author: MAXWELL, J.,

text:
    Fonshanta ANTHONY, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01348-COA.
    Court of Appeals of Mississippi.
    Dec. 15, 2009.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J.,

for the Court.

¶ 1. Fonshanta Anthony was convicted in Marshall County Circuit Court of felony child abuse and sentenced to twenty years’ imprisonment in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Anthony argues: (1) the circuit court erred in admitting a medical report entitled “Abuse/Neglect Risk Factor Assessment” (abuse record); (2) the evidence was insufficient as a matter of law to sustain her conviction of felony child abuse; and (3) the verdict is against the overwhelming weight of the evidence.

¶ 2. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. A Marshall County grand jury charged Anthony with felony child abuse. Specifically, the indictment alleged that Anthony intentionally burned her nine-month-old infant son, B.A. While Anthony’s reports of the incident vary, expert medical testimony established that B.A. was forcefully held down in scalding bath water and sustained graphic burn injuries to over sixty percent of his body. The severe burns caused much of B.A.’s skin to fall off, and required skin grafts to over fifty percent of his body. The only people present at the time B.A. was burned were B.A.’s mother, Anthony, and B.A.’s two-year-old brother, J.A.

¶4. The events underlying the felony-child-abuse charge took place on July 18, 2005, in Byhalia, Mississippi. That night, Anthony brought B.A. to her neighbor Cassandra Watkins’s apartment, and asked Watkins to call 911. Anthony attempted to hand B.A. to Watkins, but Watkins refused to hold the injured child, and instead called 911. Watkins testified B.A. was screaming, his skin was falling off, and he was bleeding. Anthony told Watkins that J.A. had turned the hot water on B.A.

¶ 5. Officer David Taylor of the Byhalia Police Department was the first law enforcement officer on the scene. Ambulance personnel arrived about the same time. Taylor testified that he heard B.A. screaming the whole time he was being attended to by paramedics and observed that B.A. was obviously in pain.

¶ 6. Officer Clyde Gunter of the Byhalia Police Department arrived when paramedics were preparing B.A. to be airlifted to Le Bonheur Hospital in Memphis, Tennessee. He was told B.A. was in critical condition and had been burned in the bathroom upstairs in Anthony’s apartment. Officer Gunter looked in Anthony’s tub and noted it was empty. He testified that it looked like a washcloth had been used to stop water from draining from the tub. Officer Gunter found brown pieces of B.A.’s skin in the tub. He then inspected the hot water heater and discovered the temperature was set at approximately 160 degrees. After investigating the apartment, Officer Gunter overheard Anthony telling a companion: “I wouldn’t do anything deliberately to hurt my child.” B.A. was then transferred by helicopter to Memphis.

¶ 7. In Anthony’s initial statement to police, she claimed she ran bath water and placed her two-year-old son, J.A., in the tub. She then left her apartment to take trash to a garbage dumpster. When she returned she placed B.A. in the tub with J.A. At that point, Anthony claimed she left both children in the bathtub unsupervised and went to their room to gather night-time clothes. Anthony explained she then heard water running and yelled to her two-year-old son, J.A., to turn it off. According to Anthony, J.A. stated that B.A. had “boo booed” in the tub. When Anthony walked into the bathroom, she noticed pieces of B.A.’s skin were floating in the tub. She then pulled him out of the water.

¶ 8. While at Le Bonheur Hospital in Memphis, Anthony told a different story. There she claimed she hád placed both J.A. and B.A. in the back of the bathtub, and then left the apartment to take out the garbage to a dumpster. She maintained that B.A. had moved from the back of the tub to the front of the tub, and J.A., her two-year-old son, turned on the hot water. A treating physician who examined B.A. at Le Bonheur Hospital made a notation in the records that “the injuries do not fit the explanation given” by Anthony.

¶ 9. B.A.’s burns were so severe that on July 19, 2005, he had to be transported to Shriners Hospital for Children in Galveston, Texas, which specializes in treating burned children. At Shriners Hospital, Anthony gave a third slightly different version of the events giving rise to B.A.’s burns. Anthony told a treating psychologist she had placed J.A. alone in the tub prior to taking the trash to the dumpster. She also claimed that upon her return, she placed B.A. in the back of the tub, and then left the bathroom to get the children’s night-time clothes. Anthony reported she heard the water turn on, and it ran for approximately thirty to sixty seconds, and then “cut off.” When the water was turned off, she heard J.A. yell that B.A. had used the bathroom in the tub. Anthony indicated B.A. was sitting in the front of the bathtub, in a relaxed position under the faucet, and J.A. was standing directly behind B.A. in the tub. She also claimed B.A. was not crying at this time, but she noticed “brown stuff’ floating in the tub. According to Anthony, the water was one to two inches deep and was not hot to the touch. She noticed B.A.’s skin was pink, so she pulled him out of the tub and called 911.

¶ 10. A few days after the burning incident, Anthony reported essentially the same version she had given at Shriners Hospital to Patricia Amosike of the Marshall County Department of Human Services (DHS). Specifically, she told Amo-sike that J.A. was in the tub with B.A. when Anthony returned to the bathroom and found B.A. burned.

¶ 11. Amosike conducted a physical examination of J.A. the day after the burning incident, but found no burns on J.A.’s body. Amosike found the lack of any sign of burns on J.A. to contradict Anthony’s account that both children were in the tub together when B.A. sustained his devastating burns.

¶ 12. Without objection from Anthony, the circuit court accepted Dr. Art Sanford of Shriners Hospital as an expert in the field of “general surgery including burn injuries and pediatric burns and related fields.” Dr. Sanford treated B.A. at Shri-ners Hospital. He testified that over sixty percent of B.A.’s body was burned, and that B.A. had sustained “full thickness burns,” which are burns that do not heal, on fifty percent of his body.

¶ 13. Doctors performed five surgeries on B.A. during his one-month stay at Shri-ners Hospital. In between B.A.’s surgeries, B.A. required almost daily scrubbing of his damaged areas to remove dead skin. Over fifty percent of B.A.’s body required skin grafts. Dr. Sanford also explained B.A. will require additional operations to restore function to his hands and feet. Because the skin grafts will not grow at the same rate as B.A.’s body, he will also have to undergo regular surgeries to release the grafts.

¶ 14. According to Dr. Sanford, B.A.’s burns were straight-line demarcation burns, meaning they were in a straight line around his torso and continued from his chest down. He also testified a child B.A.’s age would not sit still in scalding water, and would have flailed around in the water to avoid being burned. In Dr. Sanford’s opinion, flailing would have resulted in burns unlike those found on B.A.’s body.

¶ 15. Dr. Sanford also noted the burns on B.A.’s extremities were mirror-image burns, meaning that each arm and leg was very similarly burned, consistent with a victim being held down in scalding water. Furthermore, Dr. Sanford testified that the burns were of uniform depth, which showed B.A.’s entire lower body was exposed to the same amount of water at the same temperature for the same length of time. In Dr. Sanford’s opinion, the uniform depth of the burns was consistent with forced immersion. He also noted B.A. had donut-shaped scars on his buttocks and areas of spared skin in the groin and wrist areas — additional signs of forced immersion.

¶ 16. Dr. Sanford noticed during B.A.’s hospital stay that there was a concern among his staff that B.A. was more agitated and less comfortable in the presence of his mother than with the hospital caregivers.

