text:
    Vicky PACK, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.
    No. 4D12-3146.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.

      Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, for appellant.
    Angela C. Flowers of Kubicki Draper, Ocala, for appellee.
   PER CURIAM.

Vicky Pack sued Geico General Insurance Company (“Geico”) for injuries suffered following a car collision with an uninsured motorist. The evidence was undisputed that Pack suffered at least a neck sprain as a result of the accident and had medical expenses related to the diagnosis of the sprain. The jury returned a verdict for zero damages. Pack appeals the trial court’s denial of her motion for new trial. We reverse, holding that under the facts of this case, Pack was entitled to the reasonable medical expenses incurred for diagnostic testing, and the failure to award any damages rendered the verdict both against the manifest weight of the evidence and inadequate.

Pack also contends that she is entitled to a new trial because the trial court denied her motion in limine and permitted the defense to introduce a letter of protection between her and her treating physician who testified as her expert witness on her claim of more serious injuries to her neck. Under Section 90.608(2), Florida Statutes (2009), any party may impeach a witness’s credibility by showing that the witness is biased. We affirm the lower court’s ruling because a letter of protection between a plaintiff and a treating physician is relevant to show potential bias.

Factual Background

Pack was involved in a multi-car accident with an uninsured driver. She had an uninsured motorist policy through Gei-co. At trial, Geico admitted the negligence of the driver; therefore the issue for the jury was whether that negligence was the legal cause of the loss, injury, or damage sustained by Pack.

Pack’s medical expert, Dr. Gieseke, is a neurosurgeon who examined Pack upon a referral from the emergency room doctor. Treatment commenced under a letter of protection.

Each medical expert testifying at trial agreed that an injury was caused by the accident. However, they differed as to the severity of the injury. Dr. Gieseke explained that Pack suffered a neck sprain from which he could feel a neck spasm. He also diagnosed her with a fracture and disc herniation. Geico’s medical expert, Dr. Routman, stated that the accident caused only a neck sprain.

Prior to the accident at issue, Pack was twice hospitalized with complaints including neck pain. During examinations after the accident, she did not reveal either pri- or hospitalization to either Dr. Gieseke or Dr. Routman. She testified that the neck pain on both occasions was minor and incidental to other more severe injuries.

The jury returned a verdict stating that the uninsured driver’s negligence was the legal cause of damage to Pack. However, the jury awarded Pack zero damages for past or future medical expenses and declared her injury non-permanent. Pack moved for a new trial on the bases that the verdict was both inadequate and against the manifest weight of the evidence. The motion was denied. Pack now appeals, claiming the trial court error erred by denying a new trial and by allowing evidence of a letter of protection.

Analysis

I. Manifest Weight of the Evidence and Inadequate Verdict

Generally, a plaintiff may recover the medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused her injuries. Sparks-Book v. Sports Authority Inc., 699 So.2d 767, 768 (Fla. 3d DCA 1997). This is true whether or not the jury finds the accident to be the legal cause of the injury. Id.

An exception to the general rule exists when certain factors are met. In State, Department of Transportation v. Rosario, 782 So.2d 927, 928 (Fla. 2d DCA 2001), the court listed the factors that could allow a jury to award a zero verdict regardless of any medical expenses incurred. These factors include pre-existing injuries with extensive treatments, lack of candor with treating physicians, videotapes that show actual physical capabilities, and expert medical opinions which conflict as to causation. Id. The court upheld the zero verdict because the evidence supported the fact the “jury could conclude that [the plaintiff] suffered no damages as a result of the ... accident.” Id.

In this case, there is no evidence that Pack’s prior neck injuries required extensive treatments. There were no videotapes depicting her physical capabilities. Finally, both the plaintiff and defense experts agreed that Pack suffered at least a neck sprain as a result of the accident. Therefore, the jury had no reasonable basis to conclude that Pack suffered no injury as a result of the accident, and the verdict was against the manifest weight of the evidence.

Further, because Pack was awarded zero damages, the verdict is inadequate as a matter of law. “The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable [persons] could have returned that verdict.” Griffis v. Hill, 230 So.2d 143, 145 (Fla.1969). Because the exception to the general rule, requiring payment of diagnostic testing, does not apply, Pack was entitled to at least the medical costs for reasonable diagnostic testing.

II. Letter of Protection

Any party may attack the credibility of a witness by exposing a potential bias. § 90.608(2), Fla. Stat. (2009). Evidence pertaining to a letter of protection between a plaintiff and her treating physician, when that treating physician testifies as an expert on the plaintiffs behalf, is relevant to show potential bias. See Carnival v. Jimenez, 112 So.3d 513, 520 (Fla. 2d DCA 2013); see also Allstate Inc. Co. v. Boecher, 733 So.2d 993, 997 (Fla.1999) (“A jury is entitled to know the extent of the financial relationship between the party and the witness.... ”).

Pack argues that evidence pertaining to a letter of protection, absent a referral relationship from the lawyer to the doctor, is not relevant according to this court’s prior ruling in Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011). In Katzman, this court held that a letter of protection is not sufficient in itself to allow discovery of an expert beyond that permissible under Florida Rule of Civil Procedure 1.280(b)(4)(A). This court stated that a referral from a lawyer to the expert witness doctor injects the doctor into the litigation and therefore the balance shifts in favor of allowing discovery. Katzman, 76 So.3d at 1064. However, this court did not state that a letter of protection is not relevant to show potential bias.

Similarly, Steinger, Iscoe & Greene v. GEICO General Insurance Co., 103 So.3d 200 (Fla. 4th DCA 2012) does not state that letters of protection are irrelevant to show potential bias. In Steinger, this court held that discovery of letters of protection was premature. Id. At 206. Steinger is distinguishable because, in that case, Geico sought discovery of all letters of protection between the law firm and four medical providers regardless of whether the letters of protection pertained to the plaintiff in that case. Id. at 203. The purpose of discovering the letters of protection in Steinger was to expose the extent of the financial relationship between the law firm and the treating physicians. Id. at 205. This court held that because the discovery went beyond that permissible under Florida Rule of Civil Procedure 1.280(b)(5)(A), it was premature absent a showing of a financially beneficial relationship between the law firm and the doctors, including a referral relationship. Id. at 206.

Both Katzman and Steinger are inappo-site to the instant case because they pertain to discovery of financial information beyond what is generally permissible under Florida Rule of Civil Procedure 1.280. Neither case stands for the proposition that evidence pertaining to a letter of protection between a plaintiff and her treating physician is not relevant to show a potential bias when that treating physician testifies as the plaintiffs medical expert. Therefore, the trial court properly admitted the evidence pertaining to the letter of protection because it was relevant to show a potential bias.

Therefore, we reverse and remand for a new trial on damages for Pack’s undisputed, non-permanent neck sprain.

Reversed and remanded for further proceedings.

WARNER, CONNER, JJ., and LEVENSON, JEFFREY, R., Associate Judge, concur.

      . Pack argues a new trial on liability is warranted because the first interrogatory on the verdict form used "damage” rather than "injury,” thus the jury may have answered "yes” to the interrogatory because Pack's vehicle was damaged. We disagree with Pack's argument. Nothing in the jury instructions or closing arguments would have suggested to the jury that physical damage to Pack’s vehicle was an issue to be decided by the jury. The jury expressly determined Pack did not suffer a permanent injury. As to that issue, the jury’s verdict was not against the manifest weight of the evidence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The PORT MARINA CONDOMINIUM ASSOCIATION, INC., Appellant, v. ROOF SERVICES, INC., d/b/a Best Roofing, Everglades, LLC. and Building Materials Corporation of America a/k/a GAF Materials Corporation, Appellees.
    No. 4D12-3693.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.

      Jennifer Walker of Jennifer Walker, P.A., Fort Lauderdale and Robin F. Hazel of Hazel Law, P.A., Pembroke Pines, for appellant.
    H. Randal Brennan of Brennan & Kretschmer, Vero Beach, for appellees.
   PER CURIAM.

Florida’s Condominium Act provides for a warranty of fitness and merchantability as to work provided by contractors and materials provided by suppliers for condominium developments, but not as to the manufacture of construction materials. Appellant, the Port Marina Condominium Association (“Port Marina”), sought relief against Appellee, GAF Materials Corporation (“GAF”), under the Act, but the trial court dismissed the complaint for failure to sufficiently allege that GAF was a supplier. Although the trial court did not err in dismissing Port Marina’s complaint, we reverse, holding that Port Marina should have been granted leave to amend.

Factual Background

Everglades, LLC (“Everglades”), the developer of the Port Marina Condominiums and an adjoining boat storage building, entered into agreements with Roofing Services, Inc. d/b/a Best Roofing (“Best Roofing”) to install a roof on the boat storage building and with GAF to guarantee a roof product called TOPCOAT. After the construction was completed, Everglades turned the condominium project over to Port Marina.

Port Marina noticed leaks in the roof of the boat storage building and contacted Best Roofing for repairs. After unsuccessful attempts at repairing the roof, Best Roofing advised Port Marina that failure of the TOPCOAT product caused the roof leaks. Port Marina then contacted GAF, which sent a representative to inspect the roof. The representative informed Port Marina that the application of TOPCOAT, and not the product itself, was the cause of the roof defects and that GAF would not accept responsibility for the roof failure.

Port Marina filed a complaint, seeking relief from Everglades, Best Roofing, and GAF under Florida’s Condominium Act, which contains an implied warranty of fitness and merchantability statute. § 718.203, Fla. Stat. (2012). GAF filed a motion to abate or in the alternative to dismiss, arguing that section 718.203(2) does not apply to product manufacturers like GAF. The trial court entered an order dismissing Count III of the complaint, the only count against GAF, relying on Harbor Landing Condominium Owners Ass’n. v. Harbor Landing, LLC, 78 So.3d 120 (Fla. 1st DCA 2012), and Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911 (Fla.1995), in determining that GAF was a manufacturer and not a “supplier” within the meaning of section 718.203(2).

