author: DICKINSON, Justice,

text:
    Kevin BERRY v. Ora L. PATTEN, as next Friend of Bianca Patten, Shadarryl Hardnett and Mariah Patten.
    No. 2009-CA-01441-SCT.
    Supreme Court of Mississippi.
    Dec. 16, 2010.
    Rehearing Denied Feb. 3, 2011.

      L. Carl Hagwood, Jackson, Mary Frances Stallings-England, attorneys for appellant.
    William C. Walker, Jr., attorney for ap-pellees.
   DICKINSON, Justice,

for the Court:

¶ 1. Sheila Patten, who was being prepared for surgery by Kevin Berry, a Certified Registered Nurse Anesthetist (CRNA), aspirated stomach fluids into her lungs, leading to her death several weeks later. At issue in this wrongful-death suit is whether the plaintiff produced sufficient evidence that Berry breached the standard of care required of a CRNA. Because she did not, we reverse.

I. BACKGROUND

Factual Background

¶ 2. Sheila Patten underwent gastric-bypass surgery at Baptist Memorial Hospital in Oxford, was discharged to go home, but returned to the emergency room late the following night, complaining of abdominal pain, nausea, vomiting, and mild shortness of breath. Dr. Mickey King, the surgeon on call, diagnosed her with a small-bowel obstruction — a known complication of gastric bypass surgery — and admitted her to the hospital. The following morning, Dr. King’s partner, Dr. James Robert Barnes, examined Sheila and scheduled her for exploratory surgery later that day.

¶ 3. Dr. Keith Roller, a board-certified anesthesiologist, performed a pre-anesthe-sia evaluation, and developed an anesthesia care plan calling for general anesthesia with rapid-sequence induction — a method involving a sedative, quickly followed by injection of a paralytic drug, cricoid pressure (pressure on the cartilage around the trachea to open the airway), and intubation (the insertion of a tube into the trachea to maintain an open airway). Dr. Roller’s anesthesia plan did not call for use of a nasogastric tube (NG tube).

¶ 4. In some surgical procedures, an NG tube is inserted through the nose into the stomach to remove the stomach’s contents, reducing the risk that the patient will aspirate (regurgitate, and then breathe into the lungs) the stomach’s contents. However, because of the risk that an NG tube could rupture the sutures or staples in the stomach, allowing the stomach contents and blood to leak into the peritoneal cavity, both Dr. King and Dr. Barnes strictly prohibited the use of NG tubes on patients following gastric-bypass surgery; and as an extra precaution, they had notations placed on these patients’ patient cards prohibiting the use of NG tubes.

¶ 5. At the time Sheila’s surgery was to begin, the hospital — according to its normal procedure — had a CRNA in each of its six or seven active operating rooms, all supervised by three anesthesiologists. Sheila’s CRNA, Berry, was supervised by Dr. Fredrick Jones, who was not in the operating room when Berry began to prepare Sheila for her procedure.

¶ 6. Sheila was placed on the operating table, the paralytic drug was administered, and a nurse applied cricoid pressure. When Berry noticed fluid coming from Sheila’s nose, indicating her stomach contents were coming up, he put a tube down into her lungs and forced air through it, while a nurse called for help. Dr. David Huggins, an anesthesiologist who was not on call, happened to hear the call for help and immediately responded, arriving slightly before Dr. Jones.

¶ 7. Finding no problem with Sheila’s vital signs, breathing, or airways, Dr. Huggins performed a pulmonary lavage to flush her lungs with saline solution, and then placed an arterial line. With the help of a ventilator, Sheila began breathing again, and Dr. Barnes proceeded with the surgery, clearing the small-bowel obstruction.

¶8. Following the surgery, Sheila was placed in a coma and remained in the intensive-care unit for about a week. When her kidneys began to fail, she was transferred to a Tupelo hospital and she began to improve, allowing the doctors to remove the ventilator and begin dialysis. But after several weeks of treatment, she died.

Procedural Background

¶ 9. Sheila’s mother, Ora Patten — on behalf of Sheila’s three children — filed a wrongful-death suit against the hospital, Dr. Barnes, Dr. Jones, and Berry. Before trial, the hospital and Dr. Barnes were dismissed from the suit. Following the trial, the jury returned a defense verdict for Dr. Jones, but found for the plaintiffs against Berry, awarding damages of $1,150,000.

¶ 10. Berry filed a Motion for Judgment Notwithstanding Verdict, Motion for a New Trial or, Alternatively, Motion for Remittitur, suggesting the following errors:

• the jury’s verdict was improper and erroneous as a matter of law against the overwhelming weight of the evidence;
• jury instruction P-6A did not conform to Mississippi law on negligence, in that the instruction used terms that do not exist in medicine and cannot be found in the record;
• the trial court erred in allowing the jury to consider damages when heirship had not been determined and to consider damages for the minors when no guardian had been appointed;
• the trial court erred in allowing the jury to consider damages for funeral expenses, net present cash value and survival claims, as the plaintiffs lacked capacity to claim these elements of damages;
• the trial court erred in allowing the reading of Dr. Richard Mackey’s deposition in its entirety;
• the trial court erred in striking Juror 26, Bradley S. Knight, and inserting Juror 27, Sheila R. Tyson, in his place when Juror 19, Louann Hood, became ill; and
• the trial court erred in denying the defendant’s requested jury instruction, D-15, when the plaintiffs’ expert witness, Dr. James Futrell, affirmed, “These deviations caused a missed opportunity to prevent and/or limit the occurrence of the aspiration that followed.”

¶ 11. The trial court denied Berry’s post-trial motion and he appealed, raising the issues listed above.

II. ANALYSIS

¶ 12. Because Berry’s first two issues— which we analyze as a single issue — are dispositive, we decline to address the others.

Standard of Review

¶ 13. Berry’s first two assignments of error, read together, claim that the plaintiffs standard-of-care instruction was an improper statement of the law, and that the plaintiff produced insufficient evidence to establish that he breached the applicable standard of care. Berry’s claim essentially challenges the trial court’s denial of his motions for directed verdict and for judgment notwithstanding the verdict (JNOV), both of which required “the trial court to test the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence.”

¶ 14. When a trial court denies these dispositive motions, and the issue is appealed here, our standard of review requires us to

consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.

¶ 15. Our analysis begins with a review of the jury instruction that set out the standard of care to be applied to Berry.

Jury Instruction P-6A

¶ 16. The trial judge, rejecting the plaintiffs proposed standard-of-care instruction, stated:

Now, during the break see if you gentlemen can get together and come up with an instruction on the standard of care, a little more definite statement of it. Let’s see what we can do, okay.

¶ 17. Following the lunch break, plaintiffs counsel — after announcing that the lawyers “didn’t agree on drafting anything together” — presented the following instruction:

This Court instructs the jury that the applicable standards of care alleged by Plaintiff are as follows:
(1) Utilization of an NG tube;
(2) Fiberoptic induction;
(3) Presence of an anaesthesiologist in the OR at the time of induction;
(4) Use of the Trendelenburg position before induction;
(5) Use of the Trendelenburg position after the beige fluid was seen and before intubation;
(6) Suctioning immediately after intu-bation rather than beginning ventilation.
Therefore, if you find the standard of care to be any of the above and you further find that such standard of care, if any, was breached and that such breach proximately caused Sheila Patten’s death, then you must find for Plaintiff and against any Defendant who you find breached the standard of care.

¶ 18. Over Berry’s objection, the trial court agreed to give this instruction, which failed to inform the jury of the burden of proof, failed to distinguish which alleged standard of care applied to which defendant (one an anesthesiologist, and the other a CRNA), and failed to relate the general phrases — “utilization of an NG tube” and “fiberoptic induction” — to the facts or the defendants. As one example of potential misuse of the instruction, the jury easily could have concluded that the “standard of care” required use of an NG tube, and because Berry did not use one, that he breached the standard of care. This conclusion — justified under the instruction— ignores the undisputed facts that use of an NG tube was not included in the anesthesia plan, and that Berry was prohibited by the surgeon from using an NG tube.

¶ 19. Also, the first two items alleged to be “standards of care” were not only so general that they provided little help to the jury, but, as to Berry, they were conflicting. The general statement “utilization of an NG tube,” standing alone, is hardly a standard of care. And as established by the plaintiffs own expert, these two alleged “standards of care” are in fact techniques used in entirely different anesthesia procedures. So if they both were “applicable standards of care alleged by Plaintiff,” then the plaintiff, through the instruction, alleged that both should have been done — a position not supported by any expert testimony.

¶ 20. In discussing general anesthesia with rapid-sequence induction — the anesthesia plan ordered by Dr. Roller — the parties disagreed on whether an NG tube should have been used. But no one— including the plaintiffs expert — alleged “fi-beroptic induction” should have been used for the kind of anesthesia plan provided for Berry.

