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

text:
    Nigel Jerome McCLAIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2004-KA-00152-COA.
    Court of Appeals of Mississippi.
    Sept. 6, 2005.
    Rehearing Denied Jan. 24, 2006.

      Jeffrey Lynn Ellis, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before BRIDGES, P.J., MYERS and CHANDLER, JJ.
   BRIDGES, P.J., for the Court.

¶ 1. Nigel Jerome McClain was indicted by a grand jury in the Circuit Court of Forrest County for one count of sexual battery and a second count of felonious child abuse, and after hearing all the evidence and arguments of counsel, a jury convicted him on both counts. McClain was sentenced to a term of forty (40) years for sexual battery and a term of twenty (20) years for felonious child abuse on October 7, 2003. McClain subsequently filed a post-trial motion to set aside the jury verdict, or in the alternative, for a new trial; however, the motion was denied by the circuit court. Aggrieved by the denial, McClain has effectuated this appeal and presents the following two issues for our review:

I. DID THE TRIAL COURT ERR IN ALLOWING THE STATE’S EXPERT TO TESTIFY AND RENDER OPINIONS OUTSIDE HIS AREA OF EXPERTISE?

II. DID THE TRIAL COURT ERR BY ALLOWING HEARSAY TESTIMONY OF DR. GAUDET REGARDING THE TREATMENT ADMINISTERED TO THE CHILD WHILE A PATIENT AT THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER AND IN ALLOWING THE HEARSAY TESTIMONY OF DR. GAUDET REGARDING THE OPINIONS OF PHYSICIANS WHO CARED FOR THE CHILD WHILE A PATIENT AT SAID MEDICAL CENTER?

Finding McClain’s argument to be without merit, we affirm.

FACTS

¶ 2. On February 3, 2003, E.B. testified that she left her home at 7:45 a.m. to go to work. When she left her home, her three-year-old son Aaron was asleep in his room, and McClain was asleep in the couple’s bed with her eight-month-old daughter Ashley. E.B. further testified that she did not change Ashley’s diaper before she left for work. McClain stated that he awoke around 10:00 a.m., and began gathering the children’s things because his cousin, Martha Young, was coming to pick them up. Young testified that she arrived at the home between 10:00 a.m. and 11:00 a.m., and that she helped McClain dress the children. Young testified that when she changed Ashley’s diaper that morning, the child had a runny bowel movement. Young further testified that she did not see any marks or bruises on the child at any point that day. Young, McClain, and the children left E.B.’s home and.went to Young’s house, from which Jermell Young, Nigel McClain, Rochelle McClain, and the children departed for Marshall Durbin between 12:00 p.m. and 12:30 p.m. Rochelle McClain testified that she remained in the car with the children the entire time Nigel McClain and Jermell Young were inside Marshall Durbin. Rochelle McClain further testified that she fed and changed Ashley while in the car at Marshall Dur-bin. When the men returned to the car around 3:00 p.m., the group returned to Young’s house, where they remained until it was apparent that something was wrong with Ashley. Nigel and Rochelle McClain took the child with them to pick up E.B. at her home, from which the group proceeded to Forrest General Hospital.

¶ 3. Dr. John Wells Gaudet was the State’s expert witness in the field of pediatric medicine. Dr. Gaudet saw the child at Forrest General Hospital on the day in question. In his testimony, Dr. Gaudet described the child’s physical condition, which consisted of marks on her chest and multiple bruises. Dr. Gaudet also gave testimony regarding the child’s treatment at the University of Mississippi Medical Center (“UMMC”).

¶4. Officer Mark Allen Berry of the Hattiesburg Police Department testified that he received a call to go to the Forrest General Hospital on February 3rd, regarding the possible abuse and sexual abuse of an infant. Officer Berry advised McClain of his Miranda rights, after which McClain signed a form explaining his Miranda rights and a waiver of these rights. McClain was subsequently indicted, tried by a jury of his peers, and convicted of the crimes of sexual battery and felonious child abuse. On October 7, 2003, McClain was sentenced to a term of forty (40) years on the count of sexual battery and a term of twenty (20) years on the count of felonious child abuse, with the sentences to run concurrently in the custody of the Mississippi Department of Corrections.

LAW AND ANALYSIS

¶ 5. According to this Court’s standard of review, the admissibility of evidence rests within the trial court’s discretion. Wade v. State, 583 So.2d 965, 967 (Miss.1991). Unless judicial discretion is abused, the reviewing court will not reverse the trial court’s ruling. Lewis v. State, 573 So.2d 719, 722 (Miss.1990). Furthermore, the qualifications of an expert in a field of scientific knowledge is left to the sound discretion of the trial judge, and thus, the judge’s determination will not be reversed unless it clearly appears that the witness is not qualified. Wilson v. State, 574 So.2d 1324, 1334 (Miss.1990).

I. EXPERT TESTIMONY

¶ 6. McClain claims that the trial court erred in allowing the State’s expert witness, Dr. Gaudet, to testify and render opinions outside his area of expertise. McClain claims that the doctor’s testimony was inadmissible, as the record is devoid of any evidence that would support the proposition that Dr. Gaudet had any training or experience in the forensic analysis of footprints or shoe prints. Additionally, McClain argues that the doctor’s testimony is the only evidence from which the jury could conceivably conclude that the injuries sustained by Ashley were intentional rather than accidental, and thus, the felonious child abuse conviction should be reversed.

¶ 7. The direct testimony of Dr. Gaudet regarding the alleged footprint reads as follows:

By Mr. Gaddis:

Q. Doctor, let me ask some questions about that photograph, and in particular the chest area of the child. Did you find anything peculiar about the bruising of the child’s chest?
A. Yes.
Q. Would you explain that to the jury, please.
A. One of the things I noticed immediately upon assessing the child is she had multiple bruises on her chest and abdomen. There’s not only some bruising but some lighter markings that were evident. It doesn’t show up in the photograph. Can they see the photograph?
Q. They can see the photograph over here. If you could, point to where you saw it.
A. It doesn’t show up in the photograph, but there was an [unjusual appearance to her bruising. Essentially, she had a footprint on her chest and abdomen.
Mr. Davis: Objection, Your Honor. Objection. Until he can establish how he arrived at that opinion, Your Honor, then I’m going to have to object because there has been no evidence offered that would say this gentlemen qualifies to make that opinion.
The Court: I’m not following your objection, Mr. Davis. Are you saying you’re objecting because there’s no evidence to indicate how he arrived at that conclusion?
Mr. Davis: Yes, Your Honor. I’m basically saying that he is making a statement to facts which has actually not been established.
The Court: I think I’m going to sustain the objection. I think the objection is to the point, Mr. Gaddis.
Mr. Gaddis: I understand. I’ll lay some more predicate.
By Mr. Gaddis:
Q. Dr. Gaudet, do you know what a footprint looks like?
A. Yes.
Q. Do you know what the shape of a shoe is?
A. Yes.
Q. Describe the shape of the bruises on the chest of [Ashley].
A. The bruising, starting at the area of the belly button going a little bit higher in the middle of her chest, was in the shape similar to that of the bottom of a shoe. It had more of an oblong top and then a little indentation kind of in the middle and then sort of a semicircular base about here ... And there were little ridges, the little lines.
Q. Corresponding to what on a shoe?
A. Well, it’s analogous to the sole of a shoe that the markings within this bruise and red area had little lines that were similar to those that you might see on the sole of a shoe.
Q. Was it a linear pattern, design?
A. Yeah, little wavy lines. Yes.
Mr. Gaddis: Your Honor, I didn’t mark this, could I have it marked at this time?
The Court: Yes. S-4 has not been marked?
Mr. Gaddis: It was admitted but not marked.
The Court: Have it marked.

(PHOTOGRAPH MARKED AS STATE’S EXHIBIT 4 AND RECEIVED INTO EVIDENCE)

After the State laid more predicate, the counsel for McClain did not renew his objection to Dr. Gaudet’s testimony. Rule 103(a) requires “a timely objection ... stating the specific ground of objection, if the specific ground was not apparent from the context ...” when the ruling is one admitting evidence. M.R.E. Rule 103(a). The Mississippi Supreme Court has held that an objection must be made with specificity to preserve error for appeal, and therefore, failure to object on grounds that Dr. Gaudet was not an expert in the area of forensic analysis of a shoe print, waives the argument on appeal. Oates v. State, 421 So.2d 1025, 1030 (Miss.1982). Accordingly, this issue is procedurally barred.

¶ 8. However, for the sake of argument, we will address the merits of the claim. Under Rule 702 of the Mississippi Rules of Evidence, Dr. Gaudet is allowed to assist the jury in understanding the evidence by presenting his opinion of the child’s injuries so long as he is “qualified as an expert by knowledge, skill, experience, training, or education .... [and] (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” M.R.E 702. Under the guidance of Rule 702, Dr. Gaudet could explain the nature of the injury to the child and the instrument which may have caused the bruising. In McGowen v. State, a forensic pathology expert stated the shape of a mallet was consistent with the shape of the wounds on the victim’s head after comparing photographs depicting the wounds. McGowen v. State, 859 So.2d 320, 335 (¶54) (Miss.1993). McGowen argued that the expert witness was not a tool-mark comparison expert, and thus, the expert’s testimony was improper. Id. However, the Mississippi Supreme Court held that a forensic pathology expert may offer an expert opinion at trial about whether a particular instrument in evidence was consistent with particular injuries to a victim. Id. at 336 (¶ 57). In Dwplantis v. State, the court refused to say the trial court abused its discretion when it allowed a forensic pathologist to testify in a murder trial that the wounds suffered by the victim were inflicted by an object similar to bolt cutters recovered from the victim’s truck. Duplantis v. State, 708 So.2d 1327, 1338-39 (¶ 45) (Miss.1998). In the present case, Dr. Gaudet’s testimony as a pediatrician simply described the shape of the injury on Ashley’s body, and his testimony was probative of the causes of injuries to the child. Therefore, we cannot say the trial court abused its discretion in allowing said' testimony at trial.

