author: CARLTON, J.,

text:
    Joseph Johnett WILSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01498-COA.
    Court of Appeals of Mississippi.
    April 26, 2011.
    Rehearing Denied Aug. 30, 2011.
    Certiorari Denied Oct. 27, 2011.

      George T. Holmes, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. A jury in the Circuit Court of Hinds County, First Judicial District, convicted Joseph Wilson of sexual battery. The trial court sentenced Wilson to thirty years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Wilson appeals his conviction and sentence raising the following six issues for the Court’s review: whether (1) the trial court erred in excluding relevant defense evidence; (2) the trial court erred in its treatment of the Batson objections by the State and the defense; (3) Instruction S-4 precluded the jury from considering one of the statutory elements of the charge; (4) the trial court erred in limiting Wilson’s closing argument; (5) the verdict is supported by the weight of evidence; and (6) the cumulative effect of errors requires reversal. Finding no error, we affirm.

FACTS

¶ 2. On October 19, 2005, at approximately 4:00 p.m., Investigator Latasha Holmes, with the Hinds County Sheriffs Department, responded to a call in reference to a 17-year-old rape victim, Teresa Hughes. When Investigator Holmes arrived at the hospital where Hughes was undergoing examination, she interviewed Hughes regarding the specifics of the rape and learned that Wilson, the victim’s father, had raped her. Investigator Holmes also observed Hughes and took pictures of the bruises on her body. In addition, Investigator Holmes, along with Detective Steven Lofton, also with the Hinds County Sheriffs Department, and John Hughes, the victim’s brother, traveled to the scene of the crime. Investigator Holmes and Detective Lofton then located Wilson at his home and placed him under arrest.

¶ 3. On March 9, 2009, Wilson pled guilty to the charge of sexual battery. Then, after the entry of his plea, through new counsel, Wilson filed for post-conviction relief, which the trial court essentially treated as a motion of the defendant to withdraw his guilty plea. After conducting a hearing, the trial court entered an order that allowed Wilson to withdraw his plea. Wilson’s trial commenced on July 27, 2009. During the trial, Hughes testified that on October 18, 2005, Wilson arrived at her house and proceeded to discipline her with a belt. Hughes testified that after being disciplined, her father instructed her to gather her clothes and to leave with him. Hughes testified that despite her understanding that Wilson was taking her to his home, Wilson drove them to a sand pit in a secluded area of Hinds County. Hughes further testified that once there, Wilson ordered her out of his vehicle and removed all of her clothing. Hughes then testified that Wilson pushed her into his truck and raped her. In addition, Hughes testified that the day following the rape, Wilson drove her to school and offered her thirty dollars for her silence about the rape. Hughes’s mother testified that after receiving a phone call from Hughes informing her of the rape, she instructed her brother to check Hughes out of school and take her to St. Dominic Hospital for an examination and treatment. Investigator Holmes and Detective Lofton testified that the hospital performed a rape kit on Hughes. At trial, the parties stipulated that Wilson is the biological father of Hughes and that the sperm found inside of Hughes was from Wilson.

¶ 4. At trial, Wilson testified that on the night in question, he drank an excessive amount of intoxicating liquor prior to his arrival at Hughes’s house. Wilson testified that he disciplined Hughes with a belt when he reached her house and then ordered her to leave with him. Wilson testified that upon his departure from Hughes’s house, he saw muzzle flashes and heard gunshots aimed toward his vehicle. Wilson testified that when he heard the shots, he pulled into a store to allow Hughes to drive, giving him access to the pistol in his truck in case he needed to respond with gunfire. In addition, Wilson testified that after switching drivers, he started drinking again, passed out, and awoke in his truck in his driveway with his pants down across his legs. Wilson testified that he saw his daughter crawling back into the driver’s seat at this time.

¶ 5. A jury in the Circuit Court of the First Judicial District of Hinds County convicted Wilson of sexual battery. Wilson was sentenced to thirty years in the custody of the MDOC. Aggrieved, Wilson appeals.

DISCUSSION

I. MOTIONS IN LIMINE

¶ 6. Wilson argues that the trial court erred in granting the motions in limine brought by the State.

¶ 7. The standard of review employed by this Court when reviewing the trial court’s admission or exclusion of evidence is abuse of discretion. Ladnier v. State, 878 So.2d 926, 933 (¶ 27) (Miss.2004) (citing Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss.2000)). ‘Where error involves the admission or exclusion of evidence, this Court ‘will not reverse unless the error adversely affects a substantial right of a party.’ ” Id. “A motion in limine ‘should be granted only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2)the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.’ ” McNeill v. State, 919 So.2d 77, 82-83 (¶ 15) (Miss.Ct.App.2005) (quoting McGilberry v. State, 797 So.2d 940, 942 (¶12) (Miss.2001)).

¶ 8. The State first filed a motion in limine to prohibit Wilson from making any reference to his pretrial incarceration and also to prohibit Wilson from testifying as to what sentence he stood to receive if convicted. The State’s first motion was undisputed by Wilson. As such, the trial court granted the motion preventing reference to Wilson’s pretrial incarceration.

¶ 9. The State filed its second motion in limine to prohibit Wilson from introducing any testimony concerning the victim’s past sexual behavior. Wilson agreed not to introduce such evidence, and the trial court granted the motion.

¶ 10. The third motion in limine filed by the State sought to exclude all testimony relating to his daughter’s alleged boyfriend, Guy Horn, on the grounds that the testimony was irrelevant and offered only to confuse or mislead the jury. Wilson objected arguing that the witnesses’ testimonies supported his theory that Hughes had accused Wilson of rape in retaliation for his disciplining and interfering with her relationship with Horn. Wilson specifically claims that the trial court wrongfully excluded the testimonies of Dennis Grant, Horn’s probation officer, and Officer Ken Travis. The trial court granted the State’s motion in limine finding that the proposed evidence by the defendant concerning Horn was not relevant under Mississippi Rule of Evidence 401. The trial court further explained that “[e]ven if [the evidence] were relevant under [Mississippi Rule of Evidence] 402, [Rule] 403 provides that although relevant[,] evidence may be excluded, if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury or considerations of undue delay, waste of time or needless presentation of cumulative evidence. The Court finds that based on Rules 401, 402, and 403, as well as the arguments by the State, that ... the motion is granted.”

¶ 11. After a review of the record, we find that Wilson provided no evidence of any plan or conspiracy between Horn and Hughes against Wilson. The State bears no burden to show force or lack of consent when proving the offense of sexual intercourse with a minor by her parent in violation of Mississippi Code Annotated section 97-3-95(2) (Rev.2006). We note, however, that the State does bear the burden of proving that the status of the perpetrator to be the parent of the victim. Therefore, we find no abuse of discretion in the trial court’s ruling on the State’s third motion in limine.

¶ 12. The State filed its final motion in limine aiming to prohibit Wilson from introducing additional witness testimony on the grounds of irrelevancy and lack of personal knowledge. Wilson argues that the witnesses’ testimonies support his theory of a retaliation conspiracy between Horn and his daughter.

