author: LAMAR, Justice, CHANDLER, Justice,

text:
    Troy CHAUPETTE a/k/a Troy W. Chaupette v. STATE of Mississippi.
    No. 2012-KA-01464-SCT.
    Supreme Court of Mississippi.
    March 6, 2014.
    Rehearing Denied May 8, 2014.

      Office of State Public Defender by George T. Holmes, Phillip W. Broadhead, Thomas Fortner, Thomas Schwartz, John A. Howell, attorneys for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Troy Chaupette was convicted of fondling his four-year-old great-niece. He appeals his conviction, alleging the trial court erred by: 1) allowing two fact witnesses to provide expert testimony; 2) permitting an improper comment on the victim’s truthfulness; and 3) admitting cumulative, hearsay testimony from six witnesses under the tender-years exception. Finding no reversible error, we affirm the judgment of the Pearl River Circuit Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Following Hurricane Katrina, Troy Chaupette and his mother lived with his niece, Ann, and her four-year-old daughter, Claire, in a home owned by his sister and Ann’s mother, Ellen., On October 16, 2005, Claire repeatedly hit her mother in the vagina while saying “what’s that, what’s that.” Concerned, Ann asked Claire where she had learned that behavior. Claire replied “Uncle Troy” and told Ann that

[Troy] came and got her out of bed one night, brought her into the bathroom and sat her on the toilet and scooted her down and placed one hand in his pants and the other hand — his finger into her vagina, what she called a mini cat .... And then when he was done, he brought her back into [Ann’s] room and placed her in the bed and told her not to tell her mom, go back to sleep.

Claire also reenacted the event. After Claire fell asleep, Ann called Ellen, who advised her to lock the bedroom door and volunteered to contact the necessary authorities. In the morning, Ellen called the Department of Human Services (DHS). Lilly Crawford, a social worker with DHS, interviewed Claire two days later. During her interview, Claire told Crawford that

[H]er Uncle Troy had touched her mini, meaning her vagina area, with his finger. She held up her index finger showing [Crawford] which finger. When [Crawford] asked her whether or not the uncle touched her over her clothes or under her clothes, she stated that he touched her on the inside of her clothes that she was wearing. She stated that she was on the toilet when the incident occurred and that she had been sleeping. She stated that her mama was asleep at the time of the incident. She stated that no one else had ever touched her like that before. She also stated that the uncle didn’t hurt her at that time.

Crawford also interviewed Ann and Ellen. Based on Crawford’s interviews, DHS turned the case over to law-enforcement authorities. The day after their DHS interviews, Ann took Claire to see her pediatrician, Dr. Johanna Dupont. Dr. Dupont conducted an external examination of Claire’s genitalia and found no physical injury. However, based on her discussion with Ann and Claire, she diagnosed Claire as being sexually abused. On November 11, 2005, Ann filed a molestation report with the Picayune Police Department. As a result, Officer Monica Jacobsen interviewed Claire, Ann, Ellen, and Troy. During her interview, Claire identified her vagina area as her “mini” and told Officer Jacobsen that “[h]er Uncle Troy came into the bedroom, told her it was wake-up time and picked her up from the bed, brought her into the bathroom and sat her on the potty and touched her mini.” Claire also provided details regarding the color of the bathroom and what she was wearing at the time of the abuse. Following her investigation, Officer Jacobsen concluded that there was sufficient evidence to forward the case to the grand jury. In December 2005, Claire began receiving therapy from Deslie Banano. During therapy, Claire told Banano “[Uncle Troy] touched my mini”. And while she did that, she pointed to her vagina. She said that he had brought her into the bathroom while her mommy was sleeping and had touched her “mini.”

¶ 3. In addition to these witnesses, both Claire and Troy testified at trial. Claire identified Troy and testified that “[h]e got me out of my mom’s bed and brought me to the bathroom while I was asleep ... I woke up and I saw he touched my private part ... [with] his finger.” Troy denied all the allegations against him and suggested that Ellen, his sister, made the allegations up because she was angry at him for talking to her ex-best friend. He also mentioned that he had participated in the investigation and that he consistently had denied all the allegations against him.

¶ 4. Troy was convicted of one count of child-fondling and received a fifteen-year prison sentence. Troy timely appealed and raised the following issues, which have been restated for purposes of clarity:

I. Claire’s pediatrician and therapist were allowed to provide expert testimony without satisfying the requirements of Rule 702 of the Mississippi Rules of Evidence.
II. Claire’s therapist was allowed to comment improperly on her truthfulness.
Ill Hearsay testimony from six witnesses admitted under the tender-years exception was cumulative and unfairly prejudicial.

¶ 5. Finding no reversible error, we affirm the judgment of the Pearl River Circuit Court.

LAW AND ANALYSIS

I. Expert Testimony from Dupont and Banano

¶ 6. Dr. Johanna Dupont, a pediatrician, and Deslie Banano, a psychotherapist, testified as witnesses for the State regarding their treatment of Claire. It is undisputed that neither was tendered as an expert witness. At trial, Troy objected to Dr. Dupont’s diagnosis testimony and Banano’s treatment testimony, claiming both were providing impermissible expert testimony without first being presented as experts. He raises the same argument on appeal.

¶ 7. A trial court’s admission of testimony is reviewed for an abuse of discretion. “We give great deference to the discretion of the trial judge,” and “unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, [the trial judge’s] decision will stand.” Moreover, we “may reverse a case only if, the admission or exclusion of evidence results in prejudice and harm or adversely affects a substantial right of a party.”

¶ 8. “There is often a very thin line between fact and opinion” testimony. We find Dupont’s testimony crossed the line from fact to opinion testimony when she offered her diagnosis of Claire. The question presented is whether this was a lay opinion pursuant to Rule 701 or an expert opinion governed by Rule 702. Before providing expert opinion testimony, a witness must be qualified, tendered, and accepted as an expert under Rule 702 of the Mississippi Rules of Evidence. In contrast, lay witnesses can provide opinion testimony only if it is “rationally based on the[ir] perception ... [and] helpful to the clear understanding of the testimony or the determination of a fact in issue.” But if an opinion is based on scientific, technical, or other specialized knowledge, it can be admitted only under the guid-anee of Rule 702 as an expert opinion. An opinion is based on “scientific, technical, or other specialized knowledge” if “the witness must possess some experience or expertise beyond that of the average randomly selected adult” to express the opinion. A physician can testify without being accepted as an expert regarding: 1) “the facts and circumstances surrounding the care and treatment of the patient”; 2) “what his records about the patient reveal”; and 8) “what conditions the patient was suffering from if the opinion was acquired during the care and treatment of the patient.” However, a physician cannot testify about the significance of a patient’s condition or industry standards without first being accepted as an expert. Troy argues that Dupont’s diagnosis testimony and Banano’s treatment testimony entered into the realm of expert testimony.

A. Dr. Johanna Dupont

¶ 9. Troy challenges the trial court’s ruling which allowed Dr. Dupont to state that she had diagnosed Claire as sexually abused. The disputed testimony during Dr. Dupont’s direct examination reads:

Q. You performed an external superficial exam on Claire Chaupette; is that correct?
A. Yes.
Q. Okay. And what were your findings as to that exam?
A. She had no apparent injury or abnormality on her genital exam.
Q. Okay. And based on the history of her present illness and your patient history and your external exam of her genitalia, where you able to come up with a diagnosis?
A. Yes.
Q. And what was your diagnosis?
A. Sexual abuse.

Dr. Dupont also was allowed to restate her diagnosis on redirect:

Q. Okay. Dr. Dupont, even though your external exam shows no injury or bruising, you still made a diagnosis of sexual abuse; is that correct?
A. There’s no physical finding. No physical findings
Q. And you came up with a diagnosis in this ease; is that correct?
A. Yes.
Q. And what was your diagnosis?
A. Sexual abuse.

¶ 10. Clearly, Dupont’s diagnosis was an opinion, and, as she stated, it was based on the patient history taken, as well as Dupont’s physical examination of Claire. Her opinion no doubt was based on her specialized knowledge, which can be presented only under the strictures of Rule 702. However, the history she relied on was placed in evidence by five other witnesses, namely Claire, Ann, Crawford, Ja-cobsen, and Banano, and her testimony regarding her physical examination of Claire aided Chaupette’s defense, as the examination revealed no physical injury. We find that any error in the admission of Dupont’s “diagnosis” was clearly harmless and did not result in prejudice to Chau-pette.

B. Deslie Banano

¶ 11. Troy also faults the trial court for allowing Banano to testify about her therapy sessions with Claire. Banano testified that, during individual interviews, Ann and Claire both told her that Claire had been sexually abused by Troy. As a result, Banano developed a treatment plan “to work on issues related to the sexual abuse and have [Claire] alleviate some of the trauma related, help her describe and reframe sexual abuse, alleviate guilt associated with it.” Banano noted that Claire appeared fearful and embarrassed when discussing the abuse and that she eventually became avoidant of the topic. On cross-examination, it was revealed that Claire had disclosed more details about the abuse as her therapy progressed but, on redirect, Banano explained that, in her experience, children generally tell more information over time. After twelve individual therapy sessions, Banano concluded that Claire had improved, because “the effects of the sexual abuse had abated and she seemed to be progressing normally. And it was not an issue that she was dealing with in daily life.” Banano referred her to a girls’ group for further counseling.