II. HEARSAY TESTIMONY

¶ 9. McClain claims that the extent of Dr. Gaudet’s treatment of Ashley was triage, resuscitation, and stabilization so she could be transported to UMMC, and therefore, his testimony regarding the treatment administered to Ashley while at UMMC is hearsay, as he lacks personal knowledge of the condition and treatment of her internal injuries after she left his care at Forrest General Hospital. Furthermore, McClain argues that the State should have called a treating physician from UMMC to testify to Ashley’s injuries and treatment, instead of allowing Dr. Gaudet to testify with his notes, which consisted of his conversations with the other treating physicians and Ashley’s medical records. McClain claims that if, in the alternative, the court holds that this error was not preserved by objection at trial, the Court should consider the erroneous admission of the testimony to be plain error. The record does not reflect any objection to the admission of Dr. Gaudet’s testimony, aided by his notes, regarding Ashley’s internal injuries and the surgical treatment thereof. As M.R.E. 103(a) requires a timely objection to preserve error for appeal, failure to object on grounds that the testimony is hearsay, waives the argument on appeal. Oates, 421 So.2d at 1030. Finding this issue to be procedurally barred for failure to make a contemporaneous objection, McClain now relies on the doctrine of plain error to address this issue.

¶ 10. “A defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.” Foster v. State, 639 So.2d 1263, 1289 (Miss.1994). The Mississippi Supreme Court, on occasion when circumstances warranted, has noted the existence of errors in trial proceedings affecting substantial rights of the defendants, although they were not brought to the attention of the trial court. Grubb v. State, 584 So.2d 786, 789 (Miss.1991). The plain error doctrine has been construed to include anything that “seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

¶ 11. Mississippi Rule of Evidence 703 regarding the basis of opinion testimony by experts states that “[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” M.R.E. 703. Mississippi Rule of Evidence 803(4), which states the exceptions to the hearsay rule, allows “[statements made for the purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements made under circumstances substantially indicating their trustworthiness,” regardless of the availability of the declarant. M.R.E. 803(4). The comment to Rule 803(4) states that the rule eliminates any distinction made between narrative statements made to a treating physician and those made to an examining physician who was retained for use as an expert witness in litigation and permits statements made both for treating and diagnostic purposes. Therefore, the statements made to Dr. Gaudet by the other treating physicians are admissible. Additionally, the medical records included in Dr. Gaudet’s testimony would have otherwise been admissible under Rule 803(6), as the medical records would have been presumed reliable since they were kept in the ordinary course of business. M.R.E. 803(6). Although Dr. Gaudet was not physically present during the child’s treatment and surgical operations, which took place after she left his immediate care, he consulted with her treating physicians at UMMC regularly, and after discussing her treatment with the UMMC physicians and reviewing her medical records, he testified to the treatment of her injuries without objection. For the foregoing reasons, the admission of the testimony cannot be viewed as plain error.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF CONVICTION OF COUNT I OF SEXUAL BATTERY AND SENTENCE OF FORTY YEARS AND COUNT II OF FELONIOUS CHILD ABUSE AND SENTENCE OF TWENTY YEARS, WITH SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.

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

      . For purposes of anonymity, the names of E.B's children have been changed.


source: Caselaw Access Project

author: ISHEE, J., for the Court.

license: Public Domain

text:
    Nathaniel BRENT a/k/a Nathaniel T. Brent, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-02607-COA.
    Court of Appeals of Mississippi.
    Oct. 4, 2005.
    Rehearing Denied Feb. 21, 2006.

      Thomas M. Fortner, Jackson, Alice Theresa Stamps, Lynn Watkins, attorneys for appellant.

      Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before KING, C.J., MYERS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Nathaniel Brent was convicted of cocaine possession after jury trial in Hinds County Circuit and Circuit Court Judge Bobby DeLaughter sentenced Brent as a habitual offender to life without the possibility of parole in the custody of the Mississippi Department of Corrections. Brent now appeals his conviction. Finding error, affirm in part and reverse and remand in part.

FACTS

¶ 2. Nathaniel Brent was arrested as the result of a search warrant issued on January 16, 2001 by then County Court Judge Bobby DeLaughter and executed in the early morning hours of January 17, 2001. Sheriffs deputies arrested Brent and later testified that he put a plastic bag in his mouth as the officers approached him. Officer Stacy Thomas placed his thumb under Brent’s jaw, forcing him to spit out the bag. Analysis of the substance in the bag by the Mississippi Crime Laboratory determined that the substance in the bag contained 1.16 grams of cocaine. Brent was indicted for cocaine possession and tried on September 29-30, 2003. The jury returned a verdict of guilty on September 30 and Brent was sentenced as a habitual offender pursuant to Mississippi Code. Annotated § 99-19-83 (Rev.2000). Brent was sentenced to life without the possibility of parole. Aggrieved by his conviction, Brent now asserts the following errors on appeal: (1) whether the trial court erred when the trial judge denied Brent’s motion for recusal; (2) whether the trial judge erred by actively assuming a role in establishing the validity of a search warrant signed by his own hand in his prior capacity as a county court judge; (3) whether the trial court erred in denying Brent’s motion to learn the identity, and consideration, if any, of the confidential informant who provided the basis of the search warrant; (4) whether the trial court erred in allowing into evidence the testimony of Colonel Ed Swinney and denying Brent the opportunity of surrebuttal; and (5) whether the verdict was insufficient as a matter of law to support the conviction, or alternatively, against the overwhelming weight of the evidence.

ISSUES AND ANALYSIS

I. Whether the trial court erred by denying Brent’s motion for recu-sal.

¶ 3. Brent argues on appeal that Judge DeLaughter committed reversible error by denying Brent’s motion for De-Laughter’s recusal. Canon 3(E) of the Code of Judicial Conduct states in relevant part: “[j]udges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or as otherwise provided by law....” Canon 3(E)(1) Code of Judicial Conduct. The disqualification includes situations where a judge has personal knowledge of “disputed evidentiary facts concerning the proceedings.” Canon 3(E)(a). The Supreme Court of Mississippi has adopted an objective test to determine when a judge should recuse himself. McFarland v. State, 707 So.2d 166, 180(¶ 52) (Miss.1997). “A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality.” Id. (quoting Green v. State, 631 So.2d 167, 177 (Miss.1994)); see also Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990) (discussing standard for judicial recusal). Furthermore, the refusal of a judge to recuse himself will be reviewed by the appellate court under the standard of abuse of discretion. Steiner v. Steiner, 788 So.2d 771, 775(¶ 9) (Miss.2001).

¶ 4. Prior to his selection as a Hinds County Circuit Court Judge, Judge De-laughter served as Hinds County Court Judge. While in his capacity as county court judge, Judge DeLaughter issued the search warrant that lead to Brent’s arrest, and ultimately to the subsequent indictment that brought Brent before Judge De-Laughter in his current capacity as circuit court judge. An attack on the validity of the warrant signed by Judge DeLaughter became a major element of Brent’s defense. Also of import is the fact that Judge Delaughter once served the State of Mississippi with distinction as a Hinds County Assistant District Attorney, and prosecuted Brent on a charge of aggravated assault, an offense which was used to charge Brent as a habitual offender. At trial, Judge DeLaughter stated in the record that had no personal bias or prejudice, remembered no facts concerning the proceedings, and could not even remember Brent from prior encounters.

¶ 5. In Jenkins v. State, the trial judge had been a prosecuting attorney at the time of the appellant’s indictment. Jenkins, 570 So.2d at 1191. The Mississippi Supreme Court held that since the judge acted as both accuser and the trier of facts, the judge should have recused himself. Id. at 1192-93; see Hood v. State, 523 So.2d 302, 311 (Miss.1988) (condemning any practice whereby accuser may also be trier of fact).

¶ 6. In the case before us, Judge De-Laughter, in his capacity as trial court judge, was essentially asked to review whether Judge DeLaughter, in his former capacity as county court judge, had a substantial basis for concluding that there was a fair probability that contraband or evidence of crime would be found on the premises to be searched. Here, the issuing and reviewing judges are one and the same. The problem created by this scenario is patently obvious. Not only might a reasonable person harbor doubts about the impartiality of the judge in this situation, we find that any reasonable person should have such doubts. The trial judge committed manifest error in failing to re-cuse himself, despite his subjective pronunciations that he held no bias against Brent. According to the objective “reasonable person” test established by Mississippi precedent, we must reverse this case and remand it for trial with a new judge.

II. Whether the trial judge erred by actively assuming a role in establishing the validity of a search warrant signed by his own hand in his prior capacity as a county court judge.

¶ 7. Brent asserts in his second assignment of error that the trial judge erred by taking an active role in defending the validity of the search warrant in question. Brent asserts that Judge DeLaughter aggressively questioned detectives on behalf of the search warrant he had issued some two years earlier. Rule 614(b) of the Mississippi Rules of Evidence (“M.R.E.”) provides that “[t]he court may interrogate witnesses, whether called by itself, or a party.” A judge may question a witness so long as the questioning is “for the purpose of aiding the jury in understanding the testimony.” United States v. Saenz, 134 F.3d 697, 702 (5th Cir.1998). The supreme court “will not hesitate to reverse where the trial judge displays partiality, becomes an advocate, or in any significant way, conveys to the jury the impression that he has sided with the prosecution.” Layne v. State, 542 So.2d 237, 242 (Miss. 1989) (citing West v. State, 519 So.2d 418, 422-24 (Miss.1988)).