¶ 13. In addressing the court’s rulings as to these various witnesses, the record shows that Wilson first sought to call witnesses to testify that he often drank to excess causing him to pass out, unable to be awakened and that he had told these witnesses he possessed the ability to reach sexual completion even while intoxicated based on his previous sexual relations with his former wife, Helen Hughes, the victim’s mother. The testimony was expected to pertain to only what Wilson asserts he had told these witnesses regarding Helen’s sexual activity with Wilson, and it was not to provide any evidence of his sexual activity with his daughter or other persons. In addition, the testimony was not to provide any insight as to an alleged conspiracy or plan against Wilson. The trial court granted the State’s motion to exclude the testimony of these witnesses; the court found that Mississippi Rules of Evidence 401, 402, and 403 applied to exclude the testimony.

¶ 14. Wilson also sought to present testimony from various witnesses pertaining to Horn’s relationship with him and his daughter. The trial court noted that it had already excluded testimony concerning Horn when ruling on the State’s third motion in limine, and again, the court, under the Mississippi Rules of Evidence 401, 402, 403, and 602, excluded the testimony that concerned Horn.

¶ 15. Wilson then sought to present witnesses Jerome Manuel and Joeann Manuel to testify that they lived near the remote area where the incident had occurred and they failed to hear anything out of the ordinary on the evening in question. The trial court deferred its ruling on these two witnesses until after their testimony was heard outside the presence of the jury. Then, after hearing the testimony of Joeann, the trial judge found her testimony to be purely speculative, irrelevant, and not probative. The trial judge explained that Joeann’s testimony included nothing but possibilities, specifically pointing to her testimony that her house was “a football [field] length away” from the sand pit, where the rape was alleged to have taken place. Further, the trial judge indicated that doubts existed as to what Joeann was doing at the time of the alleged rape, whether the television was on full volume, and whether the windows on her houses were up or down. The trial judge explained that while Joeann testified that she could possibly hear a loud truck on the sandpit from her house, there is no evidence that the truck driven by Wilson on the night of the rape was unusually loud. Furthermore, the trial court stated that even if relevant, Mississippi Rule of Evidence 403 excluded Joeann’s testimony.

¶ 16. Upon review of the record, this Court finds no abuse of discretion by the trial court in granting the State’s final motion in limine. We find that the trial court abused no discretion in excluding Wilson’s evidence showing his sexual responses when previously stimulated by his former wife during their sexual activities. We note that this past sexual relationship was not at issue in this case; thus, the purported evidence lacked relevancy to the issue in the case at hand, Wilson’s sexual conduct with his minor daughter. In addition, the record supports the trial court’s finding that in addition to Rule 401, Rule 403 applied to exclude the evidence. We similarly find no abuse of discretion in the trial court’s exclusion of Joeann’s testimony, which in effect excluded Jerome’s testimony, since the record supports the trial court’s finding that the testimony lacked relevance and was too tenuous. See M.R.E. 401, 403. See also Ladnier, 878 So.2d at 933 (¶ 27). We find no merit to this assignment of error.

II. BATSON OBJECTIONS

¶ 17. In Wilson’s second assignment of error, he argues that the trial court erred in finding during jury selection that his peremptory strikes were insufficiently race neutral. Wilson also claims that the court erred in finding that he had waited too long to make his Batson objections against the State.

¶ 18. This Court employs a well-established standard of review when considering Batson challenges. Camper v. State, 24 So.3d 1072, 1074 (¶ 12) (Miss. Ct.App.2010). “This Court reviews a trial court’s ruling on a Batson challenge with great deference and will not overturn the trial court’s ruling unless it is clearly erroneous or against the overwhelming weight of the evidence.” Id. at 1074-75 (¶ 12) (quoting Pruitt v. State, 986 So.2d 940, 942 (¶ 8) (Miss.2008)). We accord great deference in the findings of the trial court because “the trial judge is in the best position to evaluate the demeanor and credibility of the attorney offering the gender/race-neutral explanation.” Id. at 1075 (¶ 12) (quoting Perry v. State, 949 So.2d 764, 767 (¶ 7) (Miss.Ct.App.2006)); see also Booker v. State, 5 So.3d 356, 358 (¶ 3) (Miss.2008) (citing Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)) (stating that appellate courts are to give deference to a trial court’s findings on the issue of discriminatory intent since such request requires an evaluation of the counsel’s state of mind which is based on demeanor and credibility and lies “peculiarly within a trial judge’s province”); Aguilar v. State, 847 So.2d 871, 875 (¶ 6) (Miss.Ct.App.2002) (stating that we grant a trial judge a substantial degree of deference in ruling on Batson challenges because it is a factual determination and largely based on credibility).

¶ 19. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits parties from exercising peremptory challenges against jurors “solely based on them race.” Johnson v. State, 529 So.2d 577, 583 (Miss.1988) (citing Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). When a party asserts that a discriminatory purpose for the peremptory challenge exists, qualifying it as a Batson challenge, a trial court should employ the following three-step procedure:

(1) the defendant must make out a pri-ma facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose; (2) once the defendant has made out a pri-ma facie case, the-burden shifts to the State to explain adequately the racial exclusion by offering permissible, race-neutral justifications for the strikes; and (3) if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. The burden remains on the opponent of the strike to show that the race-neutral explanation given is merely a pretext for racial discrimination.

Pruitt, 986 So.2d at 942-43 (¶ 8).

¶ 20. Turning to the facts of this case, we will first provide an overview and context of the jury-selection process, and then we will review each of Wilson’s strikes individually that are in issue on appeal. Prior to undertaking jury selection, the trial court explained the procedure to be employed by the court when selecting jurors. See also URCCC 10.01. After the State had exercised its peremptory challenges and tendered its jurors, Wilson accepted the tendered jurors without objection and then began utilizing his own peremptory strikes. The State then raised a Batson challenge asserting that Wilson’s peremptory strikes were based upon discriminatory intent. The State argued that every juror struck by Wilson was Caucasian and that each juror accepted by the defense was African American. At this time, Wilson responded by raising a Batson challenge on the basis that every juror the State struck was African American. The trial court ruled that Wilson’s Batson objections were untimely, since Wilson had raised no objection prior to the time that the State tendered the jurors and since Wilson had already accepted the jurors tendered by the State. The trial court also found that the race-neutral reasons provided by Wilson for three of his four peremptory strikes were insufficient and pretextual, and the trial judge reseated those jurors since Wilson failed to overcome the inference of discriminatory purpose for the peremptory challenges.

¶ 21. We will now turn to a review of each of Wilson’s individual peremptory challenges, and we recognize, as previously stated, that we review the trial court’s ruling on Batson challenges with great deference and will not overturn the court’s ruling unless we find it clearly erroneous or against the overwhelming weight of the evidence. See Camper, 24 So.3d at 1074-75 (¶ 12).

¶22. In reviewing the specific strikes at issue, the record shows that Wilson used his first peremptory strike against Paul Billingsley, a Caucasian. Wilson claimed that he struck this juror because the juror’s wife was a school teacher in the Hinds County school district. The State challenged this peremptory challenge as discriminatory, claiming that Wilson’s explanation was pretextual and also asserting that because the trial court would instruct the jury not to discuss the case with anyone other than another juror, the status of employment of a juror’s spouse failed to constitute a sufficient race-neutral justification. The trial court determined that the State provided sufficient grounds to challenge Wilson’s purported non-discriminatory purpose for the peremptory challenge, and the trial court found that Wilson failed to rebut the inference of discriminatory purpose. The trial court then restored Billingsley to the jury.

