author: IRVING, P.J., FOR THE COURT: FAIR, J., DISSENTING:

text:
    Kenneth Brian WEAVER a/k/a Kenneth Weaver a/k/a Kenneth B. Weaver, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00255-COA
    Court of Appeals of Mississippi.
    September 25, 2018 Rehearing Denied December 4, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, JACKSON, PHILLIP BROADHEAD
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KATY TAYLOR GERBER
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Kenneth Brian Weaver was convicted of second-degree murder and sentenced to a term of forty years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and five years of supervised probation. He now appeals, asserting two issues: (1) whether the trial court erred in overruling his motion for a directed verdict or, in the alternative, his motion for a new trial; and (2) whether the trial court erred in refusing his jury instruction on imperfect self-defense. We find no merit in either of these issues; therefore, we affirm.

FACTS

¶ 2. At 1:14 p.m. on September 22, 2015, Dusty Hicks discovered a decomposing body floating in the pond on his property in Lauderdale County. A half-filled paint-thinner jug had been tied to the body with a piece of rope. Dusty immediately called 911. He suspected that the body belonged to Sara Lynn Beard (also known as Sara Lynn Mullett), as she had been reported missing a few days prior. Dusty had met Sara, through her live-in boyfriend, Weaver, in the six months before her disappearance. Dusty later testified at trial that Weaver had been to Dusty's property during those six months before Sara went missing, and that Weaver was familiar with Dusty's property. Investigator Karey Williams with the Lauderdale County Sheriff's Department was the first to respond to the scene after Dusty's 911-call. Investigator Williams testified at trial that the pond was separated from the road by dense trees. Investigator Williams maintained that "you would never know there was a pond there unless somebody took you back there and showed it to you." The body was later identified as Sara's.

¶ 3. Earlier that morning, around 6:00 a.m., Investigator Williams had performed a "welfare check" on Sara-whose body had not yet been found and who was still being characterized as a missing person-by visiting the home that she shared with Weaver in Meridian, Mississippi. Investigator Williams testified that, during this welfare check, Weaver told him that he and Sara had visited the casino in Philadelphia, Mississippi, on Thursday night, September 17, 2015. Weaver told Investigator Williams that the two had gambled off and on through the night and into the next morning. At some point, Weaver and Sara argued because he wanted to leave, while she wanted to stay. Weaver told Investigator Williams that he ultimately left Sara at the casino, and suggested that Sara must have found another man to leave with. Investigator Williams testified that Weaver acted nervous during their conversation, and he noted that Weaver had bruises on his arm.

¶ 4. After Sara's body was discovered, police returned to Weaver and Sara's home, and Weaver voluntarily went with them for questioning. Upon arriving to the sheriff's department, Weaver waived his rights pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and gave an oral statement that was largely identical to what he had initially told Investigator Williams. Shortly after giving the oral statement, Weaver gave a written statement wherein he said that he and Sara arrived at the casino on Friday night, September 18, 2015, rather than Thursday night, September 17, 2015.

¶ 5. Investigator David Rosenbaum next interviewed Weaver. Investigator Rosenbaum informed Weaver that the casino had provided the police with video surveillance showing that Weaver and Sara left the casino together. Investigator Rosenbaum also informed Weaver that Sara's body had been found. At this point, Weaver gave another statement, wherein he admitted that he and Sara left the casino together. He further stated that when they left the casino, Sara began hitting him and grabbed at the guns that he kept in his truck. Weaver reduced this statement to writing. Investigator Rosenbaum told Weaver that his statement still failed to explain what happened, so Weaver provided a third statement. In this version, Weaver said that, as Sara was driving his truck, she began hitting him and firing gunshots. She pulled the truck over near a pond. Weaver maintained that as he was attempting to retrieve the gun from Sara, it fired, and a bullet struck her in the head. Like the first and second statements, Weaver reduced this third statement to writing in which he claimed that after shooting Sara, he "panic[k]ed and tried to put her in a tranquil place in a pond within just a few yards from where she pulled over ...."

¶ 6. Several days later, Weaver sent word through a corrections officer that he wished to speak to Investigator Dylan Anderson, with whom Weaver allegedly had attended school. Investigator Anderson testified at trial that Weaver again waived his Miranda rights and gave yet another statement, wherein he said that he and Sara argued about leaving the casino, finally agreed to leave, and were traveling south on Highway 19-with Sara driving-when they pulled over near Collinsville. Weaver maintained that Sara was reaching for his guns in the truck and that she sprayed him in the face with a can of pepper spray that he kept in the driver's side door compartment of the truck. At that point, he raised his gun and shot her. Weaver stated that he pushed her body into the passenger's seat, got into the driver's seat, and continued driving toward Collinsville, where he pulled over and placed Sara's body in a pond. Investigator Anderson testified at trial that Weaver never said anything about any pond except for the one in Lauderdale County, where Sara's body was found. Investigator Anderson further testified that Weaver had mentioned fishing at the pond on Dusty's property where Sara's body was found, which is how Weaver knew it existed. Weaver did not reduce this statement to writing.

¶ 7. Weaver was indicted for second-degree murder on March 31, 2016. He pleaded not guilty, and the trial commenced in February 2017. Stacy Jones, a forensic scientist with the Mississippi Bureau of Investigations, testified that she processed Weaver's truck. She stated that she found no bullet holes in the vehicle, but that there were small bloodstains scattered throughout. From the vehicle, she recovered a can of pepper spray, a .380-caliber handgun, and a five-round .38-caliber handgun, which contained four live rounds and one spent-shell casing. The pepper spray and the .380-caliber handgun were both recovered from the driver's side door compartment.