¶ 12. The vast majority of Banano’s testimony pertained to the facts and circumstances surrounding her treatment of Claire and, as such, was appropriate lay testimony from a physician. Notably, she never testified that Claire’s behavior was consistent with that of a sexually abused child or that she believed Claire had been sexually abused by Troy. But Banano did enter the realm of expert testimony when she relied on her experience to opine that children generally provide more information over time. However, we cannot say that Troy was prejudiced by the admission of this one improper comment, and certainly there was not “substantial prejudice.” We will not reverse a conviction based on a harmless error.

II. Credibility Testimony

¶ 13. Chaupette’s attorney questioned the source of Claire’s abuse allegations with the following questions during his cross-examination of Banano:

Q. You would agree with me, wouldn’t you, that [Claire] has been reminded of this over and over and over, over all these years by [Ann] and her grandmother?
A. I could only assume that.
Q. And you would agree with me that a child that’s four years of age or five years of age, once something is repeatedly drummed into their little mind, they can succumb to suggestions, can’t they?
A. Yes. They are susceptible to suggestion.
Q. Sure, sure. And sometimes they can actually believe things that are not true?
A. They can.

As a result, Banano was allowed, over Troy’s objection, to provide the following testimony on redirect:

Q. Deslie, you were asked a lot of questions on Cross-Examination about the susceptibility of a four year old to people talking to them?
A. Yes.
Q. Do you feel like that was the case in this situation?
A. No. I do not.

On appeal, Troy alleges this testimony was an inappropriate “truthfulness” opinion. We disagree.

¶ 14. Testimony regarding a child sex-abuse victim’s credibility is not highly regarded, being considered “of dubious competency.” However, such testimony is permissible so long as it does not comment on the truthfulness of the victim’s accusations and is especially warranted when a victim’s credibility previously has been attacked.

¶ 15. Testimony similar to that at issue here was challenged in Hosford v. State. In Hosford, the defendant suggested that the child sex-abuse victim had confused him with other abusers. In response, the child’s therapist was allowed to provide the following testimony:

Q. In what Billy had done to her as opposed to what other individuals had done to her, has she been consistent in that regard?
A. Correct.
Q. Based upon your educational background and your counseling sessions with [the child], do you have an opinion as to the possibility that [the child] has confused Billy Hosford with other individuals who have victimized her?
A. I don’t think that she has confused what has happened, primarily because of what I have already said. The emotional response that she has toward each perpetrator is very specific; very, very specific. And that toward him is specific also.

The Court did not find this line of questioning to be reversible error, stating:

Viewed out of context, the above-quoted testimony treads close to the brink of reversible error as a comment upon the truthfulness of the child’s accusations. Had such statements been made wholly without reference to the impeachment of the victim on cross-examination, reversible error may well have occurred. In Williams v. State, 539 So.2d 1049, 1051 (Miss.1989), the Court held such testimony “of dubious competency.” We do not retreat from these cases but hold, under the particular circumstances of this case, that [the therapist]’s brief testimony, negating the defense position that the victim had confused appellant with other abusers, did not rise to the level of bolstering and is not reversible error.

¶ 16. As in Hosford, the trial court here had to determine to what extent the State could respond to Troy’s attack on Claire’s credibility. Banano was allowed to say only that she did not believe Claire had been brainwashed by her mother and grandmother. She did not say Claire was telling the truth or even that she found Claire to be credible. Banano’s testimony was shorter and less revealing than that permitted in Hosford. As such, the trial court did not abuse its discretion by allowing her comment. This issue is without merit.

III. Hearsay Testimony

¶ 17. Troy argues that admitting hearsay testimony from five witnesses under the tender-years exception was cumulative and unfairly prejudicial. A trial court’s admission or exclusion of testimony is reviewed for an abuse of discretion.

The Mississippi Rules of Evidence provide a tender years exception to the rules prohibiting hearsay: A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

¶ 18. Testimony admissible under the tender-years exception still may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.”

¶ 19. “Prejudicial overuse of the tender years exception” was addressed by the Court of Appeals in Carter v. State, In Carter, the defendant argued that he had suffered a manifest injustice when the State was allowed to use the tender-years exception to elicit hearsay testimony regarding the victim’s outcry statement from eight witnesses. In rejecting the defendant’s argument, the Court of Appeals found it significant that most of the witnesses discussed the victim’s outcry statement “only as it related to the true purpose of their testimony”; for example, a police officer discussed the statement in relation to his investigation, and a doctor discussed the statement in relation to his examination. The Court of Appeals also noted that “it is not unusual for multiple witnesses to testify regarding a child’s outcry statement in [child sexual-abuse] cases.”

¶ 20. As in Carter, each of the witnesses at issue here discussed Claire’s abuse allegations only as they related to their involvement in the case, and multiple convictions based on such testimony from five or more witnesses have been affirmed by this Court. For these reasons, we find the testimony admitted under the tender-years exception was not unfairly prejudicial and that the trial court did not abuse its discretion in allowing it to be admitted. This issue is without merit. Finding no reversible error, we affirm the judgment of the Pearl River Circuit Court.

¶ 21. CONVICTION OF CHILD MOLESTATION AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE (5) YEARS TO BE SERVED AND THE REMAINING TEN (10) YEARS TO BE SERVED UNDER THE POST-RELEASE PROVISIONS WITH A FIVE (5) YEAR SUPERVISION PERIOD, AFFIRMED. APPELLANT SHALL PAY A FINE OF $1,000, AN ASSESSMENT OF $2,000 AND ALL COURT COSTS.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, PIERCE AND COLEMAN, JJ„ CONCUR. CHANDLER, J„ CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

CHANDLER, Justice,

concurring in part and in result.

¶ 22. The majority holds that Claire’s pediatrician, Dr. Dupont, could not testify to the diagnosis she had reached during her care and treatment of Claire because she had not been designated as an expert witness. Yet the majority recognizes that a treating physician can testify as a lay witness “regarding; 1) ‘the facts and circumstances surrounding the care and treatment of the patient’; 2) ‘what his records about the patient reveal’; and 3) ‘what conditions the patient was suffering from if the opinion was acquired during the care and treatment of the patient.’ ” Maj. Op. at ¶ 8 (quoting Griffin v. McKenney, 877 So.2d 425, 439-40 (citing Scafidel v. Crawford, 486 So.2d 370, 372 (Miss.1986)). Because Dr. Dupont’s diagnosis of sexual abuse was made during her care and treatment of Claire, it was a fact to which Dr. Dupont could testify without having been designated as an expert witness. I would find no error in the admission of Dr. Dupont’s testimony; therefore, I concur in part and in the result.

¶ 23. The distinction between lay and expert testimony is vital because expert testimony is subject to special discovery rules to allow the opposing party an opportunity to challenge the expert’s qualifications. Sample v. State, 643 So.2d 524, 530 (Miss.1994); see M.R.C.P. 26(b)(4) (civil cases); URCCC 9.04(A)(4) (criminal cases). It is well-established in this Court’s jurisprudence that treating physicians may testify as lay witnesses regarding their care and treatment of patients, including a diagnosis reached in the course of treatment, but may not testify to standards of care or causation, or use their expertise to explain the significance of a diagnosis or answer hypothetical questions. In Scafidel v. Crawford, 486 So.2d 370, 372 (Miss.1986), Scafidel’s treating physicians testified as lay witnesses that, in the course of treatment, she had been diagnosed with anemia. Neither physician was permitted to testify about the effects of anemia. Id. Because the physicians had acquired their opinions that Scafidel was anemic during her care and treatment and had not explained how her anemia was significant to the case, the Court held that their testimony had not crossed the “impermissible line between fact testimony and expert opinion.” Id.

¶ 24. In Foster v. Noel, 715 So.2d 174, 178 (Miss.1998), the trial court allowed Noel’s doctor to give lay testimony about Noel’s care and treatment on the night of her false arrest. Id. Noel’s doctor testified that Noel had a preexisting condition of depression which had been aggravated by the false arrest. Id. This Court held that the physician’s “revelation that Noel had a pre-existing condition did not constitute impermissible expert opinion, as he did not testify about the significance of her depression and the effect the acute anxiety she suffered as a result of being arrested would have on her condition in the future.” Id. However, the treating physician had rendered improper expert testimony by stating that Noel’s depression had been aggravated by the false arrest. Id. That testimony constituted inadmissible expert testimony because it explained how Noel’s depression was significant to the case. Id.

¶ 25. The Court of Appeals relied on Scafidel and Foster in Griffin v. McKenney, 877 So.2d 425 (Miss.Ct.App.2003). Griffin sued his treating physician, Dr. McKenney, for medical malpractice. Id. at 429. Although Dr. McKenney had not been designated as an expert witness, he gave detailed medical testimony explaining his treatment of Griffin. Id. at 439. The Court of Appeals held that Dr. McKenney did not have to have been designated as an expert to render this testimony because it “was solely explanatory of Dr. McKenney’s treatment of [Griffin] and of his records and nursing records about [Griffin]’s care.” Id. at 440. However, the Court of Appeals held that Dr. McKenney “stray[ed] into the realm of expert testimony” by rendering medical opinions in response to hypothetical questions. Id. at 440^1. In other words, Dr. McKenney was permitted as a lay witness to testify to the historical facts of the medical impressions and opinions he had formed in the course of his treatment of Griffin, but could not elaborate beyond his perceptions formed at that time.