¶ 8. A brief examination of the trial transcript reveals that Judge DeLaughter exceeded his authority by asking questions that go beyond clarifying questions as contemplated by M.R.E. 614. A portion of the examination by the court is as follows:

[By Judge DeLaughter]
Q. First of all, Investigator Spooner, at this time I don’t want you to reveal the name, but as of the time that you obtained the warrant in this matter, did you know the identity of the confidential informant or was this an anonymous tip?
A. I did know the identity of the informant.
Q. Had you used this informant before?
A. Yes, sir.
Q. Had they [sic] provided information in the past that had proven to be correct?
A. Yes, sir.
Q. You had indicated earlier that on Exhibit 1, the affidavit, there is no address listed for the place to be searched. Why was that?
A.: There was no address posted on the actual residence to be searched.
Q. And did you come upon that knowledge before or after you obtained the warrant?
A. The knowledge of the actual address was after we executed the search warrant.

It is clear from this exchange, which continues for almost two full pages of transcript, that the trial court judge moved from his seat of impartiality by undertaking this line of questioning, and in essence fell into the realm of the prosecutor. As a prosecutor, Judge DeLaughter must have questioned hundreds, if not thousands of witnesses regarding the validity of search warrants in his career as an assistant district attorney. However, in his role as the circuit court judge, such questioning is forbidden. We find that allowing this line of questioning constitutes reversible error.

III. Whether the trial court erred in denying Brent’s motion to learn the identity, and consideration, if any, of the confidential informant who provided the basis of the search warrant.

¶ 9. Brent next asserts that the trial court erred in denying his motion to learn the identity of the confidential informant involved in the case, and consideration, if any, given to the informant. Brent argues that it was reversible error to deny his motion to ascertain the identity of the prosecution’s “star” witness. See Morgan v. State, 703 So.2d 832, 841 (Miss.1997). We have previously stated that the identity of an informant who participated in a crime must be given to the defendant upon request. Bracey v. State, 724 So.2d 1028, 1033 (¶ 24) (Miss.Ct.App.1998). However, the Mississippi Supreme Court has stated that “an accused is not automatically entitled to disclosure of the identity of a confidential informant.” Dowbak v. State, 666 So.2d 1377, 1384 (Miss.1996) (citing Middlebrook v. State, 555 So.2d 1009 (Miss.1990)). In Esparaza v. State, the Mississippi Supreme Court held that the identity of a confidential informant need not be disclosed if the informant did not witness the crime or will not be called as a witness at trial. Esparaza v. State, 595 So.2d 418, 424 (Miss.1992). The court stated that merely providing information that established probable cause to support a search warrant was not enough to require the informant’s disclosure, stating “that degree of connection with the crime charged constitutes too tenuous a link to justify disclosing the informant.” Id.

¶ 10. In the case sub judice, prior to Brent’s arrest, the confidential informant accompanied an officer to a residence for the purchase of drugs from Brent. The purchase became the later grounds for the probable cause justifying the search warrant. We find that the facts of this case fit neatly into our Esparaza precedent, as the informant at issue merely provided reliable information of Brent’s location and possession of cocaine. Therefore, this issue is without merit.

IV. Whether the trial court erred in allowing into evidence the testimony of Colonel Ed Swinney and denying Brent the opportunity of surrebuttal.

¶ 11. Brent’s next assertion of error is twofold. First, Brent asserts that the trial court erred in allowing the testimony of Colonel Ed Swinney to bolster the reputation of officers who had testified prior to Swinney. Swinney testified that he had known the two officers who had testified prior to him for several years, and that he had never known the men to be untruthful. Second, Brent argues that the trial court erred in disallowing Brent the opportunity for surrebuttal.

¶ 12. The admission of evidence at trial falls within the sound discretion of the trial judge. Stewart v. State, 881 So.2d 919(¶ 17) (Miss.Ct.App.2004). The decision to admit or exclude evidence will not be reversed absent an abuse of discretion. Id. Turning to the propriety of Swinney’s testimony, we restate the general rule of evidence that “evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence.” M.R.E. 608(a)(2).

¶ 13. At trial, the defense raised the issue of whether, according to Brent, he had been roughly handled during the raid on his premises. Brent argued at trial that the testimony of the officers at trial conflicted with his own, and likewise, that the testimony of the officers may have had discrepancies as between each other. The trial court reasoned that since either the officers or Brent were correct in this regard, that Brent’s assertion that the testimony of the officers story was incorrect was necessarily an attack on the officers’ veracity. The trial court was logically correct in positing that when two parties tell fundamentally opposing stories one is being untruthful. While correct in some sense, this attempt to contradict a witness’s testimony is not the sort of character attack contemplated by M.R.E. 608. Simply pointing out the impossibility of one’s account, or discrepancies between accounts, is not the sort of attack on a witness’s character or reputation that warrants opening the door to bolstering testimony. As such, the admission of Swinney’s testimony was in error, and we must reverse on this ground. Having made this determination, the issue of the trial court’s disallowance of surrebuttal evidence is moot.

V. Whether the verdict was insufficient as a matter of law to support the conviction, or alternatively, against the overwhelming weight of the evidence.

¶ 14. Brent’s last assignment of error alleges that the verdict was insufficient as a matter of law to support the conviction, or alternatively, against the overwhelming weight of the evidence. Due to our holdings regarding Brent’s other assignments of error, and the necessity for remand of this matter, we decline to discuss this assignment of error.

¶ 15. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF COCAINE AND LIFE SENTENCE IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


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

text:
    Hoyt FORBES and Hilda Forbes, Appellants v. GENERAL MOTORS CORPORATION and Mack Grubbs Motors, Inc., Appellees.
    No. 2003-CA-01201-COA.
    Court of Appeals of Mississippi.
    Oct. 4, 2005.

      Wayne Dowdy, Magnolia, attorney for appellants.
    Gene D. Berry, Jackson, Paul V. Cassi-sa, Oxford, attorneys for appellees.
   GRIFFIS, J, for the Court.

MODIFIED OPINION ON MOTION FOR REHEARING

¶ 1. The Forbes’ motion for rehearing is denied. The original opinion is withdrawn and this opinion is substituted.

¶ 2. Hilda and Hoyt Forbes appeal a judgment granting a directed verdict in favor of General Motors Corporation (“GM”) in a products liability action brought pursuant to the Mississippi Products Liability Act, Mississippi Code Annotated Section 11-1-63 (Rev. 2002). The claim arises from an automobile accident in which the air bag in the 1992 Oldsmobile Delta 88 automobile Hilda Forbes was driving failed to deploy. We find that the circuit court properly granted GM’s motion for directed verdict, and we affirm.

FACTS

¶ 3. On December 15, 1997, Hilda Forbes and her three grandchildren were traveling to Columbia, Mississippi, in her 1992 Oldsmobile Delta 88. Mrs. Forbes was driving behind a 1981 Chevrolet Che-vette, which suddenly stopped and attempted to turn into a private driveway. Mrs. Forbes struck the Chevette from the rear. Both automobiles were damaged. The air bag in Mrs. Forbes’ automobile did not inflate.

¶4. As a result of the impact, Mrs. Forbes was propelled forward into the windshield. She suffered a subdural he-matoma. Dr. Howard Katz, a specialist in physical medicine, rehabilitation, and spinal cord injuries, testified by deposition that Mrs. Forbes suffered significant cognitive dysfunction and never completely recovered from the injury to her brain.

¶ 5. The air bag system and Mrs. Forbes’ automobile were manufactured by GM. The automobile was purchased from Mike Smith Motors, which subsequently was purchased by Mack Grubbs Motors, Inc. Angela Coleman was the driver of the 1981 Chevrolet Chevette.

¶ 6. On December 7, 2000, Hilda and Hoyt Forbes commenced this lawsuit in the Circuit Court of Hinds County, Mississippi. On December 15, 2000, they filed an amended complaint that added GM as a defendant. By agreement of the parties, venue was transferred to the Circuit Court of Marion County, Mississippi, where this case was tried before the Honorable R.I. Prichard, III, and a jury.

¶ 7. The plaintiffs rested their case on the third day of trial. The plaintiffs voluntarily dismissed Angela Coleman. Mack Grubbs Motors, Inc.’s motion for a directed verdict was granted, after the plaintiffs confessed the motion. GM moved for a directed verdict, and the plaintiffs confessed the following portions of the motion:

1. Plaintiffs failed to prove that the air bag deviated in a material way from GM’s specifications;
2. Plaintiffs failed to prove that the air bag was defective in design; and
3. Plaintiffs failed to prove that the air bag was defective because it failed to contain adequate warnings.

Judge Prichard then granted the remainder of GM’s motion for a directed verdict, finding that the plaintiffs failed to prove that their damages were proximately caused by an unreasonably dangerous and defective condition of the air bag system due to GM’s breach of an express warranty or other express factual representation upon which the plaintiffs justifiably relied in using the product.

¶ 8. The plaintiffs present two issues for this Court. First, did the trial court commit reversible error when it granted GM’s motion for directed verdict? Next, did the trial court abuse its discretion when it excluded evidence of other accidents?

STANDARD OF REVIEW

¶ 9. A motion for a directed verdict is authorized under Rule 50(a) of the Mississippi Rules of Civil Procedure. “The rule enables the court to determine whether there is any question of fact to be submitted to the jury and whether any verdict other than the one directed would be erroneous as a matter of law; it is conceived as a device to save the time and trouble involved in a lengthy jury determination.” M.R.C.P. 50 cmt. A motion for directed verdict “tests the legal sufficiency of the plaintiffs’ evidence. The Circuit Court — and this Court on appeal — are required to consider the evidence in the light most favorable to the plaintiffs ..., giving those plaintiffs the benefit of all favorable inferences that may reasonably be drawn from the evidence. Unless the evidence is so lacking that no reasonable jury could find for plaintiffs, the motion must be denied.” Bankston v. Pass Road Tire Center, Inc., 611 So.2d 998, 1003 (Miss.1992). A directed verdict is proper where the plaintiff fails to make a prima facie showing of the elements of his claim. Id. We review a judgment granting a directed verdict de novo. Fulton v. Robinson Indus., Inc., 664 So.2d 170, 172 (Miss.1995).