¶ 21. And conversely, “fiberoptic intu-bation” (according to plaintiffs expert) is used in an entirely different anesthesia plan, “in those situations where to paralyze the patient would present the dangers that have now been presented.” But “use of an NG tube” and “fiberoptic induction” could not both have been the standard of care for Berry because, regardless of which anesthesia plan was followed, one of the standards of care would have been breached.

¶ 22. All of that said, this case must be reversed, because the plaintiff failed to produce expert testimony that Berry had breached any of the six alleged standards of care.

1. Use of an NG Tube

¶ 28. The surgeons prohibited the use of an NG tube on patients (such as Sheila) who had undergone gastric-bypass surgery. In fact, Sheila’s surgeon, Dr. Barnes, placed the following notation on her patient-information card: “Under no circumstances can this patient ever have a nasogastric tube placed.” Dr. Roller — the anesthesiologist who prepared the anesthesia plan — did not include in the plan the use of an NG tube, and there is no evidence in the record that Berry deviated from the anesthesia plan.

Dr. Richard Mackey

¶ 24. Dr. Richard Mackey, an anesthesiologist, provided the following testimony concerning the use of an NG tube:

Q. Did Dr. Barnes have a ... rule or unwritten rule pertaining to the use of NG suction on a post gastric bypass small bowel obstruction?
A. Yes. That’s not necessarily an unwritten rule. That may actually be a standard of care, that we don’t — if we know a person has had a gastric bypass procedure, that we do not — particularly a [Roux-en-Y] procedure, that we do not put an NG tube down.
Q. Okay. Now, if the surgeon ... believed that necessary to be done, would he order that and then supervise the NG suction?
A. Right.
Q. Okay. So as a rule, you wouldn’t do it until the surgeon asked for it or ordered that?
A. Right. Correct.
Q. In the specific scenario of a post [Roux-en-Y] gastric bypass who came back with a small bowel obstruction?
A. That is right.
Q. But you’re not going to say, “Well, whatever you say, Doc” ... to the surgeon?
A. Right.
Q. Because you have your own independent responsibility to protect the patient from a catastrophic event, correct?
A. Correct.
Q. And so the anesthesiologist would be the one who would need to participate in the sort of discussion with the surgeon because of the difficulty of the situation?
A. Right.

¶ 25. Keeping in mind that the appellant before us is Berry, a CRNA, this expert testimony establishes only that the surgeons prohibited use of NG tubes following gastric bypass surgery, and exceptions to the rule could be made only where an anesthesiologist had discussed the problem with the surgeon — which did not happen in this case. And since Berry is a CRNA, not an anesthesiologist, this testimony has no application to him.

Dr. James Futrell

¶ 26. The plaintiff also called Dr. James Futrell, an anesthesiologist from Los An-geles, who agreed that the placement of an NG tube in post-gastric-bypass patients poses a risk of rupturing the surgical site, but testified that, in his opinion, not placing an NG tube poses a greater risk of aspiration. Dr. Futrell disagreed with Dr. Barnes’s assessment that Sheila should never have an NG tube, and he stated that the anesthesiologist responsible for Sheila’s care should not have agreed to such a restriction:

Q. I want you to assume for me that her surgeons in this case had instructed the anesthesiologist never to pass a na-sogastric tube. I want you to make that assumption for me. I want you to further assume that the anesthesiologist considered the request of the surgeons and formed an independent medical judgment as [an] anesthesiologist[ ] that this was a valid medical request; and that they themselves were of the opinion that a nasogastric tube should not be placed in this type of patient. Making those assumptions, are you now of the opinion that Dr. Jones or Kevin Berry or any of the other anesthesiologists were neglect? [sic ] ... Doctor, making those assumptions, first, are the surgeons negligent in your opinion and is the anesthesiologist for forming this medical judgment and recommending this to the anesthesiologist?
A. I think that any physician who would make such a statement as to “never” and to state that under no circumstances should a patient ever have a nasogastric tube, and to have an anesthesiologist responsible for that patient’s life, and for that patient’s airway, giving that patient dangerous paralytic drugs, to agree to that is a breach of the standard of care.

¶ 27. While this testimony does allege that Dr. Barnes breached the standard of care by ordering that an NG tube was “never” to be placed, and that Dr. Jones, the anesthesiologist, breached the standard of care by agreeing to that order, it falls far short of establishing that Berry, a CRNA, breached the standard of care by following Dr. Berry’s anesthesia plan, or by following the surgeon’s orders not to place an NG tube. Moreover, Dr. Futrell testified that even had an NG tube been placed, it would not have been Berry or Dr. Jones who would have placed it:

Q. Doctor, let’s continue on. I think one of the things that you’ve testified to was that the anesthesiologist could have conferred with the surgeon over the placement of the NG tube, correct?
A. Yes, should have.
Q. And you believe should have. In fact, the anesthesiologist, I believe you testified to in your deposition, should have called the surgeon down and said, “You place the NG tube.”
A. Exactly.

¶ 28. Dr. Futrell later testified:

Dr. Jones is the anesthesiologist who is the attending and responsible physician, and it was his responsibility to preopera-tively evaluate this patient after Dr. Roller and before, immediately before the induction of anesthesia and to be in the room with the patient to manage this patient along with the nurse anesthetist, Berry; and that is the breach of the standard of care; and that is the anesthesiologist who is responsible.

¶ 29. So the most Dr. Futrell’s testimony established was that the anesthesiologist, Dr. Jones, had a duty to summon Dr. Barnes and request him to place the NG tube, and that Dr. Jones bore the responsibility to be in the room with Berry, and that Dr. Jones breached the standard of care. The jury, in returning a verdict for Dr. Jones, rejected Dr. Futrell’s opinion.

¶ 30. According to the record before us, no expert established that the standard of care applicable to Berry required “utilization of an NG tube,” or that Berry had breached any standard of care with regard to the non-use of an NG tube.

2. Fiberoptic Induction

¶ 81. The second “standard of care” listed in the jury instruction was simply “fiberoptic induction.” Berry correctly points out that “fiberoptic induction” is not a term that exists in medicine and does not describe any recognized medical procedure. This is not in dispute; plaintiffs counsel admitted that he incorrectly included the term in his proposed instruction — the correct term was “fiberoptic in-tubation” — and suggests that this error might have been “confusing” to the jury, except that counsel “pointed out” the error to the jury during closing argument. But counsel’s closing argument is not evidence, and there was, therefore, insufficient evidence to support a jury instruction alleging the standard of care to be “fiber-optic induction.”

¶ 32. Even were we to accept appellees’ argument that the jury was adequately instructed on “fiberoptic intubation,” there was no evidence to support a verdict against Berry on this “standard of care.” Dr. Futrell provided the only testimony regarding fiberoptic intubation, and the entirety of that testimony was as follows:

The other thing is that anesthesiologists, board certified anesthesiologists, know of and are regularly trained and have been so for 10 or 15 years about the technique of fiberoptic intubation. This is a situation where when you know that there are existing dangers to giving a patient a paralyzing drug so that you only have seconds in order to find the proper connection to the lungs rather than do that, rather than to paralyze the patient and run that risk, what we do is simply use anesthetic agents, spray anesthetic agents to numb the mouth and a little bit of a sedative medication to sedate the patient just a little bit; but the patient is breathing on her own and has all of her reflexes and has muscular control.
Under those circumstances using a fi-beroptic light, which is a very thin device, much thinner than the wire to this microphone, that you can pass through and you actually move it and flex it, and you can pass this after anesthetizing the patient’s nose and mouth into a breathing patient’s mouth and pass it down into the breathing area into the trachea and slide the breathing tube over it and below the cuff up and have complete airway control even though the stomach is full.
This fiberoptic technique is well known. It has been well taught, and in circumstances like this it is part of the standard of care in those situations where to paralyze the patient would present the dangers that have now been presented.

¶ 33. This testimony — specifically referring to anesthesiologists — is wholly insufficient to establish a standard of care applicable to Berry. At most, Dr. Futrell opines that the standard of care for anesthesiologists requires the use of fiberoptic intubation. Berry is not an anesthesiologist. So this second “standard of care” erroneously allowed the jury to hold Berry responsible for a standard of care that, under the evidence, was inapplicable to him.

3. Presence of an Anesthesiologist in the OR at the Time of Induction

¶ 34. To support a verdict against Berry for breach of this “standard of care,” the plaintiff was required to produce expert testimony that Berry should not have proceeded to carry out the anesthesia plan until an anesthesiologist was in the room. In that regard, Dr. Futrell was asked: “Would you comment on whether or not starting this case with only a CRNA present is a deviation from accepted practice?” Rather than answering the question directly, Dr. Futrell began to explain the method used by hospitals to classify patients based on the severity of their conditions. In the process, a dispute arose between the parties as to whether Dr. Futrell was testifying to facts outside his knowledge (or misrepresenting the record) when he stated that Berry had classified Sheila as a Class III patient. After concluding that it was Dr. Roller who had classified Sheila, the following discussion took place:

Q. Is there anything else about not having an anesthesiologist present at the time of induction? How would the presence of an anesthesiologist along with the CRNA make a difference?
A. It would make a difference in this circumstance because knowing the condition of the patient and knowing about the possibility of the gastric contents getting into the lungs as we have already discussed, it’s important to have another set of hands, first of all, to be able to manage suction and intubation, putting the tube into the lungs at the same time.
This is very messy, and you don’t have a lot of time, and so in these circumstances where you can anticipate we commonly call another person in to help with the situation. It’s not absolutely mandatory that we do so, but prudent anesthesiologists do that.

