author: CARLSON, Presiding Justice, WALLER, Chief Justice,

text:
    William P. KNIGHT, II v. Eric WOODFIELD.
    No. 2009-IA-01371-SCT.
    Supreme Court of Mississippi.
    Jan. 6, 2011.

      Chad Patrick Favre, attorney for appellant.
    John Vernon Woodfield, Long Beach, attorney for appellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Eric Woodfield filed a complaint alleging alienation of affections against William Knight in the County Court of Harrison County. Knight filed a motion to dismiss for lack of personal jurisdiction pursuant to Mississippi Rule of Civil Procedure 12(b)(2), which the county court denied. We granted Knight’s petition for an interlocutory appeal. However, having now considered the issues raised, we affirm the judgment of the county court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Eric Woodfield and his wife, Kristina Dokka, resided in Long Beach, Mississippi, from July 2006 until their separation in April 2007. During this time, Dokka commuted from her home in Mississippi to her job in Louisiana. Dokka was a coworker of William Knight, a Louisiana resident.

¶ 3. Woodfield claims to have noticed a substantial change in his marital relationship with Dokka in January 2007. He noticed that Dokka had become very protective of her cellular phone, would not answer text messages around him, and would use the couple’s computer for extended periods of time while she thought he was asleep. Woodfield also claims that his sexual relationship with Dokka diminished during this time. This activity prompted Woodfield to access Dokka’s cellular phone, where he discovered numerous text messages from Knight as well as partially nude photos of Dokka which had been sent to Knight. Woodfield also examined Dokka’s phone records and discovered that in February 2007, she and Knight had talked for 120 minutes and had exchanged 131 text messages. In March 2007, Dokka spoke with Knight for 860 minutes and the two exchanged 807 text messages.

¶4. Knight and Dokka also exchanged numerous emails during this time. One email sent by Knight to Dokka stated, “I refuse to feel guilty about falling for you,” and “[y]ou enter marriage by choice and you can leave it by choice anytime you choose.” Dokka also stated in an email that she “had fallen” for Knight.

¶ 5. Upon discovering these communications between Knight and Dokka, Wood-field sent Knight an email requesting that Knight stop pursuing Dokka because Woodfield was trying to salvage his marriage. Knight continued communicating with Dokka despite Woodfield’s request.

¶ 6. Knight admitted he was aware that Dokka and Woodfield were married and that Dokka lived with Woodfield in Mississippi. Knight claims that he and Dokka were never physically together in Mississippi while she was married to Woodfield.

¶ 7. Woodfield and Dokka separated on April 4, 2007, and were divorced on July 16, 2007. After the separation, Dokka moved to Louisiana. She and Knight are now married and living in Louisiana. Woodfield is still a resident of Mississippi.

¶ 8. On January 15, 2008, Woodfield filed a complaint against Knight in the County Court of Harrison County alleging alienation of affections. In his complaint, Woodfield alleged that he had suffered loss of consortium as a proximate result of Knight’s actions. Knight filed his first motion to dismiss for lack of personal jurisdiction on March 14, 2008, but the trial court denied this motion due to incomplete discovery. On July 9, 2009, Knight filed a second motion to dismiss, again alleging lack of personal jurisdiction. In his response to Knight’s second motion, Wood-field claimed that the communications between Knight and Dokka, while she was physically present in Mississippi, had resulted in his loss of consortium, the damage of which had occurred entirely in Mississippi. The trial court denied Knight’s second motion to dismiss, finding that the injury, if any, potentially occurred within Mississippi due to the communications between Dokka and Knight while Dokka was located in Mississippi.

¶ 9. The trial court granted Knight permission to seek an interlocutory appeal on this matter because of “the advancements in technology and the unique nature of the tort of alienation of affections.” We granted Knight’s petition for an interlocutory appeal, but upon consideration of the issues raised, we now affirm the judgment of the trial court, finding that Knight’s contacts with Mississippi were sufficient to establish personal jurisdiction for Wood-field’s claim of alienation of affections.

DISCUSSION

¶ 10. Knight raises three issues on interlocutory appeal. For the purposes of this opinion, we will address the following two issues: (1) whether a nonresident defendant’s acts of communicating by email, text, and cellular phone with the plaintiffs wife, which the plaintiff claims to have caused the tort of alienation of affections, constitute the minimum contacts necessary to exercise in personam jurisdiction over the nonresident defendant; and (2) whether exercising personal jurisdiction in this case would offend traditional notions of fair play and substantial justice.

¶ 11. “We review jurisdictional issues de novo. When considering jurisdictional issues, the Court sits in the same position as the trial court, ‘with all facts as set out in the pleadings or exhibits, and may reverse regardless of whether the error is manifest.’ ” Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972, 975 (Miss.2004) (citing Rayner v. Raytheon Co., 858 So.2d 132, 133 (Miss.2003)).

I. WHETHER A NONRESIDENT DEFENDANT’S ACTS OF COMMUNICATING BY EMAIL, TEXT, AND CELLULAR PHONE WITH THE PLAINTIFF’S WIFE, WHICH THE PLAINTIFF CLAIMED TO HAVE CAUSED THE TORT OF ALIENATION OF AFFECTIONS, CONSTITUTE THE MINIMUM CONTACTS NECESSARY TO EXERCISE IN PERSONAM JURISDICTION OVER THE NONRESIDENT DEFENDANT.

¶ 12. This Court must conduct a two-step analysis when determining whether a Mississippi court may exercise personal jurisdiction over a nonresident defendant. Horne, 897 So.2d at 976. First, we must determine whether the nonresident defendant is amenable to suit in Mississippi by virtue of our long-arm statute. Miss.Code Ann. § 13-3-57 (Rev. 2002); Id. (citing McDaniel v. Ritter, 556 So.2d 303, 307 (Miss.1989)). If so, then we must determine whether the nonresident defendant is amenable to suit in our state consistent with the Due Process Clauses of the state and federal constitutions. Horne, 897 So.2d at 976 (citing McDaniel, 556 So.2d at 308).

A. Mississippi’s Long-Arm Statute

¶ 13. Mississippi’s long-arm statute states, in relevant part:

Any nonresident person ... who shall commit a tort in whole or in part in this state against a resident or nonresident of this state ... shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.

Miss.Code Ann. § 13-3-57 (Rev.2002) (emphasis added).

¶ 14. In order to determine whether our long-arm statute confers jurisdiction in this case, we must decide whether Knight has committed a tort, in whole or in part, in Mississippi. We previously have held that our long-arm statute extends to nonresident defendants who commit the tort of alienation of affections in Mississippi. Camp v. Roberts, 462 So.2d 726, 727 (Miss.1985), overruled on other grounds by Saunders v. Alford, 607 So.2d 1214 (Miss.1992). The elements of the tort of alienation of affections are: “‘(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.’ ” Fitch v. Valentine, 959 So.2d 1012, 1025 (Miss.2007) (quoting Saunders, 607 So.2d at 1215). In his complaint, Woodfield alleged that Knight’s actions of texting, calling, and emailing Dokka while she was in Mississippi were the direct and proximate cause of the alienation of affections. Taken as true, these allegations are sufficient to show that Knight committed the tort, in whole or in part, in Mississippi. Accordingly, the requirements of our long-arm statute are satisfied.

B. Minimum Contacts

¶ 15. The second step of the analysis is to determine whether the Due Process Clause allows Mississippi courts to exercise jurisdiction over the nonresident defendant. Horne, 897 So.2d at 976 (citing McDaniel, 556 So.2d at 308). Federal law controls this inquiry. Id. The Due Process Clause of the Fourteenth Amendment provides: “No State shall ... deprive any person of life, liberty, or property without due process of law....” U.S. Const, amend. XIV. Regarding the Due Process Clause and personal jurisdiction, the United States Supreme Court has held:

[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). “A defendant has ‘minimum contacts’ with a state if ‘the defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities.’ ” Horne, 897 So.2d at 979 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).

¶ 16. In Home, this Court analyzed whether a nonresident defendant’s actions that originated in another state, but were directed at Mississippi and caused harm within the State, constituted minimum contacts for the purposes of the Fourteenth Amendment. Id. at 976. In Home, the Board of Water and Sewer Commissioners of the City of Mobile (BWSC) released water from a reservoir in Alabama, which subsequently damaged real and personal property in Mississippi. Id. at 974. The property owners filed suit against the BWSC, the Mississippi Power Company, the Mobile Area Water and Sewer System, the City of Mobile, and John Does A through J, alleging negligence, strict liability, nuisance, trespass, and outrageous conduct. Id. The City of Mobile and the BWSC both filed motions to dismiss pursuant to Rule 12(b)(2). Id. The chancellor granted the motions, and the property owners appealed to this Court, arguing that Mississippi courts had in personam jurisdiction over the nonresident defendants. Id. We reversed the chancery court, finding that the nonresident defendants were amenable to in personam jurisdiction in Mississippi. Id.

¶ 17. When applying the minimum-contacts rule to the facts in Home, this Court found that “the City and [BWSC] ‘purposefully directed’ their activities toward Mississippi property owners, by opening the spillway to its maximum capacity.” Id. at 979. Further, referring to the deposition testimony of an engineer for the BWSC, this Court noted that “[t]here is no question that the City and [BWSC] knew the water would flow into Mississippi.” Id. Based on these findings, we determined that the nonresident defendants in Home were amenable to in personam jurisdiction in Mississippi courts. Id.

¶ 18. Similar to the nonresident defendants in Home, Knight’s actions originated in a neighboring state. From Louisiana, Knight called, sent text messages to, and emailed Dokka. Importantly, Knight knew that Dokka resided with Woodfield in their marital home in Mississippi. Knight and Dokka exchanged more than 900 text messages in the course of two months. The two spent 980 minutes speaking to each other on the phone during the same time period. Knight and Dokka also exchanged numerous emails, chronicling their developing relationship.

