author: GREMILLION, Judge.

text:
    STATE in the Interest of D.R.P., S.P., J.M.P., and I.P.
    No. 13-1275.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.
    Audie L. Jones, Department of Children and Family Services, Shreveport, LA, for Appellant, State of Louisiana, Department of Children and Family Services.
    Don M. Burkett, District Attorney, Many, LA, for Appellant, State of Louisiana.
    Billy L. West, Jr., Attorney at Law, Natchitoches, LA, for Appellees, G.P. and D.P.
    Renee P. Cote, Attorney at Law, Shreveport, LA, for Appellees, D.R.P., S.P., J.M.P. and I.P.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

|,The State of Louisiana, through the Department of Children and Family Services (Department), appeals the trial court’s order instructing it to pay for psychological consultations with a private psychologist that does not have a contract with the state. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The facts surrounding the placement of the four children in the Department’s custody in July 2013, are not at issue. The eldest three ran away from their adoptive home and were found by police, who observed that the children had severe bruising on their buttocks and legs. An investigation was conducted, and the parents, G.P. and D.P., admitted that all of the children were in need of care. The children were adjudicated as children in need of care in September 2013.

G.P. and D.P. were required to submit to psychological testing as part of the Department’s case plan. In October 2013, the trial court signed a judgment ordering the entire family to submit to psychological evaluations with Dr. John C. Simoneaux. The judgment stated: “IT IS FURTHER ORDERED that the Department of Children and Family Services are to pay for the above evaluations.” The Department now appeals the order requiring it to pay for the services of a psychologist with whom it does not have a contract.

DISCUSSION

The issue before us is whether the trial court can order the Department to pay for the services of a private provider of psychological sendees. Louisiana Children’s Code Article 672 states (emphasis added):

LA. Whenever custody of a child is assigned to the Department of Children and Family Services, the child shall be assigned to the custody of the department rather than to a particular placement setting. The department shall have sole authority over the placement within its resources and sole authority over the allocation of other available resources within the department for children judicially committed to its custody.
B. The court shall not divide legal and physical custody whenever assigning custody to a department in accordance with this Article, Articles 619, 622, 627, 681, 700, or 716, or any other statute or provision of law. The court shall specify other public agencies or institutions that have legal or financial responsibility, or both, to provide their particular services identified at disposition or subsequent case review. Placing custody of a child with one state department shall not remove the obligation of any other state department to provide services to that child from their resources for which the child is eligible under state or federal statute or state or federal appropriation, including but not limited to twenty-four-hour care.

Although the jurisprudence has not addressed this particular issue, the supreme court has definitively found that the Department is not financially responsible for the trial court’s placement of a child, in the State’s custody, in a private facility. These were the facts in In re Sapia, 397 So.2d 469 (La.1981), where the child was adjudicated in need of care and placed in a private facility. The trial court ordered the Department to pay for the care and treatment at the private facility. Pursuant to the provisions found in La.R.S. 15:1081-1086, which address payment for care of children in non-state-operated agencies and facilities, the supreme court noted that the Department “is only authorized to make payments for the care and treatment of children in non-state facilities where the children are placed there by the Department.” Id. at 474. The supreme court concluded, “The juvenile court cannot order the Department of Health and Human Resources to pay for the care and treatment of a child placed in a private facility where such placement was made by the court itself and not by the Department.” Id. at 475. |sThis same issue was addressed in relation to the Department of Public Safety, Division of Youth Services (DYS), in In re D.G., 503 So.2d 132 (La. App. 5 Cir.1987), and the identical result was reached.

In re J.M., 490 So.2d 444 (La.App. 5 Cir.1986), involved the juvenile court’s order to DYS to pay for the costs of temporary placement of a juvenile in a facility that was not state-owned. Relying on Ra-pio, the appellate court found that the juvenile court had no authority to order DYS to pay for J.M.’s care in a facility that it chose.

The juvenile court ordered the Department of Public Safety, Office of Youth Development, to provide transportation for the juvenile’s siblings and mother for visitation and group therapy and parenting classes for the juvenile’s mother in In re J.H., 97-1291 (La.App. 4 Cir. 1/14/98), 706 So.2d 561. The appellate court found that under La.Ch.Code art. 672, the Department has the sole authority over its use of resources. The appellate court further noted the comment to Article 672 that states that the juvenile court does not have the power to “designate a particular treatment or placement choice” once the State has been assigned custody. Id. at 563.

In re L.S., 01-2215 (La.App. 4 Cir. 3/20/02), 814 So.2d 601, writ denied, 02-957 (La.4/17/02), 813 So.2d 414, involved judicial review of the Department’s decision to transfer children in its custody from one office to another. Citing In re J.H., the appellate court held that “there is no statutory authority for a juvenile court to order the department to pay for therapy.” Id. at 607.

Similarly, based on the plain language of La.Ch.Code art. 672 and the jurisprudence discussed above, we find that the trial court cannot order the Department to pay for the services of a private psychologist of its choosing. ^Accordingly, the judgment of the trial court ordering the Department to pay for the services of Dr. John C. Simoneaux is, hereby, reversed.

REVERSED.

      . Pursuant to Uniform Rules — Courts of Appeal, Rule 5-2, initials are used throughout to ensure the confidentiality of the minors.

      . The youngest child, I.P., is the biological child of G.P. and D.P.

      . In re Sapia was consolidated with In re Reddicks, which involved the identical issue.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Julie DUPONT v. ACADIAN AMBULANCE SERVICE, INC.
    No. 13-959.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      K. Wade Trahan, Lafayette, LA, for Defendant-Appellant, Acadian Ambulance Service, Inc.
    Mark L. Riley, Lafayette, LA, for Plaintiff-Appellee, Julie Dupont.
    Court composed of J. DAVID PAINTER, PHYLLIS M. KEATY, and JOHN E. CONERY, Judges.
   PAINTER, Judge.

11 Defendant, Acadian Ambulance Service, Inc. (Acadian), appeals the judgment of the trial court granting Claimant’s motion for partial summary judgment and dismissing Acadian’s claims under La.R.S. 23:1208. For the following reasons, we affirm.

DISCUSSION

Richard Dupont was injured in a vehicular collision while in the course and scope of his employment for Acadian. He received workers’ compensation benefits and was released to light duty work. He was sent by Acadian to work at Delta Downs Race Track & Casino (Delta Downs) and worked there from July 2004 until November 15, 2004. At that time, Delta Downs terminated his employment as a result of an incident in which Claimant allegedly falsified documentation connected with the administration of a prescription drug, nitroglycerin, to a patron. That dismissal is not before the court at this time.

Claimant’s doctor increased the restrictions on his employment. In the course of determining Claimant’s physical abilities, a meeting was held. Claimant did not attend the meeting. Acadian asserts that during that meeting, Claimant’s attorney stated that Claimant was terminated from his employment at Delta Downs because he was physically unable to perform his duties. Acadian then terminated Claimant’s benefits.

Claimant filed a disputed claim for compensation. Acadian asserted the provisions of La.R.S. 23:1208 as an affirmative defense. Claimant died; his wife, Julie Du-pont, was substituted as a party, and she seeks the benefits which should have been paid to her husband during his lifetime. She filed a motion for partial summary judgment dismissing the Section 1208 defense. The WCJ granted the motion on February 14, 2012. A trial on the merits was held on March 7, 2018. The |2WCJ asked for post-trial briefs and ruled in favor of Julie Dupont ordering payment of Supplemental Earnings Benefits (SEB) plus interest from September 26, 2006, through the date of Claimant’s death on December 6, 2009. Acadian appeals. Julie Dupont filed an answer to the appeal asking that the hearing officer’s judgment be amended to include penalties and attorney’s fees and for additional attorney’s fees on appeal.

DISCUSSION

Forfeiture of Benefits

On appeal, Acadian asserts that the Worker’s Compensation Judge (WCJ) failed to correctly apply La.R.S. 28:1208 to forfeit claimant’s benefits because of his attorney’s misrepresentation.

Louisiana Revised Statutes 23:1208 provides in pertinent part that:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.
C. (1) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of ten thousand dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or fined not more than ten thousand dollars, or both.
(2) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of two thousand five hundred dollars or more, but less than a value of ten thousand dollars shall be imprisoned, with or without hard labor, for not more than five years, or fined not more than five thousand dollars, or both.
(3) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of less than two thousand five hundred dollars, shall be imprisoned for not more than six months or fined not more than five hundred dollars, or both.
|3(4) Notwithstanding any provision of law to the contrary which defines “benefits claimed or payments obtained”, for purposes of Subsection C of this Section, the definition of “benefits claimed or payments obtained” shall include the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This matter requires that this court interpret this statute to determine whether it requires that the misrepresentation of an attorney result in the forfeit of his client’s benefits. This is a question of law and must be reviewed by the court de novo. Broussard v. Hilcorp Energy Co., 09-449 (La.10/20/09), 24 So.3d 813.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and its letter shall not be disregarded in search of the intent of the legislature or under the pretext of pursuing its spirit. Munden v. State, Division of Administration, 2001-2326, p. 4 (La.App. 1st Cir.5/9/03), 849 So.2d 639, 641, writ denied, 2003-1532 (La.10/03/03), 855 So.2d 310. A statute shall be construed to give meaning to the plain language of the statute, and courts may not extend statutes to situations that the legislature never intended to be covered. A.K. Dumin Chrysler-Plymouth, Inc. v. Jones, 2001-0810, p. 4 (La.App. 1st Cir.5/10/02), 818 So.2d 867, 870.

Chamberlain ex rel. Wilmer J. v. Kennedy, 03-488, pp. 5-6 (La.App. 1 Cir. 12/31/03), 868 So.2d 753, 757.

Further, since the statute is penal in nature, it must be strictly construed. Fontenot v. Reddell Vidrine Water Dist., 02-439 (La.1/14/03), 836 So.2d 14. The statute at issue distinguishes between those penalties which accrue to “any person” violating its provisions and those which accrue when “the employee” violates its provisions. The penalty of forfeiture of benefits accrues only where the employee violates the statutory prohibition. Therefore, even if counsel for Claimant violated 14the provisions of La.R.S. 23:1208, forfeiture of benefits is not one of the penalties which may be imposed.

