author: RUSSELL, J.,

text:
    Mark Anthony ARMON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01637-COA.
    Court of Appeals of Mississippi.
    Dec. 6, 2011.
    Rehearing Denied May 15, 2012.

      John M. Colette, Jackson, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, Scott Stuart, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Mark Anthony Armón appeals from the Hinds County Circuit Court’s judgment of conviction for the murder of Christopher Adagbonyn. The circuit court sentenced Armón to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Finding Armon’s assignments of error without merit, we affirm the judgment of the circuit court.

FACTS

¶ 2. On September 14, 2007, Armón, Dominique Mobley, and Patrick Holiday were at Holiday’s house. Mobley explained to Armón and Holiday that Adagbonyn had “shorted” him in a previous drug deal. Mobley was angry about the transaction and wanted to confront Adagbonyn. Therefore, Mobley called Adagbonyn and arranged to meet him later that day. Ar-món agreed to go with Mobley to the meeting.

¶ 3. According to Holiday, when Armón and Mobley left his house to meet Adagbo-nyn, both had firearms. Holiday testified that Mobley had either a .40- or .45-caliber firearm, and Armón had a .223-caliber firearm, which he had borrowed from Holiday. Holiday referred to his .223-caliber firearm as a “baby rifle.”

¶ 4. According to Armón, Mobley and Adagbonyn began arguing when they arrived at the meeting place. Eventually, Mobley fired his weapon at Adagbonyn. Armón testified that he accidently fired his weapon because he was startled by the gun fire. Mobley and Armón fled the scene. Adagbonyn died from a gunshot wound to his head.

¶ 5. After Armón learned that he was wanted for questioning, he soon met with officers from the Jackson Police Department (JPD). More details on his interaction with JPD officers are set forth below.

¶ 6. Armón was later indicted under Mississippi Code Annotated section 97-3-19(l)(a) (Rev.2006) for deliberate-design murder. A jury found Armón guilty of murder, and the circuit court sentenced him to life imprisonment in the custody of the MDOC. The circuit court denied Ar-mon’s alternative motions for a judgment notwithstanding the verdict (JNOV) or for a new trial. Armón appealed.

¶ 7. On appeal, Armón asserts several assignments of error, which we have consolidated and rephrased for our review. Armón asserts: (1) the trial court erred by denying his motion to suppress; (2) the evidence is insufficient to support a conviction of either deliberate-design murder or depraved-heart murder; and (3) he is entitled to a new trial.

DISCUSSION

I. Motion to Suppress

¶ 8. The evidence from Armon’s motion-to-suppress hearing indicates that Armón went to JPD three days after Adagbonyn’s death. At 6:07 p.m., shortly after his arrival, Armón signed a Miranda waiver. Detective Amos Clinton then questioned Armón, but Armón denied any involvement with Adagbonyn’s death. Detective Clinton concluded the interrogation at 7:23 p.m. Armón testified that after Detective Clinton completed his first interrogation, Detective Clinton told him he was lying about not being involved with Adagbonyn’s murder. According to Armón, he then asserted his right to remain silent and requested an attorney.

¶ 9. Detective Clinton, however, testified that after Armon’s first interrogation was over, he allowed Armón to read and to approve his responses from the first interrogation. Detective Clinton explained that during this time, he compared Armon’s statement with Holiday’s statement and information from the crime scene. Both Detective Clinton and Detective Christopher Watkins testified that Armón did not request an attorney and that he voluntarily agreed to give a second interview after he was urged to tell the truth.

¶ 10. At 8:26 p.m., Detective Clinton began interrogating Armón a second time. During this interrogation, Armón recanted his earlier statement. He admitted to going with Mobley to meet with Adagbonyn. He stated that after Mobley fired his weapon at Adagbonyn, he became startled and accidently discharged the .223-caliber firearm that he had taken with him. The second interrogation concluded at 8:43 p.m.

¶ 11. Finding that Armón did not have to be re-advised of his rights and that he did not request an attorney, the circuit court denied Armon’s motion to suppress his statements.

¶ 12. Citing Ruffin, the circuit court determined a short period of time had elapsed between Armon’s interviews; therefore, Armon’s second interview was covered by the Miranda rights given before his first interview. See Ruffin v. State, 992 So.2d 1165, 1171 (¶ 17) (Miss. 2008) (upholding denial of motion to suppress where defendant was Mirandized in the first interrogation, but was not fully Mirandized before a second interrogation approximately eight minutes later); Johnson v. State, 475 So.2d 1136, 1144-45 (Miss.1985) (upholding denial of motion to suppress where defendant was Mirandized in the first interrogation, but was not fully Mirandized in a second interrogation one hour later).

¶ 13. The circuit court also rejected Armon’s contention that he invoked his right to counsel after the first interview. The circuit court noted Detective Clinton’s and Detective Watkins’s testimonies both stating that Armón did not request an attorney. Thus, the circuit court determined it was more reasonable to believe that Armón did not request an attorney after signing his Miranda rights.

¶ 14. On appeal, Armón argues the statement given during the second interrogation was not voluntarily given and that it was given in violation of his right to counsel. We address each argument below.

A. Voluntariness

¶ 15. “Before a challenged confession is admissible, the trial court must determine that it was voluntary beyond a reasonable doubt.” Harden v. State, 59 So.3d 594, 605 (¶ 25) (Miss.2011). A voluntary confession “must have been freely given and must not be the product of coercion by threats, promises, or inducements.” Id. The State holds the burden of proving that Armon’s confession was voluntary. Id. (citation omitted). A prima facie case of “[v]oluntariness may be established through testimony from officers or those who may have specific knowledge of the facts that the confession was made without any threats, offers of reward, or coercion.” Id. (citation omitted). “Then, the defendant may rebut the testimony with contrary evidence; whereupon the State must offer the testimony of all officers who witnessed the confession, or give an adequate reason for their absence.” Id. (citation omitted).

¶ 16. In this case, the State’s burden was met with testimony from Detective Clinton and Detective Watkins, the JPD officers who were present during Armon’s interrogations. Detective Clinton advised Armón of his Miranda rights before the first interrogation and reminded him of his rights during the second interrogation. Detective Watkins witnessed both interrogations. Both testified that Armón was not coerced into giving a confession. Therefore, Armon’s contention that his confession was not voluntary lacks merit.

B. Right to Counsel

¶ 17. “[Ojnce an accused has requested counsel during the interrogation process, interrogation must cease, and the accused may not be questioned further without an attorney being present, unless the accused voluntarily initiates communication.” Id. at 607 (¶ 35) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). “The right to an attorney must be specifically invoked.” Id. (citation omitted). “[A] defendant’s request for counsel must be clear and unambiguous in order for an officer to stop questioning the suspect.” Id. (citation omitted).

¶ 18. Armón asserts that he requested an attorney after his first statement to Detective Clinton. But Detective Clinton and Detective Watkins both testified that Armón did not request an attorney after he gave the first statement. Detective Clinton testified that Armón agreed to further questioning after he was encouraged to tell the truth. Moreover, the transcript from Armon’s second interview indicates that he acknowledged that Detective Clinton had Mimndized him prior to his first interview and that he understood his rights. Therefore, Armon’s contention that his statement was taken in violation of his right to counsel lacks merit.

II. Sufficiency of the Evidence

¶ 19. Armón argues his motion for a directed verdict should have been granted because the State failed to prove the elements of deliberate-design murder. He argues the State presented no evidence that he intentionally fired at the victim.

¶ 20. Although not so worded, Armón also argues the circuit court should have granted his motion for a judgment not withstanding the verdict. He challenges the sufficiency of the evidence to support depraved-heart murder on the basis that the State presented no evidence of a willful act that was likely to result in the victim’s death.

¶ 21. A motion for a directed verdict and a motion for a JNOV challenge the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). When reviewing the denial of these motions, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citation omitted).

¶22. Mississippi Code Annotated section 97-3-19(l)(a) defines deliberate-design murder as:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder ...
(a) When done with deliberate design to effect the death of the person killed, or of any human being[.]

Mississippi Code Annotated section 97-3-19(l)(b) defines depraved-heart murder as:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder ...
(b) When done in the commission of an act [imminently] dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual[.]

¶23. Rational jurors could have concluded that Armón was guilty of deliberate-design murder or depraved-heart murder. Before Armón went with Mobley to meet Adagbonyn, Armón knew: Mobley was angry with Adagbonyn; Mobley intended to “straighten” Adagbonyn; and this “straightening” would involve Mob-ley’s .45-caliber firearm. Despite knowing these facts, Armón agreed to go with Mob-ley and carried a loaded .223-caliber firearm with him. Further, Holiday testified that the .223-caliber firearm he loaned to Armón had to be “cocked” or chambered before the weapon would fire; this testimony disputes Armon’s contention that he accidentally fired the firearm. Finally, the projectile recovered from Adagbonyn came from a rifle. Thus, it was perfectly rational for the jury to conclude that Armon’s actions were imminently dangerous to others evincing a depraved heart and that his actions were done with the deliberate design to cause Adagbonyn’s death. Therefore, this issue lacks merit.

III. New Trial

¶ 24. Armón asserts he is entitled to a new trial because (1) the verdict is against the weight of the evidence; (2) the circuit court granted the State’s requested jury instruction on deliberate-design murder and depraved-heart murder; and (3) the prosecutor made improper comments during rebuttal-closing argument. We address each assignment of ei’ror below.

A. Weight of the Evidence

¶ 25. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, [this Court] will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). This Court must consider the evidence in the light most favorable to the verdict. Id. “The motion ... is addressed to the discretion of the court.... [A] new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (citation omitted). When faced with conflicting testimony, “[t]he jury is the sole judge of the weight of the evidence and the credibility of the witnesses.” Mohr v. State, 584 So.2d 426, 431 (Miss.1991).

¶ 26. It is true that in his statement to the police, Armón stated he had accidentally discharged his weapon after hearing the shot fired by Mobley. However, Holiday’s description of how the .223-caliber firearm operated challenged Armon’s accident theory. The jury was free to reject Armon’s account. Viewed in the light most favorable to the verdict, we cannot say that the evidence preponderates heavily against the jury’s decision to find Armón guilty of murder. Therefore, this issue is without merit.