¶ 26. The Court of Appeals applied the same reasoning in the personal-injury case of APAC Mississippi, Inc. v. Johnson, 15 So.3d 465 (Miss.Ct.App.2009). To establish her injuries, Johnson called a nurse practitioner and a physician who had treated her after the accident. Neither had been designated as an expert witness. Id. at 469-70. The nurse practitioner testified from Johnson’s medical records that Johnson had a hairline fracture of her cervical vertebrae, and the physician reviewed photographs of Johnson’s injuries and explained her diagnosis of Johnson. Id. at 472. The Court of Appeals found that the witnesses’ testimony had been confined to the facts and circumstances surrounding Johnson’s care and treatment, what the medical records revealed, and diagnostic opinions acquired during Johnson’s care and treatment. Id. The Court of Appeals held that neither witness had rendered impermissible expert testimony. Id.

¶ 27. These decisions provide insight into the dividing line between lay and expert testimony by a treating physician. “Typically, an expert witness is an ‘outsider’ to the case who evaluates the evidence in an attempt to explain it to the jury.” Crist v. Loyacono, 65 So.3d 837, 844 (Miss.2011). “Before experts may deliver opinions to the jury, experts must be vetted by the court and must satisfy certain criteria.” Id. “By contrast, a fact witness may be virtually any competent person whose testimony is based on personal knowledge.” Id. (citing M.R.E. 601); see M.R.E. 602 (a person must have personal knowledge of a matter to testify).

¶ 28. Unlike a typical expert witness, a treating physician is not an outsider to the case. When a treating physician testifies about a patient’s care and treatment, the medical records documenting that care and treatment, and diagnoses formed in the course of the patient’s care and treatment, the treating physician is testifying based on personal knowledge and is properly deemed a fact witness. Scafidel, 486 So.2d at 372. In contrast, a medical expert is called not to testify about historical facts personally observed, but to offer opinions or other testimony about the case from the perspective of an uninvolved third party possessing specialized knowledge helpful to the jury’s determination of the issues. M.R.E. 702. A treating physician must'be designated as an expert if the treating physician goes beyond historical facts personally observed and “evaluates the evidence in an attempt to explain it to the jury.” Crist, 65 So.3d at 844. Therefore, our precedent forbids treating physicians not designated as experts from testifying to standards of care, causation, or using their expertise to explain the significance of a diagnosis or answer hypothetical questions. Foster, 715 So.2d at 178; Scafidel, 486 So.2d at 372; APAC Mississippi, 15 So.3d at 472; Griffin, 877 So.2d at 440-41.

¶ 29. Dr. Dupont testified that she was Claire’s pediatrician and that she had examined Claire shortly after the allegations of abuse arose. Dr. Dupont testified that she performed an external superficial exam on Claire and that she had no apparent genital injury or abnormality. Based on the physical exam and patient history, Dr. Dupont testified that her diagnosis was sexual abuse. As a treating physician testifying as a lay witness, Dr. Dupont was permitted to testify to “what conditions the patient was suffering from if the opinion was acquired during the care and treatment of the patient.” Griffin, 877 So.2d at 439-40. Plainly, Dr. Dupont’s diagnosis was made in the course of her care and treatment of Claire. Therefore, the trial court properly allowed her to render this testimony as a lay witness. See id. While the majority finds that the trial court’s ruling was error, I would find no error in the admission of Dr. Dupont’s testimony. Therefore, I concur in part and in the result.

KING, J., JOINS THIS OPINION.

      .Fictitious names have been used for the minor victim and her family members to protect the identity of the victim. Members of the Chaupette family will be referred to by first name to avoid confusion.

      . Ellen and her husband, George, were living in Houston, Texas, at the time of the alleged abuse.

      . There was also evidence at trial that Claire hit herself in the vagina while saying "what's that, what’s that.”

      . Claire had her own room but slept in the bed with Ann.

      . Troy moved out of Ellen's house shortly after the incident.

      . Troy was indicted on December 7, 2006.

      . At trial, she could not remember whether Troy touched her private part underneath or on top of her clothes.

      . Troy's testimony was corroborated in part by that of Officer Jacobsen, who acknowledged on cross-examination that Troy had cooperated during her interview of him and had maintained his innocence.

      . Foster v. Noel, 715 So.2d 174, 181 (Miss.1998); see also Carter v. State, 996 So.2d 112, 116 (Miss.Ct.App.2008).

      . United American Ins. Co. v. Merrill, 978 So.2d 613, 631 (Miss.2007).

      . Id. at 633 (internal quotations omitted) (citing Blake v. Clein, 903 So.2d 710, 723 (Miss.2005)).

      . Sample v. State, 643 So.2d 524, 530 (Miss.1994).

      . Miss. R. Evid. 701, 702.

      . Cotton v. State, 675 So.2d 308, 312 (Miss.1996) (citing Roberson v. State, 569 So.2d 691, 696 (Miss.1990)).

      . Miss. R. Evid. 701.

      . See Miss. R. Evid. 701 cmt. (stating "[t]he 2003 amendment of Rule 701 makes it clear that the provision for lay opinion is not an avenue for admission of testimony based on scientific, technical or specialized knowledge which must be admitted only under the strictures of Rule 702.”)

      . Langston v. Kidder, 670 So.2d 1, 3-4 (Miss.1995).

      . Griffin v. McKenney, 877 So.2d 425, 439-40 (citing Scafidel v. Crawford, 486 So.2d 370, 372 (Miss.1986)).

      . Foster v. Noel, 715 So.2d 174, 183 (Miss.1998).

      . Langston v. Kidder, 670 So.2d 1, 4 (Miss.1995).

      . Miss. R. Evid. 702.

      . Banano was adamant that Ann and Ellen did not participate in Claire’s therapy sessions and that Claire was not present when Banano updated them on her progress.

      . See Griffin v. McKenney, 877 So.2d 425, 441 (Miss.Ct.App.2003) (holding admission of expert testimony from a lay witness did not warrant reversal when error did not substantially prejudice the opposing patty).

      . Hobgood v. State, 926 So.2d 847, 853 (Miss.2006).

      . Id. at 854; see also Hosford v. State, 560 So.2d 163, 166-67 (Miss.1990) (holding it was appropriate to allow a child’s therapist to testify about the quality of the child’s sexual-abuse allegations in order to ”negat[e] the defense position that the victim had confused [the defendant] with other abusers”); Elkins v. State, 918 So.2d 828, 831-32 (Miss.Ct.App.2005) (holding it was appropriate to allow a social worker to testify that the victim's "behavior and demeanor were consistent with those of children who have been sexually abused” and that the victim kept her story straight, unlike most children who have been coached to lie about abuse).

      . Hosford, 560 So.2d at 166-67.

      . Id.

      . Id. at 166.

      . Id. at 166-67.

      . Foster v. Noel, 715 So.2d 174, 181 (Miss.1998); see also Carter v. State, 996 So.2d 112, 116 (Miss.Ct.App.2008).

      . Carter v. State, 996 So.2d 112, 124-25 (Miss.Ct.App.2008) (quoting Miss. R. Evid. 803(25)).

      . Miss. R. Evid. 403.

      . Carter v. State, 996 So.2d 112, 116 (Miss.Ct.App.2008).

      . Id. at 125.

      . Id.

      . Id.

      . Hobgood, 926 So.2d at 851-52 (approving the admission of testimony from six witnesses regarding the victim's allegations); Smith v. State, 925 So.2d 825, 830-32 (Miss.2006) (approving the admission of testimony from six witnesses regarding the victim’s allegations); Withers v. State, 907 So.2d 342, 344, 348-49 (Miss.2005) (approving the admission of testimony from seven witnesses regarding the victim’s allegations).

      . Chaupette argues that tender-years testimony should be subjected to the three-pronged standard used to determine the evi-dentiary value of photographs in murder cases. We find this argument unpersuasive. Oral testimony and photographs are perceived differently and child sexual-abuse cases present unique evidentiary challenges.

      . This Court also has applied this general analysis in cases involving fact witnesses possessing expertise of the nonmedical variety. See Quitman County v. State, 910 So.2d 1032, 1045 (Miss.2005) (circuit judges were permitted as lay witnesses to give their personal observations on how the county’s public defender system worked); Langston v. Kidder, 670 So.2d 1, 4 (Miss.1995) (a fact witness's opinion on industry standards was derived from specialized knowledge; therefore, it was subject to expert disclosure rules); see also Mitchell v. Barnes, 96 So.3d 771, 779 (Miss.Ct.App.2012) (a police officer who had not personally observed the subject accident could not give opinions on speed or driver negligence without having been designated as an expert).


source: Caselaw Access Project

author: KING, Justice, PIERCE, Justice,

license: Public Domain

text:
    Charles ERVIN a/k/a Charles D. Ervin a/k/a Michael Ervin a/k/a Charles Darnell Ervin v. STATE of Mississippi
    No. 2011-KA-01809-SCT.
    Supreme Court of Mississippi.
    April 24, 2014.

      Office of State Public Defender by Justin Taylor Cook, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, John R. Henry, Jr., attorneys for appellees.
   KING, Justice,

for the Court:

¶ 1. A jury convicted Charles Ervin (“Charles”), a convicted felon, of armed robbery and felon in possession of a handgun following the armed robbery of the Healthy Body Store. Police were able to identify Charles as a suspect after his brother, also a convicted felon, pointed the police in Charles’s direction. At trial, the trial court gave a flight instruction over the objection of the defendant. The jury found Charles guilty, and the trial court sentenced him and included a gun enhancement in the sentencing. This appeal followed. Because the trial court improperly limited the defense’s cross-examination of a key State witness, this Court reverses Charles’s convictions and remands the case to the trial court for a new trial.