¶ 19. We find that Knight’s emails, phone calls, and text messages are sufficient “minimum contacts” with Mississippi for the purposes of our personal-jurisdiction analysis. Int’l Shoe Co., 326 U.S. at 316, 66 S.Ct. 154. Knight “purposefully directed” his actions at a resident of the forum, namely Dokka, and the current litigation results from the alleged injuries that “arose out of or relate to” Knight’s actions. Burger King Corp., 471 U.S. at 472, 105 S.Ct. 2174. In the current litigation, Woodfield alleges that Knight’s actions were the direct and proximate result of Woodfield’s injuries, specifically the alienation of Dokka’s affections. Again, for the sake of emphasis, the tort of alienation of affections consists of three elements: (1) wrongful conduct by the defendant; (2) loss of affection or consortium; and (3) causal connection between the wrongful conduct and the loss. Fitch, 959 So.2d at 1025. Taking Woodfield’s allegations in his pleadings as true, which we must do in considering this issue, Knight’s phone calls, emails, and text messages constitute the wrongful conduct that led to Woodfield’s alleged injuries. Thus, Knight’s actions constitute sufficient minimum contacts, requiring us now to analyze the second critical issue before us.

II. WHETHER EXERCISING JURISDICTION IN THIS CASE WOULD OFFEND THE TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE.

¶ 20. Our final step in determining whether Knight is amenable to suit in Mississippi is to determine whether maintenance of the suit offends traditional notions of “fair play and substantial justice.” Burger King Corp., 471 U.S. at 476, 105 S.Ct. 2174 (quoting Int’l Shoe Co., 326 U.S. at 320, 66 S.Ct. 154). This analysis depends on: “(1) the forum state’s interest in adjudicating the dispute; (2) the plaintiffs interests in obtaining convenient and effective relief; (3) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (4) the shared interest of the several states in furthering fundamental social policies.” Id.

¶ 21. In applying these considerations to today’s case, we find that Mississippi has a strong interest in adjudicating the dispute. Woodfield, a Mississippi resident, allegedly was injured and his marriage ended because of Knight’s alleged actions. Mississippi has an interest in providing a forum for its residents who are injured by nonresident defendants. See Estate of Jones v. Phillips, 992 So.2d 1131, 1142 (Miss.2008). Mississippi’s interest is enhanced because Louisiana does not recognize the tort of alienation of affections, making Mississippi the only viable forum for Woodfield’s claims. Woodfield also has a strong interest in adjudicating the dispute in Mississippi. By maintaining the suit in Mississippi, Woodfield may obtain convenient and effective relief for his claim. Further, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies is not hampered by maintenance of the present suit in Mississippi. Knight is a resident of Louisiana, and maintenance of the suit in Mississippi will not create an extreme burden on him. Finally, this Court has held that the purpose of the tort of alienation of affections is the “ ‘protection of the love, society, companionship, and comfort that form the foundation of marriage....’” Fitch, 959 So.2d at 1019 (citing Bland v. Hill, 735 So.2d 414, 417 (Miss.1999)). Permitting claims for alienation of affections protects the marriage relationship and provides a remedy to those who have suffered loss of consortium as a result of the conduct of others. Id. at 1020. Thus, we find that the states would have a shared interest in furthering this fundamental social policy. We therefore find that maintenance of this suit in Mississippi will not offend “traditional notions of fair play and substantial justice.”

CONCLUSION

¶ 22. In sum, the County Court of Harrison County has personal jurisdiction over Knight for the purposes of adjudicating Woodfield’s claim of alienation of affections against Knight. If Woodfield suffered injuries due to Knight’s actions of emailing, calling, and sending text messages to Woodfield’s wife, such injuries were suffered by a Mississippi resident in his home state. These actions satisfy the Mississippi long-arm statute as well as the Due Process Clauses of our state and federal constitutions. Thus, we find that the county court judge did not err in denying Knight’s motion to dismiss; therefore, the judgment of the county court is affirmed, and this case is remanded to the County Court of Harrison County for further proceedings consistent with this opinion.

¶ 23. AFFIRMED AND REMANDED.

GRAVES, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS AND PIERCE, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

WALLER, Chief Justice,

dissenting:

¶ 24. Because I would find that Wood-field fails to show that Knight had sufficient contacts with Mississippi and that this State cannot constitutionally exercise personal jurisdiction over Knight, I respectfully dissent.

¶25. “Minimum contacts” must occur between the defendant and the forum state and not just between the defendant and a resident of the forum state. See McDaniel v. Ritter, 556 So.2d 303, 309 (Miss.1989). The plaintiff must prove that the defendant’s contacts were “expressly aimed” at the forum state. Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). Ultimately, the facts here do not show that Knight’s conduct was ever purposefully directed towards Mississippi.

¶ 26. While Dokka and Woodfield moved to Mississippi, Dokka commuted to Louisiana, where she worked for the same employer as Knight. All in-person contacts between Dokka and Knight took place in Louisiana. Ml telephone conversations and text messages between them were conveyed by or to Dokka’s Louisiana cell-phone number. In fact, Woodfield stated that the some 900 text messages exchanged were from Dokka to Knight. The fact that Dokka may have accessed emails in Mississippi is of no moment, as emails can be accessed anywhere. The substance of the e-mails also suggests that Dokka independently chose to leave the marriage. See Estate of Jones v. Phillips, 992 So.2d 1131, 1141 (Miss.2008) (finding minimum contacts where nonresident doctor’s telephone call to resident had induced resident to take specific course of action rather than to act independently).

¶ 27. Woodfield has not provided a sufficient basis to show that Knight purposefully directed any conduct toward this state. Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972, 979 (Miss.2004). Since no minimum contacts exist, this State cannot exercise personal jurisdiction. Accordingly, I would reverse the lower court’s judgment denying Knight’s motion to dismiss.

CHANDLER, J., JOINS THIS OPINION.

      . Dokka's cellular phone is registered in Louisiana and has a Louisiana telephone number.

      . The third issue is whether a nonresident defendant committed the tort of alienation of affections when the plaintiff filed and received a divorce on the grounds of irreconcilable differences. This is an issue for the trial court. Further, Knight’s Petition for Interlocutory Appeal did not include this issue.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Mary LEWIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01995-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2010.
    Rehearing Denied Jan. 11, 2011.
    William R. Labarre, Virginia Lynn Watkins, Jonathan Matthew Eiehelberger, Pearl, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court:

¶1. Mary Lewis was convicted in the Hinds County Circuit Court of murder and sentenced to life in the custody of the Mississippi Department of Corrections. Aggrieved, she appeals and asserts (1) that the trial court erred in refusing to grant her request for a manslaughter instruction, (2) that the trial court erred in failing to grant her motion for a mistrial, and (3) that the trial court erred in allowing certain testimony.

¶ 2. We find that the facts support the granting of a manslaughter instruction; therefore, we reverse and remand this case to the circuit court for a new trial.

FACTS

¶ 3. On June 23, 2007, Lewis shot and killed her boyfriend, Arthur Patterson, at the intersection of Eminence Row and Sears Street in Jackson, Mississippi. Thereafter, she was arrested and charged with murder. On June 24, 2007, Lewis gave a statement to Jackson Police Department (JPD) Detectives Christopher Watkins and Kent Daniels. In the statement, Lewis set forth the chain of events that she contends happened before and after the shooting.

¶ 4. According to Lewis’s statement, shortly before midnight on June 22, 2007, she asked Patterson if she could borrow a Cadillac that the two of them shared. Lewis was baby-sitting at the time and told Patterson that she wanted to drive the baby around in order to get the baby to calm down. He agreed, and Lewis left with the baby. At some point thereafter, the Cadillac stopped, and Patterson came to assist with getting it running again. Patterson was successful and left thereafter. Lewis did not return home. Instead, she continued driving around. At some point she spotted Kurt, one of her relatives, who asked her to give one of his friends a ride. Before Kurt’s friend could get into Lewis’s vehicle, Patterson drove up and blocked in the Cadillac. Patterson then approached the Cadillac, cursed at Lewis, ordered her out of the vehicle, and threw a beer bottle inside. As Lewis attempted to pull off, a .22-caliber handgun “came from under the seat.” Lewis grabbed it and started shooting. Lewis stated that she thought she was “shooting down.” Shortly thereafter, she realized that she had shot Patterson. She then drove down the street but made a made a U-turn and returned to the scene to see if Patterson had a pulse. She asked Patterson’s passenger, Johnny Hawkins, to call 911, threw the gun in the grass, and fled to Roy Fleming’s house. There, Lewis told Fleming that she thought that she had killed someone and asked him if she could park the Cadillac at his house.

¶ 5. In addition to her written statement, Lewis also participated in a written question-and-answer session with the detectives, during which she stated that she had accidentally shot Patterson. Also, the detectives asked Lewis whether Patterson had assaulted her prior to the shooting; she responded that Patterson “had knocked the window out the car [sic] with the bottle and tried to grab [her] out the car [sic].”

¶ 6. Lewis stood trial in October 2007 for killing Patterson. Hawkins witnessed the shooting and testified that Patterson, per his usual practice, came to pick him up at approximately 8:00 on the morning of the shooting. According to Hawkins, he and Patterson often rode around on Saturday mornings. However, on this particular Saturday, Hawkins recalled that Patterson told him that Patterson was looking for Lewis because she had taken his Cadillac. Hawkins testified that they rode around for about an hour before they saw the Cadillac on Eminence Row in Jackson. Hawkins also testified that Patterson pulled the vehicle he was driving in front of the Cadillac. He explained that another vehicle was parked behind the Cadillac, so after Patterson parked in front of the Cadillac, Lewis was blocked in. Hawkins stated that he remained in the car while Patterson walked up to the Cadillac and spoke with Lewis. Then, according to Hawkins, Patterson opened the door to the Cadillac and instructed Lewis to get out. Hawkins recalled that Lewis closed the door and began to roll the window up as Patterson attempted to reach in and remove the keys from the ignition. Hawkins testified that it was at that point that Lewis shot Patterson through the window, which was partly rolled up. Hawkins stated that Lewis drove off but returned within a few minutes. Hawkins testified that when she returned, Lewis went over to Patterson as he lay on the ground and cursed at him. Then, according to Hawkins, Lewis got in the Cadillac and drove away.

