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

text:
    Johnny R. YOUNG, Jr. a/k/a Johnnie R. Young, Jr. v. STATE of Mississippi.
    No. 2010-CT-00629-SCT.
    Supreme Court of Mississippi.
    Oct. 25, 2012.
    Rehearing Denied Feb. 21, 2013.
    Victor Israel Fleitas, Tupelo, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. Johnny R. Young, Jr., was convicted in the Circuit Court of Union County on three counts of sexual battery of his minor daughter and was sentenced to three concurrent life sentences. We assigned Young’s appeal to the Court of Appeals, which unanimously affirmed. Young v. State, 106 So.3d 811 (Miss.Ct.App.2011), reh’g denied (Feb. 7, 2012). We granted certiorari to consider two of Young’s issues and find that: (1) the circuit court did not err by admitting evidence that Young had sexually assaulted his stepsister when she was five and he was fifteen, because the circuit court found the prior assault probative of a noncharacter issue under Mississippi Rule of Evidence 404(b); and (2) the sexual-assault nurse examiner who examined Cindy was amply qualified by her training and experience to testify regarding the cause of the hymenal tear or rupture that she had observed while examining Cindy. Thus, we affirm the judgments of the Union County Circuit Court and of the Court of Appeals.

FACTS AND PROCEEDINGS IN THE TRIAL COURT AND THE COURT OF APPEALS

¶ 2. Johnny Young’s eight-year-old daughter, Cindy, told Richard Dunsford, a family friend, as well as her paternal step-grandmother, that Young had sexually assaulted her many times over several years. The Union County Sheriffs Office and Child Protective Services investigated the allegations of abuse, and Angie Floyd, a forensic-interview specialist with the Children’s Advocacy Center in Tupelo, interviewed Cindy. During the videotaped interview, Cindy stated that Young had abused her. As a result of this interview, Young was arrested and indicted on three counts of sexual battery of a minor that allegedly occurred between November 3, 2005, and November 3, 2006.

¶ 3. Before trial, Young asked the trial court to exclude any testimony of prior sexual acts alleged to have occurred twenty years earlier between him and his half-sister, Anna Smith. The trial judge ruled the testimony admissible under Mississippi Rules of Evidence 403 and 404(b), adding that he would instruct the jury of the purpose of Anna’s testimony. At trial, Anna testified that, twenty years earlier, when she was five years old and Young was fifteen years old, Young had removed her panties and then his shorts and had rubbed his exposed penis on her vagina. The trial judge instructed the jury as follows:

The testimony of the state’s witness, [Anna], which is not part of charged conduct in this case, is to be used for the purpose of establishing motive, intent, plan, knowledge, identity, or absence of mistake or accident on the part of the defendant JOHNNIE R. YOUNG and should not be considered as proof of the defendant’s character or to show that he acted in conformity therewith.

¶ 4. During direct examination, Cindy acknowledged that she had been interviewed by Floyd and stated that everything she had said during the forensic-interview video was true. According to Cindy’s video interview with Floyd, Young had sexually abused her on many occasions, which included penetrating her vagina, anus, and mouth. During the interview, Cindy drew pictures of her father’s body parts along with her body parts, telling Floyd that her father had placed “his bottom” on “her bottom.”

¶ 5. When the State listed Elizabeth Thomas, a sexual-assault nurse examiner, as an expert witness, Young objected to Thomas’s qualifications to offer any opinion on causation. The State responded that Thomas would not offer any opinion on causation, but would testify only to what she had observed while examining Cindy. Accordingly, the trial judge ruled that Thomas could testify “within the limitations of a sexual assault nurse.”

¶ 6. When the prosecutor asked Thomas about the significance of the removal of or injury to the hymen during sexual activity, Young again objected, and the trial judge overruled the objection. Thomas opined that “there could be an acute injury” or “a gradual wearing away depending on the thickness of the object.” Thomas also provided expert opinions about the causes of early estrogenization and of an absence of hymen at six o’clock; the hymen’s ability to heal itself, estrogen’s effects on the hymen, and the ability to have intercourse without injury or pain; and the cause for the tear or rupture and attenuation in Cindy’s hymen. Likewise, Thomas testified that Cindy’s exam was “consistent with [a] history of blunt penetrating trauma of the oral, rectal, hymen, and/or vaginal orifice.”

¶ 7. The jury convicted Young on all three counts of sexual battery of a minor, and the circuit court sentenced him to three concurrent life sentences. After his post-trial motions were denied, Young timely appealed, raising eight issues. Young asserted that the trial court erred: (1) by allowing evidence of Cindy’s out-of-court-statements; (2) by allowing evidence of Young’s prior sexual misconduct; (8) by allowing Angie Floyd to testify as an expert; (4) by allowing Thomas’s medical testimony; (5) by excluding Dr. Gary Mooers’s expert testimony; (6) by failing to grant a limiting instruction or a mistrial for the prosecution’s improper closing argument; (7) by denying Young’s motion for a judgment notwithstanding the verdict, or in the alternative, motion for a new trial; and (8) by committing cumulative errors which required reversal. The Court of Appeals affirmed the trial court on all issues.

¶8. We granted certiorari to consider only the second and fourth issues: the evidence of Young’s prior sexual misconduct and Nurse Thomas’s testimony. We agree with the Court of Appeals’ analysis and disposition of the other issues. Young v. State, 99 So.3d 189, 197 (¶32) (Miss.Ct.App.2011). See Harness v. State, 58 So.3d 1, 4 (Miss.2011) (under Mississippi Rule of Appellate Procedure 17(h), this Court may limit the question for review upon grant of certiorari).

DISCUSSION

I. The trial court’s admission under Mississippi Rule of Evidence 404(b) of the evidence of Young’s prior sexual assault of his stepsister is squarely in line with this Court’s recent precedent.

¶ 9. We apply an abuse-of-discretion standard when reviewing a trial court’s ruling on the admissibility of evidence. Hargett v. State, 62 So.3d 950, 952 (Miss.2011). And when a trial court abuses its discretion on evidentiary issues, we reverse only where “a substantial right of a party is affected.” Miss. R. Evid. 103(a).

¶ 10. The evidentiary ruling at issue here is Anna’s testimony that Young fondled her twenty years earlier, when she was five years old and Young was fifteen. Young argues that (1) the alleged incident was too remote in time, and too different from the events alleged by Cindy, to have any noncharacter purpose; and (2) any probative value the evidence had was substantially outweighed by the danger of unfair prejudice. We disagree.

¶ 11. With certain limited exceptions that do not apply here, our rules of evidence prohibit the use of “[e]vidence of a person’s character or a trait of his character” to prove “that he acted in conformity therewith on a particular occasion....” Miss. R. Evid. 404(a). The trial judge admitted Anna’s testimony under Mississippi Rule of Evidence 404(b), which provides:

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 may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Miss. R. Evid. 404(b).

¶ 12. We find that the evidence of Young’s prior sexual assault of his half-sister satisfied Mississippi Rule of Evidence 404(b). The rule that we enunciated in Derouen v. State, 994 So.2d 748 (Miss.2008), requires that evidence of prior sexual misconduct must satisfy Rule 404(b), be filtered through Rule 403, and be accompanied by a limiting instruction. Id. at 756. In two recent cases, we further addressed the very issue before us today — whether, where a defendant was on trial for sexual misconduct involving a prepubescent female family member, evidence that he had engaged in sexual misconduct with multiple female family members when they also were near the age of puberty was admissible for a noncharacter purpose under Rule 404(b) — and found that the evidence was properly admitted. Gore, 37 So.3d 1178; Green, 89 So.3d 543. Like Gore and Green, this case involves evidence that the defendant sexually abused a female family member — his half-sister — years before the sexual abuse of another female family member — his daughter — that is at issue in this case. Our recent analysis of the very issue presented in this case is directly applicable to our decision today. Consistent with Gore and Green, we find that the trial court did not abuse its discretion by admitting the evidence of the defendant’s prior sexual misconduct involving another female family member.

¶ 13. In Green, we explicitly found that, while Rule 404(b) requires that evidence of prior bad acts be presented for some purpose other than character; “the trial court’s failure to identify the specific applicable exception(s) under Rule 404(b) does not require reversal.” Green, 89 So.3d at 551 (citing Gore, 37 So.3d at 1186). Thus, though the dissent expresses frustration with what it dubs a “shotgun approach” (i.e. recital of all of the noncharacter purposes listed in Rule 404(b) as the purposes for admitting prior-bad-act evidence), its frustration does not warrant reversal.

¶ 14. Gore and Green reveal that the evidence of Young’s prior sexual assault of his half-sister was admissible for non-character purposes under Rule 404(b). In Gore, we recognized that evidence of prior sexual misconduct is admissible under Rule 404(b) where it discloses as the defendant’s motive “a seemingly uncontrollable desire to partake in pedophilic sexual activities with young and developing female juveniles,” and where the “defendant’s means of accomplishing these aetivities on past occasions bear substantial resemblance to each other and with the present offense.” Gore, 37 So.3d at 1186 (quoting Derouen, 994 So.2d at 755; Lambert v. State, 724 So.2d 392, 395-96 (Miss.1998) (Mills, J., dissenting) (quoting State v. Driggers, 554 So.2d 720, 726 (La.Ct.App.1989))) (emphasis added).

¶ 15. Similarly, in Green, we found that “the ‘overwhelming similarities’ between these other sexual offenses ... and the incidents at issue undeniably bring the [evidence of prior sexual assaults] within the purview of admissibility under Rule 404(b).” Green, 89 So.3d at 550. In that case, we further explained examples of purposes for which evidence of prior sexual assaults may be admitted under Rule 404(b), including “a common plan, scheme, or system ... utilized ... repeatedly to perpetrate separate but very similar crimes,” such that “[o]ne could infer from these common features that defendant had a system that involved taking advantage of the parent-child relationship, particularly his control over his daughters, to perpetrate abuse.” Green, 89 So.3d at 550 n. 19 (citations omitted) (emphasis added).

¶ 16. We also addressed the use of evidence of prior sexual misconduct to show motive — which we noted “involves ‘[a]n impulse, as an emotion, desire, or psychological need, acting as incitement to action’ ”— and found that “[t]he ‘seemingly uncontrollable desire to partake in pedophilic sexual activities with young and developing female juveniles[,]’ is probative regarding motive.” Green, 89 So.3d at 550-51 n. 19 (citing Webster’s II New College Dictio nary at 715; Gore, 37 So.3d at 1186 (quoting Driggers, 554 So.2d at 726)) (emphasis added). Thus, we provided in Gore and Green that evidence of prior sexual misconduct involving a female family member is admissible for noncharacter purposes where it shows motive, similar means, or a common plan, scheme, or system for the sexual abuse of the female family member for which the defendant is on trial.