FACTS

¶ 2. On September 2, 2010, the Healthy Body Store on the corner of Northside Drive and Livingston Road was robbed at gunpoint. The store manager, Martha Duffy, was the only person working at the store at the time. A man walked past the store, then walked back to the store and entered it. He asked for a product, then walked up and down the store aisles. He then made his way back up to the front of the store, pointed a gun at Duffy, and demanded money. After she gave him money, he made a few more demands, ordered Duffy under the desk, and departed. As soon as he left the store, Duffy called 911. She described the robber as wearing black shorts, a black shirt, and a baseball cap, and described the gun as a dark-colored handgun. The police arrived quickly and canvassed the area.

¶ 3. Canvassing the area led the police to a house on Brinkley Drive, close to the store, where they spoke with Linda Staple-ton. Stapleton told police that a man fitting the description of the robber had come to the door and asked for “Gary” and that she informed the man that “Gary” was not there. The conversation with Sta-pleton led police to a house on Douglas Avenue, also close by.

¶ 4. At the house on Douglas Avenue, police encountered Michael Ervin (“Michael”), also known as Ray Ray. When police arrived at his house, Michael was wearing black shorts and was putting on a red shirt. Michael was not sweating, nor was he out of breath. He informed the police that he had been at home all day. He also informed them that his brother Charles had been at the house on Douglas Avenue approximately thirty minutes prior to the officers’ arrival. The police eventually took Michael to the police station for further investigation. During the police interview of Michael at the police station, he allegedly stated that Charles also goes by the name Ray Ray. He also repeated that he had seen Charles at the Douglas Avenue house approximately thirty minutes prior to the arrival of the police.

¶ 5. Martha Duffy was also taken to the police station immediately after the robbery. While there, Duffy picked Charles’s photograph out of a photo lineup. After she picked Charles’s photograph out of the lineup, the police placed Michael in a room with secured mirror glass, and asked Duffy if Michael was the man who robbed her. She indicated that Michael was not the man who robbed her. On September 24, 2010, more than three weeks after the robbery occurred, federal marshals arrived at Charles’s apartment and arrested him. When they arrived, Charles went into the attic, from which there was no exit. The record contains no evidence that Charles knew of the charges for which he was being arrested. On September 26, 2010, Charles allegedly went to the hospital while in custody, where he allegedly escaped from the security guard assigned to guard him.

PROCEDURAL HISTORY

¶ 6. On February 2, 2011, the State indicted Charles for armed robbery, including that he used or displayed a firearm during the commission of the armed robbery, and for being a felon in possession of a firearm. Trial was set for summer of 2011. On June 3, 2011, the State obtained a second indictment against Charles, this one for escape, based on his alleged September 26, 2010, escape from custody at a hospital. Then, on July 27, 2011, the State obtained a third indictment against Charles for the same circumstances. This indictment was a three-count indictment and included the armed-robbery charge, the felon-in-possession-of-a-firearm charge, and the escape charge. The three-count indictment was assigned to a different judge than were the first two indictments. The State then elected to pursue the armed-robbery and felon-in-possession charges under the original indictment, instead of the three-count indictment.

¶7. Among the State’s witnesses at trial was Richard Stevenson, the former detective who had interviewed Michael at the police station. The defendant attempted to cross-examine Stevenson on the personal information that Michael had given him, based on an NCIC printout and a witness location form filled out by Stevenson. Specifically, the defendant was attempting to show that Michael had used multiple different social security numbers and birthdates, including Charles’s. The theory of the defense was essentially that Michael committed the robbery and then attempted to pin it on Charles. Through Stevenson, the witness location form, and the “all over the map” NCIC report that Stevenson received on Michael, the defendant wanted to show that Michael was “known to give false information. He’s used his alias three different times” and that “the accuracy of this detective’s investigation is an issue.” The State objected to this line of questioning, and the court sustained the objections, stating that it did not see the relevance of the line of questioning. At one of the two bench conferences on the issue, the following occurred:

Q: What — what do you show for Michael Ervin’s date of birth?
BY MS. COGHLAN: Again, Your Honor, same — same objection.
BY MS. BROWN: I think — I think when you see — when I ask the next question, you’ll understand.
BY THE COURT: Well, before we get there, I’ll have to sustain that. Michael Ervin is not on trial and I just — I don’t see it’s relevant.
BY MS. BROWN: Judge, the accuracy of this detective’s investigation is an issue.
BY THE COURT: Wall approach. (BENCH CONFERENCE AS FOLLOWS:)
BY MS. BROWN: He has supplied two different birthdays and two different social security numbers in forms that he completed for witness location folders on Michael Ervin.
BY MR. KESLER: Your Honor, that’s — (inaudible)
BY MS. BROWN: Okay.
BY THE COURT: All right. So you’re withdrawing the question?
BY MS. BROWN: No. I’m accepting the Court’s rulings.
BY THE COURT: All right. I’ll sustain it.

¶ 8. At trial, the State sought to introduce evidence of Charles’s alleged September 26, 2010, escape from a hospital while in custody, as evidence of a guilty conscience. The State attempted to introduce such evidence through the testimony of Wade Pickens, the security officer from whose custody Charles allegedly escaped. The defendant vociferously objected to this testimony on several grounds, the testimony was proffered, and the court overruled the defendant’s objection. Among the many reasons for the objection given were that the State elected not to proceed with the escape charge in the current trial and was surprising the defendant with the introduction of evidence of escape in the trial for armed robbery and felon in possession of a firearm, with defense counsel stating “But in this circumstance, they elected not to proceed with the escape. I feel like I’m, being sandbagged. I feel like this information is being put before the jury solely to prejudice the jury.” (Emphasis added.) However, Wade Pickens then testified that the prisoner whom he was assigned to guard that day was not in the courtroom, thus failing to identify Charles. Accordingly, no evidence of Charles’s alleged September 26, 2010, escape from custody was presented at trial.

¶ 9. Melissa “Minnie” Sulton, Charles’s girlfriend, testified for the defense, giving an alibi for Charles. On cross-examination, the State elicited testimony from Sul-ton that Charles went to the attic when the marshals came to arrest him. Sulton testified that she had no knowledge of what the charges were against Charles at that time. There was no testimony that Charles knew of the charges against him at that time.

¶ 10. Both sides rested, and then presented jury instructions. The State presented S-6, which was a flight instruction. The defendant objected based on the fact that the flight witness (from the September 26 flight) had failed to identify the defendant. The State countered that Sul-ton gave evidence of Charles hiding in the attic on September 24, and the court decided to give the instruction.

¶ 11. On August 10, 2011, the jury-found Charles guilty of armed robbery and being a felon in possession of a firearm. The court sentenced Charles to twenty-five years for the armed robbery, with ten years for the gun enhancement, to run consecutively, and then to ten years for the felon-in-possession-of-a-firearm charge, to run concurrently with the other sentence. Charles filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, which the trial court denied. This appealed followed.

¶ 12. On appeal, Charles argues that: 1) the trial court erred in granting the flight instruction; 2) the sentences for both the gun enhancement and the felon-in-possession charge violate double jeopardy; 3) the trial court erred by preventing Charles from cross-examining Stevenson, thus depriving him of presenting his theory of defense; and 4) this Court should abolish the use of flight instructions in Mississippi. We find the issue of whether the trial court erred by limiting cross-examination dispositive.

ANALYSIS

Whether the trial court eired by limiting the defense’s cross-examination of Stevenson, thus harming the theory of the defense.

¶ 13. Limitations placed on cross-examination are reviewed using an abuse-of-discretion standard. Jefferson v. State, 818 So.2d 1099, 1109 (Miss.2002).

¶ 14. During cross-examination of former-Detective Stevenson, the trial court refused to allow the defense to use an NCIC report and a witness location form to examine Stevenson about the fact that Michael had given Stevenson various social security numbers and birthdays for himself, some of which belonged to Charles, not Michael. The defense attempted to attack the credibility of Stevenson’s investigation, in that he did not further investigate Michael when he knew Michael gave false aliases.

¶ 15. The State first argues that this issue is procedurally barred, because it was waived, as the State claims that “defense counsel stated that she accepted the Court’s rulings, and she did not preserve an objection to the ruling.” This argument is without merit. Defense counsel attempted several times to question Stevenson on this issue. The State objected each time. After much argument, the Court sustained the first round of the State’s objections to the defense’s questions. After much argument during the second round of objections, the trial court asked defense counsel if she withdrew the question. She stated “No. I’m accepting the Court’s rulings.” (Emphasis added.) This indicates that she was simply done arguing, and she affirmatively stated that she was not withdrawing her questions. The trial court clearly understood this to be her meaning, as the court responded “All right. I’ll sustain it.” (“It” being the State’s objection to the defense’s line of questioning). The trial court would have no reason to sustain the State’s objection if defense counsel had withdrawn the question. Charles in no way waived this issue; it appears that defense counsel simply understood that the Court did not accept her arguments and thus indicated she would stop debating the issue.

¶ 16. The State then argues that this issue is without merit because the NCIC report was not admissible and because the exclusion did not prejudice Charles because he aptly presented his theory of defense. It also argues that “the witness had already testified that he had no record or recollection that Michael Ervin had used Charles Ervin’s identity and social security number on two occasions.”