¶ 17. Dr. Sanford was also troubled by Anthony’s inconsistent explanations of how the burn occurred. He found it was highly suspicious that some of Anthony’s accounts placed J.A. in the tub with B.A. In his opinion, had J.A. been in the tub as well, he would have also sustained injuries. Dr. Sanford also opined it was unlikely a two-year-old child would have the fine motor skills to turn on the hot-water faucet. Dr. Sanford maintained that had hot water been turned on while B.A. was in the tub, he would have exhibited a spectrum or varying degrees of burns, rather than the uniform burns he sustained.

¶ 18. Dr. Sanford testified that in his expert opinion, B.A. was intentionally burned and had been “folded up” and placed in the hot water. As Dr. Sanford put it, B.A. would have had to have been held down, and “[t]here [had] to be force pushing his chest, his torso forward with him in a sitting position.”

DISCUSSION

I. Admission of the Abuse Record

¶ 19. Anthony does not take issue with the trial court’s acceptance of Dr. Sanford as an expert witness in the field of pediatric burns. Instead, her assignments of error are mostly centered around the admission, during the State’s direct examination of Dr. Sanford, of the abuse record created by B.A.’s caregivers at Shriners Hospital. First, she argues the circuit court erred in admitting the abuse record because it contained inadmissible hearsay, which she claims was highly prejudicial. Second, she argues admission of the record violated the Confrontation Clause of the United States Constitution. Third, she claims admission of the record exceeded the scope of Rules 702 and 703 of the Mississippi Rules of Evidence.

¶ 20. We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Smith v. State, 986 So.2d 290, 295(¶ 12) (Miss.2008) (citations omitted). Questions of law are reviewed under a de novo standard of review. DeLoach v. State, 722 So.2d 512, 518(¶ 25) (Miss.1998) (citations omitted).

A. Hearsay

¶ 21. First, Anthony claims the circuit court erred in admitting the abuse record because it contained inadmissible hearsay. The State contends that the court properly admitted it under a hearsay exception. There are essentially two types of statements contained in the abuse record: (1) the histories provided by B.A.’s mother, Anthony, and recorded in the abuse record; and (2) the statements of B.A.’s caregivers at Shriners and Le Bonheur Hospitals. Dr. Sanford participated in the completion of the abuse record and contributed to all medical/physical findings contained in the report. The remaining psychologieal/soeial aspects of the report were completed by Shriners Hospital psychologists, who were also on B.A.’s medical-care team. The abuse record was signed by B.A.’s treating psychologist, Dr. Laura Rosenberg, as well as a psychology intern, Amy Brookover.

¶ 22. When the State attempted to admit the abuse record at trial, the circuit court asked if it was a “regularly kept record for the treatment” of B.A. Upon receiving an affirmative answer from Dr. Sanford, the judge admitted the document without citing a specific hearsay exception. From his question about Shriners Hospital’s record-keeping activities, the circuit judge may have intended to admit the report under Mississippi Rule of Evidence 803(6) — the business records exception. Though the circuit court’s reasoning is not preserved for our review, the State contends the court properly admitted the abuse report under this exception.

¶ 23. Mississippi Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay evidence is not admissible unless it falls within an exception provided by law. M.R.E. 802.

¶24. Here, the abuse record clearly meets the definition of hearsay, so its admissibility hinges on whether a hearsay exception applies. We bear in mind that a circuit court’s proper admission of evidence is not reversible error, even where the circuit court admits the evidence for the wrong reason. Evans v. State, 919 So.2d 231, 285(1112) (Miss.Ct.App.2005) (citing Puckett v. Stuckey, 638 So.2d 978, 980 (Miss.1993)); Jackson v. State, 811 So.2d 340, 342(¶ 6) (Miss.Ct.App.2001) (citation omitted).

¶ 25. While the abuse record is perhaps admissible under Rule 803(6), we find the exception rooted in Rule 803(4) more applicable. Rule 803(4) exempts “Statements for Purposes of Medical Diagnosis and Treatment” from the otherwise stringent prohibition against hearsay, regardless of the availability of the declarant. M.R.E. 803(4). Specifically, Rule 803(4) provides that the following statements are exempted from the hearsay rule:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term “medical” refers to emotional and mental health as well as physical health.

¶ 26. Mississippi courts recognize a two-part test for the admission of evidence under Rule 803(4). “First, ‘the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment,’ and second, ‘the content of the statement must be such as is reasonably relied on by a physician in treatment.’” Osborne v. State, 942 So.2d 193, 197-98(¶ 15) (Miss.Ct.App.2006) (quoting Davis v. State, 878 So.2d 1020, 1024(¶ 12) (Miss.Ct.App.2004)).

¶ 27. Rule 803(4) applies to statements made to non-medical personnel, including psychologists. In re S.C. v. State, 795 So.2d 526, 530(¶ 15) (Miss.2001); Davis v. State, 878 So.2d 1020, 1023-24 (¶¶7, 13) (Miss.Ct.App.2004); see also M.R.E. 803(4) cmt. This exception also allows for the admission of “statements which relate to the source or cause of the medical problem.” Foley v. State, 914 So.2d 677, 683 n. 1 (Miss.2005) (citing M.R.E. 803(4) cmt.).

¶28. In the present case, the abuse record was completed by B.A.’s caregivers at Shriners Hospital. Dr. Sanford testified that a physician would have requested the abuse record be composed. He also testified that the record was compiled during B.A.’s care, and that he would have personally participated in preparing the document. The record, he also explained, was a part of B.A.’s overall physical exam findings when B.A. arrived at Shriners Hospital; therefore, it was made for the purpose of promoting B.A.’s treatment.

¶ 29. Mississippi appellate courts have routinely held in instances where a child has suffered abuse at the hands of another household member, part of the treatment of the child is to make certain the child is not returned to the abuser. Rowlett v. State, 791 So.2d 319, 321 (¶ 4) (Miss.Ct.App. 2001) (citing Hennington v. State, 702 So.2d 403, 415(¶ 49) (Miss.1997)). In Rowlett, we noted “[t]he scope of [Mississippi Rule of Evidence 803(4) ] has been specifically held to include the identification of the purported abuser under the theory that a part of the treatment of a[n] ... abused child includes reasonable efforts to eliminate the abuser’s access to the child.” Id.

¶ 30. Here, Dr. Sanford testified that an important part of B.A.’s treatment was to ensure he would be discharged to a safe environment. In fact, Dr. Sanford, in laying the foundation for the admission of the abuse record, testified that the psychologists who prepared the abuse record “have an interest in both patient and family and identifying ... who is at risk for injury, [and] who is at risk for having a second burn injury to prevent recurrences.”

¶ 31. Our supreme court recently held that Rule 803(4) “casts its net wider than the patient-physician relationship” and extended its scope to include statements by the patient’s mother to treating physicians. Valmain v. State, 5 So.3d 1079, 1088(¶ 14) (Miss.2009) (citation omitted). In addressing the scope of Rule 803(4), the supreme court noted that the majority of state and federal courts that have confronted the question have held statements to doctors and therapists by a parent of an injured child qualify as statements for the purpose of medical diagnosis or treatment. Id. at 1083-84(¶ 15). “The fact that information obtained via a medical history comes from the patient’s mother ‘does not affect the admissibility of the statements therein.’ ” Id. at 1084(¶ 15) (quoting Sandoval v. State of Texas, 52 S.W.3d 851, 857 (Tex.App.2001)).

