author: PER CURIAM.

text:
    STATE of Louisiana, Respondent v. Breonne WHITAKER, Applicant
    No. 51,632-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 25, 2017
    BREONNE WHITAKER, Pro'Se
    JAMES E. STEWART, SR., District Attorney, REBECCA A. EDWARDS, WILLIAM J. EDWARDS, Assistant District Attorneys, Counsel for Respondent
    Before WILLIAMS, DREW, and STONE, JJ.
   PER CURIAM.

| ¶ This appeal arises from 'the defendant’s conviction and sentence for second degree murder. A review of the appellate record reveals that the'district court failed to rule on the defendant’s motion for post-verdict judgment of acquittal prior to sentencing the defendant, in accordance with La. C. Cr. P. art. 821.

Accordingly, the defendant’s sentence is hereby vacated, the appeal is dismissed and the matter is remanded to the trial court for further proceedings. The defendant’s motions to supplement the record are denied as moot. The defendant may appeal any adverse rulings or any sentence subsequently imposed. State v. Thomas, 50,085 (La.App. 2 Cir. 5/1/15), 166 So.3d 379; State v. Jackson, 614 So.2d 783 (La.App. 2 Cir. 1993).


source: Caselaw Access Project

author: COX, J. PITMAN, J.,

license: Public Domain

text:
    Randy FREEMAN, Jr., Plaintiff-Appellee v. Adrena JOHNSON, Defendant-Appellant
    No. 51,550-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017

      WILLIE HUNTER, JR. & ASSOCIATES, By: James E. Calhoun, Marcus L. Hunter, Counsel for Appellant
    KNIGHT LAW FIRM, LLC, By: Robert T. Knight, Counsel for Appellee
    Before BROWN, PITMAN, and COX, JJ.
   COX, J.

11 Appellant and Appellee are the parents of Adalyn Freeman. Shortly after the birth of their daughter in 2012, a considered decree was entered in Natchitoches Parish. No domiciliary status was awarded at the time.

Appellee later relocated to Richland Parish and sought modification of the custody agreement and requested to be named the domiciliary parent. The Appel-lee’s request was granted after a hearing officer conference was conducted, but the Appellant opposed the hearing officer’s recommendation and the matter was set for trial. The trial court maintained the order of the hearing officer, awarding domiciliary status to Appellee.

Appellant now appeals. For the following reasons, we affirm the judgment of the trial court.

FACTS

Randy Freeman, Jr. (“Mr. Freeman”) and Adrena Johnson (“Ms. Johnson”) are the parents of Adalyn Freeman (“Addy”), born September 1, 2012. A Considered Decree regarding custody of the minor child and child support was entered on October 23, 2013, in Natchitoches Parish. The decree awarded the parties joint custody of the minor child and specified that there was no designation of a domiciliary parent at the time. The decree stated that the parties would alternate physical custody of the minor child on alternate weeks, with the exchange taking place on Sunday at 4:00 p.m.

Sometime after the agreement, Mr. Freeman remarried and moved to Rich-land Parish with his new wife. Ms. Johnson currently lives in Baton Rouge.

On August 17, 2015, Mr. Freeman sought to make the Natchitoches Parish judgment executory in Richland Parish and requested that it be ^modified to designate him as the domiciliary parent, with the child to reside primarily with him. Mr. Freeman also requested a finding of contempt against Ms. Johnson.

In response to his motion, Ms. Johnson filed an exception of improper venue and motion for appropriate sanctions, reasonable attorney’s fees, and expenses. That exception was denied. Additionally, Ms. Johnson brought a matter to the Family Court in Baton Rouge, which ultimately ended with her being sanctioned $5,000.00. As of the date of Mr. Freeman’s brief filed with this Court, Ms. Johnson had still not paid that amount.

A Hearing Officer Conference was conducted on April 26, 2016. The Hearing Officer recommended that the existing custody order be modified and that the parties be awarded joint custody of the minor child, with Mr. Freeman designated as the domiciliary parent. On June 1, 2016, Ms. Johnson filed an opposition to recommendation of hearing officer, and trial was set for September 29,2016.

At trial, Mr. Freeman testified that he had lived in Rayville for three years. He had been married to his current wife, Laura Wood, for two years and shared a four-month-old daughter with her named Laila. Laura Wood also has an eleven-year-old daughter, Lalana, from a previous relationship. Additionally, Mr. Freeman has a two-year-old daughter, Aria, from a previous relationship. Mr. Freeman testified that he and Aria’s mother have a good relationship. He stated that he pays child support, although the two do not have a written custody agreement. Mr. Freeman testified that he has a college fund set up for each of his four daughters.

At the time of trial, Mr. Freeman had been employed at Hertz Rental Car as the area manager for six years. He testified that his wife was an | ^independent contractor with State Farm Insurance in Rayville. With their combined incomes, Mr. Freeman stated that they have never had trouble paying their bills and have always paid on time.

Mr. Freeman testified that his family attends Christ Church in West Monroe. They live in a four bedroom home, where Addy has her own bedroom with bunk beds, which she shares with Aria when she comes to visit. Mr. Freeman introduced evidence showing that his daughter was enrolled in tumbling classes. Additionally, Mr. Freeman showed evidence that Addy was on his insurance plan. Mr. Freeman stated that he found a doctor and dentist for his daughter in the Rayville area, and upon learning that his daughter needed glasses, he also found her an eye doctor.

Mr. Freeman testified that he had enrolled Addy in Start Elementary with his wife’s oldest daughter, Lalana. He testified that Addy loved the school and was doing well. He also stated that she was involved in cheerleading at the school. Mr. Freeman stated that he liked the school because it allowed him to bring Addy every other week per the custody arrangement at the time with Ms. Johnson.

Mr. Freeman testified that he began the Richland Parish litigation after Ms. Johnson enrolled their daughter in a school located in Baton Rouge. He stated that Ms. Johnson never gave him any information about the school. He only found out about the school because Ms. Johnson’s tuition check bounced, and the school called him asking for payment. Upon confronting Ms. Johnson, Mr. Freeman testified that she refused to return their daughter. Mr. Freeman stated that after this conversation, he did not see his daughter for three months. He did, however, continue to pay child support.

LMr. Freeman testified that he communicates with Ms. Johnson about their daughter and also shares pictures with her. According to Mr. Freeman, however, his wife and Ms. Johnson do not get along.

With regard to Mr. Freeman’s move to Rayville, he stated that he notified Ms. Johnson of the move. No written documents were exchanged, but he testified that Ms. Johnson agreed to the move, and the two agreed on a new meeting place for the exchange. Mr. Freeman stated they had been exchanging Addy at the new location for roughly two years.

Mr. Freeman testified that he and Ms. Johnson agree on one thing—their daughter needs to be with one parent primarily during the school year. Mr. Freeman believed that he offered the most stable environment to raise his daughter, as Ms. Johnson had moved three times since living in Baton Rouge and had also frequently changed jobs. Although Mr. Freeman does not doubt that Ms. Johnson loves their daughter, he believed he was in a better situation to take care of her at the time.

Mr. Freeman’s wife and mother corroborated his testimony.

Ms. Johnson testified that she enrolled her daughter at the school in Baton Rouge under the advice of her previous attorney. She stated that this was the first time she had not followed a court order and that it would never happen again.

Ms. Johnson, testified that she moved to different apartments because the rent had increased and she is a single parent. Sh.e also testified that she changed jobs because it allowed her to have regular working hours :with weekends off and gave her a more dependable income. Ms. Johnson stated that she was currently a fifth grade teacher at Celerity Charter School where she earned $44,600 per year. With her new job, Ms. Johnson testified that shej was in a better situation to take care of and fully provide for Addy.

With regard to Mr. Freeman’s move to Rayville, Ms. Johnson testified that she did not initially agree to the new meeting place where they would exchange Addy because it was not part of their agreement. However, after arguing back and forth, Ms. Johnson stated that she agreed to the new meeting place because she still wanted Addy to see her-father. Ms. Johnson contended that she has always been willing to promote a close relationship between Mr. Freeman and their daughter.

On cross-examination, Ms. Johnson admitted to not having paid Mr. Freeman the $5,000.00 sanction from Family Court in Batons Rouge. Additionally, several text messages .were introduced at trial, one in which Ms. Johnson stated, “[E]ven though I make more money now it doesn’t seem like it, I can’t catch a break.., I am barely making rent every month ... I’m tired, exhausted and I’m trying to be happy and it just isn’t working.” Another text message read, “I want him to agree to giving me Adalyn legally and he' get visitation and pay me proper amount of CS before he’s outed. Okay, I even want to threaten Laura but I’ve been trying to figure out a way to do it.” Ms. Johnson also conceded that she had moved Addy to four different schools in the four years they have lived in Baton Rouge.

Gilda. Johnson, Ms. Johnson’s, mother, also testified at trial.: She stated that Ms, Johnson and Addy have.-a great relationship. Gilda testified that Ms. Johnson.lived in an apartment where Addy had her own bedroom. She stated that she. was aware Ms. Johnson , had changed apartments and jobs a few times, but to her knowledge, it was always to move to a better apartment or a better job. Additionally, Gilda testified that Ms, Johnson attends church regularly and takes Addy when she has her for the week. If , Ms. Johnson ever Rneeded help with Addy, Gilda stated, that she would always help support her.

