author: PETERS, J.

text:
    Shannon MENARD et al. v. LAFAYETTE INSURANCE COMPANY et al.
    No. 09-0029.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    Rehearing Denied July 15, 2009.

      André F. Toce, The Toce Firm, A.P.L.C., Broussard, LA, for Plaintiff/Appellant, Shannon Menard.
    Edward P. Landry, David Y. Lamm, Landry Watkins Repaske & Breaux, New Iberia, LA, for Defendants/Appellees, Lafayette Insurance Company, Prejean Service Company, Inc., Scott Benjamin Bux-ton.
    Thomas A. Budetti, Attorney at Law, Lafayette, LA, for Intervener/Appellee, State Farm Mutual Automobile Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and JOHN D. SAUNDERS and JIMMIE C. PETERS, Judges.
   PETERS, J.

hThe plaintiff in this matter, Shannon Menard, brought suit against Scott Benjamin Buxton; Prejean Service Company, Inc.; and Lafayette Insurance Company to recover for the damages she and her minor daughter, Baili Elizabeth Racca, sustained in an automobile accident. Ms. Me-nard appeals certain aspects of the jury verdict rendered in her favor and also appeals the trial court’s order allowing State Farm Mutual Automobile Insurance Company (State Farm) to withdraw $6,828.45 from the court’s registry. For the following reasons, we affirm the jury verdict as amended and affirm the trial court’s order in all respects.

DISCUSSION OF THE RECORD

The May 8, 2001 automobile accident at issue occurred on Louisiana Highway 3095 in Lafayette, Louisiana, when a vehicle driven by Mr. Buxton caused another vehicle to strike the rear of a vehicle driven by Ms. Menard. At the time of the accident, Mr. Buxton was in the course and scope of his employment with Prejean Service Company, Inc. (Prejean). Lafayette Insurance Company insured both Mr. Bux-ton and Prejean. State Farm, Ms. Me-nard’s automobile insurer, filed a petition of intervention, asserting that it had paid $5,000.00 in medical expenses on behalf of Ms. Menard as a result of the accident and seeking to recover that from the defendants. The parties stipulated that State Farm was subrogated to Ms. Menard’s rights against the defendants for the $5,000.00 it paid on her behalf.

The matter came for jury trial on June 23, 2008, but, after selecting and swearing a twelve-person jury panel, the trial court continued the matter to July 22, 2008, because of the illness of the defendant’s trial counsel. On July 22, two new jury members were selected to replace two of the jurors who had been selected on Is June 23 but were subsequently released by the trial court. On the next day, the eviden-tiary phase of the trial began.

Stipulations entered into at trial reduced the litigation to one issue — the amount of recovery to which Ms. Menard and her daughter were entitled. On that issue, the jury returned the following award for Ms. Menard:

A. Physical injury suffered $ 21,000.00
B. Pain and Suffering, both physical
and mental $ 50,000.00
C. Permanent disability and/or impairment, if any $
D. Loss of earnings and/or earning capacity, if any, both past and future $ 20,500.00
E. Medical expenses, both past and future $185,300.00
F. Loss of enjoyment of life $ 3,200.00
G. Loss of household services $

After the jury’s verdict was reduced to judgment, the defendants deposited $427,955.56 into the registry of the court. Thereafter, State Farm sought and received permission from the trial court to withdraw $6,828.45 from the amount deposited. On appeal, Ms. Menard argues that the awards for loss of earnings and/or earning capacity and medical expenses should be increased and that the trial court erred in allowing State Farm to withdraw the $6,828.45.

OPINION

Standard of Review

Ms. Menard argues on appeal that we should review this matter de novo because of “substantial erroneous eviden-tiary rulings” by the trial court. Specifically, she argues the trial court erred in allowing Dr. David Aiken, the defendant’s medical expert, “to offer causation speculation inconsistent” with the supreme court’s ruling in Housley v. Cerise, 579 So.2d 973 (La.1991); in not empaneling alternate jurors during the June 23, 2008 selection process; in continuing the June 23 trial date ^without doing a more complete investigation of the defense counsel’s alleged illness; and in releasing two of the jurors from the July 23, 2008 trial after their selection on June 23, 2008.

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo.

Evans v. Lungrin, 97-541, 97-577, pp. 6-7 (La.2/6/98), 708 So.2d 731, 735 (citations omitted).

In considering Ms. Menard’s argument concerning the supreme court’s ruling in Housley, 579 So.2d 973, we find her reliance on that decision to be misplaced. The supreme court recognized in Housley that a plaintiff bears the burden of proving, by a preponderance of the evidence, a causal relationship between the injury sustained and the accident that caused the injury.- However, at page 980 of its opinion, it quoted with favor the holding in Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La.1977) (citations omitted), wherein it stated:

A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

|/Thus, the Housley presumption is not an evidentiary rule that the trial court uses to limit testimony, but a presumption of causation. Whether that presumption applies is a question of fact. Viviano v. Progressive Sec. Ins. Co., 05-125 (La.App. 3 Cir. 1/11/06), 920 So.2d 313, writ denied, 06-359 (La.4/28/06), 927 So.2d 290. It cannot be the basis for a de novo review.

Nor do we find that Ms. Menard’s arguments concerning the jury selection process would provide her the right to a de, novo review.

This matter was filed on May 3, 2002, and, after much procedural maneuvering, began as a jury trial on Monday, June 23, 2008. On that day, the litigants selected a twelve-person jury, but selected no alternate jurors. The jurors were sworn, and the presentation of evidence was to begin the next day. However, the next morning, the trial court delayed the beginning of trial after being informed that the defendants’ counsel had become ill and would be unable to participate.

The defense counsel’s illness persisted and on June 26, 2008, the trial court rescheduled the matter until July 22, 2008. Ms. Menard’s counsel objected to the trial court continuing the case, but rejected the trial court’s offer to declare a mistrial. When the trial court polled the jury concerning the new date, two jurors stated that they each had committed themselves to family trips during the week of July 22.

Ms. Menard’s counsel objected to the trial court releasing the two jurors. In light of Ms. Menard’s objection, the trial court offered her a choice: she could either add two jurors to the panel from the venire that would be present on July 22 and immediately proceed to trial, or she could proceed to trial on October 13, 2008, with the twelve jurors already empaneled. The trial court then released the two jurors, gave Ms. Menard until July 22 to decide how she wished to proceed, and tentatively | ¡^rescheduled the matter for trial on July 22. On July 22, the litigants selected two additional jurors and an alternate and proceeded to trial. Ms. Menard now argues that the trial court’s actions denied her the right to have her case tried by a jury of her choice.

In considering the complaints expressed by Ms. Menard concerning the jury selection process, we first recognize that La.Code Civ.P. art. 1769 does not require the trial court to empanel alternate jurors. It simply provides that “[t]he court may direct that one or more jurors, in addition to the regular panel, be called and empanelled to sit as alternate jurors.” (Emphasis added.) While- hindsight suggests that alternate jurors would have been helpful in resolving the difficulties caused by the dismissal of the two empaneled jurors, we do not find that the trial court’s decision not to provide for alternate jurors was an abuse of the discretion afforded under Article 1769.

Additionally, the grant of the continuance based on the defense counsel’s illness does not rise to legal error that requires a de novo review. While there was some confusion concerning whether the defendants’ trial counsel had been admitted to a hospital when notice was first afforded to the trial court on the morning of June 24, 2008, a handwritten note from his doctor provided later that same day made it clear that he was not in the hospital, but was, in the opinion of the doctor, “unfit for work for at least the next 48 hours.” A subsequent minute entry states that the trial court had a telephone conversation with the defendants’ trial counsel and was informed that he would be unable to begin the trial on June 26. When the defendants’ trial counsel sent word to the trial court on June 26 that he would not be able to proceed, and despite the fact that Ms. Menard’s counsel complained to the trial court | (¡that the doctor and the defendants’ trial counsel were friends and business partners, the trial court announced that it was satisfied with the accuracy of the information provided by the defense counsel and decided to continue the matter. Louisiana Code of Civil Procedure Article 1631(A) provides that “[t]he court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.” We find that the trial court’s actions in this respect clearly fall within the authority granted under this article.

Standing alone, the same article, La. Code Civ.P. art. 1631(A), would give the trial court the authority to dismiss the two jurors based on their vacation plans. However, other laws also support the trial court’s decision. The jury procedure statutes and articles seem to generally divide the jury selection process into three phases: the pre-trial release phase, the selection phase, and the trial phase.

The pre-trial release phase is governed by the rules found in La.R.S. 13:3042, et seq. These rules give the clerk of court and the trial court separate powers with respect to releasing prospective jurors. With regard to the issue before us, La.R.S. 13:3042(B)(2) gives the trial court the power to grant a prospective juror a twenty-four-month waiver of petit jury service for “undue or extreme ... financial hardship.” Louisiana Revised Statutes 13:3042(0 requires that “[a] person asking for a waiver based on a finding of undue or extreme physical or financial hardship shall take all actions necessary to have obtained a ruling on that request by no later than the date on which the individual is scheduled to appear for jury duty.” Had the vacation issue arisen before the jury selection process, the trial court could certainly have considered whether cancelling the planned trips constituted an undue or extreme financial |7hardship. However, the statute does not address the trial court’s right to consider hardship cases after the selection process begins.

In the selection phase, La.Code Civ.P. art. 1761 provides, in pertinent part, that “twelve jurors summoned in accordance with law shall be chosen by lot to try the issues specified unless the parties stipulate that the case shall tried by six jurors” and that “[t]he parties may stipulate that if one or more jurors die or become disqualified the remaining jurors shall try the issues specified.” (Emphasis added.) In this case, the parties did not stipulate that they would go to. trial with less than twelve jurors nor that, if a juror should die or become disqualified, they would try the case with less than twelve jurors. Additionally, La.Code Civ.P. art. 1767 provides that “[ajlthough the entire jury may have been accepted and sworn, up to the beginning of the taking of evidence, a juror may be challenged for cause by either side or be excused by the court for cause or by consent of both sides, and the panel completed in the ordinary course.” (Emphasis added.) This simply codifies the right to remove a juror where cause arises after voir dire and/or where all litigants consent. However, the language is permissive and not mandatory.