B. Two-theory Jury Instimction

¶ 27. Armón asserts the circuit court erred by granting the State’s jury instruction setting out two theories of murder. Armón acknowledges that in Mallett, the Mississippi Supreme Court held that deliberate-design murder and depraved-heart murder were essentially the same. Mallett v. State, 606 So.2d 1092, 1095 (Miss.1992). Specifically, the supreme court stated:

There is no question that the structure of the statute suggests two different kinds of murder: deliberate design/premeditated murder and depraved heart murder. The structure of the statute suggests these are mutually exclusive categories of murder. Experience belies the point. As a matter of common sense, every murder done with deliberate design to effect the death of another human being is by definition done in the commission of an act imminently dangerous to others and evincing a depraved heart, regardless of human life. Our cases have for all practical purposes coalesced the two so that Section 97-3-19(l)(b) subsumes (l)(a).

Id. But Armón asserts that the logic behind the two types of murder being the same does not apply to his case because the State presented no evidence of his deliberate design to murder. Armón, therefore, contends that he was convicted of a crime different from that which was included in his indictment, in violation of his constitutional rights.

¶ 28. Armon’s argument is misplaced. As set forth in our discussion above, there was evidence from which the jury could conclude Armón was guilty of either deliberate-design murder or depraved-heart murder. Therefore, this issue lacks merit.

C. Closing Arguments

¶ 29. During the State’s rebuttal-closing argument, the prosecutor stated the following:

Do you remember I asked Patrick Holiday was this something you could easily conceal? No, because the thing is about a foot and a half long. Not like a handgun, ... that you could stick in your pants or stick in your pocket or hold under your arm. This thing is a machine pistol that [Armon’s] walking two blocks down, apparently in broad daylight, having made it fire ready. Again, actions that speak a lot louder than [Ar-mon’s] hollow words that it’s an accident, and [he] didn’t mean to. He approached this man who was sitting in his car....

¶ 30. Armón objected to the prosecution’s use of the word “approached.” But the circuit court overruled the objection. On appeal, Armón asserts he is entitled to a new trial because the prosecutor’s statement — that Armón approached Adagbo-nyn — improperly alleged facts that were not in evidence. He asserts this statement was “highly prejudicial” because it was the only suggestion of willful action by him.

¶ 31. The standard of review for alleged attorney misconduct during closing statements “is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Tate v. State, 20 So.3d 623, 629 (¶ 14) (Miss.2009) (citation omitted). Although “[attorneys are allowed a wide latitude in arguing their cases to the jury .... prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Id. (citation omitted). During closing arguments, an attorney may address “the facts introduced in evidence, deductions and conclusions he may reasonably draw therefrom, and the application of the law to the facts.” Ivy v. State, 589 So.2d 1263, 1266 (Miss.1991).

¶ 32. The prosecutor in this case stayed within these well-established boundaries. The statement that Armón “approached” Adagbonyn’s vehicle was a reasonable inference based on the evidence that Armón and Mobley left Holiday’s house and went to meet Adagbonyn. Therefore, this issue lacks merit.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . See Miranda v. Arizona, 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969).


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Albert ROBINSON Jr., Appellant v. Mozelle NEWSOME, Appellee.
    No. 2010-CP-01362-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.
    Rehearing Denied May 15, 2012.

      Albert Robinson Jr., appellant, pro se.
    Nancy M. Liddell, attorney for appellee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY AND FACTS

¶ 1. Mozelle Newsome and Albert Robinson Jr. had a son on May 19, 1999, named Allen Roy Robinson. Newsome and Robinson lived in Oakland, California, at the time but moved to DeSoto County, Mississippi, sometime in 2008. The parties never married but also had an older daughter who was approximately thirty-three years old at the time of trial. Newsome and Allen moved back to California in November 2009.

¶ 2. Robinson petitioned the DeSoto County Chancery Court for custody of Allen. A temporary order was entered awarding Newsome primary physical custody. After a trial on the merits, the chancellor awarded custody of Allen to Newsome. The chancellor also awarded Newsome attorney’s fees in the amount of $2,500. Robinson now appeals, asserting that the chancellor erred in awarding custody of Allen and attorney’s fees to New-some.

STANDARD OF REVIEW

¶ 3. The standard of review in child-custody cases is quite limited. In order to reverse the chancellor’s findings, the chancellor must be manifestly wrong, clearly erroneous, or have applied an erroneous legal standard. Hensarling v. Hensarling, 824 So.2d 583, 586 (¶ 7) (Miss.2002).

DISCUSSION

I. CUSTODY

¶ 4. In his first issue on appeal, Robinson argues the chancellor erred in awarding custody of Allen to Newsome. We first note that Robinson appeals pro se, and his brief does not contain any relevant law or any comprehensible argument. His brief also contains recitations of facts that were not before the chancellor; as such, we will disregard these assertions. “Even a pro se litigant is held to the same procedural and evidentiary requirements as individuals represented by counsel.” Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112,118 (Miss.1987). Regardless, appellate courts generally afford pro se litigants some degree of leeway on appeal. Kellar v. Miss. Employment See. Comm’n, 756 So.2d 840, 842 (¶ 6) (Miss.Ct.App.2000) (reviewing pro se litigant’s brief without supporting citations for “self-evident error for which no authority would be necessary”). We will review the record for any “self-evident” errors that need not be supported by citations.

¶ 5. After a full review of the record, we cannot find any error necessitating reversal. The chancellor reviewed all the child-custody factors under Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983), and determined that it was in Allen’s best interest to live with his mother. The chancellor discussed each factor thoroughly, and the record supports the chancellor’s determination. This issue is without merit.

II. ATTORNEY’S FEES

¶ 6. Again, Robinson fails to cite to any authority to support his assertion that he was unable to pay Newsome’s attorney’s fees. It is clear from his financial declaration that Robinson does have the means to pay part of Newsome’s attorney’s fees. It is also clear from the record that New-some did pay some of her attorney’s fees but was unable to pay the remainder. We find no merit to this issue.

¶ 7. THE JUDGMENT OF THE DeSO-TO COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.


author: ISHEE, J., MAXWELL, J., CARLTON, J.,

text:
    MISSISSIPPI BAPTIST HEALTH SYSTEMS, INC. d/b/a Mississippi Baptist Medical Center, Appellant v. Jonathan KELLY, individually and on behalf of all Wrongful Death Beneficiaries of Ellen Kelly, Deceased, Appellee.
    No. 2009-CA-01796-COA.
    Court of Appeals of Mississippi.
    Dec. 13, 2011.

      Michael B. Wallace, Jackson, Rebecca L. Hawkins, Eugene Randolph Naylor, Rex Morris Shannon III, attorneys for appellant.
    G. Joseph Diaz Jr., Christopher P. Williams, Dennis C. Sweet III, Jackson, attorneys for appellee.
   ISHEE, J.,

for the Court:

¶ 1. Mississippi Baptist Health Systems, Inc. d/b/a Mississippi Baptist Medical Center (Baptist), appeals the Hinds County Circuit Court jury award of $4,691,000 in favor of Jonathan Kelly and the estate of his wife, Ellen Kelly, for her wrongful death. The subject tort was committed in 2000, and the subsequent lawsuit was filed in 2001. Both occurred before the passage of Mississippi Code Annotated section 11-1-60 (Supp.2011), which capped non-economic damages in medical-malpractice lawsuits at $500,000 and actual economic damages at $1,000,000.

¶ 2. Baptist argues the following on appeal: (1) the verdict is inconsistent because the jury found the doctors who cared for Ellen were not at fault, yet the jury held the nurses and their employer, Baptist, were responsible for Ellen’s death; (2) portions of Ellen’s medical records were improperly excluded; (3) there was insufficient evidence of Ellen’s pain and suffering to support the award; (4) the verdict was contrary to the overwhelming weight of the evidence; and (5) the trial court’s award of 8% interest on the judgment was improper. Finding no errors, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Ellen was a twenty-nine-year-old attorney and mother of two sons, Adam O’Malley and Jacob Kelly, ages ten and two at the time of her death. She was married to Jonathan, and the family lived outside of Monticello, Mississippi. She was employed by the Mississippi Department of Human Services in the child-support-collection division. On July 10, 2000, Ellen was admitted to Baptist to undergo a hysterectomy and a partial vulvectomy, both of which were recommended by her gynecologist, Dr. Fred Ingram. Dr. Ingram had been Ellen’s obstetrician-gynecologist since 1997. He treated her throughout her second pregnancy and delivery, which included two hospitalizations at Baptist. She was hospitalized once during the early months of her pregnancy and again in 1998 for the Caesarean-section delivery of her second child.

¶ 4. On July 10, 2000, Dr. Ingram performed Ellen’s surgery with the assistance of his partner, Dr. Doug Odom. It is undisputed Ellen regained consciousness after the surgery. However, Jonathan’s expert physician, Dr. Eric Gershwin, testified Ellen experienced an allergic reaction to the latex she was exposed to during the surgery. She complained of itching, had blisters on her lips, redness of the face, and nausea following the surgery. She was given Benadryl for the itching and Phener-gan for the nausea and vomiting. Dr. Patricia Beare, a nursing expert, testified the administration of Benadryl was a possible sign of an allergic reaction.

¶ 5. Jonathan remained with Ellen throughout the afternoon and night following her surgery and spoke to her approximately every forty-five minutes. In the early morning, Jonathan heard Ellen making “gasping [and] gurgling sounds.” When she was unable to respond to Jonathan, he contacted her nurse. The nurse then called Dr. John Brooks, an emergency physician. Dr. Brooks immediately in-tubated Ellen. She had also developed ventricular tachycardia, a condition where the heart is unable to maintain its rhythm, and she lost her pulse. Due to the intubation, Ellen was unable to breathe on her own. Thereafter, she was placed on a ventilator and transferred to the intensive care unit (ICU) at Baptist. Ellen had no neurological function following cardiac arrest and never regained consciousness. The family elected to take her off the ventilator four days later, and she died on July 14, 2000.