¶ 35. This testimony says nothing of the standard of care required of Berry, and even assuming that “not absolutely mandatory ... but prudent” is sufficient to establish a standard of care, Dr. Futrell was clearly testifying as to the duties of an anesthesiologist, not a CRNA.

4. Use of the Trendelenburg Position Before Induction

¶ 36. Item 4 in Jury Instruction P-6A read: “Use of the Trendelenburg position before induction.” The entirety of Dr. Futrell’s testimony regarding the Trendelenburg position is as follows:

I mentioned the need for a nasogastric tube, and I mentioned the need to be sure that because of the prior surgery it was placed appropriately and carefully so as not to cause a perforation and yet provide for the elimination of the dangerous fluids that were in the stomach.
That circumstance should be associated with an understanding of what happened and the position that the patient was in knowing that the nasogastric tube was not used and knowing that the stomach was full of fluids. Then the next appropriate thing that should have been done was that the patient should have been placed in the Trendelenburg position, which is a position where the patient, the bed, the operating table is moved and adjusted electrically such that the patient’s head is lower than the patient’s stomach.
In that circumstance, knowing that the patient has something in their stomach, and in an emergency situation without a nasogastric tube, knowing that you have to paralyze the patient, if those fluids, as they did, present themselves, water runs downhill and does not run uphill; and so since the head is a little lower than the stomach, even if that fluid presents itself during the period of time where the patient has to be paralyzed, that fluid will not run into the lungs; and the anesthesiologist or the nurse anesthetist can get the breathing tube in without contaminating the lungs with this, which is essentially liquid bowel contents is what they are, into the lungs.

¶ 37. Dr. Futrell’s use of the passive voice makes his testimony unclear, especially when considered together with the fact that another nurse and others were actually present with Berry at the time of induction, and that Dr. Futrell had opined that an anesthesiologist should have been present. In other words, Dr. Futrell offered no opinion as to who was responsible for making sure the patient was placed in the Trendelenburg position. He provided no testimony that the standard of care required Berry, as opposed to someone else, to put Sheila in the Trendelenburg position, or that he had breached the standard of care in this regard.

5. Use of the Trendelenburg Position After the Beige Fluid was Seen and Before Intubation

¶ 38. This item in Instruction P-6A apparently is drawn from testimony of Berry’s expert witness, Dr. Claude Brun-son, who gave the following testimony on cross-examination:

Q. But you do train them, if they see fluid coming, to put them in Trendelen-burg after they see the fluid; is that correct?
A. Yes, that’s one of the things we tell them is put their heads down and suction the fluid out. What that does is whatever is around it gets into a particular place so we can suction it all out.
Q. In this case the patient should have been put in Trendelenburg because everybody who notes in the record that this brown fluid comes out her nose, correct?
A. Yeah. That would be something to think about is putting her in Trendelen-burg. We would teach them in that circumstance put them in a head down position, suction it out; and immediately as soon as you can intubate them. That’s going to keep something from going into the trachea. We need to get the endotracheal tube and the cuff up.
Q. You teach them when you see the brown stuff coming out, put them in Trendelenburg and suction.
A. Yes.
Q. And then intubate?
A. You suction the fluid out and put the tube in immediately.
Q. Thank you, Doctor. If that didn’t happen, that would be a deviation from accepted practice, wouldn’t it, Doctor?
A. You know—
Q. Can you answer that question directly yes or no, and then explain?
A. Well, it wouldn’t necessarily be a deviation from the standard of care. The reason why is you’ve got a trained professional there assessing everything that’s going on. They are seeing fluid come back. They can put the patient in Trendelenburg and suction it out and put the endotracheal tube in. It depends on how quickly things happen in that finite period of time as you are making a quick medical decision about what is best for your patient. So when you are asking about you should do this, this, and this every time one hundred percent of the time in this circumstance on a patient, then you are taking away the provider’s ability to make quick judgment that the patient needs to have made.

¶ 39. This testimony is insufficient to establish that Berry breached the standard of care. Neither Dr. Brunson nor any other expert offered any opinion that he did. Also, even if the testimony establishes a standard of care, it does not state whose duty it was in this particular instance to put the patient in this position.

6. Suctioning Immediately After In-tubation Rather than Beginning Ventilation

¶ 40. None of the expert witnesses discussed “ventilation” in these terms. After carefully reviewing the transcript, it appears likely this instruction was based on the following testimony from Dr. Fut-rell:

The first thing to do then, if you have time in such a circumstance where you now know that aspiration of content has occurred, is to attempt to suction some of that fluid out of lungs before you give the first breath because when you give the first breath, you are going to push air into the lugs; and you are going to push all of that fluid and contents deep into the lung fills where it cannot be suctioned where it can do all the bad things we already discussed.
That was not done; and so since that was not done, then the opportunity — and it’s something that can be done in a few seconds; and if the oxygen saturation or oxygenation of the patient is too low, you may not have time to do it because you are about to lose the patient; but because of the testimony that the oxygenation was not that low, there was time to do it in my opinion; and it was not done; therefore, even as to the amount of fluid and bowel contents that were allowed to get into the lungs, there was an opportunity missed there to decrease that amount of fluid.

¶ 41. Based on this testimony, it seems that item 6 in Instruction P-6A suggested that the standard of care required that, once the patient was intubated, the aspirated fluid be suctioned from the patient’s lungs before beginning ventilation. But this is far from clear. The expert testimony — particularly from Dr. Futrell — made frequent reference to “suction” in the context of using an NG tube to suction out the stomach contents before induction. This is a completely different procedure, and the intended context of “suctioning” is not clear from the wording of the instruction.

¶ 42. For example, the following testimony, also by Dr. Futrell, also could fit within the instruction:

Q. So, let’s be sure that we understand. The standard of care in this case, as you’ve testified to, was the placement of a nasogastric tube to, as you say, suction out the stomach contents followed by the placement of a fiber optic scope followed by awake intu-bation?
A. I didn’t discuss that sequence. I discussed those things that I think could have been done to prevent this deadly occurrence.

¶ 48. This exchange also refers to a sequence of steps involving use of an NG tube for suctioning and intubation. The wording of item 6 does not make clear which procedure is being referenced. This item therefore renders the instruction vague and confusing, especially in light of the fact that the instruction uses a technical medical term (“ventilation”) which was not uséd or defined by any expert witness nor by other jury instructions.

CONCLUSION

¶ 44. This lawsuit appears to have been aimed at Dr. Jones, the anesthesiologist, who obtained a defense verdict from the jury. In fact, the plaintiffs proposed a jury instruction that would have allowed the jury to hold Dr. Jones vicariously liable for Berry’s negligence, if any. This theory is reflected in the plaintiffs’ examination of expert witnesses where the questions and answers were focused on the duties of anesthesiologists. No expert ever testified that Berry had failed to meet the standard of care of a minimally competent CRNA.

¶ 45. After careful review of the record, we find the trial court erroneously denied Berry’s motion for directed verdict, and for judgment notwithstanding the verdict. Plaintiffs in a medical-malpractice action must establish through expert testimony not only the relevant standard of care, but the manner in which the defendant breached it. In this case, the plaintiffs failed to establish through expert testimony a CRNA’s standard of care, or that Berry had breached it. Accordingly, the judgment of the Circuit Court of Lafayette County is reversed and rendered.

¶ 46. REVERSED AND RENDERED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . Baptist Memorial Hospital, North Mississippi, Inc.

        . River Region Med. Corp. v. Patterson, 975 So.2d 205, 207 (Miss.2007) (citing Twin County Elec. Power Ass’n v. McKenzie, 823 So.2d 464, 468 (Miss.2002)) ("In reviewing denials of motions for judgment notwithstanding the verdict, this Court uses the same standard as for motions for directed verdict.”).

      . Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 63 (Miss.2004) (citing Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994)).

      . Twin County Elec. Power Ass'n v. McKenzie, 823 So.2d 464, 468 (Miss.2002) (citing Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 720 (Miss.2001)).

      . In the appellee's brief, counsel stated: "Ap-pellee’s attorney readily admitted and cured the confusion that he was the idiot who put 'induction' in that section when in fact 'intu-bation' was the word that should have been used.”

      . Mariner Health Care, Inc. v. Edwards, 964 So.2d 1138, 1163 (Miss.2007) (civil cases); Henton v. State, 752 So.2d 406, 409 (Miss.1999) (criminal cases).

