author: BEAM, JUSTICE,

text:
    Paula HATHORN v. LOUISVILLE UTILITIES COMMISSION
    NO. 2016-CA-01317-SCT
    Supreme Court of Mississippi.
    09/28/2017

      ATTORNEY ' FOR APPELLANT: BRADFORD KEITH MORRIS
    ATTORNEYS FOR APPELLEE: JOSEPH WALTER, GILL REBECCA B. COWAN ■
   BEAM, JUSTICE,

FOR THE COURT:

¶ 1. Paula Hathorn appeals a judgment entered by the Winston County Circuit Court granting summary judgment in favor of the Louisville Utilities Commission (Commission). Hathorn sued the Commission along with the City of Louisville and the O’Reilly Auto Parts store located Louisville, .Mississippi, for injuries she claimed resulted from a fall that occurred after she stepped into a sunken utility box set into a sidewalk in front of O’Reilly’s Auto Parts. Hathorn dismissed O’Reilly Auto Parts and the City from the suit after entering into a settlement agreement with each separately. The Commission thereafter moved for summary judgment, which the Winston County Circuit Court granted based on the court’s findings that (1) the Commission is a subsidiary of the City, and according to the settlement agreement, Hathorn had released all claims against the City and its subsidiaries; (2) the Commission is immune from liability in this instance under the Mississippi Tort Claims Act (MTCA) because it did not have a ministerial duty to maintain the water meter at a level even with the ground; and. (3) Hathorn cannot maintain a premises liability claim against the Commission because the City owns the Commission’s assets including its water meter boxes.'

¶ 2. Having reviewed the record de novo, we agree with the trial court that Hathorn released her claim against the Commission when she entered into a settlement agreement with the City. Therefore, we affirm the trial court’s • grant of summary judgment in favor of the Commission. This issue being dispositive, we limit our decision in this case to this assignment of error.

FACTS AND PROCEDURAL HISTORY

¶8. Hathorn claimed that in August 2014, she was walking on the sidewalk along South Church Avenue in Louisville, Mississippi. As she approached the portion of sidewalk in front of O’Reilly’s Auto Parts, Hathorn noticed grass clippings along the edge of the sidewalk and scattered across its surface. While walking in front of O’Reilly’s, Hathorn’s foot unexpectedly sank into a hole a few inches deep in the sidewalk, causing Hathorn to twist her ankle, lose her balance, and fall forward, injuring herself further. According to Hathorn, an uncovered utility box set within the sidewalk caused her fall, and she did not see it because of the grass clippings covering the sidewalk.

¶ 4. Hathorn sued O’Reilly Auto Parts, the City,' and the Commission in March 2015, In December 2015, Hathorn executed a settlement agreement with the City and a separate settlement agreement with O’Reilly Auto Parts. An agreed order was entered on December 30, 2015, dismissing O’Reilly Auto Parts as a defendant. Another agreed order was entered on January '4, 2016, dismissing the City.

¶ 5. The Commission remained the only defendant. Litigation continued between the two parties over the next seven months, which included depositions,' additional discovery, and ongoing correspondence between counsel for Hathorn and counsel for the Commission.

¶ 6. Hathorn took the deposition of Wilson Webb, who has served as the .General Manager of the Commission since 2004. Webb testified that the Commission is a division of the City. The City’s Board of Alderman appoints one board member per year and reappoints the board members every five years. The Board of Alderman can fire or remove the any commissioner.

¶ 7. Webb said that, prior to’Hathorn’s incident, there had been no complaints by anyone about a lid being off a meter box or about the depth or the offset of. a water meter box in any sidewalk in the city. He said as a matter of course, every water meter box installed in a sidewalk in the city is installed flush or level with the surface of the sidewalk. And this particular water meter box was installed flush during the construction of the O’Reilly store and it. appeared to remain flush even after O’Reilly resurfaced the sidewalk with concrete.

¶ 8. Webb acknowledged that at some point in time, this particular water meter box had gotten depressed by something running over it, e.g., a riding lawnmower or a vehicle. Webb did not know when that might have occurred.

¶9. Webb said that after he learned about Hathorn’s claim, he had an assistant put bricks in the area over the meter box. A photograph of the water meter box was taken and exhibited at Webb’s deposition. It depicts the site where the water meter box is located, and it shows a measured difference of approximately two and five-eighths inches between the surface of the sidewalk and the top of the meter box.

¶10. Webb also testtoed that the Commission did not have any prior notice of the depressed meter box because the Commission’s employees would have only driven by and read the water meter electronically sometime during the month prior to Hathorn’s fall. He said the Commission uses an “Orion meter reading system[,3” which allows them to read water meters electronically as they drive by the water meter. According to Webb, if an employee had seen that the.meter box had sunken into, the sidewalk, it would have been repaired.

¶ 11. He also testified that had O’Reilly, as with any customer, reported a problem with the water meter box, someone with the Commission would have gone out and checked it.

¶ 12. The record shows that the Commission received a copy of the settlement agreement between the City and Hathorn in May 2016, via a production request from the Commission. According to the agreement, Hathorn agreed to:

fully and finally release, acquit and forever discharge THE CITY OF LOUISVILLE, MISSISSIPPI, MISSISSIPPI MUNICIPAL LIABILITY PLAN AND MISSISSIPPI MUNICIPAL SERVICE COMPANY and their successors, agents, attorneys, insurers, subsidiaries, sister or parent companies, assigns, employees, representatives, stockholders, and any and all other persons, firms and corporations associated, affiliated, and/or in privity of interest therewith (hereinafter collectively “RELEASEES”) from any and all actions, causes of action, claims, demands, damages of any nature, costs, expenses, attorneys’ fees and expenses, and all other liabilities whatsoever of every kind and nature, both at law and in equity, whether known or unknown, accrued or to accrue, including, but expressly not limited to, any and all claims for, past and future, bodily injury, medical expenses, disfigurement, disability, property damage, loss of income, loss of wage-earning capacity, loss of consortium, damages of any type, reckless disregard, punitive damages, mental and emotional distress, and pain and suffering and any and all claims allowable under Miss. Code Ann. § 11-46-1, et seq. (as amended), which Releasor may now or hereafter have on account of or in' any way arising out of or being connected with an alleged trip and fall incident on or about August 5, 2014 in Winston County, Mississippi. As a result of the aforesaid alleged incident, the undersigned Releasor has made certain claims against Releasees, and any and all said claims are now hereby fully compromised and settled by this instrument.
10. For the same consideration aforesaid, the undersigned Releasor does hereby release, acquit and forever discharge Releasees, from any and all claims of every kind made in that certain action styled: Paula Hathorn v. Louisville Utilities; City of Louisville, Mississippi; O’Reilly Automotive Stores, Inc. And O’Reilly Automotive Stores, Inc. [sic]; in the Circuit Court of Winston County Mississippi; Cause No. 2016-033 CVL, and will enter a dismissal of Re-leasees herewith.
11. This Release contains the entire agreement between the parties hereto, and the terms of this Release are contractual and not a mere recital. Since the purpose of this Release is to end this matter forever just as if the aforesaid accident never occurred and the aforesaid parties never existed, should it develop that there are any mistakes or any omissions in this instrument which would cause the release of the parties herein released to be defective or less than complete, then the undersigned shall sign any and all documents and do any and all things necessary to effectuate a full, final and complete release of said parties.
12. The undersigned further states that she has carefully read the foregoing instrument; that she knows the contents hereof; and that before signing and sealing this Release, the contents and meaning have been fully explained to her by her attorney; that she understands and agrees to each and every term and condition contained herein; that she is of full age and legally competent to execute this Release; that she signed this Release with a full understanding of her rights and the consequences of entering into and signing this Release; that her signature hereof evidences the fact that the Release was voluntarily entered into with full knowledge and understanding of the consequences thereof ....

¶ 13. In June 2016, the Commission filed a motion for summary judgment claiming (1) Hathorn had released the Commission when she had entered a release with the City; (2) the Commission enjoyed discretionary function immunity from Hathorn’s claims; and (3) Hathorn’s claims failed on the merits because the water meter box did not constitute an unreasonably dangerous condition and the Commission had no actual or constructive knowledge of the condition of the box prior to Hathorn’s alleged trip-and-fall.