¶ 7. Robia Womack, a friend of Patterson’s, was in the area visiting friends when she witnessed the shooting. Womack testified that she saw Patterson as he drove down Sears Street and that she saw Lewis as she drove down Eminence Row. Wom-ack explained that Lewis was ahead of Patterson and that Patterson “took a left down Eminence Row and tided to block her off,” that Lewis “pulled up behind him, and [that] Kurt pulled up directly behind her.” Womack testified that, in an effort to get around Patterson’s vehicle, Lewis bumped into both Patterson’s and Kurt’s vehicles. Womack testified, as did Hawkins, that Patterson then approached the Cadillac and told Lewis that he wanted his vehicle back. Unlike Hawkins, Womack testified that Patterson struck Lewis once or twice with his fist. According to Wom-ack, at this point, Lewis pushed Patterson and managed to roll the window up. Womack stated that Lewis then shot Patterson through the window as he stood next to the Cadillac.

¶ 8. Bernice Henry testified that she witnessed a man and a woman “tussling” in a Cadillac at the intersection of Eminence Row and Sears Street on June 23, 2007, immediately prior to the man being shot. Henry stated that she did not see Patterson throw anything into the Cadillac before the shooting occurred.

¶ 9. Fleming testified that Lewis came to his house at approximately 10:00 on the morning of the shooting, hoping to leave the Cadillac at his house. He stated that he left, and when he returned home, the Cadillac was parked in his backyard. Fleming called the police the next day, and JPD Officer Craig Crowley recovered the Cadillac from Fleming’s residence.

¶ 10. The defense did not put on any witnesses, and following her trial, Lewis was convicted as charged. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Manslaughter Instruction

¶ 11. Lewis argues that the trial court erred in failing to grant her request for a manslaughter instruction. “The trial court enjoys considerable discretion regarding the form and substance of jury instructions.” Higgins v. State, 725 So.2d 220, 223 (¶ 15) (Miss.1998) (citing Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992)). The circuit court denied Lewis’s manslaughter instruction because it found that there was insufficient evidence that Lewis had acted in the heat of passion and because the manslaughter theory was inconsistent with Lewis’s self-defense theory. We find that our supreme court’s recent decision in Brown v. State, 39 So.3d 890 (Miss.2010) controls the outcome of this case.

¶ 12. Mississippi Code Annotated section 97-3-35 (Rev.2006) defines manslaughter as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense .... ”

¶ 13. In Broum, Johnny Brown was convicted of killing his wife, Violar Bracey; he claimed that he accidentally shot Bra-cey during a struggle after she had threatened him with a gun. Broum at 893-94 (¶ 12). The supreme court found that those facts were sufficient to establish “heat of passion”:

Brown testified that, immediately prior to the shooting in the motel room, he was lying in the bed with his back to Bracey when he suddenly felt the barrel of a pistol pressing on the back of his head. In the heat of the moment, he acted in self-defense by attempting to wrestle the pistol from Bracey, but it accidently discharged. Through jury instruction D-l, Brown was trying to have the jury instructed, consistent with Section 97 — 3—17(b), that if the jury found, among other things, that while he was in possession of the gun, he, in the heat of passion during the altercation with Bracey, and without any deliberate design to cause Bracey’s death, accidently fired the fatal shot through misfortune, upon sudden and sufficient provocation (the unexpected tussle with Bracey over the gun), then the jury was to find him not guilty:

Id. at 899 (¶ 32) (emphasis added).

¶ 14. Although Broum dealt with the propriety of an accidental-killing instruction, the same “heat-of-passion” standard would apply in our case. Womack testified that she witnessed Patterson strike Lewis in the face immediately prior to the shooting. In her statement to the police, Lewis stated that Patterson “had knocked the window out of the car with the bottle and tried to grab me out of the car.” These alleged acts are similar enough to Bracey’s acts in Broum to show heat of passion sufficient for a manslaughter instruction.

¶ 15. Furthermore, the Broum court also held that inconsistent theories of defense can be presented in jury instructions: “a criminal defendant has a right to assert alternative theories of defense, even inconsistent alternative theories.” Id. at 899 (¶34).- In Brown, Brown wanted to present a self-defense instruction and an accidental-shooting instruction. Id. These two theories are inconsistent, as self-defense is an intentional act and accidental-shooting is unintentional. Id. The Broum court found that the two theories could be presented regardless of their incompatibility. Id. Likewise, the self-defense and manslaughter instructions in the present case should have both been allowed, even though they are incompatible.

¶ 16. As our supreme court held in Broum, “[t]he ultimate responsibility of assuring that the jury is properly instructed on all relevant issues of law in a case falls upon the trial judge.” Id. at 900 (¶ 36). In this case, both a manslaughter instruction and a self-defense instruction should have been issued by the circuit court. Accordingly, we reverse and remand for a new trial.

2. Motion for Mistrial

¶ 17. Lewis moved for a mistrial because of an alleged discovery violation by the State. This issue is now moot because of our resolution of Lewis’s first issue.

3. Testimony

¶ 18. In her final issue, Lewis contends that the trial court erred in allowing Colette Robinson to testify that Lewis had threatened to kill Patterson the Friday night before the shooting. Specifically, Lewis contends that because Robinson’s testimony was more prejudicial than probative, it violated Rule 403 of the Mississippi Rules of Evidence, which provides: “[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 by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” It is well settled that “an appellate court reviewing a Rule 403 determination is not to engage anew in the Rule 403 balancing process. Rather, [an appellate court] must simply determine whether the trial court abused its discretion in weighing the factors and admitting or excluding the evidence.” Carter v. State, 953 So.2d 224, 229 (¶ 11) (Miss.2007) (quoting Baldwin v. State, 784 So.2d 148, 156 (¶ 27) (Miss.2001)).

¶ 19. Before Robinson took the stand, the trial judge held a conference outside of the presence of the jury to determine whether Robinson would be allowed to testify as to what Lewis had told her. After argument from both sides, the trial judge ruled that the probative value of Robinson’s testimony outweighed the prejudicial effect and allowed Robinson to testify. Thereafter, Robinson stated that she lived next door to Lewis and Patterson at the time of the shooting. Further, she testified that Lewis came over to her house between 10:30 p.m. and 11:00 p.m. on the night before the shooting. According to Robinson, Lewis did not normally come over to talk to her. Robinson recalled that Lewis was upset and that Lewis told her that she “was going to kill [Patterson] that night.”

¶ 20. We find that the trial judge did not abuse his discretion in allowing Robinson to testify, as it was probative of Lewis’s intent to commit the crime. Accordingly, we find no merit to this issue.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . It appears from the record, although it is not clear, that several hours had passed between the time that Patterson initially assisted Lewis with getting the car started and the time that he returned. Also, the record does not inform us as to what Lewis did in the interim. Also, the record does not contain Kurt’s full name.

      . No beer bottle or broken pieces of a beer bottle were found inside the Cadillac or at the scene of the shooting.

      . Lewis stated that Fleming is her aunt’s husband.

      . Lewis does not specify what transpired between the point in time when Patterson came to assist her after the Cadillac had become inoperable and approximately 8:00 a.m. Saturday, when they met at the intersection of Eminence Row and Sears Street.

      . Dr. Steven Hayne performed Patterson’s autopsy and testified that Patterson had died from a single gunshot wound to the abdomen, which caused massive internal bleeding.

      . Hawkins testified that he is visually impaired, but not blind.

      . Outside of the presence of the jury, the prosecutor informed the jury that Robinson lived with Hawkins at the time of the shooting.


author: MAXWELL, J.,

text:
    Wallace B. McCULLAR, Spouse of Decedent, Mary F. McCullar, personally and on behalf of all statutory wrongful death beneficiaries, Appellant v. BOYD TUNICA, INC. d/b/a Sam’s Town Hotel and Gambling Hall, Appellee.
    No. 2009-CA-00616-COA.
    Court of Appeals of Mississippi.
    Sept. 14, 2010.
    Rehearing Denied Jan. 11, 2011.

      Daniel M. Czamanske Jr., attorney for appellant.
    Scott Burnham Hollis, Robert Tubb Jolly, Olive Branch, attorneys for appellee.
    Before KING, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Wallace McCullar filed a premises-liability lawsuit in the Tunica County Circuit Court against Boyd Tunica, Inc. d/b/a Sam’s Town Casino and Gambling Hall. This case arose after McCullar’s wife, Mary Frances McCullar (“Frances”), slipped and fell in the bathroom of their hotel room at the casino. The circuit court granted summary judgment in favor of Sam’s Town. Because we find McCullar fails to show the existence of any genuine issue of material fact on the issue of Sam’s Town’s negligence, we affii-m the circuit court’s grant of summary judgment.

FACTS

¶ 2. On November 24, 2003, McCullar, Frances, and Billie Ruth McCullar (“Ruth”) shared a hotel room at Sam’s Town Casino in Tunica, Mississippi. McCullar and Ruth had both used the shower that morning and noticed no problem with the bathroom facilities. Later that morning, McCullar helped Frances to the bathroom. He assisted in seating her on the toilet, then left the bathroom.

¶ 3. It is undisputed that water suddenly flowed down from the ceiling above the bathtub. After the water began leaking, Frances fell 'to the floor and suffered a broken hip. She was hospitalized and ultimately died several months later.

¶ 4. According to McCullar’s deposition testimony, he heard water running in the bathroom and then heard his wife call for him. When he returned to the bathroom, he found Frances on the floor. At this point, he saw water on the floor but was unsure whether her fall resulted from the water. He admitted he did not see his wife fall.

¶ 5. Ruth’s deposition differed somewhat from McCullar’s. She claimed she observed McCullar attempt to help Frances get off of the toilet. Ruth testified that she saw Frances fall to the floor while McCullar tried to assist her.

