author: CARLSON, Presiding Justice, KITCHENS, Justice,

text:
    Randy Lamar TAPPER v. STATE of Mississippi.
    No. 2009-KA-00544-SCT.
    Supreme Court of Mississippi.
    Aug. 26, 2010.
    Rehearing Denied Nov. 18, 2010.

      Office of Indigent Appeals by Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Randy Lamar Tapper was convicted by a Jackson County Circuit Court jury on two counts of sexual battery and five counts of touching of a child for lustful purposes. Tapper was sentenced to life imprisonment on each count of sexual battery and to fifteen years on each count of touching of a child for lustful purposes, with all sentences to run consecutively. After the trial judge denied his Motion for Judgment Notwithstanding the Verdicts, or in the Alternative, a New Trial, Tapper perfected this appeal, alleging errors at the trial-court level. Finding Tapper’s assignments of error to be without merit, we affirm the judgment of the Circuit Court of Jackson County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The mother of C.C. and L.P., the two victims, testified at trial that she gave her daughters permission to play at Randy Tapper’s house with his daughter during the summer of 2006. The two girls spent the weekend of August 18, 2006, with Tapper. After the girls returned home the following Monday, they came into their residence by themselves and went to bathe. Their mother discovered that their vaginal areas were red, and the girls told her that they were “burning.” The girls were then taken to the emergency room.

¶ 3. Toby Nix, an emergency-room staff nurse at Singing River Hospital, treated C.C. on August 20, 2006. Nix testified to conducting a sexual-assault examination on C.C. and to finding erythema, or redness, in C.C.’s vaginal area and a single pin-worm in the hymenal area. Catherine Shaver, also an emergency-room nurse at Singing River Hospital, examined L.P. on August 20 and testified to noticing erythe-ma in L.P.’s vagina and moist secretions. Further, Nicole Tapper, Randy Tapper’s wife, testified that during the summer of 2006, C.C. and L.P. would stay the night at her home and sleep with her husband.

¶ 4. During her testimony, L.P. asserted that Tapper touched her “wrong spot,” or vagina, and her leg with his hand and his penis. She testified that Tapper attempted to put his “wrong spot” into her “wrong spot,” which caused her to scream. L.P. also testified to seeing Tapper try to put his “wrong spot” into her sister’s, C.C.’s, “wrong spot” as well. L.P. stated that Tapper had touched her “wrong spot” with his “wrong spot” (penis) about five times over the summer of 2006. Nurse Shaver also testified that at the emergency room, L.P. told her that Tapper had put his penis between her buttocks and her legs, and he had threatened to hurt her and her parents. C.C. testified that Tapper touched her “coochie,” or vagina, with his hand; however, during trial, she could not remember many events from the time in question. Nurse Nix testified that C.C. had told her that Tapper had touched her vagina with his penis and his finger.

¶ 5. Laura Greer, the former program coordinator for the South Mississippi Child Advocacy Center, testified that she had performed forensic interviews with L.P. and C.C., and the jury was played a tape of these interviews. S.F., a minor, also testified that she and her sister would spend the night at Tapper’s house when she was nine years old and her sister was eight. She stated that Tapper would “always try to take his private and put it in mine.” S.F. further testified that Tapper had threatened to kill her if she told anyone.

¶ 6. Tapper testified in his own defense. He denied sexually abusing or inappropriately touching either L.P. or C.C. Tapper stated that the two girls had made up the allegations “[b]ecause [their] mother knew that I knew there was inappropriate things going on inside her home, and I’m afraid she knew that I was going to turn her in for them.” Also, he accused another person of S.F.’s molestation. The defense rested after Tapper’s testimony.

¶ 7. The jury returned verdicts finding Tapper guilty of one count of sexual battery upon C.C., one count of touching of a child for lustful purposes (touching) upon C.C., one count of sexual battery upon L.P., and four counts of touching upon L.P. The trial court sentenced Tapper to life in the custody of the Mississippi Department of Corrections on both counts of sexual battery and to fifteen years on each count of touching, all to run consecutively. After a hearing, on Tapper’s Motion for Judgment Notwithstanding the Verdicts, or in the Alternative, a New Trial, the trial court entered an order denying Tapper’s motion. Thus, Tapper appealed to this Court.

DISCUSSION

¶8. Tapper presents three issues for this Court’s consideration: (1) whether the trial court violated Tapper’s fundamental right to a fair and impartial jury by failing to excuse jurors for cause; (2) whether the trial court erred in denying the motion to quash the indictment for not adequately informing Tapper of the nature of the charges against him; and (8) whether Tapper’s convictions for touching merge with his convictions for sexual battery and therefore violate his rights under the Double Jeopardy Clause of the United States Constitution.

¶ 9. We now restate the issues for the sake of clarity in today’s discussion.

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO EXCUSE JURORS FOR CAUSE.

¶ 10. “The determination of whether a juror is fair or impartial is a judicial question, and it will not be set aside except where there is a finding that the determination clearly appears to be wrong.” West v. State, 820 So.2d 668, 671 (Miss.2001) (citing Carr v. State, 555 So.2d 59, 60 (Miss.1989)). “[T]his Court will treat with deference a venire person’s assertions of impartiality.” Barfield v. State, 22 So.3d 1175, 1184-85 (Miss.2009) (citing Scott v. Ball, 595 So.2d 848, 850 (Miss.1992)).

¶ 11. Tapper asserts that the trial court erred in failing to excuse three jurors for cause. He also contends that it was error for the trial court to grant a challenge for cause by the State. Specifically, Tapper argues that jurors number 6, 9, and 31 should have been struck for cause because they each declared that Tapper should have to prove his innocence in clear contradiction to Tapper’s fundamental right not to testify. The State moved to strike juror number 23 for cause, and the trial court granted this challenge because that juror’s brother had been prosecuted by the same [prosecutor’s] office and tried by the same judge for fondling, and the juror stated that he did not believe his brother’s trial was fair. Tapper, however, asserts that “the disparate treatment by the trial court of defense counsel’s motions as compared to the State’s motion cannot be reconciled.” Tapper’s argument with respect to juror number 28 is simply without merit. “Any juror shall be excluded ... if the court be of opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error.” Miss.Code Ann. § 13-5-79 (Rev. 2002).

¶ 12. Tapper also ultimately challenged jurors number 6, 9, and 31 peremptorily. A prerequisite to Tapper’s elaim on appeal “is a showing that he had exhausted all of his peremptory challenges and that the incompetent juror was forced upon him by the trial court’s erroneous ruling.” Chisolm v. State, 529 So.2d 635, 639 (Miss.1988); see Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury).

¶ 13. During the jury-selection conference, defense counsel challenged jurors number 6, 9, and 31 for cause, and after hearing arguments from the prosecutor and defense counsel, the trial judge refused to remove these jurors for cause. Eventually, defense counsel exercised peremptory challenge D-2 on juror number 6, peremptory challenge D-4 on juror number 9, and peremptory challenge D-10 on juror number 31. Therefore, none of these challenged jurors sat on the trial jury.

¶ 14. In Christmas v. State, 10 So.3d 413, 423 (Miss.2009), we reiterated:

This Court has explained that a prerequisite to presentation of a claim of a denial of constitutional rights due to denial of a challenge for cause is a showing that the defendant had exhausted all of his peremptory challenges and that the incompetent juror was forced by the trial court’s erroneous ruling to sit on the jury. Chisolm v. State, 529 So.2d 635, 639 (Miss.1988)

Christmas, 10 So.3d at 423 (emphasis added) (citing Mettetal v. State, 615 So.2d 600, 603 (Miss.1993)).

¶ 15. While the record reveals that Tapper had exercised all of his twelve peremptory challenges, Tapper is unable to show that any of these three challenged jurors were forced upon him by eventually sitting on the trial jury. Christmas, 10 So.3d at 423. Thus, Tapper’s claim must fail. After defense counsel exercised peremptory challenge D-10 on juror number 31, Tapper, through counsel, exercised peremptory challenge D-ll on juror number 33 (juror number 32 had been struck for cause), and peremptory challenge D-12 on juror number 41. Therefore, according to the record, Tapper, through counsel, accepted as members of the trial jury juror number 36 and juror number 38, before exercising peremptory challenge D-12 on juror number 41.