¶ 17. Our analysis in Gore and Green is directly applicable to the case before us today. As in those cases, the trial court here did not abuse its discretion by admitting evidence of Young’s previous sexual abuse of another prepubescent female family member, because the evidence was admissible for noncharacter purposes. Those purposes include establishing that Young’s motive was a “seemingly uncontrollable desire to partake in pedophilic sexual activities with young and developing female juveniles” and that both assaults were part of a “common plan, scheme, or system” that involved Young taking advantage of family relationships to engage in sexual activities with prepubescent girls.

¶ 18. The Court of Appeals properly recognized that, “while the incident with [Young’s half-sister] occurred twenty years ago, it shows similar behavior on the part of the defendant and that the victims were of a similar age” and found that there was “no abuse of discretion in the circuit court’s admission of this evidence.... ” Young v. State, 106 So.3d 811, 817-18 (Miss.Ct.App.2011). Because this evidence was “properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury,” we affirm the Court of Appeals’ finding that this issue is without merit. Derouen, 994 So.2d at 756.

II. Because of her sexual-assault-nurse-examiner training and extensive experience in sexual-assault examination, Nurse Thomas clearly was qualified to testify regarding the injuries that she had observed when examining Cindy.

¶ 19. Young argues that Nurse Elizabeth Thomas testified repeatedly to medical causation and gave opinions not disclosed before trial. For example, according to Young, Thomas gave medical opinions about early estrogenization by implying that Cindy’s sexual activity could cause and account for her level of estro-genization; about how the absence of hymen at six o’clock was generally caused by sexual assault or sexual penetration; about the ability of the hymen to heal itself and the ability to have intercourse without injury or pain; about the effects of estrogen on the hymen; about hymen size and sexual activity; and about the cause of the tear or rupture and attenuation in Cindy’s hymen. The trial judge also allowed Thomas to opine that Cindy’s injuries were “consistent with blunt penetrating trauma of the vaginal area and the anal area.”

¶ 20. Before Thomas testified, Young secured an admission from Thomas that she was not qualified to determine issues of medical causation. The State informed the trial judge that Thomas would not be testifying to causation, but would testify only as to what she had observed. The trial judge ruled that Thomas could testify within her limitations as a sexual-assault nurse examiner and could give limited opinions, but the judge did not explain those limitations.

¶ 21. We note that Thomas’s testimony fell well within her realm of particular expertise. At the time of trial, Thomas had been employed as a sexual assault nurse examiner (“SANE”) at the Memphis Sexual Assault Research Center in Memphis, Tennessee, for sixteen years, and she had been a registered nurse for thirty-two years. Thomas received an Associate Degree in Nursing from Memphis State (now the University of Memphis), a Bachelor’s of Nursing from Union University, and a Master’s of Nursing from the University of Tennessee. Thomas stated that, in order to be a SANE at her center, she needed a master’s degree and additional didactic or theory training, and had to perform fifteen examinations on children and fifteen examinations on adults before she was allowed to practice on h,er own. Thomas also received post-master’s-degree training in medical legal investigation from the St. Louis School of Medicine and earned an additional master’s degree in that field. She also is certified in psychiatric mental health and has taught for more than fifteen years at the University of Memphis School of Nursing. In addition, Thomas’s training is bolstered by an additional twelve hours of continuing education courses per year. Thomas had occasion to make physical examinations of the genitalia of nearly 3,000 persons — two-thirds to three-quarters of those being children. She had been tendered, and accepted, as an expert witness in the area of physical examination of female genitalia and as a SANE nurse numerous times over a period of years in Mississippi, Arkansas, and Tennessee.

¶ 22. Thomas asserted during her voir dire that a SANE nurse was not qualified to determine issues of medical causation. She made assessments and observations and rendered opinions, but did not make a medical diagnosis or assign treatment. Instead, the supervising physician, in this case Dr. Claudette Shepard, made a final determination as to ultimate causation, medical diagnosis, and treatment. Thomas agreed with Young’s attorney during voir dire that she was able to provide or give an opinion only concerning the degree of certainty as to “consistent with,” and not as to causation.

¶ 28. Young objected to Thomas’s qualifications to offer any causation opinion, and the State responded that Thomas would not offer any causation testimony, but would testify only as to what she had observed while examining Cindy. The trial judge ruled that Thomas was “imminently [sic ] qualified [to testify] within the limitations of a sexual assault nurse.” In so doing, the trial judge clearly instructed Nurse Thomas not to testify as to medical diagnosis and treatment, consistent with Mississippi caselaw. He specifically instructed Thomas not to testify that the condition was caused by sexual abuse, and a perusal of the record indicates that Thomas did indeed testify within these proper limitations. Thomas’s expert testimony at trial was that Cindy’s injuries were consistent with blunt force trauma. At no point did she assert that Cindy’s injuries were caused by sexual assault or penetration of the genitalia.

¶ 24. In fact, none of Thomas’s testimony constituted a conclusion or opinion as to medical causation under Mississippi law. In Richardson v. Methodist Hospital of Hattiesburg, Inc., 807 So.2d 1244, 1248 (Miss.2002), Linda Richardson filed a personal-injury and wrongful-death action against Methodist Hospital of Hattiesburg, Inc. (Methodist), claiming that her mother, Vivian Wheeless, died as a result of Methodist’s negligent failure to provide adequate care, including adequate nursing care. Richardson, 807 So.2d at 1245. The plaintiffs expert was Crystal D. Keller, a registered nurse (RN) and Certified Legal Nurse Consultant, who testified to the appropriate nursing standards of care and that deviations from them led to the decedent’s suffering and subsequent death. Id. The trial court granted summary judgment to Methodist.

¶ 25. On appeal, we held that “the trial court’s ruling was overly restrictive in not allowing Keller to testify concerning the appropriate standard of nursing care and the deviations from that standard.” Id. at 1246. We noted that “[t]he fact that Keller is not a physician does not bar her right to testify concerning the standard of care for the nursing staff, but more appropriately may affect the weight of her testimony, which is an issue for the trier of fact.” Id. at 1247. However, we stated that Keller was “not qualified to testify concerning the causal nexus between these deviations and Wheeless’s death.” Id. at 1247-48. Although we did not “require expert testimony by a medical doctor in order to establish the cause of death,” we held that “[t]he cause of a stroke ... is a complex medical issue” and that Keller “lacks the requisite education and experience as an expert to testify concerning the causal link between Wheeless’s death and the alleged deviations in nursing care.... ” Id. at 1248. Thus, our limited holding in Richardson was that Keller was not qualified to testify to such a causal link, given Keller’s particular education and expertise under the facts presented.

¶ 26. Our decision in Vaughn v. Mississippi Baptist Medical Center, 20 So.3d 645 (Miss.2009), likewise does not suggest that Nurse Thomas’s testimony was improper. In Vaughn, the trial court found that the plaintiff had failed to establish the necessary element of proximate cause, based on its finding that Vaughn’s designated expert — Crystal Keller, R.N., the same nurse at issue in Richardson — was not qualified to testify as to whether the negligent acts of Mississippi Baptist Medical Center (Baptist) had proximately caused Vaughn’s staph infection. Vaughn, 20 So.Sd at 652 (Miss.2009). In Vaughn, it was undisputed that a staph infection had developed in Vaughn’s surgical wounds, but the parties disputed when the infection developed. Baptist cited Richardson for the proposition that “a nurse is not qualified to testify as to whether the deviation in the standard of care caused Vaughn’s staph infection[,]” and we noted that Keller was not qualified to diagnose a staph infection. Id. at 651.

¶ 27. We found that Richardson “explicitly held that a nurse cannot testify as to cause of death,” and that “Richardson should be interpreted as having made impermissible any testimony from a nursing expert on diagnostic impressions, because nurses are not qualified to make medical diagnoses or attest to the causes of illnesses.” Id. at 652. In that context, we held that “nurses cannot testify as to medical causation.” Id. We explained this holding as logically following from the fact that “medical diagnosis is outside a nurse’s scope of practice,” and we stated that the holding was “in keeping with the majority rule that nursing experts cannot opine as to medical causation and are unable to establish the necessary element of proximate cause.” Id. (citations omitted). In light of our qualification in Vaughn, it should be readily apparent that, in today’s case, Thomas’s carefully limited, noncausation testimony dealing with matters that pertained to her area of profound expertise did not fall within the realm of testimony that nurses cannot give under Vaughn.

¶ 28. Since Vaughn was handed down, this Court has continued to consider SANE testimony like that offered by Nurse Thomas in the instant case. In Harden v. State, 59 So.3d 594 (Miss. 2011), we noted that “[SANE Elizabeth] Thomas testified that her physical examination of [the victim] revealed recent blunt penetrating trauma in the genital and rectal areas. Thomas admitted on cross-examination that she could not identify the object of penetration from her physical examination.” Harden, 59 So.3d at 600. The resemblance of this testimony to Thomas’s testimony in today’s case is apparent. In weighing the evidence in Harden, we considered the effect of this testimony, noting that “the jury was confronted with ... the results of the physical examination of [the victim], which revealed recent blunt penetrating trauma.” Harden, 59 So.3d 594 at 610. It is clear that this Court has never interpreted Vaughn as barring testimony like that offered by Nurse Thomas in the instant case.

¶ 29. We further note that in sexual-assault cases, many of our sister states allow SANEs to register testimony similar to that of Nurse Thomas in this case. In fact, we are unable to find a single state whose caselaw prohibits SANEs from testifying to causation at sex-crime trials. For example, the Supreme Court of Virginia has “recognized an exception to the general rule that only a medical doctor may render an opinion regarding the cause of a physical human injury.” John v. Im, 263 Va. 315, 321, 559 S.E.2d 694, 697 (2002) (citation omitted). The Virginia court recognized that “although the SANE was not a medical doctor, she was qualified under the facts presented to render an expert opinion concerning the ‘causation of injuries in the context of an alleged sexual assault’ however, the court took pains to note that the holding “is limited to the unique context of a SANE’s expert opinion concerning the causation of injuries in a sexual assault case; that holding does not change the general rule ... that only a medical doctor may give an expert opinion about the cause of a physical human injury.” Id. (citations omitted). In today’s case, Thomas, a sexual-assault nurse examiner, did not testify as to what caused Cindy’s injuries; her testimony was only that those injuries were consistent with blunt, penetrating trauma. To follow the dissent’s path and exclude this evidence would make Mississippi easily the most restrictive state in the Union regarding the admission of SANE testimony.

