author: COLEMAN, Justice, DICKINSON, Presiding Justice, KITCHENS, Justice,

text:
    Rebecca Lynn JONES a.k.a. Rebecca Jones a.k.a. Rebecca L. Jones v. STATE of Mississippi.
    No. 2013-KA-00520-SCT.
    Supreme Court of Mississippi.
    Nov. 13, 2014.
    Rehearing Denied Jan. 29, 2015.

      Richard Shane McLaughlin, Nicole H. McLaughlin, Tupelo, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before DICKINSON, P.J., PIERCE and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. The Circuit Court of Prentiss County convicted Rebecca Lynn Jones for the murder of her mother and sentenced her to life imprisonment. On appeal, she asserts that the trial court erred in admitting evidence of her prior drug use, that the trial court erred in denying her motions for judgment as a matter of law, and that the verdict is against the weight and sufficiency of the evidence. Finding no error, we affirm.

Facts and Procedural History

¶ 2. Rebecca Lynn Jones is the daughter of the decedent, Jane Jones. Rebecca visited Jane in May 2010. An altercation ensued, ending in Jane’s death via two gunshot wounds. A grand jury indicted Rebecca for the murder of her mother. Her defense was that Jane saw the gun Rebecca kept in her purse and lunged for it, the two fought over the gun, and it accidentally discharged twice during the struggle.

¶ 3. Numerous witnesses testified that Rebecca and Jane had always had a tumultuous relationship and argued often. The family members and friends who testified knew that Rebecca had suffered from drug and alcohol addiction earlier in her life. In November 1989, Rebecca deeded some land to Jane that her father had left her in his will. The State alleges that the transfer took place because of Rebecca’s drug problems. Rebecca claims instead that the transfer was in part because of her drug addiction, and in part because she was unable to pay taxes on the property. According to Rebecca, Jane agreed that she would deed the land back to Rebecca eventually.

¶ 4. In 2003, Jane filed a Petition for Custody of Rebecca’s daughter, Brooke. Brooke’s father, Rebecca’s ex-husband, joined the petition. The State claims that Jane filed for custody due to Rebecca’s drug addiction. Rebecca testified that she had a nervous breakdown and had “lost [her] health,” so she did not oppose the change of custody. Brooke lived with Jane for about four years. She moved out after she got pregnant and had an altercation with Jane. Brooke testified that when she was pregnant, Jane had once “pushed [her] to the ground and kicked [her] in [her] stomach, told [her] that she didn’t care if the baby lived or died.”

¶ 5. At the time of Jane’s death, Rebecca had participated in recovery programs and had ceased recreational use of drugs and alcohol. Rebecca, her husband, Brooke, and two uncles testified that Rebecca was living a sober life in Alabama, away from Jane. There was no evidence that Rebecca had been using drugs or alcohol on the date of Jane’s death. The mental competency evaluation prior to trial stated that both her cocaine and alcohol dependencies were “in full remission.”

¶ 6. Rebecca testified that, on the date of the shooting, she left her home in Alabama and traveled to Booneville, Mississippi, to visit friends and family. She had heard from friends and relatives that Jane planned to sell the land Rebecca had deeded to her, along with Jane’s own house and land. Rebecca testified that she was concerned because her mother “worshiped that house,” and she had lived there forty years and never mentioned selling. Rebecca also had heard that Jane had been “acting erratic.” Rebecca said that she decided to go to Jane’s house to check on her mother and to “get some stuff off her chest.”

¶ 7. Only Rebecca and Jane were inside the house when the shooting occurred, and Rebecca and the State sharply disagree as to the course of events. The State maintains that Rebecca went to Jane’s home with the pre-designed purpose of killing her because Jane was planning to sell the land that Rebecca had deeded to her in 1989, and because Rebecca was still angry with her mother over the 2003 custody transfer. The State claimed that both events — the land transfer and the custody transfer — resulted from Rebecca’s past drug use. Rebecca testified that Jane saw her lift her pistol out of her purse to retrieve her keys from underneath it and Jane lunged for it, saying, “give me that damn gun.” Rebecca claims that, in the ensuing struggle, the gun discharged twice and both bullets hit Jane. Rebecca testified that Jane let go of the gun after the second shot, and Rebecca threw the gun on the couch. Jane called 911 and reported that Rebecca had shot her. Rebecca fled the house but quickly turned around and returned. She did not call 911 or try to administer first aid to her mother.

¶ 8. The first officer on the scene, Tammy Johnson, found Rebecca talking on her cell phone in the driveway and placed her in custody. Johnson said Rebecca’s hair and clothing were neat. Johnson did not observe any abrasions on Rebecca or any blood on her clothes. Rebecca said there had been an argument and a struggle and a gun went off; Rebecca was not crying or upset. When Johnson entered the house, nothing was out of place; she did not see any furniture or other items knocked over. The gun was on the couch, and the hammer was “cocked and ready to fire.” Jane was still alive when Johnson arrived, and she told Johnson there had been an argument. Jane was not wearing a shirt; her shirt was lying on the floor beside her. Jane had been shot twice — one bullet passed through her torso below her navel and the other bullet passed through her upper chest and upper arm at a sharp diagonal. Jane later died of her wounds.

¶ 9. The Mississippi Crime Laboratory found particles of gunshot residue on Rebecca’s right palm and the back of her left hand, and particles indicative of gunshot residue on both palms and the back of her left hand. The lab found particles indicative of gunshot residue on both sides of both of Jane’s hands. The gun was not tested for fingerprints. At trial, the Mississippi Crime Laboratory firearms examiner, Felicia Robinson, testified as to the range of tests she had performed with the pistol. Robinson said that the muzzle-to-garment distance determination test indicated that the distance between the pistol and Jane’s shirt had been “greater than contact but less than nine inches.”

¶ 10. Robinson explained that Rebecca’s pistol could be fired as single or double action. Single action requires the shooter to cock the hammer and then pull the trigger, which releases the hammer while firing. Double action is when the shooter only pulls the trigger, requiring the gun itself to cock the hammer and then release when the shooter pulls the trigger. Rebecca’s pistol requires more than five pounds of pressure to fire in single action and between fifteen and seventeen pounds of pressure to fire in double action. Robinson said that, unlike a semiautomatic, Rebecca’s pistol does not automatically cock its hammer — the hammer must be cocked manually. Her tests indicated that the pistol functioned properly.

¶ 11. Dr. Amy McMaster, a forensic pathologist, examined Jane’s body. Dr. McMaster testified that there was no stippling around any of Jane’s wounds. Stippling results from gun powder when a gun is shot at close range. Stippling would not be present if the gun was fired from several feet away or if something was between the skin and gun, such as clothing, which would prevent the gun powder from being deposited on the victim’s skin. Dr. McMaster testified that, if Jane was not wearing a shirt when she was shot, then the gun was shot from more than a couple of feet away from the victim. Robinson had testified that there was a hole in the shirt that had been found beside Jane, and the shirt had gunshot residue on it. However, it is not clear whether the shirt would have covered Jane’s neck or arm, and there was no stippling around those wounds either.

¶ 12. Rebecca’s uncle, Jimmy Hicks, was one of the witnesses who testified about Rebecca and Jane’s relationship. He said they had “always had kind of a rocky relationship.” Hicks testified that he visited Rebecca in jail and she said, “I killed my mother.” He testified that Rebecca did not say it was an accident or that there had been a struggle; she did not show any remorse. Hicks also testified that Rebecca said, “She took my child, she took my land, and now she’s taken my freedom.” When questioned about her comments to Hicks, Rebecca said it had been a “miscommunication.” Rebecca testified that she did not say she killed her mother, but that she told Hicks she “felt guilty because it was [her] gun.”

¶ 13. Rebecca filed several motions in limine before trial, one of which sought to exclude references to her previous drug use on the grounds that such references would prevent her from receiving a fair trial. The trial court denied all of Rebecca’s motions. A jury found Rebecca guilty of deliberate design murder, and the trial court sentenced her to life imprisonment. Rebecca moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, which the trial court denied. Rebecca appealed.

Discussion

¶ 14. Rebecca asserts four grounds for reversal of her conviction: (1) the court erred in denying her motions for judgment as a matter of law; (2) the trial court erred in allowing evidence of her prior drug use under Mississippi Rule of Evidence 404(b); (3) even if her unrelated drug use was relevant and admissible under Rule 404(b), the evidence should have been excluded under Rule 403; and (4) the verdict was against the overwhelming weight and sufficiency of the evidence. Each issue is either procedurally barred or without merit.

I. Whether the trial court erred in denying Rebecca’s motions for directed verdict.

¶ 15. The denial of a motion for a directed verdict is reviewed de novo. Gilmer v. State, 955 So.2d 829, 833 (¶ 5) (Miss.2007). Rebecca bases her claim that the trial court erred in denying her motion for a directed verdict on the Weathersby rule. See Weathersby v. State, 165 Miss. 207, 147 So. 481, 482 (1933). Rebecca made two motions for a directed verdict: one at the close of the State’s case and one at the close of the defense’s case. Neither motion referenced the Weathersby rule. Nor was the issue raised in her post-trial motion for JNOV. Because Rebecca did not raise the Weathersby rule at trial, the issue is procedurally barred on appeal. See Page v. State, 64 So.3d 482, 489 (¶ 29) (Miss.2011) (where defendant did not raise Weathersby rule as a defense at trial, the Court held he was procedurally barred from raising it on appeal). See also Brown v. State, 33 So.3d 1134, 1141 (¶27) (Miss. Ct.App.2009) (defendant procedurally barred from bringing Weathersby argument “because he did not bring it to the trial court’s attention and give the trial court the opportunity to make a ruling”).