¶ 16. For these reasons, we find this issue to be without merit.

II. WHETHER TAPPER’S INDICTMENT SHOULD HAVE BEEN QUASHED.

¶ 17. The question of whether an indictment is defective is an issue of law and therefore deserves a relatively broad standard of review, or de novo review, by this Court. Montgomery v. State, 891 So.2d 179, 185 (Miss.2004) (citing Nguyen v. State, 761 So.2d 873, 874 (Miss.2000); Peterson v. State, 671 So.2d 647 (Miss.1996)).

¶ 18. Before turning to our discussion of Counts IV, V, VI, and VII of the indictment, which counts are the focus of Tapper’s argument on this issue, we briefly mention the first three counts. Count I charged Tapper with sexual battery related to C.C. “on or between August 19, 2006 and August 21, 2006” by “placing his finger in her vagina.” Count II charged Tapper with child-fondling related to C.C. “on or between August 19, 2006 and August 21, 2006” by handling, touching, or rubbing with his hand or any part of his body “the vagina of C.C.” Count III charged Tapper with sexual battery related to L.P. “on or between August 19, 2006 and August 21, 2006 ... [by] placing his finger in her vagina.”

¶ 19. In Morris v. State, 595 So.2d 840 (Miss.1991), although there was evidence that the defendant had sexually molested his stepdaughter over a period of time several years earlier, the defendant was indicted on one count of touching a child for lustful purposes and two counts of sexual battery, occurring with the same stepdaughter, by then fifteen years of age, between March and May, 1986. Id. at 841. The victim testified that she had endured six years of continual sexual molestation at the hands of her stepfather, the defendant. Id. The defendant claimed that his fifteen-year-old, honor-roll stepdaughter should have been capable of recalling specific dates on which the acts occurred so that he could prepare an alibi defense. Id. at 841-42. We are not informed in Morris of the specific language of the indictment charging the defendant with two counts of sexual battery. We know only that, in the end, after a discussion of Wilson v. State, 515 So.2d 1181 (Miss.1987), and McCullum v. State, 487 So.2d 1335 (Miss.1986), the Court in Morris concluded that “the victim’s testimony amply illustrates the fact that the State could not narrow the time frame any more than it did,” and that the defendant “was fully and fairly advised of the charge against him.” Id. at 842.

¶20. In Price v. State, 898 So.2d 641 (Miss.2005), the defendant was convicted of three counts of statutory rape. Each count involved the same victim and involved identical allegations that the defendant had committed the crime of statutory rape “by the insertion of his penis into the vagina of [the victim].” Id. at 654-55. The main difference in each of the three counts was the alleged dates that these acts occurred, with one count alleging that the act occurred “[d]uring the month of September, 1992,” one couht alleging that the act occurred “[b]etween the 15th day of December, A.D., 1992 and the 25th day of December, A.D., 1992,” and one count alleging that the act occurred “[d]uring the month of August, 1995.” Id. Citing Morris and Uniform Rule of Circuit and County Court Procedure 7.06(5), this Court found that the statutory rape charges contained in each of the three counts “were sufficiently specific as to apprise the defendant of the charges against [the defendant].” Id. at 655.

¶ 21. Without question, consistent with Morris and Price, and Uniform Rule 7.06, the language of Counts I, II, and III sufficiently apprised Tapper of the charges against him so as to allow him to prepare a defense.

¶ 22. Now we address Tapper’s main argument. Tapper argues that the indictment, as it relates to counts IV, V, VI, and VII, failed adequately to notify him of the nature and cause of the accusation, rendering the indictment defective. These counts of the indictment all stated the following:

in Jackson County, Mississippi, on or between June 1, 2006 and August 19, 2006, being at the time in question over the age of eighteen (18) years, for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires, did unlawfully, willfully and felo-niously handle, touch or rub with this hand, or any party of his body, or any member thereof, the vagina of [L.P.], a child who was at the time in question under the age of sixteen (16) years, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

Tapper also asserts that the failure of the indictment to allege more specific dates denied him the opportunity to present any defense other than denial. The State, however, argues that the counts of the indictment clearly and sufficiently informed Tapper of the felonies with which he was charged. “The indictment upon which the defendant is to be tried shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him.... ” Nguyen, 761 So.2d at 874-75 (citations omitted). In a child sexual-abuse case, a specific date is not required so long as the defendant is fully and fairly informed of the charges against him. Eakes v. State, 665 So.2d 852, 860 (Miss.1995) (citing Morris v. State, 595 So.2d 840, 842 (Miss.1991)).

¶ 28. As noted by the dissent, this Court has not been confronted with the issue of whether multi-count indictments which allege identical acts of conduct are sufficient to put the defendant on notice as to “the essential facts constituting the offense charged and ... the nature and cause of the accusation.” URCCC 7.06.

¶ 24. We first state that, consistent with our discussion above concerning Counts I, II, and III, the time frame of the acts committed by Tapper as alleged in Counts IV, V, VI, and VII (“on or between June 1, 2006 and August 17, 2006”) was sufficient to apprise Tapper concerning the date-and-time requirement of Uniform Rule of Circuit and County Court Practice 7.06(5). The issue is as to the four acts allegedly committed by Tapper upon L.P. as set out in these latter four counts.

¶ 25. We first note that the dissent relies in part on Moses v. State, 795 So.2d 569 (Miss.Ct.App.2001). In Moses, the Court of Appeals stated:

No formal amendment of the indictment was ever undertaken to narrow the dates of the alleged offenses or to attempt to differentiate the facts of the separate alleged incidents by providing even the sketchiest facts of what was alleged to have occurred.
In the case before us, it is patently clear that the State, in drafting the repetitively identical and essentially uninformative counts of this indictment, made no effort to narrow the dates of the separate offenses in any meaningful way. We do not, therefore, face the situation where the State, after its best investigative effort, could only narrow the span of time for an offense to a period in excess of three years. The problems with requiring a defendant to present a defense to such an accusation seem self-evident but we may leave for another day the question of whether the problems are of sufficient gravity to bar the State from proceeding with a prosecution in that circumstance. In this case, there is no question but that the State was aware of information that would have easily permitted it to provide substantially shortened ranges of dates for each offense, together with other relevant facts that would have more specifically identified the alleged incident upon which that count was based. For reasons not apparent in this record, and for which we can find no reasonable excuse, the State declined to do so, proceeding instead to subject Moses to prosecution on multiple criminal counts relying solely on an indictment that was fundamentally ineffective to properly inform him of even the most basic circumstances giving rise to the charges against him.

Moses, 795 So.2d at 572. This is not the situation in today’s case. In our case today, there is no evidence “that the State was aware of information that would have easily permitted it to provide substantially shortened ranges of dates for each offense, together with other relevant facts that would have more specifically identified the alleged incident upon which the count was based.” Further, the State in today’s case narrowed the time frame to less than three months, not a three-year time span as in Moses, and undertook properly to seek amendment of the indictment as necessary. In our case today, it appears from the record and testimony, that the State could not narrow the time frame or provide more specific details than it did.

¶ 26. Laying aside the testimony of the two emergency-room nurses and the program coordinator for the South Mississippi Child Advocacy Center, we focus on the testimony of L.P. as to these four child-fondling counts. L.P. called Tapper “Uncle Randy.” L.P. testified that during the summer of 2006, every time L.P. and C.C. spent the night at Tapper’s house, they slept in the bed with Tapper, except for one occasion. L.P. testified that Tapper would touch her “wrong spot” (vagina) with his “wrong spot” (penis). L.P. could not remember the dates when this occurred. The prosecutor also asked L.P. if Tapper “ever tried to put his wrong spot in your wrong spot,” and L.P. answered “[y]es, sir.” L.P. reacted to Tapper’s actions by screaming. The prosecutor asked L.P. how many times during the summer of 2006 Tapper touched her, and L.P. responded “[a]bout five.” L.P. again reiterated that the touching involved Tapper’s “wrong spot” touching her “wrong spot.”