Analysis

Port Marina argues that the trial court erred in granting GAF’s motion to dismiss Count III because it sufficiently alleged that GAF was a “supplier” within the meaning of section 718.203(2). Port Marina also contends that the trial court erred in failing to grant leave to amend the complaint.

Alleged Error in Granting GAF’s Motion to Dismiss

We review the sufficiency of a complaint in a civil action de novo. Harbor Landing, 78 So.3d at 121. In testing the legal sufficiency of a complaint, we accept all well-pleaded facts and reasonable inferences from those facts as true, Graves v. City of Pompano Beach, 74 So.3d 595, 597 (Fla. 4th DCA 2011), and confine ourselves to the allegations within the four corners of the complaint, Stubbs v. Plantation General Hospital Ltd. Partnership, 988 So.2d 683, 684 (Fla. 4th DCA 2008). The motion to dismiss should be affirmed if the plaintiff did not allege all the essential elements of a cause of action. Affiliates for Evaluation and Therapy, Inc. v. Viasyn Corp., 500 So.2d 688, 689 (Fla. 3d DCA 1987).

The Florida implied warranty of fitness and merchantability statute for condominiums states, in relevant part:

(2) The contractor, and all subcontractors and suppliers, grant to the developer and to the purchaser of each unit implied warranties of fitness as to the work performed or materials supplied by them....

§ 718.203(2), Fla. Stat. (2012) (emphasis added).

The essential elements of a cause of action under this statutory provision against a supplier are: (1) the defendant is a supplier of materials to a condominium; (2) the materials failed to conform to the generally accepted standards of merchantability applicable to goods of that kind, or the materials failed to conform to the requirements specified in the contract; and (3) the failure of the goods to conform was a proximate cause of the plaintiffs damages. See Leisure Resorts, 654 So.2d at 914. “Supplier” and “manufacturer” are not defined in Chapter 718, Florida Statutes. Black’s Law Dictionary defines “supplier” as “a person engaged, directly or indirectly, in the business of making a product available to consumers,” and “manufacturer” as “a person or entity engaged in producing or assembling new products.” Black’s Law Dictionary (9th ed.2009).

In Harbor Landing, the court affirmed the dismissal of the appellant’s claim under section 718.203(2) because the appellant failed to sufficiently plead the first essential element-that the appellee was a supplier of materials to the condominium. See Harbor Landing, 78 So.3d at 121. The court determined that the appellee was not a supplier but merely a manufacturer that “had no knowledge of the condominium project” and “did not supply anything for the condominium project.” Id. The court did not, however, create a categorical rule for manufacturers and stated, “[t]his is not to say that a manufacturer can never be considered a supplier for purposes of the warranties provided in section 718.203(2).” Id.

Here, Port Marina’s complaint alleged the following: GAF issued a written warranty for TOPCOAT to Everglades, GAF sent a representative to inspect the roof after Port Marina complained of roof leaks, the product break-down failure of TOPCOAT is evidenced by a white material across all roof surfaces, and the product failure will continue to impair the roofs function and cause property damage. Count III, the sole count against GAF, states, in relevant part:

37. Roof Product Manufacturer [GAF] owes a duty to [Port] Marina to exercise reasonable care, technical skill and ability in performing its obligations in supplying the roof system materials for the Marina’s roofing system.

(Emphasis added).

Even if we confine ourselves to the allegations within the four corners of the complaint and take all allegations to be true, the complaint did not sufficiently allege the first element-that GAF was a supplier of materials. It did not contain any allegations that GAF furnished, sold, or delivered anything to Everglades or Port Marina, i.e., that it “was in the business of making the product available to consumers,” as opposed to merely “producing or assembling” the product that Best Roofing, a roofing contractor, not a consumer, then purchased and used for the roofing project. The allegation that GAF entered into a guarantee contract with Everglades is not enough to establish that GAF supplied materials to Port Marina. Likewise, merely pleading that GAF owes a duty to exercise reasonable care in “supplying” TOPCOAT is insufficient to establish that GAF was in fact a supplier within the meaning of section 718.203(2).

Because Port Marina’s Complaint against GAF did not sufficiently allege an essential element of a cause of action under section 718.203(2), we affirm the trial court’s order granting GAF’s motion to dismiss Count III of the Complaint.

Alleged Error in Dismissing Without Granting Leave to Amend

The standard of review for orders denying leave to amend a complaint is abuse of discretion. See Soucy v. Casper, 658 So.2d 1017, 1018 (Fla. 4th DCA 1995). Leave to amend a complaint should be liberally granted “when justice so requires”, Fla. R. Civ. P. 1.190(a), and should be denied when the privilege to amend has been abused or if the amendment would be futile to state a cause of action. Soucy, 658 So.2d at 1018. “A denial of leave to amend a pleading is an abuse of discretion where the proffered amendment indicates that a plaintiff can state a cause of action.” Wayne Creasy Agency, Inc. v. Maillard, 604 So.2d 1235, 1236 (Fla. 3d DCA 1992).

Here, Port Marina requested leave to amend in a motion for rehearing. Port Marina should be given leave to amend to more clearly allege that GAF was a supplier within the meaning of section 718.208(2). Port Marina has not abused its privilege to amend, as this was the first time that it requested leave to amend. The complaint is amendable to state a cause of action if Port Marina can allege facts showing that GAF is a supplier within the meaning of section 718.208(2).

The trial court erred in not granting Port Marina leave to amend the complaint. We reverse and remand for further proceedings.

Reversed and remanded.

WARNER, CONNER, JJ., and LEVENSON, JEFFREY R„ Associate Judge, concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. J.M.B., a child, Respondent.
    No. 4D13-773.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 2013.
    Deborah A. Schroth, Jacksonville, for petitioner.
    Shahar V. Pasch of Legal Aid Society of Palm Beach County, Inc., West Palm Beach, and Burlington & Rockenbach, P.A., West Palm Beach, for respondent.
   PER CURIAM.

The Department of Children and Families (the “Department”) seeks certiorari review of a non-final discovery order. We grant the petition and quash the order. Dep’t of Children & Family Servs. v. I.C., 742 So.2d 401, 405 (Fla. 4th DCA 1999). In doing so, we acknowledge respondent’s limited concession, but decline to construe the order as requiring in camera production as it is clear in this case that the order required dissemination of the records. Cf. id.

The trial court issued the order under review while considering a suitability assessment associated with a specific dependent child. During the hearing, the court heard about delay between the child’s referral for psychiatric evaluation and the actual assessment. The court expressed frustration and then ordered the Department to produce to the attorney ad litem

[a]ll referrals, information, documentation or records made in the 30 days preceding this Order for a Palm Beach County dependent child to receive a psychiatric evaluation and/or assessment. Any and all information, documentation or records regarding the appointment made as a result of a referral for a psychiatric evaluation and/or assessment made in the preceding 30 days.

First, any such discovery should be reviewed in camera given the confidential nature of the children’s information. Id. Second, the production as ordered is too broad. Id. Consequently, we grant the petition and quash that portion of the order.

Petition for writ of certioran granted.

WARNER, TAYLOR and LEVINE, JJ., concur.

      . The Department contested only the portion of the order requiring it to release confidential records of children who are not parties to the case below. It noted that the dependent child’s placement rendered moot any other issues.


text:
    C.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1559.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Based on the State’s proper confession of error, and this Court’s independent review of the record, we reverse the trial court’s written order of disposition and remand with directions that the trial court enter an order that conforms to the trial court’s oral pronouncement. See, e.g., N.G. v. State, 50 So.3d 801 (Fla. 3d DCA 2011); S.D.F. v. State, 911 So.2d 887 (Fla. 3d DCA 2005).

Reversed and remanded.


author: SUAREZ, J. SCHWARTZ, Senior Judge

text:
    Craig ROBINS, an individual, Appellant, v. NEST CASA LLC, Appellee.
    No. 3D13-1324.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Podhurst Orseck and Joel D. Eaton, Miami-Dade; Richard and Richard and Dennis Richard and Michael R. Tolley, Miami, for appellant.
    White & Case and Raoul G. Cantero, David P. Draigh, Nicole H. Sulsky and Adam Schwartzbaum, Miami-Dade, for ap-pellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   On Confession of Error

SUAREZ, J.

Upon appellee’s confession of error, we remand to the trial court for further proceedings.

SCHWARTZ, Senior Judge

(specially concurring).

I agree to reverse, but would do so with directions to dismiss the complaint.


text:
    ETUDE MUDRY IGLEHART & ASOCIES, Etc., Appellants, v. Pasquale A. GIORDANO, Appellee.
    No. 3D13-930.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Levey, Filler, Rodriguez, Kelso & Magil-ligan, LLP and John R. Kelso, Miami, for appellants.
    Carey Rodriguez Greenberg O’Keefe, LLP and Douglas L. O’Keefe and David M. Levine, Miami, for appellee.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Based upon the appellee’s commendable confession of error and our review of the record in this case, we reverse the decision of the trial court dismissing appellant’s cause of action as untimely.

Reversed and remanded.


author: KING, C.J., for the Court.

text:
    Justin Brent TURNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-00184-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2008.
    Rehearing Denied March 3, 2009.
    Certiorari Denied July 2, 2009.

      John M. Colette, Jackson, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   KING, C.J., for the Court.

¶ 1. On January 23, 2007, Justin Turner was convicted on two counts of driving under the influence manslaughter. He was sentenced on Count I to serve twenty-five years with five years suspended and five years of post-release supervision. On Count II, Turner was sentenced to serve ten years with five years suspended and five years of post-release supervision. The sentence in Count II was ordered to run consecutively to the sentence in Count I, all in the custody of the Mississippi Department of Corrections. Aggrieved, Turner appeals and alleges the following: (1) the trial court erred in admitting the blood-alcohol evidence, and (2) the trial court erred in failing to properly instruct the jury, thus, denying Turner a fair trial.