¶ 8. John Brentley Davis, Deputy Chief Medical Examiner for the State of Mississippi, performed Sara's autopsy. He testified that he believed the cause of Sara's death to be a single gunshot wound to her head and that the manner of death was homicide. He further testified that the evidence suggested that the gun was fired from a distance of greater than two or three feet. He also noted that the toxicology report indicated that Sara had methamphetamine and a metabolite of fluoxetine (found in Prozac ) in her system when she died.

¶ 9. The State also called Investigator Rosenbaum, who testified generally about the role that he played in the investigation of Sara's death, including the interviews of Weaver that he conducted. During cross-examination of Investigator Rosenbaum, Weaver's counsel questioned him about Weaver's cell-phone records. Investigator Rosenbaum acknowledged that four calls appeared to have been made from Weaver's cell phone to 911-specifically, the Neshoba County 911-dispatch center-on September 18, 2015, at 2:53 p.m., 2:56 p.m., 2:57 p.m., and 3:15 p.m. The call taking place at 2:57 p.m. lasted for fifty-four seconds; however, the rest of the calls each lasted ten seconds or fewer. Investigator Rosenbaum testified that he never followed up with the Neshoba County 911-dispatch center regarding the phone calls.

¶ 10. After the State rested its case-in-chief, the defense moved for a directed verdict, which was denied. The defense then presented testimony from Debbie Reid, one of Dusty's neighbors, who stated that she had not noticed anything unusual occurring on Dusty's property on September 18-21, 2015. The defense next called Eddie Crosby, a private investigator, who testified that the GPS coordinates associated with the four phone calls to 911 from Weaver's cell phone indicated that the calls took place in Neshoba County. Crosby also identified several photographs of a pond located beside Highway 19 in Neshoba County, which the defense later suggested was where the shooting actually took place. Crosby stated that the pond in the photograph was located approximately fifteen miles from the casino.

¶ 11. Finally, the defense called Weaver to testify. He maintained that around 6:30 or 7:00 p.m. on Thursday, September 17, 2015, he and Sara arrived at the Silver Star Resort and Casino. They gambled until midnight or 1:00 a.m., at which time Weaver returned to his truck in the parking lot to sleep and wait for Sara. In the meantime, Sara was going back and forth from the Casino to Weaver's truck. According to Weaver, he and Sara argued into the next day about leaving the casino, and he finally convinced her to leave with him around 4:00 or 5:00 p.m. on Friday, September 18, 2015. Weaver testified that, before leaving the casino parking lot, Sara had attempted to pull a shotgun from the roof rack of his truck. He stated that he took the shotgun from Sara, ejected the shells, and laid it down in the back of the truck. Weaver testified regarding the 911 calls that he placed from his cell phone: first, he contended that he called 911 three times after the shotgun incident but that he got no response. Then, he testified that he connected with 911 a couple of times and explained the situation, but law enforcement never came to the casino. Finally, Weaver testified that he connected with 911 only one of the four times he called. Again, he maintained that no law enforcement came to the casino in response to his calls.

¶ 12. Weaver testified that, upon finally leaving the casino, Sara insisted on driving, so he sat in the passenger's seat. According to Weaver, Sara began hitting him and driving erratically, so he threw the truck out of gear and pulled it over to the side of Highway 16, just a mile and a half from the casino. Weaver testified that he and Sara continued arguing; then she sprayed him in the face with pepper spray. Weaver stated that he knew Sara often carried a small .380-caliber handgun with her and was concerned that she would reach for it next. Weaver then drew his .38-caliber handgun and, according to him, as he was pulling the hammer back, the hammer slipped, the gun fired, and a bullet hit Sara in the head. Weaver maintained that he did not point the gun at Sara.

¶ 13. Weaver testified that he attempted to flag down a vehicle, but no one stopped. He walked over to a pond that was approximately 150 yards away-but not the same pond that he ultimately dumped Sara's body in-and rinsed the pepper spray off of his face. After about two hours, he got back into the truck and moved Sara's body into the passenger seat. Weaver then testified that he decided to drive Sara's body to the pond located on Dusty's property. When asked why he did not tell law enforcement that the shooting was an accident, Weaver claimed that he had been traumatized from the experience.

¶ 14. After Weaver's testimony, the defense rested its case-in-chief and renewed its motion for a directed verdict, which the trial court denied. The court instructed the jury on second-degree murder and self-defense. The jury found Weaver guilty of second-degree murder but declined to sentence him to life in prison. The trial court sentenced Weaver to forty years in MDOC's custody, with thirty years to serve, ten years suspended, and five years of probation. Weaver filed a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, which the trial court denied. Weaver filed a timely notice of appeal.

DISCUSSION

I. Motion for JNOV/New Trial

a. Sufficiency of the Evidence

¶ 15. Our appellate courts have consistently reviewed motions for a JNOV or a directed verdict under the following standard:

A motion for directed verdict challenges the sufficiency of the evidence, and 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. In judging the sufficiency of the evidence, the trial judge is required to accept as true all evidence that is favorable to the State, including reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant.

Jackson v. State , 68 So.3d 709, 719 (¶ 32) (Miss. Ct. App. 2011) (citations and internal quotation marks omitted).

¶ 16. Weaver argues that the trial court erred in refusing his motion for a directed verdict on the basis that the State had not sufficiently established that the crime took place in Lauderdale County. In response, the State contends that the fact that Sara's body was found in a pond in Lauderdale County is sufficient evidence for a jury to find that the crime occurred in Lauderdale County.