1116. Despite the procedural bar, we hold that the Weathersby rule is inapplicable. The Weathersby rule states:

Where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

Weathersby, 147 So. at 482. Rebecca argues that, because she and Jane were the only eyewitnesses to the incident and because the State did not contradict her version of events “in material particulars,” the Weathersby rule applies and the Court should reverse her conviction and render a verdict of acquittal. The State responds that the evidence presented at trial did, in fact, substantially contradict Rebecca’s version of the incident and that the trial court correctly denied the motion.

¶ 17. Weathersby does not automatically apply when the defendant is the only eyewitness. Rather, the Court has held that Weathersby “has no application where the defendant’s version is patently unreasonable, or contradicted by physical facts.” Blanks v. State, 547 So.2d 29, 33 (Miss.1989). “Where the defendant is the only eyewitness to a slaying, his version must be reasonable and credible before he is entitled to an acquittal under the rule.” Id.

This Court has stated that, “Weathersby ... is nothing more than a particularized version of our general standards according to which courts must decide whether in a criminal prosecution the accused is entitled to a judgment of acquittal as a matter of law.” Johnson v. State, 987 So.2d 420, 425 (Miss.2008) (quoting Jackson v. State, 551 So.2d 132, 136 (Miss.1989)). “When considering a motion for directed verdict, all evidence introduced by the State must be accepted as true, together with all reasonable inferences therefrom. If there is sufficient evidence to support a guilty verdict, the motion for directed • verdict must be overruled.” Green v. State, 631 So.2d 167, 175 (Miss.1994) (internal citations omitted).

McQuarters v. State, 45 So.3d 643, 650 (¶ 19) (Miss.2010). The State presented adequate evidence — through testimony about Rebecca and Jane’s tumultuous relationship, testimony about the crime scene, forensic and ballistic testimony and evidence, and physical facts — to contradict Rebecca’s story and present another plausible version of events that differs “in material particulars” from Rebecca’s version. Therefore, the issue is procedurally barred and without merit.

II. Whether the trial court erred in admitting evidence of Rebecca’s past drug use.

¶ 18. Rebecca argues that evidence of her prior drug use was improperly admitted in violation of Rules 404(b) and 403 of the Mississippi Rules of Evidence. She filed a motion in limine seeking to exclude the evidence, but the trial judge denied the motion when the State argued that it needed to admit the evidence to prove motive, to prove lack of mistake, and to tell the jury a rational story. Admissibility of evidence is reviewed for abuse of discretion. “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Welde v. State, 3 So.3d 113, 116 (¶ 13) (Miss.2009) (quoting Fisher v. State, 690 So.2d 268, 274 (Miss. 1996)).

f 19. As a general rule, evidence of crimes or acts other than the one for which the defendant is accused is not admissible, but Rule 404(b) provides exceptions to the general rule. Welde, 3 So.3d at 117 (¶ 14) (citing Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995)).

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Miss. R. Evid. 404(b). If the evidence is admissible under an exception in Rule 404(b), the trial court must still subject that evidence to a probative value versus prejudicial effect analysis under Rule 403. Welch, 3 So.3d at 117 (¶ 15). Thus, “[t]he evidence offered must (1) be relevant to prove a material issue other than the defendant’s character; and (2) the probative value of the evidence must outweigh the prejudicial effect.” Id. (quoting Crawford v. State, 754 So.2d 1211, 1220 (Miss.2000)).

¶ 20. At the hearing on her motion in limine, Rebecca argued that evidence of her prior drug use and subsequent treatment should be excluded because she had been sober for years, there was no evidence that she had been under the influence of drugs or alcohol on the day of the shooting, and there was a risk of the jury inferring that she was “some drug-crazed lunatic.” She maintained that to tie her drug use to the loss of her land and the custody transfer of her daughter and then relate it to Jane’s death would be “improper and very tangential.” The State responded that it did not intend to discuss Rebecca’s stints in rehabilitation or her particular drug use. Rather, the State would use the evidence to prove motive, lack of mistake, and to tell the complete story of the crime. The State’s theory was that Rebecca’s prior drug use resulted in her losing custody and having to give up her land. Without being able to discuss that, the State argued that “it won’t tie into the jury why mother has [the] land and why the daughter is so upset.” The trial judge held that evidence of Rebecca’s prior drug use would be admissible “to show motive and lack of mistake under Rule 404.” While evidence of other crimes or acts may be admissible to show motive and lack of mistake under Rule 404(b), that evidence must be evaluated under the Rule 403 balancing test.

¶ 21. According to Rule 403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or. misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Miss. R. Evid. 403. Rebecca maintains that the evidence of her prior drug use had minimal-to-no probative value and was outweighed by a “vast potential for unfair prejudice.” She claims it painted her as an “unreliable drug addict” and forced her to testify to clear her name. The State responds that the evidence of Rebecca’s prior drug use was properly admitted and did not prejudice her case because it did not involve similar crimes, which would make the jury likely to find her guilty because she had committed the same crime before.

¶ 22. In ruling on the motion in limine, the trial court did not mention Rule 403, the balancing test, or any risk of unfair prejudice. However, the Court has held that, even where a trial judge “failed to use the ‘the magic words’ that he did not find the danger of unfair prejudice to substantially outweigh the probative value,” that determination can be considered implicit if the court heard arguments from each side regarding the potential prejudicial nature of the evidence. Hoops v. State, 681 So.2d 521, 531 (Miss.1996). See also Hudson v. State, 977 So.2d 344, 349 (¶25) (Miss.Ct.App.2007) (citing Hoops, the court held that the trial judge’s “implicit Rule 403 balancing test was sufficient”); Dao v. State, 984 So.2d 352, 361 (¶¶ 32-34) (Miss.Ct.App.2007) (based on Hoops, the trial judge’s implicit Rule 403 determination was sufficient). In the instant case, the record shows that the trial court heard each side’s arguments regarding the admissibility of the evidence and its possible prejudicial effect before making a decision. We hold that the trial court’s implicit balancing test was sufficient, and we cannot say that the trial judge abused his discretion in admitting the evidence.

III. Whether the verdict is contrary to the weight and sufficiency of the evidence.

¶ 23. After the jury returned a unanimous guilty verdict, Rebecca filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial judge denied the motion. Rebecca alleges that the trial court wrongfully denied her motion because the verdict was against the overwhelming weight and sufficiency of the evidence. The Court reviews post-trial motions for abuse of discretion. Withers v. State, 907 So.2d 342, 352 (¶ 31) (Miss.2005) (quoting Flowers v. State, 601 So.2d 828, 833 (Miss.1992)).

¶ 24. A motion for judgment notwithstanding the verdict challenges the sufficiency of the evidence; a motion for a new trial challenges the weight of the evidence. Bush v. State, 895 So.2d 836, 843-44 (¶ 16, 18) (Miss.2005). In examining a challenge to the sufficiency of the evidence, the Court must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 843 (¶ 16) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). When reviewing a challenge to the weight of the evidence, the Court will disturb a jury verdict only “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, ,895 So.2d at 843 (¶ 18).

¶ 25. Rebecca was indicted for deliberate design murder under Mississippi Code Section 97-3-19, which provides, in pertinent part: “The killing of a human being without the authority of law by any means or in any manner shall be murder ... [w]hen done with deliberate design to effect the death of the person killed[.]” Miss.Code Ann. § 97-3-19(l)(a) (Rev. 2014). To prove deliberate design murder, the prosecution must prove the following elements beyond a reasonable doubt: “(1) the defendant killed the victim; (2) without authority of law; and (3) with deliberate design to effect his death.” Brown v. State, 965 So.2d 1023, 1030 (¶27) (Miss. 2007) (citing Dilworth v. State, 909 So.2d 731, 736 (¶ 18) (Miss.2005)).

“[Deliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.” Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995) (quoting Windham v. State, 520 So.2d 123, 127 (Miss.1987)). This Court has acknowledged that deliberate-design connotes an intent to kill and may be inferred through the intentional use of any instrument which, based on its manner of use, is calculated to produce death or serious bodily injury. Wilson v. State, 936 So.2d 357, 364 (Miss.2006) (internal citations omitted).... This Court also has recognized that shooting a victim with a gun constituted deliberate-design murder. See Jones v. State, 710 So.2d 870 (Miss.1998); Hawthorne v. State, 835 So.2d 14 (Miss.2003).

Brown, 965 So.2d at 1030 (¶ 28).

¶ 26. In the instant case, to convict Rebecca for Jane’s murder, the State had to prove to the jury beyond a reasonable doubt that (1) Rebecca killed Jane, (2) without the authority of law, and (3) with deliberate design to effect Jane’s death. Id. at 1030 (¶ 27). Again, the Court considers “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush, 895 So.2d at 843 (¶ 16). Rebecca admitted she was in the room with Jane at the time of her death. She does not contest that the weapon used to kill Jane was her own. The jury heard testimony regarding the autopsy, lack of stippling, the crime scene, the presence of gunshot residue on both Jane’s and Rebecca’s hands, muzzle-to-garment tests, and the operation of the pistol. Both Rebecca and the State had ample opportunity to question the witnesses, personnel, and technicians who examined or handled that evidence. The jury also heard testimony about the history of Jane and Rebecca’s relationship, and both parties questioned character witnesses for the jury’s benefit. “The jury determines the weight and credibility of witness testimony.” Nelson v. State, 10 So.3d 898, 905 (¶ 29) (Miss.2009) (citing Moore v. State, 933 So.2d 910, 922 (¶ 43) (Miss.2006)).