¶2. We find that Turner’s issues are without merit. Therefore, we affirm the judgment of the trial court.

FACTS

¶ 3. On February 18, 2006, after having spent the day with his family, Bailey Trippe and Kathy Krystine Harris were at Trippe’s parents’ home watching cartoons and looking after Trippe’s two-year-old daughter. Trippe and Harris left the house at approximately 11:40 p.m. in Harris’s vehicle, a green 2000 Mercury Mountaineer.

¶ 4. Shortly thereafter, a collision occurred on Goshen Road near Nazary Lane between Highway 25 and Highway 16 in Leake County, Mississippi, which involved the vehicle belonging to Turner and the vehicle driven by Trippe. The exact events leading up to the collision were disputed.

¶ 5. When Deputy Jim Moore of the Leake County Sheriffs Office arrived on the scene of the accident, he attempted to resolve ambiguities surrounding the accident by asking Turner what happened. Turner replied that he was coming up Goshen Road toward Highway 16, when the vehicle driven by Trippe came out in front of him. Unable to stop, Turner rear-ended Trippe’s vehicle, knocking the vehicle into a tree. As a result, the vehicle burst into flames. Trippe and Harris were passengers in the burning vehicle. Unable to escape the burning vehicle, both Trippe and Harris died as a result of the fire. Testimony by Chance Wiskus, Turner’s cousin, contradicts Turner’s version of the events leading up to and causing the collision.

¶ 6. Wiskus testified that after attending a house party, which was also attended by Turner, he left the party and went to Turner’s house. When Wiskus arrived Turner was in his truck on the phone with Trippe. Wiskus got into Turner’s truck and overheard what appeared to be an angry conversation between Trippe and Turner. Wiskus testified that Turner and Trippe agreed to meet at the end of North Jordan Street to fight. Wiskus stated that while on Goshen Road, Turner rear-ended Trippe’s vehicle twice. As a result, Trippe’s vehicle went off the road, hit a tree, and burst into flames. Wiskus also testified that after failed attempts to remove the passengers from the burning vehicle, Wiskus, Chris Turner, Nick Moss, and Lauren, left the scene of the accident in Chris’s ear which had followed them in their pursuit, leaving Turner and Tory Turner behind waiting for emergency assistance.

¶ 7. Deputy Moore testified that while making an initial investigation of the scene and attempting to resolve ambiguities by questioning Turner, he smelled alcohol coming from Turner’s person and, thus, inquired as to Turner’s consumption of alcohol. As a result of Deputy Moore’s observation of the accident scene and the smell of alcohol on Turner, he asked Turner to submit a blood sample to determine his blood-alcohol level. After Turner agreed, Deputy Moore asked him to sit in the patrol car until someone could take him to have his blood drawn.

¶ 8. Soon thereafter, Deputy Mark Wil-cher, criminal investigator and accident re-constructionist for the Leake County Sheriffs Department, arrived and took control of the scene. During this time, Deputy Wilcher spoke with Deputy Moore and questioned Turner while he was in the patrol car. After questioning Turner, Deputy Wilcher instructed Deputy Cornelius Turner (Deputy Turner) to transport Turner to Leake Memorial Hospital in Carthage, Mississippi to have blood drawn to determine Turner’s blood — alcohol level. While at the emergency room of the hospital, Laura Kelly (Kelly), a medical laboratory technician, drew Turner’s blood for testing. Both Kelly and Vicky Moody, a registered nurse, signed the consent form as witnessing Turner’s consent to draw blood. The blood samples were secured and returned to Deputy Wilcher at the scene of the accident, who subsequently transported the samples to the Mississippi Crime Laboratory.

¶ 9. During trial, hearings were held on motions to suppress Turner’s statement to Deputy Moore and the blood-test evidence. During the first hearing, the trial court ruled the statement inadmissible. However, prior to the hearing, Deputy Moore’s testimony regarding Turner’s involvement in the accident and alcohol consumption was heard by the jury, and no instructions were given to the jury to disregard that testimony. Thereafter, the trial judge ruled that Turner’s constitutional rights were not violated, and the blood test was admissible because voluntary consent was given in the presence of two witnesses. After the prosecution’s rebuttal testimony, Turner renewed all previous motions and offered a motion for acquittal and motion to suppress the blood-alcohol test. The trial court ruled that Turner’s blood was lawfully seized since he initially consented to the blood sample and probable cause existed to obtain a blood sample.

¶ 10. On January 12, 2007, a jury in the Circuit Court of Leake County returned a guilty verdict against Turner for two counts of DUI manslaughter.

ANALYSIS

I. WHETHER THE EVIDENCE OF THE BLOOD TEST WAS ADMISSIBLE

¶ 11. The applicable standard of review as to the admissibility of evidence is abuse of discretion. Shaw v. State, 938 So.2d 853, 857(¶ 9) (Miss.Ct.App.2005).

¶ 12. Turner’s first allegation of error is that the trial court erred in admitting the blood-alcohol analysis into evidence. Turner argues that the trial court erred in admitting the results of his blood-alcohol level into evidence because: (a) Turner was seized within the meaning of the Fourth Amendment; (b) the unconstitutional seizure was not cured; and (c) Turner’s consent was not voluntarily given.

a. Whether Turner Was Seized Within the Meaning of the Fourth Amendment

¶ 13. Under Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an individual is seized within the meaning of the Fourth Amendment, “whenever a police officer accosts an individual and restrains his freedom to walk away.” Turner contends that the initial “Terry-type encounter” escalated almost immediately to an arrest without probable cause when Deputy Moore asked Turner what had happened and inquired as to whether Turner had been drinking. Turner testified that after acknowledging that he had rear-ended Trippe’s vehicle and that he had consumed one beer prior to the accident, he was immediately placed in the back of a patrol car to be transported to the hospital for a blood-alcohol test. Turner alleges he was not read his Miranda rights, and, thus, his seizure was unconstitutional and in violation of the Fourth Amendment.

¶ 14. Turner was not seized within the meaning of the Fourth Amendment when he initially made the statement as to his involvement in the collision and his alcohol consumption prior to the accident. According to Alexander v. State, 736 So.2d 1058, 1063(¶ 11) (Miss.Ct.App.1999), “[e]us-todial interrogation [within the meaning of the Fourth Amendment] is defined as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” The initiation of questioning by law enforcement of the suspect who is in custody triggers Miranda warnings. Id. However, in “a non-custodial setting where interrogation is investigatory in nature (general on-the-scene investigation), Miranda warnings are not required in order that a defendant’s statements be admissible. Even in this setting, statements must be freely and voluntarily given in order to be admissible.” Hopkins v. State, 799 So.2d 874, 878(¶ 7) (Miss.2001) (citation omitted).

¶ 15. When Deputy Moore arrived on the scene, he began his initial investigation as to how the accident occurred. Deputy Moore observed a burning vehicle containing two possibly deceased individuals, a second damaged vehicle, and Turner and an unidentified female (later identified as Tory Turner) watching from afar. In an effort to gain some clarity of the situation, Deputy Moore approached Turner and Tory and inquired as to what had happened. Smelling alcohol coming from Turner, Deputy Moore asked about Turner’s involvement and possible alcohol consumption. When Turner disclosed his involvement and amount of alcohol consumption, Turner was not placed under arrest or detained. However, Deputy Moore requested that Turner submit to a blood test to determine his blood-alcohol content. Turner agreed. Subsequently, Turner was placed in the back of a patrol car to await transport to the hospital for the blood draw.

¶ 16. When Deputy Wileher arrived on the scene, he also questioned Turner as to what had happened and his level of involvement. Turner acknowledged his involvement in the collision and again consented to have blood drawn to determine his blood-alcohol level. Although Turner was never handcuffed, advised of his rights, or told that he was under arrest, he was placed in the back of a patrol car unable to open the door of his own free will. Therefore, according to the definition of seized under Terry, when Turner made the statement to Deputy Wileher, he was considered seized within the meaning of the Fourth Amendment. Turner’s first statement and consent were made during Deputy Moore’s general investigation of an accident scene and not while in custody; hence, when Turner informed Deputy Moore of his involvement in the accident and consented to give a blood sample, he was not seized at the time. Therefore, this issue is without merit.

b. Whether the Consent Was Voluntary

¶ 17. “In Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the United States Supreme Court held that when determining whether consent to a warrantless search was given voluntarily, [the court must examine] the totality of the circumstances.” Logan v. State, 773 So.2d 338, 343(¶ 12) (Miss.2000). To be valid, the consent must be voluntary. Gazaway v. State, 708 So.2d 1385, 1388(¶10) (Miss.Ct.App.1998). In reviewing the trial court’s determination of the voluntariness of a consent to a blood draw, the Court applies an abuse of discretion standard. Comby v. State, 901 So.2d 1282, 1285(¶ 5) (Miss.Ct.App.2004). A trial court has broad discretion when addressing the voluntariness of a consent. Id. We are obligated to affirm the decision of the trial court, unless it is apparent that such discretion has been abused. Id.

¶ 18. Turner contends that his consent at the hospital to draw a blood sample to determine his blood-alcohol level was not voluntary and was defective for the following reasons stated in his brief:

(1) the consent was not the product of an intervening act of free will; (2) the consent was sufficiently attenuated by the initial illegal seizure/arrest; (3) the consent was a flagrant disregard of his rights; (4) the blood draw was done as a routine procedure, not based on probable cause; and (5) the blood draw was done improperly by having witnesses sign same [consent form] without actually witnessing the act and/or hearing the rights read to Turner.