Once trial begins, La.Code Civ.P. art. 1769(B) provides that jurors who “become unable or disqualified to perform their duties” shall be replaced by alternate jurors. Notably, it does not limit removal to “cause” under La.Code Civ.P. art. 1765, but suggests that someone who becomes “unable” to serve may be removed. Still, it limits that removal to a situation where the juror can be replaced by an alternate juror. Unfortunately, the procedure articles in general are silent concerning situations such as that which is before us.

| sGiven this procedural background and the facts before us, we must agree with Ms. Menard that the trial court’s reason for excusing the jurors is not a ground acceptable as a challenge for cause under La.Code Civ.P. art. 1765 and that she objected to their release. However, as previously stated, the trial court has broad discretionary powers to assure “that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.” La.Code Civ.P. art. 1631(A). We find no abuse of the trial court’s use of the power granted by this article. Obviously, the two jurors could not bring their personal problems to the trial court before the selection process as contemplated by La.R.S. 13:3042(C) because the issue did not arise until after they had been selected as jurors and informed that the trial would not begin as anticipated, but at a later date. The jurors did in fact bring their individual situations to the trial court’s attention immediately. We do not read La.R.S. 13:3042 as precluding consideration of hardship situations after the jury selection process begins, and we find that the trial court acted in accordance with law.

19Even assuming the trial court erred in the jury selection process — and we do not find that to be the case — any such error cannot be seen.to have materially affected the trial’s outcome. The supreme court recognized in Hamilton v. Winder, 06-994 (La.6/16/06), 931 So.2d 358, that a plaintiffs right to have his dispute tried by the jury he selected is satisfied when the alternate substituted on the jury is one selected by the parties. Here, the trial court gave each party two peremptory challenges when choosing the two replacement jurors on July 22, 2008. Further, Ms. Menard effectively waived her objections to the trial court’s error in releasing the jurors when she declined the trial court’s offer of a mistrial and declined the trial court’s offer to proceed with the original jury in October of 2008.

Having found no error in the jury selection process, we will review this matter using a manifest error/clearly erroneous analysis.

Admissions of Fact Issue

Ms.. Menard asserts that she served the defendants with a request for admissions of fact that was never answered and that the trial court erred in denying her motion to deem her request for admissions admitted. According to Ms. Menard, on May 16, 2008, she served a request for admissions on the defendants; the responses were due on June 2, 2008; and the defendants filed a motion for extension of time to respond to the request for admissions on June 9, 2008.

The trial record contains no document setting forth the specific admissions requests. However, Ms. Menard did raise the issue in open court on the morning of July 22, 2008, and the’ trial court responded that the stipulation as to liability rendered most of the admissions moot and that the other requests were improper because there |inwas no claim of bad faith on the part of the defendants. In response, counsel for Ms. Menard stated, “I believe you are correct, Judge, with the exception that the Request for Admissions that the plaintiff had suffered in some degree.” Counsel did not elaborate as to how Ms. Menard had suffered and did not object to the trial court’s ruling. We do not find that this issue, if it still exists, was properly preserved for appeal. An appellate court must render its judgment based on the record on appeal. La.Code Civ.P. art. 2164. See Murray v. Town of Mansura, 06-355 (La.App. 3 Cir. 9/27/06), 940 So.2d 832, writ denied, 06-2949 (La.2/16/07), 949 So.2d 419, cert denied, -U.S.-, 128 S.Ct. 270, 169 L.Ed.2d 197 (2007). Because Ms. Menard’s request for admissions is not contained in the record, we cannot review this issue. Furthermore, “[t]o preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony, and state the reasons for the objection.” LaHaye v. Allstate Ins. Co., 570 So.2d 460, 466 (La.App. 3 Cir.1990), writ denied, 575 So.2d 391 (La.1991) [citing Pitts v. Bailes, 551 So.2d 1363 (La.App. 3 Cir.), writs denied, 553 So.2d 860 (La.1989) and 556 So.2d 1262 (La.1990)]. Ms. Menard did not properly preserve this issue by contemporaneous objection. Thus, it is not now before us, and we decline to consider it.

Expert Testimony Issue

Ms. Menard asserts that the trial court erred in not granting her motion for a Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ] hearing to determine whether Dr. Aiken should be allowed to qualify as an expert and testify on behalf of the defendants. Her primary complaint is that the hearing would have shown that Dr. Aiken has “extreme bias against personal injury h, claimants in favor of his clients among the insurance industry” and that his testimony would not meet the requirements set forth in Rowe v. State Farm Mutual Automobile Insurance Co., 95-669 (La.App. 3 Cir. 3/6/96), 670 So.2d 718, writ denied, 96-824 (La.5/17/96), 673 So.2d 611.

Generally, the trial court has broad discretion in determining “whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert.” Cheairs v. State ex rel. Dep’t of Transp. and Dev., 03-680, p. 6 (La.12/3/03), 861 So.2d 536, 541. In Rowe, 670 So.2d 718, this court held that an expert’s testimony may, in extreme cases, be declared inadmissible in order to prevent a retained expert’s testimony from unduly influencing the jury and adopted four questions for determining the admissibility of expert testimony:

(1) whether the witness is qualified to express an expert opinion, (2) whether the facts upon which the expert relies are the same type as are relied upon by other experts in the field, (3) whether in reaching his conclusion the expert used well-founded methodology, and (4) assuming the expert’s testimony passes these tests, whether the testimony’s potential for unfair prejudice substantially outweighs its probative value under the relevant rules.

Id. at 725 (citations omitted).

In Daubert, 509 U.S. 579, 113 S.Ct. 2786, the United States Supreme Court was concerned with “determining the admissibility of new techniques as a basis for expert scientific testimony,” and the factors set out in Daubert are designed to “ ‘assist the trial courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue.’ ” Cheairs, 861 So.2d at 541 (quoting State v. Chauvin, 02-1188, p. 5 (La.5/20/03), 846 So.2d 697, 701). Although Ms. Menard filed a motion for a Daubert hearing to | ^consider whether Dr. Aiken should be allowed to testify, her complaint is not to Dr. Aiken’s methodology or some new scientific or medical technique, but rather to Dr. Aiken’s impartiality. Thus, the Daubert factors are not relevant and no hearing was required.

With regard to her complaint regarding Dr. Aiken’s bias and prejudice, Ms. Me-nard argues that he does not meet the standards set out in Rowe, 670 So.2d 718. However, in this matter, and unlike in Rowe, the trial court allowed full cross examination of Dr. Aiken’s qualifications and possible biases. The jury was afforded a full opportunity to determine the weight that should be given to Dr. Aiken’s testimony. Based on our review of the record, we cannot find that the trial court abused its discretion in allowing Dr. Aiken to testify.

Medical Expenses Issue

Ms. Menard argues that the jury erred in awarding her only $185,300.00 for past and future medical expenses. In considering this argument, we first note that a plaintiff bears the burden of proving entitlement to special damages, such as past and future medical expenses, by a preponderance of the evidence, and the jury’s award is reviewed pursuant to the manifest error standard of review. Thibeaux v. Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, unit denied, 04-2692 (La.2/18/05), 896 So.2d 31

The record establishes without dispute that Ms. Menard’s medical expenses through the trial date totaled $96,926.27. Dr. Scott Gammel, an anesthesiologist with a specialty in the treatment of chronic pain, has been treating Ms. Menard since 2003. He testified that these expenses relate to her treatment in the five years following the | ^-¡accident and explained that Ms. Menard had received eight epidural spinal injections, one radiofrequency ablation, and three cervical placed injections in the past five years. He testified that he was treating her for cervical spine injury and lumbar spine injury, including a mild bulging disc at C4-5. According to the doctor, Ms. Menard will need treatment for the rest of her life to control her pain. This will include at least four doctor visits, two six-week sessions of physical therapy, four epidural spinal injections, and one radiofrequency neural ablation per year; an MRI every two years; and a lifetime of medications including Lortab, Percoset, Lydoderm patches, and Ultran gel. Although Dr. Gammel testified that he believed future surgery was a possibility, he could not say that it was probable.

Dr. James A. Pearce, a dentist who specializes in patients with temporomandibu-lar joint disorders (TMJ) and orificial pain and teaches at the Louisiana State University School of Dentistry in New Orleans, Louisiana, testified that he began treating Ms. Menard on October 31, 2001, for TMJ and last saw her professionally in December of 2007, or approximately seven months before the beginning of trial. He testified that her TMJ condition was caused by the accident sued upon and that she will be required to wear a splint for the rest of her life to reduce her pain. According to Dr. Pearce, the splint will have to be replaced every five years.