.On. crossrexamination, Gilda testified that her daughter had struggled financially since moving to Baton Rouge. She stated that her daughter had bounced checks and had to .moye residences because she could not afford the rent. She also testified that Addy had to change schools in Baton Rouge because Ms. Johnson could not afford the tuition.

After healing the evidence presented by both parties, the Fifth Judicial District Court ordered that Mr, Freeman be granted primary- domiciliary, custody of the minor child with Ms. Johnson being awarded joint custody every other, weekend, with the parties to make the .exchange in Natchez, Mississippi., The judgment also ordered Ms. Johnson to pay $350,00 in child support nine months out of the year. Additionally, Judge Stephens found Ms. Johnson in contempt of the prior orders and judgment of the court and ordered her to pay $750.00, plus court costs.

On December 9, 2016, Ms. Johnson filed an order,for appeal.

LAW

A “considered decree” is an award of permanent custody in which the trial.court receives evidence of parental fitness to exercise care, custody, and con-tool of children. McCaffery v. McCaffery, 13-692 (La. App. 5 Cir. 4/9/14), 140 So.3d 105, writ denied, 2014-0981 (La. 6/13/14), 141 So.3d 273. When a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986). In addition, “when a party seeks to change custody rendered in a considered decree, the proponent of change must not only show that a change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody, but he or she must also meet the burden of proof .set forth in Bergeron." Jaligam v. Pochampally, 2016-0249 (La. App. 4 Cir. 12/7/16), 206 So.3d 298, reh’g denied (Jan. 9, 2017), writ denied, 2017-0255 (La. 3/13/17), 216 So.3d 804, citing Mulkey v. Mulkey, 2012-2709 (La. 5/7/13), 118 So.3d 357.

According to Mulkey, supra, the primary consideration in a determination of child custody is the best interest of the child. La. Civ. Code art. 131. This applies not only in actions setting custody initially, but also in actions to change custody. Mul-key, supra. In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. La. Civ. Code art. 132. The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other ma- • terial needs-.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
h(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express - a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

La. Civ. Code art. 134.

Every child custody case must be viewed within its own peculiar set of facts. McCaffery, supra. “The trial judge is in the best position to ascertain the best interest of the child within each unique set of circumstances.” Id. Thus, a trial court’s determination of custody is entitled to great weight, and it will not be disturbed on appeal absent a clear abuse of discretion. Lee v. Lee, 34,025 (La. App. 2 Cir. 8/25/00), 766 So.2d 723, writ denied, 2000-2680 (La. 11/13/00), 774 So.2d 150.

DISCUSSION

After review of the record, we find that the trial court did not abuse its discretion in awarding Ms. Johnson joint custody with an every-other-weekend visitation plan and designating Mr. Freeman as the domiciliary parent.

In her brief, Ms. Johnson first raises issues of relocation. However, we find these issues to be irrelevant since this was not raised in the trial court. The Bergeron standard, discussed below, is applicable to this case.

The Bergeron standard applies in this case, as the trial court in Natchitoches Parish made a considered decree of joint custody to the parties, with no domiciliary parent being named. Under Bergeron, Mr. Freeman] 9 bears the burden of proving that the continuation of the present custody decree is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron, supra. Not only must he meet the burden of proof set forth in Bergeron, but Mr. Freeman must also show that a change of circumstance materially affecting the welfare of the child has occurred since the prior custody order. Jaligam, supra.

In his oral reasons for judgment, Judge Stephens went through the Article 134 factors and stated his conclusions pertaining to each after hearing the evidence presented. He found: (1) factors one and two were equal between the parties; (2) in light of Ms. Johnson’s new job, the gap for factor three “has narrowed considerably to her credit”; (3) factor four did not apply; (4) factor five weighed in favor of Mr. Freeman; (5) factors six and seven were equal between the parties; (6) factor nine did not apply; (7) factor ten weighed in favor of Mr. Freeman due to Ms. Johnson’s contempt; and (8) the last two factors were “irrelevant.” After going through the factors, Judge Stephens ruled that “by the very slightest of margins... Mr. Freeman needs to have primary custody.”

Factor one—the love, affection, and other emotional ties between each party and the child—is equal between the parties. It is clear that both parties have strong emotional ties with their daughter.

Factor two—the capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child—is also equal between the parties. It is clear from the |inrecord that both parties love their daughter immensely and want to provide the best for her. Additionally, both parties testified that they take their daughter to church.

Factor three—the capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs—slightly favored Mr. Freeman, but Ms. Johnson’s new job at the school closes the gap, as the trial court noted. Mr. Freeman has been employed at Hertz for six years as an area manager, earning $58,000 per year. Mr. Freeman’s wife is an independent contractor with State Farm Insurance. With their combined incomes, Mr. Freeman testified that they do not have any trouble paying their monthly bills. Additionally, Mr. Freeman has a college fund set up for each of his children so they may attend college. Ms. Johnson, on the other hand, appeared to struggle financially when she first moved to Baton Rouge. She moved apartments a few times due to rent increases, and her check for Addy’s school tuition bounced, leaving Mr. Freeman to foot the bill. However, Ms. Johnson testified that she is currently working as a teacher at Celerity Charter School where she earns roughly $44,000 per year. This new job and salary will allow Ms. Johnson to provide for her daughter. Thus, factor three appears to be roughly equal between the parties.

Factor four—the length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment—was found by Judge Stephens not to apply to this case, as both parties have had the child for one week off-and-on for the majority of her life. We agree.

Factor five—the permanence, as a family unit, of the existing, or proposed custodial home or homes—favors Mr. Freeman. Mr. Freeman has L Jived in Rayville for three years. He has been married to his wife, Ms. Woods, for two years, and they share a four-month-old daughter. At trial, Mr. Freeman testified that the home has four bedrooms, and his daughter has her own bedroom with bunk beds. Ms. Johnson, however, has not had the most permanent home base since moving to Baton Rouge. As rent prices have increased, Ms. Johnson has had to move apartments on a few occasions because she has not been able to afford the rent. It is thus clear that Mr. Freeman has had a more established, permanent home.

Factor six—the moral fitness of each party, insofar as it affects the welfare of the child—is equal between the parties. Nothing was found in the record to indicate that either party was not morally fit to take care of their daughter.

Factor seven—the mental and physical health of each party—is also equal between the parties. Nothing in the record indicates otherwise.

Factor eight—the home, school, and community history of the child—is not applicable to this case. It was not mentioned in Judge Stephens’s reasons for judgment likely because their daughter is only four years old. The child has not been in school, and she has lived with each parent one week off-and-on for her entire life. Thus, this factor does not yet seem relevant to this case.

Factor nine—the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference—also does not apply to this case. As stated above, the child is only four years old, which has been found by numerous courts to be an insufficient age for a child to express a preference.

| iaFactor ten—the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party—favors Mr. Freeman. At trial, Mr. Freeman testified that he has always encouraged a relationship between his daughter and Ms. Johnson. He stated that he sends Ms. Johnson pictures from every event and also lets her know of each event in advance so she can attend. He keeps Ms. Johnson involved in all aspects of their daughter’s life. Ms. Johnson, however, was held in contempt by the trial court for not returning the child to Mr. Freeman per their custody agreement. Mr. Freeman did not see his daughter for three months, but continued to pay child support. Additionally, Ms. Johnson enrolled their daughter at a school in Baton Rouge without informing Mr. Freeman. He found out only after Ms. Johnson’s tuition check bounced and the school called him to pay. Although Ms. Johnson argues that she kept the child from Mr. Freeman on the advice of her attorney, this absence could have potentially adversely affected the child’s relationship with her father. This does not show that Ms. Johnson has the ability and willingness to encourage a relationship between the child and Mr. Freeman.

Factor eleven—the distance between the respective residences of the parties—is not applicable. The distance between Rayville and Baton Rouge is roughly three hours. If the child attends school in Rayville, the distance is not so far that Ms.' Johnson would not feasibly be able to see her daughter.

Factor twelve—the responsibility for the care and reaxing of the child pi'eviously exercised by each party—-was found by the trial court to be irrelevant. From the record, it appears that both parties have equally -been responsible for the care and rearing of their daughter.

|,1sAfter review of .the Article 134 factors, it is clear that the trial cQurt did not abuse its discretion in applying -the factors. We agree with Judge Stephens’s application. Thei'efore, it appeal's that Mr. Freeman met his burden of proof under Bergeron. There does not appear to be any harm done to the child by awarding joint custody to Mr. Freeman and Ms. Johnson, with Mr. Freeman as the domiciliary parent. The child will- primarily reside with Mr. Freeman while she attends school in .Ray-ville, and Ms. Johnson will have visitation every other weekend. The chüd, who is only four years old, has not yet established any ties to either Rayville or Baton Rouge, as she has been back and forth between the two her entire life. No major harm will be caused by this change, although she will not see her mother as often.