¶ 17. "Proof of venue is an essential part of criminal prosecution, and the State bears the burden of proving venue beyond a reasonable doubt." Hill v. State , 797 So.2d 914, 916 (¶ 10) (Miss. 2001). Mississippi Code Annotated section 99-11-19 (Rev. 2015) provides that:

When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.

"While the ultimate burden of proving venue that rests upon the State is beyond a reasonable doubt, this is a standard of proof before the jury, not the trial judge." Hill , 797 So.2d at 916 (¶ 11).

¶ 18. Both Weaver and the State cite Hill v. State , 797 So.2d 914, 916 (Miss. 2001). In Hill , the defendant was convicted of strangling her infant son. Id. at 914 (¶ 1). The defendant argued that the trial court committed reversible error in refusing to grant her motion for a directed verdict on the basis that the State had failed to prove that venue existed in Forrest County, Mississippi, where the case was brought. Id. at 915-16 (¶ 9). The Court held that the evidence presented at trial was sufficient to establish venue in Forrest County, stating, "[a]s long as the evidence is sufficient to lead a reasonable trier of fact to conclude that the crime in the present case occurred at least partly in Forrest County, then the evidence of venue is sufficient." Id. at 916 (¶ 12).

¶ 19. Weaver contends that "it was clearly established in the evidence that the homicide took place in Neshoba County." We disagree. We acknowledge Weaver's testimony that he shot Sara in his truck about a mile from the casino near a pond. However, given the totality of the evidence, including his pretrial statements and other testimony, the assertion that the evidence clearly established that the homicide took place in Neshoba County is not undergirded. First, as noted, Sara's body was found in a pond in Lauderdale County, not in Neshoba County. Second, in Weaver's third statement, he said that after shooting Sara, he "panic[k]ed and tried to put her in a tranquil place in a pond within just a few yards from where she pulled over ...." According to Weaver's trial testimony, he snatched the truck out of gear and pulled it over to the side of the road approximately a mile from the casino in Neshoba County. Weaver does not claim, and there is no evidence in the record, that Sara's body had been relocated from a pond in Neshoba County to the pond in Lauderdale County where it was found. Additionally, Crosby, a defense witness, testified that he located a pond in Neshoba County approximately 100 to 150 yards off of Highway 19 and approximately fifteen miles from the casino. It is interesting that the pond that Weaver said he walked to to wash the pepper spray off his face after he shot Sara was approximately 150 yards from the highway (the same distance from the highway to the pond found by Crosby), except that Weaver identified the highway as Highway 16, while Crosby identified the highway as Highway 19. In light of this evidence and the fact that Sara's body was found in Lauderdale County, a jury could reasonably find or conclude that the killing took place in Lauderdale County because the jury was required to view the evidence in the light most favorable to the State.

¶ 20. Weaver admits that a "rebuttable presumption" was raised that the killing took place in Lauderdale County because Sara's body was recovered there, but he contends that he rebutted the presumption. See Fairchild v. State , 459 So.2d 793, 799 (Miss. 1984), for the proposition that the fact that a body is found in a certain county "raises a rebuttable presumption, or supports an inference, that all or part of the homicide took place in [that county]."

¶ 21. After hearing arguments from both sides regarding this issue, the trial court cited Fairchild , and held:

But - - no question but that [Sara] was found in Lauderdale County. There is [a] rebuttable presumption under the law that all or part of the homicide took place in Lauderdale County under those circumstances.
And I think that's what the jury is going to have to determine. Where there is - - there is testimony here that there was an argument, there was pepper spray, and then there was - - at least his version is - - and that occurred up in Newton County [sic]. And then there [are] other statements that [Weaver] has given that they stopped in Lauderdale County where he killed her. He said differently yesterday.
I mean, there [are] different versions presented, but there is a legal presumption that where the body was found, that all or part of the crime happened here. That's an issue of argument.

¶ 22. As noted earlier in this opinion, the question whether venue has been established in a given case is a question for the jury, not the trial judge. Instruction S-1A placed the issue of venue before the jury for its consideration. It instructed the jury that the State was required to prove, among other elements, that the killing took place in Lauderdale County and that if the State should fail to do so, the jury should find Weaver not guilty. The jury is the final arbiter of the evidence, and it was not obligated to accept Weaver's testimony that he shot Sara in Neshoba County in light of the fact that her body was found in Lauderdale County in a pond where he admitted that he placed it. Cf. Burrell v. State , 613 So.2d 1186, 1191 (Miss. 1993) (noting our well-settled law that a jury is under no obligation to accept an alibi defense asserted by the accused and his witnesses). As stated, there was sufficient evidence for the jury to conclude that the killing occurred in Lauderdale County. Therefore, we cannot say that the trial court erred in refusing to grant Weaver's motion for a directed verdict on the basis that the State failed to prove a crucial element: that the homicide occurred in Lauderdale County. This issue is without merit.

b. Weight of the Evidence

¶ 23. When reviewing whether a conviction in a case is contrary to the overwhelming weight of the evidence, "we defer to the discretion of the trial judge, and we will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice." Jackson , 68 So.3d at 720 (¶ 37) (internal quotation marks omitted). As we do not find that allowing the verdict to stand would sanction an unconscionable injustice, it follows that we find no merit to this issue, and the trial court did not err in not granting a new trial based on the weight of the evidence. This issue likewise is without merit.

