author: DICKINSON, PRESIDING JUSTICE, . CHAMBERLIN, JUSTICE,

text:
    Arlin George HATFIELD, III v. DEER HAVEN HOMEOWNERS ASSOCIATION, INC.
    NO. 2016-CP-00820-SCT
    Supreme Court of Mississippi.
    09/14/2017

      ATTORNEY FOR APPELLANT: AR-LIN GEORGE HATFIELD, III (PRO SE)
    ATTORNEYS FOR APPELLEE: TIMOTHY JAMES ANZENBERGER, MICHAEL SCOTT JONES, JAMES L. MARTIN
   DICKINSON, PRESIDING JUSTICE,

FOR THE COURT:

¶ 1. A homeowner appeals an award of attorney fees associated with a complaint filed against him for injunctive relief to enforce a neighborhood’s restrictive covenants. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 31, 2013, the Deer Haven Owners Association filed a Complaint for Mandatory Injunction and Other Relief against Arlin George Hatfield III in the Chancery Court of Madison County, claiming Hatfield — a homeowner in the subdivision — had violated the subdivision’s restrictive covenants by erecting pens for various fowl without the covenants’ required prior approval, and that Hatfield’s fowl had violated the covenants’ prohibition against noxious or offensive activities by roaming around the subdivision and making loud noises. The Association sought an injunction ordering Hatfield to comply with the covenants and an award of attorney fees.

¶ 3. Hatfield answered and filed a counterclaim seeking a declaratory judgment. He asked the chancellor to declare that his birds were domestic animals which could be kept in Deer Haven consistent with the covenants and that the pens were not improvements within the meaning of the covenants. Hatfield also sought attorney fees.

¶ 4. On June 29, 2015, the Association filed an amended complaint alleging that the Madison County Board of Supervisors had rendered a decision finding that “Hatfield’s keeping and raising of birds/fowl on his lot [was] a violation of the Madison County Zoning Ordinance.” And according to the Association, Hatfield’s failure to comply with county zoning ordinances also violated the covenants.

.¶ 5. The parties' filed motions for summary judgment and the chancellor held a hearing, following which the chancellor granted the Association's* motion, found that Hatfield had violated the Madison County Zoning Ordinance, and concluded that the Association was entitled to an injunction ordering him to remove the fowl from his property. The chancellor also concluded the Association was entitled to recover attorney fees, but that.a hearing was necessary to determine the appropriate amount. Finally, the chancellor found that triable .issues of fact remained as to whether the pens were a improvement erected in violation of the covenants. But the parties later filed an agreed judgment stating any issues regarding the pens were moot because Hatfield had removed them from the property.

¶ 6. On December 15, 2015, the chancellor held a hearing on the issue of attorney fees and later denied fees for either party. The Association moved for reconsideration, arguing a Mississippi Court of Appeals decision held it was an abuse of discretion to deny attorney fees when provided for in restrictive covenants. Hatfield responded, arguing that, while the covenants did provide for the prevailing party to recover attorney fees, the amount of those fees was left to the chancellor’s discretion, and the chancellor was justified in awarding the Association no fees because a large portion of the fees were incurred before the Association filed its amended complaint to add the only ground upon which it prevailed. Hatfield also argued the Association had failed to present sufficient evidence to support an award of attorney fees because the billing statements were insufficiently definite to show which fees corresponded. with the prevailing claim.

¶ 7. The chancellor held a hearing on the motion for reconsideration. After the hearing, the chancellor granted the motion and awarded the Association $50,250 in attorney fees. The chancellor rejected Hatfield’s argument that the Association could not recover fees incurred before it filed the amended complaint. According tó the chancellor, the original complaint sought to have the fowl and pens removed for violations of the covenants, and the Association prevailed on that argument. Hatfield appealed.

ANALYSIS

¶ 8. On appeal, Hatfield primarily argues the chancellor erred by awarding the Association attorney fees. But Hatfield first devotes a significant portion of his brief to accusing the chancellor and the Association’s attorneys of misconduct. In his record excepts, Hatfield has provided a “Motion for Mistrial” which he filed in the chancery court after this case already had been appealed to this Court. Attached to the motion is what appears to be a judicial performance complaint against the chancellor, bar complaints against the Association’s attorneys, and a bar complaint against the Association’s president, who also is an attorney. The argument in Hatfield’s brief mirrors that in the judicial performance complaint.

¶ 9. The Association has filed a motion to strike Hatfield’s brief and record excerpts, arguing they should be struck because (1) they contain language disrespectful to the trial judge, (2) the “Motion for Mistrial” and its exhibits are not in the record on appeal, and (3) these arguments — which are ethical complaints — must be addressed through the Mississippi Bar 'Association and the Mississippi Commission on Judicial Performance. On March 21, 2017, Justice Chamberlin entered a single-justice order passing this motion for consideration with the merits.

¶ 10. This Court 'finds that' the motion to strike should be granted. Mississippi Rule of Appellate Procedure 28(1) provides that “[a]ny brief containing language showing disrespect or contempt for the trial court will be stricken from the files, and the appropriate appellate court will take such further action as it may deem proper.” As the Association argues, Hatfield’s brief is full of language disrespectful to the chancellor.

¶ 11. Hatfield essentially argues that every time the chancellor ruled against him, the ruling was purely the result of the chancellor’s'bias. Hatfield never identifies any particular conflict of interest or any evidence of bias. He also never provides any argument or citation to suggest any of the chancellor’s rulings—except the award of attorney’s fees—were legally incorrect. Further, nothing in the record reflects bias on the part of the chancellor. Instead, Hatfield simply lodges speculative claims of bias without foundation, often employing boldface and all-capital letters when describing the chancellor’s “prejudice.”