      . Sheila's ASC classification does not appear to be relevant to Kevin Berry’s duties toward her. No further mention is made of ASC classification.


source: Caselaw Access Project

license: Public Domain

text:
    ROBINSON PROPERTY GROUP, LIMITED PARTNERSHIP d/b/a Horseshoe Casino and Hotel v. Olivia McCALMAN, as Personal Representative and as Guardian of Kevin Andrew McCalman, Kenneth Anthony McCalman, The Wrongful Death Beneficiaries of Sarah McCalman, Deceased, and Geraldine Holmes, Individually and on Behalf of The Wrongful Death Beneficiaries of Michael Leroy Holmes, Deceased.
    No. 2009-CA-00570-SCT.
    Supreme Court of Mississippi.
    Jan. 13, 2011.

      Dawn Davis Carson, Robert Lewis Moore, attorneys for appellant.
    Dana J. Swan, Ralph Edwin Chapman, Clarksdale, C. Kent Haney, Drew, attorneys for appellees.
   DICKINSON, Justice,

for the Court:

¶ 1. The wrongful-death heirs of two persons who died in an automobile accident sued a casino and the driver of the other vehicle. The trial court held the casino and driver jointly and severally liable. The casino appealed, arguing that it cannot be held liable under Mississippi’s Dram Shop Act, which requires proof that it served alcohol to the driver when he was visibly intoxicated; and that it cannot be held jointly and severally liable. We find there was sufficient evidence for the jury to find the driver was visibly intoxicated when the casino served him alcohol, so we affirm as to the casino’s liability. But because there was no proof that the defendants “consciously and deliberately pursue[d] a common plan or design” to commit the tort, the Joint and Several Liability Act in effect when the suit was filed limits the casino’s liability to fifty percent of “recoverable damages,” so we reverse and render on that issue.

BACKGROUND

Factual Background

¶ 2. On Friday, August 2, 2002, Rodney Dean got off work at 2:00 a.m. in Memphis, Tennessee, and, after picking up his paycheck and stopping briefly at home, he headed for the Horseshoe Casino in Robin-sonville, Mississippi. A regular customer, Dean had a player’s card, and the casino made a note of his card number and the time he started gambling — 4:05 a.m.

¶ 3. Over the next sixteen hours, Dean gambled and drank free Corona beer — at least “two or three” beers per hour, or perhaps more, according to his testimony — served to him by casino employees. The servers continually brought him fresh bottles before he had completely finished the previous ones.

¶ 4. Dean, who was due back at work in Memphis by 9:00 p.m., did not leave the casino until approximately 8:30 p.m. Two eyewitnesses testified he was driving ninety to one hundred miles per hour when he ran a stop sign and a red light and then slammed into another car, killing its driver, Synithia Harris (who also had been drinking), and its two passengers, Sarah McCalman and Michael Holmes. Dean’s blood-alcohol level was 0.16 at 10:00 p.m., and 0.13 at 1:00 a.m. An autopsy on Harris showed that her blood alcohol content was 0.08.

Procedural Background

¶ 5. On December 27, 2002, members of the families of McCalman and Holmes filed a wrongful death suit against the casino and Dean — but not Harris. The circuit court entered a default judgment against Dean, the casino filed an answer, and the matter proceeded to trial.

¶ 6. Dean, who appeared at trial to testify, admitted that he was intoxicated the evening of the accident. The jury — having been instructed to consider the negligence of the two defendants and the driver of the plaintiffs’ automobile, Harris — returned a verdict of $700,000 for the McCalman survivors, and $400,000 for the Holmes survivors, and allocated fault as follows: Dean, fifty percent; the casino, forty-five percent; and Harris, five percent.

¶ 7. The court reduced each award by five percent to account for Harris’s negligence; entered a judgment of $665,000 for McCalman and $380,000 for Holmes; and specified that the defendants were jointly and severally liable, meaning both plaintiffs could pursue collection of the entire amount of their respective judgments from the casino.

¶ 8. The casino filed this appeal, first arguing that it cannot be held liable because it did not serve alcohol to Dean while he was “visibly intoxicated” — a requirement for its liability under Mississippi’s Dram Shop Act; and that — even if it is liable — it cannot be held jointly and severally liable because Mississippi’s Joint and Several Liability Act limits its liability to its percentage of fault.

ANALYSIS

I. The casino may be held liable under Mississippi’s Dram Shop Act because the plaintiffs produced sufficient evidence that the casino served alcohol to Dean while he was visibly intoxicated.

Standard of Review

¶ 9. Our standard of review of a jury’s factual determination is familiar:

It is a fundamental principle of law that a jury verdict "will not be disturbed except in the most extreme of situations. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.

The Mississippi Dram Shop Act

¶ 10. Mississippi’s statute commonly called the Dram Shop Act, according to its title, provides “immunity from liability of persons who lawfully furnished or sold intoxicating beverages to one causing damage.” The statute includes the following exception:

The limitation of liability provided by this section shall not apply to ... any holder of an alcoholic beverage, beer or light wine permit, or any agent or employee of such holder when it is shown that the person making a purchase of an alcoholic beverage was at the time of such purchase visibly intoxicated.

¶ 11. So the question before us is whether the plaintiffs produced sufficient evidence for a reasonable jury to conclude that Dean was “visibly intoxicated” when the casino served him alcohol.

The Casino’s Evidence — Dean Was Not Visibly Intoxicated

¶ 12. The casino points to trial evidence that it had trained personnel who would have detected Dean’s intoxication, had it been visible, and that its expert witness testified — based on his analysis of police and medical reports — that Dean had not been “intoxicated,” “over the legal limit,” “under the influence,” or “over [0].l,” all indicating Dean was not visibly intoxicated while in the casino.

¶ IB. Also, Dr. Anthony Verlangieri — a toxicologist and pharmacologist — testified that “at the time Mr. Dean left the casino, he was not under the influence.” By “under the influence,” he explained, he meant “over the legal limit.” Asked what documents he had used to form an opinion, he listed a report from the “MED in Memphis,” a Mississippi Crime Laboratory System Report, a Uniform Mississippi Accident Report, and another document. (He was unclear on just what this last report was: “But it’s a — it looks like a little different format of the Mississippi Crime Laboratory Report, same case number I mentioned, on Rodney Dean, and results of blood alcohol content.”) He also read the autopsy reports, but those would not have been relevant to whether Dean was visibly intoxicated in the casino. Finally, he had the report of the plaintiffs’ expert.

¶ 14. Dr. Verlangieri testified that Dean had scored well on the Glasgow Coma Scale after the accident — that he had a perfect fifteen on this measure of sensory perception and motor ability, which “would be what a normal person would test.” He also stated that the medical records contained no mention of Dean smelling of alcohol.

¶ 15. The main thrust of Dr. Verlangi-eri’s testimony was his analysis of Dean’s blood test results from the night of the accident. Using a computer program to analyze them, he entered the following data:

• Dean’s blood-alcohol content from the first test, which was performed on blood drawn at 9:57 p.m. and which yielded a BAC of 0.13;
• Dean’s body weight;
• the type of beer consumed; and,
• “the time frames that [Dean] consumed them,” which Verlangieri said was 3:00 to 8:00 p.m.

¶ 16. A report generated by the software provided' the following estimates of Dean’s blood-alcohol content (BAC) at various times during the evening:

• 6:00 p.m. 0.059
• 6:30 p.m. 0.069
• 7:00 p.m. 0.079
• 7:30 p.m. 0.080
• 8:00 p.m. 0.090

¶ 17. According to Dr. Verlangieri, Dean’s BAC would have peaked at 10:00 p.m., but he was not asked — and he did not volunteer — what the BAC would have been at that time. But based on the BAC levels, Dr. Verlangieri testified that Dean would not have shown visible signs of intoxication between 6:00 p.m. and 8:20 p.m. Then, after answering some additional questions about what those signs would have been, he concluded his testimony by stating once again that, based on Dean’s BAC levels, he would not have been visibly intoxicated at the casino.

The Plaintiffs’ Evidence — Dean Was Visibly Intoxicated

¶ 18. Dean testified that the casino did a brisk business on the Friday evening of the accident, implying that the casino’s staff could not have monitored its many customers and evaluated whether each of them was visibly intoxicated. And Dr. Steven Hayne, a forensic pathologist, testified that, at the time Dean left the Casino, his BAC would have been 0.18, basing this conclusion on the 0.13 value from the 1:00 a.m. blood test, and the known rates at which the human body rids itself of alcohol.

¶ 19. Also, Dr. Hayne — pointing out that the 10:00 p.m. test showed a BAC of 0.16-worked backward to arrive at a BAC of 0.175 when Dean left the casino. He stated that the slight difference between his two BAC estimates — 0.18 and 0.175— did not indicate error, but rather that the estimates corroborated one another.

¶ 20. Dr. Hayne testified that, at these blood-alcohol levels, Dean would have been “significantly” impaired. When the plaintiffs’ counsel asked him whether “those [casino employees] whose job it is and duty it is to observe levels of intoxication or impairment of individuals at the casino would in the exercise of reasonable care have observed [Dean’s intoxication],” Hayne replied, “If they are experienced and have that as part of their job, I would expect it.”