Dr. Doug Womack, an economist and retired University of Louisiana at Lafayette economics teacher, testified concerning the present-day value of Ms. Menard’s future medical needs. He reached his conclusions by assuming a life expectancy of 41.4 years; accepting the testimony of Drs. Gammel and Pearce concerning the need for, and cost of, future care; and assuming that Ms. Menard |uwould require no surgery in the future. Dr. Wom-ack’s initial calculations were based on a phone conversation with Dr. Gammel; Dr. Womack updated and increased his calculations based on Dr. Gammel’s testimony at trial. Dr. Womack’s initial calculations included an x-ray every three years, at a present-day value of $1,907.00, and referrals to a spine surgeon and a psychologist/psychiatrist every six years, at a present-day value of $3,178.00 each. But at trial, Dr. Gammel testified that although Ms. Menard might need x-rays, “typically that MRI suffices,” and his only testimony concerning visits to a surgeon or a psychologist was that such referrals “will probably be required sometime in the future,” with no specificity as to how often they might be required. Thus, we do not include Dr. Womack’s initial calculations on the present-day value of either the x-rays or the visits to specialists. Dr. Wom-ack’s updated calculations of future medical costs based on the category of treatment are as follows:

Medical treatment Present-day value
office visits with Dr. Gammel $ 22,884.00
physical therapy $228,843.00
pain medication & muscle relaxers $331,318.00
epidural steroid injections $785,456.25
radiofrequency neural ablations $198,650.00
MRI $ 57,211.50
office visits with Dr. Pearce $ 8,454.00
mouth splints $ 9,535.00
TOTAL $1,642,351.75

Although he never examined Ms. Me-nard, Dr. Aiken disagreed with both Dr. Gammel and Dr. Womack concerning the need for future treatment. According to |1fiDf- Aiken, he found nothing in the medical records made available to him to suggest objective evidence of injury. He testified that the bulging disc referred to in the MRI reports was within normal limits for a thirty-five-year-old woman, and, in his opinion, Ms. Menard suffered only soft tissue contusions and sprains in the accident, with full recovery, probably within a few months after the accident. Dr. Aiken voiced no opinion concerning the amount of past medical expenses, but stated that future steroid shots should not be considered because such treatment would cause calcium loss in the bone structure. He also considered the recommendation for future radiofrequency neural ablation treatments to be harmful, but gave no reasons why he thought this.

In evaluating the jury verdict on this issue, we find it to be internally inconsistent. It is clear that the jury rejected Dr. Aiken’s opinion that Ms. Menard’s injury was minor and should have already resolved itself, but accepted his opinion with regard to the type of future medical treatment she should receive. We reach this conclusion because the difference between the undisputed $96,926.27 in past medical expenses and the $185,300.00 jury award for both past and future medical expenses is $88,373.73. In other words, the jury concluded that Ms. Menard’s injuries were sufficiently severe to warrant future care from her treating physicians but, at the same time, tied the hands of those physicians to conduct treatment they deem appropriate.

It has long been held that, in general, the observations and opinions of the treating physician are to be accorded greater weight than those of a physician who has only seen the party for purposes of rendering an expert opinion concerning the party’s condition. “However, the treating physician’s testimony is not irrebuttable, as the trier of fact is required to weigh the testimony of all of the medical witnesses.” Freeman v. Rew, 557 So.2d 748, 751 (La.App. 2nd Cir.1990) (citations omitted), writ denied, 563 So.2d 1154 (La.6/01/90). Ultimately, “the weight afforded a treating physician’s testimony is largely dependent upon the physician’s qualifications and the facts upon which his opinion is based.” Id. “Thus, reduced to its essentials, the inquiry is whether, based on the totality of the record, the jury was | ^manifestly erroneous in accepting the expert testimony presented by defendants over that presented by plaintiff.” Miller v. Clout, 2003-0091, fn. 3 (La.10/21/03), 857 So.2d 458, 463[462].

Freeland v. Bourgeois, 06-932, p. 31 (La.App. 3 Cir. 1/24/07), 950 So.2d 100, 119-20, writ denied, 07-409 (La.4/5/07), 954 So.2d 144.

Here, because Dr. Aiken never examined Ms. Menard and based his opinion solely on his review of her medical records, Dr. Aiken’s opinion is entitled to less weight than that of Dr. Gammel, her treating physician. See Estate of Chaisson v. Judice Dirt & Sand, Inc., 94-393 (La.App. 3 Cir. 11/2/94), 649 So.2d 502. However, even if this jury had given full weight to Dr. Aiken’s testimony that some of the future suggested treatments — the radiof-requency neural ablations and the epidural steroid shots — were not necessary, the jury’s verdict is still not consistent with the uncontradicted evidence of what the remaining required future medical treatments would cost. In light of this internally inconsistent verdict, we hold that the jury manifestly erred in failing to award the full value of the medical treatment that was established at trial to be medically necessary, and amend the award to include the present-day value of those future treatments.

Ms. Menard and Dr. Gammel both testified that she had not attended the physical therapy sessions that were prescribed for her in the past, so we do not award any costs for physical therapy. We award the costs of the future office visits with Dr. Gammel, the pain medication and muscle relaxers, the epidural steroid injections, the radiofrequency neural ablations, the MRIs, the office visits with Dr. Pearce, and the mouth splints, which total $1,413,508.75. The undisputed past medical expenses |17total $96,926.27. Accordingly, we amend the jury award to increase the award of medical expenses, both past and future, from $185,300.00 to $1,510,435.02.

Wage Loss & Loss of Earning Capacity

Ms. Menard argues that the jury’s award of $20,500.00 for past and future lost earnings is an abuse of discretion and that she should be awarded $34,617.00 for past lost wages and between $33,094.00 and $54,431.00 for future lost earning capacity. We review the jury’s award for past and future lost wages pursuant to the manifest error standard of review. Thibeaux, 883 So.2d 1128.

At the time of the accident, Ms. Menard was working at Howco Company as a clerk, a secretary, and an office manager, earning $12.75 an hour. She had been working there since 1997 or 1998. Ms. Menard testified that immediately after the accident, she missed a week and a half of work, then began working half days while going to the chiropractor. Ms. Me-nard testified on direct examination that she now misses a few days of work every two months, when she receives her steroid injections for pain. However, on cross-examination, she agreed that she might miss half a day of work every other month to see Dr. Gammel.

Six months after the accident, in November of 2001, Ms. Menard was laid off from her job at Howco Company. She testified that although she was told that she was laid off due to a slowdown in the work force, she supposed that it was because she had missed so much work after the accident. Derek Main, who was Ms. Menard’s manager at the time of the accident, testified by video deposition that there was a general layoff at Howco Company, but also that Ms. Menard’s having missed so much work was a factor. At the time of trial, Ms. Menard was working full-time at Frederick Machine Shop, earning $17.00 an hour. Kerri Menard, Ms. Me-nard’s | ^sister-in-law, testified that Ms. Menard has had some work loss over the years since the accident, but that at the time of the trial she was working full-time.

Dr. Womack testified that he evaluated the economic loss Ms. Menard suffered as a result of the accident. Ms. Menard informed Dr. Womack that in the seven years since the accident, she had missed 952 hours of work due to the accident. From this, Dr. Womack calculated that she missed an average of 136 hours per year.

In 2000, before the accident, Ms. Me-nard earned $30,914.00. To calculate what she could have earned had she not been injured, Dr. Womack assumed that she would have earned an additional three percent each year, to keep up with inflation. Thus, according to his calculations, she should have earned $31,841.00 in 2001; $32,797.00 in 2002; $33,781.00 in 2003; $34,794.00 in 2004; $35,838.00 in 2005; $36,913.00 in 2006; and $38,020.00 in 2007. Dr. Womack had Ms. Menard’s tax returns, showing her actual earnings, for three of the years between the accident and the trial: in 2004, she earned $22,357.00; in 2005, she earned $22,777.00; and in 2007, she earned $37,699.00. For 2004 and 2005, Dr. Womack calculated that her lost wages totaled $12,437.00 and $13,061.00, respectively, based on the difference between what he believed that she could have earned and what she did earn. In 2007, Ms. Menard’s actual earnings were only $321.00 less than he thought she could have earned, so he based his calculations of her wage loss on the average numbers of hours she missed work each year due to the accident. For 2001, 2002, 2003, 2006, and 2007, Dr. Womack assumed that her wage loss equaled 136 hours of missed work at $12.50 per hour: $1,700.00 per year. He prorated that same amount for 2008, until the date of trial. Dr. Womack’s determination of Ms. Menard’s past wage loss totaled $34,617.00.

|iaIn calculating Ms. Menard’s loss of future earnings, Dr. Womack assumed that she would miss 136 hours of work, or seventeen days, each year for medical appointments and physical therapy. He explained that at $17.00 per hour, she would lose $2,312.00 per year. Dr. Womack testified that if Ms. Menard works until she is 56, the present value of that loss is $33,094.00, while if she works until she is 67, the present value of that loss is $54,431.00.

The jury, considering the evidence, could well have concluded that Ms. Me-nard’s past lost wages amounted to $1,700.00 per year for the past seven years, totaling $11,900.00, and that her future lost wages, due to missing a half-day of work every two months — a total of three days a year — because of her regular doctor’s visits, would have a present-day value of $8,600.00. Thus, we cannot find that the jury was manifestly erroneous in its award of $20,500.00 for past and future lost earnings.

Withdrawal of Funds from, Registry

On July 2, 2003, State’ Farm filed a petition of intervention, asserting that it had paid $5,000.00 in medical expenses on behalf of Ms. Menard as a result of the accident and seeking to recover that from the defendants. On June 23, 2008, the parties stipulated that State Farm was subrogated to Ms. Menard’s rights against the defendants for the $5,000.00 it paid on her behalf. The final judgment, signed on August 12, 2008, stated that:

[T]he medical payments lien of interve-nor, State Farm Mutual Automobile Insurance Company, in the amount of FIVE THOUSAND AND NO/100 ($5,000.00) DOLLARS be and hereby is recognized and payment of said lien, together with legal interest from date of judicial demand until paid, shall be paid out of the award designated for Plaintiff, Shannon Menard.

On August 26, 2008, the trial court signed an order allowing the defendants to deposit $427,955.56 into the court registry and further ordering that the funds not be [^disbursed without a court order. On September 11, 2008, the trial court entered an order granting State Farm’s motion that it be allowed to withdraw $5,000.00, plus legal interest from the date of judicial demand, from the court’s registry. On October 2, 2008, the trial court entered a revised order stating that the amount of legal interest was $1,828.45, and on that same day the Lafayette Clerk of Court issued State Farm a check for $6,828.45.