¶ 12.. Further, the Association correctly points out that this portion of Hatfield’s brief and record excepts is based on matters outside the record on appeal. Mississippi Rule of Appellate Procedure 10(a) provides that “[t]he parties shall designate the content of the record pursuant to this rule, and the record shall consist of designated papers and exhibits filed in the trial court, the transcript of proceedings, if-any, and in. all cases a. certified copy of the docket entries prepared by the clerk .of the trial court.” Rule 30(a) then provides that “[ajppeals. shall be on the record as designated pursuant to Rule 10.” “Mississippi appellate courts may not consider information that is outside the record.”

¶ 13. Here, Hatfield’s “Motion for Mistrial” and its supporting documentation are not in the record. In fa'ct, the record was filed in this Court October 17, 2016. These documents- were not filed in the chancery court until February 6, 2017. They are not properly part of the record before this Court and cannot, be considered. Likewise, Hatfield’s ethical complaints against the Association’s attorneys are based on his belief that they threatened the chancellor in order to -persuade him to allow an amended complaint. But no such threat is reflected in the record.

¶ 14. Finally, as noted above, Hatfield cites no authority- to show that any of the chancellor’s rulings—attorney fees aside—was erroneous. “It is the duty of the briefing party to cite to authority which supports Its argument. The Court ‘considers assertions of error not supported by citation or authority to be abandoned.’” Instead, Hatfield focuses this portion of his brief not on legal error, but on his belief that the chancellor violated the Canons of Judicial Conduct and that the attorneys violated the Rules of Professional Conduct. These matters, if at all, should be addressed through disciplinary proceedings, not a direct appeal.

Attorney Fees in the Trial Court

¶ 15. This Court reviews an award of attorney fees for an abuse of discretion. The award must be supported by credible evidence, but determining a reasonable fee is left to the discretion of the trial judge.

¶ 16. “This Court has stated ‘unless a statute or contract provides for the imposition of attorney fees, they are not recoverable.’ ” Here, the chancellor based the award of attorney fees to the Association on Section 10.03 of the Declaration of Covenants, Conditions and Restrictions for Deer Haven, which provides:

In any legal or equitable proceeding for the enforcement or to restrain the violation of this Declaration or any provisions hereof by reference or otherwise, the prevailing party or parties shall also be entitled to an award of reasonable attorney’s fees, in such amount as may be fixed by the court in such proceeding.

¶ 17. Hatfield does not argue this provision is unenforceable. In fact, Hatfield sought attorney fees under this provision in the trial court. Nor does Hatfield argue the Association’s attorneys billed unreasonable rates or hours. Instead, Hatfield argues the chancellor erred for two other reasons.

11.18. First, Hatfield argues that the chancellor erred in his application of Section 10.03. Hatfield points out that Section 10.03 allows recovery by the prevailing party, but leaves the amount to be determined by the court. Hatfield argues that, under this provision, the Association could not recover any fees expended before it filed its amended complaint because the amended complaint alleged the only ground upon which the Association prevailed: Hatfield’s failure to comply with county zoning ordinances. Further, Hatfield argues that the chancellor should have awarded no attorney fees at all because the Association failed to present sufficient evidence to prove which fees related particularly to the zoning ordinance theory.

¶ 19. Hatfield relies on two Mississippi Court of Appeals opinions. A & F Proper ties, LLC v. Lake Caroline, Inc. concerned a dispute surrounding A & F’s contract to build and run a golf course for the Lake Caroline subdivision. There, the suit involved three distinct matters. First, A & F claimed Lake Caroline failed to construct an adequate road into the golf course. Second, under the contract, Lake Caroline was to convey ten lots in the neighborhood to A & F. The parties, however, disputed the method of selecting those lots. Finally, the contract required A & F “to execute a ‘Maintenance Deed of Trust’ in favor of Lake Caroline that would serve as a permanent lien on the golf course property.” The parties had a third dispute concerning this obligation.

¶ 20. Lake Caroline prevailed on- the lot-selection and deed-of-trust issues. But A & F prevailed on the road-construction issue. The contract at issue provided for an award of attorney fees:

If it becomes necessary to insure the performance of the terms and conditions of this Contract by any party hereto having to employ an attorney, then the party admitting default, or the party adjudicated as the defaulting party by a court of competent jurisdiction, shall pay reasonable attorneys’ fees and the court cost incurred, if any.,

¶21. On appeal, the Court of Appeals .held that, under this provision, A & F could recover only attorney fees expended in litigating the road-construction issue— the only issue on which it prevailed. The Court of Appeals also held that no attorr ney fees could be awarded because the proof-presented at trial was insufficient to distinguish between .the awardable attorney fees expended for the road-construction claim and those expended for other claims.

¶ 22. Likewise, Industrial and Mechanical Contractors of Memphis, Inc. v. Tim Mote Plumbing, LLC concerned a dispute based on Industrial’s contract with Mote as plumbing subcontractor for a commercial building construction project. Industrial claimed that Mote had breached the contract in three ways. “First, [Industrial] contended that Mote failed to properly ‘tie-in’ a water pipe, resulting in a leak beneath part of the parking lot.” “Second, evidence was also presented at trial alleging that Mote breached the contract by failing to properly compact the trenches in which Mote laid sewage and water pipes.” “Finally,[Industrial] asserted that Mote breached the contract when Mote employees punched holes in the sheetrock walls inside the building in an effort to locate water cutoff valves, requiring [Industrial] to repair the holes at [Industrial’s] expense.”

¶ 23. The chancellor found for Industrial on the first claim only, and denied Industrial’s request for attorney fees. The contract had a provision providing for the recovery of attorney fees: '

If it becomes necessary for Contractor to employ an attorney to enforce its rights against Subcontractor, Subcontractor agrees to pay a reasonable attorney’s fee to such attorney plus all costs of litigation incurred by Contractor.