Battle of the Experts

¶ 21. This issue presents a classic battle of qualified experts — a battle that was decided by the jury, which believed and accepted the testimony of the plaintiffs’ expert, Dr. Hayne. We will not usurp the jury’s role, especially in light of the substantial circumstantial evidence: Dean had spent sixteen hours in the casino, drinking with no food; immediately after he left the casino, Dean was seen driving at reckless speeds approaching 100 miles an hour, and running a red light and stop sign. Even Dr. Verlangieri, the casino’s expert, stated that Dean was legally drunk within a half hour after leaving the casino (when Dean left the casino at 8:00 p.m., he “was not under the influence of ethanol,” but that at the time of the accident, about thirty-five minutes later, “he was under the influence of ethanol.”).

¶ 22. The jury believed the plaintiffs’ expert and rejected the casino’s argument that Dean was not visibly intoxicated. The plaintiffs produced ample evidence to meet their burden of proof on this issue, and we affirm the jury’s finding of liability against the casino.

II. The joint-and-several liability law in effect allowed the casino to be held jointly and severally liable for its percentage of liability, up to fifty percent.

The Joint and Several Liability Act

¶ 23. The version of the Joint and Several Liability Act in effect at the time the plaintiffs’ cause of action accrued was, as one writer put it, “not exactly the paradigm of clear legislative drafting.” Before applying it to the facts of this case, some discussion of that statute itself is necessary.

The General Rule

¶ 24. Section 3 of that statute provided the general rule:

Except as otherwise provided in subsections (2) and (6) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault. In assessing percentages of fault an employer and the employer’s employee or a principal and the principal’s agent shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or omission of the employee or agent.

¶ 25. So with only two exceptions, the statute limited the liability of a defendant to “the amount of damages allocated to him in direct proportion to his percentage of fault,” meaning that — absent the application of an exception — the casino’s liability would be limited to its percentage of fault assessed by the jury — forty-five percent.

The Exceptions

¶ 26. The exceptions stated in the statute were:

(2) Except as otherwise provided in subsection (6) of this section, in any civil action based on fault, the liability for damages caused by two (2) or more persons shall be joint and several only to the extent necessary for the person suffering injury, death, or loss to recover fifty percent (50%) of his recoverable damages.
(6) Joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it. Any person held jointly and severally liable under this section shall have a right of contribution from his fellow defendants acting in concert.

And although not a stated exception, subsection 7 provided the following guidance to the jury: “In actions involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each party alleged to be at fault.”

¶ 27. So, subsection 3 would have abolished joint and several liability, were it not for the two exceptions. One of those exceptions (subsection 2) applies in this case, and the other (subsection 6) does not. Subsection 2 not only allowed, but actually required — as indicated by the word “shall” — joint and several liability where, as in this case, “damages [are] caused by two (2) or more persons.” But subsection 2’s joint and several liability was limited to fifty percent of “recoverable damages.”

¶ 28. In this case, the plaintiffs’ recoverable damages do not include the five percent of the damages attributable to Harris, who was not a defendant, but do include the ninety-five percent of those attributable to the negligence of the two defendants, the casino and Dean. From there, the math is simple: Total damages = $1,100,000, reduced by 5% = $1,045,000 (recoverable damages), and 50% of “recoverable damages” = 50% x $1,045,000 = $522,500. So the casino may be held jointly and severally liable for $522,500, limited to $382,500 of the $665,000 awarded to McCalman, and to $190,000 of the $380,000 awarded to Holmes.

Conscious and Deliberate Pursuit of Common Plan or Design

¶ 29. The plaintiffs argue that subsection 6 allowed the trial court to impose full joint and several liability against the casino. We disagree.

¶ 30. Subsection 6 provided that “Joint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tor-tious act, or actively take part in it.” In this case, the record includes no evidence that the casino pursued a common plan or design to commit the tort involved here, nor did it actively participate in it. Therefore, subsection 6 does not apply.

¶ 31. The jury, as trier of fact, followed subsection 7 of the statute and apportioned fault to each tortfeasor. It found the casino forty-five percent at fault. Nonetheless, under subsection 2 of the statute, the casino is jointly and severally liable “to the extent necessary for the person suffering injury, death, or loss to recover fifty percent (50%) of his recoverable damages.” So the casino and Dean are jointly and severally liable for up to $332,500 of the $665,000 awarded to the MeCalman plaintiffs and for up to $190,000 of the Holmes plaintiffs’ $380,000.

III. There was no evidence for a jury to find comparative negligence.

¶ 32. The casino requested the trial court to instruct the jury on the comparative negligence of the two deceased passengers for allowing themselves to be driven by an intoxicated driver. The court refused to grant the instruction for lack of evidence to support it.

¶ 33. A “trial court has the discretion to refuse an instruction ... which is unsupported by the evidence.” The record contains scant evidence concerning the alleged impairment of the driver of the car in which the victims rode, and none at all that would justify a factual finding that the decedents knew or should have known that their driver was impaired. As the trial judge aptly put it, “[W]e don’t have odds on that they should have known. I think that there is no other testimony on that issue.” When defense counsel replied, “Yes, there is,” the judge responded, “Well, not enough.” The casino does not direct us to any such evidence. Under the circumstances, it is not possible to conclude that the judge abused his discretion in refusing the instruction.

IV. No authority is cited that would require admission of evidence that Dean was not criminally charged.

¶ 34. The final assignment of error by the Casino reads as follows, in its entirety:

The plaintiffs opened the door to questions of whether or not Mr. Dean had a DUI, as they questioned the officer concerning the notations on the evidence bag. The plaintiffs led the jury to believe Mr. Dean was being investigated for a DUI, but did not allow the defense to explain that Mr. Dean was never charged with DUI. This unexplained inference prejudices the defendant, as an officer was allowed to testify about an investigation of the DUI, without any resolve to the DUI investigation.
The only cure at the time of the occurrence was to allow defendant’s counsel to question to [sic] officer whether or not Mr. Dean was charged with DUI, which he was not.

¶ 35. Because the casino cites no authority in this argument, this Court is not bound to consider it. Mississippi Rule of Appellate Procedure 28(a)(6) requires that “[t]he argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” This Court repeatedly has held that when a party “cites no authority for [a] proposition ... we need not consider it.”

CONCLUSION

¶ 36. The casino is liable under the Dram Shop Act for the deaths Rodney Dean caused after he left the casino. Under the Joint and Several Liability Act, its liability is joint and several for up to one half of the amount of recoverable damages. The trial court erred by ignoring this statutory limit. The judgment is affirmed in part and reversed and rendered in part, and the judgment is modified to limit the defendants’ joint and several liability to fifty percent of recoverable damages.

¶ 37. AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

        . Coleman v. State, 926 So.2d 205, 208-09 (Miss.2006) (citing Washington v. State, 800 So.2d 1140, 1144 (Miss.2001); quoting Walker v. State, 881 So.2d 820, 831 (Miss.2004)) (internal citations and quotation marks omitted).

      . Miss.Code Ann. § 67-3-73(4) (Rev.2005).

      . Miss.Code Ann. § 67-3-73(4) (Rev.2005).

      . The Regional Medical Center at Memphis is known as "The Med.”

      . See, e.g., Mack Trucks, Inc. v. Tackett, 841 So.2d 1107, 1112 (Miss.2003); Cousar v. State, 855 So.2d 993, 997 (Miss.2003) (“The credibility of a witness is a question of fact for the jury to resolve.”).

      . H. Wesley Williams, III, 1989 Ton “Reform” in Mississippi: Modification of Joint and Several Liability and the Adoption of Comparative Contribution, 13 Miss. C.L.Rev. 133, 159 (1992).

      . Miss.Code Ann. § 85-5-7(3) (Rev. 1999) (amended 2003).

      . Miss.Code Ann. § 85-5-7(2), (6), (7) (Rev. 1999) (amended 2003).

      .Actually, the statute required "the trier of fact [to] determine the percentage of fault for each party alleged to be at fault.” Miss.Code Ann. § 85-5-7(7) (Rev. 1999) (emphasis added). The term "party” appeared nowhere else in the statute. It is susceptible to more than one interpretation. If it means a party in the sense of named parties to a lawsuit, then Harris’s fault could not be taken into account. The appellant did not raise this issue, however, and it is not before the Court at this time.

      . Miss.Code Ann. § 85-5-7(2) (Rev. 1999) (amended 2003).

      . Brown v. State, 39 So.3d 890, 898 (Miss.2010) (citing Davis v. State, 18 So.3d 842, 847 (Miss.2009); Higgins v. State, 725 So.2d 220, 223 (Miss.1998)) (emphasis added).

      . Miss. R.App. P. 28(a)(6).