¶ 6. Jonathan brought a wrongful-death action in the Hinds County Circuit Court. He claimed Ellen died of anaphylactic shock due to the doctors’ and Baptist’s negligent failure to discover Ellen was allergic to latex and to thereafter take proper precautions. He asserted Ellen died as a result of the latex allergy, which caused her cardiac arrest.

¶ 7. At trial, Jonathan introduced Baptist’s latex allergy policies and procedures. Those policies and procedures require that upon admission, “all patients should be assessed for [a] latex allergy.” The policy also provided that patients should be questioned about certain items which would indicate a patient was at a high risk of having a latex allergy. The “ABC Food Allergies (Avocado, Banana, Chestnuts)” are an example of one such risk. On the Pre-Procedure/Surgery Check List, prepared on July 3, 2000, by Nurse Debra Priester (Priester), Ellen’s allergies were listed as “sulfa, Lorcet, dairy products, seafood[,] and adhesive tape.” The listing “old chart sent with patient” was also marked with an “X.”

¶ 8. On a nursing admission history and assessment form, prepared a week before surgery, Ellen’s allergies were listed as “sulfa, Lorcet, all dairy products and seafood, adhesive on Band-Aids.” This form also included a subsection titled “Latex Allergy Alert” and listed various questions probing for a latex allergy. At the top of the form is the notation, “Notify MD if Yes.” A nursing expert testified this notation meant the physician should be notified if the patient answered affirmatively to any of the questions. The first question on the form asked whether “[patient] knows allerg[y] to latex.” Neither box was cheeked, but a dash was written beside “[n]o.” The second question asked whether “[patient] has ABC Allergy (Avocado, Banana, Chestnut).” “Chestnut” was circled and the “[y]es” box was checked. The next question asked whether “[patient] has had unexplained hypotension or anaphylaxis during [a] previous surgery”; neither box was checked. However, written in parentheses after the question was “had epi [and] spinal.”

¶ 9. Priester, the nurse who completed the form, testified the Latex Allergy Policy/Procedure for Baptist required a nursing assessment for each patient to minimize the risk of patients having an allergic or anaphylactic reaction to latex during a surgical procedure. The assessment intended to discover the patient’s known allergens to latex. According to the policy: “Patients included as high risk may include: ... ABC Food Allergies (Avocado, Banana, Chestnuts).” If a risk of a latex allergy was detected, the procedures required the nurse to indicate that risk on the assessment form. According to the protocol in Baptist’s Latex Allergy Policy/Procedure, if a known allergy or sensitivity to latex is identified in the patient’s admission history, an allergy sticker should be placed on the front of the patient’s chart, signage should be placed on the patient’s door, central supply and purchasing should be notified regarding any special supplies or products needed for the patient, and food and nutrition services should be notified to ensure servers would not wear latex gloves when serving the patient food.

¶ 10. Priester then testified regarding the form dated July 3, 2000. On the Latex Allergy Alert portion of the assessment regarding the question, “[patient] knows allerg[y] to latex,” Priester stated neither box was checked because Ellen did not tell her she had a latex allergy. However, she had just testified she did not have any independent knowledge of Ellen’s assessment completed some nine years before. When asked about the fact Ellen circled “chestnuts” as an allergy, Priester testified that in her opinion, “one item in and by itself would not have made her necessarily allergic.” According to the policy, if a patient is deemed “high risk” as Ellen was due to her chestnut allergy, a possible latex allergy may exist and the latex-allergy protocol should be followed. Priester said she did not follow the protocol because “[Ellen] did not have a latex allergy, so I did not notify a physician.” When asked if she notified Ellen’s doctors about a potential latex allergy, she replied: “No. [Ellen] did not give me any information about being allergic to latex.” On cross-examination, Priester testified she based her opinion that Ellen was not latex sensitive on her experience in the “nursing process.” She stated it was her interpretation of the latex-allergy procedure that she should only notify a doctor if the patient acknowledged she had a known allergy to latex.

¶ 11. To further his claim that an undetected latex allergy caused Ellen’s death, Jonathan introduced a nursing admission history and assessment form from Ellen’s admission to Baptist on October 15, 1997, during the early part of her second pregnancy. The form shows Ellen answered affirmatively to the question, “[patient] knows allergfy] to latex,” and she also noted a chestnut allergy. Rebecca Dawn Davis, the nursing clinical director for Baptist, testified regarding Baptist’s latex-allergy procedures. She said on the form dated July 10, 2000, the date of the surgery in question, Nurse Christine Lang noted on the form that she had sent the old chart to surgery. Davis testified the notation meant Ellen’s record from 1997, which showed she was allergic to latex, would have been part of the record for her surgery. Davis also stated Priester did not follow Baptist’s policies and procedures when she did not fill in an answer as to whether Ellen knew she was allergic to latex. Lang, Ellen’s pre-operation nurse, stated Ellen told her she was allergic to “sulfur, Lorcet, dairy products, seafood[,] and adhesive tape.” She testified she did not consult the form Priester filled out one week before the surgery to check for possible allergies.

¶ 12. A nursing expert, Dr. Beare, opined Baptist’s nurses breached their duty of care to Ellen. Dr. Beare based this conclusion on the fact the nurses received positive responses from Ellen on latex-allergy questions but did not report it to the doctors. Significantly, Dr. Gershwin, Jonathan’s main medical expert, testified that repeated exposure to latex worsens the reaction in an individual. He opined she developed the allergy during her previous surgeries in which latex products were used. According to Dr. Gershwin, Ellen suffered all the classic signs and symptoms of a latex allergy. The symptoms included itching, redness, blisters, and nausea. He concluded Ellen’s cardiac arrest was a result of her allergy to latex. Further, Dr. Gershwin testified Ellen displayed all the signs and symptoms of an anaphylactic reaction, specifically broncho-constriction, heat arrhythmia, respiratory arrest, and a severe drop in blood pressure. The nurses’ notes, written at various times, support his testimony and show Ellen experienced labored respirations and bi-lateral breath sounds with wheezes and rhonchi.

¶ 13. Ellen’s gynecologist, Dr. Ingram, and his partner, Dr. Odom, stated Ellen did not have an allergy to latex. Dr. Ingram testified he had been Ellen’s gynecologist since 1997. He said he treated her throughout her second pregnancy and Caesarean-section, all the while using various latex products, without any adverse reaction from Ellen. Dr. Ingram took a complete history from Ellen when she initially became his patient. Although she notified him of several allergies, he testified she never reported she had a latex allergy.

¶ 14. Dr. Ingram and Dr. Odom both testified they used their own files from their clinic instead of the hospital files for the surgery. They stated this was their standard practice. Dr. Ingram testified he had taken a complete history from Ellen, and there was no indication she was allergic to latex. He said he did not consult the hospital’s forms concerning Ellen’s allergies. Dr. Odom testified to the same.

¶ 15. Dr. Carroll McLeod, the anesthesiologist who treated Ellen at Baptist during her surgery, took a separate history from Ellen in which she indicated an allergy to adhesive tape. According to expert testimony, this indicates a possible latex allergy. However, Dr. Brooks, the emergency physician, testified, in his opinion, Ellen did not die of an adverse reaction to latex. He testified the itching was very common in post-operative patients who received morphine, as Ellen did.

¶ 16. Baptist called Dr. Richard DeSha-zo, an allergist at the University of Mississippi Medical Center in Jackson, as an expert witness. He had reviewed Ellen’s medical records, including the documents from her surgery. Dr. DeShazo concluded that Ellen did not have an allergy to latex and that she did not have an anaphylactic reaction to latex.

¶ 17. After hearing all of the testimony, the jury returned a verdict finding Baptist liable for Ellen’s death through the negligence of its nurses. The jury exonerated the doctors. It further held Baptist’s nurses were negligent by failing to notify the doctors of Ellen’s latex allergies and for failing to follow the hospital’s latex-allergy procedures. The jury awarded $516,000 to the wrongful-death beneficiaries and $4,175,000 to Ellen’s estate. The trial judge entered a final judgment on July 1, 2009, awarding an interest rate of 8% beginning on June 2, 2009, the date of the jury’s verdict. From this ruling, Baptist appeals.

DISCUSSION

¶ 18. The essential elements to establish a medical-malpractice claim are:

(1) the existence of a duty on the part of a physician to conform to the specific standard of conduct, (2) the applicable standard of care, (8) the failure to perform to that standard, (4) that the breach of duty by the physician was the proximate cause of the plaintiffs injury, and (5) that damages to the plaintiff resulted.

Patterson v. Tibbs, 60 So.3d 742, 753 (¶ 41) (Miss.2011) (quoting Estate of Northrop v. Hutto, 9 So.3d 381, 384 (¶ 9) (Miss.2009)).

I. INCONSISTENT VERDICT

¶ 19. Baptist argues it is entitled to a new trial because the jury’s verdict shows “inescapable inconsistency.” Under this argument, Baptist asserts that because the doctors had a duty to take a proper history from Ellen and the jury exonerated the doctors, the jury could not find the nurses were negligent for failing to follow hospital procedures regarding latex allergies.

¶ 20. Jonathan correctly asserts Baptist never raised this issue before the trial court; thus, we should not consider the argument on appeal. Case law clearly establishes “[ijssues not raised at trial cannot be raised on appeal.” Fitch v. Valentine, 959 So.2d 1012, 1021 (¶ 19) (Miss. 2007) (citation omitted). After a review of Baptist’s motion for a judgment notwithstanding the verdict or, alternatively, a motion for a new trial, we can find no instance where Baptist raised this issue before the trial court. In its reply brief on appeal, Baptist cites to a portion of one sentence as support for its position that the issue was placed before the trial court. That sentence fragment reads, “the jury[,] surmising that the physicians had not been properly informed[,] exonerated those physicians and casted [sic] [Baptist] in a sole fault contrary to Your Honor [sic], so we submit to the law and the facts.” Giving this statement a plain reading rather than the strained one urged by Baptist, we cannot find these few words and nothing more placed this issue before the trial court. Therefore, we conclude the issue is procedurally barred.