Turner does not suggest that he at any time revoked or attempted to revoke the consent, which was first given to Deputy Moore, to have a blood sample drawn. This first consent was given in a noncustodial general-on-the-scene investigation. That consent remained valid until it was revoked, or the blood draw was completed. Because the first consent given to Deputy Moore was valid, it was not necessary that the second consent given to Deputy Wil-eher be valid, as it was merely surplusage.

¶ 19. The Court notes that pursuant to Mississippi Code Annotated sections 63-11-8(1) and (2) (Rev.2004), “(1) [t]he operator of any motor vehicle involved in an accident that results in death shall be tested for the purpose of determining his alcohol content or drug content.... (2)[i]f any investigating law enforcement officer has reasonable grounds to believe that person is the operator of the motor vehicle involved in an accident that has resulted in a death.” In a factually similar case, Turner v. State, 726 So.2d 117, 127(¶36) (Miss. 1998), the defendant appealed his conviction of the crime of driving under the influence resulting in death, alleging that the trial court erred in admitting the blood-alcohol report because the blood draw violated his Foui*th Amendment right against unreasonable searches and seizures since he did not sign a consent form. The supreme court held that although the defendant had not been lawfully arrested when his blood was drawn for testing, the officer did have probable cause to detain the appellant and order a blood draw, because according to Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the taking of blood samples from a defendant does not violate his Fourth Amendment rights where probable cause exists for the defendant’s arrest. Turner, 726 So.2d at 127(¶ 36) (Miss. 1998).

¶20. Turner’s acknowledgment of his involvement in the accident, his admission to having consumed alcohol prior to the accident, and the smell of alcohol on his person gave Deputy Moore reasonable grounds to believe that Turner was involved in the accident that resulted in the death of two individuals. These factors gave Deputy Moore the authority to obtain a blood sample for testing Turner’s blood-alcohol level.

¶21. For the aforementioned reasons, this issue is without merit.

c. Whether the Unconstitutional Seizure Was Cured by Consent

¶ 22. The applicable standard of review as to whether an illegal arrest tainted the defendant’s consent is de novo. United States v. Richardson, 949 F.2d 851, 858 (6th Cir.1991).

¶23. Turner asserts that his alleged consent to a blood sample did not cure the unconstitutional seizure. We find this issue is moot. We have found that Turner was not unconstitutionally seized within the meaning of the Fourth Amendment when he first acknowledged his involvement and gave consent to Deputy Moore for a blood sample. Therefore, this assignment of error is without merit.

II. WHETHER TURNER WAS DENIED A FAIR TRIAL BASED ON JURY INSTRUCTIONS

¶ 24. The second allegation of error is that Turner was denied a fair trial because the jury was not properly instructed.

¶ 25. Turner contends that jury instruction S — 1 should have included a proximate cause statement. He contends that the failure to include a proximate cause statement in S — 1 allowed the jury to find him guilty without finding that the death of Trippe and Harris were a result of Turner’s actions.

¶26. Instruction S-l reads as follows:

[T]he Court instructs the jury that if you believe from the evidence in this case beyond a reasonable doubt that at the time and place charged in Count One of the indictment and testified about, that the Defendant, Justin Brent Turner, did willfully, unlawfully, and fe-loniously operate a motor vehicle while under the influence of intoxicating liquor, having eight one-hundredths percent (.08%) or more by weight volume of alcohol in his blood, and in a negligent manner caused the death of Bailey A. Trippe, then it is your duty to find the defendant guilty as charged in Count One.
You are further instructed that if you believe from the evidence in this case beyond a reasonable doubt that at the time and place charged in Count Two of the indictment and testified about, that the Defendant, Justin Brent Turner, did willfully, unlawfully and feloniously operate a motor vehicle while under the influence of intoxicating liquor, having eight one-hundredths percent (.08%) or more by weight volume of alcohol in his blood, and in a negligent manner caused the death of Kathy Krystine Harris, then it is your duty to find the defendant guilty as charged in Count Two.

¶ 27. Jury instructions are to be read as a whole rather than in isolation. Burton v. Barnett, 615 So.2d 580, 583 (Miss.1993). If after doing so, the totality of the instructions fairly and accurately state the law and facts, this Court will not find error. Id. “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Wilkerson v. State, 731 So.2d 1173, 1180(¶25) (Miss.1999) (citation omitted).

¶ 28. The fact that jury instruction S-l is an accurate statement of the law under Mississippi Code Annotated section 63 — 11— 30(5) (Rev.2004) is not questioned. The jury instruction specifies the elements that the prosecution was required to prove in order to find Turner guilty of DUI manslaughter. Those elements are as follows: (1) Turner was operating a motor vehicle; (2) while doing so, his blood-alcohol level was at least .08%, (3) and he negligently caused the deaths of Harris and Trippe. Jury instruction S-l required the jury to convict Turner if it found that these elements had been proven by the prosecution. It did not, however, instruct the jury that it should find Turner not guilty if any of these elements were not proven.

¶ 29. However, jury instruction D-5, which was given, reads as follows:

In every criminal case, a person on trial, such as Justin Turner, is presumed to be innocent until his guilt is established by the evidence beyond a reasonable doubt.
Before the presumption of innocence leaves Justin Turner, every material allegation of the charge must be proven by the evidence beyond a reasonable doubt. The presumption of innocence accompanies and abides with Justin Turner to each and every material allegation of the charge through each stage of the trial until it has been overcome by the evidence beyond a reasonable doubt.
If any of the material allegations of the charge are not proven beyond a reasonable doubt, you must give Justin Turner the benefit of the doubt and find •him not guilty.

Jury instruction D-5 informed the jury that the prosecution was required to prove each element of its case. When read in conjunction with instruction S-l, it becomes clear that the jury was properly instructed.

¶ 30. Furthermore, while alleging that the trial court erred in failing to give a proximate cause instruction, Turner did not make reference to or mention the need for proximate cause language within the instruction in his objection at trial. Turner’s objection was merely a request for a stronger or different version of instruction S-l. In his limited objection to instruction S-l, Turner stated, “Other than what the court said about the negligent manner. No objection except for the request by co-counsel about a stronger or different version of this in a negligent manner.” “[F]ailure to challenge a given instruction or offer another in its place renders this assignment of error meritless.” Lockett v. State, 517 So.2d 1317, 1333 (Miss.1987) (overruled in part on other grounds). There is no indication that Turner offered an alternative instruction to instruction S-1.Therefore, Turner’s assignment of error that he was denied a fair trial because the jury was not properly instructed with regard to instruction S-l is without merit.

CONCLUSION

¶ 31. For the foregoing reasons, we affirm the judgment of the Circuit Court of Leake County.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF COUNT I, DUI MANSLAUGHTER, AND SENTENCE OF TWENTY-FIVE YEARS WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION; COUNT II, DUI MANSLAUGHTER, AND SENTENCE OF TEN YEARS WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING AND BARNES, JJ., CONCUR IN RESULT ONLY.

      . Chris Turner is Turner's brother.

      . Nick Moss was Turner’s friend.

      . Lauren was Chris Turner's girlfriend; however, the record does not provide Lauren's last name.

      .Tory Turner was Turner’s girlfriend at the time of the accident, but she subsequently married Turner.


author: ISHEE, J., for the Court.

text:
    Earnest Lee WILSON, Jr., Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-01532-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2008.
    Rehearing Denied March 24, 2009.
    Certiorari Denied July 2, 2009.

      Donald W. Boykin, Dan W. Duggan, Duggan, Coxwell & Lemon, Brandon, Attorneys for Appellant.
    Office of the Attorney General by Deirdre MeCrory, Attorney for Appellee.
    Before MYERS, P.J., GRIFFIS and ' ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Earnest Lee Wilson, Jr., was convicted in the Circuit Court of Rankin County of embezzlement. The circuit court sentenced Wilson as a habitual offender to ten years in the custody of the Mississippi Department of Corrections and ordered him to pay a fíne of $10,000. Aggrieved by his conviction and sentence, Wilson now appeals. He asserts the following four points of error:

I.The indictment did not state an essential element of the crime of embezzlement.
II. Permitting Tammie Griffin, Crystal Chambers, and LaTonia Brunston to testify violated Rules 403 and 404(b) of the Mississippi Rules of Evidence.
III. The circuit court’s questioning of Wilson during the sentencing phase of the trial violated Wilson’s right against self-incrimination and his right to due process.
IV. The circuit court erred in denying Wilson’s motion for a directed verdict, his motion for a judgment notwithstanding the verdict, and his motion for a new trial.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Shortly after midnight on November 5, 2005, Wilson entered a Texaco gas station in Brandon, Mississippi, at which Melanie Anderson was working as a cashier. Anderson noticed a for sale sign on Wilson’s car and told him that it was a nice car. Anderson said that she was looking for a sport utility vehicle, in particular a black Chevrolet Tahoe. Wilson responded that the car he was driving was already sold, but he told Anderson that he could get her a black Tahoe for a $1,000 deposit. Having not seen the vehicle, Anderson only agreed to initially give Wilson $500. Per their agreement, Wilson was to finance the vehicle, and Anderson was to make payments to him to cover the remainder of $14,500, which was the price that Wilson quoted to Anderson. She gave Wilson the $500 down payment on November 15, 2005, for which he gave her a receipt. Shortly thereafter, Wilson told Anderson that he had a fully loaded black Tahoe for her that he would deliver to her in a couple of days.

¶ 3. Over the next few months, Anderson’s repeated calls to Wilson resulted in excuses or appointments at which he failed to show to deliver the Tahoe. In February 2006, Wilson told Anderson that he had instead procured a higher-end model Tahoe for her, but he would need an additional $300 for the down payment. Anderson paid the additional $300, for which she was given another receipt, but Wilson never delivered the second Tahoe to her.

¶ 4. In March 2006, Anderson discovered that Wilson’s phone had been disconnected. When Anderson later got in touch with Wilson at a different phone number, he continued to reassure her that he would deliver the Tahoe. After further excuses, Anderson found Wilson at his parents’ house and demanded that he return her money. He agreed to send her a check, but she never received a refund of any of the $800 down payment.