      . E.g., Read v. So. Pine Elec. Power Ass’n, 515 So.2d 916, 921 (Miss.1987) (citing Burk v. State, 506 So.2d 993 (Miss.1987); Simpson v. State, 497 So.2d 424 (Miss.1986); Bonderer v. Robinson, 502 So.2d 314 (Miss.1986)).


author: GRAVES, Presiding Justice,

text:
    Kevin ELDRIDGE v. STATE of Mississippi.
    No. 2010-KA-00448-SCT.
    Supreme Court of Mississippi.
    Jan. 20, 2011.

      Chris N.K. Ganner, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appel-lee.
    Before GRAVES, P.J., RANDOLPH and PIERCE, JJ.
   GRAVES, Presiding Justice,

for the Court:

¶ 1. Kevin Doyle Eldridge was convicted of one count of burglary and sentenced as an habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). The prosecution was represented by Marty Miller and Dan Duggan. At the time of trial, Eldridge was represented by Darla Palmer. On October 27, 2008, Eldridge filed a motion for judgment notwithstanding the verdict and for a new trial. Eldridge alleged that, prior to Darla Palmer’s representation, Dan Duggan, then a contract public defender for Rankin County, had met with him and discussed his case. Therefore, Eldridge argued that Duggan should have recused himself. The trial court subsequently denied Eldridge’s motion. Eldridge now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 17, 2007, Eldridge was indicted for burglary of Selma Yelverton’s mobile home in Rankin County. On June 19, 2007, Duggan, then a contract public defender in Rankin County, met with El-dridge at the county jail. That same day, Duggan filed Eldridge’s waiver of arraignment and entry of plea on a noncapital case and the trial court’s order setting trial, status conference and pretrial conference. The trial originally was set for October 9, 2007, however, Mary Jane Lemon, Duggan’s law partner, filed an agreed order continuing and resetting the trial for March 11, 2008. At some time prior to Eldridge’s trial, Duggan left the public defender’s office to work as a Rankin County Assistant District Attorney. On March 13, 2008, Eldridge went to trial and was represented by Darla Palmer. The State was represented by Marty Miller and Duggan. After a one-day trial, El-dridge was found guilty of burglary by a Rankin County jury and sentenced as an habitual offender to twenty-five years in the custody of the MDOC. On October 27, 2008, Chris Ganner, on behalf of Eldridge, filed his entry of appearance and motion for judgment notwithstanding the verdict and for a new trial (JNOV). In his motion, Eldridge alleged that, based on the fact that Duggan previously had met with him and discussed his case, Duggan should have recused himself.

¶ 3. On February 22, 2010, the trial court held a hearing on Eldridge’s motion for JNOV. At the hearing, Eldridge testified that during his and Duggan’s meeting on June 19, 2007, they discussed his case, including defenses, the reason Eldridge did not receive bond, and the fact that Eldridge is an habitual offender. Eldridge further testified that he met with Duggan again in July of 2007, at which time they again discussed his case and decisions that needed to be made.

¶ 4. However, Duggan alleged that at the time of trial, when he was acting as an assistant district attorney, he did not remember speaking with Eldridge at the jail. Upon being reminded by Lemon that he did speak with Eldridge, Duggan testified that Eldridge was Lemon’s client and that he spoke with Eldridge only once, at the request of Lemon. Duggan stated:

She [Lemon] had talked with Eldridge and relayed an offer to him. I do not recall what the offer was on this particular case. But she asked me to step into the room and discuss the matter with Mr. Eldridge. She told me what the offer was.... And we discussed the matter a little while about the offer and whether or not he should take it or not.
Now as to specifics as to what the case entailed, I do not recall exactly what was stated. But I expressed an opinion to him as to whether or not he should take the offer.

Duggan also testified that in order to express his opinion on whether or not to take the offer, Lemon had to relay some facts to him regarding Eldridge’s case. Yet, when specifically asked if he remembered any confidential information that Eldridge may have given him, Duggan responded that he did not.

¶ 5. After hearing testimony and argument from both parties, the trial court found that both the defendant and the prosecution shared the responsibility of raising the conflict-of-interest issue at the trial and that there was no evidence that tended to show that Duggan received any confidential information from Eldridge. The trial court further found that Duggan had testified that his only role in representing Eldridge was an administrative role, handling an arraignment and a trial setting. In so finding, the trial court denied Eldridge’s motion for JNOV and for a new trial. Eldridge now appeals.

DISCUSSION

¶ 6. On appeal, Eldridge argues that the trial court erred by refusing to grant his motion for JNOV, or in the alternative a new trial. Specifically, Eldridge claims that, because he previously had consulted with one of the prosecuting attorneys regarding his case when that prosecuting attorney was a public defender, the trial court should have granted him a new trial. In addition, Eldridge claims that his trial counsel was prejudicially ineffective by her failure to become aware of a conflict of interest with one of the prosecuting attorneys and failing to raise it with the trial court.

¶ 7. This Court will reverse only if the trial court’s findings that no confidential information was transmitted from the defendant to the prosecuting attorney were clearly erroneous. Vandergriff v. State, 920 So.2d 486, 492-493 (Miss.Ct.App.2006). We find that “this Court cannot with confidence conclude that no confidential information regarding appellant’s pending ... charge was acquired by [one of the prosecuting attorneys].” Gray v. State, 469 So.2d 1252, 1255 (Miss.1985). Because we agree with Eldridge regarding his first assignment of error, we will not address Eldridge’s ineffective-assistanee-of-counsel claim.

¶ 8. It is well-settled that “a prosecuting attorney is disqualified from acting in a criminal case if he has previously represented or has been consulted professionally by the accused with respect to the offense charged.” Id. at 1254. This Court consistently has held that “[t]he subsequent prosecution by an attorney who has previously gained confidential information from the accused relative to the charges against him is inherently incompatible with the right of a criminal defendant to receive a fair trial.” Id.; see also Aldridge v. State, 583 So.2d 203, 205 (Miss.1991); Jones v. State, 962 So.2d 1263, 1271 (Miss.2007).

¶ 9. However, if the State can meet the burden of showing that the accused’s confidentiality remained intact, then this Court will not require the prosecuting attorney to disqualify or recuse himself or herself. Aldridge, 583 So.2d at 205. To make this showing, “the .State must show that the assistant district attorney had absolutely no participation in the case, from the time of withdrawal through adjudication; divulged no confidential information; and notified the other party promptly upon becoming aware of the conflict of interest.” Ousley v. State, 984 So.2d 985, 988 (Miss.2008) (quoting Aldridge, 583 So.2d at 205). Upon a complete examination of the record, we find that the State cannot meet the three-part test set forth in Aldridge.

¶ 10. First, “the State must show that the assistant district attorney had absolutely no participation in the case, from the time of withdrawal through adjudication.” Ousley v. State, 984 So.2d 985, 988 (Miss.2008) (quoting Aldridge, 583 So.2d at 205). While the record is unclear as to when Duggan, in his role as a public defender, withdrew from representing Eldridge, it is clear that Duggan, now an assistant district attorney, actively participated in the prosecution of Eldridge. The record indicates that, during the trial, Duggan questioned Vernon Ball, Eldridge’s stepfather, on direct examination. Duggan also presented closing arguments to the jury. In fact, Miller, the other assistant district attorney who prosecuted Eldridge, asked Duggan to sit in on Eldridge’s case as second chair, which Duggan did.

¶ 11. In light of Duggan’s participation in the prosecution of Eldridge, this Court finds that the State cannot and did not meet the first prong of the Aldridge test. Id. Even assuming that the State can show the remaining two factors, Aldridge states that the State must show all three. Id. Therefore, we reverse the trial court’s denial of Eldridge’s motion for a new trial and remand for a new trial.

CONCLUSION

¶ 12. Because we cannot conclude with confidence that no confidential information regarding Eldridge’s case was acquired by Duggan, we reverse Eldridge’s conviction and remand for a new trial.

¶ 13. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . Apparently, Lemon was Eldridge’s attorney of record. However, there are no documents in the Court's file specifically showing Lemon as the attorney of record.

      . Uniform Circuit and County Court Rule 10.05 provides that the defendant has ten days from the entry of judgment to file its motion for a new trial. October 27, 2008, is well outside the ten-day time frame for filing a motion for a new trial where the final judgment was entered on March 31, 2008.


author: LAMAR, Justice,

text:
    Donovan FOREMAN v. STATE of Mississippi.
    No. 2009-KA-01785-SCT.
    Supreme Court of Mississippi.
    Jan. 20, 2011.

      Michael Eric Brown, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, Scott Stuart, Jackson, attorneys for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Donovan Foreman was convicted of six felony counts arising from his attempt to fire a handgun and his subsequent discharge of that handgun. He argues that the resulting sentences for four counts of aggravated assault, one count of murder, and one count of shooting into a vehicle violate the double-jeopardy clause and the common-law doctrine of merger. He also asserts that the trial court erroneously imposed a sentence exceeding the statutory maximum for shooting into a vehicle. We find the trial court erred in refusing to dismiss three counts of aggravated assault, and that the trial court imposed an illegal sentence for shooting into a vehicle. We find no violation of the double-jeopardy clause.