¶ 27. Tapper’s defense was that he did not sexually abuse or inappropriately touch L.P. or C.C. Tapper testified that the mother of L.P. and C.C. “coached” the girls into making these false charges because the mother “knew that I knew there was inappropriate things going on inside her home, and I’m afraid she knew that I was going to turn her in for them.” The cold, hard facts are that, even if these young, immature girls had the ability to describe to the prosecutor in adult terms and in the most graphic detail the acts which they said Tapper committed upon them, Tapper would not have been in any better position to prepare his defense “that he didn’t do it,” and that the false charges against him were a result of the girls’ mother coaching them because the mother feared being reported by Tapper, for all the “inappropriate things going on inside [the mother’s] home.”

¶ 28. While we implore our prosecutors to be as specific as possible in drafting indictments, consistent with the provisions of Uniform Rule of Circuit and County Court Practice 7.06, in all cases, but specifically in cases involving allegations of sex offenses committed upon minor children, we find that the facts and circumstances of today’s case lead us to the conclusion that the trial court committed no error in refusing to quash this multi-count indictment, as amended, handed down against Tapper by the Jackson County grand jury. For the reasons stated, this issue is without merit.

III. WHETHER TAPPER’S CONVICTION FOR TOUCHING MERGES WITH HIS CONVICTION FOR SEXUAL BATTERY.

¶ 29. Double-jeopardy claims also are questions of law and are reviewed de novo. Brown v. State, 731 So.2d 595, 598 (Miss.1999); see also Deeds v. State, 27 So.3d 1135, 1139 (Miss.2009).

¶ 30. Tapper asserts, citing Friley v. State, 879 So.2d 1031, 1035 (Miss.2004), that under Mississippi law, touching of a child for lustful purposes is a lesser-included offense of sexual battery with penetration, and therefore, the two offenses merge, making Tapper’s conviction for count two of touching upon C.C. viola-tive of the Double Jeopardy Clause of the United States Constitution. The State points out that, although this Court, in Friley, did find under the “particular circumstances” that “molestation is a lesser-included offense of sexual battery” and that “[i]t is impossible to penetrate without touching,” Friley, 879 So.2d at 1035, Tapper ignores the fact that it is possible to commit an unlawful touching without committing sexual battery. Sexual battery requires penetration, while unlawful touching does not. In today’s case, the sexual-battery counts concern events separate from the unlawful-touching counts. There was testimony that Tapper had touched C.C. with both his finger and his penis, and evidence was presented showing penetration of C.C. As previously stated by this Court:

Double jeopardy protects criminal defendants from being exposed to more than one prosecution for the same offense. It does not protect a defendant against different prosecutions for different offenses. Hughes v. State, 401 So.2d 1100 (Miss.1981). It is not a legal analog to some sort of “blue light special” where a defendant, by having the foresight or good fortune to commit the same crime or different crimes in close connection to each other, gets two or more offenses for the price of one.

Wright v. State, 540 So.2d 1, 5 (Miss.1989); see also Ball v. State, 437 So.2d 423, 425 (Miss.1983) (“Temporal proximity does not generate a juridical union of separate and distinct criminal acts, nor does the presence of a common nucleus of operative facts.”). The evidence presented in today’s case does not support Tapper’s argument that his convictions for “touching” merge with his convictions for sexual battery. Thus, this issue is without merit.

CONCLUSION

¶ 31. For the reasons stated, Randy Lamar Tapper’s convictions and sentences in the Circuit Court of Jackson County on all counts are affirmed.

¶ 32. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT V: CONVICTION OF TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT VI: CONVICTION OF TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT VII: CONVICTION OF TOUCHING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. ALL COUNTS SHALL RUN CONSECUTIVELY TO EACH OTHER.

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

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 33. I respectfully disagree with the majority’s conclusion that the trial court did not err in failing to quash Counts IV, V, VI, and VII of Tapper’s indictment.

¶ 34. The Sixth Amendment of the federal constitution guarantees that “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.” U.S. Const, amend. VI. The Mississippi Constitution also grants this right to those accused: “In all criminal prosecutions the accused shall have a right ... to demand the nature and cause of the accusation.” Miss. Const, art. 3, § 26. In Uniform Circuit and County Court Rule 7.06, this Court expounded on these constitutional provisions by requiring, among other things, that the indictment contain a “definite written statement of the essential facts constituting the offense charged,” fully notifying the defendant of the nature of the charges against him. Moreover, we require that an indictment contain “(1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.” Berry v. State, 996 So.2d 782, 786 (Miss.2008) (quoting Gilmer v. State, 955 So.2d 829, 836-37 (Miss.2007)).

¶ 35. In this case, Counts IV, V, VI, and VII of Tapper’s indictment were worded as follows:

in Jackson County, Mississippi, on or between June 1, 2006, and August 19, 2006, being at the time in question over the age of eighteen (18) years, for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires, did unlawfully, willfully and felo-niously handle, touch or rub with his hand, or any part of his body, or any member thereof, the vagina of [L.P.] a child who was at the time in question under the age of sixteen (16) years, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

Tapper does not deny that this language adequately provides the essential elements of the crime of touching a child for lustful purposes in violation of Mississippi Code Section 97-5-23(1). Tapper does assert that the essential facts set forth in the indictment were insufficient to inform him of the nature of the charges against him. He argues that, in addition to the fact that the lengthy time span alleged in the indictment prevented him from establishing a reasonable defense, the identical and undifferentiated language in Counts IV-VII of Tapper’s indictment rendered it impossible for him to put forth any kind of reasonable defense to the multiple, indistinguishable charges against him.

¶ 36. While this Court has not been faced with the question of whether a multi-count indictment containing identical, form-copied language in multiple counts is constitutionally sufficient, Mississippi’s Court of Appeals has addressed this question in an insightful and well-reasoned opinion. In Moses v. State, 795 So.2d 569 (Miss.Ct.App.2001), Moses was charged in a single indictment with twenty-two counts of sexual activity with two females under the age of fourteen. Id. at 570. Counts One through Thirteen of Moses’s indictment were indistinguishable, and each of those counts charged Moses as follows:

During a period of time between June 1994 and September 1997 the defendant being a male over the age of eighteen (18) years did wilfully, unlawfully, felo-niously and forcibly rape, ravish and carnally know [Child A], a female under the age of fourteen (14) years, contrary to and in violation of Section 97-3-65(1) of the Mississippi Code of 1972, as amended.

Id. at 570. Likewise, Count Sixteen, which charged Moses with sexual battery, was identical to Count Seventeen, and Count Eighteen, which charged Moses with gratification of lust, was identical to Counts Nineteen and Twenty-One. Id. A jury convicted Moses of each and all of these nineteen counts. Id. at 569.

¶ 37. Upon review, the Court of Appeals held:

We have little doubt in determining that this indictment, in the form returned by the grand jury, did not adequately fulfill its purpose. Multiple accusations of crimes that are, word for word, identical to each other simply cannot by any logical argument provide the necessary information that a defendant is entitled to receive by way of the indictment.
To attempt to charge multiple separate felonies by using identical language for each crime, including an identical span of time that the crimes were alleged to have occurred, fails woefully to fulfill the fundamental purpose of an indictment.

Id. at 571-72. Correctly, the Court reversed each of Moses’s nineteen convictions. Id. at 572.

¶ 38. The majority attempts to distinguish Moses by noting that, in the Moses case, the State had information that would have delineated between the charges but failed to provide that information to the defendant. The majority finds that no such evidence existed in the present case, and that this lack of evidence somehow excuses the State from properly charging the defendant. Yet, the constitutional duty to notify the accused of the charges against him, via the indictment, rests with the State, as does the burden of proving its case beyond a reasonable doubt, and these duties are not relieved simply because the requisite information is outside the State’s knowledge.

¶ 39. The United States Court of Appeals for the Sixth Circuit also has addressed the issue of charging a defendant with multiple, identical charges and has found that practice to be unconstitutional. In Valentine v. Konteh, 395 F.3d 626, 628 (6th Cir.2005), Valentine had been charged with and convicted of forty counts of sexual abuse. The forty counts in the indictment entered against Valentine consisted of “20 ‘carbon-copy’ counts of child rape, each of which was identically worded so that there was no differentiation among the charges and 20 counts of felonious sexual penetration, each of which was also identically worded.” Id. The time range during which the alleged acts occurred was from March 1, 1995, to January 16, 1996; however, the Court’s analysis did not focus on whether the specified time span prevented Valentine from establishing a reasonable defense, but instead on whether the multiple identical counts prevented Valentine from establishing a reasonable defense. Id. at 631-33.