On appeal, the Court of Appeals applied the rule it articulated in A & F Properties, LLC and held, that Industrial could not recover attorney fees for work related to the two claims on which it did not prevail.

¶24. Hatfield argues this case is analogous. According to Hatfield, the Association brought several claims against him: that he violated the restrictive covenant requiring prior approval to erect improvements, that he violated the restrictive covenant prohibiting noxious activities, and that he violated the restrictive covenant requiring compliance with all-zoning ordinances. Because the chancellor’s ruling in the Association’s favor was based on only one of the three — compliance with zoning ordinances — -Hatfield argues the Association was only entitled to recover only fees expended in advancing that argument. And because the proof does not show which fees corresponded with which theory, he believes no fees should have been awarded. We disagree.

¶ 25. The covenant in question provides for the “prevailing party” to recover attorney fees “[i]n any legal or equitable proceeding for the enforcement or to restrain the violation of this Declaration- or any provisions hereof by reference or otherwise.” As. the chancellor reasoned, the Association filed an equitable action for in-junctive relief to enforce the covenants by having Hatfield’s birds and pens removed from the property. -The Association prevailed because it had obtained that relief. So we find that the chancellor correctly applied the plain language of the attorney-fees provision.

¶ 26. Hatfield next argues the chancellor erred by awarding attorney fees incurred by the attorney the Association’s liability insurance carrier retained to defend against Hatfield’s counterclaim. According to Hatfield, because the Association did not pay these sums — the insurer did — it cannot recover these sums.

¶ 27. The chancellor awarded the Association $50,250 in attorney fees and costs. The proof adduced at trial showed the Association paid or owed the attorney it retained — James L. Martin of Taggart, Rimes, & Graham — $29,477.12. The proof also established that the Association paid a $2,500 deductible for the work performed by the attorney its insurer retained — M. Scott Jones of Adams and Reese, LLP— who accrued $36,684 in fees excluding that deductible. Finally, the president of' the Association testified that Jones’s fees had been paid by the insurance company.

¶ 28. Because the combined amount owed by the Association for Martin’s fees and the deductible is $31,977.12, at least $18,272.88 of the fees the chancellor awarded represents fees incurred by Jones and paid by the insurer. Hatfield argues that the Association cannot be awarded these fees it did not pay.

¶29. This Court will affirm if a trial judge’s award of attorney fees is supported by credible evidence. Here, the covenants provided that “the prevailing party or parties shall also he entitled to an award of reasonable attorney’s fees,' in such amount as may be fixed by the court in such proceeding.” The covenants do not restrict the entitlement to an award only of attorney fees that are paid by the Association. Hatfield cited no authority to the chancellor — and he cites none here — that would require a reduction in the award of attorney fees based on who paid the fees. Indeed, under the facts here, we know of no authority that would require a reduction of the fees, even if they had not been paid at all. The covenants’ only requirement is that the fees be reasonable.

Attorney’s Fees on Appeal

¶ 30. The Association has filed a motion for this Court to award attorney fees incurred in litigating this .appeal. Where a contract provides for an award of attorney fees, fees are awarded in the trial court, and the appellee successfully defends that award on appeal, this Court has awarded fees incurred in litigating the appeal upon motion by the appellee. In Dixie Contractors, Inc. v. Ballard, this Court awarded “a fee for the services of his- attorney on this appeal in the amount of one-half of that allowed by the trial court.” The Association requests the same here; or $25,125.00. While allowing attorney fees on appeal in an amount equal to one-half of the fees allowed by the trial court may not be fair and equitable in all cases, we find doing so here to be appropriate. We think the better practice, however, would be for the party seeking attorney fees on appeal to file a motion in this Court, supported by affidavits and time records that' establish the actual fees expended on appeal.

CONCLUSION

¶ 31. The judgment of the Chancery Court of Madison County is affirmed. And this Court grants the appellee’s motions to strike and for attorney fees on appeal in the amount of $25,125.00; ¶32. AFFIRMED.

WALLER, C.J., KITCHENS, KING, MAXWELL AND BEAM, JJ„ CONCUR. CHAMBERLIN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND COLEMAN, J.

. CHAMBERLIN, JUSTICE,

CONCURRING IN PÁRTAND . DISSENTING IN PART:

¶ 33. In response to the majority, I feel compelled to swoop in and kill two birds with one.stone. I am as happy as a lark to join the flock in affirming the chancellor in this case. However, I must also spread my wings and dissent in part because I fear that the majority’s award of $25,125 in appellate attorney’s fees against, a pro-se litigant — without' any evidentiary support in our record for the award — could become the goose that laid the golden egg. It doesn’t take eagle eyes to see the problem with this approach. Therefore, I must cry “fowl.”

¶34. The majority’s caution that “the better practice ... would be for the party seeking attorney fees on appeal to file a motion in this Court, supported by affidavits and time.records that establish the actual fee expended on appeal” is correct. (Maj. Op. at ¶ 30). As a matter of fact, it is so much better that we should require it.

¶ 35. Our Court s past directives on awards of attorney’s fees have been clear: “The court may not judicially note what is a reasonable fee and it certainly may not merely pull a figure out of thin air. Rather, the party entitled to recover a reasonable fee must furnish an evidentiary predicate therefor.” Key Constructors, Inc. v. H & M Gas Co., 537 So.2d 1318, 1325 (Miss. 1989). Key found “in no uncertain terms” that “ ‘reasonable attorney[’]s fees’ require[d] proof.” Id. There must be an evi-dentiary predicate. Sanford v. Jackson Mall Shopping Ctr. Co., 516 So.2d 227, 230 (Miss. 1987).