Ms. Menard argues that the trial court erred in entering a judgment that allowed State Farm to withdraw the $6,828.45, “despite the fact that Menard was not made whole on the Judgment, the ease was subject to an appeal that could increase the Judgment above Defendants’ policy limits, and State Farm has Uninsured/Underin-sured Motorist coverage exposure to Me-nard.” She asks this court to assess State Farm a $5,000.00 statutory penalty under La.R.S. 22:1973(A) for its “bad faith conduct” in withdrawing the money from the court’s registry.

Ms. Menard is attempting to assert a claim for uninsured/underinsured motorist coverage against State Farm in its capacity as her automobile insurer. But State Farm is not a defendant in this action; it is here only as an intervenor. Ms. Menard cannot raise on appeal a claim that she did not assert in her pleadings against a party she did not name as a defendant. See Mestayer v. Cities Serv. Dev. Co., 136 So.2d 513 (La.App. 3 Cir.1961).

DISPOSITION

For the foregoing reasons, we amend the jury award to increase the award of medical expenses, both past and future, from $185,300.00 to $1,510,435.02. We assess all costs of this appeal equally between the plaintiff, Shannon Menard, and the defendants, Scott Benjamin Buxton, Prejean Service Company, Inc., and Lafayette Im Insurance Company. Because State Farm Automobile Insurance Company’s position was unchanged on appeal, we do not assess it with any costs of the appeal.

AFFIRMED AS AMENDED.

      . An alternate juror was also selected this day — something not done in the original selection process of June 23.

      . The jury's consortium award to the minor child is not at issue in this appeal,

      . Louisiana Code of Civil Procedure Article 1765 provides:
      A juror may be challenged for cause based upon any of the following:
      (1) When the juror lacks a qualification required by law;
      (2) When the juror has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial;
      (3) When the relations whether by blood, marriage, employment, friendship, or enmity between the juror and any party or his attorney are such that it must be reasonably believed that they would influence the juror in coming to a verdict;
      (4) When the juror served on a previous jury, which tried the same case or one arising out of the same facts;
      (5) When the juror refuses to answer a question on the voir dire examination on the ground that his answer might tend to incriminate him.

      . Although the request for admissions is not in the record, the trial court obviously had access to its content.

      . Ms. Menard filed her motion in open court on July 22, 2008. The trial court denied the motion that same day.

      . Dr. Aiken testified that he scheduled two appointments for Ms. Menard, but both were cancelled by her attorney. He testified that he did review the medical records made available to him.

      . We note that Dr. Aiken’s testimony that the two appointments for him to examine Ms. Menard were cancelled by her attorney does not affect our application of this general rule, as the defendants could have obtained a court order for a medical examination of Ms. Me-nard under La.Code Civ.P. art. 1464.


source: Caselaw Access Project

author: PIERCE, Justice, GRAVES, Presiding Justice,

license: Public Domain

text:
    Cartez BRAZZLE v. STATE of Mississippi.
    No. 2007-KA-02211-SCT.
    Supreme Court of Mississippi.
    July 23, 2009.
    Julie Ann Epps, E. Michael Marks, attorneys for appellant.
    Office Of The Attorney General, by Lisa Lynn Blount, attorney for appellee.
   PIERCE, Justice,

for the Court.

¶ 1. Carteze Brazzle was indicted by a Hinds County grand jury on one count of carjacking and one count of kidnapping of Camillia Wright, in violation of Mississippi Code Sections 97-3-117 and 97-3-53, respectively. Brazzle was found guilty by a jury on both counts following a trial in the Circuit Court for the Second Judicial District of Hinds County. The trial court sentenced Brazzle to consecutive prison sentences of fifteen years for carjacking and thirty years for kidnapping. Aggrieved by the judgment, Brazzle appeals to this Court. Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. Camillia Wright testified that on January 22, 2007, around 11 a.m., she was sitting alone in her red Tahoe in the drive-through line at a Popeye’s restaurant located on Highway 80. While ordering lunch, Wright noticed an individual wearing a black coat standing outside the restaurant “fidgeting on his pants like he was about to take a pee.” The individual, whom Wright later identified as Carteze Brazzle, walked up to her window, pulled out a gun, and ordered Wright out of the vehicle. When she was unable to exit, Brazzle jumped in, forced her over to the passenger side, and drove the vehicle out of the restaurant’s parking lot and onto Highway 80. Wright begged Brazzle to let her go, telling him he could have the Tahoe, but Brazzle refused and threatened to shoot her if she kept looking at him.

¶ 3. The Tahoe proceeded down Highway 80 toward Highway 220. Upon reaching the on-ramp to Highway 220, Brazzle slowed the vehicle. At that point, Wright opened the door and leapt from the Tahoe. A witness who saw her jump pulled over to assist and provided her with a cell phone which Wright used to call the police.

¶ 4. Officer Gregory Jackson, who was on routine patrol, saw Wright standing on the side of the road and pulled his cruiser over to inquire what was going on. Wright informed the officer what had happened.

¶ 5. Moments earlier, Officer Corliss Harris was at a gas station on Highway 80. Officer Harris testified that a motorist drove up and informed him about an incident that had just occurred at Popeye’s. Officer Harris stated that he then drove over to Popeye’s, where “people inside the restaurant were pointing west on 80.” Officer Harris said he then whipped around the parking lot and proceeded down Highway 80. Shortly thereafter, he saw Officer Jackson pulled over on the side of the road at the on ramp to Highway 220, with a black female. Officer Harris said they informed him that the vehicle was a “burgundy SUV,” and indicated that it was traveling west on Highway 80.

¶ 6. While in “very fast” pursuit, Officer Harris received word over the radio that the vehicle had an Illinois license tag. According to Officer Harris, he then spotted the vehicle as it was heading north on Westhaven, off Highway 80. Officer Harris turned off his blue lights and turned his vehicle onto Westhaven. He caught up with the Tahoe, which at that point was stopped at a railroad crossing due to a passing train. As the train proceeded by, Officer Harris received word that his backup was seconds away, so he reactivated his blue lights in hopes of avoiding a “chase.” At that moment, according to Officer Harris, the driver of the vehicle attempted to drive off-road, and in doing so became stuck in a muddy embankment. Officer Harris said the driver then exited the vehicle and ran for a wooded area.

¶ 7. Officer Harris stated that when the other officers arrived they “set up a perimeter and went into the woods after him.” He testified that the individual was soon located and placed under arrest. According to Officer Harris, a black coat which the individual apparently had tossed also was recovered.

¶ 8. Wright was taken to Jackson Police Department headquarters, where she spoke to Officer Reginald Cooper and was asked to participate in a photo lineup. After viewing photographs of a number of individuals, .Wright picked one and stated that this was the individual who had carjacked and kidnapped her a few hours before. ■ The individual in the photograph was Carteze Brazzle. In her testimony, Wright stated that she had provided a physical description of the individual and said the individual was wearing a black jacket at the time. Before the jury, Wright identified the defendant, Carteze Brazzle, as the person who both pulled a gun on her and entered her vehicle at Popeye’s.

¶ 9. Brazzle testified in his own defense. He admitted being in the red Tahoe that day, but denied kidnapping or carjacking Wright. According to his testimony, he and his friend Elliott Turner had been riding around in a green Buick which belonged to Turner’s girlfriend. The two were driving through west Jackson, when Turner had said, “I believe I know this female right here in this truck right here in front of us. I believe we used to talk in the past.” Brazzle, who was lying on the passenger’s side “asleep,” said he had “looked up, [saw] the truck, and [ ] laid on back down ... in the seat and continued to go back to sleep.”

¶ 10. Brazzle said when he awoke, they were in the Popeye’s parking lot. Brazzle told the jury, “I was laying there in the car, and [Turner] was, like, ‘Say, man.’ He bumped me, and he was, like, ‘Let me see your coat because it’s cold out here.’ “ Brazzle said he handed his coat to Turner, who then exited the vehicle; and then laid back down to sleep.

¶ 11. According to Brazzle, he lay there for “about fifteen minutes,” waiting on Turner to return, and then went inside Popeye’s to look for him. Brazzle said after searching the bathroom stalls, he remembered the “red truck” that Turner said, “he remembered the female that he used to talk to.” According to his testimony, Brazzle at that point saw “the truck leaving off Popeye’s lot going back towards Ford, Ford Company,” on Highway 80. Brazzle said he then got back in the green Buick, and waited for Turner to return. After sitting there for an undisclosed period, Brazzle said he decided to drive the vehicle around the building to look for Turner. When he saw that Turner was not there, Brazzle decided to “check this truck and see [if Turner] was in the truck with the girl before[.]”

¶ 12. Brazzle testified that he left Popeye’s and caught up with the Tahoe, and began “blowing and honking the horn.” The vehicle eventually pulled over to the side of the road, and Brazzle asked Turner, “Why did you leave me, man? Why did you leave me up there on the lot like that?” According to Brazzle, Turner’s only response was, “Just follow me to my girlfriend’s house. I just want to go give her car back.” Brazzle said he replied, “All right.”

¶ 13. Brazzle then told the jury, “So we go down the road some, and he pulled over again, and when he pulled over that time, he got out the truck and got to walking towards the car I was in, his girlfriend’s car.” According to Brazzle, Turner told him, “I don’t want my girlfriend to see you in her car because all she going to do is get mad and want to argue.” Brazzle responded, “You sure right. I ain’t got time to be arguing with nobody else’s wife or girlfriend.”

¶ 14. Brazzle told the jury that as he was standing there talking to Turner, he began “shaking.” According to Brazzle, Turner then said, “You must be cold.” To which Brazzle responded, ‘Yeah.” Brazzle said that Turner then handed back his coat. Brazzle stated that Turner got in his girlfriend’s vehicle, and that he got in the Tahoe and proceeded to follow Turner down the road.