The advantages of the child’s change of environment clearly substantially outweigh any harm. She will attend school with Ms. Wood’s older daughter, with whom she has a close relationship. She has her own bedroom in a stable home and family environment in Rayville. Mr. Freeman and Ms. Woods have been happily married for two years and are fully capable of providing the best for the child. Addy is currently enrolled in tumbling and cheerleading in Rayville, and all her doctors reside there as well. Living and attending school in Rayville with her father thus appears to be a positive change.

Mr. Freeman has also shown that a material change in circumstance has occurred since the prior custody order. As the trial judge' stated in his reasons for judgment, the “proof is sufficient that I can’t keep doing this a week and a week.” Addy is almost five-years-old and will soon begin attending school. It is not feasible under the current custody order for Addy to attend school for one week in Baton Rouge and one week in Rayville for the duration of the |14school year. It would be difficult for Addy to learn at two different schools, as their currículums may differ. In Shaffer v. Shaffer, 2000-1251 (La. App. 1 Cir. 9/13/00), 808 So.2d 354, writ denied, 2000-2838 (La. 11/13/00), 774 So.2d 151, the First Circuit Court of’Appeal found that the father proved a material change in circumstances materially affecting his daughter’s welfare “by showing that she had reached, school age, that the existing custody/visitation schedule was thereby made unworkable and that her relationship with her brother would be affected.” Because Addy has reached school age and the existing custody order has become unworkable, it is clear that a change in circumstances materially affecting Add/s welfare has occurred. Mr. Freeman made this showing -at trial, and the trial court was not erroneous in modifying the custody order.

Therefore, Mr. Freeman has met his burden of proof, showing by clear and convincing evidence that any harm likely to be caused.by the change in environment is substantially outweighed by its advantages to the child. In addition, it is clear that one week in school in Baton Rouge and one week in school in Rayville is not feasible or good for the child. This material change in circumstance justifies the modification. We thus find that the trial court did not abuse its discretion in making its decision.

CONCLUSION

We find that the trial court did not abuse its discretion in awarding Mr. Freeman and Ms, Johnson joint custody, with Mr. Freeman designated as the domiciliary parent. The child will reside primarily with Mr. Freeman, as she is almost of school age and will attend school in Ray-ville. Ms. Johnson was awarded visitation every other weekend. Based on the record, we believe that Mr..Freeman met his burden of proof under Bergeron. Further, the trial court |1Bdid not err-in finding Ms. Johnson in contempt after she kept Addy from Mr. Freeman for a three-month period. All costs of this proceeding are assessed to the Appellant, Ms. Johnson.

AFFIRMED.

PITMAN, J., dissents with written reasons.

PITMAN, J.,

dissents.

hfil respectfully dissent. In 1986, the Louisiana Supreme Court decided the case of Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986). This decision set out standards for changing custody after a considered decree:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden,of proving that.the- continuation of the present custody is so deleterious to the child as to justify a modification of .the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

This rule was further explained in Mulkey v. Mulkey, 12-2709 (La. 5/7/13), 118 So.3d 357:

Thus, when- a party seeks to change custody rendered in a considered decree, the proponent of the change must not only show that a. change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody, but he or she must also meet the burden of proof set forth in Bergeron.

In the case sub judice, the trial court changed custody after a considered decree without an.analysis required by Bergeron, supra, and Mulkey, supra. For this reason, I must dissent. I believe this matter should be reversed and remanded in accordance with these decisions.

      . Judge Stephens did not address the eighth factor.


author: PITMAN, J.

text:
    Ashlee TIDWELL, Plaintiff-Appellant v. Todd Michael TIDWELL, Defendant-Appellee
    No. 51,523-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017

      DONALD L. KNEIPP, Counsel for Appellant
    LAW OFFICES OF MASON, L. OS-WALT, By: Mason L. Oswalt, Counsel for Appellee
    Before BROWN, PITMAN, and COX, JJ.
   PITMAN, J.

1 iPlaintiff-Appellant Ashlee Tidwell appeals the trial court’s judgment in favor of Defendant-Appellee Todd Michael Tidwell. For the following reasons, we affirm.

FACTS

The parties married in October 1995 and had two daughters. On April 16, 2013, Ms. Tidwell filed a petition for' divorce under La. C.C. art. 102 and sought child custody, child support, interim and final spousal support and partition of community property. Mr. Tidwell filed an answer and re-conventional demand under La. C.C. .art.. 103, alleging that Ms. Tidwell committed adultery and was at fault for the breakdown of the marriage.

In February 2014, the parties entered into a joint stipulation and consent judgment and resolved the issues of child support, child custody and interim spousal support. Relevant to this appeal, the parties agreed that Mr. Tidwell would pay interim spousal support to Ms. Tidwell in the amount of $1,800 per month, retroactive to May 1, 2013; that Mr. Tidwell would pay the house note on the former matrimonial domicile (the “Domicile”) and the car note on the 2010 Chevrolet Suburban (the “Suburban”) for the duration of the interim spousal support award period; and that Ms. Tidwell would have exclusive use of the Domicile and of the Suburban. They also agreed that Mr. Tidwell’s claim for rental value of Ms. Tidwell’s exclusive use of the Domicile should be deferred to be considered in the community property partition.

.On March 5, 2014, Ms. Tidwell filed.a rule to show cause, why permanent spousal support should not be awarded.

12Following a hearing on the rule for divorce, the trial court determined that Mr. Tidwell proved that Ms. Tidwell committed adultery. On March 24, 2014, the trial court rendered judgment in favor of Mr. Tidwell and granted , a divorce based upon adultery. Ms. Tidwell appealed. In Tidwell v. Tidwell, 49,512 (La. App. 2 Cir. 11/19/14), 152 So.3d 1045, this court affirmed the judgment of the trial court.

On October 3, 2014, Ms. Tidwell filed' a rule to show cause and for contempt. She alleged that Mr. Tidwell had made sporadic spousal support payments since May 1, 2013, and contended that she was entitled to be paid the balance of the arrearages with interest, attorney fees and court costs. She also alleged that Mr. Tidwell advised her that he would stop paying interim spousal support because the divorce was granted based on adultery. She further alleged that he violated the terms of the consent judgment that she would have exclusive use of the Domicile when he entered the Domicile when she was not present and removed items. She requested that the trial court hold Mr. Tidwell in contempt of court for failing and refusing to pay interim spousal support and for violating the terms of the consent judgment regarding use of the Domicile. ■

On January 20, 2015, Mr. Tidwell filed a motion for the exclusive use of the Domicile and the Suburban. He noted that the divorce was- finalized on March 24, 2014, and that his interim spousal support obligation terminated on September 24, 2014. He stated that, since September 24, 2014, Ms. Tidwell had refused to pay the house and car notes even though she was living in the Domicile and had exclusive use of the Suburban. He further stated that he continued to pay those notes because his credit would be negatively affected if the debts were not paid. He contended that, due to IsMs. Tidwell’s refusal to pay the house and car notes, he should be granted exclusive use of the Domicile and the Suburban.

On February 3, 2015, Ms. Tidwell filed’a first supplemental and amended rule to show cause and for contempt. She acknowledged that a judgment of divorce based on adultery was filed on March 24, 2014, and that Mr. Tidwell stopped paying interim spousal support as of September 30, 2014. She noted that she filed a suspen-sive appeal of the divorce judgment on March 28, 2014, and that the court of appeal rendered judgment on , November 19,2014. She contended that the judgment of divorce did not become final until November 19, 2014, and, therefore, she was entitled to receive interim spousal support payments and that Mr. Tidwell was required to pay the house and car notes' until May 19, 2015, i.e., 180 days from November 19, 2014. .She argued that Mr. Tidwell was in arrears on the interim spousal support payments because he had not paid support from October 2014 to January 2015. She alleged that Mr. Tidwell entered the Domicile on. an additional occasion while she was not home. She reiterated her request, that the trial court hold Mr. Tidwell in contempt of court for failing and refusing to pay interim spousal support and for violating the terms of the consent judgment regarding use of the Domicile.

A conference before a hearing officer was held on December 2, 2015, who recommended in his report that Ms. Tidwell’s rule of final spousal support should be dismissed; Mr. Tidwell’s rule for exclusive use of the Suburban is moot and should be dismissed; Mr. Tidwell’s rule for exclusive use of the Domicile should be dismissed; Ms. Tidwell’s rule to have Mr. Tidwell ordered to pay interim spousal support through May 19, 2015, is moot and should be dismissed; Ms. Tidwell is entitled to past-due interim 1 ¿spousal support payments; Mr. Tidwell be held in contempt of court; Mr. Tidwell should pay at least $1,000 per month toward his arrears until paid in full; and Mr. Tidwell should pay attorney fees and court co.sts.

Both parties filed objections to the hearing officer’s conference report. Oh January 4, 2016, the trial court filed a temporary order, ordering that the hearing officer’s recommendations be -'made a temporary order of the court.-It stated that the recommendations as to the accrual of past dué support, the- finding of contempt, the punishment for contempt and the award of attorney fees were not made temporary orders of the court.