¶ 17. Mississippi Rule of Evidence 612 allows a witness to use documents to refresh his memory while testifying. Miss. R. Evid. 612. A document used to refresh a witness’s recollection need not be admissible under the Mississippi Rules of Evidence. Hunt v. State, 687 So.2d 1154, 1162 (Miss.1996). “The only requirement is that the witness have no present memory of the event.” Id. When defense counsel asked Stevenson “Do you have a recollection of that?” he responded “No.” Thus, the State’s argument that the defense could not use these documents to refresh Stevenson’s memory on cross-examination because they were not admissible is without merit.

¶ 18. The trial court, sustained the State’s objections to this line of questioning because it determined it was irrelevant. Relevant means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Miss. R. Evid. 401. Charles’s theory of the defense was that Michael committed the burglary and then pinned it on Charles. Michael’s use of Charles’s identity when dealing with police is relevant to that issue.

¶ 19. However, this Court “will not reverse the trial court’s evidentiary ruling unless the error adversely affects a substantial right of a party.” Newell v. State, 49 So.Sd 66, 73 (Miss.2010). Charles’s theory of the case was that his brother committed the armed robbery and then pointed police to Charles. The State argued that Charles aptly presented his theory of the defense because he questioned witnesses about the fact that “Ray Ray” was identified as the robber, and Michael was “Ray Ray.” Such questioning is not the same as evidence that Michael gave police Charles’s social security number and birthday as his own. Such evidence could have affected the jury’s understanding about Michael lying to the police and pointing the police to Charles. See id. Charles was precluded from putting on such evidence, and evidence that Ray Ray was identified is not of the same vein. “The exclusion of the evidence prevented [Charles] from fully presenting his theory of the case to the jury and thus adversely affected his right to a fair trial.” Id. We therefore reverse Charles’s convictions on this basis.

¶ 20. We need not decide the issue of whether the flight instruction was error; however, because the issue may arise on remand, we note the questionable wisdom of granting it. “[T]he use of the flight instruction in this state can be described in one word—‘dangerous.’ ” Randolph v. State, 852 So.2d 547, 567 (Miss.2002) (Carlson, J., specially concurring, joined by Smith, P.J., Waller, and Cobb, JJ.). “[A] trial court, by giving a flight instruction, simply puts itself in a position of possibly placing a reversible error in an otherwise clean record. If a trial court persists in giving a flight instruction, ... it [should] do so with great caution.” Id. “[W]ith the prosecutors having been duly warned on multiple occasions about the danger of submitting flight instructions, there can be no legitimate hue and cry from the State in the future if this Court ... reverses a criminal conviction based on the trial court’s improper grant of a flight instruction, which had been improvidently submitted by the prosecutor.” States v. State, 88 So.3d 749, 759 (Miss.2012) (Carlson, P.J., Specially Concurring).

¶21. This Court has adopted a two-pronged test to determine whether a flight instruction is appropriately given to a jury. States, 88 So.3d at 758. First, “[o]nly unexplained flight merits a flight instruction.” Id. Second, “flight instructions are to be given only in cases where that circumstance has considerable probative value.” Id. (emphasis added).

¶ 22. In this case, the “hiding” at the time of arrest occurred more than three weeks after the armed robbery; no evidence exists that Charles knew for what charges law enforcement officers came to arrest him; and Charles “fled” to or “hid” in his own attic, which had no exit, for a few moments while his girlfriend informed law-enforcement officials of his whereabouts.

¶23. We question whether evidence of flight in this case, where the defendant hid in his own attic (with no exit) from law-enforcement agents during an arrest for a crime that occurred three weeks prior, while the “escapee” had no knowledge of the crime for which he was b.eing arrested, is remotely probative of guilt, much less considerably probative of guilt. Courts should examine the facts of each specific case when considering a flight instruction; however, the longer the time period between the crime and the flight, the more arduously a court should scrutinize its probative value. See United States v. Myers, 550 F.2d 1036, 1051 (5th Cir.1977) (“The more remote in time the alleged flight is from the commission or accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense.”).

CONCLUSION

¶ 24. The improper limitation on cross-examination adversely affected Charles’s right to a fair trial and warrants reversal. Thus, this Court reverses Charles’s convictions and sentence and remands the case to the trial court for a new trial consistent with this opinion.

¶ 25. REVERSED AND REMANDED.

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

PIERCE, Justice,

concurring in part and dissenting in part:

¶ 26. I agree with the majority that the limitation on cross-examination denied Charles Ervin a fair trial and warrants reversal. Respectfully, however, I find no problem that a flight instruction was granted in this case. Therefore, I concur in part and dissent in part.

1127. Mississippi has long recognized that “an accused’s 'flight, escape from custody, resistence to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus guilt itself.” McClendon v. State, 387 So.2d 112, 115 (Miss.1980). As noted by the majority, in deciding whether to grant a flight instruction, the trial court must take into account two considerations: (1) only unexplained flight merits a flight instruction, and (2) flight instructions are to be given only in cases where that circumstance has considerable probative value. The two-pronged test must also be met in order to introduce flight evidence. Austin v. State, 784 So.2d 186, 194 (Miss.2001) (citing Fuselier v. State, 702 So.2d 388, 390 (Miss.1997)). This means that Mississippi, unlike some jurisdictions, does not distinguish between the admissibility of flight evidence and the propriety of instructing the jury on the law of flight. Cf. U.S. v. Martinez, 681 F.2d 1248, 1257 (10th Cir.1982) (“Trial courts usually focus not upon the admissibility of flight evidence but upon the propriety of including a jury instruction highlighting already admitted flight evidence.”); but see United States v. Register, 496 F.2d 1072, 1077 (5th Cir.1974), cert. denied sub nom. Cochran v. U.S., 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 819 (1975) (holding that, because the jury was given a proper flight instruction, the federal district court did not err in allowing testimony from a teenage girl babysitting defendant’s child in defendant’s apartment, in which the girl told the jury that, after defendant was informed of drug raid, defendant failed to return to his apartment; the Court of Appeals found the flight evidence was admissible even though the drug raid was conducted by state officials on a different charge).

¶ 28. Here, both prongs were met.

¶ 29. The fact that Charles “ran up” to the attic when federal marshals arrived at the apartment where Charles was staying to arrest him, entered Charles’s armed-robbery trial during the State’s cross-examination of his alibi witness, Melissa Sulton, Charles’s girlfriend at the time. Sulton maintained throughout cross-examination that she did not know why the marshals were looking for Charles. Sul-ton also admitted that she knew authorities were looking for Charles prior to the marshals’ arrival because she had received a phone call from the mother of one of Charles’s other children that “the feds” were looking for Charles.

¶ 30. That no direct evidence was presented showing that Charles had any knowledge of the crime for which he was arrested, is of no matter. See, e.g., United States v. Hernandez-Miranda, 601 F.2d 1104, 1106 (9th Cir.1979) (holding that, while “other reasons might support [defendant’s] decision to take flight, ... this in itself does not make a flight instruction improper) (emphasis added). What Mississippi law requires is that there be no showing of a reasonable explanation otherwise. As we related in Austin, the common factor in cases where “ ‘explanations’ were [found] substantial enough so that a flight instruction was not proper[,] ... is that, in those circumstances, it would have been illogical for a defendant not to have run.” See Austin, 784 So.2d at 195 (noting, for example, circumstances where defendant was an escapee, or driving a stolen car, or leaving the scene of the alleged crime based on threats from another person or from potential danger from the victim). That conclusion cannot be reached here except by conjecture. Thus, the first prong was conclusively established.

¶ 31. The flight evidence also was considerably probative under the circumstances of this case. First, Charles’s alibi defense, which laid the foundation of the flight evidence, enhanced the probative value of the evidence. Sulton testified that Charles was with her the day of the alleged robbery because he had picked her up from work early that afternoon. The two were together the rest of the day, according to Sulton. Approximately three weeks later, when Sulton received a phone call from the individual mentioned above informing her that authorities were looking for Charles, Sulton did not inquire why because-reflecting back-she knew Charles was incapable of committing armed robbery. From Sulton’s testimony relating Charles’s actions prior to his arrest, coupled with the rest of her testimony, the jury reasonably could infer that Sulton was not credible and knew Charles was a suspect in the crime in question, and that Charles was not with Sulton when the robbery occurred.

¶ 32. Second, the most probative circumstance is that regarding Charles’s brother, Michael, who, according to the defense’s theory of the case, was the one who committed the robbery. On the day of the alleged robbery, Michael was taken in for questioning by Officer Adelbert Moore, the responding officer to the Healthy Body Store. Moore testified that Michael was never a suspect in the alleged robbery because Michael did not fit the description given by the victim, Martha Duffy. Again, Duffy identified Charles form a photo lineup as the person who had robbed her. And after she observed Michael sitting in the interview room through a two-way mirror, Duffy expressly excluded Michael as the suspect. During questioning, and later, at trial, Michael said Charles had stopped by Michael’s residence about thirty minutes before the police had arrived at the house. The house is located near the Healthy Body Store. Michael described the clothes Charles was wearing, which matched the descriptions given by both Duffy and Linda Stapleton. Again, Stapleton, who also lived near the Healthy Body Store, and who knows both Michael and Charles, said Charles was the person who knocked on her door, looking for “Gary.”

¶ 33. Based on this testimony, any time-lapse concern with the three-week period between the alleged robbery and Charles’s apprehension is quashed. One can infer reasonably from the circumstances surrounding Michael’s cooperation with authorities juxtaposed with Charles’s response, that Charles knew that authorities were looking for him in connection with the alleged robbery and fled and hid due to consciousness of guilt for the crime.