¶ 32. In Valmain, the supreme court also discussed the guidelines set forth in Hennington relating to the admission of hearsay evidence in sexual abuse cases, stating:

[H]earsay testimony identifying the perpetrator is admissible under Miss. R. Evid. 803(4) regardless of whether he or she is a member of the child’s immediate household. The overriding question making the inquiry necessary is, “Will the perpetrator have access to the child in the future that would allow the sexual abuse to continue?” Because the inquiry is necessary for treatment, the answer is admissible under the rule.

Id. at 1084(¶ 20) (quoting Hennington, 702 So.2d at 415(¶49)). The supreme court also noted that “the paramount concern in treatment of sexual abuse is to ensure that a child is not returned to the environment that fostered, allowed, or permitted the abuse.” Id. (quoting Hennington, 702 So.2d at 414-15(¶ 48)). Though Valmain concerned sexual abuse, we find its rationale extends to other forms of intentional child abuse, such as burns.

¶ 33. In the case at hand, B.A. was sent to Shriners Hospital for one specific reason — the treatment of his critical burn injuries. In fact, Dr. Sanford testified the abuse record was part of Shriners Hospital’s analysis to treat B.A. and determine whether he could safely return home. While B.A. was in the care of Shriners Hospital, a team of healthcare providers, including medical students, physician extenders, nurse practitioners, physician assistants, psychiatrists, and therapists met twice a week to discuss B.A.’s medical care. Dr. Sanford explained that when treating burn patients, the hospital uses the entire team to make certain the patient has a safe place to be discharged. This team is also tasked with evaluating whether the caregiver — here B.A.’s mother, Anthony — will be able to meet the needs of the patient upon discharge from the hospital. Dr. Sanford testified that the abuse record was prepared as part of B.A.’s care and treatment provided by Shriners Hospital and was important to their discharge assessment. Thus, the statements of the declarants — Dr. Rosenberg and the referring caregivers — were made for the purpose of treating B.A. and to ensure that he was not returned to an abusive environment. Also, Anthony’s declarations were given to further the treatment of her burned child.

¶ 34. Furthermore, Dr. Sanford made clear that he relied upon the content of the abuse record, which included the varying histories provided by Anthony, to make life and death decisions concerning the proper care and treatment of B.A. While the trial court did not specifically address the applicability of Rule 803(4), we find both elements of the two-part test are present. See Osborne, 942 So.2d at 197-98(¶15). Therefore, we find the statements contained in the abuse record were made for the purpose of medical diagnosis and treatment, and the report was relied upon by Shriners Hospital in treating B.A.

¶ 35. We also find the statements of the treating psychologists concerning the social aspects of the abuse report were admissible. In McClain v. State, 929 So.2d 946, 951(¶ 9) (Miss.Ct.App.2005), the defendant objected to a doctor’s testimony about the treatment of the victim after she had left the doctor’s care. In the doctor’s testimony, he recounted information from his notes, which consisted of his conversations with other treating doctors and his former patient’s medical records. Id. This Court found that these statements made to the testifying doctor by other treating physicians were admissible under Rule 803(4). Id. at 951-52(¶ 11).

¶ 36. Additionally, a Louisiana appellate court, in State v. Thom, 615 So.2d 355, 362-63 (La.Ct.App.1993), interpreted Louisiana’s similar hearsay exception for statements made for the purpose of medical diagnosis or treatment. The court held that hospital records with facts concerning “how the victim’s attack occurred, the victim’s condition, and her treatment” were admissible under this exception. Id. at 363. Similarly, a Tennessee appellate court, in State v. Edwards, 868 S.W.2d 682, 698-99 (Tenn.Crim.App.1993), held that hospital records of a rape victim, which contained statements by medical personnel concerning the victim’s condition and the cause of her injuries, were properly admitted as statements for the purpose of medical diagnosis or treatment.

¶ 37. In the present case, the statements in the abuse report of the psychologists at Shriners Hospital were also made in furtherance of B.A.’s treatment. Thus, they fall within the exception provided in Rule 803(4).

¶ 38. We note that the circuit court failed to make an affirmative finding that the statements in the abuse record were made under circumstances substantially indicating trustworthiness. However, this Court has held that a trial court’s failure to make a finding of “substantial indicia of reliability” under the “tender-years exception,” was not reversible error where there was sufficient evidence in the record supporting a finding of reliability. Sharp v. State, 862 So.2d 576, 580(¶ 15) (Miss.Ct.App.2004). Likewise, we find the circuit court should not be reversed for failure to affirmatively find trustworthiness pursuant to 803(4) under such circumstances. Since, taking the record as a whole, there is sufficient evidence to support a finding of trustworthiness, we find that admission of the abuse record was not reversible error.

¶ 39. Even if admission of the abuse record or any part of it constituted error, the error was harmless. M.R.E. 103(a). The information in the abuse record was merely cumulative of other evidence produced at trial, including the photographs, Anthony’s other statements, and Dr. Sanford’s testimony. At trial, before the prosecutor even handed Dr. Sanford the report, Dr. Sanford testified based on his own personal knowledge and observation of B.A.’s burns that the patterns were not indicative of an accidental injury. For example, Dr. Sanford stated, “just looking at the burns themselves, it’s of an unusual pattern. It’s a straight line.... [Wjithout any information from anybody, it has a straight[-]line distribution.” He further testified based on his observation of the burns that “[a] typical nine-month-old, if they’re not happy, they’re going to be flailing,” and “there would ... be some response to the burn, you know, to the painful stimuli, so the fact that there’s just a straight line and not varying degrees and a wider distribution of burns makes it suspicious.” Later on in his testimony, Dr. Sanford clearly based his opinion that B.A.’s injury was intentionally inflicted on his review of photographs which were entered into evidence without objection.

¶ 40. Furthermore, Anthony’s explanation of B.A.’s injury in the abuse report largely paralleled the story she told Amo-sike, to which Amosike testified at trial. Thus, the members of the jury learned very little from the abuse record they did not know from other evidence. Because the vast majority of the abuse record was cumulative of other evidence presented at trial, we find any error that resulted from admission of the abuse record to be harmless.

B. Confrontation Clause

¶ 41. Anthony next contends the admission of the abuse record violated her right under the Confrontation Clause of the Sixth Amendment to the United States Constitution. She specifically contends the record conveyed to the jury out-of-court testimonial statements of persons she had no opportunity to cross-examine. However, a general hearsay objection is insufficient to preserve an alleged Confrontation Clause violation for appellate review. Briggs v. State, 16 So.3d 696, 698-99(¶11) (Miss.Ct.App.2008). Since Anthony made no Sixth-Amendment objection to the admission of the abuse record at trial or in her post-trial motion, her arguments on this issue are procedurally barred. Id. But under the plain-error doctrine, “we can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant’s ‘fundamental, substantive right.’ ” Neal v. State, 15 So.3d 388, 403(¶32) (Miss.2009) (citing Smith, 986 So.2d at 294(¶ 10)). “The plain[-]error doctrine has a two-part test which requires: (i) an error at the trial level and (ii) such an error resulted in a manifest miscarriage of justice.” Stephens v. State, 911 So.2d 424, 432(¶ 19) (Miss.2005) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). Thus, we will review this issue for plain error.

¶ 42. The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” U.S. Const, amend. VI. The United States Supreme Court has found:

there are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in the expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.

Smith, 986 So.2d at 296(¶ 19) (quoting Lee v. Illinois, 476 U.S. 580, 540, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)). The right of a defendant to confront a witness:

(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the “greatest legal engine ever invented for the discovery of truth”; [and] (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility.

Id.