¶ 5. Finally, in July 2006, Anderson went to the police and filed a complaint against Wilson. Detective David Ruth, of the Brandon Police Department, said he was familiar with Wilson, and the detective questioned both Anderson and Wilson. When Detective Ruth initially investigated the claim, Wilson told him that Anderson owed him some money. Wilson later changed his story and told Detective Ruth that he never received any money from Anderson. Anderson turned over the receipts she had received from Wilson to the police, but Wilson could provide no evidence that he had conveyed title to any vehicle to Anderson. Anderson’s complaint eventually led to Wilson’s arrest.

¶ 6. According to Detective Bo Edging-ton, of the Brandon Police Department, Wilson told him that Anderson initially paid him $300. However, when Detective Edgington presented Wilson with the two receipts for $500 and $300, Wilson did not deny their validity. Wilson also failed to provide Detective Edgington with any evidence that he had purchased a vehicle for Anderson or conveyed the title of a vehicle to her.

¶ 7. In addition to the testimony from Anderson and the police officers, the circuit court allowed the State to introduce the testimony of three witnesses: Tammie Griffin, Chrystal Chambers, and LaTonia Brunston. In allowing the women to testify regarding other acts by Wilson, the circuit court found the following: (1) Wilson’s character was at issue; (2) the evidence was further admissible to prove intent or absence of mistake; and (3) the probative value of the testimony was not outweighed by the danger of unfair prejudice. The women took the stand and testified that Wilson had employed similar tactics to obtain money from them, but he never procured a vehicle for any of them.

¶ 8. Wilson did not testify or present any evidence in his defense. However, he did cross-examine the State’s witnesses, seemingly to explore possible explanations for why he had failed to procure a vehicle for Anderson.

¶ 9. At the close of the trial, the jury returned a verdict finding Wilson guilty of embezzlement. The circuit court then found that Wilson had been previously convicted on two separate incidents for which he had served over a year for each conviction, the first being possession of over a kilogram of cocaine with intent to distribute, and the second being seven counts of embezzlement. The circuit court sentenced Wilson as a habitual offender to the maximum of ten years in the custody of the Mississippi Department of Corrections without eligibility for probation or parole, and the court ordered him to pay a fine of $10,000 along with court costs and $800 in restitution to Anderson.

¶ 10. Wilson filed post-trial motions for a judgment notwithstanding the verdict and for a new trial, which the circuit court denied. Wilson then timely filed the present appeal.

DISCUSSION

I. Whether the indictment charged the essential elements of the crime of embezzlement.

¶ 11. Wilson’s first point of error relates to the indictment charging him with embezzlement. He claims the indictment was fatally defective for failing to include a necessary element of the crime of embezzlement required under the embezzlement statute. According to Wilson, the indictment was defective because it did not charge that the embezzlement was committed by “any director, agent, clerk, servant, or officer of any incorporated company, or [ ] any trustee or factor, carrier or bailee, or any clerk, agent or servant of any private person....”

¶ 12. The State points out that in Wilson’s brief, he mentions that the above-quoted language, from Mississippi Code Annotated section 97-23-19 (Rev.2006), applies to victims. If this is Wilson’s argument, we find that it is without merit because the statutory language clearly specifies categories of perpetrators and not victims. Therefore, the charging indictment did not need to allege that Anderson fell into one of those two categories. However, we further find the indictment to be proper in the event that Wilson’s argument is that the indictment needed to allege that he, as the perpetrator, fell into one of the two categories.

¶ 13. The indictment for embezzlement returned against Wilson charged that:

Earnest Lee Wilson, Jr. ... did willfully, unlawfully, [and] feloniously take, and convert to his own use U.S. currency, valued in excess of five hundred dollars ($500.00), the personal property of Melo-ny Anderson, which had been entrusted to his care by virtue of his employment, in violation of Mississippi Code Annotated § 97-23-19(1972)....

¶ 14. Wilson is correct that the indictment does not contain the exact language from the statute; however, it did charge that Anderson entrusted him with her money. It further alleged that Anderson employed Wilson, which was the reason that she entrusted him with the money. This language is more than sufficient to satisfy the language of section 97-23-19, which Wilson claims was absent from the indictment. Rule 7.06 of the Uniform Rules of Circuit and County Court provides, in part, the following regarding indictments:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them.

An indictment that “reasonably provides the accused with actual notice and ... complies with Rule 7.06 of the Uniform [Rules of] Circuit and County Court” is sufficient to charge the defendant with the crime. Turner v. State, 864 So.2d 288, 293(¶ 22) (Miss.Ct.App.2003); see also McNeal v. State, 658 So.2d 1345, 1350 (Miss.1995).

¶ 15. We find that the indictment charging Wilson with embezzlement sufficiently provided notice of the essential elements of the crime of embezzlement. In addition, the indictment cited to the statute proscribing embezzlement. Accordingly, we find that the indictment was proper and that this issue is without merit.

II. Whether thé State’s witnesses testified in violation of Rules 403 and 404(b) of the Mississippi Rules of Evidence.

¶ 16. Wilson next argues that the circuit court erred in allowing the testimony of Griffin, Chambers, and Bruriston, who testified that they gave Wilson money with the understanding that he would procure a vehicle for them. He argues that the witnesses’ testimonies should have been excluded as prior bad acts under Rule 404(b) of the Mississippi Rules of Evidence. Should this Court find that the circuit court was not in error in that Rule 404(b) did not serve to exclude the women’s testimonies, Wilson alternatively argues that, pursuant to Rule 403 of the Mississippi Rules of Evidence, the circuit court should have excluded their testimonies because the prejudicial effect outweighed any probative value that it had.

¶ 17. According to Rule 402 of the Mississippi Rules of Evidence, for evidence to be admissible it must be relevant. “The admissibility and relevancy of the evidence are within the discretion of the trial court and, absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal.” McCoy v. State, 820 So.2d 25, 31(¶ 15) (Miss.Ct.App.2002) (citing Reynolds v. State, 784 So.2d 929, 932(¶ 7) (Miss. 2001)). Nevertheless, even if an admission of evidence was in error, it is not cause for reversal unless it results in prejudice or harm. Id. (citing Jackson v. State, 594 So.2d 20, 25 (Miss.1992)).

A. Rule I0J(b)

¶ 18. In the present case, the three witnesses about which Wilson complains testified that he made similar promises to procure vehicles at auction for them and that they gave him deposits for the vehicles. Following an objection from Wilson’s legal advisor and a discussion of the issue among the judge, the prosecutor, and Wilson’s legal advisor, the circuit court ruled as follows:

I believe character is an issue in this case. And the way I read 404(b) in the comment that I made reference to, and the State’s attempt, this is something that would be admissible for the showing of intent or absence of mistake. And I think that that has been brought into issue. And considering that I do not find that the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or any of the other things under the rule regarding delay, waste of time[,] or cumulative. So based .on the narratives that [are] in the State’s disclosure filed in the court file, those witnesses will be allowed to testify as to those matters.

¶ 19. While Rule 404(b) generally provides that evidence “of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith,” it excepts from the exclusion those instances in which the evidence is offered to show, among other things, intent or absence of mistake or accident. See also Jones v. State, 904 So.2d 149, 152(¶ 6) (Miss.2005); Simmons v. State, 813 So.2d 710, 716(¶ 30) (Miss.2002). The State presented the testimonies of the three witnesses as evidence of Wilson’s intent and to show that it was not a mistake or accident that he took Anderson’s money but never gave her the promised vehicle.

¶ 20. The record reveals that there was ample reason for the State to introduce evidence of Wilson’s intent and the lack of any mistake or accident on Wilson’s part. On cross-examination of the State’s witnesses, one of Wilson’s lines of questioning' related to whether it was possible that Anderson had been unable to come up with the necessary payments. A related line of questioning that Wilson explored dealt with his liability for alleged restocking fees with the automobile auctioneers because of his inability to obtain payments from Anderson. While conducting cross-examination, Wilson also insinuated that he had been busy with his sick family members, and because of that, he had been unable to deliver the vehicle to Anderson. These were defenses that brought into question whether Wilson had any intent to embezzle money from Anderson or whether it was just a misunderstanding between the two of them. Accordingly, to rebut Wilson’s allegations that he had no intent to take Anderson’s money and that it was only a mistake that she had not yet received the promised vehicle, we find that it was proper for the circuit court to allow the testimony of Griffin, Chambers, and Brunston under the exception to Rule 404(b).

B. Rule í03

¶21. Finding that the circuit court properly admitted the witnesses’ testimonies under Rule 404(b), we now turn our attention to Wilson’s claim that the circuit court should have excluded the testimonies under Rule 403 as being more prejudicial than probative. In addressing a circuit court’s failure to make an on-the-record Rule 403 balancing test, the supreme court has said that:

[W]hile we clearly interpret the rules of evidence as requiring that all otherwise admissible evidence be “filtered” through the balancing test set forth in Rule 403, we do not interpret this requirement to be a regimented procedure that must be explicitly performed on pain of reversal. Though this Court certainly expects trial judges to have considered Rule 403 in making their evi-dentiary rulings, we certainly do not predicate the soundness of these determinations on the express use of magic words.... [0]ur review depends on the evidence and not the judge, and while a judge’s on-the-record analysis is recommended as it serves to fortify the judge’s position for purposes of review, the lack of such analysis is harmless unless we deem the evidence to be patently prejudicial.

Jones v. State, 920 So.2d 465, 476(¶ 34) (Miss.2006). In the present case, the circuit court did not specifically state the factors it took into account in deciding whether to allow the witnesses’ testimonies. However, prior to allowing the witnesses to testify, the circuit court heard arguments on the issue from the prosecution and from Wilson’s legal advisor. After the circuit court was apprised of each witness’s testimony and its possible prejudicial effect, he found that the probative value outweighed any possible prejudicial effect.