¶ 21. Procedural bar notwithstanding, we find there is nothing inconsistent in the verdict. The doctors and the nurses owed Ellen different duties. Thus, the jury's finding the doctors did not breach their duty of care but the nurses did breach their duty of care was consistent. Furthermore, the jury instructions enumerated the different duties.

¶ 22. Jury Instruction 15 set forth the duties the Baptist nurses owed to Ellen. The instruction advised the jury if they found the nurses did the following and that such negligence caused or contributed to injury or damage to Ellen bringing about her eventual death, then the jury was to return a verdict against Baptist:

(1) failed to properly assess or identify Ellen Kelly as at risk for latex allergy or sensitivity, if any, and/or
(2) failed to properly inform the treating physicians that Ellen Kelly was at risk for [a] latex allergy, if any, and/or
(3) failed to implement the Mississippi Baptist Medical Center’s Policies and Procedures in regard to latex allergies or sensitivity, if any

Thus, the jury was informed about the nurses’ separate duties. Those duties included the independent duty to assess Ellen for a latex allergy or sensitivity; the duty to notify the doctors of any allergy or sensitivity; and the duty to implement the latex-alert procedures of Baptist, which would ensure Ellen was not exposed to latex. Dr. Beare testified regarding the proper standard of care employed when assessing a patient for latex allergies; these duties are generally required and are not solely required by Baptist’s policies. Those duties include: reviewing past records; reviewing pre-admission assessments; thoroughly filling out admission forms; and, when necessary, notifying the doctor about potential allergies. Under the protocol of Baptist’s latex-alert procedures, the nurses were required to place an allergy sticker in Ellen’s chart and a sign on her door noting the latex allergy. The nurses were also required to notify central supply that all products used during Ellen’s operation must be latex free. These are separate duties from those required of the doctors who performed Ellen’s surgery. Dr. Beare testified Baptist’s nurses breached these independent duties on a variety of occasions.

¶ 23. The doctors owed a different set of duties to Ellen, which were outlined in several jury instructions. Jury Instruction 18 prescribed one set of the duties owed to Ellen by Dr. Ingram and Dr. Odom. That instruction informed the jury the doctors were negligent if they:

(1) failed to obtain a complete clinical history and identify Ellen Kelly as at risk for latex if any, and/or
(2) failed to properly diagnose that Ellen Kelly suffered from a latex allergy or sensitivity, if any, and/or
(3) failed to take precautions for Ellen Kelly’s latex allergy or sensitivity, if any, and/or
(4) failed to diagnose the allergic reaction to latex products, if any

¶24. Jury Instruction 19 advised the jury to find the doctors negligent if the evidence showed:

Dr. Fred Ingram and/or Doug Odom in their care and treatment of Ellen Kelly failed to exercise that degree of reasonable diligence, skill, care, competence, and prudence ordinarily exercised by minimally-eompetent physicians throughout the United States in like and similar circumstances, then Dr. Ingram and/or Dr. Odom were negligent. If you further find that said negligence, if any proximately caused, or proximately contributed to cause, injury to Ellen Kelly, and her eventual death, then you should return a verdict in favor of the Kelly family against Dr. Fred Ingram and Ob-Gyn Clinic of Jackson, PLLC and/or Dr. Doug Odom [of the] Ob-Gyn Clinic of Jackson and assess their damages, if any.

¶ 25. Jury Instruction 21 explained the standard of care and skill applicable to physicians. That instruction further stated if the jury found the doctors acted with “such reasonable diligence, skill, competence[,] and prudence as is practiced by minimally competent obstetricians and gynecologists throughout the United States who had available to them the same general facilities, services, equipment[,] and options as Dr. Ingram and Dr. Odom had on July 10, 2000”; then the doctors complied with the requisite standard of care in treating Ellen, the doctors’ care did not proximately cause her death, and the jury should find in favor of the doctors.

¶ 26. Baptist argues the nurses’ failure to conform to the appropriate standard of care did not proximately cause Ellen’s death because the doctors admitted they performed their own assessment of Ellen and used their own charts during surgery. However, the nurses were required to take other precautions outside of making notations within the chart. The nurses should have placed a sign on' her door and a sticker on her chart noting the allergy, among other duties. Additionally, Dr. Beare testified that under the proper standard of care, if the nurse noticed a latex allergy was indicated on the form, the nurse should have informed the doctor. Dr. Gershwin testified on cross-examination he had sympathy for the doctors. He stated:

They depended on the nursefs]. The nurse[s] let them down at Baptist Hospital. The doctors then used latex products .... So unwittingly, they were pulled into this. Yes. They should have been aware of her history before. She filled it out and they gave it, but the gatekeeper was in fact the Baptist Hospital.

There is no evidence to suggest that had the nurses followed the proper standard of care and placed a sticker on the chart or notified the doctors about Ellen’s latex allergy the doctors would not have heeded their warnings. Because the jury found the nurses had not informed the doctors of the allergy, it is consistent that the jury also found the doctors had no notation of Ellen’s allergy to latex in the record. Baptist’s policy made the nurses the gatekeepers for patients’ allergies by developing a latex-allergy policy and requiring the nurses to conduct a latex-allergy assessment prior to a patient’s surgery. Considering the decision to assess fault is one for the jury, we find no error in its assessment of fault to Baptist and not to the doctors. Accordingly, this issue is without merit.

II. EXCLUDED PORTIONS OF MEDICAL RECORDS

¶ 27. We review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard. Whitten v. Cox, 799 So.2d 1, 13 (¶ 27) (Miss.2000). Baptist argues Ellen’s medical records from her prior hospitalizations should not have been excluded from evidence. Baptist sought to introduce Ellen’s records from King’s Daughters Hospital-Brookhaven for admissions dated September 11, 1989; June 28, 1999; April 13, 1998; and September 3, 1994. Baptist also sought to introduce the records of Dr. Joseph S. Moak of Brookhaven, records from a 1989 Caesarean section at King’s Daughter’s Hospital-Brookhaven, and records from emergency room visits from 1994 and 1999, which were intended to show that Ellen did not have an allergic reaction to alleged latex exposure.

¶ 28. The trial judge found the documents were not relevant because Baptist offered nothing to show Ellen was exposed to latex during any of these medical visits nor did it offer any expert testimony about Ellen’s latex exposure during those visits. Importantly, the medical records from six of Ellen’s hospitalizations at Baptist were placed in evidence. The records began in October 1997 and continued through her final hospitalization on July 14, 2000. The trial judge allowed Baptist to mark the records for identification purposes and to use them when questioning witnesses. We find the trial judge did not abuse his discretion. Accordingly, this issue is without merit.

III. ASSESSMENT OF DAMAGES

¶ 29. In its next claim, Baptist makes several arguments against the jury’s assessment of damages, ultimately asserting a new trial should be held on damages. Baptist argues the following three main issues: (1) the jury incorrectly assessed the value of household services; (2) the jury incorrectly assessed Ellen’s medical expenses, funeral expenses, and compensation for Ellen’s physical and emotional pain and suffering; and (3) the anesthesiologist, Dr. McLeod, should have been listed as a responsible party on the jury’s damage form because he bore “potential responsibility” for Ellen’s injuries.

¶ 30. Mississippi’s wrongful-death statute allows recovery of damages in the amount the jury determines to be just, taking into consideration all damages of every kind to the decedent and all damages of every kind to any and all interested parties in the suit. Miss.Code Ann. § 11-7-13 (Rev.2004). This statutory language provides for (1) medical and funeral costs; (2) the present net cash value of the life expectancy of the deceased if older than the beneficiaries; (3) the loss of the companionship and society of the decedent; (4) the pain and suffering of the decedent between the time of injury and death; and (5) punitive damages, when appropriate. See Jesco, Inc. v. Whitehead, 451 So.2d 706, 710 (Miss.1984); Sheffield, v. Sheffield, 405 So.2d 1314, 1318 (Miss.1981).

¶ 31. “It is primarily the province of the jury ... to determine the amount of damages to be awarded!,] and the award will normally not be ‘set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount!,] and outrageous.’” Estate of Jones v. Phillips ex rel. Phillips, 992 So.2d 1131, 1150 (¶ 50) (Miss.2008) (quoting Foster v. Noel, 715 So.2d 174, 183 (¶ 56) (Miss.1998)). However, this Court may order a new trial if we find the damages are “excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence.” Miss. Code Ann. § 11-1-55 (Rev.2002).

¶ 32. Finally, all three of Baptist’s challenges to the damages awarded involve jury instructions; thus, we state the familiar standard of review that the instructions must be read as a whole. Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1054 (¶ 6) (Miss.2003). Once the jury has returned a verdict, we will not direct judgment be entered to the contrary unless we find, given the evidence as a whole and taken in the light most favorable to the verdict, no reasonable hypothetical juror could have found as the jury found. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 478 (¶ 5) (Miss.2000). However, an instruction need not be given that incorrectly states the law, is covered fairly in another instruction, or is without foundation in the evidence. Heidel v. State, 587 So.2d 835, 842 (Miss.1991) (citations omitted).

A. VALUE OF HOUSEHOLD SERVICES

¶33. First, Baptist argues Jonathan provided no evidence regarding the actual value of Ellen’s household services. Baptist makes this argument despite the fact it cross-examined Jonathan’s expert on the value of Ellen’s household services.

¶ 34. As with all damages, Jonathan bore the burden of showing the amount of the loss of Ellen’s household services. Puckett Mach. Co. v. Edwards, 641 So.2d 29, 36 (Miss.1994). James Elbert Bivins, a Jackson CPA who specializes in valuation analysis, testified as an expert regarding the value of Ellen’s household services. Baptist did not object to Bivins testifying. Bivins explained the physical activities a mother does for her family, such as cleaning the house, traveling, buying groceries, and taking care of the children, can be quantified. He used federal government statistics and considered inflation in arriving at his figure.