¶ 6. John Logwood — a Sam’s Town employee who repaired plumbing problems— examined the plumbing in the McCullars’ bathroom soon after the incident. Log-wood’s affidavit indicates that above the bathtub is a removable panel in the ceiling called a “P-trap door.” When he inspected the plumbing behind this removable panel, he noticed water leaking down the side of a pipe called a “P trap.” He claimed dripping water fell into the middle of the bathtub in the McCullars’ bathroom. He believed the source of the leak was a broken seal where the top of the “P-trap” connects to the bathtub drain in the hotel room directly above the McCullars’ room.

¶ 7. A corporate representative of Sam’s Town, Greg Lacki, testified by deposition about Sam’s Town’s maintenance procedures. He claimed he did not know whether the plumbing that leaked into the ceiling above the McCullars’ bathroom had been inspected or repaired on any prior occasion. He testified that Sam’s Town conducts an annual inspection, but he was unsure whether the plumbing in the bathroom ceilings is inspected routinely.

¶ 8. McCullar filed a wrongful-death suit against Sam’s Town, and Sam’s Town moved for summary judgment. The circuit court found McCullar failed to show Sam’s Town had actual or constructive notice of a dangerous condition, or that any such condition proximately caused Frances’s injury. Accordingly, the circuit court granted summary judgment in Sam’s Town’s favor, which McCullar now appeals.

STANDARD OF REVIEW

¶ 9. We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment. Lewallen v. Slawson, 822 So.2d 236, 237 (¶ 6) (Miss.2002) (citation omitted). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). In determining whether the trial court properly granted summary judgment, we view the facts in the light most favorable to the nonmovant. Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999) (citation omitted).

¶ 10. Summary judgment must be granted when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (citing Grisham v. John Q. Long V.F.W. Post, No. 1057, Inc., 519 So.2d 413, 416 (Miss.1988)). To withstand summary judgment, the nonmoving party must produce significant probative evidence of a genuine issue for trial. Id. (citing Price v. Purdue Pharm. Co., 920 So.2d 479, 485 (¶ 16) (Miss.2006)).

DISCUSSION

¶ 11. In a premises-liability action, the plaintiff must prove the familiar elements of duty, breach of duty, proximate cause, and damages in order to establish a prima facie case. Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641 So.2d 1186, 1189 (Miss.1994). To survive summary judgment, the party with the burden of proof must show a genuine issue of material fact exists as to every element of his claim. See Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So.2d 390, 398-99 (¶ 16) (Miss.Ct.App.2007). Here we find McCullar offered insufficient proof of Sam’s Town’s negligence. Since failure of proof on a single element is fatal to McCullar’s action, we need not discuss the remaining elements.

I. Sam’s Town’s Negligence

¶ 12. A business owner’s duty depends on the plaintiffs status as an invitee, licensee, or trespasser. See Leffler v. Sharp, 891 So.2d 152, 156-57 (¶¶ 11-12) (Miss.2004) The duty owed to a licensee or trespasser is the same — to refrain from inflicting a willful or wanton injury. Id. at 157 (¶ 12). With respect to an invitee, the duty is higher, and the owner is required “to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition or [to] warn of dangerous conditions not readily apparent, which [the] owner ... knows of, or should know of, in the exercise of reasonable care.” Robinson v. Ratliff, 757 So.2d 1098, 1101 (¶8) (Miss.Ct.App.2000) (quoting Fulton v. Robinson Ind., 664 So.2d 170, 175 (Miss.1995)). It is undisputed that McCullar was an invitee.

¶ 13. In every premises-liability case, the plaintiff must show that a dangerous condition exists. Stanley v. Boyd Tunica, Inc., 29 So.3d 95, 97-98 (¶ 10) (Miss.Ct.App.2010) (citing Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (¶ 5) (Miss.Ct.App.2006)). The plaintiff must also show: (1) a negligent act by the defendant caused the dangerous condition; or (2) the defendant had actual knowledge of the dangerous condition but failed to warn the plaintiff; or (3) the dangerous condition remained long enough to provide the defendant with constructive knowledge. Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 184-85 (¶ 7) (Miss.Ct.App.2005) (citing Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992)).

¶ 14. Business owners are not strictly liable for injuries occurring on the premises, nor are they insurers of their invitees’ safety. Martin v. Rankin Circle Apartments, 941 So.2d 854, 864 (¶ 45) (Miss.Ct.App.2006). And mere proof that a slip and fall occurred “is insufficient to show negligence on the part of the proprietor[.]” Jacox, 908 So.2d at 184 (¶7) (quoting Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 917 (Miss.1966)).

¶ 15. We note that McCullar does not contend Sam’s Town had actual or constructive knowledge of a dangerous condition in the hotel bathroom or in the related plumbing system. McCullar instead focuses on Sam’s Town’s alleged negligence in creating the condition he alleges caused Frances to fall. He specifically claims Sam’s Town failed to properly inspect, maintain, and/or construct the bathroom facilities in the McCullars’ room.

¶ 16. Actual or constructive knowledge of a dangerous condition is not a required element of proof in a premises-liability case where a business owner’s negligence caused the danger. Elston v. Circus Circus Miss., Inc., 908 So.2d 771, 773 (¶ 9) (Miss.Ct.App.2005) (citing Brennan v. Kroger Co., 672 So.2d 1168, 1171 (Miss.1996)); see also Jacox, 908 So.2d at 184-85 (¶ 7). But here we find McCullar fails to raise a jury question regarding Sam’s Town’s negligence in creating the allegedly dangerous condition.

¶ 17. McCullar relies on our prior decision in Elston, in which the plaintiff suffered an injury when she slipped and fell in a puddle of water on the floor in the lobby of the Gold Strike Casino. Elston, 908 So.2d at 773 (¶ 3). She fell within the “immediate vicinity of some plants and within ten feet of the front desk.” Id. According to a casino bellman, the fall occurred within several hours of the time when the plants were usually watered. Id. at (¶ 5). In addition, the casino had various procedures in place to make sure there were no spills on the lobby floor. It retained two employees for the specific purpose of ensuring no water or debris was on the lobby floor. Id. at 773 (¶ 10). Corporate procedures required these employees to walk the entire lobby floor twice an hour to check for spills or debris. Id. And all employees, regardless of position, were required to clean spills on the lobby floor. Id. Under these circumstances, this Court found the “evidence [was] beyond speculation and sufficient for a jury to conclude that ... Elston’s injury was caused by a dangerous condition that Gold Strike created.” Id. at 774 (¶ 12). Since there was sufficient proof the spill had been on the floor for at least several hours prior to the plaintiffs fall, this Court also found a jury question existed as to Gold Strike’s constructive knowledge of the spill. Id. at 775 (¶14).

¶ 18. In Elston, there was ample evidence that casino employees created the dangerous condition by watering plants in the hotel lobby. But here there is no evidence of an affirmative act by Sam’s Town that created a dangerous condition. The water leaked from the plumbing above a ceiling panel in the McCullars’ bathroom, and McCullar presented no evidence to show that Sam’s Town had prior notice of the leak. Nor did he show any act by Sam’s Town that caused the leak. Further, unlike Elston, McCullar presented no evidence that Sam’s Town had violated its internal procedures regarding maintenance or inspection. And here the injury did not occur in an open hotel lobby. Instead, it took place in a bathroom where employees obviously were neither present nor instructed to monitor continuously.

¶ 19. We find Jacox instructive. In Jacox, the plaintiff alleged he suffered an injury while using the public restroom at the Gold Strike Casino. Jacox, 908 So.2d at 183 (¶ 2). When he flushed the toilet, the toilet rapidly overflowed, and according to the plaintiff, he fell on the slippery floor. Id. The plaintiff offered no evidence that Gold Strike or its employees caused the toilet to overflow. Id. at 185 (¶ 9). There was also no evidence of actual or constructive notice of a dangerous condition, as the plaintiff admitted he had noticed no problem with the toilet prior to its overflowing. Id. Under these circumstances, this Court found the plaintiff had not shown that “Gold Strike fell below any recognized standard of care in its maintenance or cleaning of its bathroom.” Id. We also noted he presented insufficient proof of damages. Id. Under these circumstances, we found the trial court properly granted summary judgment. Id. at (¶ 10).

¶ 20. As in Jacox, McCullar has not shown that plumbing deficiencies existed prior to the time Frances used the bathroom. Both McCullar and Ruth had used the shower that morning and had not noticed any problem with the plumbing above the bathtub. Since the evidence indicates the leak occurred unexpectedly and spontaneously from an area above a ceiling panel, we find Sam’s Town had no actual or constructive knowledge of a dangerous condition. And because McCullar did not show that Sam’s Town or anyone under its control caused or contributed to the plumbing problem, he fails to raise a jury question as to Sam’s Town’s negligence in creating a dangerous condition.

II. Circumstantial Evidence

¶ 21. McCullar asserts that circumstantial evidence exists that Sam’s Town failed to inspect and maintain the plumbing in the bathroom ceiling. Sam’s Town responds that McCullar improperly attempts to invoke the doctrine of res ipsa loquitur.

¶ 22. Res ipsa loquitur, meaning literally “the thing speaks for itself,” is a circumstantial-evidence doctrine allowing the jury to draw an inference of the defendant’s negligence. Austin v. Baptist Mem’l Hosp.-N. Miss., 768 So.2d 929, 932 (¶ 10) (Miss.Ct.App.2000). It is “one form of circumstantial evidence a plaintiff may rely on in certain circumstances.” Id. However, our supreme court has held that the doctrine does not apply in slip-and-fall cases. Douglas v. Great Atl. & Pac. Tea Co., 405 So.2d 107, 111 (Miss.1981) (“[W]e recognize the well settled rule which disallows the application of the doctrine of res ipsa loquitur to slip and fall cases.”); see also Jacox, 908 So.2d at 184 (¶ 7) (quoting Tisdale, 185 So.2d at 917) (“[T]he doctrine of res ipsa loquitur is inapplicable in cases of this kind”).