¶ 15. At this point in the testimony, the following exchange occurred between Brazzle and his attorney.

Q. Okay. At any time did you see the— you said he mentioned about a female in the truck earlier?
A. Yeah. He said he believed he talked to her. They had a relationship or whatever.
Q. When you got in the truck, was there anybody in the truck?
A. No, sir.
Q. Now, where did you go once you got in the truck? Where did y’all go?
A. When we got in — see, wasn’t no one in the truck when I got in the truck.
Q. When you got in it—
A. —I followed him—
Q. —in other words, you were in the truck, and where was Elliott?
A. I was following him. He was in his girlfriend’s car.

¶ 16. Brazzle said he followed Turner to the railroad tracks, where the two then stopped for an oncoming train. While waiting on the train to go through, a police officer pulled up behind Brazzle. According to Brazzle, the following occurred:

And as we’re sitting there waiting, the ... train finally went past, the sticks let up, and when they let up, the train went on by. And when they went on by, the other — another police coming from the opposite direction flying. So he was flying. He was coming down.
And as I looked at him coming down, I’m thinking he’s just fixing to fly on by, but he kind of, like, glanced over there at me like that, and he slammed on brakes, and slid all the way past me, sir.
And he threw the ear back in reverse, and when he threw it back in reverse, he jumps out and puts the gun up to the glass of the window. So it startled me, and I kind of pulled my head up and put my hands up and turned off the side of the road just to get away from the barrel of the gun.
So as I pulled off the side of the road, he started running to the truck. So I got out of the truck, and I screamed, “I didn’t do nothing. I ain’t did nothing.” And he kept running toward me with the gun. So I thought he was fixing to try to shoot.
So I stepped on the other side of the truck, and I kind of like I did run off into the woods to take the coat off so I could let them know that I wasn’t hiding nothing. So I went to the woods and took the coat off and threw it on the ground, and I come back out of the woods with my hands up.

¶ 17. Brazzle’s attorney then queried:

Q. Okay. Let me ask you this now. Why did you run in the woods?
A. Because I thought they was gonna shoot me, sir, because they was all cocking their guns running out behind me.
Q. All right. So what made you decide to come out of the woods?
A. When I got the coat off and let them know that I wasn’t hiding nothing, and I had my hands up.

¶ 18. After the close of the defense’s case-in-chief, Brazzle submitted jury instructions D-9 and D-10, which requested the jury be instructed on the lesser offenses of accessory after the fact and receiving stolen property, respectively.

¶ 19. The trial court denied both, reasoning:

And for the record D-9 and D-10 being lesser included and/or lesser related offense instructions, the Court is of the opinion there is simply not an evi-dentiary basis upon which to give these instructions.
In order to give these instructions the jury would have to be able from the evidence presented to theoretically find the defendant not guilty of the offense charged and to find him guilty of the lesser offense.
The elements of accessory after the fact are that a completed felony has been committed, that the accused concealed, received, relieved, aided or assisted a felon, knowing that such person had committed a felony, and such assistance or aid was rendered with the intent to enable such felon to escape or avoid arrest, trial, conviction or punishment after the commission of such felony.
And in the case at bar there’s simply no evidence ... presented by the defense through its only witness, the defendant, that he had any knowledge whatsoever that a felony had been committed and that any act upon learning that by him was with the specific intent to aid and assist that person, in this case one Elliott Turner, escaping or avoiding detection or arrest.
Similarly, a statutory element of receiving stolen goods is knowing at the time of receipt of the property that the property had, in fact, been stolen or under circumstances that the defendant reasonably should have known.
And in this case there is just no such evidence presented by the defense. The defense is I didn’t do it. Not that I didn’t do this, but I may have done that.

¶ 20. After which, the following exchange occurred:

By The Court: Does the defense [wish to be heard concerning any of the Court’s preliminary rulings]?
By Defense Counsel: Just, Your Honor, I feel by submission of D-10, of course I understand the Court’s ruling.
By The Court: Well, tell me what evidence I have concerning guilty knowledge.
By Defense Counsel: I believe, Your Honor, just his statement just as far as his testimony is concerned. That’s all. By The Court: Well, specifically, what did he testify to because I’m missing it. What did he say in his testimony that indicates that he had any clue that this car was even stolen, much less that there was a carjacking?
By Defense Counsel: None that I can recall, Your Honor, and I do understand the Court’s ruling.
Whether the trial judge erred in denying Brazzle’s requests for lesser offense instructions on accessory after the fact and/or receiving stolen goods.

¶ 21. Brazzle claims that “denial of either or both of the instructions was fundamental error in violation of his right to a fair trial and due process of law.” Brazzle asserts that, without these proposed instructions, he was precluded from presenting his theory of the case to the jury.

¶ 22. We disagree.

¶ 23. By submitting instructions D-9 and D-10, Brazzle attempted to have the jury charged on accessory after the fact and receiving stolen goods. Preliminarily, it is important to point out that, although the trial court passingly referred to both as lesser-included offenses and/or lesser-offense instructions, neither offense is a lesser-included offense of either of the two crimes for which Brazzle was indicted. Neither crime contains the essential elements required for the crime of kidnapping or carjacking. See Porter v. State, 616 So.2d 899, 909-10 (Miss.1993) (Hawkins, J., specially concurring) (“A lesser included offense by definition is one in which all its essential ingredients are contained in the offense for which the accused is indicted, but not all of the essential ingredients of the indicted offense. An accused could not be guilty of the offense for which he is indicted without at the same time being guilty of the lesser-included offense.”). Rather, both are entirely separate and distinct offenses. See Byrom v. State, 863 So.2d 836, 874 (Miss.2003) (“We have repeatedly held that the crime of accessory after the fact is an entirely separate and distinct offense and not a constituent part of a [principal] offense so as to be a lesser included offense.”) (quoting Wilcher v. State, 455 So.2d 727, 734 (Miss.1984), vacated in part, 635 So.2d 789 (Miss.1993)); see also Williams v. State, 595 So.2d 1299, 1303 (Miss.1992) (“Our law has long held one may not feloniously receive what he has stolen.”)

¶ 24. That said, this Court has said that a criminal defendant “may request an instruction regarding any offense carrying a lesser punishment if the lesser offense arises out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment.” Gangl v. State, 539 So.2d 132, 136 (Miss.1989) (quoting Griffin v. State, 533 So.2d 444, 447-48 (Miss.1988)). We have held this to mean not only lesser-included offenses but lesser offenses considered separate and distinct from the offense charged in the indictment. Id. at 135. The entitlement is limited, however, “in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Poole v. State, 826 So.2d 1222, 1230 (Miss.2002) (citation omitted) (emphasis added).

¶ 25. As with lesser-included-offense instructions, “lesser offense instructions should not be granted indiscriminately, and only where there is an evidentiary basis in the record.” Gangl, 539 So.2d at 136 (citing Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)). “The evidentiary standard is the same as for lesser included offense instructions[.]” Id. (citing Harper, 478 So.2d at 1021). In short, the defendant must point to evidence in the record from which a jury reasonably could find the defendant not guilty of the crime with which the defendant is charged and at the same time find the defendant guilty of the “lesser offense.” Dampier v. State, 973 So.2d 221, 231 (Miss.2008).

¶ 26. On appeal, Brazzle concedes that his testimony, if believed in its entirety, established a defense to any claim that he was an accessory after the fact or that he knowingly received stolen property. Braz-zle contends, however, that because a jury is entitled to believe or disbelieve witnesses in whole or in part, the jury could infer from the attendant circumstances in this case that there is sufficient evidence to support at least one of the proposed lesser-offense instructions. Specifically, Brazzle contends that, while Wright’s identification of Brazzle as the culprit supports an inference Brazzle actually carjacked and kidnapped Wright, the jury also was free to believe that she was mistaken about her identification and find that Braz-zle had acquired the vehicle from Turner after the fact, as he claimed.

¶ 27. This argument fails. For support, Brazzle relies on Warren v. State, 709 So.2d 415 (Miss.1998), in which this Court reversed a trial court’s refusal to grant the defendant’s request for a lesser-included-offense instruction on the crime of trespass. There, the defendant was indicted by a grand jury on the crime of voyeurism, specifically alleging that he “peeped through a window of James’ house with a lewd, licentious and indecent purpose.” Warren held:

Warren is guilty of voyeurism only if the jury believed all of what James had to say including her testimony suggesting Warren’s lewd purpose for being on her property and looking through her window. Likewise, he is guilty only of trespassing if the jury decided to believe everything that James stated except that portion of her testimony suggesting Warren’s lewd purpose. Thus, contrary to the State’s contention, there was evidence to support the lesser included instruction on trespassing, and the instruction should have been given.

Warren, 709 So.2d at 420.

¶ 28. We find Warren distinguishable. Warren was based on the denial of a lesser-included-offense instruction. Warren, 709 So.2d 415. All the “essential ingredients” of the crime of trespass were contained in the offense for which the defendant, Warren, was alleged to have committed. Porter v. State, 616 So.2d at 909-10; Warren, supra. Thus, as the Warren Court found, if the jury disbelieved Warren’s denial that he was ever at James’s house, and believed “everything James stated except that portion of her testimony suggesting Warren’s lewd purpose!,]” evidence still remained to support the lesser-ineluded-offense of trespass. Warren, 709 So.2d at 420. This is because, based on the attendant facts in its case, in order for the State to prove the alleged crime of voyeurism, it also would have had to prove that Warren had been on James’s property without her permission.