A hearing before the trial' court on the objections and related'issues was held on May-' 16, 2016. Counsel for Mr. Tidwell argued that the interim spousal support award should have terminated on March 24, 2014, i.e., the date the. divorce was granted. He pointed out that La. C.C. art. 113 refers to “the rendition of a judgment of divorce” and argued that this is .the date the, trial court granted .the judgment of divorce. He further argued .that Mr. Tid-well should receive a credit for the house note payments he made because he was not required to make those payments once the period for the interim spousal support award ended. He also requested that Mr. Tidwell be awarded exclusive use of the Domicile. Counsel for Ms. Tidwell argued that the judgment of divorce was not a definitive judgment until the appeal process was completed and that the finality of the judgment is not retroactive to the date of the trial court’s judgment.

Mr. Tidwell testified that he paid interim spousal support through September 30, 2014, i.e., six months after the judgment of divorce. He stated that his attorney advised him to- discontinue paying the house note, but he continued to make the payments so as not to ruin his credit. He noted that |f,Ms. Tidwell refused to make any payments on the house note. He consented to Ms. Tidwell having exclusive use of the Domicile because it was his understanding that she would have that use only for six months after the divorce. He testified that he was requesting exclusive use of the Domicile because he was making the house note payments and because he wants his children to have a home again. He stated that he is better able to maintain the Domicile, noting that he is employed as an appraiser and knows how to make the Domicile more valuable should it have to be sold when partitioning the community property.

After taking the matter under advisement and requesting briefs from the parties, the trial court filed its reasons for judgment on July 12, 2016. It filed a judgment on rules on July 28, 2016. It determined that the termination date for the interim spousal support award owed from Mr. Tidwell to Ms. Tidwell was the date of the judgment of divorce based on adultery, i.e., March 24, 2014. It ordered that Mr. Tidwell be awarded credit for all interim spousal support payments, house note payments and car note payments made after March 24, 2014. It denied both parties’ motions for contempt of court, court costs and attorney fees. It ordered that Mr. Tidwell be awarded exclusive use and occupancy of the Domicile and ordered that each party bear his/her own costs.

On August 5, 2016, Ms. Tidwell filed a motion for new trial. She contended that the termination date for the interim spousal support award, the award of credit to Mr. Tidwell and the award of exclusive use of the Domicile to Mr; Tidwell were clearly contrary to the law and evidence. A hearing on the motion was held on October 25, 2016. She withdrew her motion for new trial as to the issue of the exclusive use of the Domicile |fibecause Mr. Tidwell took exclusive use of the Domicile in July 2016. On November 2, 2016, the trial court denied the motion.

Ms. Tidwell appeals the trial court’s July 12, 2016 reasons for judgment and July 28, 2016 judgment on rulés.

DISCUSSION

Termination Date of Interim Spousal Support Award

In her first assignment of error, Ms. Tidwell argues that the trial court erred by failing to terminate the award of interim spousal support on May 19, 2015, i.e., six months after the judgment of divorce became final. She contends that the judgment of divorce became final when the court of appeal affirmed the judgment of the trial court on November 19, 2014, not when the trial court granted the judgment on March 24, 2014. Citing La. C.C.P. art. 3942, she states that execution of a judgment of divorce is suspended while on appeal. Citing La. C.C. art. 113, she contends that the trial court should have extended the award for 180 days past the judgment of divorce because she had a pending claim for final spousal support in March 2014, She states that a judgment awarding or denying final spousal support was not issued prior to the 180-day extension period, so the award should have terminated 180 days after the judgment of divorce became final.

Mr. Tidwell argues that the trial court correctly determined that the interim spousal support award terminated on the date of the judgment of divorce, i.e., March 24, 2014. Citing La. C.C. arts. Ill and 112, he notes that Ms. Tidwell’s adultery occurred prior to the filing date of the petition for divorce and was the cause of the dissolution of the marriage. He points out that her request for final spousal support was denied due to her fault. He contends that her argument that the award of interim spousal support should 17extend for 180 days from the court of appeal’s judgment would lead to absurd consequences and would promote frivolous appeals because it would allow a litigant to extend the period of interim spousal support by appealing the judgment. He emphasizes that La. C.C. art. 113 refers to the “rendition of the judgment of divorce,” not when the judgment is final, which, in this case, is March 24, 2014.

The trial court is vested with much discretion in determining awards of spousal support. Such determinations will not be disturbed absent a clear abuse of discretion. Lang v. Lang, 37,779 (La. App. 2 Cir. 10/23/03), 859 So.2d 256.

When the parties filed for divorce in 2013, La. C.C. art. 113 stated:

Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment of divorce. If a claim for final spousal support is pending at the time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown.

The trial court may award final periodic support to any party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage. La. C.C. art. 111. Fault is a threshold issue in a claim for spousal support. King v. King, 48,881 (La. App. 2 Cir. 2/26/14), 136 So.3d 941. A spouse seeking final periodic spousal support must be | ¿without fault and the burden of proof is upon the claimant. Id. Fault continues to mean misconduct that rises to the level of one of the previously existing fault grounds for legal separation or divorce. La. C.C. art. Ill, Revision Comment (c) of 1997. Legal fault includes adultery. Lyons v. Lyons, 33,237 (La. App. 2 Cir. 10/10/00), 768 So.2d 853, writ denied, 00-3089 (La. 1/5/01), 778 So.2d 1142.

The trial court did not abuse its discretion when it determined that the interim spousal support award terminated on the date of the rendition of divorce, i.e., March 24, 2014. It granted the Tidwells’ divorce based upon its finding that Ms. Tidwell committed adultery. This finding of fault precluded Ms. Tidwell’s claim for final spousal support. Therefore, a petition for final spousal support was not pending at the time of the rendition of the judgment of divorce. As stated in La. C.C. art. 113, the relevant date for termination of the award of interim spousal support is the “rendition of a judgment of divorce,” not the date the judgment becomes final.

Accordingly, this assignment of error lacks merit.

Credit for House and Car Note Payments

In her second assignment of error, Ms. Tidwell argues that the trial court erred in awarding Mr. Tidwell credit for house and car note payments and for spousal support payments made after March 24, 2014. She again argues that the interim spousal support award should have continued to May 2015; and, therefore, Mr. Tidwell should not have received credit for payments made between March 24, 2014, and May 2015.

Mr. Tidwell argues that the trial court correctly awarded him credit for overpayment of his spousal support obligation after the interim spousal support terminated on March 24, 2014. He notes that he was ordered to pay 19the house and car notes as part of the interim spousal support obligation and was entitled to a credit for overpayment of these notes.

In their joint stipulation and consent judgment, the Tidwells agreed that Mr. Tidwell would pay the house and car notes for the duration of the interim spousal support award period. As stated above, the trial court did not abuse its discretion when determining that the award of interim spousal support terminated on March 24, 2014. Therefore, it did not abuse its discretion when concluding that Mr. Tid-well is entitled to a credit for all interim spousal support payments, house note payments and car note payments made after March 24, 2014.

Accordingly, this assignment of error lacks merit.

Exclusive Use of the Domicile

In her third assignment of error, Ms. Tidwell argues that the trial court erred in awarding Mr. Tidwell the exclusive use of the Domicile. She contends that it was in the best interest of the family for her, as domiciliary parent, to have exclusive use of the Domicile. She notes that the trial court’s reasoning for awarding Mr. Tidwell exclusive use was the protection of the asset and his ability to repair and sell the Domicile. She contends that the trial court erred in valuing the asset over providing a stable environment for a child when awarding exclusive use to Mr. Tid-well.

Mr. Tidwell argues that the trial court correctly awarded him the exclusive use and occupancy of the Domicile and made a proper legal finding that he was in a better position to preserve the community asset by paying the monthly indebtedness, making necessary repairs and improvements and enhancing the value of the Domicile.

hnLa. R.S. 9:374(B) states:

When the family residence is community property or is owned by the spouses in indivisión, or the spouses own community movables or immovables, after or in conjunction with the filing of a petition for divorce or for separation of property in accordance with Civil Code Article 2374, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community movables or im-movables pending partition of the property or further order of the court, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community movables or immovables to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of'the family residence and the use of community movables or immov-ables in awarding spousal support.

At the May 16, 2016 hearing, Mr. Tid-well testified that he. requested exclusive use of the Domicile to provide a comfortable home for their daughters. He noted that he was living in a cramped apartment with their adult daughter and that their minor daughter (of whom Ms. Tidwell was domiciliary parent) stayed there during his visitation periods. He contended that he was better able to maintain the Domicile than Ms. Tidwell, alleging that she did not maintain the exterior of the Domicile and let the water in the swimming pool turn black. He noted that h'e works as an appraiser and can make improvements to the Domicile to maximize its "value. He also noted that he continued to make the house note payments after the period of the interim spousal support award because Ms. Tidwell refused to make the payments.