¶ 35. Bivins testified Ellen was twenty-nine-years old when she died and had a life expectancy of seventy-four years. He also considered the fact she provided care to her two small children. However, he adjusted his figures to take into account less care would be required as the children aged. Bivins testified the appropriate figure for the loss of her household services was $992,109. Baptist offered no expert testimony to dispute Bivins’s figure. As with all witnesses, the jury was entitled to believe or disbelieve Bivins’s testimony. See Indep. Life & Acc. Ins. Co. v. Mullins, 252 Miss. 644, 651, 173 So.2d 663, 665 (1965). In this instance, the jury chose to believe the expert. We find no error in the jury’s valuation of the household services.

B. MEDICAL EXPENSES, FUNERAL EXPENSES, AND COMPENSATION FOR PHYSICAL AND EMOTIONAL PAIN AND SUFFERING

¶ 36. Baptist argues Jonathan provided no substantial evidence of Ellen’s conscious pain and suffering. Baptist does not dispute the jury award for Ellen’s funeral and medical expenses totaling $29,604.52. As previously discussed, expert testimony established the family lost $992,109 for the value of Ellen’s household services. Dr. Glenda Glover, dean of the business college at Jackson State University, who is also a certified public accountant and attorney, testified regarding the amount of Ellen’s lost wages. Using wages from the year of Ellen’s death and considering her work-life expectancy, Dr. Glover testified Ellen’s future lost wages totaled $1,415,881. Baptist did not offer any expert testimony to dispute this figure.

¶ 37. The actual damages awarded include: $29,604.52 for funeral and medical expenses; $992,109 for the loss of Ellen’s household services; and $1,415,880 for Ellen’s lost wages. Therefore, the actual damages awarded totaled $2,437,934.52. The total amount of the damages awarded by the jury totaled $4,691,000. Thus, the jury awarded $2,253,065.48 for pain and suffering.

¶ 38. As previously stated, Mississippi’s wrongful-death statute allows for recovery of damages by the survivors for the pain and suffering of the decedent from the time of injury until their subsequent demise. Baptist cites M & M Pipe & Pressure Vessel Fabricators, Inc. v. Roberts, 531 So.2d 615, 621 (Miss.1988), as support for the proposition the plaintiff has the burden of proving survival and consciousness after the wrongful injury and the burden is not sustained “unless there is ‘substantial proof of consciousness after the [injury].” Baptist claims Jonathan submitted no evidence to show Ellen ever regained consciousness. Case law states pain and suffering damages are measured from “the time of injury and death[.]” McGowan v. Estate of Wright, 524 So.2d 308, 311 (Miss.1988). Baptist incorrectly states the “time of injury” was “the time between her cardiorespiratory arrest/resuscitation on July 11, 2000, and her death four days later.” Clearly the “injury” was the surgery during which she was exposed to latex. It is uncontradicted that Ellen regained consciousness after the surgery. The jury found during this period that she suffered an allergic reaction, which included itching, redness of the face, blisters on the lips, and nausea. As her reaction progressed, she struggled to breathe due to the anaphylactic reaction. The reaction caused Ellen’s bronchoconstriction, heart arrhythmia, respiratory arrest, and a severe drop in blood pressure. There is no doubt she suffered physical agony and mental anguish as she struggled to breathe. In fact, she had to be intubated in order to breathe. She also experienced heart arrhythmia, which is typically characterized by severe chest pain. As her reaction continued, the flow of blood to her brain decreased, which led to extreme swelling of her brain and ultimately a brain stroke and infarction. She remained in the ICU for four days until her family decided to end her suffering and disconnect the ventilator.

¶ 39. “Awards fixed by jury determination are not merely advisory and will not under the general rule be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount[,] and outrageous.” Jack Gray Transp., Inc. v. Taylor, 725 So.2d 898, 899 (¶ 5) (Miss.1998) (citations omitted). Our courts have repeatedly recognized the amount of damages awarded is primarily a question for the jury. S. Cent. Bell Tel. Co. v. Parker, 491 So.2d 212, 217 (Miss.1986).

¶ 40. Furthermore, Jonathan points out the amount for pain and suffering is less than the actual damages. The Mississippi Supreme Court has upheld damages with far greater disparities than the award in this case. Estate of Jones v. Phillips, 992 So.2d 1131, 1150 (¶ 52) (Miss.2008) (upholding a $5,000,000 verdict and finding although economic damages only totaled $440,511.46, the amount of the verdict was not so excessive as to shock the conscience); Gatewood v. Sampson, 812 So.2d 212, 223 (¶¶ 25-27) (Miss.2002) (upholding jury verdict of $308,000 in compensatory damages although proof of lost wages and medical expenses only totaled $8,002.50); Dorrough v. Wilkes, 817 So.2d 567, 575 (¶ 30) (Miss.2002) (upholding jury verdict of $1,500,000 although medical fees and loss of services only totaled $339,000).

¶ 41. It is clear Ellen was conscious after her surgery and experienced significant pain and suffering. The jury heard the testimony and rendered damages for pain and suffering in the amount of $2,253,065.48. We do not find the amount outrageous or unreasonable; therefore, we find this issue is without merit.

C. DR. MCLEOD, ANESTHESIOLOGIST, AS A RESPONSIBLE PARTY

¶ 42. Baptist argues the trial court erred by not allowing Dr. McLeod, Ellen’s anesthesiologist, to be listed as a responsible party for the jury to consider in awarding damages. However, there was no testimony even offered to suggest Dr. McLeod had deviated from the standard of care and proximately caused Ellen’s death. In order to have an instruction granted, there must be some supporting evidence presented. Canadian Nat’l Ill. Cent. R. Co. v. Hall, 953 So.2d 1084, 1101 (¶ 62) (Miss.2007). Furthermore, Baptist never offered an instruction at trial that would have allowed the jury to find Dr. McLeod partially liable. Baptist did proffer a proposed instruction that would have added a blank space where the jury could have assessed fault “as to other parties not present.” However, the trial court denied the jury instruction. We find no merit to this argument.

IY. MOTION FOR A NEW TRIAL

¶ 43. Baptist claims it is entitled to a new trial because the jury’s verdict exhibits bias, passion, prejudice, and confusion all contrary to the overwhelming weight of the evidence. Baptist cites a portion of Poole ex rel. Poole v. Avara, 908 So.2d 716, 726-27 (¶ 25) (Miss.2005) for the familiar standard used by an appellate court to determine if a new trial is appropriate. The Mississippi Supreme Court stated:

A new trial may be granted in a number of circumstances, such as when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath[,] and its verdict is a result of bias, passion, and prejudice.

Id. (quoting Shields v. Easterling, 676 So.2d 293, 298 (Miss.1996)). However, Baptist fails to cite the rest of the quote from Poole, which reads:

This Court will reverse a trial judge’s denial of a request for new trial only when such denial amounts to an abuse of that judge’s discretion. The existence of trial court discretion, as a matter of law and logic, necessarily implies that there are at least two differing actions, neither of which if taken by the trial judge will result in reversal.

Id.

¶ 44. Baptist claims the jury was confused when it awarded the amount of damages for pain and suffering. Baptist uses a note passed to the trial court by the jury to support its argument. The note reads: “The first question is, how are we to determine the amount for each family member? And the second question is, can we say that the children get this and husband gets this?” The trial court correctly told the jury to follow the instructions it had been given. There is nothing in the final judgment award by the jury that shows any confusion.

¶ 45. Baptist also asserts the verdict is against the overwhelming weight of the evidence. However, we find Jonathan presented two qualified medical experts who outlined the standard of care and testified regarding Baptist’s nursing staffs failure to conform to that standard of care. This issue is without merit.

V. INTEREST RATE

¶ 46. In their final issue on appeal, Baptist challenges the interest rate awarded on the judgment. Baptist argues the trial court erroneously awarded interest at the rate of 8% per annum, compounded annually, to accrue as of June 2, 2009, the date of the verdict. Baptist also disputes the interest rate of 8%. Baptist argues when the interest rate is applied to the judgment amount of $4,691,000, the interest accrues at $1,028.16 per day. This means in the twenty-nine days between the jury’s verdict and the entry of final judgment, interest accrued in the amount of $29,816.76. Baptist states that before a final and appealable judgment was entered on October 18, 2009, the interest amount had climbed to $137,774.03.

¶47. Baptist challenges the date on which interest should have begun to accrue. Baptist argues the trial court erroneously awarded “interest at a rate of 8 percent (%) per annum, compounded annually, beginning to accrue as of June 2, 2009.” Baptist claims the jury verdict was returned on June 2, 2009, and Baptist moved to amend the interest portion of the judgment on July 8, 2009. Thus, the judgment did not become final and appealable until the trial court denied Baptist’s motion on October 14, 2009. Baptist claims the trial court erred when it awarded prejudgment interest retroactively to the date of the judgment.

¶ 48. Mississippi Code Annotated section 75-17-7 (Rev.2009), governs the application of interest rates to judgments. That section provides:

All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.

Miss.Code Ann. § 75-17-7 (emphasis added).

¶ 49. Baptist claims while section 75-17-7 requires a judgment to bear interest, the statute also requires the trial court to be fair in its assessment of interest. Baptist argues: “It is simply not fair for a[c]ir-cuit [cjourt to order the accumulation of a massive amount of interest while the [cjourt itself fails to enter an appealable judgment.”

¶ 50. The purpose of an award of interest is to make the aggrieved plaintiff whole, that is, to fully compensate the party. 47 C.J.S. Interest & Usury § 12 (2005). “Additionally, statutory interest guarantees that the successful plaintiff will receive prompt payment, and prevents the judgment debtor from profiting at the expense of the plaintiff.” Id. Stated another way, “[ijnterest on a monetary award is designed to compensate for the loss that results when a claimant is deprived of the use of money to which she was entitled from the moment that liability was determined.” 44B Am. Jur. 2d Interest and Uswry § 38 (2007). Traditionally, the supreme court has allowed interest to run from the date of the tort. See Phillips Distribs., Inc. v. Texaco, Inc., 190 So.2d 840, 842 (Miss.1966) (Texaco assessed interest on the judgment from the date of the tort of conversion.). Furthermore, the statute provides the only limit regarding the time when interest can be awarded is that it can “in no event [be] prior to the filing of the complaint.” Miss.Code Ann. § 75-17-7. Thus, the trial court could have allowed the interest to begin anytime after the date on which the complaint was filed, August 31, 2001.