¶ 27. Viewing the evidence in the light most favorable to the prosecution, we hold that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” and the jury’s verdict is not “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 843-44 (¶¶ 16, 18). The trial court did not abuse its discretion in denying Rebecca’s post-trial motion for judgment as a matter of law.

Conclusion

¶ 28. The trial court did not err by admitting evidence of Rebecca’s prior drug use or by denying Rebecca’s motions for directed verdict. Further, the verdict is not against the weight and sufficiency of the evidence. Each issue raised by Rebecca is without merit, and her conviction and sentence are affirmed.

¶ 29. CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT SHALL PAY $5,000 AND ALL COSTS OF COURT.

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

DICKINSON, Presiding Justice,

concurring in part and in result:

¶ 30. I agree with Justice Kitchens’s conclusion that the admission of evidence regarding Jones’s past drug abuse exceeded that which was necessary for the State to tell a complete story. But I do not share Justice Kitchens’s view that the admission of this evidence was so prejudicial as to require reversal. I find the error harmless beyond a reasonable doubt, so I join Justice Coleman in result.

KITCHENS, Justice,

dissenting:

¶ 31. The State could have told a coherent story that adequately conveyed its theory of the case and outlined Rebecca Jones’s motive to kill her mother without mentioning that Rebecca had abused drugs in the past. This extremely prejudicial evidence should not have been admitted because it was unnecessary and its probative value was minimal. Accordingly, I respectfully dissent.

¶ 32. “[A]s a general rule evidence of a crime other than the one for which the accused is being tried is not admissible.” Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1996). Evidence of prior bad acts may be admissible, if that evidence can be used to show any of several noncharacter aspects of the crime listed in Mississippi Rule of Evidence 404(b). This Court has held that evidence that is “substantially necessary to present to the jury ‘the complete story of the crime’ ... may be given even though it may reveal or suggest other crimes.” Brown v. State, 483 So.2d 328, 330 (Miss.1986) (quoting State v. Villavicencio, 95 Ariz. 199, 388 P.2d 245, 246 (1964)). Even if evidence is admissible under Rule 404(b), it still must be strained through the filter of Rule 403, which provides that admissible “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice_” M.R.E. 403. Accordingly, if the evidence admissible to tell a complete story of the crime is unfairly prejudicial and not very probative, it is incumbent on a court to exclude it.

¶ 33. The State argues that Rebecca’s drug use in 1989 was relevant to her mother Jane’s death in 2010 because it explained why Jane had the title to land that Rebecca thought rightfully was hers. The State further argues that Rebecca’s drug use was the reason for Jane’s having taken custody of Rebecca’s daughter in 2003. According to the State and the majority, the motive for Rebecca’s killing of Jane could not be explained without discussing Rebecca’s past drug use. That simply is not the case.

¶ 34. Rebecca Lynn Jones and her mother Jane had a tumultuous relationship. In 1989, Rebecca deeded some land to her mother, with the expectation that, one day, her mother would give the land back. In 2003, Rebecca’s mother prevailed in a custody dispute with Rebecca over Rebecca’s daughter. There was significant animosity between the two as a result. In 2010, Rebecca discovered that Jane was planning to sell the land that she had promised she one day was to return to Rebecca. Rebecca, angry at her mother for going back on her promise and still angry over her mother’s custody of Rebecca’s own daughter, decided to confront her mother about the land deal. During the visit, Rebecca shot her mother twice at close range. She did not call 911.

¶ 35. It was altogether unnecessary to mention drugs in the telling of the foregoing narrative, which fully sets forth the prosecution’s theory of the case. Rebecca was angry at her mother because the mother had obtained custody over Rebecca’s daughter against Rebecca’s wishes. She was angry at her mother because she was selling land that Rebecca believed rightfully to be hers. She was not angry because she had used drugs in the past. While Rebecca’s past drug use may have contributed to the custody dispute and the land sale, her drug use in and of itself did not provide a homicidal motive and was unnecessary to the telling of a complete story about why Rebecca might have had a reason to want to shoot her mother, particularly when she had been sober for several years prior to the incident.

¶ 36. So the evidence of Rebecca’s prior drug use was unnecessary to the telling of the story of the shooting from the State’s perspective, it was unnecessary to explain a motive, and it therefore was inadmissible under Rule 404(b). However, the evidence becomes doubly inadmissible when filtered through Rule 403. “Rule 403 is an ultimate filter through which all otherwise admissible evidence must pass.” Jones v. State, 920 So.2d 465, 475 (¶ 32) (Miss.2006) (quoting Hoops v. State, 681 So.2d 521, 531 (Miss.1996)). Under Rule 403, we must weigh the evidence’s probative value against the danger that it would unfairly prejudice the defendant. As the evidence of the drug use was unnecessary to explain Rebecca’s possible motive for killing her mother, it had little, if any, probative value. However, it had enormous potential for unfair prejudice. It would be easy for a jury to conclude that Rebecca was a drug-addled burden to her mother for most of her life, and that most of Rebecca’s problems were caused by her drug addiction. In fact, in opening argument, the State said, “This is a story of culminating and escalating problems that the defendant had, problems that ended in murder. She has a lifelong history of drug abuse and drug use, cocaine use.”

¶ 37. The evidence of Rebecca’s prior drug use was unnecessary and far too remote in time to explain her motive. Rebecca went to her mother’s home that, fateful day because her mother was selling the land that Rebecca felt was rightfully hers. Rebecca resented her mother for having obtained custody of Rebecca’s daughter. Rebecca did not resent her mother because Rebecca had abused drugs in the past. Such evidence had little, if any, probative value, and, at the same time, it had great potential for unfair prejudice. In my opinion, the circuit court abused its discretion when it admitted the evidence. I would reverse Rebecca’s conviction and remand for a new trial.

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

      . Smith v. State, 136 So.3d 424, 435 (Miss. 2014) (citing Young v. State, 99 So.3d 159, 165 (Miss.2012)) ("Errors in the admission of evidence are subject to a harmless-error analysis”).


source: Caselaw Access Project

author: KITCHENS, Justice,

license: Public Domain

text:
    Richard W. BOWLIN a/k/a Richard Bowlin, v. STATE of Mississippi.
    No. 2013-KA-00948-SCT.
    Supreme Court of Mississippi.
    Jan. 15, 2015.

      Office of State Public Defender by W. Daniel Hinchcliff, George T. Holmes, attorneys for appellant.
    Office of the Attorney General by Barbara Wakeland Byrd, attorney for appel-lee.
    Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. Richard Bowlin was convicted of three counts of sale or transfer of a controlled substance in the Circuit Court of Lowndes County. He was sentenced as an habitual offender to three concurrent thirty-year sentences without the possibility of parole and fined $1 million for each count. Bowlin’s appellate counsel has filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss.2005), certifying that he has scoured the record and has found no arguments to raise on appeal. Bowlin, as is his right under Lindsey, has filed his own pro se brief, raising several issues related to the alleged ineffectiveness of his trial and appellate counsel. We also have scoured the record, and, finding no meritorious arguments to be made for Bowlin on appeal, we affirm his convictions and sentences. Bowlin’s ineffective-assistance-of-counsel claims are better deferred for an application for post-conviction relief, so we dismiss those points of error without prejudice, to be raised in a petition for post-conviction relief, should Bowlin choose to file such within the time allowed.

FACTS AND PROCEDURAL HISTORY

¶ 2. In May 2009, Ashley Matthews, a resident of Alabama and daughter of Richard Bowlin, contacted Alabama authorities and informed them that she could perform an undercover drug buy from her father. Matthews called Bowlin' asking whether she could buy some morphine patches. He said that he was out of them, but that he had something else he could sell her. Matthews arranged to meet him to conduct the transaction, and then met with officers of the Mississippi Bureau of Narcotics (MBN) to set up the logistics of the sting. Matthews was interviewed by the MBN agents, fitted with video and audio recording devices, and given two hundred dollars with which to purchase the drugs. The agents searched Matthews’s car to ensure that no illegal contraband was within, and the MBN’s equipment recorded her from the time she left the agents until she returned after completing the buy from Bowlin.

¶ 3. Matthews telephoned Bowlin and arranged their meeting for the purpose of purchasing drugs from him. The phone call was recorded. When Matthews arrived at Bowlin’s home, she went into his house, where he sold her four bags of pills for the two hundred dollars she had been provided. Matthews left and returned to the location where she had been fitted with the recording equipment. Bowlin left his house after the transaction was complete, and agents arrested him at a nearby store. The twenty-dollar bills that MBN agents had provided Matthews were found by the arresting officers in Bowlin’s billfold.

¶ 4. Bowlin was indicted by the grand jury of Lowndes County for three counts of sale or transfer of a controlled substance. The specific controlled substances were hydromorphone (Dilaudid), meperi-dine (Demerol), and oxycodone. Four days before trial, the State moved to amend Bowlin’s indictment to include habitual offender status pursuant to Mississippi Code Section 99-19-81, which would subject him to the maximum penalty under law without the possibility of parole for each of the three counts against him if he were convicted. Miss.Code Ann. § 99-19-81 (Rev.2007). The hearing on the amendment was held after Bowlin’s conviction. Bowlin’s trial counsel acknowledged that she was not surprised by the prior convictions because she had represented Bowlin in all of those matters. The trial court amended the indictment after Bowlin was convicted and sentenced him as an habitual offender.