¶ 48. In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars the admission of out-of-court testimonial statements of a witness unless he is unavailable to testify and the defendant had a prior opportunity to cross-examine him. It is now well-established law that “only testimonial hearsay is capable of violating the Sixth Amendment.” Neal, 15 So.3d at 403(¶ 34) (citing Crawford, 541 U.S. at 68, 124 S.Ct. 1354). Underlying the exclusion of testimonial out-of-court statements is the fact that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51, 124 S.Ct. 1354. Also, “[i]nvolvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse.” Id. at 56 n. 7, 124 S.Ct. 1354.

¶ 44. The Crawford Court held that the term “testimonial” “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68,124 S.Ct. 1354. However, the Supreme Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Hobgood v. State, 926 So.2d 847, 852(¶ 12) (Miss.2006) (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354). However, the Mississippi Supreme Court, applying Crawford, has held: “[A] statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused.” Neal, 15 So.3d at 404(¶ 35) (citing Hobgood, 926 So.2d at 852).

¶ 45. In Hobgood, the supreme court found a child-abuse victim’s statements to a treating psychotherapist and pediatrician at the hospital were not testimonial under Crawford and did not trigger the protection of the Confrontation Clause. Hob-good, 926 So.2d at 851(¶ 13). The supreme court explained:

These individuals were not working in connection with the police. Further, their statements were not made for the purpose of aiding in the prosecution.... [T]he purpose of these statements was to seek medical and psychological treatment. The victim was taken to [the psychotherapist and pediatrician] at the family’s request and not sent there by police to further their investigation.

Id. Although Anthony argues the abuse record was testimonial because it was required under Texas law, we find the abuse record was not created for the purpose of aiding the prosecution and is not testimonial under Crawford and its progeny. Dr. Sanford made it abundantly clear that the abuse record was used in the treatment of B.A. Therefore, under our plain-error review, we find no error occurred at trial.

¶ 46. However, even if the admission of the abuse record was deemed error, Anthony must show the admission of the report resulted in a manifest miscarriage of justice.

¶ 47. Anthony had adequate opportunity to cross-examine Dr. Sanford, and to the extent the admission of the social findings or the note portion of the abuse report was error, we find it was harmless. See, e.g., Gossett v. State, 660 So.2d 1285, 1296 (Miss.1995). The Mississippi Supreme Court has established a violation of a defendant’s right to confront witnesses may be deemed harmless error. Smith, 986 So.2d at 302(¶ 37); see also Bynum v. State, 929 So.2d 312, 314 — 15(¶ 6) (Miss.2006) (finding the trial court’s error in admitting the co-defendant’s statement was harmless); Clark v. State, 891 So.2d 136, 142(¶ 30) (Miss.2004) (finding admission of statements made by a non-testifying accomplice in violation of the Confrontation Clause was harmless error). In Gossett, the supreme court found that while the admission of an autopsy report implicated the defendant’s right of confrontation, the error was harmless because of the abundance of evidence that the defendant murdered the victim. Gossett, 660 So.2d at 1296-97.

¶ 48. In the present case, the State produced substantial additional evidence of felony child abuse. Specifically, Dr. Sanford offered his expert opinion that B.A.’s burns were intentionally inflicted. Dr. Sanford properly relied on the abuse record in forming his opinion that B.A.’s burns were intentionally inflicted by Anthony, which he was authorized to do under Mississippi Rule of Evidence 703. Since the social findings contained in the actual abuse report were merely cumulative, their admission was at most harmless error. See, e.g., Jones v. State, 606 So.2d 1051, 1057 (Miss.1992). While Anthony did not testify at trial, multiple conflicting statements by Anthony about how the infant was injured were admitted into evidence and presented to the jury without objection. The inconsistencies in Anthony’s recitations and, in particular, her account to Amosike of Marshall County DHS that her two-year-old was also in the tub at the time her infant was burned, directly conflict with the lack of any evidence whatsoever of burns on her two-year-okl’s body. Even if we were to find admission of the abuse record was error, we cannot say it resulted in a manifest miscarriage of justice. Accordingly, we find no reversible error here.

C. Mississippi Rules of Evidence 702 and 70S

¶ 49. Finally, Anthony contends that the admission of the abuse report exceeded the scope of Rules 702 and 703. However, Anthony failed to object to the admission of the record on these grounds at trial, and “[a] trial judge cannot be put in error on a matter not presented to him for his decision.” Logan v. State, 773 So.2d 338, 346(¶ 29) (Miss.2000) (citation omitted). “A specific and contemporaneous objection to the admission of the hearsay [evidence] must be made ... in order for [its] admissibility to be considered on appeal.” Bailey v. State, 960 So.2d 583, 588(¶ 19) (Miss.Ct.App.2007) (citation omitted). Here, Anthony did not make a specific objection at trial based upon Rule 702 or 703. Thus, Anthony’s argument on this issue is procedurally barred.

II. Sufficiency of the Evidence

¶ 50. In reviewing challenges to the sufficiency of the evidence, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Wright v. State 9 So.3d 447, 452(¶18) (Miss.Ct.App.2009) (quoting Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005)). We are not required to determine whether we believe “ ‘the evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Bush, 895 So.2d at 843(¶ 16)).

¶ 51. Anthony was charged with felony child abuse, under Mississippi Code Annotated section 97-5-39(2)(a) (Rev.2006), which provides:

Any person who shall intentionally (i) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse of a child and, upon conviction, shall be sentenced to imprisonment in the custody of the Department of Corrections for life or such lesser term of imprisonment as the court may determine, but not less than ten (10) years.

To sustain a conviction against Anthony for felonious child abuse, the State was required to prove: (1) Anthony intentionally burned B.A., and (2) her actions caused serious bodily injury to the child. Id.

¶ 52. Anthony argues because the case was circumstantial, the State was required to prove her guilt not only beyond a reasonable doubt, but also to the exclusion of every reasonable hypothesis consistent with innocence.

¶ 53. In addressing this argument, we first note that “all the proof need not be direct and the jury may draw any reasonable inferences from all the evidence in the case.” Wright, 9 So.3d at 453(¶ 20) (quoting Campbell v. State, 278 So.2d 420, 423 (Miss.1973)). In addition, intent may be proven by circumstantial evidence. Id. (citing Stinson v. State, 375 So.2d 235, 236 (Miss.1979)). Circumstantial evidence in a criminal case is entitled to as much weight as any other kind of evidence, and, in fact, “[a] conviction may be had on circumstantial evidence alone.” Tolbert v. State, 407 So.2d 815, 820 (Miss.1981) (citation omitted). Such “[circumstantial evidence need not exclude every possible doubt, but only every other reasonable hypothesis of innocence.” Shelby v. State, 812 So.2d 1144, 1146(¶ 5) (Miss.Ct.App.2002) (citation omitted). However, “[a]s is true in cases based on direct testimonial evidence, any conflicts created by the circumstantial evidence presented [are] for the jury to resolve.” Goff v. State, 14 So.3d 625, 650(¶ 97) (Miss.2009). Furthermore, as always, “[t]he jury weighs the credibility of each witness when considering conflicting testimony.” Shelby, 812 So.2d at 1146(¶ 6) (citation omitted).

¶ 54. Anthony’s claims of how B.A. was burned are not consistent "with the medical evidence or her own statements given to authorities and medical personnel. She provides two allegedly reasonable hypotheses that she claims are consistent with the circumstantial evidence offered. First, Anthony claims B.A. could have been injured when his two-year-old brother turned the hot water on him and then stepped on B.A.’s back to exit the tub. Second, Anthony claims J.A. could have exited the tub, and once out, pushed B.A. down into the tub in a playful manner.