ANALYSIS

I. Did the trial court commit reversible error when it granted GM’s motion for directed verdict?

¶ 10. Mr. and Mrs. Forbes’ claim against GM is based on the Mississippi Products Liability Act, codified at Mississippi Code Annotated Section 11-1-63 (Rev.2002), which provides:

In any action for damages caused by a product except for commercial damage to the product itself:
(a) The manufacturer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i) 1. The product was defective because it deviated in a material way from the manufacturer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.

¶ 11. To prevail based on the theory of breach of express warranty, Mr. and Mrs. Forbes argue that they must prove by a preponderance of the evidence that at the time the air bag left GM’s control:

A. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and (Miss.Code Ann. § 11-1-63 (a) (i) (4))
B. The defective condition rendered the product unreasonably dangerous to the user or consumer; and (Miss.Code Ann. § 11 — 1—63(a)(ii))
C. The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought. (Miss. Code Ann. § ll-l-63(a)(iii)).

We will discuss these issues in a similar order.

A. Did the plaintiffs prove that the air bag breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product ?

¶ 12. To articulate the appellants’ argument, we quote the portion of their brief that describes the basis for their claim that the air bag breached an express warranty or failed to conform to other express factual representations upon which they justifiably relied in using the product.

When Mr. Forbes began searching for an automobile to purchase, he already knew that he wanted an automobile with an air bag. Mr. Forbes felt that the air bag was an important safety feature for any car, and he wanted something to protect Mrs. Forbes in the case of an accident. Mr. Forbes was aware that one of the special features of the 1992 Oldsmobile Delta 88 was an air bag. Mr. Forbes was familiar with General Motors’ representation that its air bag in the 1992 Oldsmobile Delta 88 would inflate in a fraction of a second when the automobile was involved in a frontal collision and the collision was “hard enough”. Mr. Forbes purchased the 1992 Oldsmobile' Delta 88, and he paid additional money to have the automobile equipped with an air bag.
Mr. Forbes was assured by General Motors’ representation in its owner’s manual that the 1992 Oldsmobile Delta 88 that he purchased was equipped with an air bag that would inflate as warranted. Mr. and Mrs. Forbes believed that an air bag would restrain Mrs. Forbes and protect Mrs. Forbes during an accident.

However, when Mrs. Forbes was involved in an accident on December 15, 1997 while driving the Oldsmobile Delta 88, the air bag did not inflate.

According to the General Motors’ owner’s manual for the 1992 Oldsmobile Delta 88 that was issued to Mr. and Mrs. Forbes, the 1992 Oldsmobile Delta 88 is equipped with an air bag or “Supplemental Inflatable Restraint System (SIR)”. In the owner’s manual for the 1992 Oldsmobile Delta 88, General Motors describes the SIR System as follows:

How the SIR System Works The “air bag” part of the SIR system is in the middle of the steering wheel. The SIR system is only for crashes where the front area of your vehicle hits something. If the collision is hard enough, the “air bag” inflates in a fraction of a second. It helps restrain the driver, and then it quickly deflates. Some gray “smoke” is normal when this happens, and some people have reported mild coughing and watery eyes from it. But all of these have been temporary. The “air bag” can give extra protection for the driver’s upper body.

¶ 13. Our review of the record reveals that the appellants’ recitation of the evidence is not entirely accurate. We, just as the trial court, must first identify the “express warranty” or “express factual representations” that were relied upon. Miss. Code Ann. § ll-l-63(a)(i)(4)(Supp.2004).

¶ 14. The plaintiffs claim that Mr. Forbes was assured by GM’s “representation that its air bag in the 1992 Oldsmobile Delta 88 would inflate in a fraction of a second when the automobile was involved in a frontal collision and the collision was ‘hard enough’. (Ex. 2, page 29 of owner’s manual).” This statement is incorrect for two reasons.

¶ 15. First, the evidence in the record does not support the statement that GM’s representatives made these statements. Mr. Forbes testified:

Now, this automobile that is the 1992 Oldsmobile made by General Motors? <y
Yes, sir. !>
Do you remember going to buy that? <£>
Yes, sir. t>
And did the automobile contain an air bag system? <£>
It was told to me that it did.
And was that important to you?
Yes, sir. I went to various lengths to have an automobile with an air bag in it and a seat belt that would work in case my wife needed it, if it ever come to an accident or something. And the salesman out there, he stressed to me that it was very important to have a seat belt and an air bag in that car. And so we paid extra money to get an air bag. We wanted an air bag. We hopefully had one, but I’ve never seen it.

¶ 16. The trial court correctly noted that these statements were made by representatives of Mike Smith Motors and not by representatives of GM. Accepting that these statements were by GM’s representatives, the only “express warranty” or “express factual representations” from this testimony was that the automobile had an air bag. The plaintiffs presented no evidence that the 1992 Oldsmobile Delta 88 automobile did not in fact have an operational air bag system. Thus, there was no evidence that these statements to Mr. Forbes would support the jury’s finding that GM “breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product.” Miss.Code Ann. § 11 — 1— 63(a)(i)(4)(Supp.2004).

¶ 17. Second, the plaintiffs point to the owner’s manual as the source of the “express warranty” or “express factual representation” that the air bag would “inflate in a fraction of a second when the automobile was involved in a frontal collision and the collision was ‘hard enough.’ (Ex. 2, page 29 of owner’s manual).” The problem with this argument is the absence of evidence that Mr. or Mrs. Forbes, “justifiably relied [on this] in electing to use the product.” Miss.Code Ann. § 11 — 1— 63(a) (i) (4) (Supp .2004).

¶ 18. Neither Mr. nor Mrs. Forbes testified that they ever read or relied on the owner’s manual, or the statement in the owner’s manual about the air bag, before they purchased the automobile or before her accident. Thus, we must consider whether a person may justifiably rely on an express warranty or express factual representation that they never read. Our consideration is guided by the recent supreme court decision in Palmer v. Volkswagen of America, Inc., 904 So.2d 1077 (Miss.2005). In Palmer, the supreme court held that “[t]he presence or absence of anything in an unread owner’s manual simply cannot proximately cause a plaintiffs damages.” Id. at (¶21). Although Palmer dealt with an inadequate warning/failure to warn case, it may also stand for the proposition that a person cannot justifiably rely on something they never read. The supreme court held that “this case does not involve plaintiffs who were misled by the manual. The plaintiffs in this case did not read the manual at all. Thus, they hardly can claim to have been harmed or misled by it.” Id. at (¶ 22). Similarly, Mr. and Mrs. Forbes cannot complain that this section of the owner’s manual was the “express warranty or ... other express factual representations upon which the claimant justifiably relied in electing t'o use the product.” Miss.Code Ann. § ll-l-63(a)(i)(4)(Supp.2004).

¶ 19. Indeed, there was no evidence that either Mr. or Mrs. Forbes relied on any express warranty or other factual representation by GM about the air bag before this accident. Id. See Fitzner Pontiac-Buick Cadillac, Inc. v. Smith, 523 So.2d 324, 327 (Miss.1988)(UCC case; no breach of express warranty where there was no reliance); Austin v. Will-Burt Co., 232 F.Supp.2d 682, 687 (N.D.Miss.2002)(summary judgment granted on express warranty claim where no proof of reliance).

¶ 20. We note that the appellants cite no case authority to support them arguments. Instead, they argue that there was sufficient evidence presented to prove that the collision was “hard enough” to inflate an air bag by presenting testimony from Danny Alexander, Major John Wayne To-lar and Jim Pachmeyer.

¶ 21. Danny Alexander was the owner of the 1981 Chevrolet Chevette that was involved in the accident. He was riding as a passenger in the Chevette at the time of the accident. He testified that the collision broke the passenger’s seat in the Che-vette and threw him into the trunk. An ambulance removed him from the Che-vette, and he was hospitalized.

¶ 22. Major John Wayne Tolar, of the Columbia Police Department, was at the scene of the accident. He testified that he had been Chief of Detectives for 24 years and had investigated numerous accidents. He viewed both automobiles involved in the accident and testified that the Che-vette was broken down to the rear back seat. He also testified that there was a “pretty good impact” between the automobiles. He thought “it was just unusual to me that this type of accident with this type of damage would have not deployed her air bags or her seat belts would not have kept her from hitting the windshield. I thought that was very unusual.”

¶23. Jim Pachmeyer, an employee at Houston Watts Body Shop and Repair Service, testified that he removed the Forbes’ automobile from the scene of the accident. He gave a detailed description of the damage sustained and the repairs that were made to the automobile. He testified that the air bag was not inflated. He replaced the hood and hood hinges, the front bumper assembly and its components, the right front impact absorber, the grill, the grill panel and its components, the front body radiator support, the freon and coolant, the front body vertical support, the windshield, the left front door, and the right quarter panel. The total cost of the repairs was $5,806.43. He testified that there were two air bag sensors on the 1992 Oldsmobile Delta 88, one mounted on the right of the radiator support and one on the left radiator support. Both air bag sensors were still connected, and the air bag did not deploy.