¶ 29. Here, however, we do not have at issue a lesser-ineluded-offense to the two greater offenses charged in Brazzle’s indictment. Rather, as previously mentioned, we have two lesser offenses clearly separate and distinct from those charged, both of which require proof of a crime committed by someone other than the defendant. And, as the trial court found, there is no evidence in the record that Brazzle had any knowledge that either a felony had been committed (one of the elements of accessory after the fact), or that the Tahoe had been stolen (one of the elements of receiving stolen property), by another.

¶ 30. According to Brazzle’s version of the facts, he was with an individual named Turner, in Turner’s girlfriend’s green Buick, when Turner saw and noticed a woman he knew driving a red Tahoe. Brazzle fell asleep, ended up in Popeye’s parking lot, and Turner borrowed his black coat on account of the cold weather. Turner then left the vehicle, and Brazzle went back to sleep. After fifteen minutes passed, Brazzle, acting on his inclination that Turner possibly had left Popeye’s in the Tahoe with the woman, drove the green Buick out of Popeye’s parking lot, caught up with the Tahoe, and flagged it over to the side of the road. After asking Turner why he had left, Brazzle was told only that he needed to return Turner’s girlfriend’s car.

¶31. Additional testimony said that Brazzle and Turner thereafter switched vehicles in order to avoid a girlfriend’s wrath, and that Brazzle’s black coat was returned to him. The testimony shows that, while Brazzle and Turner were stopped at railroad crossing waiting for a train to pass, a police vehicle pulled in behind Brazzle. When the train finally passed and “the sticks let up,” another police vehicle, which Brazzle described as “flying,” approached from the opposite direction. Brazzle’s thinking at this moment, according to his testimony, was that the police vehicle was “just fixing to fly on by.” When — as the testimony indicated— it did not, Brazzle pondered why. Brazzle explained that, when a police officer emerged from the vehicle and placed his gun up to the glass of the window, Brazzle became “startled.” So he “turned off the side of the road just to get away from the barrel of the gun.” According to his testimony, Brazzle got out of his vehicle screaming, “I didn’t do nothing.” When the officer kept approaching, Brazzle “thought he was fixing to try to shoot.” So he stepped on the other side of the truck, ... [ran] off into the woods to take the coat off so [he] could let them know that [he] wasn’t hiding nothing.”

¶ 32. By contrast, the State presented evidence through Wright’s testimony that, while at the Popeye’s drive-through, Braz-zle, by show of a gun, entered her vehicle and absconded with both it and Wright from the restaurant’s parking lot. Wright soon escaped, called the police, and thereafter identified Brazzle as the culprit from a photo lineup. She identified Brazzle again at trial.

¶ 33. The State presented additional evidence that, before word went out over radio from police dispatch, Officer Harris had been informed of the incident by a motorist. Harris eventually caught up with the Tahoe and flashed his emergency blue lights. Accordingly, the driver of the vehicle attempted to flee off-road before becoming stuck. The driver of the vehicle, later identified by Officer Harris as Braz-zle, then ran into the woods before-being apprehended.

¶ 34. With Harper in mind, when taking the evidence in the light most favorable to the Brazzle, and considering all reasonable favorable inferences which may be drawn in- favor of Brazzle from the evidence, we find that no reasonable jury could find Brazzle guilty of either accessory after the fact or receiving stolen property without resorting to speculation' or conjecture. Harper, 478 So.2d at 1021. Based on our review of the record, there simply is no evidentiary basis to support the requisite knowledge element for either lesser-offense instruction. See Miss.Code Ann. §§ 97-17-70 and 97-1-5 (Rev.2006).

¶ 35. Despite the dissent’s somersault logic to the contrary, any evidentiary question, such as whether or not another individual by the name of Turner actually was involved in the case; or whether or not a green Buick was in the area; or any inconsistencies between Officer Harris’s version and Brazzle’s as to what occurred at the railroad crossing, all were factual issues for the jury to resolve on the question of Brazzle’s guilt or innocence of the two crimes for which he was indicted. The dissent’s assertion that “the majority sets a dangerous precedent and deals a substantial blow to the rights of criminal defendants in this state” is absurd.

¶ 36. The State’s evidence, along with Brazzle’s version of events, was submitted to the jury for its assessment in deciding how much, if any, weight and credibility it was willing to place with each. Any reasonable doubt as to the State’s proof of Brazzle’s role in these two crimes entitled Brazzle to nothing short of an absolute discharge’

CONCLUSION

¶ 37. The judgment and sentences of the Circuit Court for the Second Judicial District of Hinds County are affirmed.

¶ 38. COUNT I: CONVICTION OF CARJACKING AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF KIDNAPPING AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNTS I AND II TO RUN CONSECUTIVELY.

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

GRAVES, Presiding Justice,

Dissenting:

¶ 39. Carteze Brazzle was convicted of one count of carjacking and one count of kidnapping after a jury trial in Hinds County Circuit Court. The trial court sentenced him to consecutive prison sentences of fifteen years for carjacking and thirty years for kidnapping. By affirming Braz-zle’s conviction despite the trial court’s failure to properly instruct the jury, the majority misapplies the relevant principles of law and greatly impairs the rights of criminal defendants in Mississippi. Therefore, I respectfully dissent.

I.

¶ 40. Brazzle’s conviction arises out of a series of events that occurred on January 22, 2007. The facts are disputed. During the trial, the jury heard testimony from the victim, three police officers, and Braz-zle.

Camillia Wright’s Testimony

¶ 41. Wright testified that, on January 22, 2007, around 11 a.m., she was at a Popeye’s restaurant on Highway 80 in Jackson, Mississippi. She stated that she was in the “drive-thru” lane and observed a man outside the restaurant. According to Wright, as she was about to pay for her food, this man approached the driver’s side window of her car, pulled out a gun, and told her to get out of her car. Wright testified that she was driving a red Tahoe. She stated that the man then pushed her over to the passenger side and got into her car. She also stated that she asked to get out of the car, but the man would not let her and drove onto Highway 80. Wright claimed that she was able to observe the man’s face before he threatened to shoot her if she continued to look at him. Wright stated that the man let her jump out of the car near the ramp to Highway 220. According to her testimony, a man who had witnessed her jumping out of the car pulled over and allowed her to use his cell phone to call the police. Wright also testified that a police officer, who was passing by on patrol, stopped to assist her.

¶ 42. Wright stated that, after she had been taken to the police station, she gave the police the following description of the man who stole the car: five-foot-six, short, chubby, dark-skinned, with nappy hair, and wearing a black jacket. She also stated that she was asked to view a photographic lineup and that she identified Brazzle as the man who stole the car.

Officer Gregory Jackson’s Testimony

¶43. Officer Jackson testified that on January 22, 2007, he was on patrol driving down Highway 80 when he observed Wright at the 1-220 ramp. He testified that he pulled over, that Wright told him her car had been stolen, and that she gave him a description of the car (a red Tahoe) and told him the direction in which the man had driven. He also stated that Wright told him that the man was a black male, short, and wearing a black jacket. Officer Jackson testified that he drove with Wright to assist other officers who were setting up a perimeter to apprehend the man. According to Officer Jackson, he recovered a jacket from the scene and then took Wright to the police station. Officer Corliss Harris’ Testimony

¶ 44. Officer Harris testified that he was on patrol in the vicinity of the Popeye’s restaurant when he was informed of an incident at Popeye’s involving a burgundy Tahoe. Officer Harris stated that he proceeded to the restaurant, where unidentified individuals told him that the car was heading west on Highway 80. He testified that he saw a burgundy Tahoe and eventually caught up with it. He stated that he turned his lights off so that he would not “spook” the driver of the Tahoe until backup officers had arrived. Officer Harris testified that he and the driver of the Tahoe were stopped at a railroad crossing and that, when the train had almost passed, he learned that backup officers were seconds away, so he turned his lights back on to prevent a car chase. According to Officer Harris, once he turned his lights back on, the driver of the Tahoe attempted to drive off the road, but the car became stuck in the muddy embankment. Officer Harris testified that the driver then got out of the car and ran toward the nearby woods. Officer Harris also stated that Officer Jackson recovered a black jacket from the woods.

Officer Reginald Cooper’s Testimony

¶ 45. Officer Cooper testified that, on January 22, 2007, he spoke with Wright. He stated that Wright told him that the man who stole her car was five-foot-six or five-foot-seven, dark-skinned, chubby, and had nappy hair. He also testified that he showed Wright a photographic lineup. According to Officer Cooper, he also interviewed Brazzle, who gave two statements. Officer Cooper testified that he had possession of a black jacket, which Brazzle admitted belonged to him.

¶ 46. Officer Cooper stated that, as a part of his investigation, he spoke with a man named Elliott Turner on the telephone, although the contents of that discussion are not revealed in the record. Officer Cooper also admitted that Officer Harris had observed a green Buick following the Tahoe before the driver of the Tahoe was apprehended, and that the presence of this vehicle had been noted in the police report.

Carteze Brazzle’s Testimony

¶ 47. Brazzle testified that, on January 22, 2007, his friend Elliott Turner asked him to accompany him to pick up some car rims. Brazzle stated that Turner was driving Turner’s girlfriend’s green Buick. On the way to get the rims, Brazzle testified that Turner said that he knew the woman in the maroon Tahoe in front of them. Brazzle stated that he did not pay much attention because he was dozing in the passenger seat. Brazzle testified that when he woke up, he found that they were in a Popeye’s parking lot. He stated that Turner asked to borrow Brazzle’s coat, which he gave to him. Brazzle testified that he fell asleep again in the car and that when he woke up, Turner was gone. Brazzle stated that he waited for a while in the car and then went to look for Turner inside Popeye’s. He testified that he saw a car leaving the Popeye’s parking lot, which he recognized as the maroon Tahoe to which Turner had earlier referred. Brazzle testified that he waited a little longer and then followed the car.