¶ 30. Such a position is unjustifiable, given the degree of exposure that SANEs receive — not only to sexual assaults, but to the legal process — by their training and experience. The International Association of Forensic Nurses (“the IAFN”), which administers the board certification exam to become a SANE, defines SANEs as “registered nurses who have completed specialized education and clinical preparation in the medical forensic care of the patient who has experienced sexual assault or abuse.” Becoming a SANE requires specialized training: the “eligibility requirements include the completion of a 40 hour classroom training that meets the IAFN education guidelines. The nurse must then also complete a clinical component to that training to assure that she is competent to care for sexual assault patients.” A SANE’s role as a witness is literally part of the job description: the IAFN, in its online explanation of the SANE role, provides that a “SANE also can testily in any legal proceedings related to the [sexual assault] examination.” The Mississippi Coalition Against Sexual Assault (“MSCA-SA”) states succinctly that:

A S.A.N.E. is a registered nurse with at least forty hours of specialized training. The training enables the RN to:
*Provide comprehensive care to sexual assault victims,
*Conduct a forensic exam, &
*Testify effectively in court
The Sane program benefits a sexual assault victim by streamlining the process of providing comprehensive medical treatment while facilitating the collection of evidence.

SANE course objectives include the requirements to “[r]eview the process of evidence evaluation by the criminalist ...” and to “[rjeview the roles and responsibilities of the criminal justice system including the laws of Mississippi, the criminal justice process, prosecution strategies, defense strategies and SANE testimony techniques.” Indeed, according to a brochure produced by MSCASA and made available on its website, the SANE course includes a mock trial.

¶ 31. To restrict the testimonial privileges of these professionals almost out of existence in their own field of specialization might well have dire consequences for trial practice in Mississippi. Although, in this instance, Nurse Thomas was supervised by a physician, nothing in the record indicates that this will be the case for every SANE or every reasonably well-equipped sexual-assault center.' To restrict SANEs from testifying as to sexual assault would set a dangerous precedent, forcing supervising physicians to devote more of their valuable time to trial work, and making it more difficult for rape victims to achieve justice, while failing to provide any useful protections to sexual-assault defendants. We affirm the Court of Appeals’ finding that this issue is without merit.

CONCLUSION

¶ 32. Based on today’s discussion, we affirm the judgments of the Circuit Court of Union County and the Court of Appeals.

¶ 33. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CIRCUIT COURT OF UNION COUNTY ARE AFFIRMED. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL RUN CONCURRENTLY WITH EACH OTHER WITH CONDITIONS.

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

DICKINSON, Presiding Justice,

dissenting:

¶ 34. In order to gain a conviction of Johnny Young for sexual battery of his minor daughter, the prosecutor produced Young’s half-sister, who testified, over Young’s objection, that — twenty years earlier, when she was five and Young was fifteen — he had removed her panties and his shorts and rubbed his exposed penis on her vagina.

¶ 35. What was the prosecutor’s purpose for introducing this “prior bad-act” evidence? No one denies that the law forbids prosecutors from putting into evidence a defendant’s prior acts of misconduct for the purpose of implying that the defendant acted in conformity with the prior misconduct “on a particular occasion.” This evidentiary tactic — sometimes called “propensity” or “he did it before, he probably did it this time” evidence — has been forbidden since at least 1692, just forty-two years after the Mayflower sailed.

¶ 36. And no one claims the purpose was covered by one of Rule 404(a)’s three exceptions. Instead, the majority concludes that the introduction of this twenty-year-old, alleged, uncharged misconduct did not offend Rule 404(a) because it was offered for a different purpose. What purpose? If the prosecutor who offered the evidence at trial knew the purpose, he kept it to himself. He provided no argument or explanation whatsoever as to the purpose of the evidence.

¶ 37. The trial judge provided no help, stating only that he was allowing the State to introduce testimony about the twenty-year-old incident with Anna for the “purpose of establishing motive, intent, plan, knowledge, identity, or absence of mistake or accident on the part of the defendant....” Interestingly, the trial judge used the conjunction “or,” implying the jurors should take their pick because he was not sure which one applied. Here are the juror’s choices:

¶ 38. Motive. Is it possible that what Anna claims Young did twenty years before provided his motive to commit sexual misconduct twenty years later? This suggests that if Young were asked why he committed this sexual battery, he would answer that he did it because, twenty years before, he had fondled his half-sister. This argument is void of logic. The prosecutor told the jurors:

The judge has instructed you to use [Anna’s] testimony for motive because none of us can wrap our minds around why a father would do this to their own child. What’s the motive there? Why? He had done it before and he was doing it again because he couldn’t help himself.

¶ 39. This bold statement — laced with honesty, but incorrectly placing a “motive” label on propensity — shows that the prosecutor’s true purpose was to say: “Young did it before, so he probably did it this time,” which fits squarely within Rule 404(a)’s prohibition. If Young’s prior bad act qualifies as “motive,” then Rule 404(a) has no purpose.

¶ 40. Intent. The use of prior bad acts to show intent is usually reserved for cases where the defendant admits doing the act, but claims it was an accident. I can think of no rational explanation as to how Young’s twenty-year-old fondling of his half-sister demonstrates that he intended to commit sexual battery on someone who, at that time, had not been born.

¶ 41. Plan. Same argument. How could Young have been planning to commit sexual battery on someone who had not even been born?

¶ 42. Knowledge. Young’s knowledge of the victim is not an issue, so knowledge of what? We are not told.

¶ 43. Identitg. Not an issue in this case. No one claims confusion about the identity of any person associated with this case.

¶ 44. Absence of mistake or accident. Again, not an issue in this case. This purpose is reserved for cases where the defendant’s defense is that what happened was an accident or mistake.

¶ 45. Again, the State never suggested to the trial judge, or to the jury, how the incident with Anna could provide proof of motive, intent, or opportunity for an incident that was not to occur for another twenty years.

¶ 46. Prior bad acts may serve to show opportunity, for instance, where a defendant presents an alibi defense to a robbery charge, claiming he was on vacation in Europe, while the prosecution has evidence that the defendant was arrested for a DUI in the same city, on the same night as the robbery. Rule 404(b) would permit the prosecution to admit this evidence to show that the defendant had the opportunity to commit the robbery. And in a prosecution for assault "with a gun, evidence that the defendant stole the gun from a pawn shop certainly would be admissible to show preparation and opportunity. But neither opportunity nor preparation is at issue here.

¶ 47. The prosecutor clearly used Rule 404(b) as a pretext to gain admission of propensity evidence. As stated by one author:

If Rule 404(b) is used as a pretext for the introduction and misuse of character evidence at trial, the potential prejudice to the accused is substantial. The jury could decide the case based on propensity evidence, short-circuiting the burden of proof and effectively holding the accused liable for all his past misdeeds. The constraints posed by Rule 404(a) and Rule 405 could, moreover, prevent the accused from mounting an effective defense by first requiring him to identify a pertinent character trait to defend and then limiting him to proof by reputation or opinion testimony.

¶ 48. Here, the State introduced the evidence to prove that Young had the propensity to commit the same act again. Rule 404(b)’s alternative purposes were chanted as a pretext. The past sexual act (with Anna) and the crime charged (with Cindy) were too remote in time, and too dissimilar, to satisfy any of Rule 404(b)’s noncharacter purposes. We stated clearly in Gore v. State that past sexual acts bearing “substantial resemblance to each other and the present offense” may make the evidence of prior sexual misconduct admissible. But our statement in Gore assumes the State has a legitimate Rule 404(b) purpose for the evidence.

¶ 49. In Green v. State, for instance, the majority found that the defendant’s prior sexual conduct bore “striking” similarities to the charged crime: sexual abuse of female family members of the same or similar family relationships to the defendant; same or similar acts; same or similar locations; and same or similar ages of the victims.

¶ 50. Here, the State produced no evidence that Young’s single, prior sexual act, which occurred twenty years earlier, bore a “substantial resemblance” to the crime alleged in this case. And the State likewise articulated no legitimate purpose under Rule 404(b). The majority places great evidentiary value on the fact that the victims were of similar age. But given the twenty-year lapse of time between the incidents, demonstrating nothing more than similar age of the victims does not rise to the “substantial resemblance” and “striking resemblance” standards set out in Der-ouen, Green, and Gore.

¶ 51. It is hornbook law that Rule 404(b) forbids the use of prior bad acts to imply or prove a defendant’s propensity to commit similar acts. The majority — borrowing language from a Louisiana appellate court — unashamedly argues that the State was free to do exactly what Rule 404(b) forbids.

¶ 52. According to the majority, Young had a “seemingly uncontrollable desire to partake in pedophilic sexual activities with young and developing female juveniles,” and both assaults were part of a “common plan, scheme, or system” that involved Young taking advantage of familial relationships to engage in sexual activities with prepubescent girls. The majority’s hypothesis — the majority came up with this idea because the prosecution never argued it at trial, and it is nowhere in the record — that a single sexual act that allegedly occurred twenty years ago was part of a “common plan, scheme, or system” to commit a second act twenty years later; or that it demonstrates a “seemingly uncontrollable desire to partake in pedophilic sexual activities” is indefensible.

¶ 53. The simple truth is, the trial court abused its discretion by admitting the evidence without a legitimate, noncharacter purpose for admissibility and by allowing the State to imply in closing argument that such evidence could be used to imply that, because Young had abused Anna, he probably had abused Cindy. And because the trial court’s error prejudiced Young’s ability to defend his case, the error requires reversal.

Nurse Thomas

¶ 54. Nurse Thomas testified repeatedly regarding causation and beyond her disclosed opinions. But the majority does not address the trial court’s ruling regarding Nurse Thomas’s undisclosed opinions— perhaps because Young inartfully raised the issue. I believe this Court should address the issue, and I would find that the trial court erred by allowing Nurse Thomas to testify concerning undisclosed opinions.