¶ 24. The appellants argue, and the dissent agrees, that this testimony establishes that the collision was “hard enough” to inflate the air bag. We, just as Judge Prichard, find nothing in this testimony that would establish that the air bag “breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product.” Miss.Code Ann. § 11 — 1— 63(a)(i)(4)(Supp.2004). The appellants offered no other evidence that would support a finding that the air bag did not perform as it was designed to perform. There is no evidence for us or a jury to conclude that the air bag did not perform as it was supposed to perform.

¶ 25. The appellants and the dissent argue that the central question in this case is — How hard is “hard enough?” To answer this question, a person must have scientific, technical or other specialized knowledge of air bags and their proper operation. Indeed, such person should have knowledge, skill, experience, training or education about the reliable principles and methods that are part of the air bag mechanism that was in Mrs. Forbes’ automobile. Here, the trial judge correctly concluded that such knowledge required expert testimony to determine whether the collision was indeed “hard enough.” It is obvious that the trial judge believed that this question could not be answered with testimony within common knowledge and understanding of a lay witness or lay juror.

¶ 26. The appellants offered no expert witnesses to explain the technical operation of the air bag. More importantly, the appellants offered no expert testimony to say that the air bag should have deployed in Mrs. Forbes’ collision. The trial judge noted that there were several GM engineers in the courtroom who probably could have answered that question. However, the plaintiffs did not call these engineers as adverse witnesses and did not offer then’ own expert witnesses. Indeed, there was a lack of expert testimony on the crucial issues — what were the technical parameters for the proper operation or deployment of the air bag, what speeds were involved in the impact, how the air bag was intended to deploy in circumstances comparable to those present in Mrs. Forbes’ accident, and how Mrs. Forbes’ enhanced injuries were not caused by factors other than the non-deployment of the air bag.

¶ 27. The dissent would rely on the testimony of three individuals who have no training, knowledge or expertise in the product and its operation. The evidence that supports the dissent’s view is that a police officer and a body shop employee believe that the air bag should have deployed. Only speculation and conjecture allows one to reach such conclusion.

¶ 28. A similar case was considered in St. Clair v. General Motors Corp., 10 F.Supp.2d 523 (M.D.N.C.1998). The federal court granted summary judgment to GM after the plaintiffs 1991 Cadillac De-Ville was involved in a collision and the air bag failed to deploy. Id. at 526. The basis for the motion was that the plaintiff could not prove his case without expert testimony. Id. at 531. The plaintiff offered only physical evidence of the accident report, which established the speed the plaintiffs vehicle was traveling at the time of the accident,' the speed of the other vehicle involved, the length of skid marks left on the pavement, and that the cost of repair of the plaintiffs vehicle was $3,000. Id. at 532. The court ruled that “plaintiffs must offer ‘legal evidence tending to establish beyond a mere speculation or conjecture every essential element’ of their claims.” Id. (citing Jackson v. Neill McKay Gin Co., 255 N.C. 194, 120 S.E.2d 540, 542 (1961)). The court then recognized the importance of the absence of testimony that could establish that the “air bag should have deployed during the accident.” St. Clair, 10 F.Supp.2d at 532.

¶ 29. We find that the trial judge properly considered this issue. Thus, GM’s motion for directed verdict was properly granted. With this decided, there is no need to go further. However, to ensure a complete analysis of these issues, we will discuss the other issues raised.

B. Did the plaintiffs prove that the air bag was defective or unreasonably dangerous to consumers?

¶ 30. The appellants offer a very brief argument on this issue. Their briefs offer no case citations or other legal authorities.

¶ 31. Their argument is that the air bag was defective or unreasonably dangerous because it did not deploy upon impact. They again refer to the language in the owner’s manual that states that the air bag will deploy “if the collision is hard enough.”

¶ 32. The appellants called George Green as their expert witness to testify about the condition of the air bag system. However, Mr. Green admitted that he was not an expert in the design and testing of air bags. He did not know whether the head injury criteria that a driver would experience would be higher in this car -if the driver’s head hit the windshield or the powerful air bag was deployed. Thus, Mr. Green could not say whether the failure of the ah’ bag to deploy was defective or unreasonably dangerous to Mrs. Forbes. Mr. Green’s testimony did not provide any evidence about the impact of the accident and what constitutes “hard enough” to deploy the air bag. Nevertheless, the dissent is willing to assume, through utter speculation, that the air bag did not operate properly. There is simply no evidence that supports such conclusion.

¶ 33. In granting GM’s motion for directed verdict, the trial judge stated:

The plaintiffs have had since 1997 ... to submit this [case] to a qualified expert, who in the Court’s opinion should have made a determination of why the air bag didn’t deploy, exactly what forces were applied to the vehicle, to give an interpretation of that warranty under the standards in the industry. And show that that warranty was breached and how. And that is the burden the Court finds is on the plaintiffs in this case. And they have not ruled out other failures that the air bag could have sustained such as improper maintenance or other defects in electrical or otherwise to determine that the air bag did not meet an express warranty or a warranty upon which the claimant justifiably relied on the factual representation.

¶ 34. It is undisputed that Mrs. Forbes suffered severe and tragic injuries as a result of this automobile accident. The fact that Mrs. Forbes was injured in an automobile accident, however, is not proof of a defective product. In Farris v. Coleman Co., 121 F.Supp.2d 1014, 1018 (N.D.Miss.2000), the court noted that “[t]he Mississippi Supreme Court has not permitted recovery on mere proof that damage occurred following the use of the product.”

¶ 35. The appellants offered no expert testimony that the air bag was defective or unreasonably dangerous when it left GM. Thus, we find that the appellants failed to meet their burden of proof under the Mississippi Products Liability Act. Miss.Code Ann. § ll-l-63.(a)(ii)(Supp.2004); see Childs v. General Motors Corp., 73 F.Supp.2d 669, 671 (N.D.Miss.1999)(sum-mary judgment granted on door latch claim where plaintiff offered no expert testimony of a defect in the door latch).

C. Did the plaintiffs prove that their damages were proximately caused by a breach of an express warranty?

¶ 36. The appellants offer only one paragraph of argument on this issue. Again, they offer no case citations or other authorities.

¶ 37. Their argument is that they presented evidence that the failure of the air bag to inflate caused Mrs. Forbes to strike the windshield. To comply with this part of the statute, the appellants must establish that “[t]he defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.” Miss.Code Ann. § 11-l-63(a)(iii)(Supp.2004).

¶ 38. The appellants argue that the testimony of John Blunchi, an expert in the field of accident reconstruction, testified that had the air bags inflated then Mrs. Forbes would not have struck the windshield. GM argues that the appellants called two physicians to testify at trial. Neither physician testified that Mrs. Forbes’ injuries were proximately caused by the failure of the air bag to deploy nor did they relate her injuries to GM’s alleged breach of an express warranty. The appellants introduced no evidence to differentiate the injuries that Mrs. Forbes sustained in this accident that nobody claimed GM caused from those injuries that Mrs. Forbes would have sustained if the air bag had deployed in this accident.

¶ 39. Proximate causation is a necessary element in a products liability action. Miss.Code Ann. § 11 — 1—63(a)(iii) (Rev.2002). The plaintiff must show a causal link between the defect and the resulting injury. Id. “When dealing with an express warranty, it is the burden of the plaintiff to prove the defect in the product or service caused the damage.” Easley v. Day Motors, Inc., 796 So.2d 236, 241(¶ 13) (Miss.Ct.App.2001) (citations omitted). Since there was no proof of proximate causation, the Forbes failed to meet their burden as required by Mississippi Code Annotated Section 11 — 1— 63(a)(iii).

¶ 40. Proof of damage following the use of a product is not sufficient to establish liability. Creel v. General Motors, Inc., 233 So.2d 105, 109-10 (Miss.1970); Powe v. Wagner Elec. Sales Corp., 589 F.Supp. 657, 661 (S.D.Miss.1984). “Manufacturers are not insurers and are under no duty to design a crashworthy, accident-proof or foolproof vehicle.” Cooper v. General Motors, Inc., 702 So.2d 428, 442(¶45) (Miss.1997). Here, the appellants failed to prove that “[t]he defective and unreasonably dangerous condition of the product proximately caused the damage's for which recovery is sought.” Miss. Code Ann. § 11-1-63(a)(iii)(Supp.2004).

II. Did the trial court err in excluding from evidence photographs of other GM automobiles whose air bags inflated?

¶ 41. The Forbes next argue that the trial court erred in excluding from evidence photographs of other GM vehicles that had been involved in accidents. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936(¶7) (Miss.2002) (citation omitted).

¶ 42. The Forbes sought to admit photographs of a Chevrolet Impala and a Pontiac Grand Prix. Jim Pachmyer testified that the parts on the Chevrolet Impala and Pontiac Grand Prix that were damaged were the same parts that were damaged on the Delta 88. Therefore, the Forbes contend that the admission of the photographs of these automobiles was related to the issue of whether the collision was hard enough to inflate the air bag in the Forbes’ Delta 88.

¶ 43. GM counters that the Forbes failed to offer the proof necessary to introduce evidence of other accidents and failed to cite any case authority to support a reversal of the trial court on this issue. GM quotes Hageney v. Jackson Furniture of Danville, 746 So.2d 912, 922(¶ 37) (Miss.Ct.App.1999) that “[t]o be probative of a design and/or manufacturing defect, evidence must show that the similar accidents occurred under substantially similar circumstances and involved substantially similar components.”

¶ 44. A review of the record reveals that the parts damaged on the Chevrolet Impala and Pontiac Grand Prix were the same parts that were damaged on the Delta 88, but the conditions were different. The driver of the Impala ran off the road and hit a bluff, and the driver of the Grand Prix struck another car in the side. “When evidence of other accidents or occurrences is offered for any purpose other than to show notice, the proponent of that evidence must show that the facts and circumstances of the other accidents or occurrences are ‘closely similar’ to the facts and circumstances at issue.” Johnson v. Ford Motor Co., 988 F.2d 573, 579 (5th Cir.1993). We find that the Forbes did not offer any proof that the other accidents occurred under closely similar conditions. Therefore, we hold that the trial judge did not abuse his discretion by denying the admission of the photos.