II. Jury Instruction

¶ 24. Weaver argues that the trial court erred in refusing the defense's proposed jury instruction D-7 because it was a correct statement of law that would have been used to establish the defense's theory of imperfect self-defense. In response, the State argues that there was no foundation in the evidence for an imperfect self-defense instruction and that the trial court did not err in refusing instruction D-7.

¶ 25. "Jury instructions are reviewed under an abuse-of-discretion standard. When read together, if the jury instructions state the law of the case and create no injustice, then no reversible error will be found." Burgess v. State , 178 So.3d 1266, 1272 (¶ 14) (Miss. 2015) (citation and internal quotation mark omitted). "Imperfect self-defense is a theory that can reduce [an] intentional killing[ ] from murder to manslaughter where the killing is committed without malice but under a bona fide (but unfounded) belief that it was necessary to prevent great bodily harm." Young v. State , 99 So.3d 159, 165 (¶ 21) (Miss. 2012) (internal quotation mark omitted). In contrast, "manslaughter is the 'killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.' " Id. (quoting Miss. Code Ann. § 97-3-35 (Rev. 2006) ).

¶ 26. Instruction D-7 provides:

If you find beyond a reasonable doubt that Kenneth Brian Weaver killed Sara Lynn Beard aka Sara Lynn Mullett without malice while under a bona fide, but unfounded, belief that the killing was necessary to prevent death or great bodily harm, then you shall find Kenneth Brian Weaver guilty of [m]anslaughter.

In denying D-7 at trial, the trial court held:

I have already said that I don't believe we have got a case of manslaughter. He didn't - - it is either self-defense or a reckless act evidencing disregard for human life. He was either protecting himself in the way that's justified in the opinion of the jury or he acted recklessly and resulted in the death of [Sara].

The defense responded with the following argument:

[T]he State is not even alleging that malice is present, so we don't even have to consider that part. They are alleging and have offered proof that they believe that it is an intentional killing, and I have put on proof that I believe demonstrates that the Defendant had a bona fide belief that his use of force was necessary to prevent death or great bodily harm. In the event that the jury believes that that belief was bona fide, then yes, he is entitled to self-defense.
But what this [c]ourt is saying is that the parenthetical "but unfounded" should be written out of the law and the jury should not consider what he should be convicted of if they believe that his belief was bona fide but unfounded. If he believed that he needed to use the force he used, but it was unreasonable for him to have done so and it was an unfounded belief, then the law allows a conviction for manslaughter under an imperfect self-defense theory.

The State, in response, argued:

Well, he withdrew D-6 which is his manslaughter instruction, so there is no basis that deals with the issue of manslaughter that would reduce this to manslaughter. Furthermore, this just doesn't rise to even the level of imperfect self-defense. The Defendant specifically testified he didn't see a gun. Pepper spray is not enough to get into imperfect self-defense, not when you are the one holding the gun.
In fact, in one of the statements that he made he said he shot her with the .380 himself, so that means he knew that she didn't have it.

Subsequently, the court denied instruction D-7. However, the court gave jury instruction C-8, which instructed the jury as follows regarding self-defense:

The [c]ourt instructs the [j]ury that one claiming self-defense may not use more force than reasonably appears necessary to save his own, or another's, life or protect himself or others from great bodily harm under the circumstances as they exist as the time of the incident. Whether or not the defendant exceeded that amount of force is for you, the [j]ury, to determine.

¶ 27. "A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Chandler v. State , 946 So.2d 355, 360 (¶ 21) (Miss. 2006). The record is clear that instruction D-7 was not covered by other instructions, nor is it an incorrect statement of our law. Therefore, we will limit our discussion to whether there is an evidentiary foundation to support the instruction.

¶ 28. We first note that the theory of imperfect self-defense embodies an intentional killing, although without malice. A killing that occurs as a result of an accident when the defendant had no intent to kill the victim implicates the defense of accident but not the defense of imperfect self-defense because, by definition, an incident that occurs as a result of an accident is not the product of an intentional act. One may argue that the act of pulling the hammer back indicates an intention to shoot Sara, but the more plausible view is that that action was simply preparing the gun for a quick shot should the situation advance to a point where Weaver thought it was necessary to shoot Sara to preserve his life. Weaver's testimony on cross-examination demonstrates that that was indeed the case, as his testimony is clear that when he pulled his revolver, he neither intended to shoot Sara nor pointed the gun at her:

Q. Well, you testified that she sprayed you with pepper spray and you shot her. You didn't say you saw her with a gun. You said you knew she had one, but you didn't see her with it.
A. I couldn't see after the cayenne pepper spray was in my eyes. The gunshot just happened to strike her in the face. It was not a pull-point-shoot situation .
Q. Well, help me here. If you're about as far away from her as I am from this part of this podium and -- can you give any other explanation as to how she got shot in the face other than you pointing the gun at her face and pulling the trigger?
A. Yes, sir. Being a revolver made in 1967 with a hammer that's almost flat, while withdrawing that hammer those hammers on those particular revolvers are capable of slipping. While I was holding that revolver and pulling the hammer back, it slipped from -- and that's the reason. That explains the shot and the two foot from the -- there wasn't a point. If I would have pointed a gun at her in a pickup truck, it would have been point-blank range and not a two-, three-foot shot .
Q. Well, I missed that part in your direct examination. I didn't hear you tell your lawyer that. So you're saying now that the thing slipped ?
A. Yes.
Q. And to be clear, though, you were pulling the hammer back ?
A. To ready the revolver, yes.
Q. Excuse me?
A. To ready the revolver. To - -
Q. To raise the revolver?
A. - - taking the safety off of an automatic.
Q. Is this a single-action or double-action pistol?
A. A double-action.
Q. So you could have just pulled the trigger to shoot her.
A. Yeah, but I was not really figuring on doing that. I don't really remember my frame of mind, but I definitely didn't think it would -- you know, it wasn't a planned -- that was the last thing I hoped that would happen by far.
Q. The last think you hoped would happen? Do you know how to prevent something like that? Do you know that if you just don't point the gun at her and point it at her face from two feet, three feet away that it can't happen?
A. Yes, sir. It was a very bad mistake and it was an unsafe act, and I felt like my life was in danger because of her having the pistol, the .380 on her person. I felt like that was the next thing that would come in my direction.
Q. Well, it wasn't just an unsafe act, was it? I mean, it was a very dangerous act to point a gun at somebody and pull the hammer back on it?
A. I didn't point it. It could have just as easily went through the window or any other direction from this, you know, from --
Q. How can you sit there and tell this jury that you didn't point that gun at her when we know that you had the gun in your hand and the bullet went through her cheek? How can you say the gun wasn't pointed at her?
A. Forensic evidence proves it went in at the jaw here and come here (indicating). If I would have pointed the gun at her from her from the passenger side seat, I would have been within a foot, and it would have been straight, you know, straight across and not up and back.
Q. Thank you, Dr. Weaver [sic]. But isn't it true that whichever way she was facing would determine where that bullet went?
A. Yes, those are determining factors as well.
Q. I think your attorney asked you the question in this form: Do you admit that you held the gun that fired the shot? And you said "yeah" or something, I don't know. But do you acknowledge now that you killed her by shooting her in the face with that gun?
A. I did.
Q. And when I say "that gun," I'm talking about this one right here, which is Exhibit Number 20? This gun, right?
A. Correct.
Q. All right. You gave a boatload of statements to the law enforcement officers. Why, if this was an accident or if it was self-defense even, did you not, when making these statements to them, tell them what you told this jury under oath today?
A. I was still very unclear of a lot of things at that time. It was a very traumatic experience.
Q. Well, do you think it was traumatic for her?
A. Very.
Q. All right. Anymore reasons why you didn't tell the officers what you now claim is the truth?
A. Some things I was unclear about at the time and I guess guilt.
Q. Well, I mean, you were -- yeah, guilt. Sure. But, I mean, you were lucid enough to make up about half a dozen different stories, weren't you?
A. Yes. Some things I said was incorrect, yes.
Q. Some things you said were incorrect?
A. Yes, sir.
Q. How about just darn near everything you said was incorrect? They were flat-out lies, weren't they?
A. Yes, sir.
Q. You were trying to cover it up, you were trying to cover up what you had done; is that not true?
A. That's true.
Q. And do you know of any reason why anybody who is not guilty of something would do that?
A. I can't explain. No, I can't explain my mindset at that time.

(Emphasis added).

¶ 29. What is clear from the quoted colloquy is that despite the prosecutor's best efforts to get Weaver to admit that he intentionally shot Sara, he steadfastly denied that was the case, although he also insisted that he was afraid and believed that Sara would next pull the .380 revolver that, according to Weaver, she always carried. Again, without evidence of an intentional shooting, there can be no entitlement to an imperfect self-defense instruction.

¶ 30. Also, the events immediately preceding the shooting do not provide an evidentiary basis for the giving of an imperfect self-defense instruction because there is not one scintilla of evidence that could be interpreted as supportive of the notion that Weaver could have believed-in the moment that he shot Sara-that shooting her was necessary to save his own life or prevent great bodily harm to himself. He said he did not see a gun. Admittedly, he said Sara sprayed him with pepper spray, but he does not claim that she threatened to kill him at the time that she sprayed him with the spray. He does, however, say that he believed that she would next retrieve her gun, but that belief was not founded on anything she had said or done immediately prior to the shooting. It was simply Weaver's speculation of what might happen next because, in his words, she was known to carry a gun. Importantly, what he did not say is that she always pulled the gun on him whenever they got into an argument, and that was the reason he suspected that she would pull the gun next. Perhaps he could not say that because the record indicates that Sara had owned the gun for a mere two weeks prior to her death, and there is no history in the record of their relationship during that two-week period. The foundation for a jury instruction must be grounded in the evidence, not in the mind of a defendant speculating about what a victim might have been contemplating in the absence of evidence pointing in that direction.

¶ 31. In accordance with the foregoing discussion, we find no evidentiary basis to support the giving of instruction D-7. Therefore, we find no error in the trial court's refusal to give it. This issue is without merit.

¶ 32. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. FAIR, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, J.

FAIR, J., DISSENTING:

¶ 33. Kenneth Weaver gave several different accounts of what happened the afternoon he shot Sara Beard. The story he eventually settled on-the one he testified to at trial-was that Sara blinded him with pepper spray and he, believing she was armed and intended to shoot him, drew his gun and inadvertently shot her while trying to cock it. Weaver requested a jury instruction on his theory of imperfect self-defense-that he shot Sara "without malice but under a bona fide (but unfounded) belief that it was necessary to prevent death or great bodily harm." Brown v. State , 222 So.3d 302, 307 (¶ 21) (Miss. 2017). The majority appears to concede that a reasonable juror could find Weaver shot Sara intentionally, but it goes on to find Weaver's claim about his fear of her shooting him first to be utterly unsupported by the evidence. Respectfully, I disagree-Weaver's story may be dubious, but it was enough to have the jury instructed on his theories of the case.