¶ 55. But the medical evidence and Anthony’s accounts of the events contradict both of these theories. Dr. Sanford testified BA.’s burns were a result of forced immersion/submersion, not from having hot water poured on him from a faucet. Furthermore, Dr. Sanford testified if hot water had been turned on while B.A. was in the tub, B.A.’s burns would not be of consistent depth, but would have a “rainbow pattern” or “layering” effect due to the varying temperature of water in the tub. Additionally, the jury was presented with pictures of the severity and pattern of the burns. As explained by Dr. Sanford, the burn pattern was symmetrical, mirror-image burns with minimal splash marks and a clear line of demarcation. The scenarios offered by Anthony do not explain this medical evidence. And certainly mere “playful pushing” could not have restrained B.A. enough to be consistent with the physical evidence.

¶ 56. This case is also similar to Foster v. State, 794 So.2d 301, 303(¶ 7) (Miss.Ct.App.2001). In Foster, this Court found there was substantial evidence to support the jury’s verdict in a child-burn case where the mother’s explanation that the child was immersed in hot water was inconsistent with the medical testimony. Id. Likewise, in the present case, Anthony’s claims of the cause of B.A.’s burns are inconsistent with medical evidence. Thus, considering the evidence in light most favorable to the State, there is sufficient evidence from which the jury could have reasonably inferred that Anthony intentionally held B.A. down in scalding water.

III. Weight of the Evidence

¶ 57. The standard for reviewing a trial court’s denial of a motion for a new trial is well settled. The appellate court sits as a “thirteenth juror” and views the evidence in the light most favorable to the verdict, and will only reverse the trial court’s decision when the verdict “is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844(¶ 18) (citation omitted). The proper remedy when the verdict is against the overwhelming weight of the evidence is to grant a new trial, but this power “should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id.

¶ 58. We find there was substantial credible evidence showing Anthony intentionally burned her son by holding him down in the tub of scalding water. The jury heard expert opinion testimony that Anthony’s infant son was intentionally burned. They were also presented with physical evidence, as well as Anthony’s various different reports of how the infant was injured. Anthony’s accounts were contradicted by expert opinion testimony and the physical evidence. Viewing the evidence in the light most favorable to the verdict, we cannot say that allowing the verdict to stand would result in an unconscionable injustice. Accordingly, this issue is without merit.

¶ 59. For the foregoing reasons, we affirm Anthony’s conviction of felony child abuse and sentence of twenty years’ imprisonment.

¶ 60. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY OF CONVICTION OF FELONY CHILD ABUSE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. GRIFFIS, J„ CONCURS IN RESULT ONLY.

      . Due to the sensitive nature of this case, we substitute initials for the names of minor children to protect the children’s identities.

      . According to Dr. Sanford, Texas law requires abuse reports to be created by healthcare providers in instances where suspicious injuries are discovered.

      . We note that Anthony's statements themselves are admissions by a party-opponent and do not qualify as hearsay. See M.R.E. 801(d)(2). Thus, we are only concerned with statements of B.A.’s treating psychologists recounting Anthony’s admissions and any other statements in the abuse record that were made by the treating psychologists.


source: Caselaw Access Project

author: LYONS, Justice. MURDOCK, Justice

license: Public Domain

text:
    Sheila HENDERSON, as personal representative of the estate of Tony R. Henderson, deceased v. MEADWESTVACO CORPORATION and CSX Transportation, Inc. CSX Transportation, Inc. v. Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased MeadWestvaco Corporation v. Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased.
    1070522, 1070497, and 1070509.
    Supreme Court of Alabama.
    March 20, 2009.
    Rehearing Denied in No. 1070522 May 15, 2009.

      John E. Guerry III of Motley Rice LLC, Mt. Pleasant, South Carolina; and Charles E. Robinson, Jr., of The Robinson Law Firm, PC, Ashville, for appellant/cross-ap-pellee Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased.
    Randall A. Jordan of The Jordan Firm, St. Simons Island, Georgia; and Todd M. Higey of RicharsonClement PC, Birmingham, for appellee-cross/appellant CSX Transportation, Inc.
    H. Thomas Wells, Jr., John A. Smyth III, and E. Bryan Nichols of Maynard, Cooper & Gale, P.C., Birmingham, for ap-pellee/eross-appellant MeadWestvaco Corporation.
    Michael D. Freeman, R. Bruce Barze, Jr., and Spencer M. Taylor of Balch & Bingham LLP, Birmingham, for amicus curiae Business Council of Alabama, in support of the appellees/cross-appellants MeadWestvaco Corporation and CSX Transportation, Inc.
    Crawford S. McGivaren, Jr., of Caban-iss, Johnston, Gardner, Dumas & O’Neal LLP, Birmingham, for amicus curiae Association of American Railroads, in support of the appellee/cross-appellant CSX Transportation, Inc.
    David G. Wirtes, Jr., of Cunningham Bounds LLC, Mobile, for amicus curiae Alabama Association for Justice, in support of the appellant/cross-appellee Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased.
   LYONS, Justice.

Sheila Henderson, as personal representative of the estate of Tony R. Henderson, deceased, appeals from a summary judgment in favor of CSX Transportation, Inc. (“CSX”), and MeadWestvaco Corporation (“MeadWestvaco”) on her claim seeking damages for the alleged wrongful death of her husband, Tony R. Henderson. CSX and MeadWestvaco both filed cross-appeals. We affirm the summary judgment, albeit on a rationale different from that relied upon by the trial court.

I. Facts and Procedural History

Tony R. Henderson was diagnosed with mesothelioma in 2004. Mesothelioma is a cancer of the lining of the lungs and of the heart; it is caused, almost exclusively, by the inhalation of asbestos fibers. The evidence shows that Henderson was exposed to asbestos as a teenager when he worked for the Cement Asbestos Products Company (“CAPCO”). CAPCO manufactured pipe from cement, silica, and asbestos at a plant in St. Clair County near Henderson’s family home. CAPCO closed the plant in 1984.

Henderson worked for CAPCO part-time during high school in the late 1960s preparing pallets for reuse. He also worked for CAPCO full-time during the summers of 1971 and 1972 while he was in college. Henderson’s primary duty in 1971 and 1972 was to unload from railroad cars operated by Seaboard Coastline, a predecessor of CSX, packages of raw asbestos fibers that were delivered to the plant. Henderson was directly exposed to asbestos when he unloaded the railcars. Henderson testified during his deposition that he was never provided, and he never wore, any mask or other respiratory protection when he worked for CAPCO. Henderson testified that he was never warned of the dangers of exposure to asbestos.

It is undisputed that Henderson first developed symptoms of mesothelioma, a cough and fluid on his lungs, in September 2004 — 32 years after his last exposure to asbestos at CAPCO. Henderson was diagnosed with mesothelioma in mid October 2004. He died as a result of the disease on February 1, 2006.

In March 2005, Tony Henderson and his wife Sheila filed a personal-injury action against CSX, Bill Vann Company, Inc., and several other entities in the State Court of Fulton County, Georgia (“the Georgia action”), seeking damages for injury resulting from exposure to asbestos. Tony Henderson died while the Georgia action was pending. Sheila Henderson, in her capacity as personal representative of Tony’s estate, voluntarily dismissed the Georgia action on June 16, 2006. On the same day she dismissed the Georgia action, Sheila Henderson, in her capacity as personal representative of Tony’s estate, filed an independent action in the St. Clair Circuit Court against CSX, Bill Vann Company, Inc., MeadWestvaco, and several fictitiously named defendants. Pursuant to § 6-5-410, Ala.Code 1975, Sheila Henderson’s complaint stated a single count seeking recovery for Tony Henderson’s alleged wrongful death. No parties were ever substituted for the fictitiously named defendants.