¶ 23. But in the context of a slip-and-fall case, we have stated: “Negligence of the defendant and notice to him may be found from circumstantial evidence of adequate probative value.” Elston, 908 So.2d at 775 (¶ 16). In other words, “the plaintiff may prove circumstances from which the jury might [reasonably conclude] that the condition of the floor was one which was traceable to the proprietor’s own act or omission.” Id. (quoting Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 585, 156 So.2d 734, 736 (1963)). Our supreme court has explained that:

[W]hile inferences of negligence may be drawn from circumstantial evidence, those inferences must be the only ones which reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inferences, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts.

Miss. Valley Gas Co. v. Estate of Walker, 725 So.2d 139, 145 (Miss.1998), implied oven’uling on other grounds recognized by Adams v. U.S. Homecrafters, Inc., 744 So.2d 736 (Miss.1999).

¶ 24. McCullar emphasizes Lacki’s testimony that he did not know whether the plumbing in the McCullars’ bathroom had been previously inspected or repaired. Though Lacki testified that Sam’s Town conducted an annual inspection, he was uncertain whether the inspection entailed checking the plumbing in the bathroom ceilings. So it is unclear whether Sam’s Town inspected the plumbing on prior occasions. But regardless, McCullar offered no expert testimony to show what Sam’s Town should have done — for example, what type of inspection it should have performed — to keep the plumbing in its hotel bathrooms in a reasonably safe condition for its patrons. McCullar made no attempt to articulate the standard of care regarding inspection or maintenance of hotel bathrooms. And it follows that there has been no showing as to how Sam’s Town’s inspection practices deviated from the applicable standard of care. Equally lacking is proof as to what an inspection might have revealed. Under these circumstances, we cannot find that McCullar presented circumstantial evidence of adequate probative value to survive summary judgment.

CONCLUSION

¶ 25. We find that no genuine issue of material fact exists as to Sam’s Town’s negligence. McCullar has failed to show an element essential to his case — that Sam’s Town breached its duty. Nor did he show that Sam’s Town had actual or constructive knowledge of a dangerous condition or that Sam’s Town’s negligence created any such condition. Accordingly, we affirm the circuit court’s grant of summary judgment in favor of Sam’s Town.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BARNES, J.,

text:
    Charles ANDERSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00968-COA.
    Court of Appeals of Mississippi.
    Dec. 7, 2010.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court:

¶ 1. A Lamar County grand jury returned a two-count indictment against Charles Anderson for murder and arson. During his first trial, Anderson was convicted of manslaughter, but the jury was unable to reach a verdict on the arson charge. Anderson was retried on the arson charge, and the jury found him guilty. The trial court sentenced him to twenty years in the custody of the Mississippi Department of Corrections, to be served consecutively with the sentence previously imposed for the manslaughter conviction. Anderson was also ordered to pay restitution.

¶ 2. Anderson now appeals his conviction for arson, challenging the weight and sufficiency of the evidence, as well as claiming ineffective assistance of counsel and the denial of his fundamental right to a fair trial. Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 3. On the evening of April 19, 2003, at approximately 9:30 p.m., law enforcement was called to Anderson’s residence in Lamar County, Mississippi, to investigate a fire and a shooting. When they arrived on the scene, law enforcement found Anderson’s home ablaze and Shelton Smith shot dead on the carport.

¶4. It was discovered Anderson was having an affair with Shelton’s wife, Cathy. Anderson, who was divorced from Ann Stockstill, lived in a house that was jointly owned with his ex-wife, which was located on her family’s property. Ann’s brother, Owen Stockstill, lived on this property as well, in a separate house, with his wife Debra and daughter Megan. The weekend before the incident, Owen stated that Shelton had stopped by his house and told Owen that he was “having problems with his wife, that she had left and he was done with her this time.”

¶ 5. On the night of April 19, it was discovered Anderson had invited Shelton to his house in order to sell him tapes proving his wife’s infidelity. It was not known whether, at that time, Shelton knew Anderson was having sexual relations with his wife. The State’s theory of the case was that Anderson killed his paramour’s husband and then committed arson to be rid of the jointly owned house with his ex-wife. Conversely, the defense’s theory of the case was that Shelton had a motive to burn Anderson to death, as Shelton was going through a divorce and was seeking retribution against Anderson for having an affair with his wife.

¶ 6. Approximately four or five days before the incident, Shelton had contacted W.F. Steele, Chief Investigator of the Lamar County Sheriffs Office, because Shelton had received several phone messages from a person trying to sell him video tapes for $10,000 of his wife and another man having an affair. Deputy Steele’s investigation identified Anderson as the person who had left the messages on Shelton’s phone. Shelton went to Anderson’s house the night of April 19 to purchase these tapes twice: the first time he did not purchase the tapes, but he returned the second time because Anderson had offered him the tapes for the discounted price of $500.

¶ 7. Arriving on the scene on April 19, Deputy Steele put crime-scene tape around Anderson’s residence, then photographed and collected evidence. Early on the morning of April 20, Anderson gave a statement at the sheriffs office to Deputy Steele. After receiving his Miranda warnings and signing a waiver-of-rights form, Anderson gave his version of the events, which was read to the jury and entered into evidence:

Somewhere around 8:30 ... I went to bed, hadn’t been asleep very long and the dogs were barking. I got up to go to make my dogs be quiet. When I opened my bedroom door I saw Shelton Smith standing in the hallway and then the next thing I saw was a small flame and then the whole hallway was on fire. I immediately went back in my bedroom. I don’t remember if I shut my door or not, but I think I did. The windows in my bedroom were already open and I pushed the screen out, went out the window, took my 12-gauge shotgun that was beside the window. He went running behind his truck and I immediately went up on the carport....

Reiterating where he saw Shelton, Anderson continued:

I opened the door from my bedroom and went to step into the hall and I saw him standing at the other end of the hallway. ... I didn’t say a word, but whenever I opened the door and stepped out there he said, hollered something like “die you son-of-a-bitch, die” or something and lit a match or cigarette lighter or something then the whole hall was afire.... I could smell gasoline when I opened the door. It had to of been gas ... nothing eome[s] that fast.... I broke and went back to my bedroom, went out the window and went out there and ran from around a blue car and he was on the end of the carport....

Anderson added that he did not remember “stepping in any” gasoline.

¶ 8. Deputy Steele testified that there were several gas cans under Anderson’s carport. One of the gasoline cans was “away from the others” with a loose cap and only half a gallon of gas in it. No fingerprints were found on the can. Deputy Steele also observed the burn pattern in the house, which indicated an accelerant substance “was poured from the carport door all the way through the living room area and back to the end of the hallway” (where Anderson’s bedroom was located). A shotgun, devoid of burn or soot marks, was recovered from the carport. Deputy Steele did not know if, at the time of his death, Shelton was aware that Anderson was having an affair with his wife.

¶ 9. Telephone records showed that between April 1 and 19, 2003, Anderson had made forty-five telephone calls to Shelton’s wife, Cathy, and she had made sixty-four calls to Anderson. Moreover, on the date of April 19, 2003, eight telephone calls were made between Anderson and Cathy, with seven of those calls made between 4:00 p.m. and the time of the fire. Initially, Anderson denied he was having a sexual relationship with Cathy, but Cathy admitted the affair to law enforcement on the night of the fire.

¶ 10. Preston Burkhalter, with the Lamar County Sheriffs Department, testified that on April 19, 2003, he was dispatched to the scene where he found smoke coming from Anderson’s house and Shelton’s body lying next to his pickup truck in the carport. Law enforcement decided to move Shelton’s truck so that firefighters could put out the fire, and they retrieved the keys from Shelton’s pocket. Deputy Burkhalter then found the shotgun under the carport and secured it in the backseat of his patrol car. There were no burn marks on the gun.

¶ 11. Owen testified that he, his wife, and daughter lived approximately 100 to 150 yards down the road from his ex-brother-in-law, Anderson. At approximately 8:45 p.m. on April 19, Owen stated that he, his wife Debra, his daughter Megan, and his daughter’s boyfriend were at home “watching TV when the dogs started barking and [Anderson] came running up on the porch and run into the door and fell back out on the porch. We went out and helped him up, brought him inside and put him on the couch. And I asked him what happened and he said that Shelton was trying to burn his house down and that he shot [Shelton].” Anderson was barefoot and wearing pajamas.

¶ 12. Debra then called 911, while Owen, Megan, and Megan’s boyfriend got into Owen’s truck and went to Anderson’s home. They were the first people to arrive on the scene. As he pulled into the carport, Owen saw Shelton’s body lying next to his truck. It was determined that Shelton was deceased. Owen stated: “The house was just billowing black smoke ... around all the windows, the vents, the doors, but I could not see a flame at all.” Owen noticed a shotgun lying on the carport in front of Anderson’s vehicle.

¶ 13. Megan testified that she, her mother, her father, and her boyfriend all “heard some shots go off’ but thought little of it as there are many hunters in the area. Shortly thereafter, Anderson “came running up” to the house, “ran on the porch and collapsed” at the front door. She corroborated her father’s testimony about the ensuing events. Additionally, Megan testified that later that evening, she noticed the smell of gasoline on the armrest of the couch upon which Anderson had been sitting. Debra corroborated the testimony of her daughter and husband. She also testified that she smelled gasoline on Anderson after they put him on the couch.

¶ 14. William Courtney, a paramedic who was dispatched to the scene, explained that he found “two patients” — “[o]ne having chest pains and one that was deceased.” Courtney related that Anderson stated his dogs woke him up, “at which time he went outside into the hallway of his bedroom, found Mr. Shelton in his hallway. Some expletives from Mr. Shelton. And then he ignited a fire in the house.” Anderson told Courtney he went to his bedroom to escape and went around the other side of the house. “At that point he encountered Mr. Shelton and it went from there.” When Anderson, who was on a stretcher, was being unloaded from the ambulance at the hospital, Courtney noticed the smell of gasoline on Anderson’s lower extremities.