¶ 5. Matthews was the main witness for the prosecution at trial. She identified the pills presented at trial as the pills that Bowlin had sold to her. She recognized the pills because they were kept in plastic bags that she had initialed. Forensic analyst Bill Smith of the Columbus Forensic Lab was accepted as an expert in drug analysis, and he testified that his examination of the tablets revealed that they contained hydromorphone, meperidine, and oxycodone. The recording of the transaction obtained by Matthews was played for the jury. It showed Bowlin’s face as well as the pills in Matthews’s hand. The jury was informed that the same money handed to Bowlin in exchange for the drugs was recovered from his person when he was arrested.

¶ 6. After the State rested, Bowlin moved for a directed verdict, which was denied. The trial court informed Bowlin of his right to testify or not. Bowlin chose not to testify. His attorney stated that, prior to trial, she had met with Bowlin several times and had provided him copies of the discovery materials produced by the State in his case. She related to the court that she had informed him of the details of the State’s plea-bargain offer and that he had declined the offer. The defense rested without presenting any evidence or witnesses. The jury convicted Bowlin on all counts, and the trial judge sustained the previously filed motion for amendment of the indictment to include habitual-offender status. The trial court sentenced Bowlin, pursuant to Mississippi Code Section 99-19-81, as an habitual offender to thirty years on each count, to be served concurrently, without the possibility of parole. He also was fined $1 million on each count.

¶ 7. Bowlin’s appellate counsel has filed a brief pursuant to Lindsey, 939 So.2d at 743, stating that, after a thorough and diligent search of the record, no arguable issues for appeal had been found. Counsel has complied with the mandates of Lindsey, stating that he has scoured the record and reviewed

(a) the reason for the arrest and circumstances surrounding the arrest of Richard W. Bowlin; (b) any possible violation of Richard W. Bowlin’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions and particularly the denial of defense instruction D-6; (g) all exhibits, whether admitted into evidence or not; (h) possible misapplication of the law in sentencing; (i) the indictment and all the pleadings in the record; (j) any possible ineffective assistance of counsel issues; (k) jury selection, possible dismissal, voir dire, misconduct of or affecting the jury, jury composition, improper influences, failure to disclose, and Bat- son challenges; (l) the possibility of making an argument of “one transaction” constituting only one chargeable crime or count; and (m) sentencing issues, particularly relating to amended indictments charging the defendant as an habitual criminal under the rule announced in Gowdy v. State, 56 So.3d 540 (Miss.2010), all as contained within the four corners of the present record, and any other possible reviewable issues.

See Lindsey, 939 So.2d at 748 (¶ 18).

¶ 8. Counsel sent a copy of his brief to Bowlin and informed him that he had a right to file a pro se brief. See id. Bowlin filed one, alleging that his trial counsel was ineffective for various reasons. Bowlin’s ineffective-assistance-of-counsel allegations are better left for an application for post-conviction relief, should he choose to pursue that potential avenue of relief.

Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. Wilcher v. State, 863 So.2d 776, 825 (Miss.2003). In such a case, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss.1983).

Archer v. State, 986 So.2d 951, 955 (¶ 15) (Miss.2008). Accordingly, we dismiss Bowlin’s ineffective-assistance-of-counsel claim without prejudice and preserve his right to pursue the issue in a petition for post-conviction relief.

¶ 9. Pursuant to Lindsey, 939 So.2d at 748 (¶ 18), it is our duty to conduct an independent review of the record and determine whether there is any arguable issue on appeal, and, if so, to require supplemental briefing on that issue. Having studied the entire transcript and record, we find that there are no viable issues to be argued on Bowlin’s behalf on appeal.

CONCLUSION

¶ 10. Richard Bowlin’s appellate counsel has complied with the procedural mandates outlined in Lindsey, 939 So.2d at 743. After an independent and thorough review of the record, we find that there are no reversible issues on appeal, and that Bowlin’s convictions and sentences for three counts of sale or transfer of controlled substances should be, and hereby are, affirmed.

¶11. COUNT I: CONVICTION OF THE SALE OF HYDROMORPHONE AND SENTENCE OF THIRTY (30) YEARS, AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE SHALL NOT BE REDUCED, NOR SUSPENDED; NOR SHALL THE APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION. THE APPELLANT SHALL PAY A FINE OF $1,000,000. COUNT II: CONVICTION OF THE SALE OF MEPERIDINE AND SENTENCE OF THIRTY (30) YEARS, AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE SHALL NOT BE REDUCED, NOR SUSPENDED; NOR SHALL THE APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION. THE APPELLANT SHALL PAY A FINE OF $1,000,000. SAID SENTENCE SHALL RUN CONCURRENTLY WITH THE SENTENCE IMPOSED IN COUNT I. COUNT III: CONVICTION OF THE SALE OF OXYCODONE AND SENTENCE OF THIRTY (30) YEARS, AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE SHALL NOT BE REDUCED, NOR SUSPENDED; NOR SHALL THE APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION. THE APPELLANT SHALL PAY A FINE OF $1,000,000. SAID SENTENCE SHALL RUN CONCURRENTLY WITH THE SENTENCES IMPOSED IN COUNTS I AND II.

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

      . Most of the facts concerning the purchase are taken from Matthews’s testimony and the audio and video recording of the drug buy in question.

      . The serial numbers of the bills had been recorded by the agents.

      . We note that trial counsel for Bowlin was able to persuade the prosecuting attorney, Forrest Allgood, to retire to the files several charges for possession of controlled substances with intent to distribute. Had Bowlin been convicted of those charges, he would have been in jeopardy of several sixty-year sentences, which would have made it unlikely that he would ever achieve eligibility for release from prison.


author: JAMES, J., GRIFFIS, P.J.,

text:
    Cheri W. HEFLIN, Appellant v. Stephen MERRILL and/or The Estate of Stephen Merrill and Nationwide Insurance Company, Appellees.
    No. 2012-CA-00663-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.
    Rehearing Denied Feb. 11, 2014.

      Nicholas Van Wiser, Biloxi, Matthew G. Mestayer, attorneys for appellant.

      William L. McDonough Jr., Biloxi, Jeremy Dale Hawk, Jackson, Nicholas Kane Thompson, Hattiesburg, James Leroy Banks IV, Jackson, attorneys for appel-lees.
    Before IRVING, P.J., CARLTON and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Cheri Heflin appeals the decision of a jury in the Harrison County Circuit Court awarding her $32,500 in damages for injuries sustained in a vehicle accident. Arguing that she was entitled to $76,000, she appeals, raising four issues: (1) the circuit court erred in granting Nationwide Insurance Company’s motion in limine and excluding from evidence Nationwide’s name and the existence of Heflin’s uninsured-motorist policy, but permitting counsel for Nationwide to participate in the trial; (2) the circuit court erred in excluding testimony regarding the speed at which Stephen Merrill was traveling at the time of the accident; (3) the circuit court erred in excluding statements made by Merrill to Heflin’s husband, Mike Heflin, immediately following the accident; and (4) the circuit court erred in denying Hef-lin’s motion for a new trial due to cumulative errors. Upon review, we And no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 21, 2005, Mike was driving his 2005 Ford F-150 truck with his wife, Heflin, in the passenger seat. While the Heflins were at a complete stop, Merrill hit the Heflins’ truck from behind. Merrill was driving a 2004 Mercedes ML 350 SUV owned by Frank Ciuffetelli. Ci-uffetelli’s SUV was covered by an Allstate insurance policy. The Heflins’ truck was covered by an uninsured/underinsured motorist (UM) policy, with Nation-wide.

¶ 3. On August 29, 2007, Heflin filed a complaint against Merrill and/or Merrill’s estate, Nationwide, and Ciuffetelli. Hef-lin alleged that Merrill was liable due to his negligent operation of the vehicle. She further alleged that her insurance provider, Nationwide, was liable under the provisions of the UM clause of her policy. Finally, Heflin alleged that Ciuffetelli was liable under a theory of negligent entrustment and/or respondeat superior because he owned the vehicle that caused the accident and had allegedly given Merrill permission to use the vehicle.

114. According to Heflin, she suffered from temporomandibular joint disorder (TMJ) as a result of the accident. Heflin claims that she presented evidence that her out-of-pocket medical bills were $40,000, and that she anticipated $100,000 in future medical bills. On February 5, 2010, Nationwide filed its designation of an expert witness, which was subsequently joined by Merrill’s estate and Ciuffetelli, designating Robert T. Watts, DMD., as an expert. On February 10, 2010, Heflin filed her designation of expert witnesses, designating the following experts: Dr. Elmer Gaudet Jr., Helfln’s treating orthodontist; and Dr. Edward Boos, DDS, Heflin’s treating dentist and oral surgeon.

¶ 5. On October 3, 2011, Nationwide filed a motion in limine, which stated:

Nationwide ... has offered to stipulate [that] the policy made the subject of this suit was in full force and effect at the time of the subject accident and that it will be responsible for payment of any final judgment in excess of the liability coverage limit of [Merrill’s estate]. The existence of the Nationwide ... policy would have no relevance to any issue to be decided by the jury and should therefore be excluded under Mississippi Rule[s] of Evidence 402, 403, and 411.