¶ 23. Wilson exercised his second peremptory challenge against Susan Goodman, a Caucasian, on the basis that the juror’s spouse worked as an attorney. In objecting due to a discriminatory purpose, the State responded that the trial court provides instructions to the jury to prevent the jury members from discussing the case with anyone other than another juror. The State also noted that Wilson had accepted juror number six, Mitzi Paige, who was also an attorney. Again, the trial court found that the State sufficiently challenged the race-neutral reasons provided by Wilson. The trial court reinstated the juror on the basis that “[t]here’s been no race[-]neutral reason in the opinion of the Court to exclude her.”

¶ 24. The record reflects that Wilson’s challenge as to Goodman lacked credibility in the context of this case since Wilson had previously accepted an attorney as a juror during the jury-selection process. See Thorson v. State, 721 So.2d 590, 593 (¶ 4) (Miss.1998) (stating that we give great deference to a trial court’s determination of whether or not a peremptory challenge was race neutral because a finding that a striking party was discrimination is largely a factual finding); Manning v. State, 765 So.2d 516, 519 (¶ 9) (Miss.2000) (identifying five indicia of pretext when analyzing a proffered race-neutral reason for a Batson peremptory strike including failure to voir dire, lack of record to support the stated reason, and group-based traits); Lockett v. State, 517 So.2d 1346, 1349-50 (Miss.1987) (stating that a trial court’s evaluation of Batson claims are essentially findings of fact and that we have a limited scope of review of factual findings).

¶25. Wilson then utilized a peremptory challenge on Matthew Quick, a Caucasian, on the ground of his youthful age of twenty-one years old. The State challenged Wilson’s race neutral reason for this peremptory challenge as pretextual, stating that Quick qualifies to serve on a jury upon reaching the age of twenty-one and that he, therefore, should be able to remain on the jury. The trial court also acknowledged that Wilson asked this juror no questions on individual voir dire. After considering the objection and the Wilson’s stated race-neutral purpose of the strike, the trial court reseated the juror, finding that Wilson provided insufficient race-neutral reasons for the strike. See Manning, 765 So.2d at 519 (¶ 9) (listing indicium of pretext and recognizing such indicium included a lack of record in support of the purported reason and also included reasons stemming from group-based traits). While the trial judge did not first articulate whether the reason of inexperience and youthful age constituted a race neutral reason on its face, a review of the record shows that the trial judge found Wilson’s race-neutral justification insufficient.

¶ 26. Upon a review of the record, we find no abuse of discretion in the trial court’s findings as to the Batson challenges raised by Wilson and no abuse of discretion in the trial court’s findings as to the challenges raised by the State in the context of the facts of this case. See id. at (¶ 8) (citing Thorson, 721 So.2d at 593 (¶ 4) (finding that we will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence)).

¶ 27. With respect to the context of the Batson objections raised by Wilson, we note that Wilson failed to raise any Batson objections until after he had accepted the State’s tendered panel of jurors, and only after the State had challenged his strikes. In accordance with Uniform Rule of Circuit and County Court 4.05(B), which provides that constitutional objections must be made at the time the panel is tendered, and Thomas v. State, 517 So.2d 1285, 1287-88 (Miss.1987), which explains that a Batson “objection is timely only where made prior to the impanelling of the jury,” we find that Wilson waived any Bat-son objections to the jurors that he had already accepted upon tender of the State.

¶ 28. With respect to the State’s Batson objections to Wilson’s strikes, we acknowledge that the trial judge constitutes the finder of fact in determining the credibility of the race-neutral reasons stated for the strike, and the trial judge certainly may evaluate the credibility of the strikes raised in the context of the case. See Manning, 765 So.2d at 520 (¶ 11) (citing Thorson, 721 So.2d at 597 (¶ 23) (holding that the trial judge’s determination of whether or not a reason constituted a race-neutral reason depended largely on the credibility of the prosecutor in that case who proffered the reasons)); see also Chisolm v. State, 529 So.2d 635, 688 (Miss.1988) (finding that the reasons for a strike must be related to the particular case and must be “clear and reasonably specific”).

¶ 29. We note that precedent requires that we give great deference to the trial court’s findings of whether or not a peremptory challenge was race neutral, see Manning, 765 So.2d at 519 (¶ 8); Booker, 5 So.3d at 358 (¶ 3); therefore, we find that the trial court committed no abuse of discretion in finding that Wilson failed to provide sufficient race-neutral reasons for his peremptory strikes. See Chisolm, 529 So.2d at 638 (citing Lockett, 517 So.2d at 1349-52) (providing that when reviewing a trial court’s ruling on Batson objections, appellate courts should use a limited standard of review). As such, this issue lacks merit.

III. JURY INSTRUCTIONS

¶ 30. In Wilson’s third assignment of error, he argues that Instruction S-4 improperly stated the law due to its peremptory effect on the element of whether Wilson possessed a position of trust or authority over Hughes. Wilson claims that this instruction charges the jury that Wilson holds a position of trust or authority over Wilson simply because of his status as her biological father. The crux of Wilson’s argument is that Instruction S-4 improperly relieved the jury from determining whether he held a position of trust or authority over his daughter simply upon presentation of proof of his parental status. Wilson argues that the law requires proof of a fiduciary position and authority, in addition to proof of his status as a parent. In response, the State contends that Wilson’s argument fails because the statute under which Wilson was convicted defines a person of trust or authority to include a parent.

¶ 31. We apply the following standard of review when reviewing challenges to jury instructions: “[i]n determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole; when so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Brunner v. State, 37 So.3d 645, 648 (¶ 13) (Miss.Ct.App.2009) (quoting Davis v. State, 909 So.2d 749, 752 (¶ 11) (Miss.Ct.App.2005)). “This Court has ‘consistently held that instructions in a criminal case which follow the language of a pertinent statute are sufficient.’ ” Rubenstein v. State, 941 So.2d 735, 772 (¶ 155) (Miss.2006) (quoting Byrom v. State, 863 So.2d 836, 880 (¶ 163) (Miss.2003)).

¶ 32. In the present case, Instruction S-4 reads as follows:

The Court instructs the jury that should you find that the Defendant, Joseph Johnett Wilson, is the parent of [Teresa Hughes] then you must find that Defendant, Joseph Johnett Wilson was in a position of trust or authority over [Teresa Hughes].

After deliberation, the jury convicted Wilson of sexual battery under Mississippi Code Annotated section 97-3-95(2) (Rev. 2006), which provides:

A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.

(Emphasis added).

¶ 33. After a plain reading of the statute, we find that Instruction S-4 tracks the language of the statute, and, in accordance with Rubenstein, the instruction is sufficient. Moreover, this Court has previously established that the State bears no burden in proving that the defendant actually cared for or controlled the minor victim in order to sustain a conviction for a charge of sexual battery in violation of section 97-3-95(2). See Blackmon v. State, 803 So.2d 1253,1255-56 (¶ 13) (Miss.Ct.App.2002). In Blackmon, we explained that the statutory requirements of section 97-3-95(2) are met if the defendant engages in sexual penetration with a child under the age of eighteen, and the defendant is in a position within the named classification of individuals who are in a position of trust or authority over such child. Id.; see also Singleton v. State, 16 So.3d 742, 745 (¶ 12) (Miss.Ct.App.2009) (finding penetration to be the only element of sexual battery at issue because the victim was under the age of eighteen and the defendant was the victim’s father); Carter v. State, 775 So.2d 91, 96 (¶ 22) (Miss.1999) (finding that a teacher in a school that a child of that age attends has a position of trust or authority over a child sufficient to fit within the meaning of section 97-3-95(2)).