¶ 14. The trial court granted the Commission’s request for summary judgment, finding in favor of the Commission on each ground asserted.

Whether the trial court erred in ruling that Hathorn released all claims against the Commission when she executed the release with the City.

¶ 15. The trial court found that Hathorn had released her claims against the Commission when she had executed a “Full, Final, and Absolute Release,” with the City that discharged all claims against the City and its “successors, agents, attorneys, insurers, subsidiaries .... ” The trial court relied on Union Carbide Corp. v. Nix, Jr., 142 So.3d 374, 392 (Miss. 2014), which holds that contract law principles are to be applied to settlement agreements.

¶ 16. In Nix, this Court reiterated that the validity of such agreements requires first examining the four corners of the document to ascertain the intent of the parties. Id. When the terms and conditions contained within the agreement are clear and unambiguous, they are conclusive of that intent. Id. “Only if the settlement agreement is vague and ambiguous, and the intent of the parties thus unclear, does the [cjourt [then] examine extrinsic evidencef ]” to determine the actual intent of the parties. Id.

¶ 17. The trial court found that Hathorn did not argue that the settlement agreement was invalid or that the terms and conditions contained therein were ambiguous. Thus, if Hathorn agreed to release subsidiaries of the City, and the Commission is a subsidiary of the City, then Hat-horn, by the terms of the agreement, released the Commission, according to the trial court. Therefore, the ■ only question that remained for the trial court to determine was whether the Commission is a subsidiary of the City.

¶ 18. The trial court found that pursuant to Mississippi Code Section 21-27-13, the Commission is a subsidiary of - the City. Therefore, Hathorn released her claims against the Commission when she executed the settlement agreement with the City.

¶ 19. Hathorn argues this was error. She claims that it was never her intent to release the Commission when she executed a release for the City. She contends: a) there was no consideration and a meeting of the minds between her and the Commission; b) the Commission lacks privity of contract to the release against the City, and the Commission is not entitled to third-party beneficiary status under the release; c) contrary to the trial court’s finding, the terms of the release are ambiguous as to Hathorn and the Commission; d) the terms of the release are unconscionable as to Hathorn and the Commission; e) even if the terms of the release are not ambiguous, the Commission had reason to know it was not intended to be released by the settlement agreement, so there was a unilateral mistake in the release as to her and the Commission; f) release of the Commission is not enforceable due to fraud and/or inequitable conduct in the inducement of the agreement, which necessitates contract reformation; and g) the Commission is a separate legal entity for purposes of notice and liability.

¶20. We find no merit in these points of contention. Mississippi. “follows the majority rule that for a release of one joint tort-feasor to release other joint tort-feasors, the satisfaction received by the injured party must be intended and must be accepted as full and total compensation for damages sustained.” Smith v. Falke, 474 So.2d 1044, 1045 (Miss. 1985). Generally, “a plaintiff should never be compelled to surrender his cause of action against any wrongdoer unless he has intentionally done so, or unless he has received such full compensation that he is no longer entitled to maintain it.” Id. at 1045-46 (quoting Prosser, Law of Torts, § 301 (4th ed. 1971)).

¶21. In Smith, a plaintiff driver sued the drivers of two vehicles when her car was struck from behind by one of the vehicles after that vehicle was struck from behind by the second vehicle. Id. at 1045. After filing suit, the plaintiff agreed to release the second driver upon payment from that driver’s insurance carrier in the maximum amount of his liability coverage. Id. The release contained language releasing “all others whatsoever” from liability in the accident. Id, at 1044. Afterward, the first driver filed a motion to dismiss the plaintiffs lawsuit against him, claiming that, based on its language, the release operated as a bar to recovery from him as well. Id. at 1045. The trial court agreed, finding the language and terms of the release to be clear and unambiguous, and not subject to parol evidence. Id,

¶ 22. The Smith Court reversed the trial court’s decision, holding that the court had erred in failing to consider “undisputed parol facts entitled to be considered by the [cjourt.” Smith found that the first driver constituted a stranger to the contract, and “the parol evidence rule is operative as to parties to the document and not a stranger to the release.” Id, at 1047 (citing Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 347, 91 S.Ct. 795, 810, 28 L.Ed.2d 77, 97 n.12 (1971)).

¶ 23. The Smith Court found that testimony from the plaintiff, her attorney, and the insurance adjuster indicated an intent to release the second driver only. Id. This intent was further evidenced, according to the Smith Court, by the existing lawsuit against the first driver. Id. Based on these findings, the Smith Court reversed the trial court’s decision to dismiss the suit and remanded the case for a jury trial on the merits of the negligence claim. Id.

¶24. Smith, however, is distinguishable from the case here. The trial court found the term “subsidiaries” clear and unambiguous; therefore, the intent of the parties lies within the four corners of the settlement agreement. The court also found that Hathorn, represented by counsel, knew when she filed her complaint in the matter, and even before then, that Louisville Utilities was a municipal commission. Her complaint reads in reference to the Commission: “At all times mentioned herein, Defendant, Louisiville Utilities, was a municipal commission and the owner and manager of water and electric utility systems in the City of Louisville ....”

¶25. Further, before filing her complaint, Hathorn sent notice to both the City and the Commission under the MTCA, pursuant to Mississippi Code Section 11—46—1 to 11-46-28. And in her claim notice to the City, Hathorn claimed the City is liable due to the negligence of its employees while in the course and scope of their employment by not making sure “the sidewalk, and utility box set within it, were installed properly and maintained in a condition safe for public use.”

¶ 26. The record also shows that in her claim notice to the Commission, mailed the same day as the notice to the City, Hat-horn claimed the Commission is liable for negligence of its employees “by not making sure that the utility box set within the sidewalk was installed properly and maintained in a condition safe for public use.”

■ ¶27, Also, as the trial- court found, in Hathorn’s brief in opposition to the Commission’s motion for summary judgment, Hathorn stated: “The City of Louisville, after all, has a total of nine such subsidiary entities, eight of which had no contact with this litigation.” The trial court found that this constituted an admission by Hathorn that the Commission is a subsidiary of the City.

¶ 28. Based on our de novo review of the record, we agree with the trial court that Hathorn released the Commission when she executed the settlement agreement with the City. Therefore, we find the trial court correctly found, as a matter of law, Hathorn released her claims against the Commission when she executed the settlement agreement with the City, based on the agreement’s clear and unambiguous terms.

CONCLUSION

¶29. For these reasons, we affirm the trial court’s grant of summary judgment in favor of the Commission.

¶ 30. AFFIRMED.

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

      . Section 21-27-13 states, in part:
      The governing authorities of any municipality which now owns and operates, or hereafter shall own and operate, any system or systems shall have the power and authority to create a commission to control, manage and operate such systems, or any one or more of them, which said commission shall consist of not less than three (3) nor more than five (5) commissioners, to be elected by the governing authorities of such municipality. In any municipality operating under the council-manager plan of government, such commissioners shall be selected by, and shall be under the control of, the mayor and councilmen of the municipality, and not the city or town manager. Such commissioners shall have the power, authority and duly to manage and control said system or systems and the supply of the facilities and services thereof, both within and without the limits of the municipality. Such commissioners shall be qualified electors of the municipality and shall not hold any other municipal office for honor or profit. Such commissioners shall receive such compensation as may be specified and pro- , vided by the governing authorities of said municipality ....
      Miss. Code Ann. § .21-27-13 (Rev. 2015).


source: Caselaw Access Project

author: COLEMAN, JUSTICE,

license: Public Domain

text:
    William B. WELLS a/k/a William Wells v. STATE of Mississippi
    NO. 2016-KA-00959-SCT
    Supreme Court of Mississippi.
    10/05/2017
    Rehearing Denied January 25, 2018

      ATTORNEYS FOR APPELLANT: JOHN W. CHRISTOPHER, ERIK GREGORY FARIES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
   COLEMAN, JUSTICE,