¶51. Next, Baptist disputes the percentage of interest awarded, stating the trial court abused its discretion in awarding 8% interest. Baptist notes prior to its amendment in 1989, section 75-17-7 required a judgment interest rate of 8%, but now the rate is left to the trial court’s discretion. Baptist argues the trial court should not “blindly rely” on the previous rate.

¶ 52. Baptist points out that federal judgments pursuant to 28 U.S.C. section 1961(a) (2006) bear interest calculated from the date of the entry of the judgment, at a rate equal to the weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System for the calendar week preceding the judgment. Indeed, Baptist asserts the interest rate using the federal figures on June 26, 2009, was 0.48%. Further, Baptist claims the prime rate on the date of the entry of the judgement according to the Federal Reserve Selected Interest Rates was 3.25%.

¶ 53. Nonetheless, the right to post-judgment interest is a statutory right and within the discretion of the ruling judge. U.S. Fid. & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So.2d 38, 50 (¶ 38) (Miss.2002). Section 75-17-7 provides that interest “shall” be awarded. In Houck v. Ousterhout, 861 So.2d 1000, 1003 (¶ 14) (Miss.2003), Timothy Houck argued interest on child support arrearages at 8% “does not appear to be fair in today’s economy.” The supreme court rejected that argument and upheld the chancellor’s discretion in determining the rate of interest. Id. at (¶ 15). See Adams v. Adams, 591 So.2d 431, 436 (Miss.1991) (appellate court found chancellor erred in not awarding interest on past-due child support and court assessed interest at 8%).

¶ 54. As such, we cannot agree with Baptist’s argument that 8% interest was “simply not fair” and an abuse of discretion. Accordingly, we find no error in the trial court’s award of interest at the rate of 8% to run from the date of the jury verdict. This issue is without merit.

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

LEE, C.J., IRVING, P.J., ROBERTS AND RUSSELL, JJ., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS, J., AND JOINED IN PART BY ISHEE, J. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. GRIFFIS, P.J., MYERS AND BARNES, JJ., NOT PARTICIPATING.

MAXWELL, J.,

specially concurring:

¶ 56. I agree with the result reached by the majority but write separately to address my reasons for doing so.

I. The Jury’s Verdict

¶ 57. Like most cases alleging negligence on the part of doctors and nurses engaged in professional services, this case is replete with conflicting expert testimony concerning causation. While there is certainly room for disagreement with the jury’s ultimate evaluation of the disputed evidence, the task of wading through competing expert testimony and resolving conflicting factual evidence falls properly within the jury’s province-not an appellate court’s. In performing its role as the fact-finder, a jury is “free to accept or reject any or all of the testimony and evidence presented.” Johnson v. St. Dominics-Jackson Mem'l Hosp., 967 So.2d 20, 23 (¶ 11) (Miss.2007). So long as opinion testimony is properly admitted, an appellate judge’s hands are largely tied, particularly in making credibility assessments.

¶ 58. Before the jury began its deliberations, the circuit judge instructed the jury:

You should consider each expert opinion received into evidence in this case, and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that a reason given in support of the opinion is not sound, or that the opinions are outweighed by other evidence, then you may disregard the opinion entirely.

¶ 59. Baptist does not claim this instruction was in error or that the jury was otherwise improperly instructed about how it should size up each expert’s opinion. Instead, Baptist essentially argues it presented medical experts in a greater quantity and quality (treating-physicians versus non-treating) than Jonathan Kelly. But the mere number of experts offered is by no means a controlling factor. See Univ. Med. Ctr. v. Martin, 994 So.2d 740, 748 (¶ 33) (Miss.2008) (holding the findings of the trial judge, sitting as fact-finder, would not be disturbed “merely for adopting the testimony of one party’s [single] expert while disregarding that of the other party’s [four] experts”). Jurors are certainly free to accept or reject expert testimony as they see fit, even if that means rejecting a host of experts, in the face of a lone contradictory opinion. Apparently, such was the case here, as the jury chose to accept Jonathan’s medical-causation expert over Baptist’s. Perhaps the jury was skeptical of the opinions of treating physicians, who were also seated at the defense table. But such speculation on our part is unnecessary, since Jonathan’s expert was duly qualified and had reviewed Ellen Kelly’s medical records before opining that she died from anaphylactic shock, in reaction to exposure to latex. While the dissent claims the medical evidence outweighs this opinion, a reviewing court should not supplant a jury’s decision when it is supported by substantial evidence. Thus, I find we are restrained to interfere in this instance.

II. Jury Instruction 15

¶ 60. Baptist and the dissent take issue with jury instruction 15, claiming it was given in error and caused a great injustice by misstating the law. After a close examination of this jury instruction and considering our required standard of review, I have no option but to disagree. Jury instruction 15 did not, as the dissent suggests, permit the jury to find Baptist hable solely though its nurses’ violations of hospital policy. Instead, it instructed the jury that if it found the nurses failed in any of the following — (1) to properly assess Ellen’s risk for latex allergy, if any; (2) to properly inform the treating physicians of Ellen’s risk for latex allergy, if any; or (3) to implement Baptist’s polices and procedures in regard to latex allergies, if any— and further if the jury found the failure(s) constituted negligence “as that term is defined elsewhere in theses instructions, and that this negligence, if any, caused, or contributed to cause, injury or damage to Ellen,” then the jury should return a verdict against Baptist.

¶ 61. Precedent clearly instructs that appellate courts do “not review jury instructions in isolation[.]” Instead, reviewing courts are required to “read [them] as a whole to determine if the jury was properly instructed.” O’Flynn v. Owens-Corning Fiberglas, 759 So.2d 526, 531(6) (Miss.Ct.App.2000) (quoting Lovett v. Bradford, 676 So.2d 893, 896 (Miss.1996)). So here we are tasked with considering jury instruction 15 in tandem with jury instruction 10 — the companion “negligence” instruction referenced in jury instruction 15. An objective review of jury instruction 10 reveals that it neither defines “negligence” as a failure to follow internal hospital procedures nor states that a regulatory violation amounts to negligence per se. Rather, jury instruction 10 reads:

[T]he word “negligence” as used in the instructions of the Court means the doing of something that a reasonably prudent, minimally competent nurse or physician, as the case may be, would not have done under the same or similar circumstances, or the failure to do something which a reasonably prudent, minimally competent nurse or physician, as the case may be, would have done under the same or similar circumstances.

See Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 665-66 (¶24) (Miss.2002) (noting that a violation of an internal regulation, while not creating a separate cause of action, “may serve as evidence of negligence”); see also Quijano v. United States, 325 F.3d 564, 568 (5th Cir.2003) (applying Texas law) (Though “hospital rules alone do not determine the governing standard of care[,]” the “hospital’s internal policies and bylaws may be evidence of the standard of care[.]”); Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 713 n. 22 (5th Cir.1981) (noting plaintiffs proper use of internal regulation “only as evidence of negligence, which the trier of fact ‘may accept or reject as it sees fit’ ”) (citing W. Prosser, The Law of Torts s 36, at 201). When read as a whole, I am simply unable to find the jury instructions misstated the proper negligence standard.

¶ 62. And reading beyond jury instruction 15 allays any concern that the instructions improperly transferred the doctors’ non-delegable duties to Baptist’s nurses. The dissent argues that, because Dr. Odom and Dr. Ingram had non-delegable duties to take Ellen’s patient history, the circuit court committed reversible error by instructing the jury about Baptist’s duty to Ellen.

¶ 63. But the jury was instructed to consider both the doctors’ non-delegable duties as Ellen’s treating physicians as well as Baptist’s duties. Jury instruction 14 described the separate claims Jonathan had brought against Baptist and the two doctors. The jury was given separate instructions to determine duty and breach of that duty by Baptist (jury instruction 15) and duty and breach of that duty by the doctors (jury instruction 18). Aided by expert testimony about what a reasonably competent nurse working for a hospital would have done and what a reasonable competent physician would have done, the jury separately considered: (1) whether the nurses negligently failed to assess for a latex allergy, to inform the physician about a latex allergy, and/or to implement procedures regarding latex allergies; and (2) whether the two physicians negligently failed to complete a clinical history, to diagnose a latex allergy and allergic reaction, and/or to take proper precautions against latex allergy. That the jury’s separate considerations led to separate conclusions — that Baptist was liable, but the doctors were not — was within their purview.

¶ 64. Jonathan’s theory of liability was not that the doctors should be vicariously liable for the nurses’ actions performed on behalf of the doctors. Instead, jury instruction 14 states the nurses were working within the course and scope of their employment with Baptist, not the doctors. Thus, it was not inconsistent to hold that the nurses were negligent but the treating physicians were not. Cf. Sacks v. Necaise, 991 So.2d 615, 619 (¶ 9) (Miss.Ct.App.2007) (holding doctor vicariously liable for administration of chemotherapy drugs by nurse under doctor’s supervision and performing non-delegable duty of doctor).

¶ 65. For these reasons, I specially concur with the majority’s decision that the jury’s verdict should not be disturbed.

ROBERTS, J., JOINS THIS OPINION. ISHEE, J., JOINS THIS OPINION IN PART.

CARLTON, J.,

dissenting:

¶ 66. Finding that the evidence lacks proof of medical causation, I respectfully dissent from the majority’s opinion as I would reverse and render. Further, the trial judge committed reversible error by improperly instructing the jury on the law. Alternatively, at the very least, I would reverse the final judgment and remand this case for a new trial on the merits in light of the error in the jury instructions.