Henderson contends that CSX is responsible for her husband’s death because, she says, it failed to warn him of the dangers of the asbestos it delivered to CAPCO and because, she says, it failed to train him in how to safely unload asbestos from the railcars. Regarding MeadWestvaco, Henderson contends that the company’s predecessor, the Mead Corporation and/or its predecessor, the Woodward Corporation, owned CAPCO during the time of her husband’s employment there and that it voluntarily assumed a duty to inspect the CAPCO plant and to ensure compliance with safety standards.

MeadWestvaco removed the action to the United States District Court for the Northern District of Alabama in July 2006, and the case was remanded to the St. Clair Circuit Court in August 2006. After remand, CSX and MeadWestvaco each moved for a summary judgment on several grounds, including the statute of limitations of § 6-5-410 and the rule of repose. CSX also argued that it did not owe a duty to Tony Henderson, and MeadWestvaco argued that its predecessors were merely shareholders of CAPCO and that, therefore, it is not subject to liability for Tony Henderson’s alleged wrongful death. On July 3, 2007, the trial court denied the motions as to the statute of limitations, CSX’s duty, and MeadWestvaco’s relationship with CAPCO. The trial court, however, entered a summary judgment in favor of CSX and MeadWestvaco, finding that the rule of repose barred Henderson’s claim. After her postjudgment motion was denied and the trial court had entered a summary judgment as to the last remaining defendant, Bill Vann Company, Inc., Henderson filed a timely appeal to this Court.

II. Standard of Review

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).

“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(8), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Alabama Elec. Coop. v. Bailey’s Constr. Co., 950 So.2d 280, 283 (Ala.2006).

III. Analysis

“A wrongful death action is purely statutory; no such action existed at common law.” Waters v. Hipp, 600 So.2d 981, 982 (Ala.1992). Alabama’s wrongful-death statute, § 6-5-410(a), Ala.Code 1975, states:

“A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.”

“Title 7, § 123 [Ala.Code 1940, the predecessor to § 6-5-410(a), Ala.Code 1975,] creates a distinct cause of action which comes into being only upon death from wrongful act.” Ivey v. Wiggins, 276 Ala. 106, 108, 159 So.2d 618, 619 (1964). That action arises in favor of the decedent’s personal representative, in this case, Sheila Henderson. Id. However, the action is not unlimited. Among other things, “[t]he plain language of the wrongful death statute states that the personal representative may commence a wrongful death action, ‘provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.’ ” Curtis v. Quality Floors, Inc., 653 So.2d 963, 964 (Ala.1995) (emphasis added). Applying this proviso to the circumstances of this case, we conclude that Sheila Henderson’s claim is barred by her inability to satisfy the requirement of the proviso that “the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death,” and the trial court’s summary judgment for CSX and Mead-Westvaco should be affirmed on that basis.

The proviso of § 6-5-410(a) requires consideration of whether the decedent, had he or she lived, would have been able to file a personal-injury action for the injuries that caused his or her death. “Our cases hold that if a decedent’s cause of action is time-barred at his or her death, then the decedent’s personal representative cannot bring a wrongful death action.” Curtis, 653 So.2d at 964 (emphasis added) (citing Northington v. Carey-Canada, Inc., 432 So.2d 1231 (Ala.1983) (affirming a summary judgment based on Tyson v. Johns-Manville Sales Corp., 399 So.2d 263 (Ala.1981); Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979); and Ellis v. Black Diamond Coal Mining Co., 268 Ala. 576, 109 So.2d 699 (1959))). However, the proviso is silent as to whether another, and if so what, state’s statute of limitation applies to the determination of whether the decedent’s personal-injury action would have been time-barred at the date of the decedent’s death, had the decedent not died on that date.

Sheila Henderson commenced her action in the St. Clair Circuit Court on June 16, 2006, based on Tony Henderson’s alleged wrongful death. On appeal, for good reason, she does not contend that Tony Henderson could have commenced a personal-injury action under Alabama’s statute of limitations. In Tyson v. Johns-Manville Sales Corp., supra, this Court explained:

“Until May 18, 1980, § 6-2-30 of the Alabama Code of 1975, and Garrett v. Raytheon, 368 So.2d 516 (Ala.1979), dictated the limitations period and date of accrual of causes of actions for injury due to radiation and other insidious agents.
“Under §§ 6-2-30 and 6-2-39 of the Alabama Code of 1975 [as they existed at that time], all actions for injury to the person not arising from contract must be commenced within one year after the cause of action has accrued. In Garrett v. Raytheon, supra, the Court held that a cause of action for radiation injury accrued and ‘the statute of limitations of one year began to run when plaintiff was last exposed to radiation and plaintiffs ignorance of the tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort or injury is discovered.’ 368 So.2d at 521. Asbestos injury, like radiation injury, results from a latent, insidious agent and, prior to the passage of Act No. 80-566 [an amendment to § 6-2-30 that applied a discovery rule to the accrual of causes of action arising from exposure to asbestos] and Act No. 79-468, Alabama Acts of 1979 [adding § 6-5-500 et seq., Ala.Code 1975], following Raytheon, a claim based on asbestos injury would have accrued on the last date of plaintiffs exposure to defendant’s product.”

399 So.2d at 268 (footnote omitted). In Tyson, this Court held that “if, before the effective date of Act No. 80-566, [May 19, 1980,] one year had elapsed between the date of plaintiffs exposure and the date on which plaintiffs action was commenced, then that claim is nevertheless barred by the statute of limitations.” 399 So.2d at 267. In determining whether the discovery statute applied retroactively, this Court concluded: “Once an action is barred by a statute of limitations in existence at the time of commencement of the action, rights vest in the limitations defense which cannot be destroyed by subsequent legislative act because § 95 of the [Alabama] Constitution restricts the legislative power to do so.” 399 So.2d at 270.

As explained in Tyson, based on the law as it then existed, Tony Henderson’s claim of personal injury resulting from exposure to asbestos would have accrued in 1972, on the date of his last exposure to asbestos at CAJPCO. Based on the one-year statute of limitations applicable to personal injury claims at the time of the accrual of Tony Henderson’s claim, his claim was time-barred in 1973. Accordingly, at the time of his death, Tony Henderson could not, under Alabama law, “have commenced an action for such wrongful act, omission, or negligence if it had not caused death.” § 6-5-410(a).

To support her argument that, in applying the proviso of § 6-5-410(a), this Court disregard Alabama’s conflicts-of-law rule that the procedural law of the forum must be applied, Sheila Henderson relies on this Court’s decisions in Pace v. Armstrong World Industries, Inc., 578 So.2d 281 (Ala.1991), and Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979). In Pace, this Court answered a certified question from the United States District Court for the Southern District of Alabama. That court presented the following facts. Joseph Pace was allegedly last exposed to asbestos at his place of employment in 1966. He was diagnosed with chronic obstructive lung disease in 1985 and in 1986 sued in the United States District Court for the Northern District of Texas to recover for his injuries. The action was transferred to the United States District Court for the Southern District of Alabama (“the Southern District”) pursuant to 28 U.S.C. § 1404(a). Alabama substantive law applied to Pace’s personal-injury claim. 578 So.2d at 282. However, pursuant to the United States Supreme Court’s decisions in Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), and Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), “ ‘the Texas statute of limitations governed Pace’s personal injury claim, as a matter of procedural law, and ... the claim was timely filed.’ ” 578 So.2d at 282 (quoting certificate filed by the Southern District). Accordingly, the action was governed by Texas procedural law and Alabama substantive law.