¶ 34. In the case at bar, the jury found that Wilson had sexually penetrated his daughter, Hughes, a child under the age of eighteen years. In accordance with the applicable statute, the jury was properly instructed that if it found that Wilson possessed the status of the parent of Hughes, then the jury must find that he held a position of trust or authority over her. Accordingly, relying on a plain reading of the statute under which Wilson was convicted, and also Mississippi precedent, we find no merit to his assertion that Instruction S-4 precluded the'jury from considering the elements of this crime as provided by section 97-3-95(2). Therefore, this argument is without merit.

IV. CLOSING ARGUMENT

¶ 35. Wilson asserts that the trial court erred by ruling that Wilson’s biblical references during the closing argument were improper.

¶ 36. We acknowledge that Mississippi Rule of Evidence 610 prohibits the use of a witness’s beliefs on religious matters for the purpose of attacking or enhancing credibility. We further note that Mississippi Rule of Evidence 611(a) “clearly recognizes the authority [of] the trial judge to ‘exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... make the interrogation and presentation effective for the ascertainment of the truth.’ ” Robinson v. State, 40 So.3d 570, 577 (¶ 27) (Miss.Ct.App.2009). Similarly, we review a ruling by the trial court as to improper arguments by counsel under the following standard of review: “whether the natural and probable effect of the improper argument is to create unjust prejudice so as to result in a decision influenced by the prejudice so created.” Foley v. State, 914 So.2d 677, 687 (¶ 18) (Miss.2005) (quoting Burr v. Miss. Baptist Med. Ctr., 909 So.2d 721, 724-25 (¶7) (Miss.2005)). We further acknowledge that the trial judge holds the best position to make a determination as to whether the alleged objectionable remark has a prejudicial effect on the jury. Id. at 687-88. We note that, at trial, the trial court challenges the jury to follow the law and apply the law to the facts presented at trial and not upon passion or prejudice. See Shumpert v. State, 935 So.2d 962, 972 (¶ 38) (Miss.2006) (finding that attorneys are afforded wide latitude in arguing their cases to the jury at trial but are not allowed to use tactics which are “inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury”).

¶ 37. Wilson sought to reference a biblical passage in his closing argument for an evidentiary purpose of attacking his daughter’s credibility by using the conduct of Lot’s daughters from the Bible. After the State objected to the reading of the biblical passage, the trial court found the reference improper and excluded the statements. Wilson stated that the point of the biblical reference was to show that a daughter can sexually overcome the father.

¶ 38. In reviewing this intended use, we find that Wilson improperly sought to use this biblical reference in his closing argument solely for an evidentiary purpose and that no evidence had been introduced at trial to argue such as a reasonable inference. See Mendenhall v. State, 18 So.3d 915, 918-919 (¶¶ 14-18) (Miss.Ct.App.2009) (finding that the trial court properly excluded evidence offered by a party during closing argument for the first time); see also Walker v. State, 913 So.2d 198, 239 (¶ 153) (Miss.2005) (citing Evans v. State, 725 So.2d 613, 676 (¶271) (Miss.1997) (finding that figurative speech may be used if there is evidence upon which it may be founded; however, counsel must confine himself “to the facts introduced in evidence and to the fair and reasonable deduction and conclusions to be drawn therefrom and to the application of the law, as given by the court, to the facts”)). In this case, Wilson failed to present any evidence to support the argument that his daughter had sexually overcame him. Therefore, we find no error in the trial court’s exclusion of this biblical reference in Wilson’s closing argument. This issue lacks merit.

V. JURY VERDICT

¶ 39. In his next assignment of error, Wilson argues that the verdict was not supported by the weight of the evidence. However, within his argument, Wilson cites and applies case law regarding the legal sufficiency of the evidence. Therefore, we will apply the legal sufficiency of the evidence standard in our review.

¶ 40. In Bush, the Mississippi Supreme Court explained the standard that appellate courts should use when reviewing claims regarding the legal sufficiency of the evidence. Bush, 895 So.2d 836, 843 (¶ 16) (Miss.2005). The supreme court stated the following:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for [a] directed verdict or for [a] judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” However, this inquiry does not require a court to
“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted). Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dy-cus v. State, 875 So.2d 140, 164 (Miss.2004) [ (vacated by Dycus v. Mississippi, 544 U.S. 901, 125 S.Ct. 1589, 161 L.Ed.2d 271 (2005))]. However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70....

Id.

¶41. In the case at hand, the parties presented the jury with two varying theories on how Wilson’s DNA arrived inside of his daughter’s vagina. The victim, Hughes, and her father, Wilson, the only witnesses to the event, both testified to the jury about what happened on the night in question. We recognize that “[t]he credibility of witness testimony is the province of the jury.” Price v. State, 892 So.2d 294, 297 (¶ 15) (Miss.Ct.App.2004) (citations omitted). The jury considered the evidence and testimony presented by both parties and reached their verdict based on this information. Therefore, we find this assignment of error without merit.

VI. CUMULATIVE ERROR

¶ 42. In Wilson’s final assignment of error, he argues that the cumulative effect of all of the errors committed at trial combine to create a reversible error. “The cumulative error doctrine stems from the doctrine of harmless error which holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Thompson v. State, 990 So.2d 265, 270 (¶ 12) (Miss.Ct.App.2008) (citing Harris v. State, 970 So.2d 151, 157 (¶ 24) (Miss.2007)). “However, reversal based upon cumulative error requires a finding or findings of error.” Id. Because we have found no error regarding Wilson’s conviction, harmless or otherwise, this issue is without merit.

¶ 43. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE AND ROBERTS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT. MAXWELL, J., CONCURS IN RESULT ONLY. MYERS, J, NOT PARTICIPATING.

      . In the interest of the minor child’s privacy, the minor’s name, as well as the names of her brother and mother, have been substituted with aliases.

      . Wilson’s counsel fails to raise issue with this motion in limine in his brief. Therefore, this Court will not review this motion in limine on appeal. See Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So.2d 1346, 1360 (Miss.1990) (citing Read v. S. Pine Elec. Power Ass'n, 515 So.2d 916 (Miss.1987)).

      . This motion in limine was not addressed as an issue on appeal by Wilson's counsel. As such, this Court will not review this motion in limine. See Palmer, 564 So.2d at 1360.

      .Wilson said that he expected Grant to testify that Hughes once lied when she told him that Horn had broken into her house when, in fact, she had voluntarily allowed him in her house. Furthermore, Wilson contended that Officer Travis would testify that Wilson had filed several police complaints against Horn and that Horn had made threats toward Wilson in response.

      . We note that, at trial, Wilson stipulated that he is the biological father of Hughes.

      . Wilson did not seek to call Helen to testify as to their previous sexual activities.

      . Wilson claimed that these witnesses would testify: Horn had previously made threats toward Wilson; Hughes had lied to Horn's probation officer about seeing Horn voluntarily; Horn had threatened Hughes's brother and mother on previous occasions; and Horn once destroyed a woman’s property after her son had told Wilson about Horn's whereabouts.

      . Because this Court has already ruled that the trial court abused no discretion in granting the State's third motion in limine, which operated to exclude any testimony concerning Horn, we will not re-address this argument for the second time but will, instead, uphold our earlier findings.