In its reasons for judgment, the trial court stated that it awarded .Mr. Tidwell the exclusive'use of the Domicile because he is in a better position to preserve the asset and “make it ‘positively’ work for the |1T‘splintered family’s overall best interest.’ ” Its determination that Mr. Tidwell’s use and occupancy of. the Domicile is in the best interest of the family is supported by the record in this case. Mr. Tidwell’s testimony demonstrates that his occupancy of the Domicile will improve the living conditions of the daughters and will provide him an opportunity to better maintain the Domicile and enhance its value. Therefore, the trial court did not abuse its discretion in awarding Mr. Tidwell the exclusive use and occupancy of the Domicile.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of Defendant-Appellee Todd Michael Tidwell and against Plaintiff-Appellant Ashlee Tid-well. Costs of appeal are assessed to Ashlee Tidwell.

AFFIRMED.

      . La. C.C. art. 113 was amended by 2014 La. Acts 316, § 1, and 2014 La. Acts 616, § 1.


author: IRVING, P.J.,

text:
    Arrisha SAMPSON, Appellant v. MTD PRODUCTS d/b/a Modern Line Product Company, Appellee Arrisha Sampson, Appellant v. MTD Products d/b/a Modern Line Product Company, Appellee
    NO. 2016-WC-00345-COA CONSOLIDATED WITH NO. 2016-WC-00346-COA
    Court of Appeals of Mississippi.
    04/04/2017
    Rehearing Denied August 22, 2017

      ATTORNEYS FOR APPELLANT: AMANDA GRACE HILL, ROGEN K. CHHABRA, DARRYL MOSES GIBBS
    ATTORNEY FOR APPELLEE: DANIEL PAUL CULPEPPER
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Arrisha Sampson appeals the judgment of the Mississippi Workers’ Compensation Commission (Commission), arguing that the Commission erred in determining that she failed to prove she suffered a disability that amounted to an industrial loss of use greater than the.medical impairment percentage she was assigned by her doctor.

¶ 2. Finding no error, we affirm.

FACTS

¶3. Sampson began working for MTD Products (MTD) in 2010 as a production assembler. As a production assembler, she was required to stoop, kneel, crouch, and regularly lift and/or move items weighing ten to twenty-five pounds. On May 15, 2012, a piece of galvanized steel fell and lacerated Sampson’s left ankle. She was treated at a clinic and returned to work within a few days. On September 18, 2012, Sampson hyperextended the same ankle. Sampson, again, went to a clinic for treatment; however, on this occasion she was referred to orthopedic surgeon Dr. Kurre Luber. In November 2012, Dr. Luber performed surgery on Sampson’s ankle to treat a torn Achilles tendon. In January 2013, while still attending therapy, she returned to work for MTD. On April 22, 2013, Dr. Luber placed Sampson at maximum medical improvement with no restrictions, assigning her a two-percent permanent medical impairment rating to her left lower extremity due to her work injury.

¶ 4. Thé parties stipulated that there were no issues regarding Sampson’s temporary disability or her medical treatment. However, the parties disagreed on the existence and extent of permanent disability attributable to her injuries. In May 2013, Sampson filed her petitions to controvert with the Commission. After a hearing, the administrative judge (AJ) found that Sampson had suffered a ten-percent industrial loss of use to her left lower extremity and would be entitled to proportional disability benefits.

¶5. MTD appealed that decision, and the full Commission reversed the AJ’s decision and found that Sampson was only entitled to a two-percent industrial loss of use, consistent with Dr. Luber’s two-percent permanent medical impairment rating. Sampson now appeals the decision of the Commission to this Court.

DISCUSSION

¶ 6. The standard of review in a workers’ compensation case is well settled: “If the findings of the Commission are supported by substantial evidence, then they are binding on this Court. As to matters of law, our review is de novo, but the [Commission’s] interpretation of workers’ compensation law is to be accorded great weight and deference.” Kimbrough v. Fowler’s Pressure Washing, LLC, 170 So.3d 609, 611 (¶ 5) (Miss. Ct. App. 2015).

¶7. The sole issue in this case is whether Sampson sustained any industrial loss of use in excess of her medical impairment rating. As stated, the AJ determined that Sampson had suffered a ten-percent industrial loss of use; however, the Commission reversed the AJ’s decision, deciding instead that Sampson had only suffered a two-percent industrial loss of use, consistent with her permanent medical impairment rating. Despite Sampson’s arguments to the contrary, we find that there is substantial evidence in the record to support the Commission’s decision.

¶ 8. The measure of compensation in a workers’ compensation claim where the claimant suffers a permanent functional impairment to a scheduled member depends on two factors: “(a) the degree of functional loss of use as demonstrated by the medical evidence, normally expressed as a percentage, and (b) the impact that the loss of function of the particular scheduled member has on the worker’s ability to perform the normal and customary duties associated with her usual employment.” Robinette v. Henry I. Siegal Co., 801 So.2d 739, 743 (¶8) (Miss. Ct. App. 2000). “In order to prove a loss of industrial use, [the claimant] has the burden of proving that her job-related injury caused her to suffer a loss of wage earning capacity above and beyond her impairment rating.” Posey v. United Methodist Senior Servs., 773 So.2d 976, 980 (¶ 11) (Miss. Ct. App. 2000); see also Howard Indus., Inc. v. Robbins, 176 So.3d 113, 117 (¶ 19) (Miss. Ct. App. 2015) (noting that “[w]ith industrial, loss, the question ... is the degree of loss of use of the member for wage earning purposes”).

¶ 9. Sampson argues that the Commission erred in determining that she failed to prove she suffered a loss of industrial use greater than the permanent medical impairment percentage that she was assigned—a decision that she argues was not supported by substantial evidence. “It is the claimant’s burden to establish her entitlement to compensation, and the question of the existence and extent of any permanent disability arising out of a work-related injury is a question of fact for the Commission to determine based on the evidence before it.” Robinette, 801 So.2d at 743 (¶ 7).

¶ 10. Sampson contends that she satisfied her burden of proof, as evidenced by her change in work position due to the pain associated with continued work at her pre-injury position. She asserts that the “need for a less physically demanding job is a prime example of the loss of functional use that goes beyond a ‘medical’ or ‘anatomical’■ impairment rating.” She also asserts that, in arriving at the decision reached by the AJ, the AJ weighed the impairment rating given by Dr. Luber, Sampson’s testimony regarding her continued pain, and her move to another assembly line with lighter work duties. Consequently,. she argues that the AJ’s decision was correct, and the evidence supports her additional loss of industrial use beyond her medical impairment rating. .

¶ 11. MTD correctly responds that the Commission’s decision is supported by substantial evidence and, therefore, should be affirmed. MTD argues that Sampson is not entitled to an industrial loss of use in excess of her medical impariment rating of two-percent,. as evidenced by the record. After Sampson’s surgery in November 2012, she was released by Dr. Luber to work for five-hour days on January 14, 2013, with no further restrictions, and then released to full-time work one week later. On April 22, 2013, Dr. Luber placed her at maximum medical improvement and released her from his care on an as-needed basis, stating, “She is now doing very well. She is .very happy with her outcome.” Sampson testified that she had not returned to see Dr. Luber for any additional treatment or prescription' refills after she reached maximum medical improvement.

II12. Following. her final appointment with Dr. Luber, she continued to work in her pre-injury position until August 2013, before requesting a change to a different assembly line. MTD notes that Sampson stated in her deposition the reason for the change: “It was just—the workload was getting • heavier, and when I got—when I was—when it was time to leave work, I had no energy for my son when I got home.” However, during the hearing she attributed the change to physically not being able to perform the job—because of her injury—in conjunction with her overall health. Nothing in Dr, Luber’s findings indicated that Sampson’s injury had produced any physical work restrictions sufficient to support a finding that she had an industrial loss of use in excess of her permanent impairment rating. Ip addition, although not completely outcome determi; native, Sampson’s pay did not decrease between the change in positions, and she is actually making a higher salary now than she was pre-injury.

¶ 13. It is evident that Sampson’s eventual work-position change'and her’testimony regarding the continued: pain that she felt were major factors in the AJ’s decision to award a ten-percent industrial loss of use-. However, those findings do not make the Commission’s findings; as the finder of fact, any less substantial, There was substantial evidence to support the Commission’s findings as outlined in the Commission’s order as follows:

In this matter, Dr. Luber assigned to Claimant a [two-percent] medical impairment rating and no physical restrictions. Claimant has returned to work for the Employer performing her job at full duty. Claimant has not received any subsequent medical treatment, nor is the Claimant on any prescription medicine related to her injury. Further, Claimant is earning a higher post-injury average weekly wage of $530.89 compared to her pre-injury average weekly wage of $515.00. Based on the above analysis, the Commission finds that Claimant has failed to prove by a preponderance of the evidence that she has sustained any permanent disability in excess of her medical impairment rating.

¶ 14. Therefore, we affirm.

¶ 15. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . This is a consolidated case as Sampson filed a petition to controvert with the Mississippi Workers’ Compensation Commission for two separate, but related, injuries.

      . This injury was the basis for the second claim filed by Sampson.