Accordingly, we find no error in the trial court’s determination that forfeiture of benefits was not appropriate. Having so found, we need not determine whether counsel for claimant made false statements for the purpose of obtaining benefits for claimant.

Penalties & Attorney’s Fees

Appellee answered the appeal asking that the original award be amended to include penalties and attorney’s fees for failure to timely pay benefits, as well as for additional attorney’s fees on'appeal.

Louisiana Revised Statutes 23:1201 provides in pertinent part that:

F. Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
|B(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

In reviewing the trial court’s failure to award penalties and attorney’s fees, we note that: “The workers’ compensation judge’s determination of whether a defendant is subject to penalties and attorney fees ... is a question of fact subject to the manifest error — clearly wrong standard of review.” Pickett v. J.B. Tuck Land Clearing, 12-1409, p. 8 (La.App. 3 Cir. 5/1/13), — So.3d -, -, 2013 WL 1809881 (citation omitted).

In determining whether a defendant’s actions are arbitrary and capricious under La.R.S. 23:1201(1), “the crucial inquiry is whether the employer can articulate an objective reason for terminating benefits at the time of the termination.” Williams v. Tioga Manor Nursing Home, 09-417, p. 22 (La.App. 3 Cir. 11/18/09), 24 So.3d 970, 984, writ denied, 10-298 (La.4/09/10), 31 So.3d 389 (quoting Dogal v. Vernon Parish Sch. Bd., 06-1088, p. 10 (La.App. 3 Cir. 2/7/07), 950 So.2d 902, 909, writ denied, 07-832 (La.6/15/07), 958 So.2d 1190).

Brown v. Shop Rite, Inc., 11-727, p. 12 (La.App. 3 Cir. 11/2/11), 75 So.3d 1002, 1010, writ denied, 11-2647 (La.2/10/12), 80 So.3d 480.

It appears that the employer had an objective reason for terminating benefits at the time of the termination, although we disagree with that reason. Therefore, we find no error in the WCJ’s failure to award penalties and attorney’s fees.

However, we will make an award of $3,000.00 in attorney’s fees for work done successfully defending the WCJ’s judgment herein. See Vital v. Landmark of Lake Charles, 13-842 (La.App. 3 Cir. 02/12/14), - So.3d -, 2014 WL 550912.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Appellee is awarded the amount of $3,000.00 as attorney’s fees on appeal. Costs of this appeal are assessed to the Defendant-Appellant.

AFFIRMED.


author:
COLEMAN, Justice,
      CHANDLER, Justice,

text:
    Chris HARRELL a/k/a Christopher Harrell v. STATE of Mississippi.
    No. 2010-CT-01571-SCT.
    Supreme Court of Mississippi.
    Jan. 16, 2014.
    Rehearing Denied April 3, 2014.

      Office of State Public Defender by George T. Holmes, attorney for appellant.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
   ON WRIT OF CERTIORARI

COLEMAN, Justice,

for the Court:

¶ 1. A Hinds County jury convicted Christopher Harrell of two crimes: capital murder with the underlying felony of robbery and felon in possession of a firearm. The Hinds County Circuit Court sentenced Harrell to life without the possibility of parole pursuant to the former and ten years, to run concurrently with the life sentence, for the latter.

¶ 2. The Court of Appeals affirmed both convictions, and we granted Harrell’s petition for a writ of certiorari. Harrell raised four issues on direct appeal, but today we address two: (1) whether the circuit court erred in not instructing the jury on the elements of the underlying felony of robbery and (2) whether the circuit court erred in granting the State’s requested flight instruction. We hold that the failure to instruct the jury as to the elements of the charged crime deprived Harrell of due process in the form of his right to a jury trial as guaranteed by the Mississippi Constitution, and that the circuit court did not err in granting the flight instruction. Accordingly, we affirm the trial court and the Court of Appeals as to the conviction of felon in possession of a firearm in part but reverse the capital murder conviction, and remand the case to the Circuit Court of Hinds County for a new trial in the murder indictment.

FACTS

¶ 3. On the afternoon of April 6, 2008, Frank Damico dropped off Leroy McGowan and his sister at the V.A. Hospital in Jackson, Mississippi, in Hinds County. McGowan had lent Damico his blue Mercury Grand Marquis sedan. Damico was supposed to pick them up a few hours later, but when he did not return, they called the police. On April 9, 2008, the blue Mercury was discovered behind a church in Holmes County, Mississippi. On April 15, 2008, Damico’s body was discovered in a ditch a few miles from the church.

¶4. According to the record below, investigators determined that Harrell, who lived with his mother in Holmes County, had escaped to Jackson in March 2008 to avoid arrest for an aggravated assault. While in Jackson, Harrell stayed with Damico’s girlfriend, Rita Faye Landrum. Landrum testified that Harrell had a gun. She testified that Damico had visited on the afternoon of April 6, and Harrell had asked her to ask Damico for a ride to the Exxon station. Damico agreed and left with Harrell. Landrum never saw either of them again.

¶ 5. Harrell’s mother, Martha Engel-mann, testified that Harrell had called on April 8, 2008, and announced that he was coming home. She immediately called the police, who were looking for Harrell. Harrell was arrested that night in his bedroom. A nine millimeter pistol and the keys to the blue Mercury were beside him. The police found the blue Mercury in a church parking lot about a quarter mile from Engelmann’s house. The lining in the trunk had been removed.

¶ 6. Construction workers discovered Damico’s body in a ditch on a secluded road in Holmes County on April 15, 2008. The pathologist, Dr. Stephen Hayne, determined that Damico had died from a single gunshot wound to the head that had fractured the jawbone. The fatal bullet had passed through the body and was not recovered.

¶ 7. Harrell gave several statements to the authorities, which are relevant to the flight instruction issue. On April 9, 2008, before the discovery of Damico’s body, he said that a man named Shorty had given him the car. On April 10, Harrell said he had been at “Frank’s” house and that Damico had given him a ride to meet a man named Shorty. Harrell claimed that Shorty and Damico left in Damico’s car, and Shorty returned alone. Then, Shorty gave Harrell the car. On May 8, Harrell said that he and Damico had met Shorty at a motel, then Damico and Shorty had left together. Shorty returned with Damico’s body in the trunk and asked Harrell where he could dump the body. Harrell and Shorty drove to Holmes County. They were followed by an SUV driven by an unknown person. They drove to the church near Harrell’s mother’s house, where they instructed the SUV driver to wait while they disposed of the body. At the ditch, Shorty removed the body from the trunk. Then they drove to the church near Harrell’s mother’s house, where Shorty gave Harrell the blue Mercury and left in the SUV.

¶ 8. On June 19, 2008, Harrell gave a statement to the Mississippi Bureau of Investigation claiming that he had driven Damico to see Shorty so that Damico could purchase drugs. Harrell said that they had met Shorty in the parking lot of a church in Jackson. According to Harrell, Damico and Shorty had begun to argue, and Shorty had shot Damico. Then, they drove to Holmes County, where Shorty removed the body. Harrell said that they drove to the church, where Shorty gave him the car and left in the SUV.

¶ 9. In Harrell’s final interview on June 26, 2008, he said that Damico had not gone to buy drugs from Shorty, but that he had asked Damico for a ride to meet Shorty. Harrell said that they had met Shorty and the man with the SUV at a church in Jackson, not a motel. Shorty became angry and fearful that Damico was a police officer and shot him. Harrell helped put the body in the trunk, and they drove to Holmes County, trailed by the SUV. While the SUV waited at the church, Harrell and Shorty went to the secluded road and removed the body. Harrell said that, upon their return to the church, Shorty gave him the car and left in the SUV.

¶ 10. An inmate, Henry Peters, testified that he had been housed with Harrell at the Rankin County Correctional Facility in April 2008. Peters testified that he was a writ writer who assisted other inmates with legal issues. Peters said that Harrell had approached him for advice on a jurisdictional matter. According to Peters, Harrell had wanted the capital murder tried in the jurisdiction where it had occurred, which was Hinds County. Harrell told Peters that he had shot Damico “in the mouth,” and that the bullet had exited the wound. Again, according to Peters, Harrell further confessed that he then had put Damico’s body in the trunk and had driven to Holmes County. Harrell explained that he was trying to blame someone else for the crime.

¶ 11. At the trial, Harrell’s primary defense to capital murder was that Damico had been killed in Holmes County, not Hinds County. The jury found him guilty of capital murder and possession of a firearm by a convicted felon.

DISCUSSION

I. THE FAILURE TO INSTRUCT A JURY AS TO ALL ELEMENTS OF THE CRIME CHARGED CONSTITUTES REVERSIBLE ERROR.

¶ 12. Harrell argues that his fundamental right to due process was violated because the trial court failed to instruct the jury on the elements of the underlying felony of robbery. Harrell was convicted of capital murder with the underlying felony of robbery under Mississippi Code Section 97-3-19(2)(e). That section provides:

The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
When done with or without any design to effect death, by any person engaged in the commission of the crime or rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies.

Miss.Code Ann. § 97-3-19(2)(e) (Rev. 2006). Mississippi Code Section 97-3-73, defining the crime of robbery, provides: “Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.” Miss.Code Ann. § 97-3-73 (Rev.2006). The elements of robbery include “(1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence.” Goff v. State, 14 So.3d 625, 647 (Miss.2009).

¶ 13. The trial court gave the following elements instruction on capital murder:

The Defendant, Christopher Harrell, has been charged in the indictment with the offense of Capital Murder in Count One. The court instructs the jury that if you find from the evidence in this ease beyond a reasonable doubt that:
1. The Defendant, Christopher Harrell;
2. On or about April 6, 2008 in the First Judicial District of Hinds County, Mississippi
3. Did purposely, knowingly and fe-loniously did [sic] murder one Frank Damico, a human being
4. with deliberate design or while in the commission of an act eminently dangerous evincing a depraved heart, without authority of law;
5. and not in necessary self defense
6. at a time when he [sic] the said Christopher Harrell was then and there engaged in the commission of the crime of robbery of the said Frank Damico
then you shall find the defendant, guilty of Capital Murder in Count One.