¶ 34. The flight instruction given by the trial court in this case stated:

“Flight” is a circumstance from which guilty knowledge and fear may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the defendant, Charles Ervin, did flee or go into hiding, such flight or hiding is to be considered in connection with all other evidence in this case. You will determine from all facts whether such flight or hiding was from a conscious sense of guilt or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt or innocence of the defendant.

¶ 35. This is a proper instruction, as approved by this Court in Ransom v. State, 149 Miss. 262, 115 So. 208, 210 (1928) (overruled on other grounds). And I find no error with the trial court’s decision to grant it in this instance.

RANDOLPH, P.J., JOINS THIS OPINION.

      .Officer Mitchell, who spoke with Stapleton, testified that Stapleton told him that the man who came to her door was "Ray Ray,” and that she gave Officer Mitchell the address at which Ray Ray lived on Douglas Avenue. Former Detective Stevenson likewise testified that Stapleton informed him that Ray Ray came to her door. "Ray Ray” is an alias of Michael Ervin, the defendant’s brother. However, when Linda Stapleton testified, she testified that Charles Ervin, Ray Ray’s brother, was the man who knocked on her door, and that she was sure it was not Ray Ray, or Michael Ervin, because she had been in a romantic relationship with Michael approximately twenty years prior.

      . Michael apparently lived at the Douglas Avenue house with his father. Charles lived in an apartment with his girlfriend and their daughter.

      . The police also performed a consent search of the house on Douglas Avenue and recovered two revolvers.

      . At trial, Michael testified that one of Charles’s nicknames was “Little Ray Ray.”

      . "NCIC” stands for the Federal Bureau of Investigation's National Crime Information Center, a computerized index of criminal history information.

      . The flight instruction stated that:
      "Flight" is a circumstance from which guilty knowledge and fear may be inferred. If you believe from the evidence in this case beyond a reasonable doubt that the defendant, CHARLES ERVIN, did flee or go into hiding, such flight or hiding is to be considered in connection with all other evidence in this case. You will determine from all facts whether such flight or hiding was from a conscious sense of guilt or whether it was caused by other things and give it such weight as you think it is entitled to in determining the guilt or innocence of the defendant.

      . Stevenson did testily that he could not remember Michael using Charles’s information. His lack of recollection is precisely why the defense attempted to use the NCIC report and the witness location form, so that his recollection could be refreshed. The defense stated: "If I gave you some documents, could you refer to them and refresh your recollection?”

      . "That” refers to the defense’s prior question: "It's a fact that as you were going through this investigation you determined at some point that Michael Ervin had used Charles Ervin’s identity and social security number on at least two occasions, isn’t it?”

      .Because we reverse Charles’s convictions, we need not determine whether the gun enhancement to the armed-robbery charge combined with the felon-in-possession-of-a-firearm conviction violates double jeopardy. However, we note that sentencing enhancements do not typically implicate double jeopardy. See, e.g., Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (considering behavior surrounding the circumstances of a crime to enhance the sentence for that crime does not constitute "punishment” for double jeopardy purposes); Mayers v. State, 42 So.3d 33 (Miss.Ct.App.2010).

      . The separate opinion suggests that we find the flight instruction improper or in error in this case. We make no such explicit finding. Rather, we merely point the trial court to our recent caselaw regarding the limited circumstances under which a flight instructions should be given, so that it may consider such when deciding to grant a flight instruction, should the issue arise on remand.

      . Defining "flight” often presents a conundrum. See Pannell v. State, 455 So.2d 785, 790 (Miss.1984) (Robertson, J., specially concurring) (there exist many "problems with flight evidence and instructions, not the least of which is the practical question ‘what is flight?' ”); Randolph v. State, 852 So.2d 547, 567 (Miss.2002) (Carlson, J., specially concurring) ("The term 'unexplained flight' is somewhat nebulous, anyway[.]”).


author: COLEMAN, Justice,

text:
    James Allen BURCH, William Harold Burch, and Nancy Burch McCloud, as Wrongful Death Beneficiaries of Harold E. Burch, Deceased. v. ILLINOIS CENTRAL RAILROAD COMPANY.
    No. 2013-CA-00414-SCT.
    Supreme Court of Mississippi.
    April 24, 2014.

      John Timothy Givens, Jackson, Timothy W. Porter, Patrick C. Malouf, Ridgeland, attorneys for appellants.
    Stephanie Camille Reifers, attorney for appellee.
    Before DICKINSON, P.J., LAMAR and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. Plaintiffs filed a wrongful death suit against Illinois Central for the death of their father. The case was dismissed because the three-year statute of limitations had run. Plaintiffs appealed, claiming that the statute of limitations had not expired, because it was tolled while the first suit, filed by the plaintiffs’ mother, was pending.

Facts and Procedural History

¶2. Harold Burch worked for Illinois Central Railroad Company from 1950 to 1988. The plaintiffs claim that Harold was exposed to asbestos during that time. Harold was diagnosed with asbestosis and lung cancer, and he died in August 2006. Harold’s widow, Frances Burch, individually and on behalf of Harold’s wrongful death beneficiaries, filed suit against Illinois Central in April 2009. Frances died in September 2011 while the suit was pending, and Illinois Central filed a suggestion of death. Frances’s attorneys failed to file a motion for substitution of parties within ninety days as required, so Illinois Central filed a motion to dismiss. Frances’s counsel did not respond to the motion to dismiss until five months later, after being ordered to do so by the court. After a hearing, the case was dismissed without prejudice in September 2012. The following day, Harold’s children filed a second complaint as Harold’s wrongful death beneficiaries. Illinois Central moved to dismiss, asserting that the statute of limitations had expired. The plaintiffs claimed that the statute of limitations had not expired because it had been tolled during the pendency of the first lawsuit. The circuit court found that the statute of limitations had run, and the case was dismissed. The plaintiffs appealed.

Discussion

¶ 3. The issue on appeal is whether the doctrine of equitable tolling applied and tolled the statute of limitations while the first suit was pending. The standard of review for a trial court’s grant or denial of a motion to dismiss is de novo. Foss v. Williams, 993 So.2d 378, 382 (¶ 17) (Miss.2008) (quoting Burleson v. Lathem, 968 So.2d 930, 932 (Miss.2007)). The de novo standard also applies to the application of a statute of limitations, which is a question of law. Sarris v. Smith, 782 So.2d 721, 723 (¶ 6) (Miss.2001) (citing ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999)).

¶ 4. The time limit for filing a claim under the Federal Employers Liability Act (FELA) is “three years from the day the cause of action accrued.” 45 U.S.C. § 56 (2006). Frances timely filed the original complaint within the three-year statute of limitations. Plaintiffs maintain that the statute of limitations was tolled while Frances’s case was pending; therefore, when the plaintiffs filed the second complaint one day after the first suit was dismissed, they were still within the statute of limitations. Illinois Central argues that the doctrine of equitable tolling does not apply because the plaintiffs “slept on their rights,” the result of which was having the first suit dismissed for failure to substitute parties. Thus, it is Illinois Central’s position that the statute of limitations had expired by the time the plaintiffs filed the second complaint more than six years after Harold died.

¶ 5. Illinois Central relies on the case of Price v. Illinois Central Gulf Railroad Co., 584 So.2d 1279 (Miss.1991). In 1986, Stephen Price filed suit against Illinois Central in Alabama, but he died several months later while the suit was pending. Price, 584 So.2d at 1280. Illinois Central filed a suggestion of death, but no one was substituted, and the case was dismissed without prejudice. Id. On interlocutory appeal, the Alabama Supreme Court ordered that the suit be dismissed with prejudice. Id. While the interlocutory appeal was pending in Alabama, Price’s widow filed suit against Illinois Central in Louisiana. Id. After the Alabama case was dismissed with prejudice, the Louisiana case was dismissed on the ground of res judica-ta. Id. Before the Louisiana case was dismissed, but after the expiration of the statute of limitations, Price’s widow filed a third suit in Mississippi. Id. The Mississippi case was dismissed as barred by the three-year statute of limitations for FELA cases. Id. at 1281. This Court affirmed the dismissal. Id. at 1282.

¶ 6. The Price Court discussed Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), in which the Supreme Court held that “when a plaintiff begins a timely FELA action in a state court of competent jurisdiction ... and the state court action is later dismissed because of improper venue, the FELA limitation is tolled during the pendency of the state action.” Burnett, 380 U.S. at 428, 85 S.Ct. 1050. In determining whether the statute of limitations should be tolled, the Supreme Court wrote that “the basic inquiry is whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.” Id. at 427, 85 S.Ct. 1050. Thus, the statute of limitations will not be tolled in every circumstance in which the original complaint was timely filed; rather, the courts must consider the circumstances at issue and whether tolling would effectuate the congressional purpose of the statute. The Court went on to explain:

Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.... Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights.

Id. at 428, 85 S.Ct. 1050 (citations omitted). The Burnett Court applied the doctrine of equitable tolling because the plaintiff “did not sleep on his rights but brought an action within the statutory period in a state court of competent jurisdiction.” Id. at 429, 85 S.Ct. 1050. Such was not the case in Price, and this Court held that to apply equitable tolling in Price “would broaden considerably” the doctrine as applied in Burnett. Price, 584 So.2d at 1282. Thus, the Court affirmed dismissal of the action because the statute of limitations had expired. Id.