      .Dr. Luber released Sampson to work five-hour days on January 14, 2013, with resumption of full duties on January 21, 2013.

      .Substantial evidence can be defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.” State Oil & Gas Bd. v. Miss. Mineral & Royalty Owners Ass'n, 258 So.2d 767, 779 (Miss. 1971).

      . Miss. Code Ann. § 71-3-17 (Rev. 2011).

      . Factor (a) refers to the two-percent medical impairment rating; which was given by Dr. Luber, and factor (b) refers to the industrial/occupational loss of use percentage, which differs between the AJ and the Commission.

      . "[Ejvidence of higher post-injury wage earning does nót close the door to a finding that the industrial loss was greater than the functional loss. Rather, it is evidence the Commission must consider, along’ with other ' evidence about wage-earning capacity like the worker’s age, education, and work experience,” Robbins, 176 So.3d at 115 (¶ 3).

      ., “In a workers' compensation case, the ■ Commission is the trier and finder of facts. If supported by substantial evidence, the appellate court is bound by the determination of the Commission .... ” Hugh Dancy Co. v. Mooneyham, 68 So.3d 76, 79 (¶ 6) (Miss. Ct. App. 2011).


author: ISHEE, J.,

text:
    Brett PRINCE a/k/a Brett M. Prince a/k/a Brett Matthew Prince, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01890-COA
    Court of Appeals of Mississippi.
    05/23/2017
    Rehearing Denied September 5, 2017

      KEVIN DALE. CAMP, JARED KEITH TOMLINSON, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELÁND BYRD, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. Brett Prince was convicted in the First Judicial District of the Hinds County Circuit Court of five counts of aggravated driving under the influence (DUI) in violation of Mississippi Code Annotated section 63-11-30(5) (Rev. 2013). These convictions stemmed from an automobile accident in which Prince struck.the Salas family vehicle at a high rate of speed, causing a death and other severe injuries. The- jury found that Prince operated his vehicle while under the influence of alcohol, with a blood-alcohol concentration (BAC) over the legal limit of 0.08%, and that he was the cause of both the resulting death and serious bodily injuries. As a result, Prince was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC) for Count I, five years each for Counts II and III, and twenty years each for Counts IV and V, with the sentence for Count I to run .consecutively-to the sentence for Count II, and concurrently with the sentences for Counts III-V, totaling a term of thirty years’ imprisonment.' ‘'

¶2. Prince now appeals, asserting that the State failed to present sufficient evidence to prove the requisite elements of the crimes charged, that the verdict was against the weight of the evidence, that the circuit court erred regarding the admission of certain evidence, and that the court erred in denying proposed jury instruction D-3. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. On June 15, 2013, Prince collided with the Salas family’s vehicle after running a red light -at the intersection of Springridge Road and Highway 18. Prince struck the Salas vehicle—occupied by Michael, his-wife, and their four children—at an excessive rate of speed; there was dispute at trial among the accident-reconstruction experts regarding Prince’s exact speed. Michael testified as to his family’s injuries. He sustained a broken hip and broken ribs, while the Salases’ youngest son died at the scene. In addition, one of the children suffered paralysis of his right side, is now bound to a wheelchair, and suffers brain damage, delayed speech, inability to communicate, and loss of vision. Another Salas child suffered paralysis in her left, arm and injuries that left permanent scarring on her face. The last child suffered a neck injury.

¶ 4. Trooper James Gray of the Mississippi Highway Patrol responded to the scene of the accident. When he arrived, Gray observed the Salases’ tan SUV in the median, and Prince’s Ford pickup truck located just east of the SUV. Gray noticed that the airbags had been deployed in Prince’s vehicle, and that beer cans were found in and around the SUV driven by Michael; officers found a cooler full of alcoholic beverages in the bed of Prince’s truck.

¶ 5. Witnesses to the collision testified to the events that took place. One witness, Jerrica Davis, stated that prior to the accident, Prince approached her vehicle from the'rear, driving in-an erratic manner, and caused her and others’ vehicles to veer off the road. Davis stated that she then attempted to record Prince’s license-plate number to report to authorities. Unable to catch up with Prince, however, Davis testified that she realized she would be able to get Prince’s tag number at the red light they were approaching. But Davis observed that Prince was not slowing, and subsequently ran the red light, causing the ensuing collision. Following the wreck, multiple witnesses offered aid. Of those witnesses that assisted Prince, one witness testified that beer cans poured out of his truck when he opened the door and that he reeked of alcohol. Another witness stated that beer cans were flung out the truck’s' cab during the course of the collision.

¶ 6. Shortly after Gray appeared on scene, Trooper Maurice Kennedy of the Mississippi Department of Public Safety arrived to assist. Kennedy stated that he arrived at approximately 6:19 p.m., and that at that time, Prince was already handcuffed and seated in the back of a Hinds County Sheriff’s Office, patrol car. Kennedy stated that he observed Prince for forty-one minutes, which began at 6:35 p.m. Photographs at the scene, however, showed that Kennedy was outside of Prince’s presence at 6:37 p.m., 6:46 p.m., 6:47 p.m., and 6:53 p.m. Nonetheless, Kennedy opined that Prince appeared to be intoxicated based upon Prince’s slurred speech, glazed-red eyes, his emanating of an alcoholic odor, and his admission to Kennedy that he had been drinking. Following these observations, Kennedy elected to conduct a breathalyzer test at the scene, utilizing a. portable “Intoxilyzer 8000.” Kennedy began the breath, test at 7:16 p.m., with the first breath sample being taken at 7:23 p.m. The, results of the breathalyzer test indicated Prince possessed a BAC of .199%.

¶7. On September 28, 2015, trial commenced, and Prince was convicted by a jury of five counts of aggravated DUI in violation of Mississippi -Code Annotated section 63-11-30(5). Prince moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied his motion. Prince now appeals.

DISCUSSION

I. The circuit court did not err by admitting into evidence the results of the Intoxilyzer 8000.

118. Before a court may admit into evidence the results of a DUI test, the court must first determine that: (1) the proper procedures were followed; (2) the operator of the machine was properly certified to perform the test;, and (3) the accuracy of the machine was properly certified. McIlwain v. State, 700 So.2d 586, 590 (¶ 18) (Miss. 1997). At trial, Prince sought to exclude the results of his breathalyzer test for two reasons: (1) Kennedy allegedly did not conduct the mandatory twenty-minute observation period before administering the breathalyzer, as required by police procedure; and (2) the State allegedly violated Uniform Rule of Circuit and County Court 9.04 by failing to disclose documents required for the introduction of the Intoxilyzer 8000 results. Upon review of the record, we find no error.

A. The observation period was proper.

¶ 9. Prince first argues that Kennedy did not perform the mandatory twenty-minute observation period of Prince, and therefore, the results should not have been admitted into evidence—this was the principal theme of his defense throughout trial. “The standard of review regarding the admission or exclusion of evidence is abuse of discretion.” Parkman v. State, 108 So.3d 443, 445 (¶ 5) (Miss. Ct. App. 2012). “Absent an abuse of that discretion, the trial court’s decision will not be disturbed on appeal.” Id. (quoting McCoy v. State, 820 So.2d 25, 31 (¶ 15) (Miss. Ct. App. 2002)).

¶ 10. In Parkman, this Court reaffirmed the principles set forth in the seminal case of Hudspeth v. State, 28 So.3d 600 (Miss. Ct. App. 2009), and stated:

Mississippi Code Annotated section 63-ll-5(l)(c) (Rev. 2004) states that “[n]o such tests shall be given by any officer or any agency to any person within fifteen (15) minutes of consumption of any substance by mouth.” However, a twenty-minute observation period is required under the Mississippi Department of Public Safety’s guidelines and the Intox-ilyzer 8000 Implied Consent Policies and Procedures manual:
According to the Mississippi Department of Public Safety’s guidelines and the Intoxilyzer 8000 Implied Consent Policies and Procedures manual, a twenty-minute observation period is required immediately before a breath sample is taken. The glossary to this manual defines observation period as follows: “A period during which the person being tested has been observed to determine that he has not ingested alcohol or other fluids, regurgitated, vomited, eaten, smoked, or placed anything into his mouth in the 20 minutes immediately prior to the collection of a breath sample.”

Parkman, 108 So.3d at 445 (¶ 6) (quoting Hudspeth, 28 So.3d at 602 (¶ 6)). Relying on Mississippi Supreme Court precedent, we further elaborated:

The length of time that a person charged with driving under the influence must be observed prior to the administration of the breath test is mandatory. In Mississippi, by statute, that length of time is fifteen minutes; however, police procedure requires that the person be observed for twenty minutes. The observation itself can be performed as long as the defendant is in the presence of the officer. The officer is not required to stare at the defendant for the observation to be effective. A dispute as to whether the observation lasted the mandatory length of time or whether the observation was performed while in the presence of an officer goes to the weight of the testimony and the credibility of the witnesses.

Id. at 446 (¶ 6) (quoting Fisher v. City of Eupora, 587 So.2d 878, 882 (Miss. 1991)).