The trial court did not give a separate instruction providing the elements of robbery. Thus, while the jury was instructed that it could find Harrell guilty of capital murder if it found beyond a reasonable doubt that Harrell had killed Damico while engaged in the crime of robbery, the jury was not instructed on what acts constituted “robbery.”

¶ 14. Harrell did not bring the omission to the attention of the trial court by objecting to the State’s instruction or submitting an instruction on the elements of robbery. Nonetheless, the issue is not procedurally barred. The Court has rejected the application of a procedural bar when the trial court fails to instruct the jury on the elements of the underlying felony in a capital-murder trial. Kolberg v. State, 829 So.2d 29, 46 (Miss.2002); Shaffer v. State, 740 So.2d 273, 282 (Miss.1998); Hunter v. State, 684 So.2d 625, 636 (Miss. 1996). It is the trial court’s responsibility to assure that the jury is “fully and properly instructed on all issues of law relevant to the case.” Kolberg v. State, 829 So.2d 29, 46 (Miss.2002). “There is no doubt that the trial court is ultimately responsible for rendering proper guidance to the jury via appropriately given jury instructions, even sua sponte.” Id. at 45. We also have held that the State is responsible for making sure the jury is instructed on the essential elements of the crime. Hunter v. State, 684 So.2d 625, 635 (Miss.1996) (stating that “[i]t is rudimentary that the jury must be instructed regarding the elements of the crime with which the defendant is charged ... even though the defendant did not present an acceptable instruction, the State was obligated to do so”).

¶ 15. We now arrive at something of a crossroads. In Kolberg, we reaffirmed that the failure of the trial court to instruct a jury as to the elements of the underlying felony constitutes error, but for the first time we held the error to be subject to harmless error analysis. Kolberg, 829 So.2d at 50-51 (¶ 40). We take the opportunity presented by the instant case to revisit our opinion in Kolberg.

¶ 16. Article III, Section 2, Clause 3 of the United States Constitution mandates a jury trial for all crimes except as may result in impeachment. U.S. Const, art. Ill, § 2. The Sixth Amendment to the Constitution of the United States provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed_” U.S. Const, amend. YI (emphasis added). Section 31 of the Constitution of the State of Mississippi states in even stronger language, “The right of trial by jury shall remain inviolate. ...” Miss. Const, art. 3, § 31 (emphasis added).

¶ 17. In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the Supreme Court of the United States held it to be harmless error when the defendant was found guilty of tax crimes despite the fact that the jury was not instructed on one element of the offense — the materiality of false statements made by the defendant. Id. at 6-7, 10, 119 S.Ct. 1827. Justice Scalia dissented, as we discuss below. Id. at 30, 119 S.Ct. 1827. The Neder Court spoke authoritatively regarding the right to a jury trial as provided in the federal Constitution. However, Mississippi has its own constitution, wherein the right to a trial by jury also is protected, and via language stronger than that found in its federal counterpart.

¶ 18. The idea that an accused’s right to a trial by jury is less than absolute is relatively new. Prior to the 1999 Neder decision, the Fifth Circuit Court of Appeals held, “When the jury is not given an opportunity to decide a relevant factual question, it is not sufficient ‘to urge that the record contains evidence that would support a finding of guilt even under a correct view of the law.’ ” United States v. McClain, 545 F.2d 988, 1003 (5th Cir.1977) (quoting United States v. Casale Car Leasing Inc., 385 F.2d 707, 712 (2d Cir.1967)); see also United States v. Pelullo, 14 F.3d 881, 890 (3d Cir.1994) (holding collateral estoppel could not be used against a criminal defendant because it prevented the jury from determining guilt or innocence as to each element of the crime charged); United States v. Goetz, 746 F.2d 705, 708 (11th Cir.1984) (“The rule is firmly established that the trial judge cannot direct a verdict in favor of the government for all or even one element of a crime.”). In fact, prior to Neder, the United States Supreme Court itself consistently held that, when engaging in harmless error analysis, an appellate court may preserve, but not supplement, a jury’s findings, and that in the context of a criminal ease the court may not, if asked, hold that a jury would have found something it did not find. Pope v. Illinois, 481 U.S. 497, 509-510, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (Stevens, J., dissenting) (citing Jackson v. Virginia, 443 U.S. 307, 320 n. 14, 99 S.Ct. 2781, 61 L.Ed.2d 560, (1979); United Bhd. of Carpenters & Joinders of Am. v. United States, 330 U.S. 395, 408-409, 67 S.Ct. 775, 91 L.Ed. 973 (1947); Bollenbach v. United States, 326 U.S. 607, 615, 66 S.Ct. 402, 90 L.Ed. 350 (1946)). Taking the strong historical precedent that directs against the Neder and Kolberg Courts allowing judges — rather than juries — to determine guilt under the rubric of harmless error together with the stronger wording of Section 31 of Mississippi’s constitution, we now hold that the Kolberg Court’s holding violates our state constitution and should be overruled to the extent that it allows appellate courts to engage in harmless error analysis when trial courts fail to instruct juries as to elements of the crime charged.

¶ 19. The Kolberg case was similar to the instant case. In Kolberg, the defendant had been convicted of capital murder with the underlying felony of child abuse; Kolberg, 829 So.2d at 45 (¶ 22); here, Harrell stands convicted of capital murder with the underlying felony of burglary. In both cases, the trial court failed to instruct the jury on the elements of the underlying felony, and in both cases, the defense failed to lodge a contemporaneous objection. Kolberg, 829 So.2d at 45 (¶¶ 22, 23). In reaching its holding on the instant issue, the Kolberg Court discussed three cases it deemed critical: Ballenger v. State, 761 So.2d 214 (Miss.2000); Shaffer v. State, 740 So.2d 273 (Miss.1998); and Hunter v. State, 684 So.2d 625 (Miss.1996). The three cases lead inexorably to the conclusion that, prior to Kolberg, the failure to instruct a jury as to an element of the charged crime led to an automatic reversal and precluded any sort of harmless error analysis.

¶ 20. In Hunter v. State, the defendant stood convicted of capital murder with the underlying felony of robbery. Hunter, 684 So.2d at 628. As in the case sub judice and in Kolberg, the trial court failed to instruct the jury on the elements of the underlying offense. Id. The defendant, Hunter, proposed a jury instruction on the elements of robbery, but the trial court refused the instruction. Id. at 634. We affirmed the refusal of Hunter’s proposed instruction, describing it as long and confusing. Id. However, no other instruction on the elements of robbery was substituted for it, and the court never instructed the jury on the elements of robbery. Id. Accordingly, the Hunter Court considered whether the absence of any instruction on the elements of the underlying offense was error. Id. at 635. The Hunter Court held that, after the trial court refused the defendant’s instruction, the State had a duty to make sure the court properly instructed the jury. Hunter, 684 So.2d at 628. In support of its holding, the Court wrote, “A logical corollary of this principle is that, because the State has to prove each element of the crime beyond a reasonable doubt, then the State also has to ensure that the jury is properly instructed with regard to the elements of the crime.” Id. at 635 (emphasis added). Later, the Court wrote, “Failure to submit to the jury the essential elements of the crime is ‘fundamental’ error.” Id. at 636. “Where the jury had incorrect or incomplete instructions regarding the law, our review task is nigh unto impossible and reversal is generally required.” Id. at 636 (quoting Henderson v. State, 660 So.2d 220, 222 (Miss.1995)).

¶ 21. Shaffer v. State, 740 So.2d 273 (Miss.1998), involved a conviction for simple murder in which the court’s jury instruction omitted the element of “evincing a depraved heart, regardless of human life.” Shaffer, 740 So.2d at 273, 282 (¶¶ 1, 31). The defendant, Shaffer, failed to object to the instruction at trial. Id. at 282 (¶ 31). The Court wrote that a “conviction is unenforceable where the jury does not find each element of the offense beyond a reasonable doubt. Where the jury is not even instructed on one of the vital elements of the offense, the conviction must not survive the scrutiny of this Court.” Id. at 282 (¶ 32) (emphasis added); see also Doby v. State, 557 So.2d 533, 540 (Miss.1990); Steele v. State, 544 So.2d 802, 808-09 (Miss.1989). “Instructing the jury on every element of the charged crime is so basic to our system of justice that it should be enforced by reversal in every case where inadequate instructions are given, regardless of a failure to object or making a different objection at trial.” Shaffer, 740 So.2d at 282 (¶ 31) (emphasis added).

¶ 22. We cemented the pre-Kolberg rule, that the failure of a jury to find a criminal defendant guilty on each element of the charged crime led to mandatory reversal, in Ballenger, which came before the Court on a motion for post-conviction relief. Ballenger, 761 So.2d at 214 (¶ 2). A jury convicted Ballenger of capital murder with the underlying crime of robbery. Id. at 214 (¶ 1). The trial court failed to instruct the jury on the elements of robbery. Id. at 216 (¶ 12). Although we affirmed on Ballenger’s direct appeal, holding that Ballenger had failed to preserve the issue and, as a result, it was procedurally barred, id., Ballenger’s direct appeal predated our holdings in Hunter and Shaffer. Ballenger v. State, 667 So.2d 1242 (Miss.1995). Upon consideration of the later-filed petition for post-conviction relief, the Court noted that Hunter and Shaffer required automatic reversal. Id. at 219 (¶ 21).

¶ 23. Pursuant to Hunter, Shaffer, and Ballenger, prior to Kolberg, when a person stood convicted without a jury having found him guilty of each element of the charged crime beyond a reasonable doubt because the jury did not receive instruction on each element, the error in failing to instruct was fundamental and required automatic reversal. The Kolberg Court, without discussion of the right to a jury trial guaranteed by Section 31 of our state constitution, effectively overruled Hunter, Shaffer, and Ballenger. We now question two aspects of the Kolberg opinion. First, it mistakenly relied on our decision in Conley v. State, 790 So.2d 773, 793 (Miss.2001), to reach the conclusion that Mississippi allowed harmless error analysis when a trial court provided incomplete instructions to a jury. Second, it failed to fully consider Section 31, including, as discussed below, when it chose to rely upon Heder.