On October 5, 2011, the circuit court granted Nationwide’s motion in limine, prevent ing any mention to the jury of Nationwide’s presence as a party to the lawsuit and any mention of the existence of the Heflins’ UM policy with Nationwide. On October 6, 2011, the parties entered into a stipulation, which read:

The parties agree and stipulate as follows:

At the time of the accident, [Heflin] was insured by [Nationwide.] She maintained, through her husband, ... an uninsured motorist (UM) policy with a policy limit of up to $600,000.00. Additionally, [Merrill] at the time of the accident qualified as an owner or occupier of an under insured motor vehicle and that any final judgment for [Heflin], if any, in excess of the insurance carrier by [Merrill], if any, would be the responsibility of [Nationwide] up to the policy limits of $600,000.00.

This stipulation was signed by counsel for each party and the circuit court judge.

¶ 6. On October 6, 2011, a trial was held on damages only. Heflin sought $76,000 in damages. On October 7, 2011, the jury-returned a $32,500 verdict for Heflin. On October 14, 2011, the circuit court entered a judgment on the jury’s verdict, awarding Heflin $32,500, plus eight percent interest per year until paid.

¶ 7. On October 25, 2011, Heflin filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for an additur or a new trial. She argued that the jury’s verdict of $32,500 did not fairly represent the evidence presented and evinced prejudice, passion, or bias. The motion was denied. Heflin now appeals.

DISCUSSION

I. Whether the circuit court erred in granting Nationwide’s motion in limine, preventing disclosure to the jury of Nationwide’s name and the existence of Heflin’s UM policy through Nationwide, but permitting counsel for Nationwide to participate in the trial.

¶ 8. This Court “will reverse [the circuit] court’s denial or grant of a motion in limine only if the court abused its discretion in denying or granting the motion.” Wright v. Royal Carpet Servs., 29 So.3d 109, 115 (¶ 13) (Miss.Ct.App.2010). When granting a motion in limine, the circuit court must first find the following two factors present: “(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Id. (quoting Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988)).

¶ 9. Under Rule 401 of the Mississippi Rules of Evidence, “‘[relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Further, “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Mississippi, or by these rules. Evidence which is not relevant is not admissible.” M.R.E. 402. However, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403.

¶ 10. In the case before us, the Mercedes driven by Merrill was insured by Allstate. Nationwide was named as a defendant in the suit because it provided UM coverage to the Heflins. Nationwide filed a motion in limine to exclude any mention of Nationwide’s presence as a party to the lawsuit and to exclude the existence of the Heflins’ UM policy with Nationwide. In support of its motion in limine, Nationwide noted the stipulation agreed to by the parties, which stated “that any final judgment for [Heflin], if any, in excess of the insurance carrier by [Merrill], if any, would be the responsibility of [Nationwide] up to the policy limits of $600,000.00.”

¶ 11. After hearing arguments from both sides, the circuit court granted Nationwide’s motion in limine, finding as follows:

With regard to the initial motion, based on the parties’ assertions, this issue has not been addressed by our state appellate courts. Though I do recognize there are different approaches to the instant issue with those approaches being extra jurisdictional approaches, I do understand, and it’s the view of this court that based on the circumstances of this particular case[,] where liability is admitted[,] and taking into account the stipulation agreed to by and between the parties, it is the extent of the plaintiffs injuries, if any, that are relevant to [the] instant litigation.
Whether or not UM coverage exists is not relevant. And it’s the court’s opinion that introducing that issue along with the existence of Nationwide[’s coverage] ... to the jury would potentially prejudice that jury as to a determination of damages. Therefore[,] Nationwide’s motion in li-mine is granted.

(Emphasis added).

¶ 12. We find that the circuit court was within its discretion to exclude Nationwide’s policy because the parties stipulated that Nationwide would be responsible for any amount not covered by Allstate up to Heflin’s policy limits. Additionally, liability was not an issue in the case. Instead, the only issue litigated and presented to the jury was the amount of damages. Therefore, there was no reason for the jury to consider the Nationwide UM policy. Admitting such evidence could only serve to possibly inflate or deflate a verdict or confuse the jury. As such, we find that the Nationwide policy was properly excluded. In response to the dissenting opinion, this Court finds the circuit court based its ruling on the limited facts in this case, where liability was admitted and there was a stipulation between the parties. The circuit court also recognized that this issue had not been addressed by our state appellate courts. This issue is without merit.

II. Whether the circuit court erred in excluding Mike’s testimony regarding the speed at which Merrill was traveling at the time of the accident.

¶ 13. “A circuit court’s admission or exclusion of evidence is reviewed for abuse of discretion.” Harrison v. Walker, 91 So.3d 41, 44 (¶ 13) (Miss.Ct. App.2011). This Court “will not reverse the admission or exclusion of evidence unless the error adversely affects a substantial right of a party.” Id. at 45 (¶ 13).

¶ 14. Heflin argues that the speed of Merrill’s vehicle was relevant to her damages, and that the circuit court erred in excluding such evidence. At trial, the following exchange took place while Mike was on the witness stand:

Q: Okay. When you’re sitting there at the stop sign watching the traffic coming from the north on your left there, did you have any indication that there was about to be a wreck?
A: ... I was watching traffic to the north that was coming from the north to the south. And I had glanced back and glanced in my rearview mirror and saw Mr. Merrill as he was barreling down on top of us. And I knew at [that] instant that we were fixing to be hit.
Q: Where did you see him, I mean, in the rearview mirror?
A: I saw him in the rearview mirror. And it was just a glance just before it happened.
Q: Okay. How hard did it hit you?
■ A: It hit us real hard, did a lot of damage to the back of my truck. I was concerned that it was going to push us out into the traffic ... so I instinctively stepped on the brakes really hard and braced myself.
Q: Do you have an opinion as to how fast the Mercedes was going when it hit the back of your truck?

At that point, counsel for Merill’s estate objected, arguing the following:

[COUNSEL FOR MERRILL’S ESTATE]: Objection, Your Honor. I don’t think Mr. Heflin is qualified to render opinions about the speed of motor vehicles that he sees in the rearview mirror of his truck. He has no expertise or training in that regard, and he certainly hasn’t been designated as an expert in that field.
THE COURT: What says the plaintiff as to that calling for speculation?
[COUNSEL FOR HEFLIN]: Your Honor, he was there. This is not like an accident reconstructionist. This is not based upon certain things that an expert would know. He was in the truck. He ... saw the car coming. I’ll be happy to give a little bit more of his background in terms of what he’s basing this on. But first of all I just asked if he had an opinion. I think he’s entitled to have an opinion. And it’s certainly subject to cross-examination. And they can find out whether or not he has [a] basis for that.
THE COURT: All right. I [will] allow him to answer as to whether he has an opinion or not. And then the further questioning with regard to that opinion, you may make your objection if you so see it fit, defense.
[COUNSEL FOR MERRILL’S ESTATE]: Yes, Your Honor.
Q: Do you have an opinion as to how fast he was going?
A: Ido. He—
[COUNSEL FOR MERRILL’S ESTATE]: Objection, Your Honor.
THE. COURT: The objection is sustained.

The direct examination of Mike continued as follows:

Q: Okay. Without saying what that opinion is, okay. We’re going to take baby steps here. Tell me the various things that you are relying upon in formulating that opinion....
A: ... Speed limit on the road was 25 miles per hour. When our truck was hit, it actually hit us with such force that it pulled concrete or the pavement — the asphalt on the road where the tire had locked into the pavement and pushed us forward.
Q: Let me stop you right there. I want to refer you to Plaintiffs Exhibit Number 20. Have you ever seen that before?
A: Yes, I have.
Q: What is that for the jury?
A: It’s a picture ‘of a tire mark on a white line.
Q: Is that what you were talking about where the tire dug into the asphalt?
A: That’s correct. I believe that’s it.
Q: Go ahead.
A: Mr. Merrill had stated after we had gotten out of the car that he did not see our vehicle, that he had actually [sic] was looking to the north watching traffic, and that he was speeding into the southbound lane....

¶ 15. After reviewing the transcript, it appears that no proffer was made regarding the speed of Merrill’s vehicle. “When a trial court prevents the introduction of certain evidence, it is incumbent on the offering party to make a proffer of the potential testimony of the witness or the point is waived for appellate review.” Redhead v. Entergy Miss., Inc., 828 So.2d 801, 808 (¶ 20) (Miss.Ct.App.2001); see also M.R.E. 103(a)(2) (“Error may not be predicated upon a ruling which ... excludes evidences unless a substantial right of the party is affected, and ... the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.”). “To preserve the excluded testimony for appeal, a proffer would have to [be] made so this Court would know what testimony was excluded.” Redhead, 828 So.2d at 808 (¶ 20). We find that the speed issue is waived because it was not properly preserved for appeal. Accordingly, we affirm the circuit court’s holding on this issue. In response to the dissenting opinion, the circuit court did not allow testimony concerning speed based on what Mike observed by “glanc[ing]” in his rearview mirror. However, the circuit court did allow Mike to testify about the objective evidence of speed that he observed, such as the tire marks shown in Plaintiffs Exhibit Number 20. The car was traveling behind Heflin, and Heflin only saw the car at a glance. There is nothing apparent in the record that shows that Mike had a chance to observe the speed of the car and that he was prevented from testifying about it. Also, there was no proffer on anything Mike objectively observed.

III. Whether the circuit court erred in excluding statements made by Merrill to Mike immediately following the accident.

¶ 16. Heflin argues that the circuit court erred in excluding as hearsay statements made by Merrill to Mike right after the accident. Merrill’s estate argues that the statements were properly excluded because Merrill was not available for cross-examination, and the statements were not relevant since liability was not. an issue.