¶ 45. Upon review, we find that the trial court’s decision to grant GM’s motion for directed verdict should be affirmed.

¶ 46. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY GRANTING GENERAL MOTORS CORPORATION’S MOTION FOR DIRECTED VERDICT IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

IRVING, J.,

Dissenting:

¶ 47. The majority, without citing any authority, agrees with the trial judge, who also failed to cite any authority, that expert testimony was required to prove a prima facie case that the collision in which Mrs. Forbes was involved was hard enough to cause the air bags in her 1992 Oldsmobile to inflate. Also, the majority, citing Palmer v. Volkswagen of America, Inc., 904 So.2d 1077 (Miss.2005), finds that Mr. and Mrs. Forbes failed to prove reliance upon an express factual representation by GM because they did not read, prior to purchasing the vehicle, the following factual representation contained in the owner’s manual and upon which their claim was brought:

The air bag part of the SIR system is in the middle of the steering wheel. The SIR system is only for crashes where the front area of your vehicle hits something. If the collision is hard enough, the “air bag” inflates in a fraction of a second. It helps restrain the driver, and then it quickly deflates. Some gray smoke is normal when this happens, and some people have reported mild coughing and watery eyes from it. But all these have been temporary. The air bag can give extra protection for the driver’s upper body.

¶ 48. I believe the majority errs in both findings; therefore, I respectfully dissent. However, before delving into the substantive part of my dissent, I find it necessary to briefly relate the facts illuminating the intensity of the rear-end collision.

¶ 49. On December 15, 1997, Hilda Forbes and her three grandchildren were traveling to Columbia, Mississippi, in the Forbeses’s 1992 Oldsmobile Delta 88. Mrs. Forbes was driving behind a 1981 Chevrolet Chevette, which suddenly stopped and attempted to turn into a private driveway. Mrs. Forbes struck the Chevette from the rear, causing extensive damage to both her vehicle and the Chevrolet Chevette. The front portion of the Forbeses’s vehicle was severely damaged, and the seat supports in the Chevette were broken. The Forbeses’s vehicle air bag did not inflate even though the radiator support, on which one of the air bag sensors was located, was crushed. Additional damage to the Forbeses’s vehicle required the replacement of the following items: the front bumper assembly, the right front impact absorber, the grill and grill panel assembly, the front body radiator support, the front body vertical support, the windshield, the left front door shell, and the right quarter outer panel.

¶ 50. As a result of the impact, Mrs. Forbes was propelled forward into the windshield. She suffered a subdural he-matoma. Dr. Howard Katz, a specialist in physical medicine, rehabilitation, and spinal cord injuries testified by deposition that Mrs. Forbes suffered significant cognitive dysfunction and had never completely recovered from the injury to her brain.

¶ 51. The majority finds that the Forbeses failed to prove that the air bag breached an express warranty or failed to conform to other express factual representations upon which they justifiably relied. In arriving at this decision, the majority states that the Forbeses’s claim that they were assured by GM’s “representation that its air bag in the 1992 Oldsmobile Delta 88 would inflate in a fraction of a second when the automobile was involved in a frontal collision and the collision was ‘hard enough.’ ” However, the majority asserts that this statement is incorrect for two reasons. The first reason is that “the evidence in the record does not support the statement that GM representatives made these statements,” and the second reason is that the Forbeses, prior to purchasing the vehicle, never read the statement in the owner’s manual concerning the air bag. I turn to a discussion of the first reason offered by the majority.

¶ 52. The majority has correctly quoted the essence of the Forbeses’s claim but has mischaracterized it. The Forbeses do not claim that any GM representative told them anything about an air bag, and the majority’s lengthy quote from the Forbes-es’s brief does not support the majority’s implicit assertion that the Forbeses claim that Mr. Forbes was assured by GM’s representatives that the air bag would inflate if the collision was hard enough. Apparently, the majority has confused “representation” with “representatives”. What the Forbeses claim is that GM, with the insertion of the information in its owner’s manuals regarding how the air bags work, made an express factual representation that the air bag would inflate in a fraction of a second if the collision was hard enough. This statement is in fact contained in the owner’s manual.

¶ 53. I now turn to the second reason offered by the majority as an explanation of why the Forbeses cannot prevail. As already stated, the majority, relying upon Palmer, finds that the Forbeses “cannot justifiably rely on something that they never read” and that they “cannot complain that this section of the owner’s manual was the ‘express warranty or ... other express factual representations upon which [they] justifiably relied in electing to use the product.’ ”

¶ 54. I believe the majority’s reliance upon Palmer is misplaced. In Palmer, the issue was failure to warn; whereas, here, the issue is not failure to warn, but failure to perform in accordance with a factual representation. Moreover, the Forbeses do not claim to have been harmed or misled by anything contained in the owner’s manual, nor do they claim that the unin-flated air bag, outside of the collision context, was unreasonably dangerous. Further, the Forbeses do not claim that they were misled into purchasing the vehicle or that Mrs. Forbes was injured because GM failed to warn her about how to use a vehicle equipped with an air bag.

¶ 55. The Forbeses simply contend that during the collision the air bag failed to conform to the representation that it would inflate in a fraction of a second if the collision was hard enough and that they produced sufficient evidence to prove that the air bag failed to conform. As a result of the failure of the air bag to deploy, the Forbeses further contend that GM is liable under Mississippi Code Annotated section 11 — 1—63(a)(i)(4)(ii)(iii) (Supp.2004). To aid in clarity, I quote section (a) in its entirety although the Forbeses rely only upon (a)(i)(4)(ii)(iii). Section (a) reads:

(a) The manufacturer or seller of [a] product shall not be liable if the claimant does not prove by a preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i)l. The product was defective because it deviated in a material way from the manufacturer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.

Miss.Code Ann. § ll-l-63(a) 4(ii)(iii) (Supp.2004).

¶ 56. It seems to me that under Mississippi’s Product Liability Act (Mississippi Code Annotated section 11-1-63 (Supp. 2004)), a claimant may file a claim under sections (a)(i)l, 2, 3, or 4. However, if the claimant pursues his claim under (a)(i)4, he must also prove (ii) and (iii), that is, that the defective condition rendered the product unreasonably dangerous to the user or consumer; and the defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought. Literally applying the quoted law to the facts of this case can be confusing since there is the requirement of proving that the air bag was unreasonably dangerous to Mrs. Forbes, the user, when in fact she never used the air bag, nor was it designed to be used by her. Nevertheless, I now embark upon that task.

1. Did the Forbeses rely upon GM’s factual representation?

¶ 57. Returning to the issue of reliance, I do not believe that it is fatal to the Forbeses’s case that they may not have literally read the factual representation in the owner’s manual provided they were aware of what was being represented in the manual and that representation played a role in their decision to purchase the vehicle. Mr. Forbes testified that he “went to great lengths to have an automobile with an air bag in it and a seat belt that would work in case my wife needed it, if it ever come [sic] to an accident or something.” He also testified that “we paid extra money to get an air bag. We wanted an air bag.” The customary practice is that a customer gets the owner’s manual after purchase of the vehicle, but the features of the vehicle are usually explained to the customer, prior to purchase, by the salesman who is thoroughly familiar with the representations contained in the owner’s manual.

¶ 58. In this case, Mr. Forbes was adamant that he wanted a car with an air bag. Based on Mr. Forbes’s testimony, a reasonable inference may be drawn that he would not have purchased the car had it not been equipped with an air bag that would deploy under the appropriate circumstances, even though he may not have actually read the representation in the owner’s manual regarding the air bag until after he purchased the vehicle. Likewise, it is clear from his testimony that, in purchasing the vehicle, he relied upon the fact that the air bag was supposed to deploy in the case of an accident because he said he wanted an air bag that would “work in case my wife needed it, if it ever come [sic] to an accident or something.” I find that the Forbeses presented a prima facie case on the issue of reliance.

2. Was there competent evidence that the collision was hard enough?

¶ 59. As already observed in this dissent, GM states in its owner’s manual that the air bag will inflate when the front area of the vehicle is involved in a crash if the collision is hard enough. GM, without citing any authority, argues that proof — that the collision was hard enough for the air bag to inflate — must be made through expert testimony. On the other hand, the Forbeses argue that they presented a pri-ma facie case that the collision was hard enough to cause a proper functioning air bag to inflate.

¶ 60. In its owner’s manual, GM does not define or qualify the phrase, “hard enough.” Nevertheless, GM insists that the Forbeses should have presented expert testimony to ascertain how hard is “hard enough.” The majority embraces this argument, asserting that the Forbeses presented no authority to support their argument that they presented sufficient evidence to prove that the collision was “hard enough” to inflate the air bag.

¶ 61. The Forbeses presented the testimony of Danny Alexander, Officer Tolar, and Jim Pachmyer to establish that the collision between the Forbeses’ Delta 88 and the Chevrolet Chevette was hard enough to inflate the air bag. Danny Alexander, owner of the Chevrolet Chevette, was in the front seat of the Chevette on the passenger’s side when the accident occurred. Danny testified that the impact of the accident broke the seat and knocked him into the trunk of the car and that the paramedics had to remove him from the car.

¶ 62. Officer John Wayne Tolar, chief of detectives with the Columbia Police Department, was at the scene of the accident. Mr. Tolar testified that the front passenger seat of the Chevette was broken down to the rear back seat. Mr. Tolar further testified that he saw Mrs. Forbes’ hair just above the steering wheel in the Forbeses’s Delta 88. Mr. Tolar also testified that he thought that it was unusual that the air bag did not inflate in an accident such as this one.