      . The record reflects that Wilson did not call Jerome to testify in this case.

      . Uniform Rule of Circuit and County Court 4.05 requires the defense to exercise any peremptory challenges it has at the time each panel is tendered.

      . Uniform Rule of Circuit and County Court 10.01(b) provides that peremptory challenges are to be exercised in the same manner as provided in these rules for civil cases and that the prosecution is required to exercise its challenges first.

      . We pause to note that after considering the objection and the reasons for the strike, the trial judge did not first state on the record whether he found the reason given by Wilson for the strike to be race neutral on its face before finding that the State had provided sufficient grounds to challenge Wilson’s purported non-discriminatory purpose that Wilson failed to rebut sufficiently.

      . See also URCCC 10.01(b) (stating that the prosecution must exercise its peremptory challenges first).

      . After considering the objection and the stated purpose of the strike, the trial court found that Wilson failed to provide a sufficient race-neutral justification for his strike without first articulating whether the reason provided by Wilson for the strike was race neutral on its face.

      . We note that the parental position is specifically named in the classification of individuals listed in section 97-3-95(2) as persons who hold positions of trust or authority over a child.

      . If in compliance with the Mississippi Rules of Evidence, counsel may otherwise draw upon religion, science, and literature. We have addressed the issue of biblical references most often in capital cases. See Carr v. State, 655 So.2d 824, 853 (Miss.1995). In Can, the Mississippi Supreme Court explained the acceptance of the use of biblical references in closing arguments by stating:
      This Court has continually held that counsel is afforded broad latitude in closing argument. This latitude, set out by the Court in Nelms & Blum Co. v. Fink, 159 Miss. 372, 382-383, 131 So. 817, 820 (1930), has been referred to in the context of capital cases. In Nelms, we stated that ‘‘[c]ounsel may draw upon literature, history, science, religion, and philosophy for material for his argument.” Id. at 382-384, 131 So. 817. See Hansen v. State, 592 So.2d 114, 139-140 (Miss.1991); Shell v. State, 554 So.2d 887, 899 (Miss.1989), vacated on other grounds, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990); Johnson v. State, 416 So.2d 383, 391 (Miss.1982).

        Carr, 655 So.2d at 853.

      . In Wilson’s brief, he claims that the trial court should have granted a new trial; however, his argument addresses his motion for a judgment notwithstanding the verdict, which we review for the legal sufficiency of the evidence. See Bush v. State, 895 So.2d 836, 843-44 (¶¶ 16-18) (Miss.2005) (outlining the differences between legal sufficiency of the evidence and the weight of the evidence).


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Harry STUDDARD and Jean Studdard, Appellants v. William Robert “Bob” PITTS, Appellee.
    No. 2009-CA-01436-COA.
    Court of Appeals of Mississippi.
    April 26, 2011.
    Rehearing Denied Aug. 16, 2011.
    Certiorari Denied Oct. 27, 2011.

      Ceola James, attorney for appellants.
    Penny B. Lawson, David M. Sessums, Vicksburg, attorneys for appellee.
   ISHEE, J.,

for the Court:

¶ 1. In 2008, Harry and Jean Studdard (the Studdards) filed suit against Bob Pitts in the Chancery Court of Warren County seeking to remove a cloud and confirm the title of real property — property which had previously been conveyed to Pitts. On July 9, 2009, the chancery court entered a final judgment finding that the Studdards’ claims were barred by the doctrine of res judicata because the claims had been adjudicated previously in the United States Bankruptcy Court in favor of Pitts. Aggrieved, the Studdards now appeal. Finding no error, we affirm the chancery court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1998, Harry Studdard executed a promissory note to Pitts in exchange for a piece of property in Warren County, Mississippi. After failing to pay the promissory note, Pitts filed suit against the Stud-dards in Warren County Circuit Court. In 2001, a final judgment was entered in favor of Pitts in the amount lacking on the promissory note. The judgment was then levied and executed against the property in question.

¶ 3. Thereafter, in 2005, a writ of execution was issued to the Warren County Sheriffs Department, authorizing the sheriff to levy the property. The sheriff levied the property and published a notice of “sheriffs sale under execution.” At the sheriffs sale, Pitts entered a successful bid for approximately the same amount he had received in the 2001 judgment, and the property was subsequently conveyed to him.

¶ 4. Several months after receiving the property, Pitts began an eviction proceeding against the Studdards, at which point the Studdards filed for voluntary Chapter 7 bankruptcy. Before the bankruptcy proceedings could conclude, the Studdards filed a complaint in bankruptcy court seeking to void the sheriffs sale of the property in question to Pitts on the basis that the property conveyance had occurred within ninety days before the Studdards filed for bankruptcy, which they claimed was improper under bankruptcy law. The bankruptcy court, however, dismissed the Stud-dards’ complaint in 2007 after finding that the transfer was proper and had occurred well before the ninety-day period in question. The bankruptcy proceedings were subsequently closed on October 1, 2007.

¶ 5. In 2008, the Studdards filed the complaint at issue in the Warren County Chancery Court, seeking to remove cloud and confirm the title of the property in question in their name. The Studdards argued that the property should have been classified as a homestead exemption in the bankruptcy proceedings and, therefore, protected from conveyance. After a trial on the matter, the chancery court entered a final judgment in July 2009, finding that the Studdards’ claims had already been adjudicated and were, therefore, barred by the doctrine of res judicata. The Stud-dards appeal and maintain that conveyance of the property was improper.

DISCUSSION

¶ 6. The standard of review of a “chancery court’s order to dismiss an action is the substantial evidence/manifest error standard.” Hearn v. Autumn Woods Office Park Prop. Owners Ass’n, 757 So.2d 155, 163 (¶ 39) (Miss.1999). The Mississippi Supreme Court has long held that when a party fails to assert his or her homestead exemption and the party’s property rights are then fully adjudicated, that party cannot afterwards claim the property as a homestead exemption in an effort to defeat a purchaser claiming title to the property under a decree of sale. Henderson v. Still, 61 Miss. 391 (1883).

¶ 7. Here, the Studdards failed to raise a homestead-exemption claim on the property until several years after the property was conveyed to Pitts. The Studdards were represented by counsel and participated in the 1998 circuit court case wherein judgment was entered against them in the form of a levy on the property. Thereafter, in 2005, they were further notified that a writ of execution was posted on the property and that the sheriff was proceeding with the sale of the property. Finally, they filed a complaint in bankruptcy court in 2006 which specifically attacked the conveyance of the property in question, and the bankruptcy court entered a final judgment on August 2, 2007, determining that conveyance of the property to Pitts was valid. However, at no point during any of the aforementioned proceedings did the Studdards attempt to claim the property as a homestead exemption. It was not until July 30, 2008, well after them property rights had been adjudicated on numerous occasions and by several different courts, that the Studdards presented their homestead-exemption argument. Accordingly, conveyance of the property to Pitts in the sheriffs sale was proper.

¶ 8. Furthermore, where a final judgment on the merits has been entered, subsequent claims by parties or their privies based on the same cause of action are barred by the doctrine of res judicata. Williams v. Vintage Petroleum, Inc., 825 So.2d 685, 688 (¶10) (Miss.Ct.App.2002). The following four factors determine whether res judicata applies: “(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person for or against whom the claim is made.” Id.