¶ 40. In addressing this question, the federal appeals court noted that “[n]o principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” Id. at 631 (quoting Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948)). The Valentine Court went on to say:

If there had been singular counts of each offense, the lack of particularity would not have presented the same problem. Instead, the problem is that within each set of 20 counts, there are absolutely no distinctions made. Valentine was prosecuted for two criminal acts that occurred twenty times each, rather than for forty separate criminal acts. In its charges and in its evidence before the jury, the prosecution did not attempt to lay out the factual bases of forty separate incidents that took place. Instead, the 8-year-old victim described “typical” abusive behavior by Valentine and then testified that the “typical” abuse occurred twenty or fifteen times. Outside the victim’s estimate, no evidence as to the number of incidents was presented.
Given the way Valentine was indicted and tried, it would have been incredibly difficult for the jury to consider each count on its own. The jury could not have found Valentine guilty of Counts 1-5, but not Counts 6-20. Nor could the jury have found him guilty of Counts 1, 3, 5, and 7, but not the rest. Such a result would be unintelligible, because the criminal counts were not connected to distinguishable incidents. The jury could have found him “not guilty” of some of the counts only if they reached the conclusion that the child victim had overestimated the number of abusive acts. Just as courts should not permit abuse prosecutions to be defeated due to the limited ability of child victims to remember precise temporal details, they should for similar reasons not permit multiple convictions to stand based solely on a child’s numerical estimate.

Id. at 632-33.

¶ 41. The Court concluded that the use of identical and undifferentiated language in the multiple counts in Valentine’s indictment failed to give him adequate notice of the essential facts of the crimes charged, depriving him of the opportunity of mounting a reasonable defense. Id. at 636.

¶ 42. Here, as in Moses and Valentine, the State’s use of identical and undifferentiated language in Tapper’s indictment foreclosed Tapper’s having any possibility of putting forth a reasonable defense. The indictment’s noninclusion of the distinguishing facts unique to each charge, however slight, limited Tapper’s defense to nothing more than mere denial, and left Tapper to defend himself, not against four distinct criminal acts, but against one criminal act that allegedly occurred four times, with absolutely nothing to distinguish one such occurrence from the other three. Clearly, Tapper’s desire to know the basic facts he was to face at trial, including where, and approximately when, his accusers claimed they occurred, is not beyond his constitutional right to be informed of the nature and cause of the accusations against him. U.S. Const, amend. VI; Miss. Const, art. 3, § 26.

¶ 43. In its struggle to breathe validity into the cookie-cutter, repetitive language of Counts IV, V, VI, and VII of the Tapper indictment, the majority places reliance on this Court’s decision in Eakes v. State, 665 So.2d 852 (Miss.1995), which cites Morris v. State, 595 So.2d 840 (Miss.1991). Both cases are easily distinguished from the one at hand.

¶44. In Eakes, 665 So.2d at 860, the defendant was convicted of three counts of sexual battery, and claimed on appeal that the indictment was defective because, among other things, it did not contain specific dates. However, Eakes’s indictment clearly distinguished each of the charged crimes from the others by alleging that they had occurred at separate and distinct times: “on, about or between December 1, 1990 and December 24, 1990; February 1, 1991 and April 20, 1991; and on or about May 11 and 12, 1991.” Id. (internal quotations omitted).

¶45. In Morris, 595 So.2d 840, the charging allegations of the one count of touching a child for lustful purposes and two counts of sexual battery that were before the court are not recited in the published opinion, and that decision gives no indication that the sort of linguistic cloning afflicting Counts IV, V, VI, and VII of the Tapper indictment was under consideration by the Morris court. Rather, the focus in that case was on the times of the alleged offenses, especially on the teenaged victim’s inability to testify to exact dates on which the several acts of sexual assault had occurred. Duplicative charging language simply was not the concern of the Court in the Morris case, and the majority’s reliance on that decision is misplaced.

¶ 46. Obviously, the issues raised in Eakes and Morris are vastly different from the dilemma presented in the case at bar, where four identically worded fondling episodes, all against the same child, are alleged to have occurred during a span of time that the prosecution ultimately narrowed, by amendment, to seventy-eight consecutive days (“on or between June 1, 2006 and August 17, 2006”). No one can read the four fondling counts in the Tapper indictment and determine which of the alleged events is said to have happened first, which last, or which was Number Two or Number Three. Moreover, no one can tell whether Number One, Two, Three, or Four actually was Number Five, or even Number Six. It must be remembered that the proof adduced by the prosecution included the statement of L.P. that there were “about five” fondling episodes. The indictment alleged four, which, arguably, is “about five.” The same can be said of six.

¶ 47. What is more, an indictment must contain “sufficient facts to enable [the defendant] to. plead double jeopardy in the event of future prosecution for the same offense.” Berry, 996 So.2d at 786 (quoting Gilmer, 955 So.2d at 836-837). See U.S. Const. amend. V (“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”); Miss. Const. art. 8, § 22 (“[n]o person’s life or liberty shall be twice placed in jeopardy for the same offense”). Here, the vagueness of the identically worded counts in Tapper’s indictment prevents him from pleading double jeopardy. Tapper, like this Court, does not know the specific acts of which he has been convicted, and he is, as this Court is, unable to ascertain whether he is currently being punished twice (or more for that matter) for a single act.

¶ 48. As for the evidence presented at trial, L.P. gave a mere estimate of the number of times she was molested, without providing individualized details concerning four separate occurrences. The prosecutor “proved” the four separate counts as follows:

Q: [Addressing the child by name], how many times do you think you were touched that summer of 2006?
A: About five.

No other evidence of the number of incidents was presented; therefore, there was no way for the jurors to consider each of the four counts separately, as they most certainly should have done. If the jury believed from the evidence, beyond a reasonable doubt, that Tapper was guilty of one of the counts, the only way to have found him not guilty on any one or more of the three remaining counts would have been for the jurors to have thought that the child’s estimate of the number of occurrences was too high.

¶ 49. Despite the child’s guess that the number of fondling assaults by Tapper was “about five,” the grand jury indicted him for only four such offenses. As there is no statute of limitations for this crime, there is nothing to prevent a future grand jury’s indicting Tapper for a fifth felonious fondling of this child during the two-and-a-half-month period alleged in the indictment. Indeed, this record contains just as much evidence of five fondling offenses as it does of four. If Tapper is indicted in the future for one count of fondling this same child, during the same time period and in the same county and state, and the charge is worded exactly the same as the four fondling counts in the instant indictment, how will anyone, including this Court, be able to determine whether he previously was tried (placed in jeopardy) for a fifth identical charge? Obviously, no one will be able to do that, and Tapper will be unable to assert double jeopardy in the event of subsequent prosecution(s) for the same conduct. Given that he does not know — as the record does not disclose— any specific act of fondling for which he was indicted and convicted, any double jeopardy argument that may be raised by Tapper will be tenuous at best.

¶ 50. Under this Court’s decisions and the rules it has promulgated, defendants in criminal cases are entitled to a mere fraction of the pretrial discovery information that is routinely accorded to litigants in civil cases. Because the criminally accused in Mississippi courts can get no clarification, explanation, or amplification of the charge(s) laid in an indictment by means of a bill of particulars, and comparatively little through discovery, the indictment is the defendant’s main source of information about the “who, what, when, and where” of the State’s accusations against him or her. See Cumbest v. State, 456 So.2d 209, 221 (Miss.1984) (“[A]n accused is not entitled to a bill of particulars on an indictment.”) (citations omitted). The indictment is far more than a mere formality, and a charging document that takes a shotgun approach to accusing a person of the very same conduct, word-for-word, four different times, with nothing to distinguish one charge from the others in terms of details or times, falls fatally short of properly informing the accused of the nature and cause of accusation(s), as mandated by our state and federal constitutions.

¶ 51. Today’s decision very well could provide a disincentive for those who investigate and prosecute cases of juvenile sex abuse in our state to be diligent in their efforts to ascertain the unique circumstances that will inevitably distinguish repetitious occurrences of the same type of crime by repeat offenders against children who are victimized again and again. It is elementary that nothing ever happens in precisely the same way more than once. Deja vu is always an illusion, never a reality. I join the majority in imploring Mississippi’s prosecutors “to be as specific as possible in drafting indictments, consistent with the provisions of Uniform Rule of Circuit and County Court Practice 7.06, in all cases, but specifically in cases involving allegations of sex offenses committed upon minor children.”