¶ 22. While the circuit court did not provide an on-the-record Rule 403 analysis, the court did hear arguments concerning the issue from both sides. From that, the circuit court ultimately found that allowing the witnesses to testify outweighed any prejudicial effect. We find no error with the circuit court’s finding and its decision to allow the witnesses to testify.

¶23. Furthermore, the circuit court gave a proper limiting instruction regarding the witnesses’ testimonies, explaining in jury instruction number seven that:

The Court instructs the jury that acts testified to by LaTonia Brunston, Crystal Chambers!,] and Tammie Griffin are acts relating to charges for which the defendant is not presently on trial and are to be considered only for the limited purpose of showing intent or absence of mistake or accident. You cannot and must not simply infer that the Defendant acted in conformity with his previous acts and that he is therefore guilty of the charge for which he is presently on trial.

“[T]he law presumes the jury is competent and follows the instructions they are given.” Curry v. State, 939 So.2d 785, 790(¶ 17) (Miss.2006) (citing Shoemaker v. State, 502 So.2d 1193, 1195 (Miss.1987)). Wilson presented no evidence to rebut this presumption or to suggest that the jury did not follow the given instruction informing them that the witnesses’ testimonies were solely to be considered for the purpose of showing intent or lack of mistake or accident in embezzling from Anderson.

¶24. We find that the circuit court properly allowed Griffin, Chambers, and Brunston to testify concerning Wilson’s prior acts. We also find that their testimonies were not so prejudicial as to outweigh the probative value. Accordingly, we affirm the circuit court’s admission of their testimonies. This issue is without merit.

III. Whether the circuit court’s questioning of Wilson during the sentencing phase of the trial violated Wilson’s right against self-incrimination and his right to due process.

¶25. Wilson’s next point of error relates to the sentencing phase of his trial. It is Wilson’s contention that because he had previously elected not to testify, the circuit court violated Wilson’s right against self-incrimination and his right to due process by questioning Wilson prior to sentencing him.

¶ 26. We first note that Wilson did not object to the circuit court’s questions during his sentencing hearing. The Fifth Amendment privilege against self-incrimination remains in effect at sentencing. Holland v. State, 705 So.2d 307, 332-33(1175) (Miss.1997) (citing Estelle v. Smith, 451 U.S. 454, 462-63, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981)). However,, failure to make a timely objection at trial will bar such an issue from review on appeal. Howell v. State, 800 So.2d 556, 560(¶ 15) (Miss.2001) (citing Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988)). The circuit court previously instructed Wilson that he had a right to remain silent and that no one could force him to testify. Notwithstanding the circuit court’s instructions, during sentencing, Wilson readily answered each of the court’s questions without objection. Therefore, we find that this issue is procedurally barred from review.

¶ 27. While this issue is ultimately procedurally barred, we alternatively find that Wilson’s claim that the circuit court’s decision to impose the maximum sentence was discretionary and that the questioning resulted in Wilson receiving the maximum ten-year sentence is wholly without merit. Wilson ignores that at the time the circuit court questioned him, the State had already presented evidence that he was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Because the State proved that Wilson was a habitual offender, section 99-19-81 required the circuit court to impose the maximum sentence.

¶ 28. In this case, the maximum sentence for embezzlement was ten years. Absent a showing that this sentence was disproportionate to Wilson’s crime, the ten-year sentence Wilson received was statutorily mandated. Wilson’s claims regarding his sentencing hearing are procedurally barred because he made no contemporaneous objection at trial. This issue is also without merit.

IV. Whether it was error for the circuit court to deny Wilson’s motion for a directed verdict, his motion for a judgment notwithstanding the verdict, and his motion for a new trial.

¶29. Lastly, Wilson argues that the circuit court erred in denying his motion for a directed verdict, his motion for a judgment notwithstanding the verdict, and his motion for a new trial. He bases his argument on his prior allegation that the indictment failed to charge a necessary element of embezzlement. According to Wilson, because the State did not charge a necessary element of embezzlement, it could not prove all the necessary elements of the crime. He argues that it follows that the evidence was insufficient to support his conviction, and his conviction was against the overwhelming weight of the evidence.

A. Sufficiency of the Evidence

¶ 30. Our standard of review regarding a circuit court’s ruling on post-trial motions is abuse of discretion. Smith v. State, 925 So.2d 825, 830(¶ 10) (Miss.2006). Review of a motion for a directed verdict or a judgment notwithstanding the verdict tests the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843(1116) (Miss. 2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The court must ask whether the evidence shows “beyond a reasonable doubt that [the] accused committed the act charged and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (quoting Carr, 208 So.2d at 889). Taking the evidence in the light most favorable to the prosecution, the question is whether a rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 31. “Embezzlement is the wrongful conversion of property lawfully possessed by the person charged.” Montgomery v. State, 891 So.2d 179, 186(¶30) (Miss.2004) (citing Medley v. State, 600 So.2d 957, 960 (Miss.1992)). In Champluvier v. State, 942 So.2d 145, 151(¶ 11) (Miss.2006) (quoting May v. State, 240 Miss. 361, 363, 127 So.2d 423, 425 (1961)), the supreme court restated the elements of embezzlement:

The constituent elements of the offense are (1) an agent or trustee of a private person, (2) embezzling or converting to his own use, (3) rights in action, money, or other valuable security, effects or property of any kind, (4) which have been intrusted to his care or possession by virtue of his position or employment.

Depending on the facts of the case, the first element should read “ ‘a director, agent, clerk, servant, or officer of any incorporated company’ had embezzled, or that ‘any trustee or factor, carrier or bail-ee, or any clerk, agent or servant of any private person’ had embezzled,” Id.

¶ 32. In the present case, the State presented the testimony of Anderson who said that she hired Wilson to procure a black Tahoe for her from an automobile auction. Per their agreement, Anderson paid Wilson the amounts of $500 and $300 as a down payment for a vehicle, as reflected by the two receipts in evidence. The testimony revealed that she repeatedly called Wilson and attempted to meet him to pick up the truck, but he never fulfilled his end of the agreement by procuring a truck for her. Wilson also never repaid Anderson any of the amount entrusted to him as a down payment.

¶ 33. We have already found that Wilson’s argument concerning his indictment is without merit. The State charged him with each of the necessary elements of embezzlement, and as shown, the State put on evidence regarding each of those necessary elements. From the testimony and the evidence presented, we find that the State presented sufficient evidence to allow the jury to find each of the necessary elements of the crime of embezzlement. Therefore, the circuit court properly denied Wilson’s motion for a directed verdict and his motion for a judgment notwithstanding the verdict.

B. Weight of the Evidence

¶ 34. In reviewing a motion for a new trial, the question is whether the jury verdict was against the overwhelming weight of the evidence. Bush, 895 So.2d at 844(¶ 18) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). We must weigh the evidence in the light most favorable to the verdict, and only when a verdict is so contrary to the overwhelming weight of the evidence that it creates an unconscionable injustice will we reverse. Id. The motion “is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947(¶ 18) (Miss.2000)).

¶ 35. Regarding the weight of the evidence, Wilson did not take the stand to offer his version of the story. After the State rested its case, the defense rested without presenting any witnesses or evidence. Wilson did cross-examine the State’s witnesses in an attempt to impeach them and seemingly to bring his intent into question. However, based on the evidence in the record, we cannot say that the verdict was contrary to the overwhelming weight of the evidence. We find that the evidence produced at trial supported the verdict, and we find no 'error with the circuit court’s denial of Wilson’s motion for a new trial.

¶ 36. We find that Wilson’s allegations that the circuit court erred in denying his post-trial motions are without merit.

¶ 37. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF EMBEZZLEMENT AND SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE AND TO PAY A FINE OF $10,000 AND $800 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . A 2007 amendment to Mississippi Code Annotated section 97-23-19 (Supp.2007) removed this very language and replaced it with "any person.” However, the indictment charging Wilson alleged that the crime occurred between November 2005 and February 2006; therefore, the language cited by Wilson was part of the statute at the time.

      . Wilson had been appointed an attorney, but he chose to represent himself. The circuit court ordered that Wilson’s appointed attorney would serve as a legal advisor to assist him during the trial.

      . A circuit court may impose a lesser sentence on a habitual offender if the court conducts a comparison of the crime to the sentence and finds that an inference of gross disproportionality exists. Pool v. State, 724 So.2d 1044, 1049-50 (¶¶ 28-31) (Miss.Ct.App. 1998). However, Wilson has not alleged that his sentence was disproportionate to the crime he committed, nor do we find that his ten-year sentence was disproportionate in relation to his conviction for embezzlement. Accordingly, no proportionality analysis is required.


author: CARLTON, J., for the Court.

text:
    Julian C. WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02030-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2009.
    Rehearing Denied June 9, 2009.
    Leslie S. Lee, Jackson, Gus Grable Ser-mos, Summit, Erin Elizabeth Pridgen, for appellant.
    Office of the Attorney General by John R. Henry, for appellee.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. In January 2007, a Lincoln County grand jury indicted Julian Williams for murder. Williams was convicted in the Lincoln County Circuit Court of murder and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved, Williams now appeals his conviction and sentence, raising one issue for our review.

FACTS

¶ 2. In the early morning hours of July 15, 2006, officers from the Lincoln County Sheriffs Department responded to a call at a trailer park outside of Brookhaven, Mississippi. They received a report that a woman, Rhonda Michelle Mullins, was unresponsive and appeared to be deceased at the home of Thomas Black. Officers arrived at the home and found Mullins’s body under Black’s bed.