¶ 34. Weaver claimed he and Sara had been at a casino for almost twenty-four hours and had spent quite a bit of time arguing about when they would leave, with Sara wanting to stay. Weaver slept in their vehicle overnight, but she apparently had not slept, or slept quite a bit less than he did, and he said she had been using drugs or "supplements" that caused her to act erratically. That afternoon, they argued in the parking lot for some time, and Sara pulled a shotgun from a rack in the vehicle. Weaver was able to take it from her and unload it. He said he thought she had intended to shoot him and called 911 four times, but the calls kept dropping.

¶ 35. About an hour later, Sara agreed to go home, but she insisted on driving. She was still angry, though, and shortly after leaving she began driving erratically while repeatedly striking Weaver, who was sitting in the passenger seat beside her (Weaver said this explained the bruising found on his arm after he was arrested). Sara accelerated rapidly, well past 85 miles per hour, and Weaver thought she was deliberately endangering their lives. So he threw the vehicle into park and pulled it over to the side of the road. Weaver said this maneuver was violent enough that he thought it had caused irreparable damage to the vehicle. They continued to argue, and after a few minutes, Sara sprayed him in the face with pepper spray. Weaver testified that, at that moment, he was blinded, but he thought about how she had pulled the shotgun back at the casino and about the .380 pistol she had recently gotten and regularly carried. He believed she was about to shoot him while he was incapacitated, so he drew his own pistol and shot her when his finger slipped off the hammer while trying to cock it.

¶ 36. The majority holds that Weaver was not entitled to an instruction on imperfect self-defense because "there is not one scintilla of evidence" he could have believed he was in danger and his supposed fear "was not founded on anything she had said or done immediately prior to the shooting." I cannot join in this conclusion.

¶ 37. "In homicide cases, the trial court should instruct the jury about a defendant's theories of defense, justification, or excuse that are supported by the evidence, no matter how meager or unlikely." Brown v. State , 39 So.3d 890, 899 (¶ 34) (Miss. 2010). Weaver said Sara had pulled a shotgun on him before they left the casino-about an hour before-and had just deliberately endangered their lives by driving recklessly at a high rate of speed-a few minutes before. Although these were not things she did "immediately" before the shooting, they do not have to be; "evidence of prior violent acts of the victim ... are ... relevant ... to show the defendant's state of mind at the time of the incident and the reasonableness of his use of force." Jordan v. State , 211 So. 3d 713, 717 (¶ 17) (Miss. Ct. App. 2016) (citing Richardson v. State , 147 So.3d 838, 842 (¶ 16) (Miss. 2014) ). Weaver said he knew Sara carried a pistol, which she had recently acquired, and he said he feared she was going to use it against him like she had tried to use the shotgun. And immediately before the shooting, Sara had blinded him with pepper spray, which prevented Weaver from defending himself as he had in her two previous attempts. This was more than enough to entitle Weaver to an imperfect self-defense instruction, which, again, should have been given if supported by the evidence, "no matter how meager or unlikely." Brown , 39 So.3d at 899 (¶ 34).

¶ 38. "[E]very accused has a fundamental right to have her theory of the case presented to a jury, even if the evidence is minimal." Chinn v. State , 958 So.2d 1223, 1225 (¶ 13) (Miss. 2007). Weaver's story may be dubious, but his credibility was an issue for the jury, not an issue for the court. The imperfect self-defense theory was supported by the evidence and should have been submitted to the jury. Our courts "greatly value the right of a defendant to present his theory of the case," "and where the defendant's proffered instruction has an evidentiary basis, properly states the law, and is the only instruction presenting his theory of the case, refusal to grant it constitutes reversible error." Id. I would reverse Weaver's conviction and remand for a new trial, and so I dissent.

CARLTON, J., JOINS THIS OPINION.

      A still of the video was introduced at trial, which depicted Weaver's truck leaving the parking lot at 4:10 p.m. on Friday, September 18, 2015, with Sara driving.

      The State notes in its appellate brief that Weaver's testimony regarding this pond differs from Crosby's testimony; Weaver testified that the pond was only a mile and a half from the casino, but Crosby testified that the pond was fifteen miles from the casino.

      This was not the pond in which the body was found.

      Apparently the dissent interprets this statement as a concession by the majority that it believes a reasonable jury could find Weaver shot Sara intentionally. Although the jury could conceivably find that Weaver shot Sara intentionally, it could not find, based on the evidence presented, that Weaver shot Sara because he believed in that moment that shooting Sara was necessary to save his own life. As demonstrated by the State's cross-examination of Weaver, his own testimony debunks any notion of intentionality in the moment at which Sara was shot. In support of Weaver's theory of imperfect self-defense, the only version of the shooting that was before the jury was the version that Weaver testified to in court, wherein he stated that the shooting was purely an accident, not the various pretrial versions that he gave to law enforcement officers during their investigation of the crime.
      Apparently, it is the view of the dissent that Weaver's fourth out-of-court reiteration of what allegedly occurred was a sufficient evidentiary basis for an imperfect self-defense instruction because it says:
      Our supreme court has repeatedly held that in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the State or on behalf of the accused. The jury can disregard any portion of the evidence either for the [S]tate or for the defendant.
      Dissenting op. n.5. (citations and internal quotation marks omitted). With respect, we must say that this is not a case where different witnesses gave different versions of what occurred.