¶ 24. In Conley, a jury convicted the defendant of capital murder; he received a sentence of life without parole. Conley, 790 So.2d at 779 (¶ 1). The trial court denied Conley’s request for a lesser-included-offense instruction for manslaughter. Id. at 792 (¶ 68). Instead, the trial court instructed the jury with a manslaughter instruction provided by the State, and the instruction given to the jury failed to properly define culpable negligence, which is an element of manslaughter. Id. at 792-793 (¶¶ 69-70). The Conley Court held that the error was harmless and “did not contribute to the verdict as the jury unanimously agreed that Conley murdered [the victim] while engaged in the crime of kidnapping.” Id. at 793 (¶ 72).

¶ 25. The difference between what happened in Conley on one hand and what happened in Kolberg on the other is of vital importance. In Conley — a case upon which we so heavily relied in Kolberg — the jury had in fact found Conley guilty of each and every element of capital murder, including the underlying crime of kidnapping. Conley, ' 790 So.2d at 794 (¶ 76). Unlike today’s case and Kolberg, the Court reached its decision without the need to find the defendant guilty of elements of a crime upon which the jury never deliberated and never rendered a decision. The objectionable jury instruction pertained to a lesser-included offense, not the crime of which the defendant was convicted. The Conley decision jives well with the principle that appellate courts may use harmless error to preserve, but not supplement, a jury’s findings. See Pope v. Illinois, 481 U.S. 497, 509-510, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987) (Stevens, J., dissenting).’ However, Kolberg, permitting appellate courts to supplement a jury’s findings as to elements upon which the jury received no instruction but were at the same time essential to the verdict reached, does not.

¶ 26. The second point of concern with our opinion in Kolberg is that we reached its holding without a single citation to, and no discussion whatsoever of, Section 31 of the Constitution of the State of Mississippi. Again, Section 31 provides, “The right of trial by jury shall remain inviolate. ...” Miss. Const, art. 3, § 31 (emphasis added). One finds our opinions replete with admonishments that the word “shall” means mandatory, and that its use negates discretion. See Young v. Smith, 67 So.3d 732, 739 (¶¶ 13-14) (Miss.2011); Madison HMA, Inc. v. St. Dominic-Jackson Mem’l Hosp., 35 So.3d 1209, 1214 (¶ 14) (Miss.2010); Hill Bros. Const. & Eng’g Co., Inc. v. Mississippi Transp. Comm’n, 909 So.2d 58, 66 (¶ 34) (Miss.2005); Ivy v. Harrington, 644 So.2d 1218, 1221 (Miss.1994). Accordingly, Section 31 gives us no discretion, and in Mississippi, the right to a jury trial must remain inviolate.

¶ 27. Black’s Law Dictionary defines inviolate, “[f]ree from violation; not broken, infringed, or impaired.” Black’s Law Dictionary 90⅛ (9th ed.2009). Webster’s definition is “1. free from violation, injury, desecration, or outrage. 2. undisturbed; untouched. 3. unbroken. 4. not infringed.” Random House Webster’s Unabridged Dictionary 100U (2nd ed.2001). We do not know why the framers of Mississippi’s constitution, having the United States Constitution as a model, chose the stronger wording of Section 31 over the language chosen by the framers of our federal constitution, but they did. We can reach no other conclusion than the following: a decision of the Mississippi Supreme Court rendering it harmless for a person in Mississippi to be convicted of a crime with the Court, rather than the jury, deciding the sufficiency of the evidence against the person impairs, infringes upon, violates, and renders broken the right to a jury trial. The Kolberg Court’s reliance on Neder is misplaced because the United States Supreme Court in Neder relied on the less stringent language of the United States Constitution’s two pronouncements regarding the mandatory nature of a jury trial, neither of which put the matter as strongly as does the Mississippi Constitution.

¶ 28. Certainly, “there is no such thing as a directed verdict for the prosecution in a criminal case.” Fairchild v. State, 459 So.2d 793, 800-01 (Miss.1984). The result reached in Kolberg effectively does away with the prohibition against directed verdicts in favor of the prosecution. Engaging in harmless error analysis here would mean determining Harrell’s guilt without a jury ever deciding whether he committed a single element of the crime of burglary. What would happen if the jury in a criminal trial had not been instructed as to any element of the crime and rendered a conviction? Would we then weigh the evidence in a harmless error analysis? How many, or what percentage, of the elements of a crime need to be omitted before we invoke the prohibition against directed verdicts for the prosecution? Allowing harmless error analysis as to uninstructed elements of the charged crime opens the door to harmless error analysis should a trial court one day err and grant a directed verdict for the prosecution.

¶ 29. To borrow from Justice Scalia, when we as the Supreme Court of Mississippi make pronouncements about the right to a trial by jury, we are “operating upon the spinal column of American democracy.” Neder, 527 U.S. at 30, 119 S.Ct. 1827 (Scalia, J., dissenting). Justice Scalia’s dissent continues as follows:

William Blaekstone, the Framers’ accepted authority on English law and the English Constitution, described the right to trial by jury in criminal prosecutions as “the grand bulwark of [the Englishman’s] liberties .... secured to him by the great charter.” 4 W. Blaekstone, Commentaries *349. One of the indictments of the Declaration of Independence against King George III was that he had “subjected] us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws” in approving legislation “[f]or depriving us, in many Cases, of the Benefits of Trial by Jury.” Alexander Hamilton wrote that “[t]he friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury: Or if there is any difference between them, it consists in this, the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.” The Federalist No. 83, p. 426 (M. Beloff ed.1987). The right to trial by jury in criminal cases was the only guarantee common to the 12 state constitutions that predated the Constitutional Convention, and it has appeared in the constitution of every State to enter the Union thereafter. Alschuler & Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L.Rev. 867, 870, 875, n. 44 (1994). By comparison, the right to counsel — deprivation of which we have also held to be structural error — is a Johnny-eome-lately: Defense counsel did not become a regular fixture of the criminal trial until the mid-1800’s. See W. Beaney, Right to Counsel in American Courts 226 (1955).

Id. at 30-31, 119 S.Ct. 1827.

¶ 30. So important is the right to a jury trial to our democratic form of government; so clear is the mandate from Section 31 of the Constitution of the State of Mississippi; that we overrule Kolberg to the extent that it provides harmless error analysis when the trial court fails to instruct a jury as to elements of a charged crime. We hold that it is always and in every case reversible error for the courts of Mississippi to deny an accused the right to have a jury decide guilt as to each and every element.

II. WHETHER THE TRIAL COURT ERRONEOUSLY GRANTED THE STATE’S REQUEST FOR A FLIGHT INSTRUCTION.

¶ 31. Over Harrell’s objection, the trial court granted the flight instruction requested by the State. The instruction stated:

The Court instructs the Jury that flight is a circumstance from which in the absence of a reasonable explanation therefor, guilty knowledge and fear may be inferred. If you find from the evidence in this case, beyond a reasonable doubt that the defendant, Christopher Harrell did flee or go into hiding after killing Frank Damico, then the flight of Christopher Harrell is to be considered in connection -with all other evidence in this case. You will determine from all the facts whether the flight was from a conscious sense of guilt or whether it was caused by other things, and give it such weight as you think it is entitled to in determining the guilt or innocence of Christopher Harrell.

Harrell argues that the trial court erred in granting a flight instruction.

¶ 32. The Court has held that a defendant’s flight is admissible as evidence of a consciousness of guilt. States v. State, 88 So.3d 749, 757 (Miss.2012). However, the admission of evidence and instruction of the jury on flight is permitted only when (1) the flight is unexplained, and (2) the circumstance of flight has considerable probative value of guilt or guilty knowledge. Id. at 758; Austin v. State, 784 So.2d 186, 194 (Miss.2001). Flight must be “highly probative” to the facts of the case to warrant a flight instruction. Fuselier v. State, 702 So.2d 388, 390 (Miss.1997). For example, in States, evidence of the defendant’s trip to Miami after the crime was inadmissible because evidence showed he went to Miami to see his girlfriend; thus, his flight was explained and not especially probative of his guilt of the crime. States, 88 So.3d at 758. In Shumpert v. State, 935 So.2d 962, 970 (Miss.2006), a flight instruction was proper because nothing showed the defendant’s flight from the crime scene to a nearby laundromat was for any reason other than consciousness of guilt.

¶ 33. We turn to whether Harrell’s flight was “unexplained.” Harrell argues that, because the evidence showed that he went to Holmes County to dispose of Dam-ico’s body, his flight was explained and the flight instruction was improper. The Court of Appeals injected confusion into the issue by finding that Harrell’s flight was “not unexplained.” That is, the Court of Appeals found that Harrell’s flight was explained by his disposal of the body. But if, as the Court of Appeals held, Harrell’s flight was explained, then it should have held the instruction was improper.

¶ 34. Resolution of the issue requires examination of the term “unexplained” in the context of flight evidence. It is only when the defendant fled for some reason independent of the crime that the flight is considered to be “explained.” Austin, 784 So.2d at 194 (stating that “evidence of flight is inadmissible when independent reasons exist to explain the flight”). Evidence that the defendant fled for an independent reason is not probative of guilt and is unduly prejudicial to the defense. States, 88 So.3d at 758. Flight is “unexplained” if there is no explanation for it other than the defendant’s guilt or guilty knowledge. Austin, 784 So.2d at 194. Thus, “[e]vidence of flight may be introduced, even where no flight instruction is sought, as long as such evidence is not probative of ‘things other than guilt or guilty knowledge of the crime charged.’ ” Id. (quoting Mack v. State, 650 So.2d 1289, 1309 (Miss.1995)).

¶ 35. Applying the above tenets, Harrell’s flight from Jackson to dispose of the body in Holmes County was unexplained by anything other than guilt or guilty knowledge. Because Harrell’s departure from the jurisdiction for the purpose of disposing of the body was probative of guilty knowledge, it was not an independent explanation for his flight, and his flight was “unexplained.” Further, the evidence surrounding Harrell’s flight was highly probative of guilt or guilty knowledge; Harrell fled to Holmes County to dispose of the body and hide at his mother’s house. Therefore, we find no error in the grant of a flight instruction.