¶ 3. On the previous night, Odessia Humpries, Beulah Ward, and Black, who were residents of the trailer park, gathered at Ward’s home for an evening of drinking and drug use. Mullins and Williams were also at the gathering, and both had been using drugs. Williams and Mullins met for the first time that evening.

¶ 4. Later that night, Williams and Mullins, with Black’s permission, left Ward’s home and walked to Black’s home to engage in consensual sex. After intercourse, Williams claimed that Mullins became agitated and violent toward him because she wanted more drugs. At the same time, Williams heard noises outside the bedroom, which caused him alarm. Williams tried to leave the bedroom to investigate the noises, but he was stopped by Mullins. Williams claimed that he then became convinced that Mullins had set him up to be robbed. Williams told police that he tried to get dressed to leave the room, but Mullins kept trying to detain him. He became even more suspicious of her, and in an effort to keep her quiet, he began to choke her while she was on the bed.

¶ 5. Williams left Mullins to investigate the noise outside. When he returned, Mullins had fallen to the floor unconscious. She had stopped breathing. Williams shoved her body underneath Black’s bed. He then returned to the group at Ward’s home. When questioned about Mullins’s absence, Williams told Ward and Hum-pries that she had left with someone else.

¶ 6. Black went home just before daybreak and saw Mullins’s hair and part of her body underneath his bed. Black went back to Ward’s home and told Ward and Humpries what he had found. The police were called to investigate. An autopsy performed on Mullins’s body revealed that there were numerous drugs still in her system. Her cause of death was determined to be manual strangulation. Officers arrested Williams and charged .him with Mullins’s murder.

DISCUSSION

¶ 7. Williams raises only one issue for our review. He argues that the trial court erred in refusing to grant his requested heat-of-passion jury instruction. When examining the trial court’s decision to grant or refuse a proposed jury instruction, we use the following standard of review:

This Court has held that in reviewing the denial of a jury instruction we must consider not only the denied instruction but all of the instructions which were given to ascertain if error lies in the refusal to give the requested instruction. A defendant is entitled to have instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in another instruction, or is without foundation in the evidence.

Anderson v. State, 914 So.2d 1239, 1242-43(¶ 15) (Miss.Ct.App.2005) (internal citations and quotation marks omitted). Furthermore, the supreme court has held that trial courts should grant lesser-included-offense instructions “unless the trial judge ... can say, taking the evidence in the light most favorable to the accused, ... that no reasonable jury could find the defendant guilty of the lesser-included offense (and conversely not guilty of at least one essential element of the principal charge).” Phillips v. State, 794 So.2d 1034, 1038(¶ 16) (Miss.2001) (citation omitted).

¶ 8. Mississippi Code Annotated section 97-3-35 (Rev.2006) provides for a finding of manslaughter, rather than murder, in cases which involve “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel and unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.... ” Mississippi case law defines heat of passion as follows:

A state of violent and uncontrollable rage engendered by a blow or some other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Cooper v. State, 977 So.2d 1220, 1223(¶ 11) (Miss.Ct.App.2007) (quoting Clemons v. State, 952 So.2d 314, 319(¶ 14) (Miss.Ct.App.2007)).

¶ 9. Williams requested the following instruction be given to the jury:

If you fail to find the defendant guilty of the crime of murder, then you should continue your deliberations to consider the elements of the lesser crime of manslaughter.
If you find from the credible evidence in this case beyond a reasonable doubt that the deceased was a living person and that the defendant killed her in a cruel or unusual manner, without malice, but in the heat of passion, not necessarily in self-defense, and without authority of law, then you shall find the defendant guilty of manslaughter.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the defendant not guilty of manslaughter.

The trial judge found that there was no evidence to support the heat-of-passion jury instruction and rejected it.

¶ 10. Williams argues that the heat-of-passion manslaughter instruction was the only jury instruction which presented his theory of the case, and refusal to grant the instruction constituted reversible error. See Phillipson v. State, 943 So.2d 670, 671-72(¶ 6) (Miss.2006). The supreme court has held, with regard to heat of passion, “that the test is whether the defendant acted in the heat of passion and without malice.” Moody v. State, 841 So.2d 1067, 1097(¶ 98) (Miss.2003). The supreme court has further held that “the question is an objective one, being whether a reasonable person would have been so provoked.” Id. The record in Williams’s case is devoid of any evidence that Mullins provoked him.

¶ 11. Williams did not present any evidence at trial that he acted in the heat of passion. Though Williams did not testify at trial, his written statement to police and his recorded statement were admitted into evidence. However, in those statements, Williams indicated that he choked Mullins in order to silence her, not because he was in a state of uncontrollable rage. Williams’s statements indicate that he was afraid because of noises from outside the trailer, not from anything the victim said or did. Williams stated that Mullins was agitated because she wanted more drugs; she struck him; and she tried to detain him in the bedroom. Her actions made him suspicious that she was involved in a plan to rob him. He did not present any evidence that Mullins’s actions or words at the time would have provoked a reasonable person to act as he did. Furthermore, the jury was given a jury instruction on culpable negligence manslaughter, as well as on self-defense-a theory of defense more in line with the evidence presented.

¶ 12. Because there was no foundation in the evidence to support Williams’s proposed heat of passion jury instruction, we find that the trial court did not err by refusing the instruction. This issue is without merit.

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

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


author: GRIFFIS, J., for the Court.

text:
    Rhonda Lynn Blackwell Kittrell FARRIOR, Appellant v. Kendall Kurt KITTRELL, Sr., Appellee.
    No. 2007-CA-01868-COA.
    Court of Appeals of Mississippi.
    April 7, 2009.

      Thomas T. Buchanan, Laurel, John D. Smallwood, Attorneys for Appellant.
    Tadd Parsons, Wiggins, Attorney for Appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Rhonda Lynn Blackwell Kittrell Farrior (“Rhonda”) appeals the chancellor’s ruling in a dispute with her ex-husband, Kendall Kurt Kittrell, Sr. (“Kendall”), regarding the payment of child support, medical expenses, and private school tuition. The chancellor held that Kendall owed Rhonda $10,705.86, but Kendall was given credit for a vehicle that he gave to Rhonda and payments he made for private school tuition so that the total owed was $305.86 plus $4,500 in attorney’s fees. On appeal, Rhonda claims that the chancellor abused his discretion when he: (1) disregarded the clean hands doctrine; (2) gave Kendall credit toward his past due medical insurance, medical bills, and child support; and (3) failed to provide specific findings of fact and conclusions of law. Finding error on the part of the chancellor, we affirm in part, reverse and render in part, and reverse and remand in part for proceedings consistent with this opinion.

FACTS

¶ 2. Rhonda and Kendall were divorced on February 7, 1992. The couple had two children during their marriage — Kurt and Kyle. Rhonda received primary physical custody of both children in the divorce. In 1993, Kendall sought to change custody, but his request was denied.

¶3. On January 8, 2006, the younger son, Kyle, went to stay with Kendall and refused to return to Rhonda’s house. Because of Kyle’s disciplinary problems, Rhonda allowed Kyle to stay with his father. However, when Rhonda learned that a woman was spending the night at Kendall’s house, she demanded that Kyle return home with her. On February 21, 2006, Kendall sought to change custody of Kyle by filing his complaint for change of custody and other relief. Rhonda answered the complaint and filed a counter-complaint for contempt and modification.

¶ 4. On April 26, 2006, Rhonda filed a complaint for writ of habeas corpus requesting that the Sheriff of Greene County return Kyle to her because she still had legal custody. After a hearing on the matter, the writ of habeas corpus was granted, and Kyle was returned to Rhonda’s custody. However, the day after Kyle was returned, Kyle left school and went back to Kendall’s house. Kendall filed a motion explaining that he had tried to get Kyle to stay with his mother, but Kyle refused to do so. After a hearing, the chancellor ordered that Kyle be examined by Dr. William P. Osborn. The chancellor further ordered that, until a final hearing was held, Rhonda would have visitation with Kyle every other weekend.

¶ 5. Kyle returned to live with Rhonda on October 2, 2006. After Kyle decided to return to his mother’s house, the issue of a change in custody was rendered moot. Thus, the only issues remaining for the chancellor were the unpaid child support, medical expenses, and private school tuition.

¶ 6. The first hearing was held on December 8, 2006, before the Honorable Pat H. Watts, Jr. The case was continued. Chancellor Watts subsequently retired. The second hearing was held on August 9, 2007, before the Honorable D. Neil Harris, Sr. Chancellor Harris determined that it was necessary for him to retry the case. He then heard testimony from both parties and entered the order from which Rhonda now appeals.

STANDARD OF REVIEW

¶ 7. “In domestic relations cases, [the appellate court’s] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1063-64(¶ 9) (Miss.2004) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002)). “[We] will not disturb the chancellor’s opinion when [it is] supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. at 1064(¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). Questions of law are reviewed de novo. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945(¶ 7) (Miss.2000).

ANALYSIS

1. Whether the chancellor abused his discretion by disregarding the clean hands doctrine.

¶ 8. Rhonda claims that the chancellor erred as a matter of law and abused his discretion when he disregarded the clean hands doctrine. Specifically, she claims that the chancellor found that Kendall was in willful contempt of the prior orders of the chancery court because of his failure to maintain medical insurance, pay his portion of the medical expenses, and pay child support. In response, Kendall contends that no language in the chancellor’s order finds that Kendall’s contempt was willful.

¶ 9. “The clean hands doctrine prevents a complaining party from obtaining equitable relief in court when he is guilty of willful misconduct in the transaction at issue.” Brawdy v. Howell, 841 So.2d 1175, 1180—81(1122) (Miss.Ct.App.2003) (quoting Bailey v. Bailey, 724 So.2d 335, 337(116) (Miss.1998)). The issue of unclean hands was not put before the chancellor at trial because the clean hands doctrine is typically used as a defense to a civil contempt action. See Banks v. Banks, 648 So.2d 1116, 1126 (Miss.1994). Instead, Rhonda attempts to use it to deny Kendall any credit toward the amount he owes her.