¶ 52. Counts IV, V, VI, and VII of the indictment should have been quashed for failing to inform Tapper of the nature and cause of the accusations against him in violation of the Sixth Amendment of the United States Constitution and Article 3, Section 26, of the Mississippi Constitution, and because these counts are constitutionally infirm for their clear violation of the former jeopardy provisions of the Fifth Amendment to the United States Constitution and Article 3, Section 22, of the Mississippi Constitution. Accordingly, I would reverse and render Counts IV, V, VI, and VII, but I would affirm the convictions and sentences for all of the remaining counts.

GRAVES, P.J., DICKINSON AND LAMAR, JJ., JOIN THIS OPINION.

      . The two minor victims will be referred to as C.C. and L.P. At the time of the incidents, C.C. was six years old, and L.P. was eight years old.

      . S.F. was thirteen years old at the time of the trial.

      . This testimony from Tapper was during the State’s cross examination of him. Later on in the State’s cross-examination, the following occurred: "Q. Mr. Tapper, you know that [L.P.] has watched a ponographic [sic] movie, that’s what you’re telling us? A. I know that inappropriate things goes on inside that trailer; yes sir, I do.”

      . Tapper was on trial on a grand-jury indictment charging him with two counts of sexual battery and five counts of touching of a child for lustful purposes. The two counts of sexual battery were alleged to be violations of Mississippi Code Section 97 — 3—95(l)(d) (Rev. 2006), thus meaning that if convicted, Tapper stood the possibility of being sentenced to life imprisonment. Miss.Code Ann. § 97-3-101(3) (Rev. 2006). Therefore, based on the sexual-battery counts, Tapper was on trial for the alleged commission of capital offenses, as defined by Mississippi Code Section 1-3-4 (Rev. 2005). Thus, Tapper was entitled to twelve peremptory challenges. URCCC 10.01.

      . Count IV actually alleged the end date as being August 20, 2006, while Counts V-VII did in fact allege the end date as being August 19, 2006.

      . By order of the trial court, Counts IV, V, VI, and VII were amended to state "on or between June 1, 2006 and August 17, 2006.”


source: Caselaw Access Project

author: CHANDLER, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Charles BURNWATT and Debra Burnwatt, as Parents and Wrongful Death Beneficiaries of William Alexander Burnwatt, Deceased, on Behalf of Themselves and All Other Wrongful Death Beneficiaries of William Alexander Burnwatt, Deceased v. EAR, NOSE & THROAT CONSULTANTS OF NORTH MISSISSIPPI, PLLC and John F. Laurenzo, M.D.
    No. 2008-IA-01563-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2010.
    Rehearing Denied Nov. 18, 2010.

      Cynthia Mitchell, John H. Cocke, Charles M. Merkel, III, Clarksdale, attorneys for appellants.
    Shelby Kirk Milam, S. Duke Goza, Oxford, Dion Jeffery Shanley, attorneys for appellees.
   CHANDLER, Justice,

for the Court:

¶ 1. This case is before the Court on interlocutory appeal. After a mistrial and prior to a retrial on the matter, the trial court denied the Burnwatts’ renewed motion to exclude an expert witness’s testimony. Following that decision, the Burnwatts petitioned this Court for an interlocutory appeal.

¶ 2. On July 28, 2001, Alex Burnwatt (Alex) had a tonsillectomy at Baptist Memorial Hospital-North Mississippi (BMH-NM). At the time of the procedure, Alex was nine years old. Dr. John F. Laurenzo performed the tonsillectomy. On August 2, 2001, Alex returned to the hospital due to dehydration and died at the hospital the same day.

¶ 3. On May 8, 2002, Charles Burnwatt and Debra Burnwatt (the Burnwatts), as parents and wrongful-death beneficiaries of William Alexander Burnwatt, deceased, on behalf of themselves and all other wrongful-death beneficiaries of William Alexander Burnwatt, deceased, filed suit against BMH-NM; Ear, Nose & Throat Consultants of North Mississippi, PLLC (ENT Consultants); and Dr. Laurenzo in the Circuit Court of Lafayette County, Mississippi. The complaint alleged that the defendants were negligent in the manner in which the surgery was performed, in failing to require Alex to have further examinations, in failing to stop Alex’s bleeding, and in failing to exercise appropriate care. The complaint alleged that Dr. Laurenzo was an agent and employee of ENT Consultants and, as such, ENT Consultants was liable under a theory of respondeat superior. Dr. Laurenzo and ENT Consultants filed a joint answer and affirmative defenses. BMH-NM filed a motion to dismiss for failure to state a claim, or, in the alternative, a motion for a more definite statement. Thereafter, Dr. Laurenzo and ENT Consultants filed a motion for summary judgment or, in the alternative, a motion for a protective order.

¶4. On October 3, 2002, the Burnwatts filed an amended complaint. The amended complaint included the previous allegations and included more specific allegations of negligence against BMH-NM. After a hearing, the trial court denied BMH-NM’s motion to dismiss, granted BMH-NM’s motion for a more definite statement, and ordered the Burnwatts to file an amended complaint with a more definite statement. The trial court also denied Dr. Laurenzo’s and ENT Consultants’ motion for summary judgment and denied their motion for protective order. Dr. Laurenzo and ENT Consultants filed a joint answer and affirmative defenses to the amended complaint, and BMH-NM filed a separate answer and affirmative defenses.

¶ 5. The case was set for trial on August 15, 2005. Prior to trial, BMH-NM filed a motion for summary judgment, asserting that no prima facie case had been established, because no expert witness had been designated to testify on the elements of medical negligence. In June 2005, the trial court granted summary judgment in favor of BMH-NM and dismissed it from the lawsuit. The order stated in part:

At the hearing on this matter, both counsel for the Plaintiff and counsel for the co-Defendants, John Laurenzo, M.D. and the Mississippi Ear, Nose & Throat Consultants of North Mississippi, P.L.L.C., declared that no expert testimony is anticipated from either of these parties, which testimony is critical of Baptist Memorial Hospital-North Mississippi or of the care rendered by the Hospital’s nursing staff and/or employees.
The Court finds that if, as the Plaintiff’s counsel has acknowledged, there is no proof that Baptist Memorial Hospital-North Mississippi has committed a negligent act or omission, Baptist Memorial Hospital-North Mississippi is entitled to summary judgment. Furthermore, Plaintiffs counsel has advised the Court that unless Dr. Laurenzo intends to “point the finger” at Baptist Memorial Hospital-North Mississippi personnel in any respect, the Plaintiff confesses the motion for summary judgment.

The dismissal was a final judgment pursuant to Mississippi Rule of Civil Procedure 54(b). No appeal was taken from the decision.

¶ 6. Subsequently, the Burnwatts filed a motion for relief from the order and judgment dismissing BMH-NM because Dr. Laurenzo and ENT Consultants later filed a designation of expert witness, Dr. Keith Mansel. This designation of expert witness was filed after the June 2005 trial-court order granting summary judgment and dismissal to BMH-NM. Dr. Lauren-zo’s expert witness, Dr. Mansel, was to testify that the treatment provided to Alex by Dr. Laurenzo and ENT Consultants had been within the standard of care, that Alex’s bleeding was not consistent with exsanguination (loss of blood) being the cause of death, and that Alex’s death had been caused by resuscitation efforts.

¶ 7. The Burnwatts also filed an alternate motion to exclude the expert testimony of Dr. Mansel and a motion in limine to prevent Dr. Laurenzo and ENT Consultants from any attempt to place blame, either directly or indirectly, on any BMH-NM employee. Later, the Burnwatts filed a motion for partial summary judgment on the issue of apportionment of fault to BMH-NM. The Burnwatts’ motion sought to block any attempt by Dr. Lau-renzo and ENT Consultants to place any blame or fault on BMH-NM for Alex’s death.