FOR THE COURT:

¶ 1. It is undisputed that on August 3, 2015, William B. Wells shot and killed Kendrick Brown in front of the Madison County Courthouse. A jury convicted Wells of first degree murder, but according to Wells, the jury never got to hear why he shot Brown, due to the circuit court’s decision to grant several of the State’s motions in limine. Wells argues that the circuit court committed reversible error by granting the motions in limine. We disagree, and we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the morning of August 3, 2015, Attorney Rusty Willard was waiting in front of the Madison County Courthouse for his client Kendrick Brown. Brown arrived and sat down outside with Willard. According to Willard’s testimony, as he turned to look at Brown, he saw a man holding a silver semiautomatic gun coming toward them quickly. The man, later identified as Wells, approached Brown, pointed the gun at Brown’s chest and screamed at Brown. Brown yelled back: “I didn’t do it[J I didn’t do it.” Wells then shot Brown in chest, and Brown later died from the gunshot wound. Willard testified that Brown did not make a threatening gesture toward Wells or “do anything that would cause someone to shoot him at that time[.]” Madison County Sheriffs Department Deputy Jesse Smith testified that he was working inside the courthouse on the morning of the incident. He was alerted to the shooting, and when he went outside, he saw Wells, standing over Brown’s body, still pointing a gun at Brown. Wells immediately complied with Deputy Smith’s requests to drop the gun and to lie flat on the ground. He did not attempt to flee or resist arrest.

¶ 3. Prior to trial, the State filed several motions in limine, and on February 16, 2016, the circuit court heard arguments on four motions. A few days later, the State filed a fifth motion in limine. The circuit court granted all of the motions in limine, but only four of the five are at issue here. The first motion sought to prohibit Wells from eliciting testimony about any statements that he made “at or near the time of the shooting.” Wells urged that the circuit court “just keep this motion open, carry it with' the case, and then ... determine whether or not we ■ have laid a proper foundation to make the statement admissible as an excited utterance .... under [Rule] 803(2), or it could qualify as a statement that was made by [Wells] in relation to express .his fear, which would also be admissible under [Rule] 803(3)[.]” The next motion involved prohibiting any references to Brown’s prior felony convictions for the possession or sale of controlled substances. The State explained that Wells could use the fact that Brown was a drug dealer who had sold drugs to Sherry Wells, Wells’s mother, while she was acting as a confidential informant, just not Brown’s prior convictions. Wells countered that Brown’s convictions were relevant and added probative value because they showed that Brown was the type of person who would put out a hit on Sherry to avoid going back to prison. Next,’the State sought to exclude statements regarding warnings, via phone calls from unidentified individuals, that Brown had put a hit on Sherry. The State argued , that such statements amounted to double hearsay with no applicable exceptions to get both statements into evidence. Wells explained that a phone call he received from “Bird” and “Bear” is admissible under Rule 803(3) to show his state of mind when he shot Brown and also under Rule 803(24) to show Brown’s intent. The State’s final motion in limine hearing was held several days later. Arguing that the evidence was irrelevant, was hearsay, and was more prejudicial than probative, the State sought to exclude the testimony of a defense witness expected to ' testify that Brown tried to get him to kill Sherry. Wells argued that the evidence was relevant pursuant to Rule 404(b) as motive of Brown to kill Sherry and perspective to show Wells’s fearful state of mind and the effect of the statement on him. Wells further explained that the evidence was not being offered to prove the truth of the. matter asserted, but it was being offered only for the fact that it was said at all.

¶ 4. The following describes the excluded evidence that Wells proffered at trial. Wells proffered the testimony of Canton’s Chief of Police Otha Brown, Chief Brown testified that on August 1, 2015, he received a call that a tall black male had shot into Sherry Wells’s vehicle as she was driving to work. Sherry .received gunshot wounds in her legs but survived the shooting. On cross-examination, the State asked Chief Brown if “the only way in which Kendrick Brown was associated with the shooting would have been if Kendrick Brown would have inquired or attempted to get somebody to shoot Ms. Wells because clearly he was not the shooter [based on the description given of the shooter and the police department’s investigation].” Chief ‘ Brown agreed. Wells, through his attorney, proffered the testimony of his mother, Sherry Wells. According to Wells, Sherry’s testimony would have been that she was a confidential informant involved in drug buys from area drug dealers that resulted in the indictment of, among others, Brown. After the indictments, Sherry began receiving threats from Brown and another individual named Dexter Jackson. For example, while Sherry was working the graveyard shift at the Motel 8, Brown would drive into the parking lot around 2:00 to 3:00 a.m. about once a week and position his vehicle so Sherry could see him. He then would stare at her, make a gun shape with his hand, point it at her, and mouth “bang, bang.” Sherry became fearful for her life and would not leave the house. She parked behind her house instead of on the side so her vehicle would not be visible from the street.-Everything came.to a head on the night of August 1, 2015, when she was driving to work and someone shot out her windshield and back window. Sherry confided in Wells about her fears and the threats, which “only heightened his fear.”

¶ 5. Next; Wells, through his attorney, submitted his proffer. He did not take the stand. Wells explained that beginning in February 2015, “he began to hear on the street that his mama ... had been serving as a snitch for the nares and had set up some of the drug dealers in town and they were out to get her.” The information heightened Wells’s fears and anxiety. Then, in April 2015, Wells received a call from his father that someone had broken-into Sherry’s house by kicking in the back door. Nothing was taken or destroyed, but “[t]he only thing that was disturbed was the clothes hanging in the closet that had been moved around” implying that the person was looking for someone hiding in the closet. Several months later, Dexter Jackson, a drug dealer from whom Sherry had bought drugs as a confidential informant, bought the house next to Sherry’s house and began threatening her from across the shared fence. Finally, Wells heard directly from “Bird” that Brown offered him and “Bear” money to kill Sherry. Meanwhile, Wells had remained in contact with members of the Madison County Sheriffs Department regarding the threats and his concern for his mother. After Sherry was injured in the shooting, Wells again contacted the sheriffs department, and he was told to be at the courthouse the following Monday to make arrangements for Sherry to move to a safe house. According to Wells, he came to the courthouse on the day of the incident to meet with Deputy Trey Curtis about the safe house and, that he did not come to the courthouse looking for Brown. However, when he drove through the parking lot and “happened to see Kendrick Brown ... all the pinned up fear and emotions of the past [eight] to [ten] months just rose to the front and in that instant [Wells] thought the only way [to] protect my mom is to get ride of this guy because he’s trying to kill her.” Lastly, Wells said that “his movement between the vehicle and time he shot Brown was kind of a blur.” After proffering Brown’s court file, Wells rested.

¶ 6. The jury received .instructions regarding first degree murder and second degree murder. Wells offered an instruction on self, defense/defense of others, but the circuit court denied the instruction based on the lack of evidence to support the instruction. Wells did not request a manslaughter instruction. Ultimately, the jury found Wells guilty of first degree murder. Wells filed a motion for a new trial, which the circuit court denied,

¶ 7. On appeal, Wells raises the following. issues:

I. Whether the circuit court violated Wells’s due process rights when its m limine orders denied Wells the fair opportunity to' defend himself against the State’s accusations.
II. Whether the circuit court deprived Wells of his fundamental right to assert his theory of self defense.
III. Whether the circuit court erroneously defined self defense.
IV. Whether the circuit court erred when it barred Wells’s theory of the case as to manslaughter.
V. Whether the circuit court erred when it granted the four motions in limine.

ANALYSIS

I. Self Defense/Defense of Others

¶8. The established standard of review for the admission or exclusion of evidence is whether the trial court abused its discretion. Evans v. State, 25 So.3d 1054, 1057 (¶ 6) (Miss. 2010). Motions in limine should be granted only in situations where “the material or evidence in question will be inadmissible at a trial under the rules of evidence” and the “mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Id. (citing Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss. 1988)). “Before granting a motion in li-mine, coui'ts must be certain that such action will not unduly restrict opposing party’s presentation of its case.” Whittley, 530 So.2d at 1344.