¶ 36. I see no reason why an appellate award should be treated any differently than a trial award. While judicial economy might be served using this method on small awards or in circumstances where justice requires, the facts of this case present neither situation. I would find that appellate counsel, just like trial counsel, should have to “furnish an evidentiary predicate []for” an award of attorney’s fees. Key, 537 So.2d at 1325.

¶ 37. Others may think my position birdbrained, but I sincerely believe that, once the chickens come home to roost, this opinion will be a feather in my cap. Therefore, I dissent as to this issue. .

RANDOLPH, P.J., AND COLEMAN, J., JOIN THIS OPINION.

      . Section 10.03 of the Declaration of Covenants, Conditions and Restrictions for Deer Haven provides:
      In any legal or equitable proceeding for the enforcement or to restrain the violation of this Declaration or any provisions hereof by reference or otherwise, the prevailing party or parties shall also be entitled to an award of reasonable attorney’s fees, in such amount as may be fixed by the court in such proceeding.

      . Miss. R. App. P. 28(Z).

      . Miss. R. App. P. 10(a).

      . Miss. R. App. P. 30(a).

      . Hardy v. Brock, 826 So.2d 71, 76 (Miss. 2002) (citing Dew v. Langford, 666 So.2d 739, 746 (Miss. 1995)).

        .Russell Real Prop. Servs., LLC v. State, 200 So.3d 426, 430 (Miss. 2016) (citing Miss. R. App. P. 28(a)(6); quoting McNeil v. Hester, 753 So.2d 1057, 1075 (Miss. 2000)).

      . Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (Miss. 2002) (citing Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 103 (Miss. 1995)).

      . Cook, 832 So.2d at 486 (citing Regency Nissan, Inc., 678 So.2d at 103; quoting Gilchrist Tractor Co. v. Stribling, 192 So.2d 409, 418 (Miss. 1966); Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss. 1999)).

      . Hearn v. Autumn Woods Office Park Prop. Owners Ass'n, 757 So.2d 155, 164 (Miss. 1999) (quoting Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss. 1986)).

      . See Cook, 832 So.2d at 486 (quoting Miss. R. Prof’l Conduct 1.5) (" ‘(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.’ ”).

      .Hatfield argues that this makes the attorney fees provision permissive, rather than mandatory. That distinction, for purposes of this appeal, is irrelevant. The chancellor awarded attorney fees. Hatfield asks this Court to reverse the award. Whether the chancellor had to award them, or exercised his discretion to do so, is irrelevant because, to prevail on appeal, Hatfield must show that the chancellor could not do so.

      . A & F Props., LLC v. Lake Caroline, Inc., 775 So.2d 1276, 1278 (Miss. Ct. App. 2000).

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id. at 1282-83.

      . Id. at 1283.

      . Id. at 1283-84.

      . Indus. and Mech. Contractors of Memphis, Inc. v. Tim Mote Plumbing, LLC, 962 So.2d 632, 634 (Miss. Ct. App. 2007).

      . Id. at 634-35.

      . Id.

      . Id. at 635.

      . Id.

      . Id.

      . Id. at 638.

      . Id. at 638-39 (citing A & F Props., LLC, 775 So.2d at 1282-83).

        .Cook, 832 So.2d at 486 (citing Regency Nissan, Inc., 678 So.2d at 103; quoting Gilchrist Tractor Co., 192 So.2d at 418; Mauck, 741 So.2d at 269).

      . See Knight v. McCain, 531 So.2d 590, 597 (Miss. 1988); Dixie Contractors, Inc. v. Ballard, 249 So.2d 653, 657 (Miss. 1971).

      . Dixie Contractors, Inc., 249 So.2d at 657.


source: Caselaw Access Project

author: CHAMBERLIN, JUSTICE,

license: Public Domain

text:
    Brandy Nicole WILLIAMS a/k/a Brandy Williams a/k/a Brandy N. Williams v. STATE of Mississippi
    NO. 2016-KA-00552-SCT
    Supreme Court of Mississippi.
    09/21/2017
    Rehearing Denied December 14, 2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. ■ COOK GEORGE T, HOLMES ANDRE de GRUY

      ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA H. TEDDER
    BEFORE RANDOLPH AND KITCHENS, P.JJ., AND CHAMBERLIN, J.
   CHAMBERLIN, JUSTICE,

FOR THE COURT:

¶ 1. On March 18, 2016, a George County jury convicted Brandy -Williams of the capital murder of Sheriff Garry Welford. The George -County Circuit Court sentenced Williams to life without the possibility of parole in the custody of the Mississippi Department of Corrections. Williams now appeals: She argues that the .trial court committed reversiblé error by not quashing her indictment, improperly instructing the jury and admitting evidence of Williams’s prior crimes. After review, we affirm.

STATEMENT OF THE FACTS

¶2. Williams lived primarily in George County. before July 21, 2010. She and Christopher Baxter had been dating since the fall of 2009 — a fact that was known throughout the law enforcement community of George County. George County Deputy Bobby Daffin claimed that he never saw Baxter without seeing Williams and never saw Williams without seeing Baxter. Williams and Baxter regularly lived in her father’s trailer together, and Williams often drove her father’s maroon Chevrolet Z71 truck (the “Z71”).

¶ 3. On April 26, 2010, Baxter pleaded guilty in the Circuit Court of George County to the manufacture of methamphetamine; the court continued his sentencing until July 19,2010. Williams admitted that she knew Baxter had pleaded guilty in court and that he would have to go back to jail.

¶4. Williams also had a prior criminal record; she had been indicted for two separate counts of grand larceny in November and December of 2008. Williams had-enrolled in a pretrial .diversion agreement in the Jackson County Circuit Court on July 15, 2010 — only six days before Sheriff Welford was killed. One of the conditions of her participation in the pretrial diversion program was to “avoid persons ... of disreputable ’or harmful character.”