¶ 8. In June 2007, the trial court granted partial summary judgment in favor of the Burnwatts. The trial court found that, at the time of the grant of summary judgment and dismissal of BMH-NM from the suit, no genuine issue of material fact existed as to any blame or fault by the hospital. Therefore, the trial court determined, in part, that “Dr. Laurenzo and ENT Consultants should not now be permitted to place blame or apportion fault on a co-defendant which the Court had previously adjudicated not to be at fault and accordingly dismissed with prejudice from this law suit” Notwithstanding the grant of partial summary judgment in the Burnwatts’ favor, the trial court also held that “[hjowever, this opinion should not be construed as to prevent the Defendants Laurenzo and ENT Consultants from presenting them theory of the case[,]” citing Eckman v. Moore, 876 So.2d 975 (Miss.2004).

¶ 9. By separate order in June 2007, the trial court denied the Burnwatts’ motion for relief from the order and dismissal of BMH-NM from the lawsuit. The trial court determined that relief could not be granted pursuant to Mississippi Rule of Civil Procedure 60(b)(1), (3), or (6). Further, and in consideration of the trial court’s grant of partial summary judgment in favor of the Burnwatts on the issue of Dr. Laurenzo’s and ENT Consultants’ inability to place blame or fault on BMH-NM, the trial court determined the issue to be moot.

¶ 10. The case went to trial on June 4, 2007. Dr. Mansel testified on behalf of Dr. Laurenzo and ENT Consultants. The jury received instructions which included the statement that none of the actions of the employees of BMH-NM had contributed to the death of Alex. The jury also was instructed on Dr. Laurenzo’s and ENT Consultants’ theory of the case. When the jury was unable to reach a verdict, the trial court declared a mistrial.

¶ 11. Following the mistrial, the trial court set a new trial date, by agreed order, for September 2, 2008. In May 2008, the Burnwatts filed a renewed motion to exclude the testimony of Dr. Mansel. The trial court denied the Burnwatts’ motion. Following this decision, the Burnwatts petitioned this Court for interlocutory appeal. This Court accepted the petition, and the Burnwatts appeal the trial court’s denial of their motion to exclude the testimony of Dr. Mansel. Finding no error, this Court affirms the Circuit Court of Lafayette County.

FACTS

¶ 12. Alex Burnwatt was nine years old in 2001. He had been having a number of infections in his tonsils. His parents brought him to see Dr. Laurenzo in the summer of 2001. After an examination, Dr. Laurenzo recommended that Alex have a tonsillectomy. Alex had the tonsillectomy on July 28, 2001. After the surgery had been completed, Alex’s parents, Debra and Charles, visited him in the recovery area. As soon as Alex saw his parents, he started to complain to his parents and to hold his throat because it hurt him. Alex spit up prior to his discharge from the facility. However, the medical staff told his parents that Alex was fine.

¶ 13. When Alex arrived home, he refused anything to eat or drink. Alex stated that he did not feel well and that his throat hurt him. Each time Alex’s parents gave him something to eat or drink, Alex would vomit. On most occasions, Alex vomited the food or drink as soon as he ingested it.

¶ 14. A few days after surgery, Alex’s mother, Debra, called Dr. Laurenzo’s office and reported Alex’s condition. Alex received a prescription for Phenergan to help his vomiting. However, the medication did not help Alex. Two days later, Alex’s mother called Dr. Laurenzo’s office again. Debra told the staff that Alex continued to throw up and could not keep down any food. Dr. Laurenzo’s staff recommended that Debra take Alex to the emergency room.

¶ 15. Alex was admitted to the emergency room at BMH-NM. Hospital staff brought Alex to a room and checked his vital signs. Alex coughed as he went to a bed, and blood began to pour out of his mouth. He ran to the sink and vomited blood into the sink. Then, he ran from the bathroom and vomited blood into a trash can. Alex fell onto the bed, and a nurse called for a code. Medical staff entered the room and removed Debra to the next room.

¶ 16. Hospital personnel attempted to resuscitate Alex over a period of time. An attending physician removed a large clot from Alex’s throat in an attempt to open his airway. Unfortunately, Alex did not survive. Later, Dr. Bradford Dye informed Debra and Charles that Alex had died.

DISCUSSION

¶ 17. The standard of review for a trial court’s decision either to admit or exclude evidence is abuse of discretion. Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000); Robinson Prop. Group, L.P. v. Mitchell, 7 So.3d 240, 243 (Miss.2009); Beverly Enters., Inc. v. Reed, 961 So.2d 40, 44 (Miss.2007). Unless a substantial right of a party is adversely affected, the appellate courts will not reverse a ruling to admit or exclude evidence. Whitten, 799 So.2d at 13; Mitchell, 7 So.3d at 243.

¶ 18. The standard of review for the admission or exclusion of expert testimony is the same as for other evidence, an abuse of discretion. Poole ex rel. Wrongful Death Beneficiaries of Poole v. Avara, 908 So.2d 716, 721 (Miss.2005) (citing Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003)). See also Investor Res. Servs., Inc. v. Cato, 15 So.3d 412, 416 (Miss.2009); Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 946 (Miss.2008). Mississippi Rule of Evidence 702 specifically concerns expert testimony. Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702. In McLemore, this Court adopted a test stated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). McLemore, 863 So.2d at 35. Under Rule 702, expert testimony is admissible if it is both relevant and reliable. Id. at 38. The trial judge is considered the gatekeeper and determines the value of the expert testimony. Cato, 15 So.3d at 416. As the gatekeeper, the trial court ensures that any expert testimony must be relevant and reliable. Poole, 908 So.2d at 723.

¶ 19. Mississippi Rules of Evidence 401 and 403 govern what evidence is relevant and when relevant evidence is more probative than prejudicial. Rule 401 states:

“Relevant Evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

¶ 20. Mississippi Rule of Evidence 403 states:

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.

¶ 21. The threshold for admissibility of evidence is not high, and Rule 401 favors the admission of evidence when it has probative value to the case. Cato, 15 So.3d at 417 (citing McLemore, 863 So.2d at 40).

¶ 22. The parties in this case do not challenge the expert witness’s qualifications or expertise to testify as an expert. Instead, the parties challenge whether the trial court should have admitted the testimony of Dr. Mansel concerning his opinion on the cause of Alex’s death.

¶ 23. The Burnwatts’ theory of the case was that Alex died as a result of Dr. Laurenzo’s negligence in cutting too deeply into the tonsillar bed, resulting in Alex’s exsanguination (blood loss) at the hospital. Dr. Laurenzo’s and ENT Consultants’ theory of the case was that Alex died as a result of a pneumothorax (air around the lung that causes the lungs to collapse) during resuscitation efforts.

¶24. The Burnwatts argue that Dr. Mansel’s testimony is an attempt by Dr. Laurenzo and ENT Consultants to show causation and to place blame on BMH-NM for Alex’s death. The Burnwatts further contend that the trial court erroneously admitted this testimony because the order granting summary judgment and dismissing BMH-NM from the suit was premised, in part, on the parties not placing any blame on BMH-NM for Alex’s death, which occurred at the hospital. The Burn-watts contend that Dr. Laurenzo and ENT Consultants are estopped from now asserting that the resuscitation efforts of BMH-NM personnel caused Alex’s death. Relying on Medlin v. Hazlehurst Emergency Physicians, 889 So.2d 496 (Miss.2004), the Burnwatts further assert that Dr. Mansel’s testimony that Alex’s death was a result of resuscitation efforts was irrelevant, confusing, and prejudicial to their case, based on the theory that a tortfeasor is liable for reasonably foreseeable consequences of his or her actions.

¶ 25. On the other hand, Dr. Laurenzo and ENT Consultants argue that Dr. Man-sel’s testimony is admissible to show their theory of the case. As previously noted, Dr. Laurenzo’s and ENT Consultants’ theory of the case was that Alex died as a result of a pneumothorax in the course of resuscitation efforts.