¶ 9. The circuit court’s decision to grant the motions in limine centers on the following three evidentiary rules. First, Mississippi Rule of Evidence 401 states:

Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the case.

Mississippi Rule of Evidence 402, in pertinent part, explains that “[i]rrelevant evidence is not admissible.” Finally, Mississippi Rule of Evidence 403 permits the trial court to “exclude relevant evidence 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.”

¶ 10. Several times during the pretrial hearing, the circuit court, in trying to determine the relevance of the evidence, asked and then implored Wells for more information regarding his possible defenses so it could review the motions in li-mine. Wells declined to provide a proffer or any other information because he did not want to reveal any of his defenses prior to trial. The circuit court later summarized as follows:

What’s been presented to me today is that the Defendant Mr. Wells believed that the victim or someone under order by the victim shot the Defendant’s mother ... in an attempt to kill her .... [T]wo days later [Brown] was sitting outside the courthouse and the Defendant came up to the victim and shot him and killed him outside [of] the courthouse.
Although the terms were not used but certainly some terminology was used talking about the state of mind, the fear of the family, certainly to raise in the [c]ourt’s mind that [Wells] is talking about self-defense and defense of others and possibly even heat of passion .... I don’t remember the terminology he used, but he didn’t intend to shobt him when he walked up, when he came to the courthouse but there he was and it all just hit him all at once.
The problem is that there has been nothing offered here today to show me any type of [imminent] danger like the State has said, any type of [imminent] threat, serious bodily harm at the hands of the victim. Certainly not when we’re talking about [imminent], we’re talking about at the time of the shooting .... [Imminent] means immediate, and we can go on and on and on for that, but there’s been nothing that’s been given to me today that certainly advances that premise. There’s no state of, at least what I can see, uncontrollable or any violent rage that was caused by any [imminent] act or any immediate act by the victim.

On February 22, 2016, the circuit court heard the State’s final motion in limine and explained its ruling that “allowing a self-defense argument to go to the jury, I believe it would be more prejudicial than probative. I believe it would confuse the issues, and I’m not going to allow it. There’s been no showing to this [c]ourt that the victim’s alleged prior acts ... mainly the shooting of the Defendant’s mother—is relevant at all.” The circuit court then reaffirmed its decision at trial. Thus, the circuit court determined that under Rule 402 the evidence was not relevant, making it inadmissible, but even if it was relevant, the circuit court explained that under Rule 403, admitting the evidence would be more prejudicial than probative as it likely would confuse the jury.

¶ 11. Wells’s theory of defense appeared to be justifiable homicide, largely focused on the self defense/defense of another pursuant to Mississippi Code Section 97—3—15(l)(f) (emphasis added), which provides:

The killing of a human being by the act, procurement or omission of another shall be justifiable in the following cases:
(f) When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground tó apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished^]

Miss. Code Ann. § 97-3-15(l)(f) (Supp. 2016). The circuit court explained that Wells’s theory hinged on whether he and/or Sherry was in “imminent danger.” On appeal, Wells claims that the circuit court incorrectly and erroneously defined self defense when granting the motions in limine, which in turn violated his due-process right to defend himself and to put on his theory of the case. We disagree and hold that circuit court did not abuse its discretion in granting the State’s motions in limine, and even had the circuit court denied the motions, the evidence does not support a theory of self defense/defense of others for the reasons stated by the circuit court—i.e., there was no imminent danger at the time Wells shot Brown.

¶ 12. First, “self defense is a legal concept which must be supported by evidence to be available to a defendant in a homicide case.” Wadford v. State, 385 So.2d 951, 955 (Miss. 1980). The Court has held that “... a killing is justified if the person who kills did so under circumstances which would lead a reasonable person under similar circumstances to conclude she was in imminent danger of death or great bodily harm.” Lentz v. State, 604 So.2d 243, 246 (Miss. 1992). Black’s Law Dictionary defines imminent danger as “an immediate threat to one’s safety that justifies the use of force in self-defense—The danger resulting from an immediate threatened injury sufficient to cause a reasonable and prudent person to defend himself or herself.” Imminent danger, Black’s Law Dictionary (10th ed. 2014). Further, Black’s Law Dictionary defines “immediate” as “occurring without delay; instant[.]” Immediate, Black’s Law Dictionary (10th ed. 2014). Additionally, our caselaw provides that there must be an overt act at the time of the incident to justify a claim of self defense. See Scott v. State, 56 Miss. 287, 289, 1879 WL 3958 (1879) (“The justification arises out of the perilous situation of the slayer and a necessity to take life in order to extricate himself from imminent,'present, and urgent danger to his own life.”); Douglas v. State, 2 Miss.Dec. 220, 1881 WL 4595 (n.1) (1881) (“In order to justify a-killing on the ground of self defense, there must be some overt act, indicating a present intent to kill the party or do him some great-personal injury,-and the danger of such design being accomplished must be imminent, that is- to say, immediate, pressing, and unavoidable at the time of killing.”); Brown v. State, 88 Miss. 166, 40 So. 737 (1906) (emphasis added) (“[Tjestimony of uncom-municated threats and the nature and character of previous difficulties, wantonly provoked by the deceased, is always admissible, provided the testimony shows some overt act on the part of the deceased at the time of the fatal encounter”); James v. State, 139 Miss. 521, 104 So. 301 (1925) (emphasis added) (“There must have been in addition, at the time of the homicide, an overt act on the part of the deceased indicating a purpose to carry out such threat.”), Folks v. State, 230 Miss. 217, 222, 92 So.2d 461 (1957) (emphasis added) (“[Tjhat he was in either real or apparent danger of death or great bodily harm at the hands of the deceased at the time he shot him.”). We cannot see how the circuit court’s interpretation and definition of self defense and the word “imminent” deviate at all from our' caselaw.

¶ 13. It .is undisputed that Wells approached an unarmed Brown from behind, began yelling at him, and shot Brown, who had his arms in the air. There was no overt act at the time Wells shot Brown that could indicate danger of death or great bodily harm at the moment.

¶ 14- Wells’s claim that he was defending his mother also fails because, in Maye v. State, 49 So.3d 1124, 1130 (¶13) (Miss. 2010), the Court held that the “mere presence” of a third party does not entitle a defendant to an instruction on self defense/defense 'of- others. Instead, “[t]he third party must be exposed to some real and apparent danger when the defendant acts.” Id. (emphasis added). More than fifty years prior to the Court’s Maye decision, the Court held in Folks v. State, 230 Miss. 217, 92 So.2d 461, 462-63 (1957), that the defendant was not entitled to a de-fenserof-others instruction when the victim had -retreated almost twenty feet from the third party at the time the defendant shot the victim. Here, Wells’s mother was not even on the premises. Thus, at the time Wells shot Brown, neither Wells nor his mother was in any imminent danger.

¶ 15. Again, “self defense is a legal concept which must be supported by evidence to be available to a defendant in a homicide case.” Wadford, 385 So.2d at 955. For Wells to present a theory on self defense, it must be supported by evidence, which it was not. Because self defense was not available to Wells as a defense, the evidence of Sherry’s shooting was not relevant and allowing the evidence to be introduced certainly would have confused the jury. We hold that the circuit court did not abuse its discretion in granting the State’s motions in limine.

II. Manslaughter

¶ 16. Wells also claims that the circuit court’s decision to grant the motions in limine prevented him from presenting his manslaughter defense. The extent of what could be construed as a manslaughter defense is found in Wells’s proffer at trial where he stated that when he saw Brown “all the pinned up fear and emotions' of the past [eight] to [ten] months just rose to the front and in that instant [Wells] thought the only way I could protect my mom is to get rid of this guy because he’s trying to kill her.” Just as above in regard to self defense, even had the evidence been admitted,' a manslaughter instruction would not have been supported by the evidence.