¶ 17. Under our rules of evidence, “ ‘[h]earsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). “Hearsay is not admissible except as provided by law.” M.R.E. 802. Under Rule 801(d)(2)(A) of the Mississippi Rules of Evidence, a statement is “not hearsay” if it qualifies as an admission by a party-opponent, which occurs when “[t]he statement is offered against a party and is ... the party’s own statement, in either an individual or a representative capacity[.]” However, even if a statement is “not hearsay,” and even if it is relevant under Rule 401, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” M.R.E. 403.

¶ 18. At trial, the following- exchange took place while Mike was on the witness stand:

Q: Let me stop you right there. I want to refer you to Plaintiffs Exhibit Number 20. Have you ever seen that before?
A: Yes, I have.
Q: What is that for the jury?
A: It’s a picture of a tire mark on a white line.
Q: Is that what you were talking about where the tire dug into the asphalt? A: That’s correct. I believe that’s it.
Q: Go ahead.
A: Mr. Merrill had stated after we had gotten out of the car that he did not see our vehicle, that he had actually [sic] was looking to the north watching traffic, and that he wás speeding into the southbound lane to where he could—
[COUNSEL FOR MERRILL’S ESTATE]: Your Honor, I’m going to object. That’s hearsay testimony.
[COUNSEL FOR HEFLIN]: Your Honor, that’s an admission by a party opponent and it’s defined under the rules and not hearsay.
[COUNSEL FOR MERRILL’S ESTATE]: But he’s not here to be cross-examined or defend that statement. I mean, they could just say whatever they want to say that he [said] at the accident scene.
THE COURT: Take out the jury. (Jury out).
THE COURT: All right. What’s the basis for the objection?
[COUNSEL FOR MERRILL’S ESTATE]: Your Honor, he’s asking the witness to — well, the witness stated that Mr. Merrill made certain statements about his operation of a motor vehicle while he was alive. And the objection is, it’s a hearsay objection, Your Honor.
THE COURT: All right. Go ahead and make your response to the objection, plaintiff.
[COUNSEL FOR HEFLIN]: If the court please, under Mississippi Rule of Evidence 801(d)(2), the statement [is an] admission by a party opponent. The statement is offered against a party and is the party’s own statement either in an individual or representative capacity, a statement which the party has manifested an adoption or belief in its truth or a statement made by a person authorized.... That is defined under Rule (d) as not hearsay. Now, the fact that he’s not here, in addition to that it has the additional indicia of authenticity and reliableness[,] is the fact that it was made immediately after the wreck when the testimony we’re anticipating will show that Mr. Merrill came up and apologized and said that he was sorry and that — why he didn’t see him, why he didn’t see the Heflinsf] vehicle was because he was in fact accelerating so that he could merge into the traffic on Lorraine Road. That being the case, since Mr. Heflin was there and heard the defendant say it from his own mouth, he’s entitled to relate that to the jury. It’s certainly ... subject to cross-examination on ... the various issues that [counsel for Merrill’s estate] ■ has raised. But it’s not hearsay.
THE COURT: What do you say, defense, as to whether it’s an admission by a party opponent?
[COUNSEL FOR MERRILL’S ESTATE]: ■ Your Honor, number one, we’re admitting liability... against our interest. But number two, we don’t have a statement — I mean, Mr. Merrill can’t be here to confirm or deny. You know, he can’t be asked, did you say this, and he says no and then they go to a witness and the witness says, well, I heard you say it. So that’s admission against interest, Your Honor-I mean, Mr. Merrill is not here to take up for himself and to confirm that he either made this or didn’t or even had a position on it.
THE COURT: [Counsel for Heflin], did you not seek to introduce — was it Merrill’s statement to Ciuffetelli?
[COUNSEL FOR HEFLIN]:' No. That was what I tried to exclude.
THE COURT: And for what grounds did you try to exclude that? How is that different from what’s—
[COUNSEL FOR HEFLIN]: Because Mr. Ciuffetelli was not a party opponent. This was a statement made in the presence, you know, right there at the accident at the time of the accident. In other words[,] they can’t get it in through Ciuffetelli. I can get it in through the Heflins.
THE COURT: What’s the difference?
[COUNSEL FOR HEFLIN]: Well, for one thing[,] it was made at the time of the accident, and I think that since I’m representing the party opponent, I think I could have gotten that statement in if I wanted to, Ciuffetelli, because it is — when it is offered by a party opponent, that’s part of the definition. You can’t put it in if it’s self-serving.
THE COURT: All right. What’s the response to that?
[COUNSEL FOR MERRILL’S ESTATE]: Judge, I think they’re the same. And if it’s a time element, I went back and read — I mean, it was my — Mr. Ciuffetelli says later in his deposition it was two to three minutes. So my position is it would be two to three minutes after this impact. And so the time element is exactly the same, Your Honor.
THE COURT: ... [W]hat is the anticipated substance of the statement you seek to introduce?
[COUNSEL FOR HEFLIN]: We are anticipating that Mr. Heflin is going to say that Mr. Merrill told him, came up to him right after the accident and said to the effect, gee whiz, I’m really sorry, I didn’t even see you. I was watching the traffic coming from the north and was accelerating into the turning lane so that I could merge. This is part of the — and we’ve got some authorities on the issue of his qualifications to testify as to the speed of the vehicle we might as well get to while we’ve got the jury out. But so as a part of that, it explains why he was not slowing to stop, and this was not a question of a gentle tap. The issue of, although they have admitted liability, the issue of damages and the speed of the vehicle and as a result the credibility of Ms. Heflin’s testimony in terms of the extent of the injuries is directly related to the speed of the impact at the time. And so that being the case, what the defendant said at the scene of the accident to the plaintiffs husband is relevant and is not hearsay.
THE COURT: Any response ... ?
[COUNSEL FOR MERRILL’S ESTATE]: I’m just trying to get it clear in my head.... [A]re you trying to say that my guy was going to run the stop sign? Because that’s not a merge only deal. There’s a stop sign there. And you say that he was going to just merge into traffic and go around the Heflin vehicle?
[COUNSEL FOR HEFLIN]: That’s what it sounds like from the testimony that Mr. Heflin will give. I don’t know if he would have or not. He certainly was not going to do it with a Ford F-150 in his way.
[COUNSEL FOR MERRILL’S ESTATE]: That’s why it’s so preposterous. And Mr. Merrill not being here—
THE COURT: All right. Don’t argue with each other. What is your legal argument ... ?
[COUNSEL FOR MERRILL’S ESTATE]: I mean, I’m sticking with it’s a hearsay objection, Your Honor. My guy is not available to be cross-examined about it. And so they could — I mean, anyone, any witness could just make up whatever he said at the scene. We have nothing to base it on other than a witness’s testimony.
[COUNSEL FOR HEFLIN]: Availability of a witness is not a criterion for the determination of the definition of an admission by a party opponent as not being hearsay. It doesn’t matter whether the party is available or not. It is merely a statement offered by a party opponent of what his opponent says. It is not hearsay.
THE COURT: All right. Give me five minutes. I’ll be out with a ruling. Mr. Heflin, you’re still on the witness stand, sir. Please don’t discuss your testimony with anyone....
(Pause in proceedings)
THE COURT: Okay. With regard to the instant objection, although the court sees it as an admission of a party opponent, I think in light of the fact that the person who made the statement is now deceased and that the defendant has admitted liability, I feel the statement, if introduced to the jury, will serve only to inflame and confuse as to the issues. Accordingly, the objection is sustained. Let’s bring the jury in.
[COUNSEL FOR HEFLIN]: Could I go ahead and put on the proffer of what the testimony was going to be then?
THE COURT: Yeah.

(Emphasis added). A proffer of Mike’s testimony was made as follows:

Q: Mr. Heflin, what that means is that for the purposes of preserving the record, I want you to go ahead and testify about the conversation that you had with the deceased defendant immediately when you got out of your truck.
A: He basically told me, when he got out he said, God, I’m sorry, it was my fault. I was looking to the left. I was watching the traffic. I was fixing to speed [up] and merge into the traffic going south, and I looked up, and you were there, and I hit you.
Q: Okay. Did you have any other conversations with him concerning the accident?
A: Only that it was his fault at that time.
Q: Okay. Did he tell you whether or not he had even hit his brakes?
A: He did not say he hit his brakes.
Q: Did not say that. Just that he never saw you until he hit you.
A: He said he never saw us until he hit us.
Q: Okay. If the court please, that concludes the proffer.

¶ 19. In the case before us, the circuit court properly found that the statements made by Merrill to Mike were not hearsay because they qualified as admissions by a party-opponent under Rule 801(d)(2). However, the circuit court was within its discretion to exclude such statements under Rule 403 because Merrill was not available for cross-examination and because liability was not an issue. We cannot say that the circuit court abused its discretion in excluding such evidence. The dissenting opinion admits that the circuit court was within its discretion under Rule 403 to exclude the admission of a party-opponent since liability is not an issue. However, since liability is not an issue, further confusion would also exist if the evidence were not excluded because Merrill was unavailable for cross-examination. The circuit court, however, placed great weight on the fact that liability had been admitted. This issue is without merit.