¶ 11. In a pretrial suppression hearing, Prince sought to exclude the breathalyzer results by claiming that Kennedy had failed to observe Prince for the requisite amount of time. Through testimony provided at the suppression hearing, Kennedy stated that he recalled observing Prince over a time frame ranging from forty minutes to one hour—affirming, however, that he observed Prince for at least twenty minutes prior to his administering the breathalyzer. Kennedy stated that his observation primarily consisted of speaking with Prince while he was handcuffed in the back of the patrol vehicle. Following Kennedy’s testimony at the hearing, defense counsel did not offer any rebuttal evidence. Defense counsel then conceded the motion, and the circuit court subsequently denied the motion to suppress the breathalyzer results. Thus, the results were admitted into evidence. Reviewing Kennedy’s testimony and the transcript of the suppression hearing, we cannot find that the denial of Prince’s motion to suppress was an abuse of discretion.

¶ 12. At trial, however, Prince renewed his motion to suppress the breathalyzer results based upon photographic evidence that allegedly discredited Kennedy’s testimony. Kennedy stated at trial that he observed Prince for forty-one minutes, which began at 6:35 p.m. But photographs taken from the scene showed that Kennedy was outside of Prince’s presence at 6:37 p.m., 6:46 p.m., 6:47 p.m., and 6:53 p.m. Kennedy nonetheless opined that Prince appeared to be intoxicated based upon Prince’s slurred speech, his glazed-red eyes, his emanating of an alcoholic odor, and his admission that he had been drinking. Kennedy further stated that during this time of observation, Prince did not drink, eat, vomit, burp, belch, regurgitate, smoke, or place anything in his mouth. Kennedy began the breath test at 7:16 p.m., with the first breath sample being taken at 7:23 p.m.

¶ 13. Kennedy was questioned by defense counsel regarding the times that he was pictured outside Prince’s presence. Kennedy testified that he could not verify the accuracy of the time stamps on the photos taken with the digital camera, but stated that he used his watch when he recorded his observation time for purposes of administering the breathalyzer test— not the digital camera. According to his watch, Kennedy stated he began the observation at 6:35 p.m. With the last photo showing Kennedy outside Prince’s presence being time stamped at 6:53 p.m., and the first breath sample being taken at 7:23 p.m., there was at least thirty minutes available for Kennedy to observe Prince before he provided his first sample. See Hudspeth, 28 So.3d at 602 (¶ 6) (“[A] twenty-minute observation period is required immediately before a breath sample is taken”) (emphasis added). Therefore, regardless of the photographs discrediting Kennedy’s observation as described, the circuit court found the defense failed to rebut that an adequate amount of time existed to satisfy the twenty-minute requirement.

¶ 14. Thus, we find as the circuit court did, and hold that the mandatory twenty-minute observation period was satisfied. Furthermore, any “dispute as to whether the observation lasted the mandatory length of time or whether the observation was performed while in the presence of an officer goes to the weight of the testimony and the credibility of the witnesses,” not the admissibility of the evidence. See Parkman, 108 So.3d at 446 (¶ 6) (emphasis added). As such, because proper observation procedure was followed, we find no abuse of discretion by the circuit court in denying Prince’s motions to suppress, and therefore, in admitting the breathalyzer results into evidence. This issue is without merit.

B. The State did not violate Uniform Rule of Circuit and County Court 9.04.

¶ 15. Prince next asserts that the breathalyzer results should not have been admitted into evidence because the State failed to disclose certification documents required for the introduction of those results, and thus, violated Rule 9.04. Supporting this argument, Prince relies upon Rule 9.04(1), which reads as follows:

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows: „ ...
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the iron-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution .withdraws its efforts to introduce such evidence.

URCCC 9.04(1). Therefore, according to Rule 9.04, Prince asserts that the proper remedy would have been either to exclude the certification documents from evidence, grant a longer continuance to allow the defense to properly defend against the evidence, or declare a mistrial. We disagree.

¶ 16. The State points out that before breathalyzer results may be entered into evidence, the court must first determine whether the accuracy of the machine was properly certified. McIlwain, 700 So.2d at 590 (¶ 18). Mississippi Code Annotated section 63-11-19 (Rev. 2013) requires that Intoxilyzer machines “shall be subject to periodic tests, ‘but not less frequently than quarterly,’ in order to ensure the accuracy of the machines.” Dobbins v. City of Starkville, 938 So.2d 296, 297 (¶ 6) (Miss. Ct. App. 2006). Prince, however, neither argued at trial, nor argues here on appeal, that the breathalyzer results should be excluded because the machine was inaccurate or improperly calibrated. Rather, Prince argues that the State committed a discovery violation by not providing the documents prior to trial, and therefore, the certification documents should be excluded from evidence. And if the certification documents are excluded from evidence, then the State cannot certify the accuracy of the Intoxilyzer results, which Prince concludes would be fatal to the State’s case. This line of reasoning, however, is .misguided, as the State introduced evidence, other than the certification documents at issue, which sufficiently proved the machine’s accuracy— namely, Kennedy’s testimony and an IP-01E form.

1. Kennedy’s Testimony and the IP-01E Form

¶ 17. First, Kennedy testified that the Intoxilyzer 8000 utilized was a “self-calibrating machine.” Kennedy further explained that with such an instrument, the machine took in a number of air blanks (which samples the surrounding air), and then performed a self-diagnostic check. Once the self-calibration is complete, it prompts the subject to provide a sample. If, through the self-calibration and its diagnostic check, errors áre revealed, the machine will not allow the subject to blow, and abort the test—which would have required Kennedy to use another machine. Second, the. State offered into evidence an IP-01E form, which displayed the results of the breathalyzer test, and: provided information that the machine was correctly calibrated and accurate. The IP-01E form stated that the machine’s diagnostics were “ok,” and that, the “calibration of the instrument [was] certified to meet, acceptable standards of accuracy.” The IP-01E form was introduced as Exhibit 168, and defense counsel acknowledged receiving this document through discovery. Therefore, both Kennedy’s testimony and the IP-01E form allowed the court to satisfy its initial determination that the machine was accurate. See Dobbins, 938 So.2d at 297 (¶ 6).

2. Calibration Certificates

¶ 18. Prince, however, does not contest this portion of Kennedy’s testimony, or the IP-01E form—instead, Prince argues that the calibration certificates, which contained much of the same information, were required to be introduced, either before or simultaneously, -with the IP-01E form. The disputed certificates affirmed the accuracy of the Intoxilyzer used on Prince, before and after Prince’s breath sample was taken. Because they allegedly were not disclosed before trial, Prince asserts that this constituted a discovery violation, and therefore, he was entitled to some form of relief as set out in Rule 9.04.

¶ 19: “In reviewing rulings of a trial court regarding matters' of evidence ... and discovery violations, the' standard of review is abuse of discretion.”. Myers v. State, 145 So.3d 1143, 1147 (¶ 10) (Miss. 2014). Prince argues the circuit court abused its discretion when it admitted into evidence the certification documents and breathalyzer results, resulting in prejudice to Prince. His principal foundation for this argument is that, had the defense been made aware that the State would seek to introduce these calibration certificates, the defense, would have requested other documents regarding the machine’s accuracy. Prince further argues that this alleged discovery violation hindered the defense’s ability to properly investigate and defend against the undisclosed documents.

¶ 20. “When a discovery violation is alleged, we must review the record to determine whether the procedure set forth in Box v. State, 437 So.2d 19, 23-25 (Miss. 1983) (Robertson, J., specially concurring), was followed by the trial court.” Bankston v. State, 907 So.2d 966, 971 (¶ 15) (Miss. Ct. App. 2005). The guidelines set forth in Box have been adopted in Rule 9.04(1). Id. Reviewing Rule 9.04 and the record, we find that the circuit court complied with the Box procedures, and thus did not abuse its discretion.

¶ 21. The circuit court stated that it was not going, to find there was a discovery violation by the State for a variety - of reasons. First, the defense did not prove that the State willfully withheld the certification .documents—the State claimed it disclosed the documents, while the defense claimed it did not. See Travis v. State, 13 So.3d 320, 329 (¶ 30) (Miss. Ct. App. 2008) (holding “[e]xclusion of evidence for a discovery violation is an extreme sanction and is only appropriate where ... [the] violation was willful and motivated by a <jesire to obtain a tactical advantage”). Second, the information provided ;in the IP-01E form was essentially the same as that found within the allegedly undisclosed certification certificates. Third, the court found that defense counsel—being well experienced in DUI litigation—could have easily requested any additional documentation he knew, or believed, he would need. Lastly, the court found that any discovery violation, if one had occurred, would .be cured by a. continuance—which the court provided defense counsel. The court specifically granted the continuance so that the defense could review the certification documents with its expert; following the continuance, defense counsel did not move for another continuance or a mistrial.

¶ 22. Therefore, we find that the circuit court properly followed the procedures set forth in Box and Rule 9.04(1); thus, the circuit court did not abuse its discretion in admitting the- certification documents into evidence. As there was ample evidence related to the Intoxilyzer 8000’s, accuracy, we do not find there , was any discovery violation requiring the exclusion of these results, nor grounds to declare a mistrial. This issue is without merit.