¶ 17. The following is well-settled in regard to manslaughter:

Heat-of-passion manslaughter requires “a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter.” Hobson v. State, 730 So.2d 20, 26-27 (Miss. 1998) (quoting Tait v. State, 669 So.2d 85, 89 (Miss. 1996)). “Passion or anger suddenly aroused at the time by some immediate and reasonable ■ provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.” Id. at 27. “The passion felt by the person committing the act ‘should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.’ ” Graham v. State, 582 So.2d 1014, 1018 (Miss. 1991) (quoting Barnett v. State, 563 So.2d 1377, 1379 (Miss. 1990)).

Neal v. State, 15 So.3d 388, 408 (¶ 52) (Miss. 2009). In Neal, the Court explained that Neal was not entitled to a manslaughter instruction because “[t]here was not evidence that Neal acted upon an immediate and reasonable provocation suddenly giving rise to passion or anger, as required by case law.” Id. at 408 (¶53). Further, “[t]he only evidence of Neal’s motive to kill Cleveland came from Neal’s suspicions that Cleveland had been unfaithful to him and that A.B. was not his son. The evidence was that Neal had been harboring these suspicions for some time 'prior to the murder.” Id. at 408-409 (¶ 54).

¶ 18. Similarly, in the present case, the circuit court, on several occasions, explained that Wells had not provided any evidence that he was in “any state of violent rage or any uncontrollable rage at the time of the shooting which would require a separate defense of heat of passion if there was one.” At the time Wells shot Brown, Brown was simply standing there with his back toward Wells and said only “I didn’t do it” in response to what Wells was yelling at him. There was no immediate provocation. Again, we cannot see how the circuit court abused its discretion.

CONCLUSION

¶ 19. As the circuit court pointed out: “We live in a civilized society. We live in a civilized community. We’ve got to obey laws. We’ve got to abide by them, and allowing any type of self-defense argument in this case would be tantamount to living in the Old West.” Wells shot Brown based on pure speculation and word of mouth that Brown wanted Sherry killed. In fact, others had threatened Sherry and had a motive to shoot Sherry based on her activities as a confidential informant. While balancing the importance of protecting confidential informants, it is a dangerous precedent that reliance on such tenuous information could be enough to justify someone taking the life of another.

¶ 20. Though Wells claims that he was denied, his opportunity to present his theory or theories of his case, Wells argues only that the . evidence was relevant to show his state of mind at the time he shot Brown, but proving his state of mind alone does not make the. evidence admissible when he did not present the circuit court any evidence or authority that would make self defense/defense of others or manslaughter viable defenses. Because the self defense/defense of others and manslaughter defenses were not viable, the circuit court correctly determined that the evidence was not relevant, and even if it was relevant, allowing the evidence at trial would serve only to confuse the issues and the jury. We affirm the judgment of the Madison County Circuit Court.

¶ 21. AFFIRMED.

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

      . The real names of "Bird” and "Bear” are never disclosed in the record.

      . The record indicates that the gunman had not been identified nor had he been definitively linked to Brown.

      . Several issues' are consolidated.

      . Wells did not request a manslaughter instruction at trial as he did with self defense instructions.


author: MAXWELL, JUSTICE, KITCHENS, PRESIDING JUSTICE,

text:
    Marlon LITTLE v. STATE of Mississippi
    NO. 2014-CT-01505-SCT
    Supreme Court of Mississippi.
    10/12/2017
    Rehearing Denied January 25, 2018

      ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: W. DANIEL HIN-CHCLIFF, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN
   ON WRIT OF CERTIORARI

MAXWELL, JUSTICE,

FOR THE COURT:

¶1. Sitting as “thirteenth juror,” the Court of Appeals reversed Marlon Little’s convictions and remanded for a new-trial, finding the weight of the evidence preponderated heavily against the verdict. We granted certiorari to clarify the .appellate court’s role when reviewing a motion for new trial. Despite this Court’s prior language suggesting otherwise, neither this Court nor the Court of Appeals assumes the role of juror on appeal. We do not reweigh evidence. We do not assess the witnesses’ credibility. And we do not resolve conflicts between evidence. Those decisions belong solely to the jury. Our role as appellate court is to view the evidence in the light most favorable to the verdict and disturb the verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

¶2. Applying this standard, we find no reason to disturb Little’s guilty verdict. Therefore, we reverse the judgment of the Court of Appeals and reinstate and affirm the judgment of the Claiborne County Circuit Court.

Background Facts and Procedural History

I. Investigation and Conviction

¶3. Nurse practitioner David Ellis was attacked from behind and robbed while leaving his medical clinic. Ellis reacted by swinging his computer bag at the assailant’s head. During the struggle, Ellis fell down, and his attacker also stumbled. Ellis was on the ground when his attacker stuck a gun in Ellis’s face. Elljs saw the man “square in the face” from about three feet away. The man demanded Ellis’s wallet. Ellis complied. And the man fled.

¶4. Ellis went straight to the Port Gibson Police. He described the robber as “a black male wearing all black with a hood over his head.” His body type was “small.” And he “actually could have been between 20 or better.”

¶5. A few days later, Police Chief Calvin Jackson received a tip from an informant. Based on this tip, Chief Jackson put Little’s photo in a lineup. Chief Jackson presented the seven-photo lineup to Ellis. When Ellis saw the photo of Little, the fourth in the lineup, Ellis recognized him as the robber immediately. Little was indicted for armed robbery and tried a month later.

¶6. The State called both Chief Jackson and Ellis as witnesses. Chief Jackson testified about the informant’s tip connecting Little to the robbery. Based on this tip, he composed the photo lineup and showed it to Ellis. On cross-examination, Chief Jackson was asked about discrepancies between Ellis’s initial description of his at-. tacker given to the police and Little’s actual physical characteristics. He was also asked about a later description given to a private investigator hired by Little’s attorney. In Ellis’s statement to Little’s private investigator, Ellis said the robber was clean-shaven, while Little was known to have a- goatee. Chief Jackson did not know if Little had facial hair when he was arrested, But Chief Jackson agreed with defense counsel that Little was not “stocky or muscular.” Chief Jackson was also asked about Little’s gold teeth and the fact Ellis never mentioned them to the private investigator. Chief Jackson did not recall any mention of Little’s teeth in Ellis’s initial description. '

¶7. When Ellis took the stand, he stated clearly and unequivocally that Little was man who robbed him. Ellis recognized Little based on Little’s entire face, especially Little’s pronounced facial creases.- Drawing from his medical background, Ellis described Little’s facial creases as “nasolabial folds.” Ellis testified that he too shared the same physiological feature. Ellis also told the jury that he recognized Little by his eyes. He remembered them because they were “scared-looking.” He described Little as “slender but solid”—meaning Little was not easily moved or knocked down when Ellis struck him with, the computer bag. •

•¶8. When questioned by defense counsel, Ellis conceded that he probably had described the robber previously as “muscular and stocky” in the recorded statement to Ellis’s investigator. Ellis explained that Little seemed “solid as a rock” when Little jumped him and grabbed him. As for Little’s .mouth, Ellis said he had not noticed Little’s teeth because Ellis “had a .45 pistol .stuck right there in my face.” Ellis also was asked about the robber’s age discrepancy. He described the robber to Chief Jackson as twenty years old “or better.” And Little was actually thirty-nine at the time of the attack. To this, Ellis said he did not know how old Little actually was. He explained he was not a good judge of age. ' •

¶9. Little called no witnesses. The jury found him guilty of armed robbery and possession of a weapon by a convicted felon. He was sentenced to thirty years’ imprisonment for armed robbery and ten years’ for felon-in-possession, with his sentences to run concurrently. After his post-trial motions for judgment not withstanding the verdict and for a new trial were deniéd, he timely appealed.

II. Court of Appeals’ Decision

¶10. Little’s appeal was assigned to the Court of Appeals. Little raised one issue— that his conviction was against the weight of the evidence, requiring a new trial. In a six-three opinion, the Court of Appeals reversed Little’s convictions and remanded for a new trial. Little v. State, No. 2014-KA-1505-COA, 233 So.3d 311, 2016 WL 6876506 (Miss. Ct. App. Nov. 22, 2016).