FACTS

¶ 2. At approximately 1 a.m. on May 10, 2009, Ashley Jones picked up her cousins Jewelisa Kelly, Shanique Kelly, Chatonia Minor, and Edward Minor. They had been socializing with a group of men, one of whom was Donovan Foreman. As Jones and her cousins began to drive away, she heard a gunshot and discovered that Edward Minor had been shot in the head.

¶ 3. Shanique Kelly testified that after she and her cousins got into the car, she saw Foreman pull out a gun, point it at the car, and try to shoot it. She stated that Foreman then cocked the gun again and shot it, and the bullet went through the back windshield. Jessica Earls, a bystander, also testified that she saw Foreman shoot into Jones’s car. The bullet struck Edward in the side of the head and killed him.

¶ 4. Carl Ray Fleming, an investigator with the Claiborne County Sheriffs Department, testified that Foreman admitted that he had pointed a nine-millimeter gun at Jones’s car, because he had felt his brothers and cousins were threatened. Foreman told Fleming that the gun accidentally had fired.

DISCUSSION

I. Whether the trial court erred in failing to grant Foreman’s motion for dismissal.

¶ 5. Prior to trial and again after the State’s case-in-chief, Foreman moved to dismiss all counts, arguing that a conviction and sentence on all counts would violate the double-jeopardy clause of our state and federal constitutions. This Court has ruled that a trial court faced with such a motion “should consider the evidence fairly and should dismiss the case only if it would find for the defendant.” The court should deny the motion “ ‘only if the judge would be obliged to find for the [State] if the [State’s] evidence were all the evidence offered in the case.’” This Court applies the substantial-evidence/manifest-error standard of review to a grant or denial of a motion to dismiss the indictment.

¶ 6. Foreman argues that he was impermissibly indicted and convicted on all six counts based on the same act: firing one shot into the vehicle. However, Foreman ignores the evidence before the jury that he had tried to shoot the gun once before firing the fatal shot that struck Edward Minor. Foreman’s first effort to discharge the gun would support a jury verdict for a charge of aggravated assault with a deadly weapon. A defendant is guilty of aggravated assault if he or she “(b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm[.]”

¶ 7. But we do find that the State erroneously charged (and Foreman was erroneously convicted of) four counts of aggravated assault when the evidence supports only one attempt. Under the facts of this case, to be guilty of four counts of aggravated assault, Foreman must have attempted to cause injury to all four individuals. Foreman’s attempt to discharge the gun one time does not support the inference that he intended to injure four individuals. We find the evidence insufficient to support four convictions of aggravated assault. Therefore, we find the trial court erred in failing to dismiss three of the aggravated-assault charges, and we vacate Foreman’s convictions and sentences for three counts of aggravated assault.

¶ 8. Next, we address whether the sentences for one count of aggravated assault, one count of shooting into a vehicle, and one count of murder violate the double-jeopardy clause of the Fifth Amendment to the United States Constitution and Article 3, Section 22 of the Mississippi Constitution of 1890. “Each of these provisions guarantees to each citizen that he shall not twice be placed in jeopardy for the same offense [and][w]e construe the double jeopardy clause of our Constitution consistent with authoritative constructions of the Constitution of the United States.” The double-jeopardy clause affords three protections: “(1) protection from a second prosecution for the same offense after acquittal, (2) protection from a second prosecution for the same offense after conviction, and (3) protection from multiple punishments for the same offense.”' Foreman argues that this case falls within the protection against multiple punishments for the same offense. We apply a de novo review to claims of double jeopardy and to questions of law.

¶ 9. The aggravated-assault conviction arises from Foreman’s separate act of attempting to discharge the gun, an act that was committed close in time to the actual discharge of the gun. And this Court previously has ruled that “[t]emporal proximity does not generate a judicial union of separate and distinct criminal acts, nor does the presence of a common nucleus of operative facts.” In other words, Foreman’s attempt to discharge the gun occurred prior to and separate from the actual discharge of the firearm and was therefore a separate and distinct criminal act. Therefore, there is no “same offense” for purposes of a double-jeopardy analysis.

¶ 10. But the one act of discharging the gun resulted in a jury verdict for two crimes: murder and shooting into a vehicle. To determine whether the double-jeopardy clause applies, this Court applies the Blockburger test. In Block-burger, the United States Supreme Court ruled that: “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” In Graves v. State, this Court considered the same issue in a shooting which resulted in convictions for aggravated assault and shooting into a vehicle. In that case, we held:

Given the elements required to prove each of these crimes, Blockburger instructs us to determine whether there are elements in each offense not contained in the other. We find that there are. To prove aggravated assault, no element requires proof of a firearm being shot into a vehicle. To prove shooting into a vehicle, there is no requirement of proof of bodily injury.... As it is inconsequential that these two crimes took place at the same time, so it is unimportant that the same evidence was used to convict Graves of both of these crimes. Clearly, aggravated assault and shooting into a vehicle each requires proof of facts the other does not.

Likewise, murder and shooting into a vehicle each requires proof of a fact which the other does not. “[Mjurder, unlike shooting into a vehicle, requires the deliberate killing of an individual. On the other hand, shooting into a vehicle requires only that an individual willfully shoot into or at a vehicle[.j” And consequently, there can be no violation of the common-law doctrine of merger, which provides that two independent crimes merge into one only when the greater crime necessarily includes all the elements of the lesser crime, as with a lesser-included offense. Our common-law analysis of merger has been subsumed by the Blockburger test. Therefore, we conclude that Foreman’s separate convictions and punishments for one count of aggravated assault, one count of shooting into a vehicle, and one count of murder do not violate the double-jeopardy clause or the merger doctrine.

II. Whether the trial court imposed an illegal sentence.

¶ 11. Foreman asserts that the trial court erroneously imposed a ten-year sentence for shooting into a vehicle, when the statutory maximum is five years. The State concedes that the maximum sentence for shooting into a vehicle in this case is five years, and that this Court should remand for resentencing. And in fact, the punishment for shooting into a vehicle is a “fine of not less than one hundred dollars ($100.00) nor more than two hundred fifty dollars ($250.00), or [incarceration in] the custody of the department of corrections not less than one (1) year nor more than five (5) years, or by both such fine and imprisonment.”

¶ 12. Foreman’s ten-year sentence is illegal, as it is not within the bounds of Mississippi Code Section 97-25-47. And we have recognized that a defendant has a fundamental right to a legal sentence. Therefore, we vacate the ten-year sentence imposed for violating Section 97-25-47, and remand for resentenc-ing.

CONCLUSION

¶ 18. We vacate Foreman’s conviction of three counts of aggravated assault, as the evidence supported only one count. We find no violation of the double-jeopardy clause and affirm his conviction and sentence of one count of aggravated assault and one count of murder. We also affirm his conviction for one count of shooting into a vehicle, but remand this case for resentencing in compliance with Mississippi Code Section 97-25-47 (Rev.2006).

¶ 14. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, VACATED. COUNT IV: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, VACATED. COUNT V: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, VACATED. COUNT VI: CONVICTION OF SHOOTING INTO AN AUTOMOBILE AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, REVERSED IN PART AND REMANDED FOR RE-SENTENCING. SENTENCES IN COUNTS II AND VI ARE TO BE SERVED CONCURRENTLY WITH COUNT I.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . State v. Oliver, 856 So.2d 328, 331 (Miss.2003).

      . Id. (quoting Alexander v. Brown, 793 So.2d 601, 603 (Miss.2001)).

        .Id.

      . Miss.Code Ann. § 97 — 3—7(2)(b) (Rev.2006) (emphasis added).

      . Brooks v. State, 18 So.3d 833, 841 (Miss.2009).

      . Lee v. State, 469 So.2d 1225, 1228 (Miss.1985).

      . Graves v. State, 969 So.2d 845, 847 (Miss.2007) (emphasis added).

      . Deeds v. State, 27 So.3d 1135, 1139 (Miss.2009).

      . Lee, 469 So.2d at 1229.

      . Graves, 969 So.2d at 847.

      . Section 97-3-19 provides in relevant part that:
      (1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being; (b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual!.]
      Miss.Code Ann. § 97-3-19 (Rev.2006).

      . Section 97-25-47 provides that a person is guilty of shooting into a vehicle if he or she "wilfully shoot[s] any firearms or hurl[s] any missile at, or into, any train, bus, truck, motor vehicle, depot, station, or any other transportation facility!.]” Miss.Code Ann. § 97-25-47 (Rev.2006).

      . Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

        .Id.

      . Graves, 969 So.2d at 847-48.

      . Id. at 848 (emphasis added).

      . Peacock v. State, 970 So.2d 197, 199 (Miss.Ct.App.2007).

      . Id. at 199-200.

      . Faraga v. State, 514 So.2d 295, 310-11 (Miss.1987) (Robertson, J., concurring) (explaining the merger doctrine).

      . See Meeks v. State, 604 So.2d 748, 751 (Miss.1992).