CONCLUSION

¶ 36. We hold the trial court’s failure to instruct the jury as to the elements of the underlying felony of robbery constituted reversible error. We therefore reverse in part the judgments of both the circuit court and the Court of Appeals as to Harrell’s capital murder-conviction and remand the case to the Hinds County Circuit Court for retrial on that court. We affirm the judgments of both the Court of Appeals and the trial court of conviction of possession of a firearm by a felon.

¶ 37. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. COUNT I: CONVICTION OF CAPITAL MURDER, WHILE IN THE COMMISSION OF A ROBBERY, REVERSED AND REMANDED. COUNT II: CONVICTION OF POSSESSION OF A FIREARM BY A FELON AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., KITCHENS AND KING, JJ„ CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND PIERCE, J.

CHANDLER, Justice,

dissenting:

¶ 38. The majority holds that applying harmless-error analysis in this case would violate Harrell’s right to a jury trial under Article 8, Section 81 of our state constitution. With respect, I disagree. “[Cjonsti-tutional errors alone do not entitle a defendant to automatic reversal.” Goforth v. State, 70 So.3d 174, 187 (Miss.2011). Most constitutional errors, including violations of our state constitution, are subject to review for harmless error. Id. This Court correctly held in Kolberg v. State, 829 So.2d 29, 50 (Miss.2002), that, even if the trial court fails to instruct the jury on the elements of the underlying felony in a capital murder case, the error may be deemed harmless if the Court can say beyond a reasonable doubt that the verdict would have been the same had the jury been properly instructed. Harrell’s jury was instructed that, to convict, it had to find that Harrell killed Damico while engaged in the commission of a robbery. Although the elements of robbery were omitted, the facts so overwhelmingly pointed to Harrell’s guilt that no rational jury, even if properly instructed, could have acquitted Harrell of capital murder. Given the overwhelming evidence of Harrell’s guilt of capital murder, I would find that the instructional error was harmless beyond a reasonable doubt.

¶ 39. “[A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Smith v. State, 986 So.2d 290, 300 (Miss. 2008) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). This Court has not hesitated to apply harmless-error analysis to an array of trial errors, including errors in jury instructions and constitutional violations. See, e.g., Avery v. State, 119 So.3d 317, 320 (Miss.2013) (failure to sequester a witness); Young v. State, 99 So.3d 159,163 (Miss.2012) (denial of impeachment of hostile witness); Conners v. State, 92 So.3d 676, 684 (Miss.2012) (Confrontation-Clause violation); States v. State, 88 So.3d 749, 758 (erroneous flight instruction); White v. State, 48 So.3d 454, 458 (Miss.2010) (admission of hearsay); Pitchford v. State, 45 So.3d 216, 235 (Miss.2010) (prosecutorial misconduct); Walton v. State, 998 So.2d 971, 976 (Miss.2008) (admission of statements taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). And we have not declined to apply harmless-error analysis to violations of the defendant’s right to a jury trial. Rather, in Brown v. State, 995 So.2d 698, 704 (Miss.2008), this Court applied harmless-error analysis when the defendant was denied the right to a jury trial by the trial court’s failure to submit a sentencing enhancement to the jury.

¶ 40. In Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the United States Supreme Court determined that, when a jury instruction omits an element of the offense, the error is subject to harmless-error review. The Court stated that only a limited class of cases-those involving “structural errors”— demand automatic reversal. Id. at 8, 119 S.Ct. 1827. The Court held that, unlike the “complete deprivation of counsel or trial before a biased judge,” the omission of an element of .the offense from a jury instruction “does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Id. at 9, 119 S.Ct. 1827 (emphasis in original). Therefore, when a jury instruction omits an element of the offense, the error does not demand automatic reversal, but may be reviewed for harmless error. Id. at 15, 119 S.Ct. 1827.

¶ 41. In its discussion, the Supreme Court reasoned that “improperly omitting an element from the jury can ‘easily be analogized to improperly instructing the jury on an element of the offense, an error which is subject to harmless-error analysis.’ ” The Court recognized that “[i]n both cases-misdescriptions and omissions-the erroneous instruction precludes the jury from making a finding on the actual element of the offense.” Id. at 10, 119 S.Ct. 1827 (emphasis in original). The Court distinguished the omission of an element from an error that “vitiates all the jury’s findings,” which is not subject to harmless-error analysis. Id. at 11, 119 S.Ct. 1827. But the Court held that “the absence of a ‘complete verdict’ on every element of the offense establishes no more than that an improper instruction on an element of the offense violates the Sixth Amendment’s jury trial guarantee,” and stated that, “[t]he issue here, however, is not whether a jury instruction that omits an element of the offense was error ... but whether that error is subject to harmless-error analysis.” Id. at 12, 119 S.Ct. 1827. Based on its prior application of harmless-error analysis in cases where the jury had not rendered a complete verdict on every element of the offense, the Court answered that question in the affirmative. Id. at 13, 119 S.Ct. 1827.

¶ 42. In Kolberg, this Court adopted Neder’s reasoning and held that the failure to instruct the jury on the elements of the underlying felony is subject to harmless-error review. Kolberg v. State, 829 So.2d 29, 50 (Miss.2002). Kolberg was convicted of capital murder with the underlying felony of child abuse. Kolberg’s jury was not instructed on the elements of child abuse. Id. at 45. The Court acknowledged that, in prior cases, we had held that this error was automatically reversible. But in light of Neder’s application of harmless-error analysis to a case in which the jury instructions had omitted an element of the charged crime, we held that omission of an element does not render the trial fundamentally unfair and does not require automatic reversal. Kolberg, 829 So.2d at 50. After careful consideration of the issue, we stated that:

[W]e apply a harmless error analysis in this case where the trial court failed to instruct the jury on the underlying felony in this capital murder prosecution. However, — we implore the trial courts to be alert to the need to assure that the jury is adequately instructed on the underlying felony in a capital murder trial. We also acknowledge that our decisions in many cases are “fact-driven” thereby meaning that, even in applying a “harmless error analysis,” had the facts in this case been different, the result here certainly could have been different. We make this statement as a caveat in future capital murder prosecutions under the provisions of Miss.Code Ann. § 97-3-19(2)(e)-(f), that should the trial court fail to instruct the jury on the underlying felony, even in applying a “harmless error analysis,” this Court may still be compelled, based on the facts and/or the particular underlying felony, to find such failure to be reversible error.

Kolberg, 829 So.2d at 50-51.

¶ 43. The Court in Kolberg found that the instructional error was harmless beyond a reasonable doubt. Id. at 51. Kol-berg’s jury had been instructed that Kol-berg was guilty of capital murder if he killed the child victim when engaged in the crime of felonious child abuse. See Miss. Code Ann. § 97-3-19(2)(f) (Rev.2006). But the jury was not instructed on the elements of felonious child abuse, which required “an intentional whipping, striking or otherwise abusing or mutilating of any child ‘in such a manner as to cause serious bodily harm.’ ” Kolberg, 829 So.2d at 49; Miss.Code Ann. § 97-5-39(2) (Rev.2006). The evidence was that the child victim had been discovered with massive head trauma after having been in Kolberg’s sole custody. Kolberg, 829 So.2d at 51. The Court found that there was no way that the omission of these elements had affected the outcome of the case, because no reasonable juror could have found other than that Kolberg had inflicted the injuries “in such a manner as to cause serious bodily harm.” Id. Therefore, the Court held that it was clear beyond a reasonable doubt that the instructional error did not contribute to the verdict. Id.

¶ 44. While the Court in Kolberg did not expressly perform a state constitutional analysis, obviously we considered the state right to be coextensive with the federal right concerning this issue. This Court never has held that violations of our state constitution are immune from review for harmless error. Instead we have held that most constitutional errors, including state constitutional errors, may be deemed harmless. Goforth, 70 So.3d at 186. Certainly, the omission of the elements of robbery from the jury instructions violated Harrell’s right to a jury trial guaranteed by Article 3, Section 31 of the Mississippi Constitution. But nothing in our state constitution prevents this Court from determining that, because the error did not contribute to the verdict beyond a reasonable doubt, the constitutional violation was harmless.

¶ 45. Certainly, when the jury receives no instruction on the underlying felony in a capital-murder case, the error is a grave one, because the jury has not found every element of the crime beyond a reasonable doubt. See Shaffer v. State, 740 So.2d 273, 282 (Miss.1998). A court should not lightly undertake the task of harmless-error analysis when the jury did not receive instruction on the elements of the underlying felony. See Kolberg, 829 So.2d at 50-51. Nonetheless, the error should be subject to harmless-error analysis. The United States Supreme Court in Neder explained that “where an omitted element is supported by uncontroverted evidence, [the harmless-error] approach reaches an appropriate balance between ‘society’s interest in punishing the guilty [and] the method by which decisions of guilt are to be made.’ ” Neder, 527 U.S. at 18, 119 S.Ct. at 1838 (quoting Connecticut v. Johnson, 460 U.S. 73, 86, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983)). “The harmless-error doctrine ... ‘recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, ... and promotes public respect for the criminal process by focusing on the underlying fairness of the trial.’ ” Neder, 527 U.S. at 18, 119 S.Ct. at 1838 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).

¶46. The test for harmless error is whether “it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” Neder, 527 U.S. at 15, 119 S.Ct. at 1837 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Contrary to the majority’s representation, in determining whether the error was harmless, we do not act as a second jury, but rather “ask[ ] whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” Neder, 527 U.S. at 19, 119 S.Ct. at 1839. Such evidence might be that the defendant contested the omitted element and presented sufficient evidence to support a contrary finding. Id. at 19, 119 S.Ct. at 1838. “If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error ... it should not find the error harmless.” Id. But if it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,” then the error was harmless. Id. “[Wjhere a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Id. at 17,119 S.Ct. at 1837.