¶ 67. Physicians bear the duty to ascertain the proper medical history of a patient and the responsibility to confirm any medical history taken for him by another medical provider under his supervision, or taken under his authority to fulfill his or her treatment responsibilities. See generally Hall v. Hilbun, 466 So.2d 856, 871 (Miss.1985) (superseded by statute). This duty goes to the core of the error in the jury instructions and the sufficiency of the evidence of negligence in the present case. I submit that the evidence presented in this medical-malpractice case at trial must first establish that a duty was owed to the patient and by whom the duty was owed. The evidence must show that such duty was breached, and the jury must be properly instructed as to whom the duty belonged.

¶ 68. The duty to ascertain an accurate patient history constitutes a non-delegable duty of the treating physician. The physician must confirm the patient’s medical history collected for his treatment, and the physician may not escape liability or the responsibilities of this medical duty by delegating the duty to ascertain and confirm an accurate medical history to a medical provider collecting such history for him. The record shows that Debra Priester, a nurse at Baptist, conducted Ellen Kelly’s pre-operative admission history and assessment on July 3, 2000, a week prior to Ellen’s admission into the hospital for surgery. Nurse Priester prepared the Pre-Procedure/Surgery Check List and listed Ellen’s allergies as sulfa, Lorcet, dairy products, seafood, and adhesive tape. On the Nursing Admission History and Assessment form, Ellen’s allergies were listed as sulfa, Lorcet, all dairy products and seafood, and adhesive on band-aids. The section on this form entitled, “Latex Allergy Alert,” listed several questions related to latex allergies inquiring as to whether the patient possessed a known allergy to latex or possessed an allergy to three items indicating a potential latex allergy to wit: avocados, bananas, or chestnuts. The form reflected that Ellen possessed an allergy to chestnuts. However, Nurse Priester failed to notify the treating physicians, Dr. Fred Ingram and Dr. Doug Odom, that Ellen responded yes to an allergy to chestnuts. This constitutes the crux of Jonathan Kelly’s case of negligence. However, even if Nurse Priester failed to notify Dr. Ingram and Dr. Odom as to Ellen’s allergy to chestnuts, the treating physicians possessed a non-dele-gable duty to confirm Ellen’s medical history. I submit that if the treating physicians had reviewed Ellen’s medical history obtained by the hospital which showed a known allergy to chestnuts, an apparent indicator of potential latex allergy, then they would have possessed a duty to confirm the medical history with Ellen to ascertain an accurate history. In this case, the failure of Nurse Priester to take the extra precaution fails to constitute medical causation since the treating physicians, Dr. Ingram and. Dr. Odom, did not review or rely on the medical history obtained by Nurse Priester for the hospital.

¶ 69. Regarding a physician’s non-dele-gable duty of care, the Mississippi Supreme Court has held:

In the care and treatment of each patient, each physician has a non-delegable duty to render professional services consistent with that objectively ascertained minimally acceptable level of competence he may be expected to apply given the qualifications and level of expertise he holds himself out as possessing and given the circumstances of the particular case. The professional services contemplated within this duty concern the entire caring process, including but not limited to examination, history, testing, diagnosis, course of treatment, medication, surgery, follow-up, after-care and the like.

Hall, 466 So.2d at 871.

¶70. In applying the law to the duty owed in this case, I must address the trial court’s error in instructing the jury on the law in this regard. I submit that Jury Instruction 15, given by the trial court over Mississippi Baptist Medical Center’s (Baptist) objection, causes a great injustice in this case by misstating the law as to applicable duties of standard of care by allowing the jury to find liability for a violation of a hospital policy and in transferring responsibility of the physician’s non-delegable duty of treatment to a nurse. While I agree that nurses certainly should notify the treating physician of any potential risks or indications raised by the medical history provided by the patient, I submit that the treating physician bears the ultimate responsibility to confirm the medical history with the patient and may not transfer this responsibility to the nurse that took the patient’s medical history. I will now turn to the application of these duties to the evidence in this case.

¶ 71. Two glaring deficiencies compel me to conclude that the evidence lacks proof of medical causation. First, the evidence shows that even if the nurses at the hospital were negligent in assessing the patient’s medical history, the treating physicians, Dr. Ingram and Dr. Odom, did not review or use the medical history obtained by Nurse Priester. Instead, these physicians used Ellen’s medical history from their own clinical practice and their past physician-patient relationship with Ellen. Second, with respect to the physical cause of death, I find the record in this case fails to show physical medical evidence that supports expert opinion that Ellen suffered an anaphylactic reaction resulting from an allergy to latex. I will briefly explain these two identified deficiencies separately.

¶ 72. With respect to the deficiency in medical causation pertaining to the nurse’s negligence, the nurses employed by Baptist gave the physicians Ellen’s complete medical records, including information that Jonathan Kelly’s experts contended should have alerted them to the possibility of a latex allergy. However, the treating physicians, Dr. Ingram and Dr. Odom, did not review the records provided by Baptist; instead, they relied on their own clinical history with Ellen, as well as their lengthy physician-patient experience with Ellen. Both Dr. Ingram and Dr. Odom testified that Ellen possessed no latex allergy, and they ordered no latex precautions. Therefore, any negligence by the nurses at Baptist in taking Ellen’s medical history could not have proximately caused her tragic death. Also relevant to the issue of causation, the trial court erred by instructing the jury that Baptist could be held liable solely on a finding that the nurses violated the internal hospital policy because of the intervening issue that both Dr. Ingram and Dr. Odom did not review Ellen’s medical histories taken by the hospital and also because the internal hospital policy fails to define the applicable standard of care.

¶ 73. Second, the only symptom that Ellen exhibited that indicated a potential allergic reaction to latex was itching. All of the other physical findings and tests measuring Ellen’s various body gas levels, sodium serum levels, oxygen levels, air way or broncho-constriction, and other physical conditions, as set forth in the record, fail to support the existence of an allergic reaction rising to the level of an anaphylactic reaction as Ellen’s cause of death. Certainly a jury can choose between experts, but the then-existing medical test results and physical medical conditions remain the same. While experts may battle on the interpretation of those various results and conditions, their interpretations must be supported by some evidence.

¶74. Instead, the record shows that Ellen experienced cardiac arrest, a good oxygen level, no wheezing, and no evidence of blueness in her nail beds. She did, however, show other signs including an alarming bicarbonate level. Defense experts testified as to their interpretation of the physical findings and indicators arising from test results of Ellen’s bodily functions, tissues, levels, and gases. The defense experts testified that the bicarbonate level affects the heart’s ability to work properly, and the experts testified that the brain swelling was due to a rapid drop in serum sodium levels. The defense experts further testified that Ellen’s brain swelling caused her brain to push downward on the swollen brain tissue, which impinged the functions of the brain that control respiration, causing Ellen to stop breathing. Whether Ellen’s tragic death resulted from such ultimate cause lies beyond the scope of.this Court’s appellate review, except to opine that such interpretation is supported by the evidence, whereas the testimony that her tragic death resulted from an anaphylactic reaction to latex is not supported by the physical medical evidence in this case.

¶ 75. Based on the foregoing reasons, I dissent.

      . H.B. 2, 2002 Leg., 3d Ex.Sess., § 7 (Miss. 2002) (cap increased to $750,000 in 2011 and to $1 million in 2017) (codified at Miss.Code Ann. § 11-1-60).

      . H.B. 13, 2004 Leg., 2d Ex.Sess. (Miss.2004), amending Miss.Code Ann. § 11-1-60.

      . In addition to Baptist, Jonathan named as defendants, Dr. Ingram (gynecologist), Dr. Odom (gynecologist), OB-Gyn Clinic of Jackson, PLLC (clinic of Dr. Ingram and Dr. Odom), Dr. Carroll McLeod (anesthesiologist), and Dr. Timothy D. Cannon (pulmonologist). Baptist is the only defendant involved in this appeal.

      . The parties agreed at the close of evidence that punitive damages would not be sought.

      . See generally Estate of Finley ex rel. Jordan v. Beverly Health and Rehab. Servs., Inc., 933 So.2d 1026, 1036-37 (¶¶ 34-36) (Miss.Ct.App.2006) (discussing the need for evidence supporting causation).

      . See also Sacks v. Necaise, 991 So.2d 615, 619 (¶ 9) (Miss.Ct.App.2007) ("If a doctor chooses to allow a nurse to perform a non-delegable duty, the doctor must accept responsibility if that duty is breached.”) (citation omitted).

      .Jury Instruction 15 provides:
      If you find from a preponderance of the evidence in this case that on July 3, 2000, and on July 10-14, 2000, the nursing personnel at Mississippi Baptist Medical Center:
      (1) failed to properly assess or identify Ellen Kelly as at risk for latex allergy or sensitivity, if any, and/or
      (2) failed to properly inform the treating physicians that Ellen Kelly was at risk for latex allergy, if any, and/or
      (3) failed to implement the Mississippi Baptist Medical Center's Policies and Procedures in regard to latex allergies or sensitivity, if any [sic]
      And if you further find that said failure or failures, if any, constituted negligence as that term is defined elsewhere in these instructions; and that this negligence, if any, caused, or contributed to cause, injury or damage to Ellen Kelly and her eventual death, then you should return a verdict in favor of the Kelly Family against [the][d]e-fendant[][,] Mississippi Baptist Health Systems, Inc. [d/b/a] Mississippi Baptist Medical Center[.]

      . See Hall, 466 So.2d at 871.

      . See generally Ekornes-Duncan v. Rankin Med. Ctr., 808 So.2d 955, 959 (¶ 10) (Miss.2002) (A nurse’s failure to communicate signs of ruptured aorta failed to lead to liability where physician already conducted initial assessment.).

      . See also Wyeth Labs., Inc. v. Fortenberry, 530 So.2d 688, 691 (Miss.1988) (finding a lack of causation even if warning in package was insufficient).

      . Dr. Carroll McLeod, the anesthesiologist who treated Ellen at Baptist during her surgery, took her own clinical history of Ellen which showed the same type of information found in the hospital records, and Dr. McLeod also ordered no latex precautions. Other treating physicians testified that Ellen did not die from a reaction to latex.