¶ 15. Joe Crawford of the State Fire Marshal’s Office was accepted by the trial court as an expert in the field of causation, origin, and properties of fire. Crawford explained when he arrived at the scene, the house was still burning; so, he only examined the perimeter of the structure that night. He returned approximately two days later to commence his initial investigation of the house’s interior. There were indications of accelerant, like gasoline, on the flooring before it burned. The most extensive part of the fire was inside the hallway. Crawford determined the “burn pattern existed from the carport door, [past the living room area and a wrap-around couch] all the way down near the bedroom of Mr. Anderson.” Crawford was of the opinion the fire was incendiary; it was not an act of God, and it was not electrical. He was also of the opinion that the fire was ignited near Anderson’s bedroom.

¶ 16. During Crawford’s direct examination, the State sought to refer to a statement by Anderson where he indicated Shelton was in the hallway. Defense counsel asked to approach the bench, stating to the judge he objected to a statement Crawford had received from Anderson without being Mirandized. The trial court overruled the defense’s objection and allowed the State to refer to Anderson’s statement that was already in evidence, which was taken at the same time that Anderson had signed a Miranda warning and waiver-of-rights form. Crawford proceeded with his testimony, stating in his opinion, if Shelton had been where Anderson claimed he was, Shelton would have been “badly burned .... [b]ecause when fire burns, it burns up and it burns out. And when you have accelerant that’s used in a fire, then the fire itself burns more intensely. So ... he would have been totally engulfed in fire if he had been there.”

¶ 17. Importantly, the autopsy of Shelton’s body showed no evidence of burns; nor were his clothes burned. Law enforcement officers were unable to recover Shelton’s clothes for testing of accelerant, but his shoes and body were tested, as were Anderson’s pajamas. No accelerant was found on any of these items. Shelton had approximately $1,200 in cash on his person. Found in Shelton’s shirt pocket were a memo book and a cigarette lighter. Found inside Shelton’s pickup truck, which was locked, were an icepick, a screwdriver, a pistol, and a box of matches. Deputy Steele testified that Emma Shelton had given Shelton the matches that day for burning some trash on her place.

¶ 18. During Crawford’s cross-examination, defense counsel had him read his case summary to the jury, and it was entered into evidence. The summary related his investigation of the incident. After his initial visit to the scene, Crawford explained he went to the Lamar County Jail to gather information from Anderson about the fire. Crawford said Anderson told him that when the fire was set, Shelton was standing in the hallway near “the living room area of the home behind the couch looking toward his bedroom.” At trial, it was Crawford’s personal opinion that the fire had started approximately three-quarters of the way down the hallway near Anderson’s bedroom. This opinion was in conflict with Crawford’s earlier report, dated May 29, 2003, which stated that the fire had started near the kitchen area “near the [carport] door where there was a rug.” Crawford apparently changed his mind about this matter, but it is unclear from the record why. In the report, Crawford maintained “[t]here was nothing that indicated that the fire was accidental.... The only way this fire could have started is by human hands coming into contact with an ignitable liquid and an open flame to start this fire.” His report also stated “something [was] poured throughout the length of the hallway and ignited.” On redirect examination, Crawford reiterated that regardless of where the fire was ignited, Shelton would have been burned if he had been standing where Anderson said he had been standing.

¶ 19. Sharron Jones, a forensic scientist with the Mississippi Crime Laboratory, was accepted by the trial court as an expert in the field of analysis of fire debris and ignitable liquids. Out of six material submissions taken by Crawford at the scene, gasoline was identified on three: two samples from a rug near the carport door, and one sample from a carpet pad from beside the couch on the edge of the hallway and living room. Jones also testified that while a test of Anderson’s pajamas did not show ignitable liquids, it would not surprise her if gasoline was smelled on him, because the nose is better at picking up that smell than testing instruments.

¶ 20. Gary Jones, a senior fire investigator with Crawford Investigation Services at the time of the fire, was accepted as an expert in the field of causation and origins of fire. Jones was sent by Nationwide Insurance to investigate the fire. It was his opinion that the fire was incendiary. During his investigation of the scene on April 25, 2003, he could smell gasoline near the couch in the living room. He testified that the “irregular burn pattern extended southward down the hallway into the living room and terminated at the rug at the back door.... It is a continuous pattern” from the back door down the hallway. It was also Jones’s opinion that Anderson’s version of the events was not supported by the physical evidence. Jones testified that if a person were standing in the pour pattern of the gasoline, he was going to be burned, because “that liquid pattern is going to support that flame from one end of that space to the other. An individual that’s standing in the middle of it, near it, is going to receive burn exposure effects from it.” Jones’s report of the fire was entered into evidence. It also referenced a previous fire loss by Anderson to a residence he had owned.

¶ 21. Prior to the trial, Anderson filed a motion in limine, which the trial court granted, to exclude any evidence or reference to this previous fire loss reported by Anderson. During deliberations, the jury asked if they could use the information in Jones’s report that referenced this previous fire loss by Anderson. The trial court responded: “It was determined that this evidence has no evidentiary value and is not for consideration in this matter.” The jury found Anderson guilty of arson. The trial court denied Anderson’s post-trial motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Anderson timely appeals his conviction and sentence.

ANALYSIS OF THE ISSUES

1. Sufficiency and Weight of the Evidence

¶ 22. Anderson claims that the jury verdict was against the sufficiency and weight of the evidence. A motion for a directed verdict and a JNOV challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). “[T]he 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.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence will be deemed sufficient if “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, if the evidence “point[s] 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,” this Court must reverse and render. Id. All credible evidence supporting the defendant’s guilt will be accepted as true, and the evidence will be considered in the light most favorable to the State. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 23. On the other hand, a motion for a new trial challenges the weight of the evidence. Bush, 895 So.2d at 844 (¶ 18). A trial court’s denial of a motion for a new trial is reviewed for an abuse of discretion. Id. The reviewing court will disturb a verdict only “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. All “evidence consistent with the defendant’s guilt is accepted as true together with any reasonable inferences that may be drawn from that evidence.” Young v. State, 891 So.2d 813, 821 (¶ 21) (Miss.2005) (citing Heidel v. State, 587 So.2d 835, 838 (Miss.1991)). Finally, “[a]ny factual disputes are properly resolved by the jury and do not mandate a new trial.” Moore v. State, 859 So.2d 379, 385 (¶ 26) (Miss.2003) (quoting McNeal v. State, 617 So.2d 999, 1009 (Miss.1993)).

¶ 24. In reviewing the record and analyzing the evidence in the light most favorable to the State, we find sufficient evidence was presented to the jury to convict Anderson of arson. The jury was instructed on the elements of arson of a dwelling: that Anderson willfully and maliciously set fire to or caused his dwelling house to be burned. Additionally, a circumstantial-evidence instruction was given to the jury: that the evidence must be so strong as to exclude every other reasonable hypothesis other than of guilt.

¶ 25. The fact arson was committed was undisputed; the only question was who did it — Anderson or Shelton. The State provided sufficient proof to convict Anderson. Gas was not detected on Shelton, but three people — Megan, Debra, and Courtney— smelled it on Anderson. The State’s expert witnesses all testified that the fire could not have been started as Anderson stated, and Shelton would have been badly burned, but he was not. Anderson, in his brief, re-analyzes the evidence and speculates as to where Shelton could have been standing and not been burned while starting the fire, offering a “reasonable hypothesis” as to Shelton’s possible motive for arson. However, it is ultimately the jury that resolves these matters and any conflicts in the evidence. Anderson had a motive for arson as well, and the evidence showed he lured Shelton to his home in order to purchase tapes of his wife having an affair.

¶ 26. Further, we do not find the trial court abused its discretion in denying Anderson’s motion for a new trial. The jury chose not to believe Anderson’s version of the events. The weight of the evidence is not so contrary to the verdict that allowing this judgment to stand would sanction an unconscionable injustice. Accordingly, the trial court did not err in denying Anderson’s motion for a JNOV or, alternatively, a new trial.

2. Ineffective Assistance of Counsel

¶ 27. Anderson argues that his trial counsel was ineffective for several reasons. First, Anderson claims that at trial, his counsel was deficient for failing to renew his objection or make a motion to strike certain parts of Crawford’s testimony on direct examination about where the fire was ignited and where Anderson said Shelton was standing. Anderson contends Crawford improperly referenced a prejudicial un-Mirandized statement made by Anderson to Crawford. Second, in a related contention, Anderson argues that his trial counsel was ineffective for having Crawford read his case summary to the jury, which made a brief reference to this allegedly un-Mirandized statement by Anderson. Third, Anderson states that trial counsel was ineffective for stipulating to the admission of Jones’s investigative report, which referenced a previous residential fire loss by Anderson.

¶ 28. The Mississippi Supreme Court has held that we may determine the merits of an ineffective-assistance-of-counsel claim on direct appeal even if it was not raised before the trial court. Read v. State, 430 So.2d 832, 841 (Miss.1983). Usually, because the record on direct appeal is insufficient to support a claim for ineffective assistance of counsel, it is best that these claims be brought in post-eon-viction-relief proceedings. Id. at 837. However, the reviewing court “may address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record.” Archer v. State, 986 So.2d 951, 955 (¶ 16) (Miss.2008) (citing M.R.A.P. 22(b)). We find such a situation here. Due to the Anderson’s specific claims of ineffectiveness, we are able to discern from the record whether defendant’s trial counsel was constitutionally effective without reference to materials outside of the record which would necessitate the issue be more appropriately taken up in post-conviction-relief proceedings.

¶ 29. To succeed on an ineffective-assistance-of-counsel claim, the defendant must prove: (1) counsel’s performance was deficient, and (2) the deficiency prejudiced the defense. Liddell v. State, 7 So.3d 217, 219 (¶ 6) (Miss.2009) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel’s errors must be deemed so serious as to deprive the defendant of a fair trial. Id. “[A]n appellate court must strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. In other words, defense counsel is presumed competent.” Id. at 219-220 (¶ 6) (quoting Bennett v. State, 990 So.2d 155, 158 (¶ 9) (Miss.2008)). In assessing attorney conduct, every effort must be made “to eliminate the distorting effects of hindsight ... and to evaluate the conduct from counsel’s perspective at the time.” In order to reach ineffective assistance of counsel on direct appeal, the record must show that counsel’s performance was so deficient “that the trial judge had a duty to declare a mistrial in order to prevent a mockery of justice.” Colenburg v. State, 735 So.2d 1099, 1102 (¶ 8) (Miss.Ct.App.1999) (citing Parham v. State, 229 So.2d 582, 583 (Miss.1969)).