      In earlier versions of the story, Weaver apparently admitted he shot Sara on purpose. Our supreme court has "repeatedly held that in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the [S]tate or on behalf of the accused."Mangum v. State , 762 So.2d 337, 346 (¶ 35) (Miss. 2000). The jury can "disregard any portion of the evidence either for the state or for the defendant." Martin v. State , 112 Miss. 365, 374-75, 73 So. 64, 66 (1916). Likewise, Weaver was entitled to have the jury instructed on both accident and imperfect self-defense; he had "a right to assert alternative theories of defense, even inconsistent alternative theories." McTiller v. State , 113 So.3d 1284, 1292 (¶ 26) (Miss. Ct. App. 2013) (quoting Reddix v. State , 731 So.2d 591, 593 (¶ 9) (Miss. 1999) ).


source: Caselaw Access Project

author: GRIFFIS, C.J., FOR THE COURT:

license: Public Domain

text:
    Thomas Clifton JONES, Appellant v. Shanda Holder JONES, Appellee
    NO. 2017-CA-00262-COA
    Court of Appeals of Mississippi.
    January 31, 2019
    ATTORNEY FOR APPELLANT: DIANNE HERMAN ELLIS, Ocean Springs
    ATTORNEY FOR APPELLEE: MARK H. WATTS, Pascagoula
    EN BANC.
   GRIFFIS, C.J., FOR THE COURT:

¶1. Thomas Clifton Jones and Shanda Holder Jones were divorced on January 9, 2006. Thomas and Shanda agreed to joint legal custody of their two minor children. Shanda maintains primary physical custody of the children.

¶2. Pursuant to the parties' property-settlement agreement, Thomas agreed to maintain dependent coverage for health and dental insurance for both children. Thomas and Shanda agreed that "all medical expenses not covered by insurance [would] be equally divided between the parties and/or reimbursed within ten (10) days of submitting invoices for same, including deductible." Thomas and Shanda further agreed to be "equally ... responsible for the costs of school[-]related expenses, extracurricular activities[,] and any miscellaneous expenses which may arise."

¶3. Additionally, in the property-settlement agreement, Thomas agreed to pay $ 682 per month in child support, with the sum of $ 341 to be paid twice per month. In other words, Thomas agreed to pay $ 341 twenty-four times per year. A wage-withholding order was subsequently entered but, for unknown reasons, was never issued. As a result, Thomas paid his monthly child support directly to Shanda.

¶4. On May 18, 2009, without a petition filed or process served, a modified wage-withholding order was entered and issued. Pursuant to the modified order, $ 341 was withheld from Thomas's paycheck on a biweekly basis (i.e., every two weeks). As a result, beginning in 2009, Thomas paid $ 341 twenty-six times per year.

¶5. On May 13, 2014, Shanda filed a "Complaint for Contempt of Court and Other Relief" and claimed Thomas had failed to pay child support and his portion of the children's medical and school expenses. Shanda sought attorney's fees incurred as a result of Thomas's contempt of court. Thomas subsequently filed his answer along with a counterclaim for contempt and modification of custody. Additionally, Thomas asserted that he had overpaid child support since 2009 as a result of the modified wage-withholding order.

¶6. A three-day trial was held on January 13, 2015, February 16, 2016, and March 11, 2016. On March 24, 2016, the chancellor entered his "Findings of Fact and Conclusions of Law and Final Judgment of the Court" wherein he found Thomas to be in willful and contumacious contempt of court for his failure to pay child support as well as his portion of expenses. Specifically, the chancellor found Thomas owed $ 708 in unpaid child support, $ 5,565.15 in unpaid medical expenses, and $ 6,946.39 in unpaid school and/or extracurricular expenses, for a total arrearage of $ 13,219.54.

¶7. The chancellor further found that due to the modified wage-withholding order that was not properly filed or served, Thomas had overpaid child support since 2009. As a result, the chancellor credited Thomas $ 4,200 against the total arrearage. However, the chancellor denied Thomas's request for credit for the payments his family made on behalf of the children. The chancellor entered a judgment against Thomas in the amount of $ 9,019.54.

¶8. Additionally, the chancellor awarded Shanda $ 6,500 in attorney's fees due to Thomas's contempt. The chancellor found no evidence of a material change in circumstances adverse to the minor children and therefore denied Thomas's request for a modification of custody. The chancellor further denied all other requested relief, including Thomas's counterclaim for contempt of court against Shanda.

¶9. Thomas now appeals and argues the chancellor erred in: (1) finding him in contempt for failing to pay his portion of the expenses, (2) finding him in contempt for his failure to pay child support, (3) failing to find Shanda in contempt for her noncompliance with the property-settlement agreement, and (4) awarding Shanda attorney's fees.

STANDARD OF REVIEW

¶10. "Chancellors are vested with broad discretion, and this Court will not disturb the chancellor's findings unless the court's actions were manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard." Johnston v. Parham , 758 So.2d 443, 445 (¶ 4) (Miss. Ct. App. 2000).

ANALYSIS

I. Whether the chancellor erred in finding Thomas in contempt for failing to pay his portion of the expenses.

¶11. "A party can be held in contempt for noncompliance with a judgment issued by the chancellor." Weeks v. Weeks , 29 So.3d 80, 86 (¶ 23) (Miss. Ct. App. 2009) (citing Mississippi Code Annotated section 9-1-17 (Rev. 2002) ). "Failure to comply with a court order is prima facie evidence of contempt." Evans v. Evans , 75 So. 3d 1083, 1087 (¶1 4) (Miss. Ct. App. 2011). "To rebut a prima facie case of contempt, [the non-moving party] must show an inability to pay, that the default was not willful, that the provision violated was ambiguous, or that performance was impossible." Id. (citation and internal quotation mark omitted).