¶11. Quoting Bush v. State, 895 So.2d 836 (Miss. 2005), the Court of Appeals majority described its appellate posture as that of “thirteenth juror.” Little, 233 So.3d at 313, 2016 WL 6876506, at *2 (¶7). And in this role, “if it ‘disagrees with the jury’s resolution of the conflicting testimony,’ the property remedy is to grant a new trial.” Id. (quoting Bush, 895 So.2d at 844).

¶12. The appellate court majority found Ellis’s initial identification conflicted with Little’s “actual physical attributes, including age and build.” Id. at *2 (¶10). And because Ellis’s identification of Little as the robber was the only substantive evidence against Little, the majority found a new trial was warranted. Id. at *3 (¶11).

¶13. The dissent disagreed with the majority’s use of the “thirteenth juror” standard of review. Id. at *3 (¶14) (Griffis, J., dissenting). The dissent quoted extensively from Judge Larry Roberts’s special concurrence in Hughes v. State, 43 So.3d 526, 530-33 (Miss. Ct. App. 2010). Little, 233 So.3d at 314-17, 2016 WL 6876506, at **3-6 (¶16) (Griffis, J., dissenting). In that case, Judge Roberts traced the history of the “thirteenth juror” language and explained how an appellate court, faced with a cold record, can never perform the function of “juror.” Hughes, 43 So.3d at 530-33 (Roberts, J., dissenting). Applying an abuse-of-discretion standard, the dissent in Little saw no abuse in the trial judge’s denial of Little’s motion for a new trial. Little, 233 So.3d at 318, 2016 WL 6876506, at *7 (¶18) (Griffis, J., dissenting).

¶14. The State filed a petition for certio-rari, which we granted to clarify Bush’s “thirteenth juror” language.

Discussion

¶15. We take this opportunity to clarify that neither this Court nor the Court of Appeals ever acts as - “juror” on direct appeal. “We sit as an appellate court, and as such are ill equipped to find facts.” Gavin v. State, 473 So.2d 952, 955 (Miss. 1985). “[E]ven if we wanted to be fact finders, our capacity' for such is limited in that we have only a cold,' printed record to review.” Id.

¶16. The concept of the appellate court acting as “thirteenth juror” was birthed in Bush. In that case, this Court sought to distinguish the standard of review for the denial of a motion for judgment notwithstanding the verdict, which challenges the sufficiency of the'evidence, from the standard of review for the denial of a motion for a new trial, which challenges the weight of -the evidence. Bush, 895 S.o.2d at 843-45. In ^explaining the standard of review for the denial of a motion for a new trial, we borrowed language from Amiker v. Drugs For Less, Inc., 796 So.2d 942 (Miss. 2000):

[T]he court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court; which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. ■

Bush, 896 So.2d at 844 (quoting Amiker, 796 So.2d at 947).

¶17. But as Judge Roberts pointed out in his special concurrence in Hughes, “[i]n Amiker, the central issue was whether a successor judge could vacate his predecessor’s order granting a new trial.” Hughes, 43 So.3d at 531 (citing Amiker, 796 So.2d at 946) (Roberts, J., specially concurring). And this Court concluded the.predecessor ■trial .judge, who sat through trial and observed the witnesses first hand, was in a “superior position” to his successor, who only had “a cold, printed record of a case.” Amiker, 796 So.2d at 947-48.

¶18; This conclusion was based on the longstanding “recognition] that the trial judge is in the best position to view the trial.” I'd. at 947. “The trial judge who hears' the witnessés live, observes their demeanor and in general'smells the smoke of the battle is by his very position far better equipped to make findings of fact which will have the reliability that we need and desire.” Id. (quoting Gavin, 473 So.2d at 955). By contrast, a successor judge, who enters the,fray after the battle, is “in no better position than this Court to do what this . Count does not do.” Id. at 948 (emphasis added). And what, according to Amiker, does this Court not do? “This Court justifiably refuses to review grants of a new trial based in part on the superior position of the-trial court to decide such matters.” Id.

¶19. In now revisiting Amiker, we agree with Judge Roberts that the “thirteenth juror” referred to the trial court—and the trial court alone. See Hughes, 43 So.3d at 531-32 (Roberts, J., specially concurring). Thus, it was error in Bush to conflate our role as appellate court with the trial court’s and to assume the role of “thirteenth juror” for ourselves when reviewing the trial court’s grant or denial of a new trial. See Bush, 895 So.2d at 844 n.2 (noting “when the trial court (and subsequently the appellate court) reviews a verdict that is alleged to be against the overwhelming weight of the evidence, this presents a distinctive situation which necessitates the court sitting as a ‘thirteenth juror’ ”).

¶20. To be clear, when reviewing a motion for new trial, neither this Court nor the Court of Appeals “sits as thirteenth juror.” Bush, 895 So.2d at 844. We do not make independent resolutions of conflicting evidence. See id. Nor do we reweigh the evidence or make witness-credibility determinations. Instead, “when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Gathright v. State, 380 So.2d 1276, 1278 (Miss. 1980); see also Lenoir v. State, 222 So.3d 273, 278 (Miss. 2017).

¶21. Our role as appellate court is to review the trial court’s decision to grant or deny a new trial for an abuse of discretion. See Amiker, 796 So.2d at 948 (citing Dorr v. Watson, 28 Miss. 383, 395 (1854) (“The granting a new trial rests in a great measure upon the sound discretion of the court below, to be exercised under all the circumstances of the case with reference to settled legal rules as well as the justice of the particular case. If a new trial be refused, a strong case must be shown to authorize the appellate court to say that it was error; and so, if it be granted, it must be manifest that it was improperly granted.”)). In carrying out this task, we weigh the evidence in the light most favorable to the verdict, “only disturbing] 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.” Lindsay v. State, 212 So.3d 44, 45 (Miss. 2017) (quoting Bush, 895 So.2d at 844).

¶22. Applying that standard here, we find no abuse of discretion in the trial court’s denial of Little’s motion for a new trial. Viewing the evidence in the light most favorable to the verdict, the trial court did not sanction an “unconscionable injustice” in ruling the judgment must stand. Ellis positively identified Little as the robber from a photo lineup and again from the witness stand. The conflicting portions of Ellis’s descriptions were thoroughly presented to the jury. And obviously the jury resolved these conflicts and concluded beyond a reasonable doubt that Little was the man who attacked Ellis, pointed a gun in his face, and robbed him.

¶23. We thus reverse the judgment of the Court of Appeals. And we reinstate and affirm the judgment of the Claiborne County Circuit Court, which convicted Little of armed robbery and felon in possession of a weapon and sentenced him to concurrent sentences of thirty years and ten years respectively.

¶24. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

RANDOLPH, P.J., COLEMAN, BEAM AND CHAMBERLIN, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. WALLER, C.J., AND ISHEE, J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE,

DISSENTING:

¶25.1 agree that, applying the appropriate standard of review, we must review the trial court’s denial of a motion for a new trial for abuse of discretion and, considering the evidence in the light most favorable to' the verdict, we “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.” Bush v. State, 895 So.2d 836, 844 (Miss. 2005). But I respectfully decline to accept the majority’s .application of a new standard under which, on review of the weight of the evidence, this Court never weighs the conflicting evidence. An appellate court cannot determine whether a trial court correctly rejected a claim that a verdict was against the overwhelming weight of the evidence without actually evaluating the weight of the evidence—a process that necessarily involves consideration of witness credibility.

¶26.1 would find that, due to the paucity of evidence against Little, this is one of the exceptional cases in which the evidence preponderates so heavily against the verdict that the Court must order a new trial to prevent a miscarriage of justice. Further, I would find that plain error likewise demands a new trial. I would affirm the judgment of the Court of Appeals that reversed the judgment of the Circuit Court of Claiborne County and remanded for a new trial.

A. Appellate Review of a Claim That the Verdict Was Against the Overwhelming Weight of the Evidence

¶27. In Bush v. State, this Court announced the proper standards for review of the weight of the evidence and the sufficiency of the evidence to “demonstrate the clear difference between these issues.” Bush, 895 So.2d at 843. The standard for weight of the evidence articulated in Bush is, in its entirety, as follows:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we 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. Herring v. State, 691 So.2d 948, 957 (Miss. 1997). We have stated that on a motion for new trial,
the court sits as a thirteenth juror. The motion, however’ is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss. 2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” McQueen v. State, 423 So.2d 800, 803 (Miss. 1982). Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.