¶ 63. Jim Pachmyer, an employee of Houston Watts Body Shop and Repair Service, testified that he towed the Delta 88 to Houston Watts Body Shop. Mr. Pachmyer further testified that the whole front bumper assembly, front cover, and front bumper were replaced. The front bumper assembly includes moldings, front reinforcement bars and support braces. The front bumper impact absorber, had to be replaced. The grill assembly and the header panel system were destroyed from the impact. However, Mr. Pachmyer acknowledged that these items were made of fiberglass and were designed to shatter upon impact. Additionally, the headlight assembly was destroyed. The hood and hood panel, the panel that comes across the front of the car between the fenders, had to be replaced.

¶ 64. After giving the aforementioned testimony, the following colloquy occurred between the Forbeses’s counsel and Mr. Pachmyer:

Q. But were there two sensors in the Forbes’ car?
A. Sir, I don’t remember that. It’s a positive fact.
Q. And whether it was one or two, the air bag sensor was on what we’re talking about?
A. Yes, sir.
Q. The radiator support.
A. Yes, sir.
Q. And you had to replace the radiator support?
A. Yes, sir.
Q. Why did you have to replace the radiator support?
A. It was drove [sic] back from impact, sir. It was bent, I don’t remember the exact dimensions, but we’ll say four to six inches.
Q. And being a support tell the jury what material that was made of?
A. The radiator support is made of metal, sir. I don’t know just what gauge metal that is, but it’s metal support that comes from — goes all the way across the front end of your car. And they are pretty stout things. You don’t bend them by just leaning up aside them or something of that nature.
Q. And what you’ve described as pretty stout, am I understanding your testimony and based upon your best recollection it was, as you said, drove back four to six inches.
A. Yes, sir.
Q. Do you remember about whether it would be one sensor or two sensors, were they still connected to that radiator support?
A. Yes, sir.

Finally, Mr. Pachmyer also testified that there was approximately $5,800 of damage to the Delta 88.

¶ 65. Based on this evidence, I find that the Forbes at least presented a prima facie case that the impact was hard enough to cause the air bags to inflate. GM should have been required to go forward with its case to refute this evidence, if indeed it could have.

¶ 66. The majority cites St. Clair v. General Motors Corp., 10 F.Supp.2d 523 (M.D.N.C.1998) for the proposition that expert testimony is required to prove that a collision or impact is hard enough to cause an air bag to inflate. St Clair is clearly distinguishable from our case. The only similarity that St Clair has with our case is the failure of the air bag to inflate. The theory of recovery was totally different from the theory or recovery in our case. In St Clair, the plaintiff' sued General Motors Corporation, asserting a claim for negligence in the design and manufacture of the air bag system in his car. Id. at 526. An order was entered requiring the parties to identify their experts by a certain date. Plaintiff failed to comply with the order. Id. at 527. General Motors filed a motion for summary judgment, alleging that, in the absence of expert testimony, the plaintiff could not establish his claims of negligence in the design and manufacture of the air bag system in his car. Id. As a part of the documentation in support of its motion for summary judgment, General Motors “produced the testimony of its expert witness, Keith S. Schultz, an engineer familiar with the design and performance of the air bag system in [plaintiffs vehicle].... In Schultz’s opinion, [plaintiffs accident ... did not meet the criteria for triggering the air bag such that the system was in fact operating properly by not deploying during the accident.” Id. at 532. Plaintiff produced no expert testimony to rebut Schultz’s testimony.

¶ 67. As I have previously noted in this dissent, the Forbeses’s theory of recovery was not based on defective design and manufacture of the air bag, but failure to conform to an express factual representation. Moreover, when GM’s motion for a directed verdict was made and granted, no expert had testified that the collision was not hard enough to trigger the deployment of the air bag.

¶ 68. I find it very interesting that both the majority and the trial court took note of the fact that GM had engineers in the courtroom who probably could have answered the question as to whether the collision was hard enough to cause the air bag to inflate. The Forbeses are faulted for not calling these engineers. Well, it seems indeed strange that GM would have engineers ready to refute the Forbeses’s case and not put them on to testify, resting instead on the dubious notion, without the benefit of any precedent, that the Forbes-es were required to prove, by expert testimony, their contention that the collision was hard enough to cause the air bag to inflate.

2. Was the air bag unreasonably dangerous?

¶ 69. GM contends that the Forbeses did not introduce any expert testimony that the air bag system was defective and unreasonably dangerous to users at the time it left GM; therefore, the Forbeses did not meet their burden of proof under the Mississippi Products Liability Act, Mississippi Code Annotated section 11 — 1— 63(a)(4)(h) (Supp.2004). General Motors explains that since the Forbeses’s expert, George Green, admitted that he was not an expert in the design and testing of air bags, there was not sufficient expert testimony to prove that the air bag was unreasonably dangerous.

¶ 70. It seems quite obvious that an air bag which fails to inflate or deploy when it is suppose to is unreasonably dangerous not because it will cause injury, but because of its failure to operate so as to prevent injury. Therefore, proof that the collision was hard enough to activate deployment of an air bag that did not deploy is proof that the air bag was defective and unreasonably dangerous at the time that it left the manufacture unless there is other evidence indicating that the air bag had not been properly maintained or had been tampered with since leaving the manufacture. No such evidence of tampering or lack of maintenance was presented.

¶ 71. Further, Mr. Green, testified that an air bag should always deploy when a person is “thrown off the seat forward far enough to hit the windshield, that deceleration alone should always activate an air bag.”

3. Did the failure of the air bag to inflate proximately cause Mrs. Forbes’s injuries?

¶ 72. GM, citing Dawson v. Wal-Mart Stores, Inc., 781 F.Supp. 1166, 1170 (N.D.Miss.1992), asserts that “[wjhether [plaintiffs] action sounds in warranty or in tort, [he] must still prove that the defect in the product caused the damage of which [he] complained.” GM maintains that the Forbeses failed to meet their burden of proving that their damages were proximately caused by the alleged breach of an express warranty by GM. GM explains that the Forbeses called two physicians at trial by deposition, Dr. Michael Molleston, a board certified neurosurgeon, and Dr. Howard Katz, a board certified physician in physical medicine, rehabilitation and spinal cord injury. GM contends that both physicians testified that Mrs. Forbes was injured in this accident, but neither opined that her injuries were caused because the air bag did not deploy.

¶ 73. The Forbeses argue that it was evident from the testimony of John Blun-chi, one of their expert witnesses, that Mrs. Forbes’s injuries were a direct and proximate cause of the failure of the air bag to inflate. Mr. Blunchi, expert in the field of accident reconstruction, testified that — based on his investigation, reconstruction of Mrs. Forbes’s accident, and experience involving investigation and reconstruction of accidents — had the air bag in the Delta 88 inflated Mrs. Forbes would not have struck the windshield. Again, I find that this testimony was sufficient to establish a prima facie case that the failure of the air bag to inflate proximately caused Mrs. Forbes’s damages.

¶ 74. The trial judge granted GM’s motion, made at the conclusion of the Forbes-es’s case, for a directed verdict. The trial judge determined that expert testimony was required to demonstrate that the collision was hard enough for the air bags to deploy. I find that the evidence presented by the Forbeses was sufficient to require GM to go forward and rebut what was presented. In other words, I find that the Forbeses at least presented a prima facie ease. In the absence of some authority holding that expert testimony is always required, as a matter of law, to prove that a collision is hard enough to activate air bags, I would decline to establish such a standard of proof in cases involving the failure of air bags to deploy. Apparently, the majority has no problem doing so, for it offers no basis for its holding on this point other than it said so.

¶ 75. Although, I realize that there are certainly some cases where expert testimony is required to establish even a prima facie case of liability, I do not believe cases involving the failure of the deployment of air bags are among such cases. To illustrate my point, suppose Mrs. Forbes, instead of striking the Chevette in the rear, had run headlong into an immovable brick wall at a speed of seventy miles per hour, leaving her car reduced to approximately half its original length. Could it be legitimately argued that it would take expert testimony to prove that the impact was hard enough to activate the air bags? I think not.

¶ 76. Based on the reasons discussed in this separate writing, I respectfully dissent. I would reverse and remand this case for a new trial.

KING, C.J., BRIDGES AND LEE, P.JJ., JOIN THIS SEPARATE OPINION.

      . The appellants’ brief does not argue that GM breached any other type of express warranty. Indeed, both of the appellants’ briefs cite three cases (for the correct standard of review), this statute, and M.R.C.P. 401. No other legal authority is provided.

      . The dissent states that "[t]he Forbeses are faulted for not calling these engineers. Well, it seems indeed strange that GM would have engineers ready to refute the Forbeses's case and not put them on to testify, resting instead on the dubious notions, without the benefit of any precedent, that the Forbeses were required to prove, by expert testimony, their contention that the collision was hard enough to cause the air bag to ínflate.” The "dubious notion” is that GM properly and timely made a motion for directed verdict under M.R.C.P. 50(a). The purpose of such motion is to fault a party that does not present a legally sufficient case. In McKinzie v. Coon, 656 So.2d 134, 137 (Miss.1995), the supreme court ruled that M.R.C.P. 50 requires the trial court to take a case from a jury and grant a directed verdict if any verdict other than the one directed would be erroneous as a matter of law. Indeed, this was such a case. The reference to GM’s engineers goes to the heart of the problems that the trial judge found, and the majority of this Court now finds, in this case. There was simply no credible expert testimony that the air bag did not operate as it was intended. Were the Forbes at fault for not calling these engineers? The apparent answer is yes. Had the engineers been called as part of the Forbes case-in-chief, they may have been able to produce the evidence necessary to establish the necessary elements of the appellants’ claim that the trial judge and this Court find lacking.