      . See Quijano v. United States, 325 F.3d 564, 568 (5th Cir.2003) ("In Texas, a hospital’s internal policies and bylaws may be evidence of the standard of care, but hospital rules alone do not determine the governing standard of care.") (citations omitted); Gallagher v. Detroit-Macomb Hosp. Ass’n., 171 Mich. App. 761, 431 N.W.2d 90, 92 (1988) (finding that an institution’s internal rules and regulations do not establish a standard of care); Darling v. Charleston Cmty. Mem'l Hosp., 33 I11.2d 326, 211 N.E.2d 253, 257 (1965) (explaining that hospital rules and bylaws may be admissible but do not conclusively establish the standard of care). See generally 57A Am. Jur. 2d Negligence § 174 (2004) ("The failure to comply with a company rule does not constitute negligence per se; the jury may consider the rule, but the policy does not set forth a standard of conduct that establishes what the law requires of a reasonable person under the circumstances.”).

      . See M.R.E. 702 ("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....”). See also Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 146-47 (¶¶ 20-22) (Miss.2007).


text:
    Roy Dale WALLACE, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00639-COA.
    Court of Appeals of Mississippi.
    April 24, 2012.

      Roy Dale Wallace, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Roy Dale Wallace appeals the Harrison County Circuit Court’s denial of his motion to vacate his conviction and sentence as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007). While the errors he raises are unclear from his brief, we surmise that he asserts the circuit court erred by not confirming the prior convictions relied upon to qualify him as a habitual offender. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 30, 2007, Wallace was indicted for robbery in Harrison County, MS. On December 4, 2007, the State filed a motion to amend the indictment to charge him as a habitual offender under section 99-19-81. The amended indictment included the following prior convictions: (1) a January 22,1987 conviction in the Circuit Court of Cabell County, West Virginia of felony aggravated assault in cause number 86-F-86, for which he was sentenced to a term of not less than one year nor more than ten years in the West Virginia State Penitentiary; (2) a March 15, 2001 conviction in the Circuit Court of Rutherford County, Tennessee on of Count 1, of aggravated robbery in cause number 50219, for which he was sentenced to ten years in the custody of the Tennessee Department of Corrections; and (3) a March 15, 2001 conviction in the Circuit Court of Rutherford County, Tennessee on of Count 2, of aggravated robbery, in cause number 50219, for which he was sentenced to a term of ten years in the custody of the Tennessee Department of Corrections.

¶ 3. On December 10, 2007, Wallace pled guilty to robbery as a habitual offender under section 99-19-81. On December 11, 2007, the State’s motion to amend the indictment was granted.

¶ 4. On December 10, 2010, Wallace filed his motion to vacate his conviction and sentence in the Circuit Court of Harrison County. The trial court denied the motion on April 8, 2011. Wallace now appeals.

DISCUSSION

¶ 5. “In reviewing a trial court’s decision to deny a motion for post-conviction relief, the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

¶ 6. Mississippi Code Annotated section 99-19-81 provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 7. The State filed its motion to amend the indictment on December 4, 2007, to charge Wallace as a habitual offender under section 99-19-81. Wallace was convicted at least twice previously of felonies upon charges separately brought and arising out of separate incidents at different times. He was also sentenced separately to more than one year in state penal institutions for those previous crimes.

¶ 8. The State proved the prior offenses by competent evidence. In the case cited by Wallace, this Court vacated the defendant’s sentence as a habitual offender, reasoning that the indictment was defective because it did not describe with particularity the nature of the previous convictions. Vince v. State, 844 So.2d 510, 516-17 (¶ 20) (Miss.Ct.App.2003). Here, in the order amending the indictment, Wallace’s three prior felony convictions were listed. Wallace was convicted of aggravated assault in West Virginia on January 22, 1987. He was also convicted of two counts of aggravated robbery in Tennessee on March 15, 2001. Unlike in Vince, the previous convictions listed in Wallace’s indictment were described with specificity.

¶ 9. Wallace also argues that the State did not prove any of the convictions listed in the amended indictment and, further, that one of these convictions was not mentioned at the plea hearing. A “defendant’s failure at the time of sentencing to request a separate hearing would preclude his now raising the point, even if it had substantive merit.” Keyes v. State, 549 So.2d 949, 951 (Miss.1989). “[WJhere the defendant enters a plea of guilty, nothing in the rule mandates a separate hearing.” Id. Wallace’s argument is waived because these issues were not raised at the plea hearing. Procedural bar notwithstanding, Wallace still has the requisite two prior felony convictions for habitual offender status.

¶ 10. Lastly, Wallace was afforded a reasonable opportunity to challenge the State’s proof. The prosecutor stated to the court that a copy of the amended indictment had been provided to defense counsel prior to the plea hearing. In addition, Wallace even stated to the court that he was aware of the State’s twelve-year sentence recommendation based on his status as a habitual offender. Clearly, Wallace had an opportunity before and during his plea hearing to challenge the prior convictions used by the State as the basis for his habitual-offender status. He did not. Thus, Wallace’s status as a habitual offender was properly established at the time his sentence was imposed.

¶ 11. The record shows Wallace voluntarily entered a plea of guilty:

The Court: Okay. Mr. Wallace the indictment says that on February 26th, 2007, you, here in the First Judicial District, did willfully, unlawfully and feloniously take, steal, and carry away the personal property of Ardell Roberts of which she was in lawful possession by virtue of her employment by the Peoples Bank on 30th Avenue. And that you did so in the presence of and against her will by putting her in fear of immediate injury to her person.
The Court: Do you still want to plead guilty?
Defendant Wallace: Yes, sir.
The Court: Roy Dale Wallace, I’m satisfied you understand the consequences of entering a plea of guilty. I’m satisfied you are in fact guilty; that you freely and voluntarily have entered into this plea. I’m going to sentence you to the custody of the Department of Corrections of the State of Mississippi to a term of twelve (12) years under the Section 99-19-81, and this is without the benefit of parole, day-for-day. That’s the sentence. Good luck to you.

¶ 12. Upon entry of a guilty plea, the trial court must have before it “enough [evidence] that the court may say with confidence the prosecution could prove the accused guilty of the crime charged[.]” Evans v. State, 988 So.2d 404, 406 (¶ 10) (Miss.2008). A defendant’s own admission may suffice for the factual basis. Id. Wallace admitted to the robbery charge before the trial court. His admission was sufficient for the circuit court’s finding of his guilt.

¶ 13. For the foregoing reasons, we affirm the judgment of the Circuit Court of Harrison County, Mississippi.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR.

      . The circuit court construed the motion to vacate as a PCR motion.


author: FAIR, J.,

text:
    Arthur WILDE, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2011-CP-00145-COA.
    Court of Appeals of Mississippi.
    May 15, 2012.

      Arthur Wilde, appellant, pro se.
    Office of Attorney General by R. Stewart Smith Jr., attorney for appellee.
    Before LEE, C.J., ISHEE and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Arthur Wilde, an inmate in the- custody of the Mississippi Department of Corrections, appeals from the Sunflower County Circuit Court’s denial of a “show cause” petition he filed against the MDOC. Finding no reversible error, we affirm.

FACTS

¶ 2. Wilde was issued a rules violation report (RVR) by MDOC officials after testing positive for marijuana in a random drug test administered by the MDOC. Marijuana is, as one might expect, an unauthorized drug under the MDOC inmate rules. Wilde challenged the RVR charge through the MDOC’s Administrative Remedy Program (ARP) and pursued each of the three steps required by ARP procedure. The MDOC issued a final decision denying Wilde’s appeal on November 17, 2009.

¶ 3. Wilde filed an action in the circuit court on January 19, 2010, claiming he was denied due process. Specifically, Wilde contended that the MDOC had denied him an investigation of the RVR charge.

¶4. The circuit court determined that Wilde had failed to file his petition for judicial review of the decision rendered by the MDOC within the thirty-day time period allowed by Mississippi Code Annotated section 47-5-807 (Rev. 2011). Notwithstanding the time bar, the circuit court found no merit to Wilde’s due process claim because Wilde failed to establish that the MDOC’s decision regarding the RVR charge was unsupported by substantial evidence, arbitrary or capricious, beyond the agency’s scope of powers, or in violation of his constitutional or statutory rights. Accordingly, the circuit court also denied Wilde’s petition on the merits. This appeal followed.

DISCUSSION

¶ 5. Section 47-5-807 provides: “Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure ... may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.” As the circuit court found, Wilde received a certifícate of completion, with a third-step response attached, on November 17. The certifícate informed Wilde that the requirements of the ARP had been fulfilled and that Wilde had thirty days to seek judicial review of the MDOC’s decision. Wilde did not file his petition with the circuit court until January 19, well beyond the thirty days allowed by section 47-5-801. The statutory time limit is jurisdictional. Moore v. Miss. Dep’t of Corrs., 936 So.2d 941, 944 (¶ 14) (Miss.Ct.App.2005).

¶ 6. Statutory time bar notwithstanding, Wilde’s underlying claim also fails on the merits. The record shows that in accordance with the MDOC’s policy and procedures, Wilde was provided a copy of the results of his drug test and granted a disciplinary hearing to present his grievances. Wilde attempted to leave the hearing early, but MDOC officials returned him to the hearing and made him stay until the proceedings concluded. Wilde offered no evidence on his behalf in response to the charge in the RVR. The MDOC’s disciplinary staff subsequently found Wilde guilty of unauthorized drug use.

¶ 7. The courts may not disturb an administrative agency’s decision unless it is “unsupported by substantial evidence[;] arbitrary or capricious; beyond the agency’s scope or powers; or violative of the constitutional or statutory rights of the aggrieved party.” Sanders v. Miss. Dep’t of Corrs., 912 So.2d 189, 192 (¶ 12) (Miss. Ct.App.2005) (quoting Griffis v. Miss. Dep’t of Corrs., 809 So.2d 779, 782 (¶ 10) (Miss.Ct.App.2002)). Wilde failed to make any such showing in his petition to the circuit court.

¶ 8. Wilde’s petition was time-barred, and even if the circuit court had jurisdiction to hear it, he would not be entitled to relief.

¶ 9. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.