IV. Whether the circuit court erred in denying Heflin’s motion for a new trial due to cumulative errors.

¶ 20. Heflin argues that she should have been granted a new trial because of the cumulative effect of the errors cited above. Our standard of review for the grant or denial of a motion for a new trial is as follows:

Rule 59 of the Mississippi Rules of Civil Procedure authorizes the trial judge to set aside a jury verdict as to any or all parts of the issues tried and to grant a new trial whenever ... justice requires.. The grant or denial of a motion for a new trial is a matter within the trial court’s sound discretion. A new trial may be granted in a number of circumstances, such as when the verdict is against the substantial or overwhelming weight of the evidence. On appeal, this Court may reverse the granting [or denial] of a new trial only when the trial court has abused its discretion.

White v. Yellow Freight Sys., Inc., 905 So.2d 506, 510 (¶7) (Miss.2004) (internal citations omitted).

¶ 21. Heflin argues that she should have been granted a new trial based on cumulative errors. Under the cumulative error doctrine, multiple errors at trial, which individually are not reversible, may combine to make reversible error. Blake v. Clein, 903 So.2d 710, 718-19 (¶ 16) (Miss.2005). Because we find no error in the issues raised and addressed above, there can be no cumulative error. Therefore, this issue is without merit.

¶ 22. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

CARLTON, J., CONCURS. IRVING, P.J., BARNES AND ROBERTS, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., MAXWELL AND FAIR, JJ. ISHEE, J., NOT PARTICIPATING.

GRIFFIS, P.J.,

dissenting:

¶ 23. I find reversible error. Therefore, I respectfully dissent.

I. Whether the circuit court erred in granting Nationwide’s motion in limine, preventing the disclosure to the jury of Nationwide’s name and the existence of Heflin’s uninsured motorist policy through Nationwide, but permitting counsel for Nationwide to participate at trial.

¶ 24. Nationwide filed a motion in li-mine that stated:

Nationwide ... moves the court to exclude any reference or comment before the venire or jury related to the insurance policy issued by Nationwide ... made in the subject matter, and to exclude any evidence of the same, and in support thereof would show the following ...:
Nationwide has offered to stipulate the policy made the subject of this suit was in full force and effect at the time of the subject accident and that it will be responsible for payment of any final judgment in excess of the liability coverage limit of Defendant Estate of Stephen Merrill. The existence of the Nationwide Insurance policy would have no relevance to any issue to be decided by the jury and should therefore be excluded under Mississippi Rules of Evidence 402, 403, and 411.

¶ 25. At the hearing, Nationwide argued that the stipulation resolved any issue for the jury to decide about the Nationwide policy. Counsel argued that the mention of the policy would “inject a lot of emotion into this and make it a case against the big old bad Nationwide Insurance Company.” Nationwide also argued that the policy be excluded because it:

would be overly prejudicial and, again, should be excluded under the rules of evidence. And what we would also offer, as we are discussing last week in the pre-trial conference, that under the stipulation to be entered, Nationwide would really play no active part in this other than assisting counsel for Mr. Merrill, that we would not make any separate opening statement, voir dire or closing argument, but we would essentially be in the background assisting counsel for Mr. Merrill if necessary.

Nationwide’s counsel then acknowledged “there’s no Mississippi law that we can ascertain, and it’s kind of a flip of the coin which way the court wants to go, either the Virginia plan where there is no evidence as to the insurance policy or the Florida plan and everything is admissible....”

¶26. Heflin’s counsel objected to the motion. Her counsel argued that had they not brought Nationwide in as a party, then Nationwide would have complained that it did not have the opportunity to participate and protect its rights. Now that it had participated and protected its rights, it wanted to “be hidden from the jury.” She also argued that Nationwide was a proper defendant and the claim was a contractual claim, which the jury is entitled to know about. Thus, the exclusion of Nationwide would mislead the jury and would prejudice Heflin because the jury would think that her claim was only against a dead man’s estate, when it is really a contractual claim against her own insurance company for benefits. Her counsel argued that it was critical to accurately portray the situation and the relationship of the parties to the jury.

¶ 27. Interestingly, the circuit court asked Nationwide’s counsel, “How will we explain the style of the case to the jury if your motion is granted?” Counsel responded: Nationwide would simply come off the pleadings. It would not be there. Then it would be a suit reflecting the true dispute, that being the amount of damages that the plaintiff is entitled to. So Nationwide would not be — the jury would not need to know why Nationwide is here because there would be no appearance that Nationwide was in fact her.

¶ 28. The circuit judge held:

[T]his issue has not been addressed by our state appellate courts. Though I do recognize there are different approaches to the instant issue with those approaches being extra jurisdictional approaches, I do understand, and it’s the view of this court that based on the circumstances of this particular ease where liability is admitted and taking into account the stipulation agreed to by and between the parties, it is the extent of the plaintiffs injuries, if any, that are relevant to [the] instant litigation.
Whether or not UM coverage exists is not relevant. And it’s the court’s opinion that introducing that issue along with the existence of Nationwide Insurance Company to the jury would potentially prejudice that [the] jury as to a determination of damages. Therefore Nationwide’s motion in limine is granted.

¶29. The majority affirmed and held that “the circuit court was within its discretion to exclude Nationwide’s policy because the parties stipulated that Nationwide would be responsible for any amount not covered by Allstate up to Heflin’s policy limits.” I respectfully disagree with and dissent from this conclusion.

¶ 80. The parties and the circuit court recognize that this is an issue of first impression in Mississippi. The majority' cites no Mississippi case authority for this holding.

¶ 81. The circuit court and the majority have treated this issue as an evidentiary issue, governed by the Mississippi Rules of Evidence. I believe that the circuit court’s decision involved a procedural issue, and there is no authority for the circuit court to exclude the mention of a properly named party from the venire or the jury. Heflin properly brought a claim against Nationwide, Nationwide was present at the trial, Nationwide participated in the trial, and as a result, Nationwide should be disclosed as a party in the litigation.

¶ 32. Considering this case from an evi-dentiary perspective, we must note that this case is not an issue about the admissibility of liability insurance. Mississippi Rule of Evidence 411 provides:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Rule 411 does not decide this issue. Similarly, this is not an issue about the admissibility of evidence to show possible bias of a witness. See Wells v. Tucker, 997 So.2d 908, 914-17 (¶¶ 22-30) (Miss.2008); M.R.E. 616.

¶ 33. Mississippi Rule of Evidence 402 provides that “[a]ll relevant evidence is admissible_Evidence which is not relevant is not admissible.” Rule 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” The circuit court determined “that introducing that issue along with the existence of Nationwide Insurance Company to the jury would potentially prejudice [the] jury as to a determination of damages.” Clearly, the circuit court used an incorrect standard. The question to decide is not whether the evidence would, as the circuit court held, “potentially prejudice” the jury; instead, Rule 403 allows the court to exclude evidence where “the probative value is sub stantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” (Emphasis added).

¶ 34. We must recognize that Nationwide was a properly named defendant in the lawsuit. Nationwide was sued for payment under its insurance policy, to provide underinsured motorist coverage. Heflin had a viable direct action against Nationwide. I am aware of no case that has held that a court, under the Mississippi Rules of Evidence, may exclude the mention of a party’s name because it may potentially prejudice the jury.

¶ 35. Heflin’s complaint asserted two separate claims. She brought a negligence claim against Merrill, as the person who caused the accident. She also brought what is called a “direct action” against Nationwide, her insurance carrier. This was a contractual claim for uninsured or underinsured benefits.

¶ 36. The joinder of Merrill and Nationwide as defendants in the same action was proper under Mississippi Rule of Civil Procedure 20. Therefore, she was entitled to present both claims to the jury. Nationwide could have, but did not, filed a motion for a separate trial under Rule 20(b) or to sever the claims under Mississippi Rule of Civil Procedure 21. Nationwide did not.

¶ 37. The question here, which has not been addressed in any Mississippi decision, is whether an uninsured or underinsured motorist insurer should be identified to the jury at trial when it has been named a party to a lawsuit. The parties recognized that other states have considered this issue and reached different results.

A. Virginia

¶ 38. Virginia does not allow an uninsured motorist insurer to be revealed to the jury in a lawsuit for personal injuries arising from an automobile accident where the tortfeasor is uninsured or underin-sured. In Travelers Ins. Co. v. Lobello, 212 Va. 534, 186 S.E.2d 80 (1972), the plaintiff sued three defendants on the basis of negligence for personal injuries suffered from a four-car accident. One of the defendants, Alfred Shelton, was uninsured. As a result, the plaintiff served a copy of the complaint on his own uninsured motorist carrier, Travelers Insurance Company. Travelers then filed an answer and defenses and participated as a defendant in the case.

¶ 39. At trial, Travelers received permission from the trial court to inform the jury that it was the plaintiffs uninsured motorist carrier, that Shelton was an uninsured motorist, and that Travelers was assisting Shelton in his defense of the matter. Id. at 82. The jury was further informed that Travelers would be responsible for the payment of any verdict rendered against Shelton in favor of the plaintiff. Id. Following the trial, the jury awarded $15,000 against Shelton and a second defendant, jointly and severally.

¶ 40. The Virginia Supreme Court found that it was error “to permit the injection of insurance into the case,” stating that “where two or more defendants may be jointly and severally liable, to say that one defendant has ‘insurance backing’ is to create a situation permitting the return of a possibly inflated verdict binding upon all defendants so liable.” Id. The court also held that Travelers’ attorney should have only been permitted to tell the jury, without identifying himself as insurance counsel, that he was present to assist Shelton in his defense. The court found that this would have sufficiently explained his presence and would have not have prejudiced any of the litigants. Id.