¶ 55. I would also find that the trial court erred by allowing Nurse Thomas to testify concerning the cause of Cindy’s injuries. This Court has held unequivocally that nurses cannot testify as to medical causation. In Richardson v. Methodist Hospital of Hattiesburg, Inc., we held that a nurse lacks the qualifications necessary to establish a causal connection between a nurse’s standard of care and the cause of death. And in Vaughn v. Mississippi Baptist Medical Center, we further explained a nurse’s limitations, holding that medical diagnosis and causation are outside a nurse’s qualifications. More specifically, we held that a nurse could not testify to “diagnostic impressions or as to the cause of a particular infectious disease or illness.”

¶ 56. The majority, however, finds that Nurse Thomas did not provide causation testimony. I disagree. Her testimony clearly asserted her opinion of the cause of Cindy’s injuries: “blunt penetrating trauma of the vaginal area and the anal area.” The majority’s suggestion that an opinion of “consistent with” does not equal an opinion of causation is simply unsupported in logic or the law. If Nurse Thomas’s purpose in testifying that the injuries were consistent with blunt-force trauma was not to say that blunt-force trauma caused the injuries, then what was the purpose?

¶ 57. The majority, citing Harden v. State, also suggests that this Court already has allowed SANE nurse testimony of this nature. But because we did not address this issue in Harden, that case is irrelevant to today’s analysis. And Young — as opposed to the defendant in Harden — actually raised the issue.

¶ 58. Because I agree with our holdings in Richardson and Vaughn, which both prohibit a nurse from testifying to medical causation, I would find that the trial court improperly allowed Nurse Thomas to testify concerning medical causation.

¶ 59. Unfortunately, the majority’s opinion provides greater protection to civil defendants (where plaintiffs need only prove their case by a preponderance of the evidence) than it does to the accused (where the prosecution must prove its case beyond a reasonable doubt). Thus, the majority’s holding creates an unbalanced rule of law, and I cannot accept it.

CHANDLER, J., JOINS THIS OPINION. KITCHENS AND KING, JJ., JOIN THIS OPINION IN PART.

WALLER, Chief Justice,

concurring in part and dissenting in part:

¶ 60. I agree with the majority that the trial court did not err in admitting evidence of Johnny Young’s prior sexual assault of his stepsister. I disagree, however, that Nurse Elizabeth Thomas should have been allowed to testify as to medical causation. I join Presiding Justice Dickinson’s dissent on that particular issue.

¶ 61. For these reasons, I respectfully concur in part and dissent in part.

DICKINSON, P.J., JOINS THIS OPINION IN PART.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 62. I agree with the result reached and the analysis employed by the dissent regarding Issue I, whether the trial court committed reversible error by allowing testimony about Young’s prior bad acts. “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.” Miss. R. Evid. 404(b). I agree with the dissent that the trial court erred in instructing the jury that the evidence of the twenty-year-old prior sexual abuse was being introduced “for the purpose of establishing motive, intent, plan, knowledge identity, or absence of mistake or accident” on the part of Young, as jurors were left to “take their pick” as to which exception applied in the instant case. Diss. Op. at 87.

¶ 68. Much like the jury in Green v. State, 89 So.3d 543, 559-60 (Miss.2012) (Kitchens, J., dissenting), the jury in the instant case “was left to speculate about the purpose for which the extrinsic evidence was adduced. Some jurors could have picked one set of options from the 404(b) list, while others on the jury made quite different selections. This Court certainly ought not guess about which of the 404(b) options might apply, if any.” Moreover, I agree with the dissent that the State’s contention that the testimony from the prior victim fit one or all of the enumerated exceptions under Rule 404(b) was merely a pretext “to gain admission of propensity evidence.” Diss. Op. at 47. Accordingly, the proper disposition of this case is to reverse the conviction, given that the trial court’s error in this regard “prejudiced Young’s ability to defend his case.” Diss. Op. at 58.

¶ 64. However, the dissent and I diverge in opinion as to Young’s second assignment of error, whether the sexual assault nurse examiner in this case was qualified to testify that injuries to the victim were consistent with penetration. This Court heretofore has employed an overly broad application of the holdings in Richardson v. Methodist Hospital of Hattiesburg, Inc., 807 So.2d 1244 (Miss.2002), and Vaughn v. Mississippi Baptist Medical Center, 20 So.3d 645 (Miss.2009).

[T]he issue of whether a particular nurse, by virtue of his or her knowledge, skill, experience, training or education, possesses such ability is better determined by a case-by-case inquiry than by a broad, “one-size-fits-all” judicial pontification to the effect that no nurse in the world will ever be allowed to testify as to medical causation in any Mississippi court case. As is true of any other profession, the education, experience and understanding of nurses span a broad spectrum. We should not enunciate a hard and fast rule that permanently forecloses the possibility of any nurse’s being qualified to give expert testimony on medical causation in any and all cases that may arise in the future.

Id. at 657 (Kitchens, J., dissenting). I agree with the majority that the trial court did not err in allowing Nurse Thomas’s expert testimony.

CHANDLER AND KING, JJ„ JOIN THIS OPINION. DICKINSON, P.J., JOINS IN PART.

      . We use this alias to protect the girl’s identity-

      . Cindy’s forensic-interview video was played for the jury.

      . In Gore v. State, 37 So.3d 1178 (Miss.2010), the defendant was on trial for “gratifying his lust or indulging his depraved licentious sexual desires” by rubbing his twenty-one-month-old granddaughter with his body, based on testimony that the defendant had been found lying in bed naked next to his naked granddaughter and that, after taking her home, her mother “pick[ed] up her bottom to put a diaper on her, and [could] see down into [her] anus.” Gore, 37 So.3d at 1180-81. At trial, the defendant's daughter testified that he had molested her in his bed when she was twelve years old, and both his daughter and his son (the victim's father) testified that the defendant had required them to be naked with him at home and at a nudist camp. Id. at 1183— 85. We found that the defendant’s "prior sexual abuse of his daughter tends to demonstrate ‘pedophilic sexual activities with young and developing female juveniles.... [The defendant’s] means of accomplishing these activities on past occasions bear substantial resemblance to each other and with the present offens[e]' " and that his demands that his children be naked involved sexual misconduct, because "his children swore that [the defendant] threatened and physically struck his daughter for failure to comply with his demand she be naked.” Id. at 1187. Accordingly, we found that the trial court had not abused its discretion by admitting the evidence.
      In Green v. State, 89 So.3d 543 (Miss.2012), the defendant was on trial for sexually abusing his ten-year-old stepdaughter, based on her statement to school administrators that he had been "stickfing] his fingers in me every morning when he gets up[,] ... in my private parts” and her statement to a forensic interviewer that he "regularly put his finger inside her vagina 'in her bedroom when she would wake up in the morning....'” Green, 89 So.3d at 545-46. The trial court admitted testimony from the defendant's niece, half-sister, and two ex-stepdaughters that the defendant had sexually molested them when they were between the ages of seven and thirteen, including by digital penetration of their vaginas. Id. at 546-47. The two ex-stepdaughters testified that, late at night, after everyone else was asleep, the defendant had molested them in their bedrooms, and the niece testified that she had awakened to the defendant molesting her where she was sleeping on the couch. Id. The defendant’s half-sister, who was forty-nine years old at the time of trial, testified that the defendant had sexually abused her when she was between the ages of nine (when the defendant was about fifteen years old) and thirteen. Id. at 547. We found that the testimony was admissible, because it "was offered to show that, over the course of five decades, [the defendant] engaged in the sexual abuse of female family members in a similar manner (the same or similar acts, in the same or similar locations), when they were near the age of puberty, i.e., vulnerable, ‘young and developing ... juveniles’ (the same or similar ages).” Id. at 549 (citing Gore, 37 So.3d at 1187).

      . In fact, shortly before Vaughn was decided, the Court of Appeals determined explicitly that a nurse may testify that "injuries were consistent with [the victim’s] account that she had been sexually abused” so long as the testimony is not that the injuries "were, in fact, caused by sexual abuse.” Murray v. State, 20 So.3d 739, 742 (Miss.Ct.App.2009). Indeed, the Court of Appeals noted that "nursing professionals routinely testify as to whether a victim’s injuries are consistent with a sexual assault.” Murray, 20 So.3d at 742 (citing Havard v. State, 988 So.2d 322, 332 (¶ 29) (Miss.2008) (nurse testified that injuries received by minor victim were the result of sexual trauma); Adams v. State, 772 So.2d 1010, 1017 (¶ 29) (Miss.2000) (nurse testified that the victim’s hymen was tom and that this injury was consistent with penetration by a penis, finger, or other object)).

      . To be clear, then, in no way does this opinion overrule our holdings in Vaughn or Richardson, or in any other case.

      . Several other states have recognized similar exceptions for the testimony of SANE nurses in sexual-assault cases. See Com. v. Jennings, 2008 PA Super 230, 958 A.2d 536, 541 (2008) (finding persuasive the holding that SANEs are qualified to testify as expert witnesses to the causation of injuries to victims of sexual crimes); Newbill v. State, 884 N.E.2d 383, 396-97 (Ind.App.2008) (allowing a SANE to apply her expertise to testify as to whether redness and irritation in the victim’s vaginal area was likely the result of forced sex); Rodriguez v. State, 281 Ga.App. 129, 635 S.E.2d 402 (2006) (holding a SANE was qualified to testify the child victim’s injuries were consistent with digital penetration); State v. Fuller, 166 N.C.App. 548, 603 S.E.2d 569 (2004) (finding that a SANE could testify regarding whether the child victim's injuries were consistent with someone who had been sexually assaulted).

      .On the other hand, we choose not to go as far as our sister states in that we refuse to find in today’s case that SANEs may testify as to causation in sexual-assault or abuse cases.

      . IAFN: About Forensic Nursing — Sexual Assault Nurse Examiners (SANE), http://www. iafn.org/displaycommon.cfm?an= 1 & subarti-clenbr=546 (last visited October 22, 2012).

      . Id.

      . Id.

      . Mississippi Coalition Against Sexual Assault — S.A.N.E. (Sexual Assault Nurse Examiner), http://www.mscasa.org/what-we-do/ sexual-assault-nurse-examiner/ (last visited October 22, 2012).

      . Id.

      . "What is a Sexual Assault Nurse Examiner (SANE)?” Available online at http://www. mscasa.org/images/user_files/files/SANE-brochure.pdf (last visited October 22, 2012).