Monday, July 19,2010

¶5; On Monday,: the day of Baxter’s sentencing, Baxter left Williams’s residence around 9:15 a.m. in his Sonoma. Williams alleged that Baxter told her that he was going to court. Baxter never appeared ⅛,court though, and a bench warrant was issued for his arrest, Around 12:45 p.m.,, George County deputies arrived at Williams’s residence, and Williams told them that Baxter had left that morning to go to court. Williams stated that she did not see Baxter again until Wednesday, July 21,2010.

¶6. Rita Butler, Williams’s next-door neighbor, admitted that on Monday morning Williams knew that Baxter “hadn’t turned himself in .... So, yeah, she knew at that time that he had not and he was running from the law.” Butler also testified that Williams had told her on Monday that she was through with Baxter.

Tuesday, July 20, 2010

¶7. Robin Howell, Baxter’s aunt, testified that Baxter arrived at Howell’s house on Tuesday evening, driving the Z71. Further, she testified that Williams and Baxter left her home together that evening in the Z71.

Wednesday, July 21,2010

Before the Pursuit

¶ 8. Williams alleged that on Wednesday-morning she was at Baxter’s father’s house while Baxter’s father repaired the Z71’s brakes. She stated that Baxter drove up in his truck before noon and asked her to drive him into town to get some screws for his truck. Williams maintained that this was the first time that she had seen Baxter since he left her house on Monday morning to go to court. She agreed to drive Baxter into town in the Z71 and admitted that she knew that the police were looking for him. Williams claimed that she had told Baxter on the way into town that she wanted to break up, mentioning that she had just entered the pretrial diversion program.

¶ 9. According to Williams, she drove Baxter to the Walmart and entered the store alone to get the screws. Howell claims that Williams then called her and said that there were “too many cops” at the Walmart and that they should meet at a fee station in Twin Creek. Howell did meet Williams and Baxter to get the screws from them. According to Howell, Williams was driving the Z71 as she left the fire station, and Baxter was in the passenger seat.

¶ 10. At 2:38 p.m., Deputy Daffin, exiting a parking lot onto Scott Road, saw the Z71 on Old Highway 63 waiting to turn onto Scott Road. The Z71 turned onto Scott Road and was aligned pai'allel to Daffin’s vehicle temporarily. Daffin saw that Williams was driving. He also saw that the passenger seat was leaned back and “could see what appeared to be an elbow or arm sticking up as if someone were trying to hide in the vehicle.” At that point, Daffin believed Baxter was hiding in the Z71.

The Pursuit

¶ 11. Daffin made a u-turn and approached the Z71 to attempt a traffic stop. Daffin testified that the. Z71 accelerated as he turned around and'that he did not catch up to it again until it had traveled down Scott Road to the intersection with Highway 26.

¶ 12. After stopping at the end of Scott Road, Williams turned onto Highway 26. Daffin followed Williams onto Highway 26 and turned on his blue lights and sirens. Daffin pursued Williams for approximately 16.8 miles from Highway 26 to the scene of the impact. The entire chase took only thirteen to fourteen minutes; Throughout the chase, Williams often drove recklessly at speeds from 75 to 100 miles per hour.

The Checkpoint

¶ 13. After being notified of the pursuit, Sheriff Welford and Deputy Tony Keel left the Sheriffs department in Lucedale in Sheriff Welford’s Dodge Charger (the “Charger”). They determined that the pursuit was headed west and set up a checkpoint at the intersection of Howard Road and Bexley Road South. Investigator Duane Bowlin and Agent Justin Strahan soon joined Sheriff Welford and Keel. Once the checkpoint was setup, Bexley Road South was not fully blocked in either direction. Two avenues of escape were left open in case Williams decided not to stop. Also, the blue lights in all three vehicles were activated. ■

¶ 14. Deputy Bowlin testified that as soon as he arrived at the checkpoint, he exited his vehicle and was walking toward Sheriff Welford’s Charger when he heard the “steady roar” of the Z71’s approach. He turned back toward his own vehicle and turned again toward the Charger in time to see Sheriff Welford struck by the Z71.

¶ 15. Bowlin further testified that he remembered seeing the passenger in the Z71 at the time of impact:

I remember seeing what I thought at the time was a face, and I always said that it had hair characteristics similar to Chris Baxter ... and I would have seen it right about the same time as the impact. As the truck passed by, it would have been a facial feature. And looking back now, I believe that person was looking at me as well.

Bowlin clarified that he did not merely assume that Baxter was the passenger: “I couldn’t identify who it was in the passenger seat. I just know when I saw the facial features, just a face with hair, similar to Chris Baxter’s.” He further testified that the passenger had short hair.

After the Pursuit

¶ 16. Daffin came upon the scene soon after the Z71 left and exited his vehicle to assist Sheriff Welford. Sheriff Welford eventually was airlifted to a hospital. He passed away from his injuries on July 21, 2010.

Wednesday, July 22, 2010

¶ 17. Baxter and Williams both were arrested on July 22, 2010. Law enforcement authorities interviewed Baxter on July 22. The interview was entered into ■ evidence and played for the jury after Baxter asserted his Fifth Amendment right not to testify at Williams’s trial.

PROCEDURAL HISTORY

¶ 18. Williams was indicted by a George County grand jury on January 18, 2011, for capital murder under Mississippi Code Section 97-3-19(2)(a). After a jury trial, she was convicted of capital murder. Williams v. State, 174 So.3d 275, 278 (Miss. Ct. App. 2014). Williams appealed her conviction and the Mississippi Court of Appeals reversed and remanded for a new trial. Id. at 286. Williams’s, case was retried before a jury on March 14 to March 18, 2016, in George County Circuit Court. Williams again was found guilty of capital murder. Williams filed a motion for a new trial, which was denied by the trial court.