¶ 7. Although not in a FELA case, this Court has held that “when an action is dismissed without prejudice for failure to prosecute, the statute of limitations does not toll, and the parties are left in the same position as if they had never filed the action.” Knight v. Knight, 85 So.3d 832, 837-38 (¶ 30) (Miss.2012). The Knight Court reasoned that “[allowing the statute to toll in such a situation presents an opportunity for abuse of process, potentially allowing cases to be dismissed and refiled for a period of years or even decades[, which] would reward plaintiffs who sleep on their rights and would lead to unjust results.” Id. Notably, the Court concluded by writing:

This holding, however, does not mean that all cases dismissed without prejudice after the statute of limitations has expired cannot be refiled. Some will be revived by the savings statute,[] equitable tolling, or otherwise. Our narrow holding here is merely that dismissal without prejudice for want of prosecution does not toll the statute of limitations.

Id. at 838 (¶ 31).

¶ 8. According to Rule 25 of the Mississippi Rules of Civil Procedure, upon the death of one party, a “motion for substitution” must be made “within ninety days after the death is suggested” or “the action shall be dismissed without prejudice.” Miss. R. Civ. P. 25(a)(1). The comment to that rule provides:

The general provisions of MRCP 6(b) apply to motions to substitute; accordingly, the court may extend the period for substitution if timely requested. Similarly, the court may allow substitution to be made after the expiration of the ninety day period on a showing that the failure to act earlier was the result of excusable neglect.

Miss. R. Civ. P. 25(a)(1) cmt. This Court recently defined “excusable neglect” under Rule 25, applying principles that have long applied in the context of Rule 4:

[S]imple inadvertence, mistake of counsel, or ignorance of the rules usually does not constitute excusable neglect. Stutts v. Miller, 37 So.3d 1, 4 (¶ 9) (Miss.2010); Holmes v. Coast Transit Auth., 815 So.2d 1188, 1186 (¶ 11) (Miss.2002). Excusable neglect is “a very strict standard.” Webster v. Webster, 834 So.2d 26, 29 (¶ 11) (Miss.2002). Good cause and excusable neglect have been linked inexorably to one another, as a showing of good cause has been said to require at least as much as a showing of excusable neglect. Id. at 28 (¶ 4).

Clark v. Knesal, 113 So.3d 531, 539-40 (¶.29) (Miss.2013).

¶ 9. Frances’s counsel did not attempt to show good cause for failing to substitute a party. In their response to Illinois Central’s motion to dismiss — filed more than five months after the motion to dismiss was filed and nearly ten months after Frances died — counsel simply said that they had drafted but had failed to file a motion for substitution and that failure to do so had been merely an oversight. As set forth above, the Court has held that inadvertence and mistake of counsel do not constitute excusable neglect. Clark, 113 So.3d at 539-40 (¶ 29) (citations omitted). That is precisely what the trial judge held when he dismissed the first case, writing in the order that “[ojversight is not normally considered by the courts to be excusable neglect.” We apply “an abuse of discretion standard to a trial court’s findings of fact concerning the existence or lack of good cause or excusable neglect.” Clark, 113 So.3d at 539 (¶ 28) (citing Long v. Mem’l Hosp. at Gulfport, 969 So.2d 35, 38 (¶ 5) (Miss.2007)). And we cannot say that the trial judge abused his discretion in finding that there was no excusable neglect.

¶ 10. Harold died on August 31, 2006. Frances timely filed suit against Illinois Central on April 2, 2009. Frances died on September 16, 2011. After not hearing from her attorneys, Illinois Central filed a suggestion of death on October 28, 2011. No party was substituted for Frances; in fact, her attorneys did not even respond to the suggestion of death. The ninety-day period for substituting a party expired on January 26, 2012. On February 10, 2012, Illinois Central filed a motion to dismiss. Again, there was no response. Counsel for Frances did not reappear until July 11, 2012, after the court ordered them to respond to the motion to dismiss. After the trial judge dismissed the first suit, plaintiffs’ counsel quickly filed the second complaint the next day, September 20, 2012. However, they immediately became unresponsive again. Illinois Central filed a motion to dismiss the second suit on October 23, 2012, but plaintiffs’ counsel did not respond until January 31, 2013, four days before the hearing on that motion. Under these circumstances, the trial judge did not find evidence to support the plaintiffs’ argument regarding the doctrine of equitable tolling. In essence, the plaintiffs “slept on their rights” by failing to substitute a party for Frances, ignoring the suggestion of death, and ignoring the motion to dismiss. Relying on Price, the trial judge concluded that the statute of limitations had not been tolled, and the case was dismissed. We hold that the trial court did not err in finding that the doctrine of equitable tolling should not be applied and that the statute of limitations had expired when the plaintiffs filed the second complaint.

Conclusion

¶ 11. We affirm the trial court’s dismissal of the case on the grounds that, because the doctrine of equitable tolling did not apply, the statute of limitations had expired by the time the plaintiffs filed the second complaint.

¶ 12. AFFIRMED.

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

      . The Knight Court cited several cases from other states in which the courts reached this conclusion. See Knight, 85 So.3d at 836-37 (¶¶ 27-29) (citing, inter alia, King v. Lujan, 98 N.M. 179, 646 P.2d 1243, 1244-45 (1982)) ("... we adopt the view that even though the filing of a suit ordinarily tolls the applicable limitations period, when an action is dismissed without prejudice because of a failure to prosecute, the interruption is considered as never having occurred.... A party who has slept on his rights should not be permitted to harass the opposing party with a pending action for an unreasonable time.... Furthermore, the courts should not distinguish between a plaintiff who takes no action before the limitations period expires and a plaintiff who files a complaint before the period expires but who thereafter takes no action.”); Suppeland v. Nilz, 128 Ariz. 43, 623 P.2d 832, 835 (1980) ("even though the filing of a suit ordinarily tolls the applicable limitations period, when an action is dismissed without prejudice because of a failure to prosecute, the interruption is considered as never having occurred”); Shaw v. Corcoran, 570 S.W.2d 96, 98 (Tex.Civ.App. 1978) (same); Owens v. Weingarten's Inc., 442 F.Supp. 497, 498 (W.D.La.1977) (same).

      . Mississippi's savings statute gives plaintiffs an additional year to "commence a new action for the same cause” if the original case is dismissed due to "the death of any party thereto, or for any matter of form.” Miss. Code Ann. § 15-1-69 (Rev.2012). The savings statute does not help the plaintiffs here, however, because the United States Supreme Court has held that states’ savings statutes do not apply to FELA cases. Price, 584 So.2d at 1281 (discussing Burnett, 380 U.S. at 432-33, 85 S.Ct. 1050).


author: FAIR, J.,

text:
    Paul W. FRAZIER, Appellant v. Sharon Renee FRAZIER, Appellee. Paul W. Frazier, Appellant v. Sharon Renee Frazier, Appellee.
    Nos. 2012-CA-00061-COA, 2012-CA-00896-COA.
    Court of Appeals of Mississippi.
    June 25, 2013.
    Rehearing Denied Jan. 14, 2014.
    Certiorari Denied April 24, 2014.

      David Neil McCarty, Sam M. Brand Jr., Jackson, attorneys for appellant.
    Pamela L. Hancock, Madison, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. Paul and Sharon Frazier appear here in two appeals, which we have consolidated. Their dispute centers around the question of whether Paul should continue to pay child support as he originally contracted when they divorced, or whether he should pay a lesser amount because he has since lost his job and is earning less.

¶2. We affirm the chancellor’s temporary modification of support for one year and her award of a judgment for deficient child support payments.

FACTS

¶ 3. Paul and Sharon were divorced on the grounds of irreconcilable differences on November 9, 2009. They had two children. Their written and personally signed property, child support, and custody agreement was approved as adequate and sufficient and required Paul to pay $750 per month per child in regular child support, $500 per month for private school expenses for ten months out of the year, and an additional $500 per month in alimony. It further provided that “should Paul lose his job it would be considered a material change in circumstances” with regard to modification of child support.

¶ 4. Paul lost his job seven months later, through what the chancellor found to be no fault of his own. He immediately petitioned for a modification of his support obligations for their two children, stating he has “lost his job but has found a new job that pays considerably less.”

¶ 5. Sharon answered that Paul should continue paying in accord with his agreement and that “the change in circumstances is due to a voluntary act of [Paul] or was reasonably anticipated.” She also filed a separate petition for contempt and a judgment for child support arrearage because Paul, on advice of counsel, had unilaterally reduced the monthly child support payments after losing his job.

¶ 6. After a half-day trial on the child support modification, in an order dated December 7, 2011, the chancellor reduced the payment to $375 per child per month for a year, from November 15, 2011, through November 14, 2012. Paul calls the reversion a “snapback clause.” The chancellor stated on the record that no change was made in the school expenses payment of $500 per month. A formal order was entered on December 9, 2011, and Paul filed his appeal on January 6, 2011, in Cause No.2012-CA-00061-COA. No mention is made anywhere in the record of any consideration of Rule 54(b) of the Mississippi Rules of Civil Procedure. The hearing transcript did reflect that, with consent of the parties, only one of the issues between them, that of modification, would be heard in the limited time available, and that contempt and arrearage issues would be heard as soon as possible when time permitted.

¶ 7. The chancellor set out her concerns on the record after the hearing, noting that Paul works every other week and admittedly reduced his payments for his children in order to meet his obligations for other things, including a Cadillac Esca-lade and a Harley Davidson motorcycle. The chancellor ordered a temporary reduction of child support to allow Paul “to think about how to modify his lifestyle with which to bring himself into a more accurate priority, that being his minor children.”