¶ 47. I now review the omitted elements of robbery and determine whether the record “contains evidence that could rationally lead to a contrary finding with respect to the omitted element,” or whether “the omitted element was uncontested and supported by overwhelming evidence.” Neder, 527 U.S. at 19, 119 S.Ct. at 1839. Mississippi Code Section 97-3-73, defining the crime of robbery, provides: “Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.” Miss.Code Ann. § 97-3-73 (Rev.2006). The elements of robbery include “(1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence.” Goff v. State, 14 So.3d 625, 647 (Miss.2009). The killing of a human being is capital murder if done “with or without any design to effect death by any person engaged in the commission of the crime of ... robbery....” Miss.Code Ann. § 97-3-19(e) (Rev.2006).

¶ 48. The record contains overwhelming evidence that Harrell killed Damico while engaged in the commission of a robbery. Damico was last seen alive when he left with Harrell in the blue Mercury. Later, the blue Mercury was found in Harrell’s possession; he had the keys, and the car was within walking distance of Harrell’s location. Harrell confessed to Henry Peters that he had killed Damico, had put his body in the trunk, and had driven to Holmes County. Harrell’s description of the killing was consistent with the autopsy results. Harrell gave several conflicting statements to the police in which he admitted he was present during the crime. In each of these statements, Harrell stated that Shorty killed Damico and gave him the blue Mercury. There was overwhelming evidence that Harrell took the blue Mercury from Damico with felonious intent and by violence, killing him in the process, and that the elements of robbery were met.

¶ 49. The record is devoid of evidence that would rationally support a contrary finding. In fact, Harrell did not contest the element of robbery; his defense largely rested upon the theory that he had killed and robbed Damico in Holmes County, not Hinds County. It is clear beyond a reasonable doubt that a rational jury would have found Harrell guilty of capital murder had it been instructed on the elements of robbery. I can say confidently that the omission of the elements of robbery was harmless beyond a reasonable doubt.

¶ 50. While it is vital for trial courts to assure the jury is properly instructed on every element of the underlying felony in a capital-murder case, such errors should be subject to harmless-error analysis, because they do not necessarily mean that a trial was fundamentally unfair. Neder, 527 U.S. at 9, 119 S.Ct. 1827. Because the error here plainly was harmless beyond a reasonable doubt, a new trial is a waste of time and judicial resources. “ ‘[A] defendant is entitled to a fair trial but not a perfect one,’ for there are no perfect trials.” Avery v. State, 119 So.3d 317 (Miss.2013) (quoting Brown v. U.S., 411 U.S. 228, 231-232, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973)). While Harrell’s trial was not perfect, it was not fundamentally unfair. I respectfully dissent.

¶ 51. WALLER, C.J., AND PIERCE, J., JOIN THIS OPINION.

      . We note that the capital-murder instruction incorrectly stated that the killing had to have been done with malice. There is no malice requirement for capital murder. See Miss. Code Ann. § 97-3-19(2)(e) (Rev.2006); Stevenson v. State, 733 So.2d 177, 186 (Miss.1998). However, because the error favored Harrell by increasing the State’s burden of proof, no reversible error occurred.

      . Under Neder, a total failure to instruct the jury on the elements of the crime would vitiate all the jury's findings and would not be subject to harmless-error analysis. Therefore, the majority's fear that this Court would deem such an error harmless is unfounded.

      . The elements of child abuse in Mississippi Code Section 97-5-39(2) were revised effective July 1, 2013. Miss.Code Ann. § 97-5-39(2) (Supp.2013).


author: PIERCE, Justice,

text:
    Larry L. KIMBROUGH a/k/a Larry Kimbrough, Patricia Kimbrough Hawthorne a/k/a Patricia Hawthorne, Effie Kimbrough Gray and Kinney Lee Malone a/k/a Kenny Kimbrough v. ESTATE OF David “Junior” KIMBROUGH, Deceased, and Mildred Washington.
    No. 2012-CA-02029-SCT.
    Supreme Court of Mississippi.
    March 20, 2014.

      William James Dukes, James Lawton Robertson, Jackson, attorneys for appek lant.
    Carter C. Hitt, Oxford, Gwendolyn Baptist-Hewlett, Southaven, attorneys for ap-pellee.
    Before RANDOLPH, P.J., PIERCE and KING, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. David “Junior” Kimbrough passed away on January 17, 1998, leaving his entire estate to his long-time girlfriend, Mildred Washington. Matthew Johnson was named executor of the estate in Kim-brough’s Last Will and Testament. Johnson petitioned the court to probate Kimbrough’s will on May 21, 1998. The following day, the chancery clerk admitted the will for probate, appointed Johnson executor, and issued letters testamentary. Contestants filed to contest the will on August 18, 1998, and no other entries were filed during the next ten years. In September 2008, an entry of appearance was entered on behalf of four remaining contestants, which was followed by an entry of appearance on behalf of Johnson.

¶ 2. In May 2009, the chancery court denied Executor’s Rule 41(b) motion to dismiss, granted Contestants’ motion to compel discovery, granted Contestants’ motion to remove executor, and appointed the chancery clerk of Marshall County as executor. Washington was issued a summons notifying her of the will contest. Johnson then filed his motion to dismiss alleging a violation of Mississippi Rule of Civil Procedure 4(h), because Washington was served process almost eleven years after the commencement of the action. Washington subsequently filed her motion for ratification and for support of the motion to dismiss. The trial court denied the motion to dismiss, but it granted a stay of the proceedings pending petition for interlocutory appeal to this Court, which we subsequently denied.

¶ 3. A trial on the matter was held in October 2012. After Contestants rested their case, Proponents (Estate of David “Junior” Kimbrough, deceased, and Mildred Washington) moved the trial court for dismissal, and the chancellor ultimately granted their motion and dismissed the case. Contestants now appeal to this Court on the following issues:

I. Whether Proponents made a pri-ma facie case of a valid will;
II. Whether Contestants made a pri-ma facie case that, before and on July 2, 1997, David “Junior” Kim-brough had a confidential, dependent and reliant relationship with Matthew A. Johnson;
III. Whether Contestants made a pri-ma facie case of suspicious circumstances surrounding the purported
Last Will of David “Junior” Kim-brough, deceased;
IV. Whether Contestants made a pri-ma facie (and all but irrefutable) case of Matthew Johnson’s conflicting interests and/or bad faith in procuring the purported Last Will of David “Junior” Kimbrough, in which Johnson was named executor, though Proponents bore the burden of proof on that issue by clear and convincing evidence;
V. Whether a will produced by the undue influence of another who acts in bad faith should be upheld, just because the wrongdoer is not a conventional beneficiary under the will, even though the wrongdoer does receive valuable benefits he could never have enjoyed without the will;
VI. Whether the trial judge erred when he granted Proponents’ Mississippi Rule of Civil Procedure 41(b) motion to dismiss at the end of Contestants’ case;
VII. Whether the trial judge erred when he relied on the testimony of Jennifer Kirk Sanders in granting Proponents’ Rule 41(b) motion to dismiss, when she said nothing with Mississippi Rule of Evidence 401 Relevance to the outcome-determinative, confidential-relationship issue;
VIII. Whether the trial judge erred when he failed to hold that, by reason of Contestants’ prima fa-cie showing, a presumption of Matthew Johnson’s undue influence in procuring the Last Will of David “Junior” Kimbrough arose, which required that the will be set aside unless Proponents produced clear and convincing evidence of (a) Johnson’s good faith in procuring the Kim-brough will, (b) Junior Kim-brough’s full knowledge and deliberation, and (c) Kimbrough’s independent consent and action in making the will; and
IX.All subsidiary issues implicit in one or more of the foregoing issues.
¶ 4. After hearing oral argument on the matter, we will analyze the trial court’s ruling based on the following:
Whether the trial judge erred by granting Proponents’ Mississippi Rule of Civil Procedure 41(b) motion to dismiss at the end of Contestants’ case.

STATEMENT OF THE FACTS

¶ 5. David “Junior” Kimbrough lived his life in Marshall County, Mississippi, where he learned to play the guitar at a young age and went on to open a juke joint. Kimbrough’s music added his own unique sound and style to the traditional rhythm of the blues. Right before his sixty-second birthday, Kimbrough signed a recording contract with Fat Possum Records.

¶ 6. Matthew Johnson, the original executor of Kimbrough’s will, is associated with Fat Possum Records, Inc., and Mockingbird Blues Publishing, Ltd. Johnson is a founding member, investor, and officer of these two companies, which are located in Oxford, Mississippi. Over the next five years following Kimbrough’s entering into the recording contract, he recorded albums with Fat Possum Records and signed publishing agreements with Mockingbird Blues Publishing. The contracts made between Kimbrough and Mockingbird Blues Publishing effectively gave the publisher or any officer of the company power of attorney over his compositions.

¶ 7. Kimbrough’s health began to decline the year before his death as a result of being involved in an automobile accident. That same year, Kimbrough met with Johnson and Bruce Watson, a manager and producer for Fat Possum Records. At their meeting, Kimbrough signed three separate assignments of copyright and his last will and testament.

¶ 8. At trial, testimony supported that Kimbrough could barely read or write, and that he was unable to read, or understand on his own, the contracts that he entered into. Johnson stated that he explained the contracts to Kimbrough before he signed them, but that Kimbrough never had an attorney present with him. Johnson also testified that Kimbrough relied on Johnson to be candid with him regarding their business dealings.

¶ 9. Contestants presented testimony and arguments to support their contention that Kimbrough’s relationship with Johnson qualified as a confidential relationship, ánd that Johnson used their confidential relationship to influence Kimbrough unduly in the signing of his last will and testament. The chancellor ultimately determined that Contestants had failed to meet their burden of proof to raise the presumption that Johnson had influenced Kim-brough unduly. Contestants now appeal the chancellor’s grant of Proponents’ Rule 41(b) motion to dismiss.

STANDARD OF REVIEW

¶ 10. The chancellor’s findings regarding undue influence are findings of fact, and this Court will not interfere with those findings “... unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Van Cleave v. Estate of Fairchild, 950 So.2d 1047, 1051 (Miss.Ct.App.2007) (citing Watkins v. Watkins, 142 Miss. 210, 229, 106 So. 753, 755 (1926); Sanderson v. Sanderson, 824 So.2d 623, 625-26 (Miss.2002)).