¶ 9. In this case, a final judgment was entered in 2007 with regard to the Stud-dards’ 2006 complaint regarding conveyance of the property to Pitts. The subject matter involved in both the 2006 complaint and the instant case was the property in question. Next, the identity of a cause of action is found where there is a commonality among the “underlying facts and circumstances upon which the present claim is asserted and relief sought.” Riley v. Moreland, 537 So.2d 1348, 1354 (Miss.1989). Here, the same set of facts and circumstances exist in both the 2006 complaint and the present case — the Stud-dards challenge of the conveyance of the property. Finally, it is clear that the identity of the parties and the identity of the person against whom the claim is made is the same in both cases. Accordingly, we find that dismissal of the Studdards’ case on the basis of res judicata was proper, and we affirm the chancery court’s judgment.

¶10. THE JUDGMENT OF THE WARREN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., AND MYERS, J., NOT PARTICIPATING.


author: ROBERTS, J.,

text:
    Charles DAVIS and Vera Davis, Appellants v. COUNTRYWIDE HOME LOANS, INC. and Emily Kaye Courteau, Substituted Trustee, Appellees.
    No. 2009-CA-01932-COA.
    Court of Appeals of Mississippi.
    May 17, 2011.
    Rehearing Denied Oct. 25, 2011.

      Sharon D. Henderson, attorney for appellants.
    James Eldred Renfroe, Roy J. Perilloux, Michael Alan Jedynak, attorneys for appel-lees.
   ROBERTS, J.,

for the Court:

¶ 1. The instant litigation has a long, storied, and confusing procedural history. To summarize, Charles and Vera Davis (the Davises) owned 160 acres of property in Hinds County, Mississippi. The Davises took out a loan on a 6.32-acre portion of the property with Countrywide Home Loans, Inc. (Countrywide) being the loan’s beneficiary. The Davises brought suit against Countrywide regarding an issue with the property description in the loan as it encumbered all 160 acres as opposed to just the 6.32 acres originally intended by the parties. Countrywide executed a release of all property in the description except for the 6.32 acres. The case was sent to arbitration where the arbitrator found that the Davises’ claims had no merit. The Davises attempted to amend their complaint, but the Hinds County Chancery Court dismissed the case with prejudice. Still having received no payments from the Davises, Countrywide commenced its first foreclosure. The Davises filed suit again alleging the same issues from the previous suit. This case was removed to federal court where summary judgment was granted in favor of Countrywide. Countrywide commenced its second foreclosure. This foreclosure was completed. A year later, on February 7, 2008, the Davises filed suit again; this time, they filed a petition to set aside the foreclosure. The chancery court granted summary judgment in favor of Countrywide. The Davises then filed a motion to set aside judgment under Mississippi Rule of Civil Procedure Rule 60, a motion for summary judgment on the issue of attorney’s fees, and a motion for reconsideration. All of these motions were denied by the chancery court. It is from this final denial of the Rule 60 motion that this appeal is now before us.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 5, 1993, the Davises acquired 160 acres of property in Hinds County, Mississippi. The deed describes the property as “[t]he West Half (W 1/2) of the Northeast Quarter (NE 1/4) and the North Half (N 1/2) of the Southeast Quarter (SE 1/4) of Section 24, Township 3 North, Range 2 West, Second Judicial District of Hinds County, Mississippi.”

¶ 3. Using the same property description, the Davises took out a $300,000 loan against the property with the beneficiary being Countrywide. The parties only intended to include the 6.32-acre homesite for the loan; however, as the property description read, it included all 160 acres. On May 14, 2002, Countrywide executed a partial release. This document “releases from the lien” all the property included in the property description excluding the 6.32 acres that were originally intended to be covered by the loan.

¶ 4. Four months later, on August 6, 2002, the Davises brought suit in the Hinds County Circuit Court alleging negligence, negligent or intentional misrepresentation, and fraud. They sought $100,000,000 in compensatory damages and $100,000,000 in punitive damages. On October 4, 2002, the Davises filed a complaint in the United States District Court for the Southern District of Mississippi. In their complaint, the Davises sought to have the district court compel the arbitration of the claims in the August 6, 2002 circuit court case. The district court issued an opinion and order on December 13, 2002, compelling arbitration of all of the Davises’ claims against Countrywide. The arbitrator found that the Davises were entitled to no relief. The Davises then filed a motion to amend their complaint and a motion requesting the district court to examine affidavits prior to dismissing claims and entering an arbitration order. Judge William Barbour Jr., the district court judge, denied the Davises’ motions, did not vacate the arbitration award, and found that its decision “represents the resolution of all claims [the Davises] had against [Countrywide].” It was also at this time that the district court dismissed the case with -prejudice on January 19, 2005. The Davises then filed, in the district court, a motion for reconsideration of the January 2005 district court’s opinion. On March 8, 2005, the district court denied the Davises’ motion for reconsideration.

¶ 5. Undeterred, on May 24, 2005, the Davises filed another suit. This time it was a complaint for injunctive relief and a temporary restraining order. This suit was filed in the chancery court, but it was then removed to federal district court with Judge Henry Wingate presiding. Countrywide filed a motion for summary judgment asking the district court to declare an easement by implication on a portion of the Davises’ property. The district court entered an amended final judgment granting Countrywide’s motion for summary judgment and an easement by implication over the Davises’ property on December 18, 2006. The Davises had not made any payment on their $300,000 mortgage since February 22, 2001. Countrywide proceeded to foreclose on the property. On February 28, 2007, a substitute trustee deed was executed when Countrywide completed the foreclosure process on the 6.32 acres of land and easement.

¶ 6. On February 7, 2008, once again undeterred, the Davises filed a petition to set aside the foreclosure in the chancery court. On April 30, 2009, the chancery court issued an opinion and order denying the Davises’ motion for summary judgment because it contains no allegations for which relief may be granted and finding that the issues involved are subject to res judicata. . It granted Countrywide’s motion for summary judgment. The Davises were also ordered to vacate the property on or before May 31, 2009. Less than one month later, the Davises filed a motion to set aside the judgment under Rule 60, a motion for summary judgment on the issue of attorney’s fees, and a motion for reconsideration. Countrywide filed a combined response to the Davises’ motions, a motion to stay the order, and a motion for contempt since the Davises had failed to vacate the property. The chancery court denied the Davises’ post-trial motions with prejudice and found them in contempt for failing to vacate the property pursuant to the April 30th order.

¶ 7. It is from this last denial of the post-trial motions that the Davises appeal. They raise the following issues on appeal:

I. Whether the chancery court erred in not setting aside the foreclosure due to the incorrect property descriptions.
II. Whether the chancery court erred in not setting aside the foreclosure due to newly discovered evidence.

Finding no error, we affirm.

STANDARD OF REVIEW

¶ 8. “When reviewing a grant or denial of a Rule 60(b) motion, an appellate court will only reverse the ruling of a chancellor upon the finding of abuse of discretion.” Cuffee v. Wal-Mart Stores, Inc., 977 So.2d 1187, 1191 (¶ 14) (Miss.Ct.App.2007) (citing City of Jackson v. Jackson Oaks Limited Partnership, 860 So.2d 309, 311 (¶ 6) (Miss.2003)). A chancellor’s finding of fact is subject to the manifest error/substantial evidence standard, but questions of law are reviewed de novo. Jenkins v. Terry Invs., LLC, 947 So.2d 972, 977 (¶ 15) (Miss.Ct.App.2006).