¶ 19. On March 31, 2016, Williams filed her notice of appeal. She now raises six issues, which we combine into three for clarity. First, Williams argues that the trial court erred in denying her motion to quash the indictment. Second, Williams argues that the trial court abused its discretion in instructing the jury regarding several different issues, including duress, eyewitness identification and aiding and abetting. Third, Williams argues that the trial court erred in allowing the State to present evidence of her prior crimes. Finding no error, we affirm Williams’s conviction.

ANALYSIS

I. The trial court did not err in denying Williams’s motion to quash her indictment.

¶ 20. Williams argues that the trial court erred in denying her motion to quash the indictment. According to Williams, the capital murder of a peace officer requires that the murder be committed with deliberate design; thus, she argues that the State erred in indicting her,for depraved-heart capital murder.

¶ 21. Williams was indicted for the capital murder of Sheriff Welford pursuant to Mississippi Code Section 97-3-19(2)(a). Williams’s indictment charged:

That BRANDY NICOLE WILLIAMS .in George County, Mississippi, on or about July 21, 2010, did then and there willfully, unlawfully, feloniously and without the authority of law, kill and murder Garry Welford, a human being and a law enforcement officer, to-wit: sheriff of George County, Mississippi, while acting within his .official capacity, and with knowledge that the said Garry Welford was a law enforcement officer, while the said Brandy Nicole Williams was engaged in an act alone or in conjunction with Christopher Baxter, which -was imminently dangerous to others and evincing a depraved heart, regardless of human life, and against the peace and dignity of the State of Mississippi.

Section 97-3-19(2)(a) provides in part:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
(a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is.acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman....

Section 97 — 3—19(1) (a.) — (b) - sets forth the definition of murder as:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following eases: '
(a) When done with deliberate design to' effect the death of the person killed, or of any human being ...
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death- of any particular individual

Miss. Code Ann. § 97-3-19(1) (Rev. 2014).

¶ 22. “[WJhether an indictment is defective is an issue of law and therefore deserves a relatively broad standard of review, 'or de novo review.” Colburn v. State, 201 So.3d 462, 469 (Miss. 2016) (quoting State v. Hawkins, 145 So.3d 636, 638 (Miss. 2014)) (emphasis in original). “The major purpose of an indictment is to furnish the accused such a description of the charges, against him as will enable him to adequately prepare his defense.” King v. State, 580 So.2d 1182, 1185 (Miss. 1991) (quoting Williams v. State, 445 So.2d 798, 804 (Miss. 1984)). “The rule in this state is that an indictment which states-the statutory language is generally sufficient to inform the accused of the -charge against him.” Colburn, 201 So.3d at 469 (quoting King, 580 So.2d at 1185).

¶ 23. Here, there is ho error in Williams’s indictment. We consistently have held that deliberate design is not an element of the capital murder of a peace officer. See Fitzpatrick v. State, 175 So.3d 515, 518-21 (Miss. 2015) (surveying the recent history of the Supreme Court’s and Court of Appeals’ interpretations of Section 97-3-19(2)(a)). “[U]nder the applicable statute, malice aforethought is not an element of the .capital murder of a peace officer.” Stevenson v. State, 733 So.2d 177, 186 (Miss. 1998), overruled on other grounds by Bonds v. State, 138 So.3d 914 (Miss. 2014).

¶24. The Fitzpatrick Court dealt with many of the same arguments that Williams raises under this issue. In'Fitzpatrick, the Court reviewed a jury instruction that permitted the jury to convict Fitzpatrick of capital murder under a theory of either depraved-heart or deliberate-design murder. Fitzpatrick, 175 So.3d at 518. Citing Mease v. State, 539 So.2d 1324, 1325 n.1 (Miss. 1989), the defendant — as Williams does now — argued that the term “capital murder” required a finding of deliberate design. Fitzpatrick, 175 So.3d at 518-19. The Court disagreed. Id. at 519-20. It noted that “[i]n the yeárs following Mease, this Court has held that subsection [97 — 3— 19](l)(b)[, depraved-heart murder,] subsumes subsection (l)(a)[, deliberate-design murder].” Id. at 519. The Court also recognized that “where depraved heart is sufficient for a conviction as a matter of law, a showing of deliberate design is not required.” Id. at 520.

¶ 25. Today we find no reason to depart from the rationale expressed in Fitzpatrick. While Williams raises her argument in the context of an indictment as opposed to challenging the jury instructions, this procedural difference does not affect our analysis. In fact, since the indictment charged Williams with only depraved-heart capital murder, this case is a stronger set of facts than the facts before the Fitzpatrick Court, where the jury could convict the defendant under two separate theories of murder.

¶26. Williams was indicted for capital murder under Section 97-3-19(2)(a) pursuant to a depraved-heart theory. Her indictment satisfied the statutory requirements. Thus, the trial court did not err in denying Williams’s motion to quash her indictment.

II. The trial court did not abuse its discretion in instructing the jury.

¶27. “This Court reviews the grant or refusal of a jury instruction ‘under an abuse+of-discretion standard.’ ” Shelton v. State, 214 So.3d 250, 258 (Miss. 2017) (quoting McInnis v. State, 61 So.3d 872, 875 (Miss. 2011)). When reviewing errors pertaining to jury instructions, “[t]his Court does not single out any instruction or take instructions out of context; rather, the instructions are to be read together as.a whole.” Dickerson v. State, 175 So.3d 8, 26 (Miss. 2015) (internal quotations omitted). Further, the law provides a criminal defendant the right “ ‘to have jury instructions which present his theory of the case.’ ” Roberson v. State, 199 So.3d 660, 664 (Miss. 2016) (quoting Dickerson, 175 So.3d at 26). This right “ ⅛ limited, however, in that the court is.allowed to refuse an instructipn which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.’ ” Id.