Bush, 895 So.2d at 844. The Court then applied the standard to the facts of the ease as follows: “[sjitting as a limited ‘thirteenth juror’ in this case, we cannot view the evidence in the light most favorable to the verdict and say that an unconscionable injustice resulted ... [t]he trial court therefore did not abuse its discretion in denying a new trial .... ” Id. at 844-45. The standard announced in Bush has been applied faithfully by our trial arid appellate courts to resolve arguments based on the weight of the evidence for more than twelve years.

¶28. As the majority recognizes, the “thirteenth juror” language derived from Amiker, which discussed the standard of review applied by the trial judge to a claim that the' verdict was against' the overwhelming weight of the evidence.’ Amiker held that a successor judge had erred by vacating his predecessor’s order granting a new trial. Unlike an appellate judge or a successor judge, the trial judge had sat through the trial, had heard the witnesses, had observed their demeanors, and generally had “smelled the smoke of battle.” Amiker, 796 So.2d 942, 947 (Miss. 2000). The Court said that, on a motion for a new trial, the court sits as a thirteenth juror, the motion is addressed to the court’s discretion, and the court should grant a new trial “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. (quoting U.S. v. Sinclair, 438 F.2d 50, 51 n.1 (5th Cir. 1971) (quoting Wright, Federal Practice & Procedure: Criminal § 553, at 487)). A reading of Am-iker indicates that, in saying that “the court sits as a thirteenth juror,” the Court was referring to the trial court,- not the appellate court or a successor judge.

¶29. So, as a technical matter, the Court in Bush erred by relying on Amiker to find that, on review of the' trial court’s denial of a motion for a new trial challenging the weight of the evidence, the appellate court sits as a thirteenth juror. But Bush made clear that the appellate court’s standard of review of the trial court’s decision is abuse of discretion, not de novo. Thus, it mattered little to post-Bush appellate review that the case directed an appellate court to sit as a “thirteenth juror” because, in each case, the appellate court waB required to defer to the trial court’s exercise of discretion in resolving the question, of whether the verdict was against the overwhelming weight of the évidence.

¶30. Thus, removing the “thirteenth juror” standard from appellate review does little to erode our established appellate authority to grant relief based'on a claim that the trial court erred by denying a motion for a new trial on the ground that the verdict ,was against the overwhelming weight of the evidence. The trial court sits as the “thirteenth juror" and must order a new trial only in those exceptional cases in which the evidence preponderates so heavily against the verdict that to affirm would be to sanction an unconscionable injustice. The evidence is to be viewed in the.light most favorable to the verdict. And, as already recognized in Bush, the appellate court reviews the trial court’s denial of a motion for a new trial for abuse of discretion.

¶31.1 also note that, in Bush, this Court provided further direction for appellate review of the denial of a motion for a new trial based on the weight of the evidence. We correctly determined that, in prior weight-of-the-evidence cases, “we erroneously [had] stated that when reviewing .the weight of the evidence, ‘the Court must accept as true the evidence which supports the verdict,’ the Court ‘must accept as true the evidence favorable to the State,’ and ‘[w]here there is conflicting testimony, the jury is the judge of the credibility of the witnesses.’ ” Bush, 895 So.2d at 844 n.3. While these pronouncements of law are pertinent in the context of reviewing the sufficiency of the evidence, they have no .place in reviewing the weight of the evidence. Id. In ruling on the sufficiency of the evidence, we will affirm if, viewing the evidence in the light most favorable to the verdict, a , rational jury could have found that each essential element of the crime was proven beyond a reasonable doubt. Id. at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979). In ruling on the weight of the evidence, the trial court'must “weigh[ ] the .evidence and assessf ] the credibility of the witnesses in reaching its conclusion that the jury verdict was contrary to the weight of the evidence.” U.S. v. Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997).

¶32. And, in reviewing the trial court’s denial of a motion for a new trial based on the weight of the evidence, the' appellate court also must weigh the evidence and assess witness credibility to arrive át a determination of whether the trial court’s ruling was' an abüse of discretion. This Court cannot, as the majority suggests, simply check the trial record for conflicting evidence on each element of the crime and if such evidence is present, affirm the trial court. That would amount to our ruling on the sufficiency of the evidence. Rather, we must evaluate the weight of the evidence and the credibility of the witnesses as we undertake a determination of whether the trial court’s ruling was an abuse of discretion. In order to decide whether, the trial court correctly weighed the evidence and made the right judgment call, it is necessary that we weigh the evidence. Affirming based merely on the presence of conflicting evidence in the record is a ^ruling on the sufficiency of the evidence, not its weight.

1133. For that reason, the majority errs by affirming this case based solely on the presence of conflicting evidence in the record on the ground that it is the jury’s role to resolve evidentiary conflicts. A challenge to the weight of the evidence, in which the trial judge must assess witness credibility and actually weigh the evidence, obviously necessitates judicial'evaluation of the evidence before the jury. And on appellate review of-the-trial court’s evaluation of the weight of the evidence, this Court also must evaluate the weight of the evidence and the credibility of the witnesses to determine whether the trial court abused its discretion by finding that the verdict was not so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. Of course, reversal based on a conclusion that the verdict was against the overwhelming weight of the evidence and that the trial court abused its discretion in denying a new trial is a rare event, reserved for exceptional cases in which the evidence ■ preponderates so heavily against the verdict that an affir-mance would result in an unconscionable injustice. Little’s case is one of the few exceptional cases in which the verdict should not stand.

B. The verdict■ was against the overwhelming, weight of the evidence.

¶34. The evidence against Little established that,-in Port Gibson, Mississippi, on the afternoon of October 31, 2013, nurse practitioner Danny Ellis was robbed after closing his office for the day. Ellis testified that the robber had attacked him from behind and wrestled him to the ground. Ellis swung his computer bag and struck the attacker’s left ear. Then, the man stepped back, yelled “get on the ground,” and put his knee on Ellis’s chest, then aimed a pistol at his face. Ellis testified that at this point he saw the face of his attacker, whom he had never seen before. Ellis asked the man what he wanted, and the man replied that he wanted Ellis’s wallet. Ellis gave it to him, and the man backed off. Then, the man stopped a few feet away, aimed the gun at Ellis, flinched in a manner that made Ellis think he was going to shoot him, and finally ran away.

¶35. Immediately, Ellis drove to the police station and reported the incident. Chief of Police Calvin Jackson testified that Ellis described the suspect as a small black male wearing all black clothing with a black hoodie over his head, and that the suspect was “twenty years old or better.” ■Chief Jackson knew Little. Based on a tip from a confidential informant, Chief Jackson included Little in a photographic lineup with seven other persons, although he did not believe that Little fit the description Ellis had given. He presented the lineup to Ellis,- who identified Little as the robber. Because the police conducted no further investigation, Ellis’s identification testimony was the sole evidence against Little.

¶36. Although in January 2014, the grand jury no-billed the charges, the prosecution did obtain an indictment against Little for armed robbery and possession of a weapon by a felon in April 2014. The trial occurred less than a month later. Little’s request for a continuance to locate witnesses was denied. Chief Jackson and Ellis testified for the State and the defense called no witnesses; several potential defense witnesses either did not appear or could' not-be located before the trial.

¶37. At the trial, Ellis acknowledged having given a description of the robjoer to Little’s defense counsel in an audio recording. On the audio recording, Ellis had said that the robber was muscular and stocky. Both Chief Jackson and Ellis admitted that Little is neither muscular nor stocky, Ellis explained that he had given that description because, when the robber had wrapped his arms around him, he was “solid as a rock.” He also said that the robber had been clean shaven. Chief Jackson testified that, ordinarily, Little wore a goatee, although he was unable to say whether Little had any facial hair at the time of his arrest. Chief Jackson also testified that Little has gold teeth which are clearly visible when he talks. He said that Ellis had never mentioned gold teeth in his description of the robber. When asked about the gold teeth, Ellis admitted that the harrowing situation had hampered his powers of observation, saying that he had not noticed anything about the robber’s mouth because the robber had a .45 pistol aimed at his face.