¶ 41. Virginia does not allow a direct action by an insured against his or her uninsured motorist insurer for alleged personal injuries suffered as a result of an accident with an uninsured tortfeasor. Virginia’s uninsured motorist law provides:

A. Except as provided in subsection J of this section, no policy or contract of bodily injury or property damage liability insurance relating to the ownership, maintenance, or use of a motor vehicle shall be issued or delivered in this Commonwealth to the owner of such vehicle ... unless it contains an endorsement or provisions undertaking to pay the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle....
F. If any action is instituted against the owner or operator of an uninsured or underinsured motor vehicle by any insured intending to rely on the uninsured or underinsured coverage provision or endorsement of this policy under which the insured is making a claim, then the insured shall serve a copy of the process upon this insurer in the manner prescribed by law, as though the insurer were a party defendant ... The insurer shall then have the right to file pleadings and take other action allowable by law in the name of the owner or operator of the uninsured or underin-sured motor vehicle or in its own name.

Va.Code Ann. § 38.2-2206(A) & (F) (2012). The courts of Virginia have interpreted this section to mean that an injured party seeking to recover through uninsured motorist coverage must show that a judgment has been obtained against an uninsured motorist before there can be any recovery against an insurer. Macci v. Allstate Ins. Co., 917 A.2d 634, 636 (D.C.2007). “[Ejection 38.2-2206 effectively bars direct action solely against an insurance carrier for uninsured motorist coverage.” Conteh v. Allstate Insurance Co., 782 A.2d 748, 751 (D.C.2001)

¶ 42. Unlike Mississippi, in Virginia, an insured has no right to bring a direct action against his or her uninsured motorist insurer until there has been a judgment against the uninsured tortfeasor. This leads to the conclusion that an uninsured motorist carrier should not be identified to the jury during a trial because the carrier is not a named party to the action and the insured only has an action against the carrier once a judgment has been rendered against the tortfeasor.

B. Florida

¶ 43. Under Florida law, the jury should always be made aware that the uninsured motorist carrier is a party to the lawsuit when the carrier is properly sued and/or joined in the action. Smith v. Baker, 704 So.2d 567, 568 (Fla.Dist.Ct.App. 1997). In fact, it is reversible error for a trial court to exclude from the jury the identity of the uninsured motorist carrier when that carrier has been made a party. Medina v. Peralta, 724 So.2d 1188, 1190 (Fla.1999). An uninsured motorist carrier that is lawfully sued by a plaintiff and properly joined as a party to the lawsuit must be disclosed to the jury as a party defendant (as opposed to being identified as a co-counsel for the tortfeasor). , Id. at 1189.

¶ 44. The reasoning behind such a rule is:

An uninsured or underinsured motorist carrier should not be able to hide its true identity by being severed from the lawsuit while retaining its influence over the conduct of the lawsuit as co-counsel for the tortfeasor. In this case, this procedure seems inherently unfair to the plaintiff, deceptive to the jury, contrary to the insurance contract entered into between the plaintiff and its insurer, and contrary to statute.

Krawzak v. Gov’t Employees Ins. Co., 660 So.2d 306, 810 (Fla.Dist.Ct.App.1995), approved, 675 So.2d 115 (Fla.1996). Said differently, when an uninsured motorist carrier is made a defendant party or otherwise participates in the lawsuit by lining up against the plaintiff, it is inherently unfair and prejudicial to the plaintiff and a deception upon the jury to not allow identification of the carrier in the action.

¶ 45. Florida, like Mississippi, allows an insured to bring a direct action against his or her uninsured motorist carrier. See Fla. Stat. § 627.727(8) (2006) (“The provisions of s. 627.428 do not apply to any action brought pursuant to this section against the uninsured motorist insurer unless there is a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident.”); see also Krawzak, 660 So.2d at 309 (“By contract, as well as by statute, plaintiff has a direct action against GEICO as her underinsured motorist carrier.”).

C. Mississippi

¶ 46. I am of the opinion that Mississippi should follow the reasoning followed by Florida. Mississippi allows an insured to bring a direct action against his or her own uninsured motorist carrier without first having to obtain a judgment against the uninsured tortfeasor. See, e.g., Vaughn v. State Farm Mut. Auto. Ins. Co., 445 So.2d 224, 226 (Miss.1984); Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So.2d 456, 460 (Miss.1971); Farned v. Aetna Cas. & Sur. Co., 263 So.2d 790, 791 (Miss.1972); Hodges v. Canal Ins. Co., 223 So.2d 630, 634 (Miss.1969).

¶ 47. Heflin’s complaint asserted a negligence claim against Merrill and a contractual claim against Nationwide. Nationwide has defended its interests and fully participated throughout the litigation. Nationwide, even after this ruling, participated at trial by cross-examining a witness and making objections. The interests of justice require that the identity and role of Nationwide be revealed to the jury.

¶ 48. Heflin was completely within her right, under Mississippi law, to name Nationwide as a party to the action and seek relief against Nationwide. Similarly, Nationwide was completely within its right to defend this action and attempt to limit its liability. To allow Nationwide to participate in the trial, yet not be disclosed to the jury, in my opinion was reversible error. It seems to me that Nationwide’s motion in limine was not an evidentiary motion, but instead was an attempt to sever the claims under Rule 21. The circuit judge could have severed the claims, but I do not believe it was within the circuit judge’s discretion to exclude all references to Nationwide from the jury.

¶ 49. As to this issue, I would reverse and remand for a new trial.

II. Whether the circuit court erred in excluding Mike’s testimony regarding the speed at which Merrill was traveling at the time of the accident.

¶ 50. In this issue, Heflin argues that the circuit court was in error when it excluded Mike’s testimony as to his opinion of the speed at which Merrill was traveling when he hit the vehicle from behind. The majority concluded that “the speed issue is waived because it was not properly preserved for appeal.” I disagree with this conclusion.

¶ 51. To preserve an error involving the exclusion of evidence, the substance of the evidence must either be made known by an offer of proof (proffer) or must be apparent from the context of the record. Lacy v. State, 700 So.2d 602, 606 (Miss.1997) (citing M.R.E. 103(a)(2)). Here, there was no proffer of Mike’s testimony. However, the evidence was “apparent from the context of the record” that Mike was going to give his opinion that Merrill was driving fast immediately before the accident. I would find that the issue is properly preserved for appeal.

¶ 52. At trial, the objection to this evidence was that it was improper opinion evidence and speculation. Mississippi law on this issue is well settled: “[A] layperson is competent to offer an opinion as to the rate of speed of a moving car. However, such testimony must pertain to the speed of the offending vehicle at the time, or just prior to the collision.” Moore v. State, 816 So.2d 1022, 1028 (¶ 19) (Miss.Ct.App.2002) (internal citation omitted).

¶ 58. I am of the opinion it was error for the circuit court to exclude Mike’s testimony as to the speed of Merrill’s vehicle on the grounds that it was speculation or not proper opinion testimony. If this case were remanded for a new trial, I would instruct the trial judge to admit such evidence.

¶ 54. I am not of the opinion, however, that this error was sufficiently prejudicial to be reversible error. Recently, we considered the proper manner in which to review error in the admission of evidence.

Having concluded the trial court erred, we must next turn to the question of whether the error is prejudicial. We will reverse on the erroneous admission of evidence only where “a substantial right of a party is affected.” Errors in the admission of evidence are subject to a harmless error analysis because, as is often said, a defendant is entitled to a fair trial, not a perfect one. An error is harmless when “the same result would have been reached had it not existed.” We review the record de novo to determine the error’s effect.

James v. State, 124 So.3d 693, 699 (¶ 18) (Miss.Ct.App.2013) (internal citations omitted). Applying this standard, I could not say that a different result would have been reached if this error had not existed.

III. Whether the circuit court erred in excluding statements made by Merrill to Mike immediately following the accident.

¶ 55. I concur with the majority’s conclusion that the trial court correctly found that Merrill’s statements to Mike after the accident were not hearsay because they qualified as admissions by a party-opponent under Mississippi Rule of Evidence 801(d)(2). The majority then holds “the circuit court was within its discretion to exclude such statements under Rule 403 because Merrill was not available for cross-examination and because liability was not an issue.” I agree with the majority that the circuit court was within its discretion to exclude such statements, under Rule 403, because liability was not in issue. However, there was no legal or factual basis, under Rule 403 or any other authority, for the circuit court to exclude an admission of a party-opponent “because [he] was not available for cross-examination.” This is an incorrect statement of and application of the law.

¶ 56. As stated above, if this case were remanded, I would instruct the circuit court to consider whether to allow such statements to be admitted, but on proper grounds. Without remand for other reasons, however, I do not find this error to be reversible.

LEE, C.J., MAXWELL and FAIR, JJ., JOIN THIS OPINION,

      . On July 13, 2005, Merrill passed away due to circumstances unrelated to the wreck; therefore, Heflin named Merrill's estate as a defendant.

      . Ciuffetelli was eventually dismissed without prejudice from the suit by agreement of the parties.

      . We also note that at least one other jurisdiction has held that an insurance carrier is "not allowed to inform the jury that it was the uninsured motorist carrier for the plaintiff [or] that it would be the source of payment for any damages the jury might award.” See Allstate Ins. Co. v. Wade, 265 Va. 383, 579 S.E.2d 180, 183 (2003) (citing Travelers Ins. Co. v. Lobello, 212 Va. 534, 186 S.E.2d 80, 82 (1972)).