A. Crawford’s Case Summary

¶ 30. Regarding Anderson’s first claim of ineffective counsel, Crawford testified that, according to the burn patterns, the fire was ignited near Anderson’s bedroom. The State then asked Crawford if Anderson had indicated in his statement that Shelton was standing in the hallway. Defense counsel promptly objected to any reference to a statement Crawford took from Anderson without being Mirandized. Anderson did admit, in his statement to Deputy Steele after he was Mirandized and which was admitted into evidence, that he saw Shelton standing “at the other end of the hallway.” The trial judge ruled that Crawford could refer to Anderson’s statement to Deputy Steele that was already in evidence. Crawford proceeded to testify that Shelton would have been burned badly if he had been standing in the hallway and lit the fire. Crawford then testified that, based on his diagram of the house, where Anderson reported that Shelton had been standing, and the position of the burn pattern, Shelton would have been “right around the center down the hallway.”

¶ 31. Anderson, however, maintains that Crawford is referencing and basing his opinion not on Anderson’s Mirandized statement to Deputy Steele, but on a supposedly un-Mirandized statement that Crawford refers to in his case summary, which was entered into evidence later in the trial during Crawford’s cross-examination. In the summary, Crawford states he returned to the Lamar County Jail on April 20 to get information from Anderson about the fire. Crawford asked Anderson where Shelton was standing when the fire was set, and he stated that Shelton was standing “in the living room area of the home behind the couch looking toward the bedroom,” which would not have been at the “end of the hallway,” but in the middle of the hallway.

¶ 32. Anderson’s argument on this point lacks merit. It is not at all clear from the record, as Anderson maintains, that Crawford was referencing Anderson’s statement in the case summary, or that all of the State’s experts based their opinion on this statement, and not Anderson’s statement to Deputy Steele. Both statements make reference to Shelton standing in the hall. Moreover, the decision to “ ‘make certain objections fall[s] within the ambit of trial strategy’ and cannot give rise to an ineffective assistance of counsel claim.” Jackson v. State, 815 So.2d 1196, 1200 (¶ 8) (Miss.2002) (quoting Cole v. State, 666 So.2d 767, 777 (Miss.1995)). Trial counsel did promptly object when he thought the State was going to refer to the un-Miran-dized statement that had not been recorded. His performance was not deficient in this regard.

¶ 38. Nor can we say that the statement Crawford references was taken in violation of Anderson’s Miranda rights. Anderson relatedly complains that his trial counsel should not have entered the case summary into evidence during his cross-examination of Crawford because “[t]he statement was clearly taken in violation of Anderson’s Miranda rights.”

¶ 34. Anderson acknowledged that he had received his Miranda warning and signed a waiver-of-rights form on April 20, 2003, at 1:30 a.m. His statement to Deputy Steele was taken at this time. It is unclear from Crawford’s case summary exactly what time Crawford took this unrecorded statement while Anderson was in custody, but it was sometime on April 20, the same day Anderson waived his Miranda rights for the statement to Deputy Steele, and no more than twenty-four hours after he had waived his rights. Crawford admits that he did not re-issue Miranda warnings to Anderson during his questioning April 20. Also, Crawford’s case summary notes Anderson had an attorney on April 21, who had advised him not to sign anything further. There is no indication in the record that Anderson had invoked his right to remain silent or requested an attorney until April 21.

¶ 35. Regarding Miranda warnings and a waiver of those rights:

There is no mechanical rule for measuring the longest possible interval between the last warning and the accused’s statement. ... An accused need not be continually reminded of his or her rights once the accused has knowingly waived them, except where necessary to assure that a continuation of the waiver constitutes a knowing and intelligent abandonment of rights.... The accused need not invariably receive new warnings simply because there is ... a resumption of interrogation, [or] an interrogation by a different officer.... Once the mandate of Miranda is complied with at the threshold of the interrogation by law enforcement officers, the warning need not be repeated at the beginning of each successive interview.

23 C.J.S. Criminal Law § 1264 (2006). See also United States v. Anthony, 474 F.2d 770, 773 (5th Cir.1973) (holding that repeated warnings are not necessary to a finding that a defendant, with full knowledge of his rights, knowingly and intelligently waived them).

¶ 36. Generally, a warning given many hours before the making of incriminating statements is not considered “stale” when the subject has been in continuous custody up to the time of the statement, and most courts allow the use of statements taken many hours or even days after the giving of Miranda warnings. William E. Ringel, Searches and Seizures Arrests and Confessions, § 26:6 (2d ed.2003). See Biddy v. Diamond, 516 F.2d 118, 122 (5th Cir.1975) (found to have still waived rights even after twelve days passed between initial Miranda rights and later questioning where suspect was asked if she remembered her rights); Maguire v. United States, 396 F.2d 327, 331 (9th Cir. 1968) (could not claim a lack of apprisal of Miranda rights when questioned by another officer three days after the initial Miranda warnings and questioning). Accordingly, we cannot say from the record before us that Anderson’s statement that Crawford references in the case summary is un-Mirandized. It was taken within at least one day of Anderson’s acknowledgment and waiver of his rights.

¶ 87. On cross-examination, defense counsel also requested Crawford’s entire case summary be read to the jury and entered into evidence. Anderson contends this was constitutionally ineffective as well, for the statement contained other prejudicial and inadmissible hearsay statements, but he does not offer any further specifics. We find no merit to these contentions. Crawford’s case summary merely relates Crawford’s actions from his arrival at the scene on April 20 to his investigation on April 21 and his subsequent opinion about the fire, which, in his opinion, was incendiary. Crawford recounts whom he spoke with and what he observed inside the house after the fire. It is quite plausible Anderson’s trial counsel entered the case summary into evidence in order to show that Shelton lit the fire. This Court has stated “only under exceptional circumstances will we second guess counsel on matters of trial strategy.” Jones v. State, 40 So.3d 665, 668 (¶ 11) (Miss.Ct.App.2010) (citing Shorter v. State, 946 So.2d 815, 819 (¶ 15) (Miss.Ct.App.2007)). We shall not do so here.

B. Jones’s Report

¶ 38. Anderson also argues that his trial counsel was deficient for stipulating to the admission of fire investigator Jones’s report, which contained language about a previous residential fire loss by Anderson. In a pretrial-motion hearing, several motions in limine were presented. The trial court granted Anderson’s motion in limine to exclude inferences to any previous fire losses by Anderson. The parties also reached an agreement as to which exhibits from the first trial would be used, any new exhibits, and supposedly eliminated any exhibits precluded by the motion in limine. Of 163 exhibits from Anderson’s murder trial, approximately seventy-six were used in the arson trial. Jones’s report for Crawford Investigation Services, dated May 2003, was nine-written pages, with twenty-three pages containing forty-five photographs of Anderson’s burned residence. The language at issue occurred on page three, and it stated: “Deputy Joe Crawford also advised that Charles Anderson had a previous fire loss while he resided in Columbia. He could not recall the particulars but was going to check with the fire chief about securing a copy of that incident.”

¶ 39. During deliberations, the jury did pass a question to the trial judge concerning this evidence, and it asked: “can we use information in the Crawford Investigative Report that refers to a previous fire loss by Charles Anderson in Columbia ... ?” The trial court responded, stating: “It was determined that this evidence has no evidentiary value and is not for consideration in this matter.”

¶40. Anderson argues that this evidence is inadmissible under Mississippi Rules of Evidence 403 and 404(b). Under Rule 403, he claims the prejudicial effect outweighs any probative value. Under Rule 404(b), Anderson states this evidence is inadmissible as a previous crime, wrong, or act “to prove the character of a person in order to show that he acted in conformity therewith.” We do not find Jones’s report in its entirety was inadmissible evidence.

¶41. Neither do we find Anderson’s trial counsel was constitutionally deficient for failing to redact these two sentences in Jones’s report. Even though the jury-asked about this information, they were properly instructed by the trial judge to disregard the previous fire loss. We cannot say that the jury was so impressed with this evidence, as Anderson argues, that it caused his conviction. This issue is without merit.

¶ 42. We conclude that the record does not indicate that Anderson’s trial counsel was constitutionally ineffective at any point in the proceedings.

3. Prosecutorial Misconduct and Right to a Fair Trial

¶ 43. Lastly, Anderson argues that he was denied his fundamental rights to due process and a fair trial because of prosecutorial misconduct. Anderson claims the State’s use of prejudicial evidence that had been previously ruled inadmissible evinces a purposeful trial tactic to inflame the jury. Specifically, he refers to the previously discussed incidents of Crawford’s reference to Anderson’s allegedly un-Mirandized statement, as well as the report which mentioned Anderson’s previous fire loss. When presented with an allegation of prosecutorial misconduct, this Court will only reverse if such conduct “endangers the fairness of a trial and the impartial administration of justice.” Jackson v. State, 1 So.3d 921, 928 (¶ 19) (Miss.Ct.App.2008) (quoting Goodin v. State, 787 So.2d 639, 653 (¶ 41) (Miss.2001)).

¶ 44. We find no such instances here. Defense counsel objected to the prosecution’s possible attempt to reference Anderson’s comment in Crawford’s statement, and the trial judge ruled Crawford could refer to Anderson’s statement, which was already in evidence. We find no evidence that the prosecutor purposefully elicited testimony from Crawford in disregard of this ruling. Moreover, both parties stipulated to the admission of Jones’s report into evidence. While the lengthy report did include two sentences about a previous fee loss of Anderson’s, which was to have been excluded from the evidence, we find no indication the State agreed to its admission to inflame the jury. When the jury asked about the previous fire loss during deliberations, the trial judge instructed the jury to disregard it. Jurors are presumed to follow the instructions given by the court. Harris v. State, 37 So.3d 1237, 1247 (¶ 37) (Miss.Ct.App.2010) (citing Payne v. State, 462 So.2d 902, 904 (Miss.1984)). We find this issue without merit.

