to which she pled guilty.

¶ 32. Assuming, arguendo, that Tharpe was an accomplice, we find that her testimony about the murder was corroborated. First, the forensic pathologist corroborated Tharpe’s testimony of Kirtland having been stabbed. Second, Wingfield testified about information that he received through a tip identifying Bailey as the murderer and stating that Bailey had buried Kirt-land in his backyard. Hope also verified Tharpe’s testimony as to Bailey’s and Tharpe’s presence in the household on the night of the murder and also about the conversation between her and Tharpe about their mutual employment with the Waffle House. Hope further identified Bailey as the last person she saw with Kirtland and stated that they were quarreling when she left the home. Osby testified that Bailey asked him to dig a hole for a dog and that he never saw a dog but did see the heel of a human who was covered by a white sheet. Osby also testified that Evans picked him up after the digging in a white van. This corroborates Tharpe’s testimony that Bailey told Evans to dispose of the van. Therefore, this issue is without merit.

V. WHETHER THE TRIAL COURT ERRED BY DENYING THE TESTIMONY OF DEFENSE WITNESS CHAIX WHOSE TESTIMONY WAS ESSENTIAL TO BAILEY’S DEFENSE.

¶ 33. Bailey argues that the trial court committed reversible error when it excluded testimony from Detective Chaix about statements Chaix took from two inmates regarding Tharpe’s comments about the murder. Bailey sought to ask Chaix about his interview of the two inmates and maintains that Chaix’s testimony would impeach the testimony of Tharpe regarding the discussion she had with the inmates regarding the cause of Kirtland’s death. The prosecution objected stating that such testimony would be hearsay on hearsay, “and it would basically be Detective Chaix testifying to his recollection of what someone told him that someone else told them.” The court sustained the objection, ruling that the police officer was not the proper party to impeach Tharpe’s testimony. Bailey did not call the inmates to testify.

¶ 34. The standard of review for a trial court’s decision to admit or exclude evidence is abuse of discretion. Watts v. State, 936 So.2d 377, 382(¶ 16) (Miss.Ct.App.2006) (quoting Sturdivant v. State, 745 So.2d 240, 243(¶ 10) (Miss.1999)). “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. Rule 801(c). It follows then that hearsay is not admissible except in certain instances provided by law. M.R.E. Rule 802. We find that the trial court correctly refused to allow hearsay testimony from the officer regarding what the inmates told him that Tharpe said. Had Bailey wanted to inquire about these alleged statements, he should have called the inmates themselves to testify. This issue is without merit.

VI. WHETHER THE TRIAL COURT ERRED BY REFUSING JURY INSTRUCTION D-4.

¶ 35. Instruction D-4 was a cautionary accomplice instruction and reads as follows:

The Court instructs the Jury that the law looks with suspicion and distrust on the testimony of an alleged accomplice, and requires the jury to weigh same with great care and caution and suspicion. You should weigh the testimony from alleged accomplices, and passing on what weight, if any, you should give the testimony, you should weigh it with great care and caution and look upon it with distrust and suspicion.

¶ 36. The State objected to the instruction, pointing out that Tharpe pled guilty to accessory-after the-fact and, therefore, could not be considered an accomplice. The prosecutor said that an accomplice is someone who knowingly, voluntarily and with common intent with the principal offender unites in the commission of the crime. Tharpe did not fit this definition. The court refused the instruction finding that no witness fit the description of an accomplice.

¶ 37. As we have stated in Issue II, Tharpe was not an accomplice. In Smothers v. State, 756 So.2d 779, 787(¶ 23) (Miss.Ct.App.1999), we held that “[a] cautionary instruction about accomplice testimony is not required unless there is a reasonable inference that the witness is an accomplice.” The rule for appellate review of the grant or denial of a cautionary instruction is abuse of discretion. Wheeler v. State, 560 So.2d 171, 172-75 (Miss.1990). To determine if the trial court erred, we should consider: (1) whether there was accomplice testimony, and (2) whether that testimony was corroborated. Smothers, 756 So.2d at 787(¶ 22). Tharpe was an accessory-after-the-fact, not an accomplice. She was the lookout during the burial of the victim, she helped Bailey clean his bloody body, she saw Kirtland lying dead by her truck and she kept quiet about the murder for more than a year until she was confronted by police. No accomplice instruction was needed. This issue is without merit. Accordingly, we affirm the trial court’s conviction of Bailey for the murder of Kirtland.

¶ 38. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER WITHOUT PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

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

      . Evans did not testify at trial and at the time of the writing of this opinion, has not been apprehended.