Pace died in 1988 while his personal-injury claim was pending before the Southern District. His personal representative, Henry Pace, filed an amended complaint in the action, seeking to recover for Pace’s alleged wrongful death. Henry Pace did not file an independent action. The defendants moved to dismiss the amended complaint on the ground that it was time-barred by Alabama’s wrongful-death statute.

In response to the motion to dismiss, Henry Pace contended that Alabama’s wrongful-death statute did not “‘require the underlying personal injury action to be available in Alabama’ ” and did not “ ‘require that the [decedent] must have been able to commence such an action in Alabama.’ ” 578 So.2d at 282-83 (quoting certificate filed by the Southern District). Henry Pace also contended that a decedent’s “ ‘personal representative may convert [an existing, timely, personal-injury action in a foreign court] to a wrongful death action.’ ” 578 So.2d at 283 (emphasis added). This Court consented to answer the following question presented by the Southern District:

“ ‘Whether the inability of the decedent to [commence] a personal injury action in the State of Alabama prior to the time of death precludes amendment of his existing personal injury action by the decedent’s representative so as to bring an action for wrongful death under Ala.Code 1975, § 6-5-410?’ ”

578 So.2d at 283. Accordingly, this Court consented to address the issue raised by Henry Pace’s second contention.

After discussing the history of the wrongful-death statute and the applicable rules of statutory construction, this Court stated:

“We find the extent of the restrictive scope of the proviso to be in doubt. The facts of this case — the application of the substantive law of Alabama and the procedural law of Texas — from all appearances, was not in the mind of the legislature at the time of the enactment of the statute. Section 6-5-410 does not address the eventuality that underlying personal injury actions would be commenced outside the State of Alabama. Indeed, the defendants’ historical analysis of § 6-5-410 supports this statement. Because we find the restrictive scope of the proviso to be in doubt, we must strictly construe its restrictive scope. Sutherland [Statutory Construction § 47.08 (4th ed.) ]. We must also adhere to the rule on omitted words, which compels this Court to proceed with caution in supplying omitted words and to supply them only where the omission is palpable. 73 Am.Jur.2d [Statutes § 203 (1974) ]. Applying a strict construction to the language of the proviso, we will restrict from the operation of § 6-5-410 only those actions that are expressly restricted; and, there can be no doubt that the proviso does not expressly preclude a personal representative from commencing an action in Alabama where the decedent had timely commenced a personal injury action for the same wrongful act or omission that caused the decedent’s death. We also find that the legislature’s omission of words that would mandate that the decedent must have been able to commence a personal injury action in Alabama is not palpable, and we conclude, therefore, that this Court should not, by construction, insert into the statute words that would have that effect.”

578 So.2d at 285. Based on this reasoning, and in response to the certified question, this Court held: “[T]he decedent’s inability to commence a personal injury action in Alabama had death not occurred does not preclude his personal representative from converting his existing personal injury action filed in Texas[, and subject to Texas procedural law,] into a wrongful death action under Ala.Code 1975, § 6-5-410.” 578 So.2d at 286 (bracketed language and emphasis added).

Henderson argues that this Court’s decision in Pace stands for the proposition that any personal-injury action filed outside Alabama by the decedent before death satisfies the proviso of § 6-5-410 with respect to a personal representative’s action in Alabama initially filed under the wrongful-death act. Were we to accept this argument, Alabama’s conflicts-of-law rule — i.e., that the procedural rules of the forum apply — would not apply to the personal-injury action contemplated by the proviso in § 6-5-410, and the proviso would be satisfied so long as the decedent could have filed a personal-injury action in another forum at the time of his death. Under the construction of Pace and the proviso suggested by Henderson, the proviso would have a limited field of operation. Cf. Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200-01 (Ala.2001). We cannot agree with an application of § 6-5-410 that would so limit the proviso and remove it from operation of our traditional conflicts-of-law rules.

Just as this Court concluded in Pace that the legislature did not anticipate a scenario triggered by the peculiarities of the interplay between state and federal law by reason of 28 U.S.C. § 1404(a), see Pace, supra, so we conclude that it was equally beyond the legislature’s contemplation that a personal representative, commencing an action in Alabama based on alleged wrongful death, could avoid Alabama’s conflicts-of-law rules and apply more favorable procedural rules of some other jurisdiction to meet the requirements of the proviso. Indeed, this view is reenforced by recognition of the legislature’s attempt to restrict the availability of § 6-5-410 to “a court of competent jurisdiction within the State of Alabama, and not elsewhere.”' (Emphasis added.) Accordingly, we confine our reading of Pace to the facts presented, specifically, to those circumstances in which the substantive law of Alabama and the procedural law of another state apply and under which procedural rules the decedent’s personal-injury claim is viable. This reading is consistent with Riddle v. Shell Oil Co., 764 F.Supp. 418 (W.D.Va.1990), which this Court cited to support its conclusion in Pace. We decline to extend the holding in Pace — that this Court could not interlinéate the phrase “in Alabama” so as to require that the decedent must have been able to commence a personal-injury action in Alabama — beyond the context of the setting there presented, i.e., where the forum was obliged to apply the statute of limitations of another jurisdiction under governing principles of conflicts of laws.

Henderson also relies on this Court’s decision in Textron, Inc. v. Whitfield, supra. In that ease, Hubert Whitfield filed a personal-injury claim in the Jefferson Circuit Court under the Alabama Uniform Commercial Code. Whitfield subsequently filed an action in the United States District Court of Vermont stating the same cause of action. The defendant in the Alabama action moved to dismiss Whitfield’s claim on the ground that it was barred by the applicable statute of limitations. The trial court granted that motion, but it did not specify whether the dismissal was with or without prejudice. The defendant in the Vermont action then moved for a summary judgment on the ground that Whitfield’s claim was barred by the doctrine of res judicata. While that motion was pending, Whitfield filed what this Court characterized as a motion under Rule 60(b), Ala. R. Civ. P., asking the Alabama court to amend its judgment to state that the dismissal was “-without prejudice.” The Alabama trial court granted Whitfield’s motion, and the defendant appealed.

This Court ruled that the Alabama trial court did not exceed its discretion in granting Whitfield’s Rule 60(b) motion. This Court then addressed the res judicata question that was at issue before the Vermont court, noting that the disposition of the Alabama action based on the statute of limitations was procedural and therefore did not have a preclusive effect on the Vermont action. This Court stated: “We are of the opinion that if the plaintiff can present his claim elsewhere, in a jurisdiction which has a longer or different statute of limitations, and prevail on the merits of his claim, he should have that opportunity.” 380 So.2d at 260.

Henderson argues that this statement in Textron was an invitation by this Court for plaintiffs to file personal-injury actions in jurisdictions with more favorable statutes of limitation, and, thus, she argued, the Georgia action satisfies the proviso of § 6-6-410. As an initial matter, we note that Textron involved a personal-injury action, not a wrongful-death action; it did not implicate the proviso of § 6-5-410. Furthermore, this Court made clear in Tex-tron that the conflicts-of-law rules of the forum would apply to any action filed in a sister jurisdiction, so that the procedural rules of that jurisdiction would determine whether the plaintiffs personal-injury action was viable. Textron condoned nothing more than the right to pursue in another jurisdiction a claim that would be viable under the statute of limitations applicable in that jurisdiction under such jurisdiction’s conflicts-of-law rule.