ANALYSIS

I. Property Description

¶ 9. In their brief, the Davises now argue that the property description in the original deed of trust was ambiguous and incorrect; thus, the subsequent foreclosure sale using that property description is invalid and should be set aside. They argue that the description in the deed of trust encumbers the whole property, including land owned by persons other than the Davises, and that Countrywide’s partial release is not sufficient to cure the error in the property description stated in the deed of trust. As is apparent from the record provided to us, this case has a very lengthy procedural history. The claims have been presented to or heard by a chancellor, a circuit judge, two federal district court judges, and an arbitrator; each time, the claims have been dismissed with, prejudice or found without merit. In the chancellor’s April 30, 2009 opinion, he found that the Davises’ claims were subject to res judicata. “Res judicata is a doctrine which protects the finality of judgments.” Jenkins, 947 So.2d at 977 (¶ 18). “[It] requires four elements: (1) identity of the subject matter, (2) identity of the cause of action, (3) identity of the parties, and (4) identity of the quality or character of a person against whom the claim is made.” Id. (citation omitted).

¶ 10. While we might completely agree that the Davises’ claims are subject to res judicata, that issue is not properly before us. We must deal solely with the chancellor’s denial of the Rule 60 motion for relief from judgment.

II. Rule 60

¶ 11. The Davises next argue that the chancellor erred in denying their Rule 60(b) motion to set aside the judgment based on newly discovered evidence. It is well-settled law in Mississippi that granting a Rule 60(b) motion requires a showing of the following:

(1) the evidence was discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; (5) the evidence is such that a new trial would probably produce a new rer suit.

Cuffee, 977 So.2d at 1191-92 (¶ 18) (quoting Moore v. Jacobs, 752 So.2d 1018, 1015 (¶ 18) (Miss.1999)). It is also well-settled law that it is incumbent upon the appellant “to provide authority in support of an assignment of error.” Taylor v. Kennedy, 914 So.2d 1260, 1262 (¶4) (Miss.Ct.App.2005) (quoting United Plumbing & Heating Co. v. Mosley, 835 So.2d 88, 92 (¶ 8) (Miss.Ct.App.2005)). The Davises failed to cite to any authority in support of their argument that the chancellor erred by not setting aside the foreclosure due to newly discovered evidence, essentially a Rule 60(b) motion. This Court has found that the “[f]ailure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment.” Id. Therefore, we will not address this assignment of error.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, CARLTON AND MAXWELL, JJ„ CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . The note and deed of trust were assigned to Countrywide by WMC Mortgage Company on March 5, 2001.

      . The district court construed the two motions together to as a motion to vacate the arbitration award.


author: MAIN, Justice.

text:
    Benjamin L. LITTLE v. Gene ROBINSON.
    1090428.
    Supreme Court of Alabama.
    April 8, 2011.
    Rehearing Denied June 10, 2011.

      William Eugene Rutledge of Rutledge & Yaghmai, Birmingham, for appellant.
    W. Taylor Stewart of Donald W. Stewart, P.C., Anniston, for appellee.
   MAIN, Justice.

Benjamin L. Little, the plaintiff below, appeals from a judgment of the Calhoun Circuit Court dismissing his tort-of-outrage claim against Gene Robinson. For the following reasons, we affirm the trial court’s judgment.

Procedural and Factual History

On March 31, 2009, Little sued Robinson in the Calhoun Circuit Court, asserting claims of assault and the tort of outrage. Little stated in his complaint that he was one of two African-American members of the five members elected to serve on the Anniston City Council; Robinson was the mayor of Anniston and, by virtue of his position as mayor, was a voting member of the Anniston City Council. According to Little, beginning with the November 8, 2008, city-council meeting, the council meetings were marked with acrimony along racial lines, with Robinson, a Caucasian, voting in concert with the two Caucasian city-council members. Little further alleged in his complaint that, at one point,

“[t]he simmering unrest on the Anniston City Council boiled over finally, with [Robinson] and [Little] having a toe-to-toe screaming match in City Hall. [Robinson] and [Little] argued about the day’s council meeting agenda, but the dispute quickly escalated. Each man accused the other of looking ready to throw punches. The police were on standby. Whatever happened, [Robinson] and [Little] both said they were ready to stand their ground — especially if fists started flying. [Little] stated that [Robinson] ran over to him like he wanted to do something, and if he did he would take action from there. [Robinson] said if it had gotten ugly, ‘[w]e’d be having [Little’s] funeral today.’ The blowup resulted when the items which had been placed on the council’s agenda by [Little] were removed by Robinson, who thought they should be on the pre-meeting agenda for discussion, not a vote.”

In his complaint, Little characterized Robinson’s reference to his funeral as a threat to kill Little, and Little stated that his life had since been threatened “by unknown persons clearly encouraged since the public threat by [Robinson] to kill [Little].”

Little also alleged that,

“[o]n or about August 27, 2008, the Defendant Robinson stated to The Anni-ston Star, the local newspaper in Anni-ston, Alabama, that he had won the election for Mayor of Anniston earlier in the month because, ‘I bought into the black corruption in Anniston.’ Robinson named the Plaintiff, Curtis Ray,[] as a part of this alleged black corruption and as a person who, for the payment of $ 1,700.00 by Robinson to him, passed out marked sample ballots at polling places and ‘assist[ed] people to the door.’ Robinson stated that the $1,700.00 came out of his election fund. Robinson characterized the success of his campaign and election as based on a corrupt payment to Ray. Robinson characterized the payment to Ray as, ‘I bought into the black corruption in An-niston. And it worked.’ ”

Little further alleged in his complaint that on March 24, 2009, Robinson, in his capacity as mayor, attended a meeting of the “League of the South.” Little asserted that the “League of the South” is a group that proposes that the State of Alabama secede from the United States of America and that the group has been labeled a “hate group” by the Southern Poverty Law Center. Little further claimed that Robinson “has regularly used hate speech against African Americans.”

Based on these allegations, Little contended:

“12. [Little] has been injured and damaged as a proximate result of [Robinson’s] aforesaid tortious conduct. [Robinson] has committed the tort of outrage against [Little]. [Robinson] is a racist who claims [Little] should be killed if he continues to oppose [Robinson] in Anniston City Council meetings. Because of [Robinson’s] public threat to kill [Little], and because of his position as mayor of Anniston, other persons presently unknown to [Little] have threatened to kill him following [Robinson’s] lead.
“13. [Robinson] has acted in a manner that is intolerable in a civilized society. By threatening to kill [Little], [Robinson] has severely interfered with [Little’s] ability to serve as an effective member of the Anniston City Council. [Little] has been held up to public ridicule and shame; he has been made fearful of his life; he has been made sick, sore and caused to suffer great mental anguish; and he has been otherwise injured and damaged as aforesaid. [Little] claims entitlement to money damages in an amount awarded by the Court to [Little].”

On May 13, 2009, Robinson filed a motion to dismiss Little’s complaint for failure to state a claim upon which relief could be granted. See Rule 12(b)(6), Ala. R.Civ.P. The trial court ordered Robinson to file a brief in support of the motion to dismiss and ordered Little to file a brief opposing the motion to dismiss.