ANALYSIS

Whether the trial judge erred by granting Proponents’ Mississippi Rule Civil Procedure 41(b) motion to dismiss at the end of Contestants’ case.

¶ 11. As previously mentioned, Contestants argue that Johnson’s and Kimbrough’s relationship was confidential, and that Johnson took advantage of their relationship by unduly influencing Kim-brough to leave his entire estate to Mildred Washington in his Last Will and Testament. Contestants further argue that ample evidence was presented to raise a presumption of undue influence; therefore, the chancellor erred in not finding the same, and Proponents should have been required to prove by clear and convincing evidence that undue influence did not occur.

¶ 12. In re Estate of Laughter defines a confidential relationship as “... between two people in which one person is in a position to exercise dominant influence upon the other because of the latter’s dependency on the former arising either from weakness of mind or body, or through trust[.]” In re Estate of Laughter, 23 So.3d 1055, 1063 (Miss.2009) (quoting Hendricks v. James, 421 So.2d 1031, 1041 (Miss.1982)). Further, this Court has identified the following seven factors to consider when determining whether a confidential relationship exists:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

Laughter, 23 So.3d at 1063 (citing In re Estate of Holmes, 961 So.2d 674, 680 (Miss.2007) (citing Wright v. Roberts, 797 So.2d 992, 998 (Miss.2001))).

¶ 13. If it is determined that a confidential relationship exists, an abuse of that relationship must be shown for the Contestants to raise a proper presumption of undue influence. Costello v. Hall, 506 So.2d 293, 298 (Miss.1987). The existence of a confidential relationship, standing alone, does not raise a presumption of undue influence. Laughter, 23 So.3d at 1064 (citing Wright, 797 So.2d at 999 (citing Croft v. Alder, 237 Miss. 713, 723-24, 115 So.2d 683, 686 (1959))); see also Matter of Will of Adams, 529 So.2d 611, 615 (Miss.1988); Matter of Will of Wasson, 562 So.2d 74, 78 (Miss.1990).

¶ 14. The person who allegedly is taking advantage of the confidential relationship “... must have used that relationship for his personal gain or to thwart the intent of the testator.” Costello, 506 So.2d at 298 (citing Croft, 237 Miss. at 723, 115 So.2d at 686); see Barnett v. Barnett, 155 Miss. 449, 457, 124 So. 498, 500 (1929) (undue influence over the execution of a will arises when the testator’s will is replaced by the will of another); and Was-son, 562 So.2d at 79 (undue influence results in a will reflecting the beneficiary’s wishes rather than the wishes of the testator); Matter of Will of Adams, 529 So.2d 611, 615 (Miss.1988) (To effectively raise the presumption of undue influence, there must be a showing that the confidential relationship was abused through dominance over the testator or by replacement of the testator’s intent for that of the beneficiary.).

¶ 15. Laughter reaffirmed that a presumption of undue influence arises when the following circumstances are present:

where the beneficiary has been actively concerned in some way with the preparation or execution of the will[;] or where the relationship is coupled with some suspicious circumstances, such as mental infirmity of the testator; or where the beneficiary in the confidential relation was active directly in preparing the will or procuring its execution, and obtained under it a substantial benefit.

Laughter, 23 So.3d at 1064 (quoting Croft, 237 Miss. at 723-24, 115 So.2d at 686) (internal citations omitted).

¶ 16. Commonly, undue influence is exerted by a person who is a named beneficiary in the will. However, this Court has extended the doctrine to nonbe-neficiaries. The extension to nonbenefici-aries is seen in Weston v. Lawler’s Estate, in which this Court stated, “Undue influence over a testator, while' not exercised by a beneficiary under the will, may be done so through an agency or a third person.” Weston v. Lawler’s Estate, 406 So.2d 31, 34 (Miss.1981) (citations omitted); see also Wasson, 562 So.2d at 79.

¶ 17. In Weston, the testator moved into the home of Horne, who subsequently was named the executor of the will, was granted a general power of attorney over the testator’s property, and was named as trustee under the will. Weston, 406 So.2d 31. Horne’s wife and mother-in-law also lived in the home, and both women were named beneficiaries under the will. Id. At trial, the testator’s physician testified that, at the time the testator executed his will,' he was suffering from several illnesses and had sustained brain damage from a recent accident; thus he was not mentally competent when the will was executed. Id. at 32. This Court held that Horne, Horne’s wife, and his mother-in-law all were in a confidential relationship with the testator, but that the jury should have made the determination as to testamentary capacity and undue influence; thus the case was remanded for a new trial. Id. at 34-35.

¶ 18. We find the case before us is distinguishable from Weston. Weston, 406 So.2d 31. Although Kimbrough’s health was declining, there is no indication whatsoever that he lacked mental capacity to understand the distribution of his estate. In fact, Contestants do not raise mental incapacity as an issue.

¶ 19. Comparing the present case to Weston, in which we extended the confidential-relationship and undue-influence doctrines to a nonbeneficiary, we find the facts of this case do not support the existence of a confidential relationship between Kimbrough and Johnson. Weston, 406 So.2d 31. In Weston, Horne had a general power of attorney over all of the testator’s property, whereas here, Johnson had a power of attorney only over Kim-brough’s compositions. Weston, 406 So.2d at 34. Further, in Weston, Horne was a trustee under the will, giving him the power to pay net income from the trust to his mother-in-law, and if his mother-in-law predeceased the testator, Horne was to establish trusts in equal shares for his wife and sister-in-law. Id. In the present case, Johnson is responsible only for paying Washington royalties from Kimbrough’s recording contract with Johnson’s company.

¶ 20. Although Johnson facilitated the execution of Kimbrough’s will, as did Horne in Weston, Johnson testified that, in hindsight, the company should not have been involved in helping any client with his or her will. Johnson also provided that he never accepted any compensation for serving as executor of the estate. Weston, 406 So.2d at 32-33. The chancellor determined that Johnson did not benefit from Washington receiving Kimbrough’s entire estate. See generally Laughter, 23 So.3d at 1064 (quoting Croft, 237 Miss. at 723-24, 115 So.2d at 686). Also, only four children currently are contesting the will, which is only a small fraction of the supposed thirty-six children that Contestants allege Johnson was trying to avoid by convincing Kimbrough to leave his estate to Washington alone.

¶ 21. Contestants call attention to the chancellor’s ruling that a confidential relationship did not exist between Kimbrough and Washington, which was never an issue to be decided. Even though the chancellor failed to rule explicitly on whether a confidential relationship existed between Kim-brough and Johnson, he did find that there was nothing for Johnson to gain by Kim-brough leaving his estate to Washington versus leaving his estate to his children. Further, during the cross-examination of Johnson, the chancellor confirmed that he understood the issue before the court by stating,

I realize that the relationship between him (Johnson) and Mr. Kimbrough, and for Mr. Kimbrough to get as far along as he got in his music career had to be a very bright man. Now, the question before this court is whether or not he fully understood what he had signed, or whether undue influence was used on him.

¶ 22. The chancellor also determined that the testimony overwhelmingly showed that Kimbrough “called his own shots.” The chancellor went on to conclude that, even though Kimbrough was uneducated, he was not ignorant, and in fact, he was an extremely intelligent man. The chancellor pointed to the testimony revealing that, since Kimbrough could not read or write, all of his songs were performed from his memory alone. He further pointed to testimony providing that Kimbrough was hardheaded and did not let others pressure him. The chancellor ultimately decided that the Contestants had did not meet their burden of proof, because their allegations were nothing more than “a lot of suspicions.”

¶ 23. Lastly, it should be noted that, when reviewing a will contest, the polestar consideration is to carry out the intent of the testator. Wasson, 562 So.2d at 79 (citing Tinnin v. First United Bank of Mississippi, 502 So.2d 659, 667 (Miss. 1987)). During the chancellor’s ruling, he discussed that Kimbrough had a child with Washington, that Washington was the last woman Kimbrough lived with, and that he was on her couch the day before he died. Testimony provided that Washington and Kimbrough had a relationship for many years. Washington is pictured on the inside cover of his last-released album. Johnson testified that when Kimbrough became ill, he was instructed to pay Washington any sums owed to Kimbrough by his companies, because Washington was the person who took care of Kimbrough.

¶ 24. In respect to the chancellor’s findings of fact, we find ample evidence in the record to support such findings. Further, the chancellor did not abuse his discretion or apply an erroneous legal standard; nor was he manifestly wrong or clearly erroneous in his determinations. Hence, we affirm the chancellor’s ruling. Van Cleave, 950 So.2d at 1051 (citing Watkins, 142 Miss. at 229, 106 So. at 755).

CONCLUSION

¶ 25. The chancellor did not abuse his discretion in granting Proponents’ Mississippi Rules Civil Procedure 41(b) motion to dismiss. Therefore, we affirm the decision of the chancery court.

¶ 26. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, KING AND COLEMAN, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.

      . www.fatpossum.com/artists/junior-kimbrough (last visited March 19, 2014).


author: CHANDLER, Justice,

text:
    ENTERGY MISSISSIPPI, INC. and Jay B. Coleman, Jr. v. Karen RICHARDSON.
    No. 2012-IA-01686-SCT.
    Supreme Court of Mississippi.
    March 20, 2014.

      James Earl Graves, III, Charles Edwin Ross, James W. Snider, Jr., Jackson, attorneys for appellants.
    Everett T. Sanders, Scott J. Pintard, Natchez, Claude Pintard, for attorneys for appellee.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. This is a direct appeal from the Hinds County Circuit Court. The trial court granted plaintiff Karen Richardson’s motion to reinstate a negligence action arising out of a 2001 automobile accident involving a truck owned by defendant En-tergy Mississippi, Inc., (“Entergy”). Richardson’s action had been dismissed for failure to prosecute. We find that the trial court erred in granting the motion to reinstate. While the statute of limitations did not operate to preclude an evaluation of the merits for equitable relief under Mississippi Rule of Civil Procedure 60(b), no valid Rule 60(b) grounds existed for granting relief from the dismissal of the action.