A. Duress Instruction

¶ 28. Williams argues that she was denied her right to present her theory of the case when the trial court refused to instruct the jury on the defensé of duress. Williams’s- theory of the case was that she participated in the flight from the police only under duress.

¶ 29. In Mississippi, it is true that “[w]here a person reasonably believes that he is in danger of physical harm he may be excused for- some conduct.which' ordinarily would be criminal.” Davis v. State, 18 So.3d 842, 849 (Miss. 2009) (citation omitted). In Mississippi, there is a four-part test for duress:

(1) the defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) that he had not recklessly or negligently placed himself in the situation; (3) that he had no reasonable legal alternative to violating the law; (4) that a direct causal relationship may be reasonably anticipated between the criminal action and the avoidance of harm.

Banyard v. State, 47 So.3d 676, 681-82 (Miss. 2010).

¶ 30. After a review of the record, it is apparent that the facts here do not support these elements. Williams had the opportunity to stop the Z71 before fleeing from Daffin and could have yielded anywhere along the 16.8 mile route. While Baxter yelled at Williams to flee, there was no evidence of an unlawful and impending threat. Also, Williams knew before she agreed to drive Baxter that he was a felon and that the police were searching for him. Despite this, she drove him into town and went into the Walmart for him so that he would not be seen by the 'police. Instead of shopping for him, she could have contacted law enforcement in Wal-mart and reported him. She also could have yielded to either Daffin or the four armed officers at the checkpoint instead of striking Sheriff Welford. In light of these facts, the trial court did not abuse its discretion in refusing to instruct the jury on duress.

B. Eyewitness-Identification Instruction

¶ 31. Williams argues that the trial court abused its discretion by denying Jury Instruction D-7 on eyewitness identification. In part, instruction D-7 read,

If, after considering all of the evidence concerning the event and the witness’s identification of Miss Williams as the person who was driving, you are not convinced beyond a reasonable doubt that she is the person who was driving at the time the Sheriff was hit, then you must find her not guilty.

We find that this instruction misstated the law.

¶ 32. As the Court of Appeals recognized in Williams’s initial appeal, “This is an incorrect statement of the law. Williams may be guilty if she aided and abetted Baxter .even if she was not driving.” Williams, 174 So.3d at 284. As requested, the instruction would have required the jury to find Williams not guilty if she was not driving at the moment of impact without considering whether or not she was liable as an aider and abettor instead of as the principal. Williams was on notice of this error of law in the instruction from her initial appeal but chose to request the same instruction again despite the error. Therefore, we find that the trial court did not abuse its discretion in refusing the instruction.

C. Aiding and Abetting Instructions

¶ 33. On appeal, Williams argues for the first time that the trial court abused its discretion by instructing the jury on two separate legal theories of murder. Williams claims that it was error for the jurors to be instructed that they could convict Williams of murder if they found either (1) that she drove the Z71 when it struck Sheriff Welford or (2) that she aided and abetted Baxter while he drove. She argues that the jury instructions relieved the State of its burden to prove guilt beyond a reasonable doubt. Williams did not object at trial to any of the State’s instructions relating to this issue. Moreover, as discussed below, Williams actually introduced a portion of the instructions that .she now appeals.

, ¶ 34. “Failure to object to an instruction at trial bars that issue on appeal.” Missala Marine Servs., Inc. v. Odom, 861 So.2d 290, 296 (Miss. 2008) (citing Jones v. State, 776 So.2d 643, 653 (Miss. 2000)). Further, when a party acquiesces to the giving of a jury instruction, that party is procedurally barred from later raising an error with the instruction on appeal. See Jones, 776 So.2d at 653; see also Butler v. State, 544 So.2d 816, 818 (Miss. 1989).

¶ 35. Here, the jury was instructed on some portion of the aiding and abetting theory under three separate instructions: S-3, S-4A, and D-3A. Jury Instruction S-3 defined the general principles of aiding and abetting liability. In part, the instruction read:

The Court instructs the jury that . [t]he law recognizes that, ordinarily, anything a person can do for herself may also be accomplished by that person through the direction of another person as her agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.
In other words, you may not find the defendant guilty unless you find beyond a reasonable doubt that every elefnent of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated -in its commission with the intent to violate the law.

Jury Instruction S-4A read, “The Court instructs the jury that one who willfully, unlawfully, and feloniously aids, abets, assists, participates, or otherwise encourages the commission of a crime is just as guilty under the law as if she had committed the whole crime with her own hands.” Jury Instruction D-3A read:

The Court instructs the jury that if you find that on July 21, 2010, Christopher Baxter killed Garry Welford, a law enforcement officer acting in his official capacity with knowledge that Garry Welford Was a law enforcement officer acting in his official capacity, by hitting him with an automobile and that Brandy Williams was present at the commission of that act by Christopher Baxter and knowingly and willfully aided, abetted, assisted or encouraged Christopher Baxter in the commission of that act, you may, consider whether Brandy Williams is an aider and abettou to capital murder.
In order to find Brandy Williams guilty as an aider and abettor you must be convinced, beyond a reasonable doubt that Brandy Williams possessed a community of criminal intent with Christopher Baxter, either before or at the time the act was committed.

¶ 36. At trial, Williams not only acquiesced to the State’s instructions which she now challenges, she also requested her own aiding and abetting instruction. Williams did not object to either Jury Instruction S-3 or S-4A and requested Jury Instruction D-3A, which ultimately was given to the jury. In light of this, we find that Williams has waived her right to raise this error on appeal.