On June 5, 2009, Robinson filed a brief setting out his understanding of the applicable law and asserting that even if Little’s factual allegations were taken as true and the allegations viewed in the light most favorable to Little, the allegations did not satisfy the elements of the tort of outrage. Specifically, Robinson averred that the comment regarding Little’s funeral made during their argument in city hall was an “off-hand remark” that did not constitute a threat to kill Little and that, even if it were construed as a threat, Robinson’s actions did not amount to the type of extreme, egregious actions that would satisfy the elements of the tort of outrage.

On August 18, 2009, Little filed his response to Robinson’s motion to dismiss. Little argued that the few examples of outrageous conduct referenced in Robinson’s brief and in our caselaw did not constitute an exhaustive or exclusive list of conduct that would support a tort-of-outrage claim. Rather, Little argued, outrage was subjective and the allegations in his complaint were sufficient to support a tort-of-outrage claim.

The trial court scheduled a hearing on Robinson’s motion to dismiss for October 26, 2009. On December 4, 2009, the trial court issued an order granting Robinson’s motion to dismiss Little’s assault and tort-of-outrage claims, finding, in pertinent part:

“This matter came before the Court on a Motion to Dismiss filed by [Robinson] in this case. The Court has reviewed the briefs filed by each party and considered the oral arguments offered by each side as well. The Court has applied the legal standard for deciding whether to grant the Motion to Dismiss by viewing the allegations in the complaint in the pleader’s favor and attempting to determine whether the pleader could prove any set of circumstances that would entitle him to relief by accepting the allegations of the complaint as true.
“Regarding Count 1 and the tort of outrage, the Court finds that tort of outrage is extremely limited by the courts of Alabama. Conduct must be extreme and outrageous; it must also be such conduct that would cause severe distress. It is only recognized in the most exceptional of circumstances. The conduct must be so outrageous in character and extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized society. American Road Service Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980). The Court fails to find that the statement in this case meets that standard. Additionally, [Little] asserts in his response to [Robinson’s] Motion to Dismiss that this statement which is the subject of the claim should be reviewed while keeping in mind that [Little] is a member of the city council and [Robinson] is the mayor. [Little] submits no legal support for this additional consideration that [he] requests, nor is the Court aware of any such legal standard that would apply under these circumstances. Therefore, the Court finds that [Little] has failed to state a claim upon which relief can be granted and Count I is DISMISSED with Prejudice.”

(Capitalization in original.) This appeal followed.

Standard of Review

This Court’s review of a trial court’s dismissal of a party’s claims on the basis of Rule 12(b)(6) is de novo.

“On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6)[, Ala.R.Civ.P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993). See also DGB, LLC v. Hinds, 55 So.3d 218 (Ala.2010); and McDole v. Alfa Mut. Ins. Co., 875 So.2d 279 (Ala.2003).

Analysis

This Court first recognized the tort of outrage in 1980, in American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1980). In Inmon this Court recognized the tort proposed by the Restatement (Second) of Torts § 46 (1948), holding:

“[O]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. The emotional distress thereunder must be so severe that no reasonable person could be expected to endure it. Any recovery must be reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme. Comment, Restatement[ (Second) of Torts § 46], at 78 [ (1948) ]. By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. Comment (d), Restatement, supra at 72.”

394 So.2d at 365. The Court noted m Inmon that the tort of outrage

“does not recognize recovery for ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ Comment, Restatement, supra, at 73. The principle applies only to unprivileged, intentional or reckless conduct of an extreme and outrageous nature, and only that which causes severe emotional distress.”

394 So.2d at 364-65. As this Court has since held:

“The tort of outrage is an extremely limited cause of action. It is so limited that this Court has recognized it in regard to only three kinds of conduct: (1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So.2d 901 (Ala.1987); (2) barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So.2d 133 (Ala.1983); and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So.2d 322 (Ala.1989). See also Michael L. Roberts and Gregory S. Cusimano, Alabama Tort Law, § 23.0 (2d ed.1996). In order to recover, a plaintiff must demonstrate that the defendant’s conduct ‘(1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it.’ Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38, 44 (Ala.1990) (citing American Road Service Co. v. Inmon [, 394 So.2d 361 (Ala.1980) ]).”

Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000). That is not to say, however, that the tort of outrage is viable in only the three circumstances noted in Potts. Recently, this Court affirmed a judgment on a tort-of-outrage claim asserted against a family physician who, when asked by a teenage boy’s mother to counsel the boy concerning his stress over his parents’ divorce, instead began exchanging addictive prescription drugs for homosexual sex for a number of years, resulting in the boy’s drug addiction. See O’Rear v. B.H., 69 So.3d 106 (Ala.2011). It is clear, however, that the tort of outrage is viable only when the conduct is “ ‘so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.’” Horne v. TGM Assocs., L.P., 56 So.3d 615, 631 (Ala.2010) (quoting Inmon, 394 So.2d at 365).

Even accepting the allegations in Little’s complaint as true and viewing them in the light most favorable to him, we cannot say that Little could establish a tort-of-outrage claim. Simply put, as alleged in Little’s pleadings, Robinson’s conduct did not constitute the type of extreme and outrageous conduct required to support a tort-of-outrage claim. Robinson’s “funeral” comment, as alleged by Little, was not a threat to kill Little, presently or prospectively, nor was it an invitation for others to kill Little. Rather, taken in context and at face value, it was at most a comment that Robinson would have killed Little during the confrontation at city hall if things had escalated during that confrontation.

Similarly, although Little averred in his complaint that Robinson voted along racial lines in matters before the city council, votes in bodies whose members are elected are often not unanimous, and those votes are frequently cast along certain socioeconomic, religious, cultural, racial, regional, party, or other identifiable line. Nothing in Little’s allegation suggests that Robinson acted in an extreme or outrageous manner in so voting.

As to Little’s allegation that Robinson “regularly engaged in hate speech against African Americans” and had attended a meeting of an organization identified as a hate group by the Southern Poverty Law Center, nothing in the record indicates the nature, extent, context, or egregiousness of Robinson’s alleged racial comments.

With regard to Robinson’s statement to a newspaper reporter that he had been elected mayor of Anniston because he had “bought into the black corruption in Anni-ston,” we cannot say from the context provided by Little in the record before this Court that that comment satisfied the stringent requirements for the tort of outrage.

Conclusion

Although we do not endorse the type of comments allegedly made by the defendant in this case, we conclude that the allegations in Little’s complaint, whether viewed individually or cumulatively, simply do not amount to “conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. Comment (d), Restatement! (Second) of Torts § 46,] at 72 [ (1948) ].” Inmon, 394 So.2d at 365. Accordingly, we affirm the trial court’s judgment insofar as it dismisses Little’s tort-of-outrage claim.

AFFIRMED.

COBB, C.J., and WOODALL, BOLIN, and MURDOCK, JJ., concur.

      . Little does not challenge on appeal the propriety of the trial court’s dismissal of his assault claim. Therefore, we do not set out any facts or engage in any discussion regarding that claim.

      . The record does not contain any other mention of an individual named "Ray,” nor do the briefs disclose or clarify the identity of the person to whom this allegation refers. Little is the only plaintiff in the action. It is unclear whether this reference identifies a third party, or whether the references to "Ray” are meant to be "Little.” Regardless, this ambiguity does not change our conclusion in this case.

      . A transcript of that hearing was not included in the record submitted to this Court.

      . We note that the confrontation was one in which, from all indications, including Little’s own pleadings, Little was an active and willing participant.