II. The circuit court did not err in denying Prince’s motion for a JNOV.

¶23. Prince next argues that the circuit court erred in denying his motion for a JNOV. “A challenge to the sufficiency of the evidence requires this Court to determine whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did. so under such circumstances that every element of the offense existed[.]’” Nolan v. State, 182 So.3d 484, 488-89 (¶ 7) (Miss. Ct. App. 2016) (quoting Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005)). Evidence is deemed “insufficient to support the verdict where ‘the facts and inferences ... point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty[.]’” Id. The evidence must be viewed in the light most favorable to the State. Id.

¶ 24. Prince was convicted of aggravated DUI under section 63-11-30(5), which required the State to show that: (1) Prince operated a vehicle while he was under the influence of an intoxicating liquor or possessed a BAC of .08% or higher; (2) he drove in a negligent manner; and (3) his negligent operation caused the death of another, or mutilated, disfigured, permanently disabled, or destroyed the tongue, eye, lip, nose, or any other limb, organ, or member of another. See Miss. Code Ann. § 63-11-30(5). Looking to the evidence presented by the State, we find that there was sufficient evidence to prove beyond a reasonable doubt that Prince violated section 63-11-30(5).

¶25. As discussed above, the State offered into evidence Prince’s breathalyzer results, which showed he had a BAC of .199% at the time of his arrest—over twice the legal limit. See Miss. Code Ann. § 63-11—30(l)(d)(i). This alone would be enough to prove the first element. However, Kennedy provided additional evidence, testifying that Prince had slurred speech, had glazed-red eyes, emanated an alcoholic odor, and admitted to Kennedy that he had been drinking. Witnesses also testified that Prince was driving erratically before the accident, and beer cans fell from his vehicle during the collision or shortly thereafter. The State next showed that Prince operated his vehicle in a negligent manner, sufficiently satisfying the second element of section 63-11-30. Again, witness testimony revealed that prior to the collision, Prince’s driving forced other drivers off the road. Furthermore, the accident was caused because Prince negligently ran a red light, causing him to strike the Salases’ vehicle, which had the right-of-way.

¶ 26. Regarding the final element, Prince asserts that expert testimony was required to prove the severity of the injuries sustained by the Salases. In arguing this point to the circuit court, defense counsel cited no authority, and fails to do so on appeal to this Court. We find as the circuit court did, and hold that Michael’s testimony provided sufficient evidence of his and his family’s severe injuries. Michael testified that he sustained a broken hip and broken ribs, while the Salases’ youngest son died at the scene. Additionally, one of the children suffered paralysis of his right side; is wheelchair bound; and suffers brain damage, delayed speech, inability to communicate, and loss of vision. Another Salas child suffered paralysis in her left arm and permanent scarring on her face. The last child suffered a neck injury.

¶ 27. We find that the State did not have to provide expert testimony regarding the degree of injuries sustained by the Salas family. Thus, Michael’s testimony was sufficient to prove the final element' of section 63-11-30(5). When reviewing the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the State. Bush, 895 So.2d at 843 (¶ 16). In doing so, we find there was substantial, credible, and reasonable evidence to sufficiently support Prince’s convictions of aggravated DUI. This issue is without merit.

III. The verdict was not against the overwhelming weight of the evidence.

¶28. Prince next argues that the verdict was against the overwhelming weight of the evidence. This Court “will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. at (¶ 18). “The evidence should be weighed in the light most favorable to the verdict.” Id.

¶29. Viewing the evidence in the light most favorable to the verdict, we cannot say that to let the jury’s verdict stand would sanction an unconscionable injustice. See id. (citing Amiker v. Drugs For Less Inc., 796 So.2d 942, 947 (¶ 18) (Miss. 2000)). Based upon the evidence introduced by the State, we find that any rational trier of fact could have found Prince guilty of aggravated DUI beyond a reasonable doubt. Despite Prince’s attempt to discredit Kennedy’s testimony regarding his observation, the circuit court found that proper procedure was followed, resulting in the admission of Prince’s breathalyzer results. We have found no error with the admission of those BAC results.. Thus, regardless of whether the weight of Kennedy’s testimony was substantially lessened by the arguments set forth at trial by Prince, the jury still found Kennedy’s statements credible and convincing. As such, we find the State provided sufficient evidence for each element of the charged offense, and therefore, the jury’s verdict is not so contrary to the overwhelming weight of the evidence that to let it stand would sanction an unconscionable injustice. We find no merit to this issue.

IV. The circuit court did not err in denying jury instruction D-3.

¶30. Lastly, Prince- argues that the trial court abused its discretion in denying his proposed jury instruction, D-3. We give “abuse-of-discretion deference to the trial judge’s decision” with regard to the giving or refusing of jury instructions. Flowers v. State, 51 So.3d 911, 912 (¶ 5) (Miss. 2010). “[Proposed instructions should generally be granted if they are correct statements of law, are supported by the evidence, and are not repetitious.” Id. at (¶ 6) (citation omitted). If, however, “[w]hen read together, ... the jury instructions state the law of the case and create no injustice, then no reversible error will be found.” Watkins v. State, 101 So.3d 628, 634 (¶ 22) (Miss. 2012).

¶ 31. Denied jury instruction D-3 read as follows:

According to the Mississippi Department of Public Safety’s guidelines and the Intoxilyzer 8000 Implied Consent Policies and Procedures manual, a twenty-minute observation period is required immediately before a breath sample is taken. The observation period is a period during which' the person being tested has been observed to determine that he has not ingested alcohol or other fluids, regurgitated, vomited, eaten, smoked, or placed anything into his mouth in the 20 minutes immediately prior to the collection of a breath sample.
If you find that Master Sergéant Maurice Kennedy did not observe the Defendant for the required twenty-minute period prior to BRETT MATTHEW PRINCE’S breath test, you cannot find that his blood alcohol concentration was at or above eight one-hundredths percent (.08%) and must find, him NOT GUILTY.

¶32. By having this proposed jury-instruction denied, Prince claims he was deprived his right to have his theory of the case presented to the jury—i.e., that Kennedy did not observe Prince for the mandatory twenty-minute period. The trial court, however, denied the instruction for two reasons: (1) defense counsel had no caselaw to support the instruction; and (2) the instruction inaccurately stated the law in that it would encroach upon the circuit court’s gatekeeping authority regarding the admissibility of evidence. We agree.

¶ 33. Before the breathalyzer results could be admitted into evidence, the trial court'was required to’determine whether the proper procedures were followed. McIlwain, 700 So.2d at 590 (¶ 17). Here, the circuit court found they were, and admitted Prince’s breathalyzer results. The admissibility of evidence is within the province of the court. Once evidence is deemed competent, and admitted by the court, then the jury “may determine the weight to be given the [evidence], and this includes all the attendant circumstances showing the strength or weakness of the [evidence]. The jury is the judge of the weight and worth of the [evidence] admitted ... by the judge.” Harden v. State, 59 So.3d 594, 609 (¶ 40) (Miss. 2011). To reiterate, “[a] dispute as to whether the observation lasted the mandatory length of time or whether the observation was performed while in the presence of an officer goes to the weight of the testimony and the credibility of the witnesses." Parkman, 108 So.3d at 446 (¶ 6) (emphasis added).

¶ 34. Here, the jury was instructed as follows:.

The production of evidence in court is governed by the rules of law. From time to time during the trial it has been [the] duty as judge to rule on the admissibility of evidence. You must not concern yourself with the reaso.ns for-my rulings since they are controlled and governed by the rules of law .... It is [the jury’s] exclusive province to determine the facts in this case and to consider and weigh the evidence for that purpose .... You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves.

Thus, we find that the instructions ultimately given were accurate statements of law, and proficiently outlined the jury’s duty. The jury was free to weigh .Kennedy’s testimony as it found fit—however, it was not within the jury’s duty to determine whether evidence presented in the case was competent or admissible. See Harden, 59 So.3d at 609 (¶ 40) (holding “[i]t is the judge’s duty to determine whether or not the [evidence] is admissible”). And because Prince repeatedly asserted his theory of the case throughout trial, we find the circuit court did not abuse its discretion in denying proposed jury instruction D-3. This 'issue is also without merit.

CONCLUSION

¶ 35.' Reviewing the record before this Court, we find no error on the part of the circuit court. Accordingly, we affirm.

¶ 36. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, OF CONVICTION OF FIVE COUNTS OF AGGRAVATED DRIVING UNDER THE INFLUENCE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR COUNT I, FIVE YEARS EACH FOR COUNTS II AND III, AND TWENTY YEARS EACH FOR COUNTS IV AND V, WITH THE SENTENCE FOR COUNT I TO RUN CONSECUTIVELY TO THE SENTENCE FOR COUNT II, AND CONCURRENTLY WITH THE SENTENCES FOR COUNTS III-V, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P. JJ., CARLTON, FAIR,'WILSON'AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The record reflects that Kennedy had been trained and certified for operation of the' In-toxilyzer 8000.