      . We briefly note the dissent's assertion that "the trial court erred by allowing Nurse Thomas to testify concerning undisclosed opinions.” The dissent states that we neglect to address this issue "perhaps because Young inartfully raised the issue.” In fact, this purported issue was not raised by Young on appeal.
      At trial, Young made an objection to Thomas’s testimony about the abnormality of Cindy’s hymenal orifice size, as a discovery violation under Uniform Circuit and County Court Rule 9.04. However, in reviewing Young's briefs, we do not find any reference to the Rule 9.04 objection, to discovery violations, or even to Nurse Thomas testifying beyond her disclosed opinions.
      The only language we find that might be stretched to constitute Young’s raising the Rule 9.04 issue is the following line: ”[i]t is from the trial court’s complete abandonment of [the ruling that Nurse Thomas must testify within her limitations] and the prosecution’s use of unqualified and surprise expert testimony that Mr. Young raises this assignment of error.” (Emphasis added.) The brief then goes on to discuss exclusively the argument addressed above, that Nurse Thomas improperly testified to causation. We would not strain the English language to find that this sentence constituted an appeal of Young’s Rule 9.04 objection at trial. Instead, we find the discovery objection to have been waived, and we do not address it sua sponte.

      . Miss. R. Evid. 404(a).

      . Harrison's Trial, 12 How. St. Tr. 834 (Old Bailey 1692).

      . Christopher W. Behan, Evidence and the Advocate: A Conceptual Approach to Learning Evidence 174 (2012).

      . Id.

      . Id. at 173 (2012).

      . Gore v. State, 37 So.3d 1178, 1187 (Miss.2010) (emphasis added).

      . Green v. State, 89 So.3d 543, 552 (Miss.2012).

      . Gore, 37 So.3d at 1186 (quoting State v. Driggers, 554 So.2d 720, 726 (La.Ct.App.1989)).

      . Vaughn v. Miss. Baptist Med. Ctr., 20 So.3d 645, 652 (Miss.2009).

      . Richardson v. Methodist Hosp. of Hattiesburg, Inc., 807 So.2d 1244, 1248 (Miss.2002).

      . Vaughn, 20 So.3d at 652.

      . Id.

      . Harden v. State, 59 So.3d 594 (Miss.2011).


source: Caselaw Access Project

author: DICKINSON, Presiding Justice, KING, Justice,

license: Public Domain

text:
    Denise ALLCOCK, Administratrix on Behalf of the Wrongful Death Beneficiaries and The Estate of Robert E. Allcock, II v. Antoinette BANNISTER, M.D. and The Children’s Clinic.
    No. 2011-CA-00289-SCT.
    Supreme Court of Mississippi.
    Nov. 1, 2012.
    Rehearing Denied Feb. 21, 2013.

      John W. Christopher, John F. Hester, Gulfport, attorneys for appellant.
    Mary Margaret Kuhlmann, George F. Bloss, III, Gulfport, attorneys for appel-lees.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. After Robert Allcock died at a hospital, his mother sued the hospital, the treating doctor, and the doctor’s clinic. Allcock failed to designate an expert, and the trial court denied her motion to amend the pretrial order. Still, a jury found for Allcock, but the trial court granted the defendants’ motion for a new trial because of a faulty jury instruction. Before the second trial, Allcock again moved to amend the pretrial order. The trial court again denied her motion, and the jury found for the defendants. Because the jury instruction stated an incorrect rule of law; and because Allcock was on sufficient notice of the defendants’ expert testimony, we affirm the trial court’s rulings.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Robert Allcock Sr. and his wife Denise became concerned that their son, Robert Allcock, was showing signs of diabetes, so they took him to the emergency room where Dr. Antoinette Bannister — who practiced with Long Beach Children’s Clinic and was the on-call doctor — diagnosed Robert with initial onset diabetes, admitted him into Memorial Hospital in Gulfport, and dictated the admission orders to ER Nurse Laura Quave.

¶ 3. Dr. Bannister testified that she ordered normal saline, plus twenty milliequi-valents of potassium phosphate and twenty milliequivalents of potassium chloride, but Nurse Quave testified that Dr. Bannister dictated normal saline, plus twenty millie-quivalents of potassium chloride phosphate and twenty milliequivalents of calcium chloride. According to Dr. Bannister, when the floor nurse, Cathy Marousky, called her for clarification of the order, she reiterated her order to Nurse Marousky. But Nurse Marousky testified that Dr. Bannister ordered twenty milliequivalents of potassium chloride, twenty milliequiva-lents of potassium phosphate, and twenty milliequivalents of calcium chloride. Robert died as a result of the mixture in the IV bag. When Dr. Bannister examined Robert’s IV bag, she noted it was cloudy and contained calcium chloride — which she says she did not order.

¶ 4. Denise Allcock, as administrator on behalf of the wrongful-death beneficiaries and Robert’s estate, sued Dr. Bannister, The Children’s Clinic, and Memorial Hospital. Allcock eventually settled with and dismissed Memorial, leaving Dr. Bannister and The Children’s Clinic as the remaining defendants.

First-trial discovery

¶ 5. On August 19, 2005, Allcock designated her expert witnesses, which included Dr. H. Joseph Byrd as an expert in pharmacy, pharmacology, and toxicology. On October 17, 2006, the defendants first designated their expert witnesses, but later, on July 31, 2007, designated Dr. William J. George, who was “expected to testify that all that can be determined is that while the contents [of the IV bag] were capable of producing precipitate which could, under certain circumstances, potentially produce pulmonary vascular obstruction or other acute respiratory problems, this does not prove specific causation.”

¶ 6. Based on an agreed motion for continuance, the court amended its scheduling order, extending the expert designation and disclosure dates. Allcock was given until October 1, 2007, for Dr. Christopher Long; the defendants were given until November 1, 2007, for Dr. George. The court reopened discovery through December 3, 2007, “for the limited purpose of supplementing expert witness disclosures and deposing the new experts.”

¶ 7. The defendants supplemented Dr. George’s disclosure on November 1, 2007, to note that “Dr. George is of the opinion[,] to a reasonable probability, that there is substantially more potassium in the IV fluid than would have been called for by the order in the chart ...., and that the amount of potassium may have been as high as ten-fold higher than the bag labeling.” The court entered the pretrial order on December 19, 2007.

¶ 8. On February 7, 2008, the defendants moved to strike Dr. Byrd because he was not listed as a will-call or may-call witness in the pretrial order (the pretrial order does, however, set a date for Dr. Byrd’s deposition for no later than March 1, 2008). But because Allcock represented to the court that she would not call Dr. Byrd as a witness, the court denied the defendants’ motion as moot.

¶ 9. On May 23, 2008, Allcock moved to amend the pretrial order to add Dr. Byrd as an expert witness. Allcock argued that the defendants — in their motion in li-mine — for the first time “put forth the proposition that the amount of calcium chloride in the IV bag was 10 times the amount called for in the order written by the floor nurse,” and stated that this was the first time the defendants had raised the issue of the dosing relationship between calcium chloride and potassium phosphate. Allcock also argued that the Defendants had “consistently maintained that Dr. Bannister did not order a[n] IV mixture that contained any amount of calcium chloride.” The trial court, however, denied Allcock’s motion to amend, saying “it comes too late.”

¶ 10. The first trial began on August 4, 2008. The defendants objected to jury instruction P-13A, arguing that the instruction forced the jury to find that Dr. Bannister had a “non-delegable duty.” Allcock objected to the defendants’ instruction D-6A. The court overruled both objections.

¶ 11. The jury found Dr. Bannister thirty percent at fault and Memorial seventy percent at fault, and awarded $4,805,800 in damages — $805,800 in economic and $4,000,000 in noneconomic. The trial court entered judgment against Dr. Bannister for $391,740.

¶ 12. Allcock then moved the trial court to declare unconstitutional Mississippi Code Section 11-1-60’s cap on noneconomic damages. She also moved the court to amend the judgment for an additur, or in the alternative, a new trial. She argued that the court had failed to amend the pretrial order to allow Dr. Byrd to testify.

¶ 13. The defendants also moved for a new trial, arguing that jury instruction P-18A was an incorrect statement of the law and in direct conflict with D-12A and D-6A. The trial court granted the defendants’ motion for a new trial, concluding that jury instruction P-13A incorrectly forced the jury to conclude that “(1) the hospital was negligent as a result of the acts of the nurses and pharmacy, and (2) since Dr. Bannister has a non-delegable duty to assure that the physical exam, diagnoses, treatment and medication ordered were correct, then Dr. Bannister is strictly liable for the breach of care by the hospital nurses and pharmacy regardless of whether she was at the hospital or was aware of the mistake.”

¶ 14. Before the second trial, Allcock again moved to amend the pretrial order to add Dr. Byrd as an expert witness. The trial court denied the motion, and a jury found in favor of the defendants.

¶15. Allcock appealed, raising several issues, which we have restated as follows:

1. Did the trial court err by denying her motion to amend the pretrial order for the first trial?
2. Did the trial court err when it granted the defendants’ motion for a new trial for faulty jury instructions?
3. Did the trial court err in its calculation of the judgment amount for the first trial?
4. Did the trial court err by refusing to rule on the constitutionality of Section 11-1-60?
5. Did the trial court err by denying Allcock’s motion to amend the pretrial order in the second trial?

ANALYSIS

¶ 16. We affirm the trial court’s ruling on the pretrial order and its decision to grant a new trial. Thus, we decline to address whether the trial court erred in calculating the judgment for the first trial and whether Section 11-1-60 is unconstitutional.

I. The trial court did not abuse its discretion by denying Allcock’s first motion to amend the pretrial order.

¶ 17. We review a trial court’s decision regarding discovery violations under an abuse-of-discretion standard. Therefore, we grant a trial court considerable discretion in managing pretrial discovery.

¶ 18. Mississippi Rule of Civil Procedure 16 governs pretrial orders: “The court may enter an order reciting the action taken at the conference ... and such order shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice.”

¶ 19. In her motion to amend the pretrial order, Allcock argued that the defendants — in their motion to strike — “for the first time in this case put forth the proposition that the amount of calcium chloride in the IV bag was 10 times the amount called for in the order written by the floor nurse.” Allcock further argued that the Defendants had “consistently maintained that Dr. Bannister did not order a[n] IV mixture that contained any amount of calcium chloride.” The trial court denied her motion.