¶ 8. Frazier v. Frazier remained active on the Madison County Chancery docket with Sharon’s claims for Paul’s arrearage in child support, contempt, and attorney’s fees pending until they were heard on May 3, 2012, in a brief, one-hour hearing. The court entered a second and final judgment, finding Paul $10,000 in arrears. In a bench opinion at the close of evidence, the chancellor cited Varner v. Varner, 588 So.2d 428 (Miss.1991), and Thurman v. Thurman, 559 So.2d 1014 (Miss.1990), in support of her finding that child support judgments had vested in the children and could not be reduced or forgiven. She noted the holding in Varner that parties have no right to bargain away the rights vested in their children. Paul was allowed five months from the date of the hearing to pay the arrearage. A finding of contempt and an award of fees to Sharon were denied. Paul filed a second appeal from that judgment.

¶ 9. Since there is only one real dispute between Paul and Sharon, and the two judgments claimed by Paul to be in error have become final only with entry of the second, the two appeals have been consolidated before this Court.

STANDARD OF REVIEW

¶ 10. “Domestic relations matters are among the most difficult cases dealt with by our chancellors.” Wright v. Wright, 737 So.2d 408, 410 (¶ 5) (Miss.Ct.App.1998) (citations omitted). Consequently, a chancellor’s factual findings, such as the amounts paid and not paid and .the ability of Paul to pay support in his contractual amount, will not be disturbed unless the chancellor was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. See Carambat v. Carambat, 72 So.3d 505, 510-11 (¶ 24) (Miss.2011). As long as substantial evidence supports the chancellor’s findings, an appellate court is without authority to disturb them, even if it would have found otherwise as an original matter. Joel v. Joel, 43 So.3d 424, 429 (¶ 14) (Miss.2010). Additionally, if the chancellor has made no specific findings and none are required under “factor finding” case law mandate, we generally proceed on the assumption that she resolved fact issues in favor of the prevailing parties. See Ferrara v. Walters, 919 So.2d 876, 881 (¶ 8) (Miss.2005).

¶ 11. On the other hand, questions of law, such as that posed by Paul in his appeal seeking retroactive modification of child support, are reviewed de novo. See Irving v. Irving, 67 So.3d 776, 778 (¶ 11) (Miss.2011).

DISCUSSION

1. Temporary Modification

¶ 12. Paul presents this as the sole issue in his first appeal. He has no problem with the judgment that cuts his child support obligation in half in response to his general motion for modification. He objects instead to the “snap back” provision that makes the reduction temporary.

¶ 13. It should first be noted that Paul and Sharon personally signed their written agreement for specific monthly amounts of child support, private school expenses until the children complete the eighth grade, and alimony. Such provisions must have been approved by the chancellor as adequate and sufficient, Perkins v. Perkins, 787 So.2d 1256, 1264 n. 4 (Miss.2001), although the actual agreement and the judgment of divorce adopting it were not designated into the record on appeal. Nevertheless, the divorce adjudication is not disputed by either party, so its adoption of the Fraziers’ agreement carried with it implied findings by the chancery court regarding the financial status of Paul and Sharon, i.e., Paul’s ability to pay according to the agreement and the corresponding need of Sharon and the two children for those amounts. In such situations parents are free to contract for higher obligations than might otherwise be required of them. See Bell v. Bell, 572 So.2d 841, 844 (Miss.1990). These contracts are in the public interest and should be enforced as least as strictly as other contracts, such as those for the purchase of automobiles and motorcycles. See id. “When the parties have reached an agreement and the chancery court has approved it, [courts will] enforce it and take [a] dim ... view of efforts to modify it,” just as when parties seek relief from other contractual obligations. Id.

¶ 14. The parties did concur in their pleadings and in the transcripts of hearings, which were made part of the record, that the property settlement provided that Paul’s loss of his job would be a “material change in circumstances” justifying, apparently in their minds, a possible modification in his contempt-enforceable obligations for monthly child support. Generally, for a modification of either ordered or contractual child support to be appropriate, there must have been an “unanticipated” change in circumstances of the paying parent that results in inability to honor his obligations toward his children, particularly those obligations he has voluntarily contracted to pay. See Evans v. Evans, 994 So.2d 765, 770 (¶¶ 16-17) (Miss.2008). However, contracts that anti-cipatorily mandate the effect of material changes in circumstances have been held unconscionable and void by the courts. See Houck v. Ousterhout, 861 So.2d 1000, 1001-02 (¶ 8) (Miss.2003).

¶ 15. Nevertheless, before entering both judgments, the chancellor independently determined that at least a temporary material change had occurred. The chancellor reduced support for a year based on that determination. She stated in her bench' ruling that Paul’s problem was the voluntary election of a lifestyle that made him unable to provide for his children. She gave him one year of reduced obligations to rearrange his life to honor his obligations in the judgment. The chancellor noted that she considered the fact that Paul has every other week completely off work and has no desire or intention of seeking supplemental employment during those weeks other than to work on a motorcycle when he finds a shop in which to do it. The record further reflects that he has completed twenty-six years of military service, although his age and eligibility for military retirement benefits are not reflected in the record, nor is there any indication of his intent, or lack thereof, in seeking his retirement benefits.

¶ 16. As noted, a number of documents were presented to the chancellor that were not designated for the record on appeal. This raises the question of whether it is possible to overcome the presumption that sufficient evidence exists to support the decision to grant Paul a temporary reduction in child support.

¶ 17. The Supreme Court of Mississippi, in Bailey v. Bailey, 724 So.2d 335, 339 (¶ 12) (Miss.1998), held that temporary reduction in child support, as occurred in this case, is not only within the power of a chancellor — it is required under appropriate circumstances. In Bailey it was held:

Where the reason for modification is temporary in nature, the trial court should order a temporary reduction in child support. See Nichols v. Tedder, 547 So.2d 766, 781-82 (Miss.1989). The chancellor’s order permanently reducing Sandra’s child support obligation is reversed, and this case is remanded for further findings on a reasonable temporary reduction in child support.

Id. (emphasis added).

¶ 18. In today’s case the chancellor determined that, based on financial disclosures of income and assets referred to but not included in the record on appeal, a “reasonable temporary reduction in child support” was appropriate, even if she did not use those exact words. She stated, in ruling from the bench, that Paul could pay the amount he had voluntarily agreed was needed to support his two children by rearranging his priorities, financial affairs, and employment. The chancellor temporarily reduced his child support for a year in order to assist him in doing so. That was not error.

2. Retroactive Modification of Child Support

¶ 19. Though he did not affirmatively seek retroactive modification of the child support that he did not pay in full, Paul asks this Court to deviate from both long-established case law and legislative mandate and grant him retroactive relief. He begins his brief on appeal by admitting:

This is a case about the retroactive modification of child support. A husband sought a change in support because he had lost his job and was making considerably less than at the time of divorce. The trial court modified the child support. However, it took well over a year to obtain the relief, and in the meantime the husband incurred heavy child support obligations he could not meet.
Despite ordering a modification, the trial court did not order a reduction in his past due child support, even though the husband ... had timely filed and pursued the modification. In the interests of equity and public policy, the Court must fashion a remedy for good faith litigants who are forced into extreme situations like this one.

¶ 20. Recently, in A.M.L. v. J.W.L., 98 So.3d 1001, 1016-17 (¶¶ 40-42) (Miss.2012), the Supreme Court of Mississippi addressed that specific issue and manifested its intent to continue adherence to its prior line of cases as well as defer to the statutory provisions of Mississippi Code Annotated section 43-19-34(4) (Rev.2009), which allows retroactive increases in child support but expressly prohibits retroactive decreases.

¶ 21. Paul asks us to essentially repeal that statute and overrule a long line of supreme court authority, or at the very least to carve out an exception for decisions unduly delayed through no fault of the obligor. He admits, however, that:

Over twenty years ago, the Supreme Court determined that it would not allow a retroactive modification in child support on public policy grounds. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990). The essential point was that a judicial decree ordered the child support, and a parent should not simply ignore it without leave of court. Id. “The rationale behind this view is not difficult to divine,” the Court held, since it wished to prohibit “self help” when a parent might seek to “modify his or her obligation with impunity.” Id.
After Cumberland, the Legislature saw fit to constrain retroactive modification further. It decreed that “[a]ny order for the support of minor children, whether entered through the judicial system or through an expedited process, shall not be subject to a downward retroactive modification.” Miss.Code Ann. § 43-19-34(4) (the same law allowed an upward retroactive modification).

Paul relies upon and quotes from the four-member special concurrence penned by Justice Pierce in A.M.L., which posits allowing retroactive downward modification at least sparingly and in eases of crowded dockets and dilatory tactics causing unreasonable delay. A.M.L., 98 So.3d at 1024-25 (¶ 70). In this case a crowded docket is obvious, but there is no clear evidence of dilatory tactics on Sharon’s part. On the other hand, there is some indication Paul caused a significant delay by insisting on a subpoena before providing his military records. Moreover, dilatory tactics have been held as justifying other relief, including monetary relief, even in child support cases. That remedy was suggested in Cumberland and considered and declined by the chancellor in this case.

¶22. Downward retroactive modification of child support remains prohibited by both statute and stare decisis provided by our highest court, which we must follow.

¶ 23. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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