¶ 10. From our review of the record, the chancellor made no finding that Kendall’s contempt was willful in nature. The chancellor recognized Kendall’s efforts to support his children and gave him credit for certain payments thereby reducing Rhonda’s award from $10,705.86 to $305.86. We cannot conclude, as Rhonda argues, that the chancellor found the type of willful misconduct that would constitute unclean hands on the part of Kendall. Accordingly, this issue is without merit.

2. Whether the chancellor abused his discretion by giving Kendall credit toward his past-due medical insurance, medical bills, and child support.

¶ 11. The chancellor found Kendall in contempt for unpaid child support in the amount of $1,230, medical expenses in the amount of $7,485.86, and health insurance premiums in the amount of $1,990 for a total award of $10,705.86. The chancellor then credited that amount by $6,000 that Kendall paid in private school tuition and $4,400 from the sale of a jeep that Kendall gave to Rhonda. Thus, the total award to Rhonda was $305.86 plus $4,500 in attorney’s fees.

¶ 12. Rhonda argues that the credits given to Kendall constitute an abuse of discretion on the part of the chancellor. Kendall responds that the credits are necessary to prevent the unjust enrichment of Rhonda.

a. Private School Tuition

¶ 13. Kendall was given a $6,000 credit for estimated payments of private school tuition. The record is clear that the tuition payments were not ordered by the chancery court; instead, these payments were based on an agreement between the parties that Kendall would pay part of the children’s tuition.

¶ 14. This Court addressed this very issue in Cook v. Whiddon, 866 So.2d 494, 500(1124) (Miss.Ct.App.2004). This Court held that when a parent chooses to make voluntary payments for private school tuition, he is not entitled to use those payments to set off his child support payments. Id. “[T]o permit a parent credit for voluntary payments would allow such parent to vary the terms of the judgment, and to usurp from the custodial parent the right to determine the manner in which support money should be spent.” Id. at 500-01(¶ 24).

¶ 15. We find that the chancellor failed to apply the applicable law on this issue; therefore, it was error to give Kendall this credit. Accordingly, the chancellor’s ruling giving Kendall a $6,000 credit for private school tuition is reversed and rendered.

b. Proceeds from the Sale of the Jeep

¶ 16. Kendall was also given a $4,400 credit for the proceeds from the sale of a jeep. There was a factual dispute regarding the jeep. Kendall testified that the parties agreed that Kendall would give Rhonda the jeep to sell to cover his part of the children’s medical expenses. He claimed that the jeep had a $5,500 value at the time he delivered it to Rhonda.

¶ 17. Rhonda testified that the jeep was a gift for her son and that there was no agreement that the jeep proceeds should cover Kendall’s share of the medical expenses. Rhonda and her current husband kept the jeep for approximately one year. During that time, they had use of the jeep. Thereafter, the jeep was sold for $3,300. Rhonda used the proceeds to help pay down the note on her son’s vehicle.

¶ 18. It is not the role of this Court to redetermine questions of fact. Johnson v. Black, 469 So.2d 88, 90 (Miss.1985). The chancellor heard conflicting testimony of both parties concerning the jeep. He found Kendall’s testimony credible and determined that Kendall should receive a setoff of his support obligation in the amount of $4,400 — -the average of $5,500 and $3,300. There is no evidence that the chancellor abused his discretion in making this finding. Accordingly, this issue has no merit.

3. Whether the chancellor abused his discretion by failing to provide specific findings of fact and conclusions of law.

¶ 19. Rhonda asserts that the chancellor abused his discretion when he failed to make specific findings of fact and conclusions of law as required by his pretrial order. Kendall responds that there is no record of any requests for specific findings, and the language of the pretrial order was merely permissive and not mandatory.

¶ 20. Rhonda claims that her counsel requested specific findings in a conference with the chancellor. The pretrial order entered by the chancellor states, in part: “Counsel for both parties agree that the Court may listen to the tapes of this matter heard by Judge Bradley, Judge Pierce, and Judge Watts, hear the remaining testimony, review all documents placed in evidence and make findings of fact and apply the applicable law and enter judgment [sic] in this cause.”

¶ 21. Rule 52(a) of the Mississippi Rules of Civil Procedure states: “In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.” Rule 4.01 of the Uniform Chancery Court Rules further advises that:

In all actions where it is required or requested, pursuant to M.R.C.P. 52, the Chancellor shall find the facts specially and state separately his conclusions of law thereon. The request must be made either in writing, filed among the papers in the action, or dictated to the Court Reporter for record and called to the attention of the Chancellor.

¶ 22. There is no record of any request by either counsel for specific findings of fact and conclusions of law. Rhonda’s counsel did not make such a request in writing or dictate it into the transcript. Rhonda merely points to the pretrial order which gives the chancellor the option to listen to the previous testimony in the matter and make findings of fact and apply the law. There is no requirement in the pretrial order that the chancellor “find the facts specially and state separately his conclusions of law thereon.” Id.

¶ 23. The supreme court has held that: “in complex cases tried upon the facts without a jury, M.R.C.P. 52 should be construed to read that the court ‘generally should’ find facts specially and separately state its conclusions of law thereon even absent a request by a party.” Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 366 (Miss.1992) (citing Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987)). However, the chancellor specifically stated in the record that this case did not involve complex issues. It was a routine contempt action for the nonpayment of child support.

¶ 24. The chancellor found that Kendall was in contempt and entered a judgment based on the facts and law applicable to this case. We find that the chancellor did not abuse his discretion by failing to make specific findings. Accordingly, this issue is without merit.

i. Whether the chancellor committed plain error in his calculation of the amount of Rhonda’s award.

¶25. Although Kendall failed to file a cross-appeal attacking the judgment of the chancellor, we feel that is it necessary that we address as plain error the chancellor’s incorrect calculation of the amount of Rhonda’s award. See M.R.A.P. 28(a)(3) (stating that “the court may, at its option, notice a plain error not identified or distinctly specified” in a party’s statement of issues).

a. Medical Insurance Premiums

¶ 26. Both Rhonda and Kendall testified that Kendall failed to provide court-ordered health insurance for their sons from January 2004 through August 2004. During that time, Rhonda paid the premiums for their health insurance through her employer. Rhonda placed in evidence a chart listing the amounts of the premiums and the total owed by Kendall. The amount owed totaled $1,554. Despite this summary introduced into evidence and Rhonda’s explicit testimony at trial that she was owed $1,554 for insurance premiums, the chancellor erroneously calculated the amount owed as $1,990. This amount is not based on substantial evidence because all of the relevant evidence shows that the correct amount is $1,554.

¶ 27. Further, the chancellor’s order incorrectly doubles the amount owed for the insurance premiums in his award. Again, Rhonda entered into evidence a summary of what she was owed for medical payments. The total comes to $7,485.86. This summary clearly indicates that the total includes the $1,554 she was owed for insurance premiums. Regardless, the chancellor awarded her the entire $7,485.86 — which already included the $1,554 — plus the additional erroneous amount of $1,990. Accordingly, the entire $1,990 should be subtracted from Rhonda’s award because her reimbursement for the insurance premiums that she paid was already included in the $7,485.86 awarded for medical expenses. The award of $1,990 for medical insurance premiums is reversed and rendered.

b. Past-due Child Support

¶ 28. We find further plain error in the chancellor’s decision to require Kendall to pay Rhonda $1,230 in past-due child support. This child support was withheld during the time that Kyle was residing with Kendall.

¶ 29. The supreme court has held:

a father may receive credit for having paid child support where, in fact, he paid the support directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother. Alexander v. Alexander, supra, 494 So.2d 365 (Miss.1986). This principle applies, however, only where the father proves by a preponderance of the evidence that he has, in fact, paid the support to the child under circumstances where the support money was used for the child for the purposes contemplated by the support order, that is, to provide shelter, food, clothing, and other necessities for the child. Nichols v. Tedder, 547 So.2d 766, 769 (Miss.1989).

Crow v. Crow, 622 So.2d 1226, 1231 (Miss. 1993).

¶ 30. In Alexander, the supreme court held that affirming an award of past-due child support would unjustly enrich the mother when, during the entire period for which the support was claimed, the child was in the custody of and supported by the father. Alexander, 494 So.2d at 368. Similarly, Kyle was in Kendall’s custody for the entire period for which the past-due child support was awarded. Kendall is entitled to receive a credit for the amount of necessary support that he provided to Kyle while Kyle was in his custody.

¶ 31. We recognize that Rhonda did not always agree that Kyle should be in Kendall’s custody. The record shows that she initially agreed to allow Kyle to move in with Kendall. She then filed a writ of habeas corpus to have Kyle returned. Kyle was returned to Rhonda; however, Kyle returned to Kendall’s home against Rhonda’s will. Kendall notified the chancellor that he was unable to force Kyle to stay with his mother as the chancellor required. Thus, Kendall did not keep Kyle in his custody against Rhonda’s wishes, and he should not be denied this credit for support because Kyle refused to stay with his mother.

¶ 32. Accordingly, the chancellor’s award of $1,230 in past-due child support is reversed, and this issue is remanded for the chancellor to determine the amount of credit Kendall should receive for the support he directly paid to Kyle.

CONCLUSION

¶ 33. Rhonda is entitled to an award of $7,485.86 (consisting of medical expenses and the premiums she paid for medical insurance). That amount is set off by the $4,400 credit for the jeep for a total award of $3,085.86. On remand, the chancellor shall determine what portion of the $1,230 in past-due child support, if any, Rhonda is owed once Kendall is given credit for his direct support of Kyle while he lived with Kendall.

¶ 34. THE JUDGMENT OF THE CHANCERY COURT OF GREENE COUNTY IS AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

      . The chancellor’s written order erroneously states the amount as $10,705.80.