¶20. On appeal, Allcock argues that she did not have the benefit of having Dr. Byrd testify to rebut Dr. George’s testimony — that, had the pharmacist filled the order as written, no precipitant would have formed in the IV bag. She argues that Dr. Byrd’s affidavit provided that Dr. Bannister’s order — as written — could have formed the precipitant of calcium phosphate.

¶ 21. We find no abuse of discretion in the trial court’s decision. Allcock did not move to add Dr. Byrd as an expert until almost six months after the discovery deadline had passed — less than three months before the scheduled trial date. And the only reason Allcock gave for her untimely disclosure was that she did not learn that Dr. George would testify about the dosing relationship between calcium chloride and potassium phosphate until April 2008. Her excuse, however, is inadequate.

¶ 22. The defendants disclosed the substance of Dr. George’s testimony — the mixture in the IV bag, the hospital pharmacy’s compounding errors regarding the excessive use of potassium phosphate — in November 2007, before Allcock’s disclosure deadline. In fact, Allcock’s main contention at trial was that Dr. Bannister had prescribed improper treatment, so the dosing issue was always in question. And, contrary to Allcock’s assertion to the trial court, the defendants maintained at trial that Dr. Bannister did not order any amount of calcium chloride. Thus, the defendants’ November disclosure placed All-cock on sufficient notice that their expert would testify to the IV bag’s contents.

¶ 28. The dissent, however, relies on Mississippi Power & Light Co. v. Lump-kin and Thompson v. Patino to find the trial court in error for denying Allcock’s motion to amend. But each of those cases involved discovery sanctions. Here, there was no discovery violation or sanction, but rather, a trial judge’s denial of a motion to amend a pretrial order. While other judges might have decided Allcock’s motion differently, we grant a trial court considerable discretion in managing cases, and we cannot say that the trial court erred by denying Allcock’s motion to amend the pretrial order. We therefore affirm the trial court’s decision on this issue.

II. The trial court did not err by granting the defendants a new trial for faulty jury instructions.

¶24. We review a trial court’s decision to grant a new trial under an abuse-of-discretion standard. And we will view the evidence in the light most favorable to the nonmoving party and reverse only if “the verdict, if allowed to stand, would work a miscarriage of justice.” A jury instruction likely to confuse or mislead the jury on the applicable law requires reversal.

¶25. Mississippi Rule of Civil Procedure 59 authorizes a trial judge to set aside a jury verdict and grant a new trial whenever justice requires. Here, the trial court granted the defendants’ motion for a new trial, finding that Jury Instruction P-13A — a vicarious-liability instruction— improperly instructed the jury on the law. P-18A read as follows:

The Court instructs the jury that Robert Allcock, II, was the patient of Dr. Bannister and that Dr. Bannister, as the admitting and treating physician of Robert Allcock, II, had a non-delegable duty to Robert Allcock, II. That means that if a doctor chooses to allow a nurse to perform a non-delegable duty, the doctor must accept responsibility if that duty is breached. Dr. Bannister had a non-delegable duty to Robert Allcock, II, to assure that the physical examination, diagnoses, treatment and medication ordered were correct and properly administered.

¶ 26. Allcock argues that the instruction did not, in fact, require the jury to impose a nondelegable duty on the nursing staff, but instead simply to find for the plaintiff if Dr. Bannister failed to act as a reasonably prudent, minimally competent physician under the circumstances. We reject this argument. The jury instruction undoubtedly required the jury to find Dr. Bannister at fault if the nursing staff improperly had administered the IV bag.

¶ 27. Under Mississippi law, a physician has a nondelegable duty

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

¶28. But a nondelegable duty is not synonymous with vicarious liability. Mississippi law “imposes liability on a physician for the negligence of a nurse only if the nurse committed the negligent acts or omissions pursuant to the direction or control of the physician.” Jury Instruction P-13A goes further than that, imposing liability on Dr. Bannister for the nurse’s actions that were not committed under the “direction or control of the physician.” Therefore, the instruction incorrectly states the law and imposes vicarious liability on Dr. Bannister for the nurse’s actions.

¶ 29. Allcock also argues that, because the jury found Dr. Bannister and the Children’s Clinic only thirty percent at fault, the jury could not have considered this jury instruction because, if it had, it would have found Dr. Bannister one hundred percent at fault. But this also is incorrect. P-13A allowed the jury to find the doctor at fault for administering the IV bag, thus confusing the jury in its decision. It does not follow that the jury would have found Dr. Bannister 100 percent at fault had it found that the nurse improperly administered the IV, as the jury had other issues of fault to consider as well.

¶ 30. We therefore affirm the trial court’s grant of a new trial. And because we find that the trial court did not abuse its discretion by granting a new trial, we decline to address the moot issues of whether the trial court miscalculated the first trial’s judgment or whether Section 11-1-60 is unconstitutional.

III. The trial court did not abuse its discretion by denying Allcock’s motion to amend the pretrial order in the second trial.

¶ 31. Again, we grant considerable discretion in considering a trial court’s decision to deny a party’s motion to amend a pretrial order. Allcock argues that the trial court erred by not granting her motion to amend the pretrial order before the second trial. In support of her argument, she advances several points: (1) she filed her second motion to amend the pretrial order in August 2008, soon after the first trial’s completion; (2) she had no way to attack Dr. George’s credibility; (3) the defendants would not have been prejudiced by the amendment; and (4) the trial court continued the second trial to sixteen months after it had denied her motion to amend.

¶ 32. As noted in one treatise, “[t]he purpose of a motion for a new trial ... is to give the trial court an opportunity to correct its own errors, or errors that have occurred in the conduct of the trial or proceedings, without the delay, expense, inconvenience, or other hardships of an appeal-” Thus the purpose of the second trial in this case was to correct the faulty jury instructions — not to allow for additional discovery. Allcock argues, in substance, that — because the trial judge granted a new trial — he should have overlooked her failure to designate an expert in the first trial. The trial court was within its discretion to deny Allcock’s second motion to amend.

CONCLUSION

¶ 33. The trial court did not abuse its discretion by granting the defendants’ motion for a new trial. Likewise, the trial court did not abuse its discretion by denying either of Allcock’s motions to amend the pretrial order. We therefore affirm.

¶ 34. AFFIRMED.

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

KING, Justice,

dissenting:

¶ 35. Because I believe that the majority’s rigid application of the Rules of Civil Procedure in refusing to allow Allcock’s expert to testify creates a manifest injustice under the facts of this case, I respectfully dissent.

¶ 36. A crucial issue in the case was whether Dr. Bannister ordered calcium chloride for Robert’s IV fluids, or whether another party, without authorization, added the calcium chloride to his IV fluids, and whether the calcium chloride in Robert’s IV caused his death.

¶ 37. On August 19, 2005, Allcock designated her expert witnesses, including Dr. H. Joseph Byrd as an expert in pharmacy, pharmacology, and toxicology. On October 17, 2006, the defendants designated their expert witnesses, not including Dr. William J. George. The defendants supplemented their expert designation on July 31, 2007, adding Dr. George as a pharmacologist and toxicologist who was “expected to testify that all that can be determined is that while the contents [of the IV] were capable of producing a precipitate which could, under certain circumstances, potentially produce pulmonary vascular obstruction or other acute respiratory problems, this does not prove specific causation.” This supplemental designation was submitted after the discovery deadlines outlined in the court’s Third Amended Scheduling Order, and was the subject of the Estate’s motion to strike on August 3, 2007. The court granted this motion on August 30, 2007.

¶ 38. On October 5, 2007, the court changed course and amended its scheduling order based on an agreed motion for continuance. The court allowed Allcock until October 1, 2007, to designate with regard to Dr. Christopher Long, and allowed the defendants through November I, 2007, to designate with regard to Dr. George. The court reopened discovery through December 3, 2007, “for the limited purpose of supplementing expert witness disclosures and deposing the new experts.” Thus, despite the defendants’ utter failure to timely designate Dr. George as an expert, the court ultimately allowed the defendants to designate Dr. George due to a trial continuance. The defendants supplemented Dr. George’s disclosure on November 1, 2007, to note that “Dr. George is of the opinion, to a reasonable probability that there is substantially more potassium in the IV fluid than would have been called for by the order in the chart ..., and that the amount of potassium may have been as high as ten-fold higher than the bag labeling.” This was the first time the issue of the contents of the IV bag not comporting with the label and the attendant issue of dose relationship were injected into the case. The court entered the pretrial order on December 19, 2007, and provided that it was binding on all parties “unless this order be hereafter modified by the Court for good cause and to prevent manifest injustice.”

¶ 39. On February 7, 2008, the defendants moved to strike Dr. Byrd as an expert witness. Their basis was that Dr. Byrd was not identified as a will-call or may-call witnesses in the pretrial order. While Dr. Byrd is not listed in the pretrial order as a may- or will-call witness, the pretrial order did specifically state that “[djepositions of plaintiffs experts Alan L. Nager, M.D., Christopher Long, Ph.D., and H. Joseph Byrd, Pharm.D., will be completed no later than March 1, 2008,” a date after the date the defendants filed their motion to strike. On April 2, 2008, the court denied the motion to strike Dr. Byrd as moot, based on Allcock’s representation that Dr. Byrd would not be called as a witness.

¶ 40. On May 13, 2008, Allcock moved to amend the pretrial order to add Dr. Byrd as an expert witness. Allcock represented that, had she known that the defendants would rely on this theory of dose relationship, she would have included Dr. Byrd in the original pretrial order. The defendants contend that Allcock was on notice of the dose relationship issue by the pretrial order’s contention that the pharmacy improperly filled the IV order, as well as by Dr. George’s expert designation. On May 23, 2008, the court denied the motion to amend the pretrial order regarding Dr. Byrd, stating that “it comes too late.”

¶ 41. The first trial in this case began on August 4, 2008, and ended in a jury verdict for Allcock. On October 10, 2008, the court granted Dr. Bannister’s motion for a new trial based on jury instruction conflicts.

¶ 42. On May 1, 2009, Allcock moved to amend the pretrial order to add Dr. Byrd as an expert in pharmacy, pharmacology, and toxicology. The defendants opposed the motion, claiming that the retrial “should be about correcting the error from the first trial and nothing more.” On June 24, 2009, the court denied Allcock’s motion to amend the pretrial order, and stated that the original pretrial order entered December 19, 2007, remained in effect. The court did not give any specific reason for denying Allcock’s motion, but merely stated that “the motion is not well taken” based on the motion, response, and oral arguments.