¶ 48. He stated that he was eventually able to catch up with the maroon Tahoe. He said that Turner pulled over in the Tahoe, told Brazzle that he needed to return the green Buick to his girlfriend’s house, and asked Brazzle to drive the Tahoe instead of the Buick. Brazzle stated that Turner did not want his girlfriend to see Brazzle driving her car. Brazzle testified that, at this point, Turner also returned his black coat to him. Brazzle stated that he got into the Tahoe, which was empty except for him, and started following Turner in the green Buick. Brazzle testified that they were stopped at a railroad crossing when police officers suddenly pulled up. He stated that, when one of the police officers came up to the driver’s side window and pointed a gun in his face, he panicked and turned the car off the side of the road. He testified that the police officer was running in his direction with the gun pointed at him, so he got out of the Tahoe, ran to the woods, and removed his coat so that the police would not think he was hiding anything. He testified that Turner was still in the green Buick by the railroad crossing when he was arrested.

II.

¶ 49. On appeal, Brazzle argues that the trial court committed reversible error by refusing to instruct the jury on the lesser offenses of accessory after the fact and receiving stolen property. He argues that these instructions are supported by the evidence and emphasizes that the jury could have believed or disbelieved some or all of the evidence presented. This is an accurate reading and an appropriate application of the relevant legal principles. Therefore, I agree.

¶ 50. As the majority correctly recognizes, this Court has held that “jury instructions are not given unless there is an evidentiary basis in the record for such.” Fairchild v. State, 459 So.2d 793, 800 (Miss.1984) (citations omitted); see also Gangl v. State, 539 So.2d 132, 136 (Miss.1989) (citations omitted); Maj. Op. ¶25. In other words, the jury instructions must be based on more than pure speculation. Fairchild, 459 So.2d at 801 (citations omitted).

¶ 51. Nevertheless, the evidence must be viewed in the light most favorable to the defendant. See, e.g., Fairchild, 459 So.2d at 801 (citation omitted); Lee v. State, 469 So.2d 1225, 1230 (Miss.1985) (“[T]he defendant must be given the benefit of all doubts about the evidence.”). Furthermore, all favorable inferences must be drawn in favor of the defendant. See, e.g., Jones v. State, 798 So.2d 1241, 1254 (Miss.2001) (citation omitted); Welch v. State, 566 So.2d 680, 684 (Miss.1990); Fairchild, 459 So.2d at 801. The majority acknowledges this by quoting this Court’s decision in Harper v. State, 478 So.2d 1017, 1021 (Miss.1985), in a footnote. Maj. Op. ¶ 25.

¶ 52. The majority rightly states that the defendant “may request an instruction regarding any offense carrying a lesser punishment if the lesser offense arises out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment.” Gangl, 539 So.2d at 136 (citation omitted); see also Mease v. State, 539 So.2d 1324, 1329 (Miss.1989) (citation omitted); Maj. Op. ¶ 24. The majority also correctly notes that the evidentiary standard for lesser-offense instructions and lesser-included-offense instructions is the same. See, e.g., Gangl, 539 So.2d at 136 (citation omitted); Maj. Op. ¶25.

¶ 53. However, the majority fails to mention that, even if there is sufficient evidence supporting the conviction on the principal charge, it may still constitute reversible error for the trial court to have refused the lesser-included-offense instruction. Fairchild, 459 So.2d at 800-01 (citation omitted); see also Taylor v. State, 577 So.2d 381, 383 (Miss.1991) (citations omitted); Mease, 539 So.2d at 1330 (citation omitted). Moreover, the majority fails to comprehend that this Court “do[es] not ask which way the evidence preponderates.” Fairchild, 459 So.2d at 800; see also Taylor, 577 So.2d at 383 (citation omitted). This Court has emphatically stated that “only where the evidence could only justify a conviction of the principal charge should a lesser included offense instruction be refused.” Fairchild, 459 So.2d at 800; see also Taylor, 577 So.2d at 383 (citations omitted). This Court has also held that “[a] lesser-included offense instruction must be granted where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt.” Jones, 798 So.2d at 1253 (citation omitted) (second emphasis added); see also Welch, 566 So.2d at 684 (citation omitted). Accordingly, this Court has made clear that “[t]he granting of instructions should err on the side of inclusion rather than exclusion.” Jones, 798 So.2d at 1254 (citation omitted).

¶ 54. The majority also appears oblivious of the fact that, when reviewing the record for evidentiary support for lesser-offense instructions, this Court applies the basic and fundamental principle that the jury may consider any of the evidence presented at trial. See, e.g., Taylor, 577 So.2d at 384. Furthermore, the jury can believe or disbelieve some or all of the testimony. Warren v. State, 709 So.2d 415, 420 (Miss.1998) (citations omitted); Taylor, 577 So.2d at 384 (citation omitted). This Court has stated that the fact that the jury did not believe the defendant’s testimony is irrelevant when determining whether a lesser-included-offense instruction should have been given. Lee, 469 So.2d at 1231.

¶ 55. Taking' the evidence in the light most favorable to Brazzle, the record reflects that there was an evidentiary basis for the lesser-offense instructions he requested — contrary to the conclusion reached by the majority. See Fairchild, 459 So.2d at 801 (citations omitted); Lee, 469 So.2d at 1230 (citations omitted). The elements of accessory after the fact are: 1) concealing, receiving, relieving, aiding, or assisting a felon; 2) with the knowledge that such person had committed a felony; and 3) with the intent to enable the felon to escape or avoid arrest, trial, conviction, or punishment after the commission of the felony. Miss.Code Ann. § 97-1-5 (Rev. 2006); Gangl, 539 So.2d at 136. The evidence presented in this case could have supported a jury’s reasonable finding that Brazzle knowingly aided or assisted a felon with the intent to help the felon escape or avoid arrest, trial, conviction, or punishment.

¶ 56. Brazzle testified concerning Turner’s role in the events of January 22, 2007, and stated that Turner spotted a woman he knew driving the red Tahoe, that Brazzle fell asleep and ended up in a Popeye’s parking lot, and that Turner borrowed his jacket and left him in the car. Brazzle also testified that, after looking for Turner inside Popeye’s, he saw the red Tahoe leaving the parking lot and eventually decided to follow it. He testified that, when Turner finally pulled over, the woman was no longer in the Tahoe and that Turner asked Brazzle to drive it to Turner’s girlfriend’s house. Additional circumstantial evidence in support of Turner’s involvement was provided by Officer Cooper, who testified that, as a part of his investigation, he spoke with a man named Elliott Turner on the telephone, although the contents of that discussion are not revealed in the record. He also admitted that Officer Harris had observed a green Buick following the Tahoe before the driver of the Tahoe was apprehended, and that the presence of this vehicle had been noted in the police report. Brazzle testified that Turner had been driving a green Buick that day.

¶ 57. Officer Harris testified that Braz-zle was the individual driving the red Tahoe. In addition, Officer Cooper testified that Brazzle had admitted that he had been in the Tahoe. The prosecution also presented evidence suggesting that Braz-zle knew that the Tahoe he was driving had been stolen. According to Officer Harris, once he turned his lights on, the driver of the Tahoe (later identified as Brazzle) attempted to drive off the road, although the car became stuck in the muddy embankment. He then testified that the driver got out of the car and ran toward the nearby woods. “[I]t is a well-established principle that flight is admissible as evidence of consciousness of guilt,” subject to Mississippi Rule of Evidence 403. Fuselier v. State, 702 So.2d 388, 390 (Miss.1997) (citation omitted); see also Shaw v. State, 915 So.2d 442, 447 (Miss.2005) (citations omitted). This testimony clearly could support a jury’s reasonable finding that Brazzle knew the Tahoe had been stolen, thus satisfying the knowledge requirement for both accessory after the fact and receiving stolen property, which will be discussed below. As stated above, the law only requires that there be an evidentiary basis for the instructions requested. See, e.g., Fairchild, 459 So.2d at 800 (citations omitted). The law does not state that the evidentiary basis for the instructions requested must be provided by the party requesting the instructions. Thus, the fact that Brazzle maintained that he had no knowledge of Turner committing a felony is completely irrelevant to the determination of whether a lesser-offense instruction for accessory after the fact should be given, since there is testimony suggesting otherwise.

¶ 58. Based on all this testimony, a jury could have reasonably concluded that Turner had committed a felony by stealing the Tahoe and driving it away from Popeye’s and that Brazzle had knowledge of this, despite his claim that he was unaware. A jury could have reasonably found that, by agreeing to switch cars with Turner and by attempting to evade the police, Brazzle knowingly aided or assisted a felon with the intent to help the felon escape or avoid arrest, trial, conviction, or punishment. Thus, a jury could reasonably find that Brazzle was guilty of accessory after the fact, but not guilty of carjacking or kidnapping. The lesser-offense instruction for accessory after the fact should have been given.

¶ 59. The elements of receiving stolen property are: 1) intentionally possessing, receiving, retaining, or disposing of stolen property; 2) with the knowledge or having reasonable grounds to believe that the property had been stolen. Miss.Code Ann. § 97-17-70 (Rev.2006). Based on the evidence reviewed above, a jury also could have reasonably found Brazzle guilty of receiving stolen property, but not guilty of carjacking and kidnapping. Officer Harris’ testimony established that Brazzle was driving the Tahoe and that he attempted to drive it through the embankment. Officer Cooper testified that Brazzle admitted to being in the Tahoe. The fact that Braz-zle was driving the Tahoe, which had been taken from Wright, would clearly demonstrate intentional possession of stolen property. And again, a jury could find incredible Brazzle’s explanation for how he ended up driving the Tahoe and reasonably conclude, based on the prosecution’s evidence, that, while Brazzle did not carjack or kidnap Wright, he did have actual knowledge or a reasonable belief that the Tahoe had been stolen. Thus, the lesser-offense instruction for receiving stolen property also should have been given.