FACTS AND PROCEEDINGS BELOW

¶ 2. In February 2001, Karen Richardson was in an automobile accident that occurred when a 'truck owned by Entergy allegedly struck hér vehicle. In February 2004, Richardson filed a tort action against Entergy and the driver of the truck. The parties conducted discovery, including depositions. In 2012, the court ordered a docket call and sent notice that “cases that have not had any ‘substantial activity’ for twelve months or more will be dismissed for failure to prosecute.” Entergy’s attorney appeared at the docket call. Neither Richardson nor her lawyer appeared. The court dismissed the case for lack of prosecution, finding that there had been no substantial activity in the case since 2006. The dismissal was not the result of a motion to dismiss by Entergy.

¶ 8. More than ten days later, Richardson filed a motion to reinstate the case, arguing that the case was ready for trial, that filing a new complaint would require both parties to invest additional time and expenses, and that if not granted, “[pjlain-tiff may very well be confronted with a statute of limitations issue.” The court granted the motion to reinstate, stating,

... the Court finds that both parties have failed to request a trial date and file agreed scheduling orders as required by this Court. The Court has had at least three docket calls since the action was filed and no motion to dismiss for failure to prosecute has been initiated at or prior to docket call. As such, the court finds all parties to have been dilatory in resolving this case....

¶ 4. On appeal, Entergy argues that reinstatement of the case was improper because no valid Rule 60(b) grounds for relief existed, and that Rule 60(b) was neither mentioned in the motion nor discussed in the order to reinstate. Entergy also argues that the motion to reinstate was time-barred because the statute of limitations ran after the claim was dismissed without prejudice for failure to prosecute. Richardson argues that the circuit court acted within the discretion provided by Rule 60(b)(6) in reinstating the case.

DISCUSSION

I. Richardson’s motion to reinstate was not barred by the statute of limitations.

¶ 5. We treat Richardson’s motion to reinstate as a motion for relief from a final judgment under Rule 60(b). Motions served after ten days of the rendition of a judgment typically are construed as Rule 60(b) motions. See Carlisle v. Allen, 40 So.3d 1252, 1260 (Miss.2010); Cannon v. Cannon, 571 So.2d 976, 978 (Miss.1990); Bundick v. Bay City Indep. Sch. Dist., 192 F.3d 126, 1999 WL 683857 (5th Cir.1999). Rule 60(b) provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) fraud, misrepresentation, or other misconduct of an adverse party; (2) accident or mistake; (3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (4) the judgment is void; (5) the judgment has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; (6) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken .... This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.

M.R.C.P. 60(b) (emphasis added).

¶ 6. Entergy argues that Richardson’s motion to reinstate was barred by the statute of limitations under Knight v. Knight, 85 So.3d 832, 838 (Miss.2012), in which this Court held that the statute of limitations is not tolled when a cause of action is dismissed without prejudice for lack of prosecution. But our holding in Knight was decided in the context of a new action filed after dismissal for lack of prosecution, and the Knight opinion explicitly noted that the rule might not result in barring a claim in certain equitable circumstances. While a Rule 60(b) motion is subject to the limitations provided by the language of Rule 60 itself (“the motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment ... ”), the fact that the limitations period may have expired upon dismissal of a claim will not bar a motion for reinstatement under Rule 60(b).

¶ 7. In Knight we adopted the rule from and quoted extensively King v. Jujan:

A party who has slept on his rights should not be permitted to harass the opposing party with a pending action for an unreasonable time. Rule 41(e) specifically addresses this concern. Holding that a Rule 41(b) dismissal without prejudice tolls the statute for the time the case was pending could conceivably extend the time for bringing the suit indefinitely; the plaintiff could continuously refile but never act to bring the case to its conclusion. Furthermore, the courts should not distinguish between a plaintiff who takes no action before the limitations period expires and a plaintiff who files a complaint before the period expires but who thereafter takes no action. ...

Knight, 85 So.3d at 837 (quoting King v. Lujan, 98 N.M. 179, 646 P.2d 1243, 1245 (1982)).

¶ 8. Unlike in Knight, no new action was filed in this case. Rather, Richardson filed a motion to reinstate which we treat as a motion under Rule 60(b) since it was made more than ten days after the order dismissing the case. A subsequent New Mexico case in King’s progeny addresses the Rule 60(b) context we have here. In Meiboom v. Watson, 128 N.M. 536, 994 P.2d 1154 (2000), the lower court granted a motion to reinstate after dismissal for failure to prosecute despite the district court’s characterization of the motion as “the barest motion I’ve seen in ten years on the bench.” Id. at 538, 994 P.2d 1154. The New Mexico Court of Appeals found that, based on King, the lower court lacked jurisdiction to grant the reinstatement because the motion to reinstate was time-barred. Id. at 539, 994 P.2d 1154. Although agreeing that the motion to reinstate should not have been granted, the New Mexico Supreme Court rejected the statute-of-limitations argument, saying that

If we were to agree with the district court’s interpretation that King was in fact a Rule 1 — 060(B)(6) case, it would serve to obviate the underlying purposes of Rule 1 — 060(B)(6). It would render nonexistent the ability of a court’s equitable powers to grant relief from final judgement in Rule 1 — 060(B)(6) cases after the statute of limitations has run.

Id. at 540, 994 P.2d 1154 (emphasis added.)

¶ 9. The same principle applies here where we mark the procedural distinction between the filing of a new complaint and filing a motion to reinstate under Rule 60(b). Subject to the limitations imposed by Rule 60(b) itself, a motion to reinstate on Rule 60(b) grounds will be evaluated on the merits and is not automatically precluded by our holding in Knight.

II. Whether valid Rule 60(b) grounds for relief existed to justify granting the plaintiff’s motion to reinstate.

¶ 10. Entergy argues that, because Richardson failed to argue or established any Rule 60(b) grounds for relief, the circuit court improperly granted the motion to reinstate. This Court has held that “Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances, and that neither ignorance nor carelessness on the part of an attorney will provide grounds for relief.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss; 1984). Rule 60(b) “is not an escape hatch for litigants who have procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies.” Doll v. BSL, Inc., 41 So.3d 664, 669 (Miss.2010); Bruce v. Bruce, 587 So.2d 898, 904 (Miss.1991). Rule 60(b)(6)’s “catch-all” provision does not grant trial judges blanket discretion to reinstate cases. This Court has held that “for a party to be granted relief under Rule 60(b)(6), he must demonstrate extraordinary circumstances which prevented or rendered him unable to prosecute his case.” Regan v. South Cent. Reg’l Med. Ctr., 47 So.3d 651, 655 (Miss.2010) (quoting Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir.2002)). “Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case.” Stringfellow, 451 So.2d at 221.

¶ 11. Richardson’s motion to reinstate merely argued, in essence, that it would be inconvenient, expensive, and time-consuming to file a new complaint against Entergy and that Richardson “may very well be faced with a statute of limitations issue.” The order granting the motion to reinstate in essence finds that all parties involved were “dilatory” and, therefore, the case should go forward. None of the above reasons argued or found constitute valid Rule 60(b) grounds for relief. There is no allegation of fraud or misconduct, accident or mistake, new evidence, or a void judgment. We find, and the parties appear to agree in briefing, that Rule 60(b)(6) is the only possible enumerated ground for relief that could apply to Richardson’s motion to reinstate. But no additional “extraordinary” reasons for granting relief are presented. And while the potential running of the statute of limitations on the underlying claim demonstrates prejudice to the moving party, that in itself is insufficient grounds for granting reinstatement.

¶ 12. Richardson argues that, because the dismissal was for the purpose of docket control, and it did not come about as the result of a defense motion to dismiss, that the trial court was acting appropriately within its discretion in reinstating the case. To support her argument that “the court apparently determined, after balancing the competing policy consideration^], that [Richardson] deserved her day in [e]ourt,” Richardson depends on Cucos, Inc. v. McDaniel, 938 So.2d 238 (Miss.2006). In Cucos, this Court held that “[i]t is well established in our jurisprudence that the right result reached for the wrong reason will not be disturbed on appeal” where the movant incorrectly identified “the subsection for which relief was available and no identification of the appropriate prong of Rule 60(b) [was made] by the trial court.” Id. at 240. But, while it is accurate that Rule 60(b) relief can be granted when Rule 60(b) grounds are presented but not accurately labeled, here, no Rule 60(b) grounds for relief were presented in the motion to reinstate or identified in the order granting the motion. The case was appropriately dismissed after six years of inactivity, multiple docket calls, the plaintiffs failure to appear after clear notice from the circuit court that the case would be dismissed absent activity moving the case forward, and no cognizable grounds for reinstatement were shown.

¶ 13. Richardson also argues that Entergy has not been prejudiced by the six-year failure to prosecute. This is not a valid ground for relief from a final judgnent of dismissal for failure to prosecute. “Actual prejudice is not a requirement for dismissal under Rule 41(b).” Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 192, 200 (Miss.2010). Further, “prejudice may be presumed from unreasonable delay.” Id. (quoting Cox v. Cox, 976 So.2d 869, 879 (Miss.2008)).

CONCLUSION

¶ 14. Even though Richardson’s Rule 60(b) motion to reinstate was not barred by the statute of limitations, the trial court improperly granted the motion because no valid grounds for relief existed. The case was appropriately dismissed for failure to prosecute and no extraordinary circumstances were present to justify reinstatement. The judgment of the Hinds County Circuit Court granting reinstatement is reversed and judgment is entered here, dismissing the case without prejudice.

¶ 15. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN JJ„ CONCUR.

      . We stated that "this holding, however, does not mean that all cases dismissed without prejudice after the statute of limitations has expired cannot be refiled. Some will be revived by the savings statute, equitable tolling, or otherwise. Our narrow holding here is merely that dismissal without prejudice for want of prosecution does not toll the statute of limitations.” Id. at 838.

      . Motions filed within ten days are treated under Rule 59.

      . New Mexico’s Rule 1-060(B) is comparable to Mississippi’s Rule 60(b).