¶ 43. Mississippi Rule of Civil Procedure 16 governs pretrial orders. The rule provides that a pretrial order “shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” Miss. R. Civ. P. 16 (emphasis added). This Court has held that, under Rule 16, the court cannot modify a pretrial statement unless the modification is agreed upon by the parties or unless manifest injustice would occur. Singley v. Singley, 846 So.2d 1004, 1013 (Miss.2002). The Rules of Civil Procedure “shall be construed to secure the just, speedy, and inexpensive determination of every action.” Miss. R. Civ. P. 1 (emphasis added). “The primary purpose of procedural rules should be to promote justice[.]” Id. cmt. (2011).

¶ 44. A new trial may be granted due to mistakes made in conducting the trial, and a new trial provides a clean slate, during which the issues are retried and the parties may present evidence differently. White v. Stewman, 932 So.2d 27, 33 (Miss.2006).

¶ 45. Exclusion of evidence for a discovery transgression is an extreme sanction. Miss. Power & Light Co. v. Lumpkin, 725 So.2d 721, 733-34 (Miss.1998) (finding abuse of discretion where trial court did not allow an expert to testify as to foreseeability); see also Thompson v. Patino, 784 So.2d 220, 223-24 (Miss.2001) (finding abuse of discretion where trial court struck an expert supplementation and affidavit and granted summary judgment). “Before imposing such a sanction a trial court should consider the explanation for the transgression, the importance of the testimony, the need for time to prepare to meet the testimony and the possibility of a continuance.” Lumpkin, 725 So.2d at 733-34.

The first consideration involves a determination whether the failure was deliberate, seriously negligent or an excusable oversight. The second consideration involves an assessment of harm to the proponent of the testimony. The third and fourth considerations involve an assessment of the prejudice to the opponent of the evidence, the possibility of alternatives to cure that harm and the effect on the orderly proceedings of the court.

Id. at 734. Furthermore, even if counsel does not pursue the case perfectly, such that some form of sanctions may be warranted, a more extreme sanction such as exclusion of evidence or dismissal may be too drastic. Thompson, 784 So.2d at 225-26.

¶ 46. In the case at hand, the original failure to include Dr. Byrd in the pretrial order for the first trial does appear to be negligent on the part of Allcock, although no evidence exists that it was deliberate, nor does Dr. Bannister contend it was. Allcock also does not have a valid excuse for failing to move to amend the pretrial order in a more timely manner. This factor favors the defendants’ contention that Dr. Byrd’s exclusion was proper.

¶ 47. The second consideration, involving the importance of the testimony and the harm to Allcock if it is excluded, weighs in favor of Allcock. A thorough review of the record indicates that this is a close case with regard to liability, something that is also indicated by the differing verdicts. The second trial hinged primarily on whether the alleged precipitation of calcium phosphate killed Robert — the calcium/phosphate combination in the IV was the central issue. Dr. Bannister, in addition to claiming that she never ordered calcium in the IV, relied heavily on the dose relationship theory — that only the dose as sent by the pharmacy, not the dose as written in the order, could have killed Robert. The defendants’ expert, Dr. George, testified in favor of their theory on the dose relationship. Allcock, while allegedly having experts willing to testify as to her theory on the dose relationship, was barred from introducing potentially pivotal testimony that the dose as written in the order could have killed Robert. It is obvious that the expert testimony that Allcock is attempting to introduce could be vital to her case. Thus, this factor favors Allcock.

¶ 48. In terms of the time needed to prepare to meet the testimony, Allcock moved to amend the pretrial order approximately five months before trial was scheduled. Moreover, the trial was continued until October 2010, giving the parties one year and five months from the time of the motion to prepare. At oral argument in this case, the defendants’ counsel conceded that timing was not an impediment in allowing Dr. Byrd to testify in the second trial.

¶49. It is also difficult for the defendants to claim surprise regarding Dr. Byrd. Dr. Byrd was designated as a witness in August 2005, and he remained so designated for more than two years. The issue of dosage was not injected into the trial until November 2007, and then, only by a discovery of the defendants’ expert. Additionally, while Dr. Byrd was not listed in the pretrial order as a may- or will-call witness, he was mentioned in the pretrial order in regard to his deposition. The defendants even requested clarification as to Allcock’s intent to call Dr. Byrd in January 2008, indicating that there was certainly no surprise as to the potential of Dr. Byrd being a witness. After the new trial was granted, the defendants were aware that Dr. Byrd’s testimony was an issue of import to Allcock, especially given that Allcock’s post-trial motions included allegations of error in not allowing Dr. Byrd to testify. The defendants had ample time between the second motion to amend the pretrial order and the second trial of this case to take Dr. Byrd’s deposition and have their expert, Dr. George, review it. Thus, the third factor favors Allcock.

¶ 50. The fourth factor, the availability of a continuance, also favors Allcock, given that the trial was indeed continued until October 2010. Furthermore, the trial court did not give any specific reason whatsoever for denying the second motion to amend the pretrial order or Allcock’s motion for new trial. It merely stated summarily that the motions were not well-taken. This Court cannot ascertain whether the trial court believed this was a timeliness issue, an issue of prejudice, or what other reason the trial court may have had for denying the motions.

¶ 51. The entire purpose of the Rules of Civil Procedure and their deadlines is to promote justice. Under the facts of this case, “the net result of adhering to the letter of the rules of procedure, by way of rigid application, would be to thwart, rather than promote justice.” Hartford Underwriters Ins. Co. v. Williams, 936 So.2d 888, 894-95 (Miss.2006). This is not a case of inexcusable delay coupled with surprise and manifest prejudice, in which a more rigid application of the rules may be appropriate. While it is true that Allcock did not pursue her case perfectly and could have been more timely in 2007, given the importance of the testimony, the lack of prejudice to the defendants in allowing the testimony, and the lack of disruption to the orderly proceedings of the court, combined with the utter failure of the trial court to specify any reason for denying Allcock’s motions, the trial court abused its discretion in denying Allcock’s motion to amend the pretrial order, and by extension, her motion for new trial. Exclusion of evidence is a harsh penalty, and some lesser form of sanction for Allcock’s actions would be more appropriate, especially when considered in light of the Rules’ mandate that they be construed to promote justice. Furthermore, a miscarriage of justice occurred by Dr. Byrd’s exclusion, as Allcock could not controvert Dr. George’s testimony. It is difficult to imagine how a jury could find for Allcock, where the only testimony on the main issue at trial was that Dr. Bannister could not have possibly been the cause of Robert’s death, even had she ordered calcium chloride in the IV.

¶ 52. For these reasons, I dissent from the majority and would reverse the trial court’s decision to deny Allcock’s second motion to amend the pretrial order, and by extension, its decision to deny Allcock’s motion for a new trial, and I would remand the case for a new trial in which Dr. Byrd would be allowed to testify.

CARLSON, P.J., KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . Rhoda v. Weathers, 87 So.3d 1036, 1038 (Miss.2012) (citing Jones v. Jones, 995 So.2d 706, 711 (Miss.2008)).

      . Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss.2003).

      . Miss. R. Civ. P. 16.

      . Miss. Power & Light Co. v. Lumpkin, 725 So.2d 721 (Miss. 1998).

      . Thompson v. Patino, 784 So.2d 220 (Miss.2001).

      . See id. at 225-26; Lumpkin, 725 So.2d at 733-34.

      . Rutland v. State, 60 So.3d 137, 142 (Miss.2011) (citing Irby v. State, 49 So.3d 94, 103 (Miss.2010)).

      . United Servs. Auto. Ass'n v. Lisanby, 47 So.3d 1172, 1176 (Miss.2010).

      . Young v. Guild, 7 So.3d 251, 259-60 (Miss.2009).

      . Miss. R. Civ. P. 59 cmt.

      . Hall v. Hilbun, 466 So.2d 856, 871 (Miss.1985), superceded by statute on other grounds, Miss.Code Ann. § 85-5-7, as recognized in Narkeeta Timber Co., Inc. v. Jenkins, 777 So.2d 39 (Miss.2000).

        . Dearman v. Christian, 967 So.2d 636, 640 (Miss.2007) (emphasis added) (citing Hunnicutt v. Wright, 986 F.2d 119, 124 (5th Cir.1993)).

      . Bowie, 861 So.2d at 1042.

      . 66 C J.S. New Trial § 5 (2009).

      . Like the majority, I agree that the trial court did not err in granting the defendants’ motion for new trial based on faulty jury instructions, and likewise agree that this moots Allcock’s appealed issues regarding the judgment in the first trial. I write to express my disagreement solely on the issue of the trial court's denial of Allcock’s motion to amend the pretrial order to add Dr. Joseph Byrd as an expert.

      . The pretrial order stated that "[d]efendants contend that the former defendant Memorial Hospital at Gulfport was negligent in failing to follow Dr. Bannister’s orders regarding the IV medications, in failing to recognize and stop the error of it [sic] own employees, including its nurses and pharmacy personnel, and in improperly filling the IV medication order."

      . The trial court in this case did indeed allow the parties to present evidence differently during the second trial.

      . Whether the trial court erred in denying Allcock’s first motion to amend the pretrial order in 2007 is immaterial. Even if the trial court did err in denying Allcock’s motion to amend the pretrial order, any such error was harmless. "The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.’’ Miss. R. Civ. P. 61. The remedy that Allcock requested for any error in denying the motion to amend the pretrial order was a new trial. The court indeed conducted a new trial in this case. Allcock received the requested remedy for this error. Thus, any alleged error in refusing to allow Dr. Byrd to testify would occur in the conduct of the second trial, not the first, as the remedy requested for the alleged error in the first trial was received. Therefore, I address only the issue of whether the court erred in denying Allcock's second motion to amend the pretrial order, presented in 2009.

      . When Allcock moved to amend the pretrial order in May 2009, trial was scheduled for October 2009, according to the briefs. The trial did not actually occur until October 2010.

      . In fact, the trial court allowed the defendants to designate Dr. George as an expert despite their untimely designation in violation of the Third Amended Scheduling Order, and after striking Dr. George as an expert, because the parties ultimately agreed to a continuance and a new scheduling order. Because the second trial was continued until a date more than a year after Allcock's second motion to amend the pretrial order, the trial court had no reason to deny Allcock the same consideration it had given the defendants.


author: RANDOLPH, Justice,

text:
    Quincy CLAYTON a/k/a Quincy Lee Clayton v. STATE of Mississippi.
    No. 2011-KA-00623-SCT.
    Supreme Court of Mississippi.
    Dec. 18, 2012.
    Rehearing Denied Feb. 21, 2013.