¶ 37. Despite this waiver, Williams’s arguments on this issue are without merit. The jury instructions, when read as a whole, accurately state the law to the jury. It is settled Mississippi law that a defendant pursuant to an aider and abettor theory is as liable for the crimes of the principal as if the defendant had actually committed the crimes. See Hoops v. State, 681 So.2d 521, 533 (Miss. 1996) (“Any person who is present at the commission of a criminal offense' and aids, counsels, or encourages another in the commission of that offense is an ‘aider and abettor’ and is equally guilty with the principal offender.”). Thus, even if Williams’s arguments were not procedurally barred, the jury was properly instructed on the law.

III. The trial court did not abuse its discretion in admitting the evidence of Williams’s prior bad acts.

¶38. This Court reviews the admission or exclusion of evidence under an abuse-of-discretion standard. Hargett v. State 62 So.3d, 950, 952 (Miss. 2011). “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence.” Id. (quoting Price v. State, 898 So.2d 641, 653 (Miss. 2005)), “ ‘Where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party.’ ” Id. (quoting Ladnier v. State, 878 So.2d 926, 933 (Miss. 2004)).

If 39. .It is a general principle of law that “Evidence of.a crime •... is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” M.R.E. 404(b)(1). Evidence of a crime, though, “may be admissible for another purpose, such as proving motive M.R.E. 404 (b)(2). Further, “Evidence of other crimes or bad acts is also admissible in order to tell the complete story so as not to confuse the jury.” Simmons v. State, 813 So.2d 710, 716 (Miss. 2002) (citing Brown v. State, 483 So.2d 328, 330 (Miss. 1986)). This evidence of crime may still be excluded, though, “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” M.R.E. 403.

¶ 40. Here, the trial court did not abuse its discretion in admitting Williams’s two indictments for grand larceny coupled with Williams’s pretrial diversion agreement. The evidence was admitted for the purpose of proving motive under Rule 404(b)(2). As the State argued at the pretrial hearing in response to Williams’s motion in limine, the evidence of the crime was admissible to show that Williams had a motive to flee from the. police instead of yielding to Deputy Daffln. Williams had just entered the diversion agreement that required her to “avoid persons .... of disreputable or harmful character.” Christopher Baxter was a convicted felon, and Williams knew this. Williams also knew that the police were searching for Baxter, as they had asked her about his whereabouts just two days before. The evidence of Williams’s prior crimes and pretrial diversion agreement tended to show that Williams knew that had she yielded to Daffin’s blue lights and stopped, she could have been found in violation of the.agreement. Therefore, the evidence demonstrated Williams’s motive to flee from law enforcement. In other words, the-evidence was. admissible to tell the whole story to, the jury. .

¶41. While Williams argues that- she would not have been motivated to avoid Deputy Daffln because it was known throughout the community that she was dating Baxter, the evidence at trial contradicts this argument. First and foremost, Williams had entered into the agreement only on July 15, 2010 — six days before the chase. In addition, Williams testified that she had mentioned the pretrial diversion agreement to Baxter as one of the reasons that she wanted to break up with Baxter. Before the grand jury, Williams said, “I ... told [Baxter] right after we left his dad’s that ... I didn’t want to be with him anymore. We were breaking up ... because I had just got put on Pretrial Diversion.”

¶ 42. It is clear from the record of the pretrial hearing that the trial court considered whether the value of the evidence was substantially outweighed by a danger of unfair prejudice under Mississippi Rule of Evidence 403. Thus, because the evidence of Williams’s prior crimes and the pretrial diversion agreement demonstrated Williams’s motive to flee from law enforcement, the trial court did not abuse its discretion in admitting the evidence.

CONCLUSION

¶43. Finding no error, we affirm the conviction of capital murder and the sentence of life without the possibility of parole in the custody of the Mississippi Department of Corrections.

¶ 44. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ, KING, COLEMAN, MAXWELL AND BEAM, JJ„ CONCUR. ISHEE, J., NOT PARTICIPATING.

      . Williams’s grand-jury testimony was entered into evidence at trial by the State.

      . Williams argues that the Legislature amended the statute after this Court rendered its decision in Fitzpatrick, adopting degrees of murder. Williams argues that the amendment, in essence, overruled the line of cases on which Fitzpatrick relied. This is simply not the case. Fitzpatrick handed down on July 23, 2015. The Legislature adopted degrees of murder in 2013 pursuant to Senate Bill 2377. 2013 Miss. Laws 555. In fact, Fitzpatrick, in a footnote, acknowledges the 2013 amendment that Williams now cites for support. Fitzpatrick, 175 So.3d at 519 n.5 ("This section was amended in 2013 and now provides .... ”). Thus, the Fitzpatrick Court acknowledged the Legislature’s additions to the statute. 1

      . The jury instruction at issue here is D-12. It read:
      The Court instructs the jury that evidence has been presented that the defendant acted under duress in committing the crime with which she is charged.
      Duress is the exercise of unlawful force upon a person whereby that person is compelled to do some act that he otherwise would not have done. In order for duress to be a defense to a criminal charge, the impelling danger must be present, imminent, and impending, and of such a nature as to- introduce in that person a well-grounded apprehension of death pr serious bodily harm if the act is not done. A person having a reasonable opportunity to avoid committing the crime without undue exposure to death or serious bodily harm cannot invoke duress as a defense.
      If the prosecution has failed to prove from the evidence in this case beyond a reasonable doubt that Brandy Williams acted-voluntarily in committing the crime and not under duress, then you'shall find her not guilty.

      . We do not address the question of whether or not a duress instruction applies to the capital murder of a law enforcement officer, as the facts here do not merit the analysis. Compare Banyard, 47 So.3d at 681-82 (reversing felony-capital-murder conviction where duress instruction was refused), with Sanders v. State, 942 So.2d 156, 161 (Miss. 2006) (“[L]ongstanding Mississippi law holds that duress is not a legal defense to murder.”), and Wilson v. State, 390 So.2d 575, 576 n.1 (Miss. 1980) ("Homicide is an exception [to duress]”).