¶ 60. In other words, if the jury — as it is entitled to do — believed Brazzle’s testimony concerning Turner and all of the State’s evidence, except for Wright’s identification of Brazzle, then Brazzle would only be guilty of accessory after the fact and receiving stolen property. This Court made a similar point in Warren v. State and concluded that the trial court committed reversible error by refusing to instruct the jury on a lesser-included offense. Warren, 709 So.2d at 420. In Warren, the defendant was indicted for voyeurism for allegedly peeping through the window of the victim’s house and harassing and threatening her and her children for two hours late one evening. Id. at 417. The victim testified that Warren told her to “go into her bedroom, pull back her curtains, take off her clothes, and ‘get off on herself.’ ” Id. Warren testified that he had never been to the victim’s house and that he had never harassed or threatened her for lewd or licentious purposes. Id. at 418.

¶ 61. Warren requested a jury instruction for trespassing, which the trial court denied. Id. at 418. On appeal, the State made an argument very similar to the one it makes in this case and maintained that “there was no basis in the record for Warren to have claimed that he was merely guilty of trespassing in light of Warren’s claim that he was not even on the victim’s property.” Id. at 420. This Court stated:

Contrary to the State’s position, we conclude that it was reversible error to reject Warren’s request for a lesser included instruction on trespassing. Our law is that the burden of proof is upon the State to prove each element of the crime.... If it fails in so doing, the defendant is entitled to an acquittal on the offense charged even if the elements proven constitute guilt of a lesser offense .... A jury is entitled to believe or disbelieve witnesses in whole or in part.

Id. at 420 (citations omitted) (emphasis added). This Court concluded in Warren that

Warren is guilty of voyeurism only if the jury believed all of what James [i.e., the victim] had to say including her testimony suggesting Warren’s lewd purpose for being on her property and looking through her window. Likewise, he is guilty only of trespassing if the jury decided to believe everything that James stated except that portion of her testimony suggesting Warren’s lewd purpose. Thus, contrary to the State’s contention, there was evidence to support the lesser included instruction on trespassing, and the instruction should have been given.

Id.

¶ 62. As stated above, this Court has held that “only where the evidence could only justify a conviction of the principal charge should a lesser included offense instruction be refused.” Fairchild, 459 So.2d at 800; see also Taylor, 577 So.2d at 383 (citations omitted). Viewing the evidence presented at trial in the light most favorable to Brazzle, drawing all reasonable inferences in favor of Brazzle, and applying the legal framework constructed by this Court for reviewing requests for lesser-offense instructions, the jury instructions for accessory after the fact and receiving stolen property should have been given in this case.

¶ 63. Despite the precedent set in Warren and despite the applicable legal framework, the majority concludes that the trial court properly refused both instructions. The majority states:

Brazzle contends, however, that because a jury is entitled to believe or disbelieve witnesses in whole or in part, the jury could infer from the attendant circumstances in this case that there is sufficient evidence to support at least one of the proposed lesser-offense instructions. Specifically, Brazzle contends that, while Wright’s identification of Brazzle as the culprit supports an inference Brazzle actually carjacked and kidnapped Wright, the jury also was free to believe that she was mistaken about her identification and find that Brazzle had acquired the vehicle from Turner after the fact, as he claimed.

This argument fails.

Maj. Op. ¶¶ 26-27. The majority then proceeds to discuss Warren, but never clearly sets out its reasoning for reaching the conclusion that Brazzle’s argument fails. The majority fails to explain why it is that the jury was not free to believe that Wright “was mistaken about her identification” of Brazzle and why the jury was also not free to believe that “Brazzle had acquired the vehicle from Turner after the fact, as he claimed.” Maj. Op. ¶ 26.

¶ 64. Presumably, the majority reaches its conclusion because it finds that there was no evidentiary basis for the lesser-offense instructions — though it does not explicitly state this. The majority appears to be of the inflexible and misguided opinion that the evidence presented at trial could only lead the jury, as the factfinder, to one of two conclusions — either 1) that Brazzle is guilty of carjacking and kidnapping or 2) that Brazzle is not guilty of carjacking and kidnapping and also not guilty of accessory after the fact and receiving stolen property. See Maj. Op. ¶ 36. However, it has long been held that the jury sits as the factfinder in criminal trials, and it is well-established that the jury may consider any of the evidence presented and may believe or disbelieve some or all of the testimony. See, e.g., Grosedose v. State, 440 So.2d 297, 300-01 (Miss.1983) (citation omitted); Taylor, 577 So.2d at 384 (citation omitted). Furthermore, this Court has also explicitly stated that the fact that a particular jury did not believe the defendant’s testimony is irrelevant when determining whether a lesser-included-offense instruction should have been given. Lee, 469 So.2d at 1231; but see Maj. Op. ¶ 36. As stated above, a jury could have reasonably found Brazzle guilty of accessory after the fact and receiving stolen property (and not guilty of carjacking and kidnapping) based on the evidence presented at trial.

¶ 65. The majority declares that Warren is distinguishable merely because, according to the majority, the analysis in Warren only applies to lesser-included-offense instructions. However, the majority ignores the fact that the evidentiary standard for lesser-offense instructions and lesser-included-offense instructions is the same. See, e.g., Gangl, 539 So.2d at 136 (citation omitted). When deciding whether a lesser-included-offense instruction or a lesser-offense instruction should be given, a trial court asks the same question: whether there is an evidentiary basis in the record to support the instruction. See, e.g., Fairchild, 459 So.2d at 800 (citations omitted); Gangl, 539 So.2d at 136 (citation omitted). Since the same standard applies for giving lesser-included-offense instructions and lesser-offense instructions, and the same standard applies for reviewing trial courts’ decisions regarding lesser-included-offense instructions and lesser-offense instructions, the majority’s only ground for distinguishing Warren clearly has no basis in the law or in logic. Furthermore, although the majority claims that there is no evidence that Brazzle knew that a felony had been committed or that the Tahoe had been stolen, the evidence presented at trial, as discussed in detail above, clearly could have supported a jury’s reasonable finding that Brazzle did have knowledge of a felony and that the Tahoe had been stolen. Maj. Op. ¶ 29.

¶ 66. In closing, the majority states that “[a]ny reasonable doubt as to the State’s proof of Brazzle’s role in the two crimes for which he was indicted entitled Brazzle to nothing short of an absolute discharge.” Maj. Op. ¶ 36. It is true that, if the prosecution failed to prove beyond a reasonable doubt that Brazzle was guilty of carjacking and kidnapping, then the jury is duty-bound to find Brazzle not guilty of carjacking and kidnapping. However, this does not mean that the lesser-offense instructions requested by Brazzle were properly refused by the trial court. Brazzle was entitled by law, based on the testimony presented at trial, to the lesser-offense instructions that he requested. The jury should have been instructed on these lesser offenses, which, I note, would have done nothing to preclude the jury from acquitting Brazzle, in an “absolute discharge,” if it found that the prosecution did not meet its burden of proof. See Maj. Op. ¶ 36.

¶ 67. The trial court erred in denying Brazzle’s requests for the jury to be instructed on both accessory after the fact and receiving stolen property because, based on all the evidence presented, a jury

could have reasonably found him guilty of the lesser offenses and not of carjacking and kidnapping. See, e.g., Jones, 798 So.2d at 1253 (citation omitted); Welch, 566 So.2d 684 (citation omitted). Today, the majority of this Court misconstrues and misapplies the relevant principles of law. In so doing, the majority sets a dangerous precedent and deals a substantial blow to the rights of criminal defendants in this state. Therefore, I respectfully dissent.

KITCHENS, J., JOINS THIS OPINION.

      . Although the caption of this case spells Brazzle’s first name differently, this is how Brazzle spelled it at trial.

      . Officer Cooper stated during cross-examination that, as a part of his investigation, he spoke with a man named Elliot Turner on the telephone; the contents of that discussion are not revealed in the record.

      . According to Officer Cooper, Officer Harris had noted in his report that he had observed a green Buick following the victim's carjacked vehicle.

      . The crime of accessory after the fact, is set forth in Mississippi Code Section 97-1-5, which states:
      Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment, after the commission of such felony....
      Miss.Code Ann. § 97-1-5 (Rev.2006).
      The crime of receiving stolen property is governed by Section 97-17-70, which states in pertinent part:
      (1) A person commits the crime of receiving stolen property if he intentionally possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained or disposed of with intent to restore it to the owner.
      Miss.Code Ann. § 97-17-70 (Rev.2006).

      . Harper explained:
      The rule on whether a lesser included offense instruction should be given is functionally comparable to that applied when the trial judge considers whether a peremptory instruction or judgment notwithstanding the verdict should be granted[.] The only fact issues which should be taken from the jury are those with respect to which the evidence is so clear that rational jurors could not disagree. On all other material issues of fact, the jury must be instructed in the law so that they may then perform their constitutional responsibility.
      The rule here, however, is the opposite of that which prevails when the defendant requests a peremptory instruction at the conclusion of the state's case. There we say that the evidence must be viewed in the light most favorable to the state and that we must accept as true all evidence supporting conviction even though that evidence may be contradicted by evidence offered by the defendant. We also give the state the benefit of all reasonable favorable inferences which may be drawn from the evidence. Conversely, in the present context, a lesser included offense instruction should be granted unless the trial judge-and ultimately this Court-can say, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge).

        Harper, 478 So.2d at 1021.

      . It should be noted that Gangl, which opened the door to permitting instructions based on a lesser offense separate and distinct from the offense charged in an indictment, involved the lesser offense of accessory after the fact and the greater offense of accessory before the fact. Gangl, 539 So.2d at 135. The Gangl Court made it a point to note that no evidence was presented showing that the defendant was a participant in the robbery at issue in that case. See id. (“It is important to note here that no evidence, direct or circumstantial, implicated Gangl as a primary participant in the armed robbery”).