      David Neil McCarty, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   RANDOLPH, Justice,

for the Court:

¶ 1. This case is before this Court on direct appeal of the Jones County Circuit Court’s conviction of Quincy Clayton for the murder of his wife, Alice. We find error in depriving Clayton submission of an alternative theory of defense, when his requested jury instruction on heat-of-passion excusable homicide was refused. Accordingly, we reverse and remand this case to the Jones County Circuit Court for a new trial.

FACTS

¶2. Clayton and Alice lived with their daughter, Valerie, and Alice’s sister, Mary Wash. On Sunday morning, June 21, 2009 (Father’s Day), all four members of the household were at home. Clayton was in the living room ironing his clothes for church. Wash testified that, as Clayton approached Alice, who was sitting at the table eating breakfast, Alice “got up and she had a knife, a steak knife, and she told him to get back, get away from me. And she swung at him twice. I didn’t see no cut or anything.” After that, Alice went to her bedroom. In contrast, Clayton testified that Alice took his clothes from the ironing board and threw them on the floor and that, as the argument escalated, Alice hit him and he pushed Alice down into a chair. He testified that Alice then retrieved a knife from the kitchen and returned to the living room and, as they continued fighting, Alice cut his shoulder with the knife. Clayton testified that he then sat down on the couch, and Alice ran to the couple’s bedroom. He further testified that he attempted to enter the bedroom to get his shoes so that he could go to church, and that “[ejverytime I go in that room to go get my shoes, she had that knife at me. She was stabbing at me and everything. She said, get out of my damn room, get out of my damn room.” He tried once more to enter the room and then sat on the floor in the hallway, at which point Alice “come out of that room ... [a]nd she started kicking me. She had that knife. That’s when I got stabbed in my side.... ” Alice went back into the bedroom and shut the door. Clayton again told her that he needed his shoes, and walked into the bedroom. Alice again threatened to cut him, and he left the room and got a 12-gauge shotgun from a nearby hall closet. Clayton testified that “I open that door and I got my gun. When I went in there, I didn’t mean to do it, but it happened” and “I picked up the gun and everything. You know, it was an accident. I really — I was trying to bluff her so I could get my shoes to go to church.” He testified that when he walked into the bedroom with the gun, Alice came at him with the knife drawn back. Clayton then shot Alice. Clayton testified that “when she came at me with that knife and everything ... she like she going for the kill. She had the knife drawed back. I mean, she coming toward me. And I threw the gun up. And when the gun went off I said, dern. That’s what I said. And my wife fell down. And Mary said, oh, no you didn’t. And I heard her coming to the door. And I turned around and she met me in the hall.” After shooting Alice, Clayton ran from the house and drove away in his car. When he passed a Jones County Sheriffs car, Clayton flagged down Deputy Brian Buxton and said “I’m the man /all are looking for; I just shot my wife.” Testimony and photographic evidence at trial showed that Clayton sustained knife wounds on his left shoulder, wrist, and chest.

¶ 3. Valerie and Wash each gave a statement to the sheriffs office on the day of the shooting. Each said that she had heard the shooting, but neither explicitly stated that she had seen Clayton shoot Alice. However, at trial, Wash testified that she had seen Clayton shoot Alice.

ISSUE

¶ 4. Clayton raised numerous issues on appeal, including:

Whether the trial court committed reversible error by denying Clayton his right to alternative theories of defense.

Finding this issue dispositive, we decline to address the other issues.

LAW AND ANALYSIS

f 5. When reviewing a trial court’s grant or denial of a jury instruction, this Court considers the jury instructions “as a whole ‘to determine if the jury was properly instructed,’ giving abuse-of-discretion deference to the trial judge’s decision.” Flowers v. State, 51 So.3d 911, 912 (Miss.2010) (citations omitted).

¶ 6. We find that the trial court erred by failing to instruct the jury on Clayton’s alternative heat-of-passion theory. We have provided that “[a] defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which [1] incorrectly states the law, [2] is covered fairly elsewhere in the instructions, or [3] is without foundation in the evidence.” Bailey v. State, 78 So.3d 308, 315 (Miss.2012) (citation omitted). Finding that the rejected instruction correctly stated the law, was not covered by another instruction, and had a foundation in the evidence, we find that Clayton was entitled to present it to the jury.

¶ 7. Clayton proposed two excusable-homicide instructions based on Mississippi Code section 97-8-17. Section 97-3-17 reads as follows:

The killing of any human being by the act, procurement, or omission of another shall be excusable:
(a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;
(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;
(c)When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.

Miss.Code Ann. § 97-3-17 (Rev.2006). The jury was given Instruction D-4A. However, the jury was not given Clayton’s requested Instruction D-3A.

¶ 8. Without question, the pertinent language of Instruction D-3A correctly stated the law. The language of the rejected instruction directly parallels that of Mississippi Code Section 97-3-17(b), as follows:

Section 97-3-17(b)

The killing of any human being by the act, procurement, or omission of another shall be excusable: ... (b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation _Miss.Code Ann. § 97-3-17 (Rev.2006) (emphasis added)

Instruction D-3A

.... the killing of any human being by the act of another shall be excusable when committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation.

In this case if you shall find from the evidence, or have a reasonable doubt therefrom, that Quincy Clayton, in the heat of passion, upon any sudden and sufficient provocation by Alice Clayton, accidentally fired the defendant’s shotgun, and said shotgun accidently and/or through misfortune killed Alice Clayton, then it is your sworn duty to find Quincy Clayton not guilty. (Emphasis added).

Thus, the rejected instruction was a correct statement of the law.

¶ 9. We likewise find that the theory that the rejected instruction sought to present was not covered elsewhere in the instructions. The sole excusable-homicide instruction presented to the jury (Instruction D-4A) included only the language of section (a), and made no reference to the heat-of-passion theory described in section (b). The given instruction (Instruction D-4A) included the following language:

but, that the fatal shot was fired through accident and misfortune, at a time when Quincy Clayton had no unlawful intent toward Alice Clayton, then the death of Alice Clayton is deemed by the law to have been an excusable homicide and you must find the defendant not guilty.

In contrast, the rejected instruction would have instructed the jury that the shooting was an excusable homicide if it found:

that Quincy Clayton, in the heat of passion, upon any sudden and sufficient provocation by Alice Clayton, accidentally fired the defendant’s shotgun, and said shotgun accidently and/or through misfortune killed Alice Clayton....

(Emphasis added.) Clearly, the language in section (b) describing excusable homicide based on heat of passion was not included in the given instruction, but was included in the rejected instruction. Accordingly, we find that the theory that the rejected instruction sought to present was not covered fairly elsewhere in the instructions.

¶ 10. Finally, Clayton’s instruction on accident and misfortune in the heat of passion was not without foundation in the evidence. We have provided that “[a] criminal defendant has a right to assert alternative theories of defense, even inconsistent alternative theories ” and that “[i]n homicide cases, the trial court should instruct the jury about a defendant’s theories of defense, justification, or excuses that are supported by the evidence, no matter how meager or unlikely, and the trial court’s failure to do so is error requiring reversal of a judgment of conviction.” Brown v. State, 39 So.3d 890, 899 (Miss. 2010) (emphasis added) (citation omitted); Maye v. State, 49 So.3d 1124, 1129 (Miss. 2010) (emphasis added) (citation omitted). We find that sufficient evidence existed for the jury to be instructed on accident and misfortune, for Clayton testified on direct that he “didn’t mean to do it” and, both on direct and during cross-examination, that “it was an accident.” We further find that the evidence that Clayton and Alice were engaged in an escalating argument and that Alice had used a knife to threaten and cut Clayton moments before he shot her, and Clayton’s testimony that, just before he shot her, Alice “had a look in her face like I’m fixing to get you. She didn’t even look like my wife. She had the knife drawed back” provided a sufficient eviden-tiary foundation for Clayton to present a heat-of-passion theory to the jury.

¶ 11. In sum, the rejected instruction on heat-of-passion excusable homicide correctly stated the law, was not covered by any other instruction, and had a foundation in the evidence. Accordingly, Clayton was entitled to have the instruction given to the jury, and the trial court committed reversible error by failing to do so.

CONCLUSION

¶ 12. Finding that the trial court erred by failing to give Clayton’s requested jury instruction on his alternative, heat-of-passion defense, we reverse Clayton’s conviction and sentence, and we remand the case to the Jones County Circuit Court for a new trial consistent with this opinion.

¶ 13. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . On cross-examination, Clayton again testified that "[i]t was an accident” and that “it wasn't intentional.”

      . Before the police entered the bedroom, Betty Wash — Alice's daughter and Clayton’s stepdaughter — removed the knife from Alice's hand and placed it in or on top of a dresser in the bedroom.

      . Instruction D-4A read as follows:
      The Court instructs the Jury that if you believe from the evidence in this case, or have a reasonable doubt therefrom, that Alice Clayton died as a result of the discharge of a shotgun which was, at the time of the fatal shot, in the possession of Quincy Clayton but, that the fatal shot was fired through accident and misfortune, at a time when Quincy Clayton had no unlawful intent toward Alice Clayton, then the death of Alice Clayton is deemed by the law to have been an excusable homicide and you must find the defendant not guilty.
      (Emphasis added.) Instruction D-3A read as follows:
      The Court instructs the Jury that the killing of any human being by the act of another shall be excusable when committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation.

        In this case if you shall find from the evidence, or have a reasonable doubt therefrom, that Quincy Clayton, in the heat of passion, upon any sudden and sufficient provocation by Alice Clayton, accidentally fired the defendant’s shotgun, and said shotgun accidently and/or through misfortune killed Alice Clayton, then it is your sworn duty to find Quincy Clayton not guilty.
      (Emphasis added.)

      . The appearance of the words "accident and misfortune” in both proposed instructions does not mean that they presented the same excusable-homicide theory, as "by accident and misfortune” likewise appears in both sections of the statute, though each presents a different excusable-homicide ground. Miss. Code Ann. § 97-3-17 (Rev.2006).

      . The trial court clearly found sufficient evidence of accident and misfortune, as the jury was given Instruction D-4A.