      . I do not disagree with the majority's finding that no error occurred in the trial’s court’s refusal to admit photographs of other wrecked GM vehicles in which the air bags inflated.

      . The deposition testimony of Dr. Mollestion and Dr. Katz was not made a part of the record.


author: CHANDLER, J., for the Court.

text:
    MISSISSIPPI DEPARTMENT OF CORRECTIONS and Mississippi Department of Employment Security, Appellants v. Virginia SCOTT, Appellee.
    No. 2005-CC-00427-COA.
    Court of Appeals of Mississippi.
    May 16, 2006.

      James M. Norris, attorney for appellants.
    Virginia Scott, Appellee, pro se.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J., for the Court.

¶ 1. Virginia Scott was employed by the Mississippi Department of Correction (MDOC) and was terminated for violating state law and MDOC policies. Scott subsequently applied for unemployment benefits with the Mississippi Employment Security Commission (MESC). The claims examiner disqualified Scott from receiving benefits under Mississippi Code Annotated section 71-5-513(A)(l)(b) (Rev.I989), finding that she was discharged for misconduct connected with her work. Scott appealed to a MESC appeals referee who also denied her application. The Board of Review affirmed the decision of the referee and Scott appealed to the Circuit Court of Greene County. The court reversed the decision by the Board of Review and awarded benefits. The MDOC now appeals. Finding error, we reverse.

WHETHER THE CIRCUIT COURT ERRED IN REVERSING THE MDOC’S DECISION TO DENY BENEFITS WHERE SCOTT WAS DISCHARGED FOR UNLAWFUL CONDUCT

FACTS

¶ 2. Scott worked for the MDOC and was caught selling and delivering bootleg copies of DVD movies to other employees while at work in violation of Mississippi Code Annotated section 47-5-49 (Rev. 2004), which prohibits employees from engaging “in any other business during normal hours of employment that may require his personal attention or time.” The statute calls for the violator to be dismissed from employment. Id. Scott was also in violation of state laws under Mississippi Code Annotated section 97 — 23—87(3)(a)(i) (Rev.2000), which prohibits the unauthorized copying or selling of recordings, and Mississippi Code Annotated section 97-23-89(2), which prohibits the sale or distribution of recordings without display of required information.

¶ 3. On August 20, 2004, Scott was terminated by MDOC. Scott received a letter from the MDOC which listed two reasons for her termination. The first reason stated that Scott was terminated for falsification of records. The letter specified that Scott gave a written statement, claiming that she never delivered or sold movies to any employee at the MDOC, which was a false statement. The second reason for Scott’s termination was for acts which occurred “on or off the job which are plainly related to job performance and are of such nature that to continue the employee in the assigned position could constitute negligence in regard to the agency’s duties to the public or to other state employees.” The letter stated that Scott offered to sell bootleg copies of DVDs to co-workers and that Scott sold at least eight copies of bootleg movies to employees in violation of Mississippi law and MDOC policy.

¶ 4. On September 5, 2004, Scott applied for unemployment benefits with the MESC. On September 20, 2004, the MESC claims examiner denied Scott benefits because of misconduct and Scott filed an appeal. On October 19, 2004, a MESC appeals referee conducted a hearing on the matter and concurred with the decision of the claims examiner. At the hearing, Scott admitted that she distributed and transferred bootleg DVDs that she purchased from a flea market to someone at the MDOC. Scott admitted knowing that it was against the law to transfer these tapes.

¶ 5. On December 2, 2004, the MESC Review Board affirmed the decision of the appeals referee and Scott appealed to the Circuit Court of Greene County. The circuit court held that the MESC decision was not supported by substantial evidence and reversed the decision.

LAW AND ANALYSIS

WHETHER THE CIRCUIT COURT ERRED IN REVERSING THE MDOC’S DECISION TO DENY BENEFITS WHERE SCOTT WAS DISCHARGED FOR UNLAWFUL CONDUCT

¶ 6. When reviewing a decision of the MESC, this court must affirm when the decision is supported by substantial evidence and absent fraud. Richardson v. Miss. Employment Sec. Comm’n, 593 So.2d 31, 34 (Miss.1992). Mississippi Code Annotated section 71-5-513(A)(1)(b) (Rev. 2005) states that an individual may be disqualified for unemployment benefits if he was discharged “for misconduct connected with his work.” The employer bears the burden of showing that the employee’s conduct warrants disqualification from eligibility for benefits by “substantial, clear, and convincing evidence.” Foster v. Miss. Employment Sec. Comm’n, 632 So.2d 926, 927 (Miss.1994). Any judicial review under Mississippi Code Annotated section 71-5-513 requires that “the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Broome v. Mississippi Employment Sec. Comm’n, 921 So.2d 334, 337(12) (Miss.2006).

¶ 7. The circuit court reversed the decision of the agency finding MDOC “failed to provide substantial evidence that Scott violated a Mississippi statute.” The court held that Scott denied selling the DVDs and Scott’s distribution of the DVDs did not have an adverse impact on the ability of her employer to conduct its business. We find that the trial court erred in reversing the decision of the MESC for three reasons: (1) the court failed to distinguish the present case from Mississippi Employment Sec. Comm’n v. Douglas, (2) the court erred in determining that Scott did not violate state law and MDOC policy, and (3) the court erred in failing to determine that those violations were sufficient evidence to find misconduct.

A. The circuit court failed to distinguish the present case from Mississippi Employment Security Commission v. Douglas

¶ 8. The circuit court cited Miss. Employment Sec. Comm’n v. Douglas, 758 So.2d 1059 (Miss.Ct.App.2000) as its authority in holding that Scott’s distribution of the DVDs did not have an adverse impact on the ability of her employer to conduct its business and, therefore, there was no misconduct. The court in Douglas held that “mere evidence of the type of criminal activity engaged in by Douglas while away from the job would not necessarily constitute disqualifying misconduct.” Id. at 1062(12). Therefore, the court was left to determine whether the appellant’s activities “were intended to have, or could reasonably be anticipated to have, an adverse impact on the ability of Douglas’s employer to conduct its business activities, a finding that would, in our view, supply the necessary connection between the improper activity and the claimant’s work.” Id.

¶ 9. In Douglas, the criminal activities were not conducted while he was on duty at his employer’s place of business. As stated above, Mississippi Code Annotated section 71-5-513 provides that an individual will be disqualified for benefits if he is discharged for misconduct “connected with his work.” The court had to determine whether there was a connection between the illegal activities and Douglas’s job. That is not the issue in the present case. In the present case, the conduct at issue was clearly preformed while Scott was on the job at the MDOC. Therefore, this Court does not have to consider whether Scott’s activities had an adverse impact on the ability of her employer to conduct business activities. This Court must only determine whether there was sufficient evidence that Scott was terminated for misconduct.

B. The circuit court erred in holding that Scott did not violate state law and MDOC policy

¶ 10. In the present case, the circuit court held that Scott denied selling the DVDs and, therefore, she did not violate MDOC policy or state law. Regardless of whether Scott actually admitted to selling the DVDs, Scott admitted to distributing bootleg copies of DVDs to coworkers during a hearing with the ME SC appeals referee. Scott also admitted knowing that distributing bootleg copies of DVDs was illegal and, therefore, in violation of work policy as is shown from this section of her testimony before the appeal referee:

Q: Ms. Scott, do you admit that you did in fact distribute or transfer tapes that you purchased from the flea market to somebody at the department?
A: Yes.
Q: Okay. Did you have a license to distribute those tapes?
A: No, and the person that I bought them from at the flea market did not have a license. There’s no license, it never was brought up that I needed to have a license. If I’m going out to lunch and you ask me to bring your lunch, you don’t ask me for a license. You’re selling apples you don’t ask for a license other things that have been sold.
Q: Are you aware that it is against State Law to transfer tapes if you don’t have a license to distribute those tapes?
A: Yes, if you’re transferring for sale.
Q: Just to transfer them whether it’s for sale or not?
A: Yes.

Scott clearly admitted to knowingly and illegally distributing bootleg DVDs. Therefore, the factual findings of the Commission, that Scott violated work policy and state law, were supported by the evidence.

C. The circuit court erred in determining that there was not sufficient evidence to determine misconduct

¶ 11. Next, this Court must determine whether the conduct of Scott was sufficient evidence in determining that there was misconduct. This Court defines misconduct as

conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertencies and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

Booth v. Mississippi Employment Sec. Comm’n, 588 So.2d 422, 425-26 (Miss.1991).

¶ 12. This Court has held that misconduct is “conduct that reasonable and fair-minded external observers would consider a wanton disregard of the employer’s legitimate interests.” Allen v. Mississippi Employment Sec. Comm’n, 639 So.2d 904, 907 (Miss.1994). Not only did Scott violate work policies, Scott also violated state laws during her employment with the MDOC. The MDOC wrote Scott a termination letter which clearly stated that she was terminated for distributing bootleg movies to co-workers and then falsely stating that she never delivered a movie to another coworker. Reasonable observers would find that illegally distributing DVDs during work and then lying about the prohibited conduct are willful and wanton disregard for the employer’s legitimate interests. Clearly, the decision of the MDOC is supported by substantial evidence. Therefore, the ruling of the MESC should be reinstated, the trial court should be reversed, and Scott should be disqualified from receiving unemployment benefits based upon her misconduct on the job.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF GREENE COUNTY IS REVERSED.

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

      . Effective July 1, 2004, the name of the Mississippi Employment Security Commission changed to the Department of Employment Security, Office of the Governor. Miss.Code Ann. Section 71-5-1 l(f)(Supp.2005).