1. Prior trial-court orders

¶ 26. The Burnwatts argue that the designation of Dr. Mansel as an expert witness directly contradicts the June 2005 order granting summary judgment and dismissal of BMH-NM. Indeed, the trial court found no genuine issue of material fact that placed any blame or apportionment of fault on BMH-NM. In a later order granting partial summary judgment to the Burnwatts on the issue of apportionment of fault to BMH-NM, the trial court found that Dr. Laurenzo and ENT Consultants could not place blame or allocate fault to BMH-NM. The trial court reviewed the testimony of Dr. Laurenzo; Dr. Mansel; Dr. Deborah Burton, the Burn-watts’ expert witness; and Dr. Stephen Hayne, the pathologist who conducted the autopsy, in reaching its decision. The order stated:

There is no genuine issue of material fact that the dismissed Defendant BMH-NM or its employees were negligent or that their actions proximately caused or contributed to the Plaintiffs’ damages and that the Defendants Lau-renzo and ENT Consultants should not be permitted to place blame or allocate fault to BMH-NM or its employees. Consequently, the Plaintiffs are entitled to a Partial Summary Judgment as a matter of law.

However, the trial court also ordered that “this order should not be construed as to prevent the Defendants from presenting their theory of the case.”

¶ 27. Indeed, in Eckman v. Moore, 876 So.2d 975 (Miss.2004), this Court held that a defendant is entitled to jury instructions on his or her theory of the case. Eckman, 876 So.2d at 979. In Eckman, the defendant’s theory of the case was that the failure of nursing staff to meet the standard of care was a superceding cause of the patient’s injuries and death. Id. at 980. The trial court denied Eckman’s instruction on this issue notwithstanding evidence presented by both parties of nursing negligence. Id. at 982. This Court found reversible error and reversed and remanded the case for a new trial. Id. at 989-90.

¶ 28. While the trial court relied on Eckman for authority, Mississippi Rule of Evidence 702 generally provides for testimony of an expert. The expert’s specialized knowledge is permitted when it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Miss. R. Evid. 702. The expert may provide an opinion provided that “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Miss. R. Evid. 702. Therefore, Dr. Man-sel’s testimony, which supports Dr. Lau-renzo’s theory of the case that Alex died as a result of resuscitation efforts, also may be viewed as simply expert opinion testimony.

2. Dr. MansePs expert opinion and whether it placed blame/fault on BMH-NM

¶ 29. Dr. Mansel, a pulmonary and critical-care physician, testified at trial concerning the cause of Alex’s death, relying on Alex’s medical records. In his testimony Dr. Mansel stated that Alex was dehydrated when he came to the hospital. Alex coughed and dislodged a scab, causing him to bleed. The clot was removed, and the hospital personnel began to give Alex oxygen. Dr. Mansel stated that Alex had a pulse, however, it was lost, and hospital personnel began cardiopulmonary resuscitation (CPR), or chest compressions. An employee attempted to place an intravenous line in Alex’s subclavian vein, located under the collar bone. After several attempts, an IV was placed in Alex, however, his neck began to swell. Another IV was placed near his groin. Dr. Mansel opined that the guide wire for the IV, not uncommonly, was not placed in the correct location. Dr. Mansel stated:

[I]n two to five percent of people you will get what is called a pneumothorax so that you pierce part of the lung and if you do enough of these as I have it’s just going to happen. That is despite your best attempt. We just know that it’s going to happen because peoples [sic] anatomy are different. But when that happens and that it’s like a balloon having a little leak, that air is going to leak out of the lungs.

He stated that both of Alex’s lungs collapsed. Dr. Mansel stated that Alex had bilateral pneumothoraces, as evidenced by an x-ray report. He also stated that Alex had experienced a tension pneumothorax on his left side. Ultimately, Dr. Mansel stated that Alex did not die from exsangui-nation. He stated that “This was a blood clot that got dislodged that got in [Alex’s] airway and blood oxygen got low, series of things happened. These lungs collapsed and he died but not from an artery being severed or some below the standard of care or exsanguination.”

¶ 30. In contrast, Dr. Burton, expert witness for the Burnwatts, testified that Dr. Laurenzo had deviated from the standard of care. She stated that, during the tonsillectomy, the surgical plane went too deeply into Alex’s muscle in the right tonsil. In Dr. Burton’s opinion, this dissection injured deeper blood vessels than normal.

¶ 31. We find that the trial court did not err by denying the Burnwatts’ renewed motion to exclude expert witness testimony from Dr. Mansel. The trial court carefully monitored the proposed and actual testimony and opinions rendered by Dr. Mansel at all stages of the litigation. Dr. Mansel’s testimony was within the limitations set by the trial court in its rulings and passed muster pursuant to Rules 401 and 403.

¶ 32. While the trial court granted summary judgment and dismissal to BMH-NM, it considered that neither party had an expert who would provide testimony critical of the care of BMH-NM or its staff. In addition, the trial court considered Dr. Laurenzo’s deposition testimony in which Dr. Laurenzo stated that he had no criticism of the resuscitation efforts by BMH-NM, and that BMH-NM staff had done everything possible to save Alex. The trial court also considered the Burnwatts’ acknowledgment that BMH-NM had not committed any negligent act or omission. The order specified that the Burnwatts premised their confession of the motion for summary judgment on Dr. Laurenzo’s representation to the court that he would not “point the finger” at BMH-NM.

¶ 33. However, in the later order granting partial summary judgment to the Burnwatts on the issue of apportionment of fault, the trial court expressly stated that the grant of partial summary judgment should not be interpreted to mean that Dr. Laurenzo and ENT Consultants were prohibited from presenting their theory of the case. Indeed, the trial court reviewed the deposition testimony from all the expert witnesses, including Dr. Man-sel. With regard to Dr. Mansel’s deposition testimony, the trial court determined that his testimony “opine[d] that William [Alex] Burnwatt in all probability died from a bilateral pneumothorax and an [occluded] airway and not from bleeding.” In addition, the trial court determined that “Dr. Mansel had no criticism of any employee of BMH-NM. Dr. Mansel agrees that everything was done correctly by the hospital staff.” While the trial court’s main focus was the issue of apportionment of fault, the order nevertheless demonstrated that the trial court reviewed Dr. Mansel’s testimony, and, that the testimony placed no blame on BMH-NM.

¶ 34. Similar to the deposition testimony, Dr. Mansel’s trial testimony placed no blame on BMH-NM. As previously quoted, Dr. Mansel stated that, due to varying human anatomy in a certain percentage of patients, the placement of the guide wire for the IV may fail in some patients.

¶ 35. In its August 29, 2008, order denying the Burnwatts’ renewed motion to exclude the testimony of Dr. Mansel, the trial court reviewed the expert witnesses’ testimony provided at trial. Based on that testimony, the trial court determined, pursuant to Mississippi Rules of Evidence 401, that Dr. Mansel’s testimony was relevant. The testimony also met the balancing test of Rule 403, which states:

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.

In its analysis, the trial court thoroughly considered the testimony presented at trial and whether it met the balancing test of Rules 401 and 403. The trial court stated:

Plaintiffs expert, Dr. Deborah Burton, opines that Dr. Laurenzo breached the standard of care when he performed a tonsillectomy on Alex Burnwatt by operating below the normal surgical plane and injuring the deeper blood vessels that are not typically injured during surgery. She further testified that the autopsy report indicates that there was a tear or laceration in the main jugular vein which would normally be encountered during the tonsillectomy. Dr. Burton also indicated that the injury to the jugular vein is an indication that Dr. Laurenzo operated below the normal plane. It is Dr. Burton’s opinion that Alex Burnwatt died from a severe loss of blood.
The autopsy report of Dr. Steven Hayne, an expert Pathologist, indicated that the right jugular vein had a laceration which was caused by the IV guide wire, pressure from IV fluids, or a surgical tool (tonsillectomy). Dr. Hayne’s autopsy report states that Alex Burnwatt’s organs were pale which indicates a significant loss of blood. According to Dr. Hayne, the loss of blood (exsanguination) was a contributing cause of Alex Burnwatt’s death.
Defendant’s expert, Dr. Keith Mansel, was allowed to testify at trial. It was Dr. Mansel’s opinion that Alex Burnwatt did not suffer from a severe loss of blood; the IV guide wire inserted during the code caused the tear in the internal jugular vein; and that Alex Burnwatt died not from loss of blood (exsanguination), but from a blood clot which dislodged and blocked his airway resulting in collapsed lungs.
The loss of blood suffered by Alex Burnwatt is a relevant factor in this matter. A jury could infer that if Alex Burnwatt bled to death, Dr. Laurenzo operated below the plane injuring major blood vessels.
Dr. Mansel’s testimony as to the amount of blood lost, the cause of the injury to the jugular vein, and the cause of death of Alex Burnwatt is relevant as to whether or not Dr. Laurenzo operated below the surgical plane.
It is the opinion of the Court that Dr. Mansel’s testimony is relevant and reliable and would assist the trier of fact.
The jury was instructed at the June 2007 trial that no actions of omissions or commission by any employee of BMH-NM during or after the code caused or contributed in any way to the death of Alex Burnwatt or the Plaintiffs’ damages.
The probative value of Dr. Mansel’s testimony substantially outweighs the danger of confusion of the issues or misleading the jury.
The Plaintiffs’ renewed motion to exclude the testimony of Dr. Mansel is not well taken and should be denied.