CONCLUSION

¶ 45. Anderson’s conviction for arson was not against the sufficiency and weight of the evidence. Nor is there any proof in the record that defense counsel was constitutionally ineffective. Any allegations of prosecutorial misconduct are unfounded. Accordingly, we affirm Anderson’s conviction and sentence.

¶ 46. THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF CONVICTION OF COUNT II, ARSON, AND SENTENCE OF TWENTY YEARS, WITH THE SENTENCE TO RUN CONSECUTIVELY TO A PREVIOUSLY IMPOSED SENTENCE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY RESTITUTION OF $136,391, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAMAR COUNTY.

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

      . The company has no relation to Crawford with the State Fire Marshal’s office.


author: GRIFFIS, J.,

text:
    Chaz PINKSTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01665-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Chaz Pinkston was convicted in the Circuit Court of the First Judicial District of Hinds County of armed robbery and sentenced to thirty-five years in the custody of the Mississippi Department of Corrections. On appeal, he argues that: (1) his confession was involuntary; (2) the circuit court erred in admitting into evidence six photographs and a surveillance video that were allegedly first produced to Pink-ston the morning of trial; and (3) the verdict is against the overwhelming weight of the evidence. We find no error and affirm the judgment of the circuit court.

FACTS

¶ 2. On the morning of June 16, 2008, in Jackson, Mississippi, Jeffery Jackson, the manager of a local bank branch, drove into the bank parking lot and got out of his car. As he entered the branch, two armed men approached him and demanded entrance to the bank. The three of them then proceeded inside the bank.

¶ 3. The two armed robbers demanded cash. Jackson informed them that the vault was on a time mechanism and that he could not open it. The men then ordered Jackson onto his knees and began rummaging through drawers and cabinets looking for cash. The bank’s audible alarm was triggered. The two men left empty-handed but not before firing two shots at two of the bank’s computers. They drove away in an older model, dark blue or black Ford Thunderbird or Mercury Cougar.

¶4. The bank’s video surveillance captured the robbery. Later that same day, the video recording was played on the local news. After viewing the video, an anonymous tipster called the Jackson Police Department and identified Pinkston as one of the robbers. Based on that tip, a photographic lineup was produced and presented to Jackson. Jackson promptly identified Pinkston as one of the robbers. A search warrant was executed on Pinkston’s residence, where a yellow t-shirt and a UPS baseball cap were found, both of which matched clothing worn by one of the robbers. Officers also discovered that Pinkston owned a Mercury Cougar matching the description of the getaway car.

¶5. After learning he was a suspect, Pinkston turned himself into the police on June 18, 2008. That same day, officers attempted to elicit a statement from him, but after being read his Miranda rights, Pinkston invoked his right to an attorney and declined to speak. He was then transported to the Raymond Detention Center. The following day he told the facility commander that he wanted to speak with investigators. During a subsequent interview, after being advised of his rights and waiving them, he produced a handwritten statement and orally answered questions posed by the police; Pinkston’s answers were then typed out. In these statements, Pinkston confessed to being one of the robbers.

¶ 6. Pinkston was indicted for armed robbery under Mississippi Code Annotated section 97-3-79 (Rev.2006). Prior to trial, Pinkston unsuccessfully moved to suppress his confession. At trial, the State presented the confession, the matching clothes, Jackson’s eyewitness testimony, and the surveillance video. Pinkston, proceeding pro se with advisory counsel, responded with an alibi defense, which was not properly disclosed to the prosecution prior to trial, and evidence of good character. The jury returned a verdict of guilty.

ANALYSIS

1. Whether the trial court erred in admitting Pinkston’s statement into evidence.

¶ 7. Prior to trial, Pinkston attempted to suppress his confession. The circuit court denied the motion. The circuit court found that Pinkston knowingly, intelligently, and voluntarily waived his Miranda rights and made the incriminating statements. Pinkston contends that this was error.

¶ 8. When a criminal defendant objects to the admission of his confession, arguing it was involuntary, the trial court must conduct a hearing outside the presence of the jury. Cox v. State, 586 So.2d 761, 764 (Miss.1991). At the hearing, the burden is on the State to prove voluntariness beyond a reasonable doubt. Id. at 763. The State may meet this burden and establish its prima facie case by presenting the testimony of a witness with personal knowledge — which will usually be a police officer who was present when the confession was made — that the confession was voluntarily given, without any coercion, threats, or offers of reward. Id. If that is done, the defendant must show otherwise. Id. The trial judge sits as the finder of fact, weighs the evidence, and ultimately decides whether the State has met its burden. Jackson v. State, 778 So.2d 786, 789 (¶ 16) (Miss.Ct.App.2001). If the trial judge finds the confession was voluntary, we must affirm if the correct legal standard was applied and the finding was supported by the evidence. Cox, 586 So.2d at 763.

¶ 9. Here, the circuit court applied the correct legal standard, and its finding was supported by the evidence. At a pretrial hearing, the State presented testimony from two officers who were present during the confession. Their testimonies were that, at the outset of the interrogation, they read Pinkston his Miranda rights, and he signed a waiver of those rights. He proceeded to handwrite a confession, and then he participated in an oral question-and-answer session that was typed out by one of the officers and then signed by Pinkston. There was no coercion, intimidation, or improper promises. Pinkston countered with his own testimony. He denied signing the waiver, authoring the handwritten confession, or participating in the question-and-answer session. Faced with these competing versions of events, the circuit court found the officers’ testimonies were more credible. As this Court has previously stated, determining the credibility of witnesses and weighing the evidence is a role for the trial judge in a suppression hearing, and we give deference to his factual findings. Jackson, 778 So.2d at 789 (¶ 16).

¶ 10. Because the circuit court applied the correct legal standard and the findings were supported by the evidence, we affirm the denial of Pinkston’s motion to suppress. Since the confession was properly allowed into evidence, this issue is without merit.

2. Whether the circuit court erred in admitting into evidence six photographs and the surveillance video from the bank.

¶ 11. At trial, the State introduced six photographs, five of the exterior and interior of the bank and one of Pinkston’s Mercury Cougar. In addition, the bank’s surveillance video was played to the jury. Pinkston objected to the admission of these items on the ground that they had not been properly and timely disclosed to him. He claimed that the morning of trial was the first time he had seen the photographs. As for the surveillance video, he claimed the State did not give him a copy of the video until the morning of trial, although he conceded the video was shown to him approximately two months earlier prior to the suppression hearing. The circuit court overruled his objections and allowed the items into evidence. Pinkston contends that ruling was error.

¶ 12. Pinkston argues that this amounted to trial by ambush. Pinkston cites the following as authority for this proposition: Fulks v. State, 18 So.3d 803, 805 (¶ 6) (Miss.2009); Frierson v. State, 606 So.2d 604, 607 (Miss.1992); Box v. State, 437 So.2d 19, 20 (Miss.1983); Blanton v. State, 727 So.2d 748, 752 (Miss.Ct.App.1998); and Rule 9.04 of the Uniform Rules of Circuit and Chancery Court. In Fulks, the Mississippi Supreme Court cited an excerpt from McCullough v. State, 750 So.2d 1212, 1217 (Miss.1999), which explained the Box holding, stating:

When faced with previously undisclosed evidence to which the defendant has objected, the trial court should give the defendant a reasonable opportunity to familiarize himself with the evidence. If the defendant thereafter believes he may be prejudiced by admission of the evidence because of his lack of opportunity to prepare to meet it, he must request a continuance.... If he indeed requests a continuance, the [Sjtate may opt to proceed without the undisclosed evidence, else the trial court must grant the continuance. Failure to follow the Box guidelines is prejudicial error, requiring reversal and remand.

Fulks, 18 So.Sd at 806 (¶ 11).

¶ 13. Indeed, Rule 9.04(1) of the Uniform Rules of Circuit and County Court clearly provides what must be done if “the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason.” The court shall give the defense a reasonable opportunity to examine the evidence, and if thereafter the defense claims unfair surprise or prejudice and seeks a continuance or mistrial, the court shall exclude the evidence or grant a continuance. Id. Here, Pinkston did not seek a continuance or a mistrial. Therefore, this issue is procedurally barred from our consideration on appeal because Pinkston failed to move for a continuance at trial. “ ‘[F]ailure to request a continuance constitutes a waiver of the discovery violation.’ ” Murray v. State, 20 So.3d 739, 743 (¶ 13) (Miss.Ct.App.2009) (quoting Sims v. State, 928 So.2d 984, 988 (¶ 19) (Miss.Ct.App.2006)).

3. Whether the jury’s verdict is contrary to the ovenuhelming weight of the evidence.

¶ 14. Pinkston argues that he is entitled to a new trial because the jury’s verdict is against the overwhelming weight of the evidence. We apply the following standard of review to Pinkston’s claim:

“[T]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Dudley v. State, 719 So.2d 180, 182 (¶ 8) (Miss.1998). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). “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.” Dudley, 719 So.2d at 182. “This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001).

Smith v. State, 868 So.2d 1048, 1050-51 (¶ 11) (Miss.Ct.App.2004).

¶ 15. At trial, the State presented the eyewitness testimony of Jackson, who unequivocally stated that Pinkston was one of the robbers. In addition, the bank’s surveillance video was submitted to the jury. That video showed a man with a yellow t-shirt and a UPS baseball cap. Officers testified to finding a yellow t-shirt and UPS cap at Pinkston’s residence. Also, Pinkston’s confession was before the jury. On the other hand, Pinkston’s case consisted of a fairly incredible alibi defense— which he apparently formulated during trial and sprang on the circuit court at the last minute, violating Uniform Rule of Circuit and County Court 9.05 — and a couple character witnesses who testified to Pink-ston’s truthfulness. The jury considered this evidence and found Pinkston guilty of armed robbery. This issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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