      . Miss.Code Ann. § 97-25-47 (Rev.2006).

      . The imposition of an illegal sentence results when the punishment does not "conform to the applicable penalty statute.” Llerena v. U.S., 508 F.2d 78, 80 (5th Cir.1975).

      . Ivy v. State, 731 So.2d 601, 603 (Miss.1999).

      . Jefferson v. State, 958 So.2d 1276, 1281 (Miss.Ct.App.2007) (holding that the proper remedy for imposition of an illegal sentence is to remand for resentencing in accordance with the applicable statute).


author: ISHEE, J.,

text:
    Ronregus FLOWERS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-00609-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    Rehearing Denied Feb. 2, 2010.

      William R. Labarre, Virginia Lynn Watkins, Greta D. Mack Harris, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Following a trial in the Circuit Court of the First Judicial District of Hinds County, Mississippi, a jury convicted Ronregus Flowers of house burglary, pursuant to Mississippi Code Annotated section 97-17-23 (Supp.2008). Flowers was sentenced to ten years in the custody of Mississippi Department of Corrections, with two years of post-release supervision. Upon the denial of Flowers’s post-trial motions, Flowers timely filed this appeal. Flowers asserts three assignments of error on appeal:

1. Whether the trial court erred in excluding Flowers’s statements to Deputy William L. Butler.
2. Whether the trial court erred in rejecting jury instruction D-7 on necessity.
3. Whether the trial court erred in permitting cross-examination of Flowers regarding another unrelated crime.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Flowers was indicted by a Hinds County grand jury for house burglary in connection with the December 15, 2003, entry into the home of Alvera Jones of Terry, Mississippi. On September 18, 2007, a duly constituted jury found him guilty of the charge, and on December 3, 2007, he was sentenced to ten years in the custody of the Mississippi Department of Corrections, with two years of post-release supervision.

¶ 3. James Funches testified for the State that, on the morning of December 15, 2003, he was preparing to go on a hunting trip with a friend. While loading his truck, he saw Flowers walk up to Jones’s home. Funches knew Flowers from the neighborhood. He saw Flowers knock once, and after no one came to the door, Flowers broke in the front door and entered the house. Funches ordered his mother to call the police and report the break-in. He then retrieved his hunting rifle and stood by his truck, waiting for Flowers to come outside and for the police to arrive. Funches further testified that, once Flowers came out of the house, he had some items in his hands, and as soon as Flowers realized Funches was standing there, he threw everything in his hands back inside the house and laid down on the porch.

¶ 4. Predictably, the testimony of Flowers was somewhat different. Flowers testified that, on the morning in question, he was running down Eugene Street in fear of his life. Specifically, he claimed that there was a stranger in the bushes pointing a gun at him. He further testified that, after knocking on Jones’s door, he broke in the door, went through the living room, down the hallway, and into a small bedroom. He stated that he entered the house to look for a telephone to call the police, but he could not readily find one. He further stated that he was more concerned with staying hidden from his unknown assailant than looking for a telephone, which is why he ran to the back bedroom.

¶ 5. Deputy William L. Butler, with the Hinds County Sheriffs Department, testified that he was the officer dispatched to the scene of the crime. Upon his arrival at the scene, Deputy Butler found Funches holding Flowers at gunpoint. Flowers was laid out on Jones’s front porch, with his upper body outside the front door, and his lower body inside the house. After observing wood splinters and pieces of the door frame on the floor, Deputy Butler handcuffed Flowers and transported him to his police cruiser.

¶ 6. Flowers immediately admitted to Deputy Butler that he had broken into the house. He further asked the deputy to take him away from the scene because “[sjomeone is trying to kill me. That is why I went in the house.” At this point, Deputy Butler read Flowers his Miranda rights and advised him to stop talking. At trial, the circuit court excluded the statement made by Flowers to Deputy Butler as inadmissable hearsay.

DISCUSSION

I. Hearsay

¶ 7. In his first assignment of error, Flowers contends that the trial court erred in excluding statements he made to Deputy Butler as being hearsay. Flowers argues the statements at issue are admissible under Mississippi Rule of Evidence 801(d)(2)(A). Rule 801(d)(2)(A) provides that a statement is not hearsay if it is offered against a party and is his own statement.

¶ 8. When reviewing a trial judge’s admission or exclusion of evidence, we must apply an abuse of discretion standard of review. Whitten v. Cox, 799 So.2d 1, 13(¶ 27) (Miss.2000). Where there is error involving the admission or exclusion of evidence, the Court will reverse only if the error adversely affects a substantial right of a party. Id. (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 113(¶ 12) (Miss.1999)).

¶ 9. The Mississippi Supreme Court has stated that:

It is the general rule, almost unanimously followed, that where the State introduces evidence of statements made by the defendant immediately after a crime, [the] defendant is entitled to bring out the whole of his statement. In the absence of the State using the evidence in the record, the defendant cannot introduce any part on his behalf.

Tigner v. State, 478 So.2d 293, 296 (Miss.1985) (quoting Jones v. State, 342 So.2d 735, 737 (Miss.1977)). Furthermore, we agree with the State that “the defendant is barred from introducing a statement made by the defendant immediately after the crime, if it is self-serving, and if the State refuses to use any of it.” Ward v. State, 935 So.2d 1047, 1054(¶ 18) (Miss.Ct.App.2005); see also Nicholson ex rel. Gollott v. State, 672 So.2d 744, 754 (Miss.1996).

¶ 10. Any statements made by Flowers to Butler that were not offered or introduced into evidence by the State would serve Flowers’s argument at trial — that his actions of breaking into the house were justified by necessity. Therefore, we find that the statements were self-serving and were properly excluded by the trial judge as inadmissible hearsay under Rule 801(d)(2)(A). This issue is without merit.

II. Jury Instruction

¶ 11. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole.” Wess v. State, 926 So.2d 930, 934(¶ 20) (Miss.Ct.App.2005). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. (citing Johnson v. State, 823 So.2d 582, 584(¶ 4) (Miss.Ct.App.2002)). “A defendant is entitled to have jury instructions given [that] present his theory of the case, however[;] this entitlement is limited in that [a] court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Hager v. State, 996 So.2d 94, 97(¶ 9) (Miss.Ct.App.2008).

¶ 12. Necessity is a defense which, if applicable, will excuse conduct which would otherwise be criminal in nature. See Knight v. State, 601 So.2d 403, 405 (Miss.1992). The defense requires a showing that there is a reasonable belief of imminent serious danger to one’s self that induced the criminal conduct. McMillan v. City of Jackson, 701 So.2d 1105, 1107(¶ 6) (Miss.1997). In order to be entitled to a defense of necessity, the defendant must prove the following: (1) the act charged was done to prevent a significant evil; (2) there was no adequate alternative; and (3) the harm caused was not disproportionate to the harm avoided. Williams v. State, 953 So.2d 260, 263(¶ 9) (Miss.Ct.App.2006) (citing Stodghill v. State, 892 So.2d 236, 238(¶ 9) (Miss.2005)).

¶ 13. Here, Flowers has failed to meet his burden of proof. Other than his own testimony that an unknown assailant, for an unknown reason, was trying to shoot him, there is nothing in the record to support his claim. Flowers failed to prove that someone was actually chasing after him or trying to shoot him. Also, he failed to show that there was no adequate alternative to breaking into the home. Because he fell short of meeting his burden for the defense of necessity, the trial court properly rejected jury instruction D-7. For these reasons, the trial court was not in error when excluding the jury instruction on necessity. Accordingly, this issue is without merit.

III. Cross-examination

¶ 14. Flowers’s final issue deals with the State’s cross-examination of him. He contends that the trial judge committed reversible error by allowing the prosecution to question him with regard to prior criminal conduct. Normally, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” M.R.E. 404(b). “It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.

¶ 15. Furthermore, “[i]t is [well settled] that a defendant who ‘opens the door’ to a particular issue runs the risk that collateral, irrelevant, or otherwise damaging evidence may come in on cross-examination.” Martin v. State, 970 So.2d 723, 725(¶ 11) (Miss.2007). “[0]nce the defense has opened the door to otherwise improper testimony, the prosecution is permitted to enter and develop the matter in great detail.” Fleming v. State, 604 So.2d 280, 291 (Miss.1992).

¶ 16. Prior to the Flowers’s testimony at issue, the defense counsel made an ore tenus motion in limine to exclude any mention of a strong-armed-robbery indictment then pending. The State acknowledged that it did not intend to delve into the matters unless and until it became relevant. On direct examination, once Flowers claimed it was necessary for him to break into a home because someone was trying to shoot him, it absolutely became relevant as to whom and why. The State was free to question him on why he would have been running from an unknown assailant. “If a defendant opens the door to line of testimony, ordinarily he may not complain about the prosecutor’s decision to accept the benevolent invitation to cross the threshold.” Doby v. State, 557 So.2d 533, 539 (Miss.1990). This issue is without merit.

¶ 17. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF HOUSE BURGLARY AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWO YEARS OF POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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