¶38. In his testimony, Ellis admitted that the robber’s hoodie had been pulled down, obscuring a portion of his face. Yet Ellis professed “no doúbt” that the robber was Little. He testified that he had identified Little from the photographic lineup based, in part, on Little’s pronounced na-solabial folds, or facial creases. Little was the only person, in the lineup who had pronounced nasolabial folds. Ellis testified that he also identified Little based on his eyes, because the robber’s eyes had been “scared-looking” and wide open, with a lot of white showing. Ellis acknowledged that, in court, Little’s eyes were not opened wider than normal, and in the lineup photograph, they were almost shut.

¶39. Little was found guilty, and the trial court sentenced him to thirty years for armed robbery and ten years fop possession of a weapon by a felon, to run concurrently. The Court of Appeals reversed Little’s convictions upon a finding that the verdict was against the overwhelming weight of the evidence because “the sole substantive proof presented at trial was the testimony of the victim identifying the defendant, and the victim’s initial description of the attacker to the police was inconsistent with that identification.” Little v. State, 233 So.3d 311, 314 2016 WL 6876506, at *3 (Nov. 22, 2016).

¶40. The majority affirms Little’s convictions on the basis that the trial court’s denial of his motion for a new trial was not an abuse of discretion. The majority relies on the presence of conflicting testimony in the record to affirm. But as explained above, it is vital to this Court’s application of the proper standard of review to weight-of-the-evidence claims that we not .rely on the mere presence of conflicting testimony in the record, but that we also evaluate the weight of the evidence to determine whether the trial court’s ruling was an abuse of discretion.

¶41. Here, the trial court did abuse its discretion by denying the motion for a new trial. The State’s sole evidence against Little was Ellis’s identification of him as the robber. But that identification was manifestly unreliable. Ellis professed that the robber was “twenty years old or better,” muscular and stocky, and clean shaven, while Little was thirty-nine years old, neither muscular nor stocky, and habitually wore a goatee. And the robber wore a hoodie that obscured a portion of his face. Chief Jackson acknowledged that Little’s appearance did not match Ellis’s description of the robber. Ellis identified Little based on a photographic lineup that was suggestive because Little was the only person in the lineup with pronounced nasola-bial folds. Absolutely no evidence connected Little with the crime besides Ellis’s identification. Considering the evidence in the light most favorable to the State, the fact that the only proof presented by the State was Ellis’s identification testimony, and his initial description of the robber was strikingly inconsistent with Little’s actual appearance, I would find that this case presents the exceptional instance in which an affirmance of the verdict would amount to our sanctioning an unconscionable injustice. This ease provides ample cause for concern that an innocent man may be serving a substantial sentence for crimes that he did not commit.

C. Chief Jackson’s testimony about the informant’s tip and improper closing argument demand reversal under the plain error doctrine.

¶42. Another troubling consideration leads me to conclude that this verdict must be reversed. Chief Jackson testified that he had included Little in the photographic lineup based on a tip from an informant. During closing argument, the prosecutor asked the jury to consider the informant’s tip as additional substantive evidence that Little had committed the crime. The prosecutor argued:

Calvin Jackson investigated it. He tells you he got an informant, a street committee. Street committee tells Calvin who does it, you know. So by that, Calvin doesn’t' go arrest him on that because he has no evidence. So he takes a lineup, and I think it’s a fairly accurate lineup. But he puts Marlon in there because that’s who he’s been told did it. He takes it to Danny Ellis.
The man was in the picture lineup because Calvin Jackson was told that’s who did it.

Defense counsel did not object to this argument, nor did the defense ever request a limiting instruction to prevent the jury’s use of the informant’s tip as substantive evidence of guilt.

¶43. “ ‘Hearsay* means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of-the matter asserted in the statement.” M.R.E. 801(c). We have held that “[t]he conversation of an informant is generally inadmissible as hearsay where it is a part of the State’s development of its proof on the merits in a criminal case, but not in other circumstances where probable cause for an arrest or search is at issue.” Swindle v. State, 502 So.2d 652, 657 (Miss. 1987). But “an informant’s tip is admissible to the extent required to show why an officer acted as he did and was at a particular place at a particular time.” Id. at 657-58. Admission of an informant’s tip for the truth of the matter asserted when the informant is unavailable for cross-examination is a violation of the Confrontation Clauses of the United States Constitution and the Mississippi Constitution. U.S. Const, amend. VI; Miss. Const, art. 3, § 26.

¶44. While the purpose of Chief Jackson’s testimony about the unknown informant’s tip may hav¿ been to show why he included Little in the lineup despite the fact that Little’s physical description did not match 'Ellis’s description of the robber, the impact of the testimony was to bolster Ellis’s identification of Little. Doubtlessly, had defense counsel lodged Confrontation Clause-and hearsay objections to this testimony, the trial court should have sustained the objections or at least excluded the testimony as more prejudicial than probative under "Mississippi Rule of Evidence 403. Compounding the error, in closing argument, the prosecutor improperly encouraged the jury to consider the informant’s tip as substantive evidence of Little’s guilt; Because the entire case turned on identification evidence and the only substantive evidence identifying Little was Ellis’s testimony, this argument falsely informed the jury that the “informant’s tip” testimony functioned as additional sub-, stantive evidence identifying Little as the culprit.

¶45,' While the prosecutor is allowed to' comment on the evidence and draw proper deductions and inferences from the facts, the prosecutor cannot “appeal to the prejudices of [jurors] by injecting prejudices not contained in some source of the evidence.” Wilson v. State, 194 So.3d 855, 864 (Miss. 2016) (quoting Sheppard v. State, 777 So.2d 659, 661 (Miss. 2000)). Attorneys are permitted wide latitude in closing argument, but “prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Sheppard, 777 So.2d at 661. When faced with a potential instance of lawyer misconduct during-closing arguments,- this Court inquires “whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Galloway v. State, 122 So.3d 614, 643 (Miss. 2013).

¶46. In this case, where the sole evidence against Little was Ellis’s identification, the closing argument encouraging the jury to consider the informant’s tip as further identification evidence was unjustly prejudicial and created the likelihood of a conviction that rested in significant part upon inadmissible hearsay. But because Little did not object to the admission of the informant’s tip or to the prosecutor’s closing argument, or raise either issue on appeal, this issue obviously would be procedurally barred from appellate review. However, “[u]nder the plain-error doctrine, we can recognize obvious error which was not properly raised by the defendant .,. and which affects a defendant’s ‘fundamental, substantive • right.’ ” Conners v. State, 92 So.3d 676, 682 (Miss. 2012) (quoting Smith v. State, 986 So.2d 290, 294 (Miss. 2008)). For application of the plain error 'doctrine, there must have been an error that caused a manifest miscarriage of justice or “seriously a£fect[s] .the fairness, integrity or public reputation of judicial proceedings.” Conners, 92 So.3d at 682 (quoting Brown v. State, 995 So.2d 698 (Miss. 2008)). I would find that, because the sole evidence against" Little was Ellis’s identification, the admission of the informant’s tip as additional substantive identification evidence, along with the prosecutor’s closing argument that encouraged the jury to consider the informant’s tip as further substantive identification evidence, a plain error occurred that caused a manifest miscarriage of justice and undermines the fairness, integrity, and public reputation of judicial proceedings.

¶47. Not only was the verdict against the overwhelming weight of the evidence, but plain error resulted, from the admission of the informant’s tip and improper closing argument. I would affirm the judgment of the Court of Appeals that reversed Little’s convictions and remanded for a new trial.

KING, J., JOINS THIS OPINION.

      . Before trial, Little stipulated he was a coh-victed felon.

      . It has been said by the United States Supreme Court that "[t]he ‘weight of the evidence’ refers to ‘a determination [by] the trier of fact that a greater amount of credible evidence. supports one side of an issue or cause than the other.’ ” Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).