Consistent with Textron, the Georgia conflicts-of-law rules and thus the procedural rules of Georgia applied to determine the timeliness of the Hendersons’ previously filed personal-injury action in Georgia. However, Henderson voluntarily dismissed that action. She did not choose to amend it, as did the plaintiff in Pace, to assert a wrongful-death claim. Instead, she filed an independent action in Alabama. Accordingly, under the doctrine of lex fori, the law of this forum applies to the determination required by the proviso of § 6-5-410.

The legislature could have specified the application of a rule other than the common-law rule of lex fori for determining the result of the inquiry called for by the proviso of § 6-5-410. Likewise, it could have specified a particular state’s statute of limitations be considered in determining whether a decedent could have commenced an action. However, the legislature did neither. See Housing Auth. of Huntsville v. Hartford Accident & Indem. Co., 954 So.2d 577, 582 (Ala.2006) (“The common-law doctrine allowing a surety to assert all defenses available to its principal was in existence when § 6-5-221 was enacted. The legislature could have expressly limited that doctrine if it desired to do so, but it chose not to.”). As previously noted, the initial, albeit unsuccessful, legislative choice was to confine the remedy to Alabama courts. Faced with the legislature’s silence on this issue, we apply traditional conflicts-of-law rules and the doctrine of lex fori to the inquiry required by the proviso, i.e., whether Tony Henderson could have commenced a personal-injury action based on mesothelioma had it not caused his death.

In light of the legislature’s failure to override our rules on conflicts of law and under the longstanding conflicts-of-law principle of lex fori, the law of Alabama supplies the procedural law, including the statute of limitations, to determine the outcome of the inquiry called for by the proviso as to whether Tony Henderson could have commenced a personal-injury action for the injuries that allegedly caused his death had he not died. As explained above, pursuant to the proviso and the conflicts-of-law rule under which it operates, any claim Tony Henderson could have brought was barred by the procedural laws of this State. See Tyson. Accordingly, Sheila Henderson has not satisfied the proviso of § 6-5-410, and CSX and MeadWestvaco have shown that there is no genuine issue of material fact and that they are entitled to a judgment as a matter of law. Although the trial court rejected this defense, we can affirm its judgment on an alternative ground. See Steele v. Walser, 880 So.2d 1123 (Ala.2003), noting the rule that an appellate court, based on an alternative argument asserted by the appellee, may affirm a judgment on an issue previously rejected by the trial court.

Because we resolve this appeal on the basis of the statute of limitations applicable to determine compliance with the proviso of § 6-5-410, we need not address the issues the parties raise regarding the rule of repose or any duty owed by CSX.

IV. Conclusion

Based on the foregoing, we affirm the summary judgment for CSX and Mead-Westvaco.

1070522 — AFFIRMED.

1070497 — AFFIRMED.

1070509 — AFFIRMED.

COBB, C.J., and WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

I concur in the result reached by the main opinion. I conclude that there was no duty on the part of the predecessor of CSX to train or warn the decedent with respect to injury or harm allegedly associated with unloading materials from the predecessor’s railcars. Nor has Henderson demonstrated that MeadWest-vaco, through its corporate predecessor, bears legal responsibility for the alleged acts and omissions of the decedent’s former employer. As to the issue of the statute of limitations, MeadWestvaco notes in its brief that in Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008), this Court held that the “manifest, present injur/’ standard recognized in that ease is to be accorded prospective operation only, except with respect to the Griffin case itself; Henderson does not argue in this appeal that we should revisit that holding.

      . Although CSX and MeadWestvaco prevailed below, they assert in their cross-appeals alternative bases for affirming the summary judgment. The cross-appeals are not necessary to achieve the review sought therein. See McMillan, Ltd. v. Warrior Drilling & Eng’g Co., 512 So.2d 14, 25 (Ala.1986) (quoting with approval 9 J. Moore and B. Ward, Moore's Federal Practice 11204.11 [2] (2d ed. 1985): " ‘[A]n appellee, though he files no cross-appeal or cross-petition, may offer in support of his judgment any argument that is supported by the record, whether it was ignored by the court below or flatly rejected.’ ").

      . The Hendersons alleged that the predecessor to Bill Vann Company, Inc., Young & Vann Supply Company, sold products and equipment to CAPCO.

      . Except for CSX and Bill Vann Company, Inc., none of the defendants in the Georgia action was named in the action in the St. Clair Circuit Court.

      .The evidence showed that Seaboard Coastline, a predecessor of CSX, actually delivered the asbestos to CAPCO. However, the issue whether CSX is a proper party and may be held liable for the actions or omissions of its predecessor, Seaboard Coastline, has not been raised as an issue in this action, either before the trial court or on appeal.

      . The issue whether MeadWestvaco is a proper party and may be held liable for the actions or omissions of its predecessors has not been raised as an issue in this action, either before the trial court or on appeal.

      . There is some confusion regarding the date the trial court's July 3, 2007, order was made final. Ultimately, the order was certified as final under Rule 54(b), Ala. R. Civ. P., and Henderson was granted, pursuant to Rule 77(d), Ala. R. Civ. P., an additional 30 days to appeal from the date the order became final. Whether the time within which Henderson filed her notice of appeal is calculated from the date of the Rule 54(b) certification or, pursuant to Rule 77(d), from the trial court’s entry of summary judgment as to the last defendant, it is apparent that her notice of appeal was timely.

      . We note that in Tennessee Coal, Iron & R.R. v. George, 233 U.S. 354, 34 S.Ct. 587, 58 L.Ed. 997 (1914), the United States Supreme Court held that, despite the restrictive language of § 6-5-410 requiring that the action be asserted in Alabama and “not elsewhere,” wrongful-death actions under § 6-5-410 may be asserted in other jurisdictions so long as the jurisdictional and procedural requirements of that jurisdiction are satisfied.

      . In Riddle, pursuant to Van Dusen and Klaxon, supra, the United States District Court for the Western District of Virginia, in a situation similar to that in Pace, applied the conflicts-of-law principles of the transferor forum to the decedent's existing personal-injury claim. 764 F.Supp. at 421. Under those principles, the statute of limitations of the transferor forum applied to the personal-injury claim. Id.

      . We note that in Griffin v. Hunt Refining Co., 292 Ga.App. 451, 453, 664 S.E.2d 823, 826 (2008), the personal representative commenced a wrongful-death action and the Georgia appellate court concluded that Alabama’s two-year statute of limitations for wrongful death, rather than the longer Georgia statute of limitations applicable to a personal-injury action, applied to the hypothetical personal-injury action described in the proviso as a matter of Alabama substantive law. Of course, it is axiomatic that the Georgia court's appreciation of the import of an act of the Alabama Legislature is not binding precedent in this State. Moreover, for all that appears, the effect of Pace, with its recognition of the applicability of procedural rules to determine the timeliness of the action referred to in the proviso, was not argued, as the court in Griffin does not mention Pace. Of course, whether Georgia's rule of repose would have operated as a separate and independent basis to bar proceedings by Sheila Henderson in Georgia is an issue beyond the province of this discussion.

      . We note that Henderson asserts a violation of § 13 of the Alabama Constitution of 1901 in the context of the availability of a rule of repose under the facts of this case. No such argument is advanced with respect to the availability of the statute of limitations as a defense to Henderson’s claim as was held in Tyson, nor does Henderson ask us to overrule Tyson.