¶ 86. This Court has held that parties have a right to their theory of the case. Eckman, 876 So.2d at 979. This case concerns whether Dr. Laurenzo’s actions or omissions fell below the standard of care. As such, Dr. Laurenzo and ENT Consultants have the right to present their theory of the events that led to Alex’s death by way of expert testimony. The trial court monitored Dr. Mansel’s expert-witness testimony. See Cato, 15 So.3d at 423 (a trial court may limit expert testimony that is admitted into evidence). Dr. Mansel’s testimony did not place blame on BMH-NM, rather it explained that a certain percentage of IV guide wires may be located improperly. Due to a number of events, it was Dr. Mansel’s opinion that Alex died from a pneumothorax and not exsanguination. In addition, the trial court gave limiting instructions on BMH-NM’s lack of liability. See Cato, 15 So.3d at 423 (a trial court may limit expert testimony and give limiting jury instructions).

¶ 37. Further, the trial court properly considered whether Dr. Mansel’s testimony met the requirements of Rules 401 and 403. The trial court correctly found that Dr. Mansel’s testimony was relevant to the issue of the cause of Alex’s death and that it was reliable. In addition, the trial court recognized that the testimony should have been included because its probative value was not substantially outweighed by the danger of confusion of the issues or misleading the jury. To be clear, this opinion should not be construed to make any determination on the weight or credibility of the experts’ testimony in this case, for that is an issue that is yet to be determined and is within the province of the jury, not this Court. “Once a witness is qualified as an expert to render expert testimony, then it is within the province of the trier of fact to give weight and credibility to the testimony.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 796 (Miss.1995). We find that the trial court did not err in denying the Burnwatts’ renewed motion for exclusion of Dr. Mansel’s expert testimony.

CONCLUSION

¶ 38. For the above reasons, this Court affirms the decision of the Circuit Court of Lafayette County denying the Burnwatts’ renewed motion to exclude Dr. Mansel’s expert witness testimony and remands the case for further proceedings in the trial court.

¶ 39. AFFIRMED AND REMANDED.

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

KITCHENS, Justice,

Dissenting:

¶ 40. The doctrine of judicial estoppel “precludes a party from asserting a position, benefitting from that position, and then, when it becomes more convenient or profitable, retreating from that position later in the litigation.” Dockins v. Allred, 849 So.2d 151, 155 (Miss.2003). The doctrine applies where “intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Kirk v. Pope, 973 So.2d 981, 991 (Miss.2007) (internal cites omitted). “Because of judicial estoppel, a party cannot assume a position at one stage of a proceeding and then take a contrary stand later in the same litigation.” Dockins, 849 So.2d at 155 (citing Banes v. Thompson, 352 So.2d 812, 812 (Miss.1977)).

¶ 41. The trial court’s grant of summary judgment in favor of Defendant Baptist Memorial Hospital-North Mississippi was predicated upon the agreement of the plaintiffs and the other codefendants, namely, Ear, Nose & Throat Consultants of North Mississippi, PLLC, and John F. Laurenzo, M.D., that “... no expert testimony is anticipated from either of these parties, which testimony is critical of Baptist Memorial Hospital-North Mississippi or of the care rendered by the Hospital’s nursing staff or employees.” Maj. Op. at ¶ 5.

¶ 42. After entry of this final judgment in favor of Baptist Memorial Hospital-North Mississippi, from which no appeal was taken by any party, the remaining defendants, Dr. Laurenzo and his practice group, Ear, Nose & Throat Consultants of North Mississippi, PLLC, designated Dr. Keith Mansel as an expert witness. The essence of Dr. Mansel’s expert opinion is that the death of the plaintiffs’ child was not the fault of these remaining defendants, but that the child’s demise had been caused by the failed resuscitation efforts. Those efforts had been performed entirely by personnel of the dismissed defendant, Baptist Memorial Hospital-North Mississippi. It is abundantly clear that such testimony would be very much at odds with what had amounted to a stipulation between the plaintiffs and the remaining defendants that no testimony would be adduced at trial that cast blame upon the dismissed hospital’s employees.

¶ 43. While it is true, as postulated by the majority, that parties to litigation are entitled to present their theory of the case to the trier of fact, in this instance, the case theory of these remaining defendants was shaped and limited by their agreement — on the basis of which the court made the major decision to dismiss another defendant — that no blame for the child’s death would be directed toward the hospital. Yet, in the trial of the case — which ended in mistrial occasioned by a deadlocked jury — the trial court not only allowed Dr. Mansel to opine that the death was caused by untoward circumstances that developed during the unsuccessful attempt by hospital personnel to resuscitate the child, but also told the jury in its instructions: “You are instructed that Defendant contends that William Alexander Burnwatt’s death occurred during resuscitation attempts.” The proof had shown that the resuscitation efforts were performed entirely by hospital staff members, and not by Dr. Laurenzo or his practice group. The testimony of Dr. Mansel and the emphasis given it in the court’s instruction plainly had the effect of laying responsibility for the death of Alex Burn-watt in the lap of the hospital, which Dr. Laurenzo and his group had represented to the court and to the plaintiffs that they would not do.

¶ 44. It would have been a simple matter, and a proper action, for the trial court to have granted the plaintiffs’ motion in limine to the extent of precluding the remaining defendants’ placing blame, directly or indirectly, on any hospital employee, which would have been entirely consistent with the trial court’s correct determination that “Dr. Laurenzo and ENT Consultants should not now be permitted to place blame or apportion fault on a co-defendant which the Court previously adjudicated not to be at fault and accordingly dismissed with prejudice from this law suit.” Maj. Op. at ¶ 8.

¶ 45. When Dr. Laurenzo and his practice group agreed not to place blame for the child’s death on the hospital, they limited their theory of the case to their stated position that the treatment they had provided Alex Burnwatt was within the applicable standard of care, and that his loss of blood had not caused his death. Though these defendants may have found it strategically desirable to convey to the jury their expert’s opinion of what did cause the child’s death, they had irrevocably cut themselves off from doing so when they made a representation in a judicial setting, upon which the trial judge and the plaintiffs had relied, and upon which the judge had decisively acted in dismissing the hospital from the litigation.

¶ 46. Accordingly, I must respectfully disagree with the majority’s conclusion that it will be permissible for Dr. Laurenzo and his practice group again to adduce evidence of the hospital’s alleged culpability upon a retrial of this case.

GRAVES, P.J., JOINS THIS OPINION.

      . This jury instruction was as follows:
      You are instructed that the defendant Dr. John F. Laurenzo, contends that he acted within the standard of care required in his treatment of William Alexander Burnwatt and that the treatment Dr. Lorenzo [sic] rendered in no way contributed to his death. You are instructed that Defendant contends that William Alexander Burn-watt’s death occurred during resuscitation attempts. Defendant contends that his treatment of William Alexander Burnwatt in no way breached the standard of care, that Dr. Lorenzo [sic] properly performed the tonsillectomy on Alex Burnwatt on 7/28/2001 and that Alex Burnwatt did not bleed to death.

      . The Burnwatts’ reliance on this case is misplaced. Medlin concerned whether there was payment and satisfaction of damages. Medlin, 889 So.2d at 499. While the Restatement of Torts Section 457 was mentioned in the opinion, this Court stated that "this Court has never specifically applied the Restatement (Second) of Torts § 457.” Id. at 500.

      . The order does not cite Rule 401 or 403, however, it is evident that the trial court considered those rules.

      . The Burnwatts' arguments on law of the case, estoppel, and Restatement of Torts Section 457 are inapplicable.