¶12. We find the property-settlement agreement, which was drafted by Shanda, to be vague and ambiguous regarding the expenses to be reimbursed. It requires the parties to be "equally ... responsible for the costs of school[-]related expenses, extracurricular activities[,] and any miscellaneous expenses which may arise." Yet, it fails to define or explain what is meant by such expenses. Thus, under the property-settlement agreement, Shanda contends that any activity in which the children participate is subject to reimbursement. The support for this argument is the fact that the property-settlement agreement not only requires payment for expenses of school and extracurricular activities, but also "miscellaneous" activities. Based on this language, there appears to be no limit to such activities or expenses. Thus, Thomas may be required to pay half of all expenses no matter the cost or his ability to pay.

¶13. Additionally, under the property-settlement agreement, the parties agreed that "all medical expenses not covered by insurance [would] be equally divided between the parties and/or reimbursed within ten (10) days of submitting invoices for same, including deductible." (Emphasis added). The property-settlement agreement requires an invoice to be paid or reimbursed within ten days of submission, but it does not place any limitation on the amount of time each party has to submit an invoice. Thus, under this language, a party could wait months or even years to submit various invoices and then demand payment of those invoices within ten days of submission, after the invoices have reached a substantial amount.

¶14. The property-settlement agreement requires the submission of an "invoice," not an explanation of benefits (EOB). The record shows Thomas received various EOB statements regarding the children's medical appointments and procedures. But an EOB is not an invoice. Although an EOB provides a statement of what insurance has covered, it does not provide proof of who has paid the balance, or whether the balance has been paid.

¶15. According to Thomas, he did not receive bills or invoices for the children's medical expenses and school and/or extracurricular activities until 2014. Thomas's wife, Sherri, also testified that Thomas did not receive any bills prior to March 2014. Sherri explained that in March 2014, she and Thomas picked up the children on a Friday. Shanda handed Thomas a "big huge folder" of unpaid bills and advised that she would need "$ 5,000 by Sunday or she was taking him to court." Sherri further testified that when Thomas requested bills or receipts, Shanda would respond that she "[d]idn't have them ready."

¶16. Thomas's stepmother, Barbara, testified that she discussed the bills with Shanda on two occasions at Shanda's house. Barbara explained as follows:

Because [Shanda] would say [Thomas] is not paying me. And I asked her, I said-she-I said why isn't he paying you. And she said I haven't given [the bills] to him. I said why haven't you given them to him? She said I don't want him to be put in jail. He'd lose his job. If I sue him he's going to be put in jail, lose his job and the kids won't have medical insurance. She told me that twice.
Now, in April ... [Shanda] did not have [the bills] organized.... Now come April of that year when [Thomas] was living with us around March/April ... all of a sudden she demanded that he pay her [$]9,000 now. He was - just got all upset. He said something to Cliff and I about it. Clifton said, and I did too, tell her to turn over the bills. Let's look at them. We need to see the [$]9,000.... [Shanda] [n]ever turned them over. And then ... she filed suit.

¶17. "Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement." Restatement (Second) of Contracts § 205 (1981). Thus, in all divorce actions, the parties are obligated to act in good faith and to treat each other with common courtesy and decency. In re E.C.P. , 918 So.2d 809, 816 (¶ 36) (Miss. Ct. App. 2005).

Here, Shanda waited over eight years to seek enforcement of the property-settlement agreement. The record shows some of the bills, receipts, and statements Shanda submitted for reimbursement date back to 2006. Although the property-settlement agreement does not specifically delineate the time frame to submit bills, receipts, or invoices to Thomas, a substantial delay in submission could be detrimental to him and implicate the duty of both parties to act in good faith. The lack of specificity in the property-settlement agreement, combined with Shanda's failure to timely submit the invoices or bills, made it impossible for Thomas to meet his obligation under the property-settlement agreement (i.e., to afford to pay his half of all expenses).See Evans , 75 So.3d at 1087 (¶ 14).

¶18. For these reasons, we find the chancellor erred in finding Thomas in contempt for his failure to pay his portion of expenses. We reverse and remand for further consideration of two matters: the sufficiency of the documentation provided by Shanda in support of the expenses, and the timeliness of the submission of the bills or invoices.

II. Whether the chancellor erred in finding Thomas in contempt for his failure to pay child support.

¶19. Thomas next argues the chancellor erred in finding him in contempt of court "for [his] failure to pay child support in the amount of $ 708 while, at the same time, finding that he had overpaid child support by $ 4,200." He claims "[t]he two findings are incompatible." We agree.

¶20. A review of the record shows that the $ 708 child-support arrearage occurred before the modified wage-withholding order was issued. In other words, at the time the modified order was issued, Thomas owed $ 708 in child support. Yet, after the modified order was issued in 2009, Thomas overpaid by $ 4,200. Thus, at the time Shanda filed her complaint in 2014, and at the time of trial in 2015-2016, Thomas was not behind in child support but, instead, had actually overpaid. As a result, the chancellor erred in finding Thomas in contempt for his failure to pay child support. Accordingly, we reverse and render on this issue.

III. Whether the chancellor erred in failing to find Shanda in contempt for her noncompliance with the property-settlement agreement.

¶21. Thomas further argues the chancellor erred in failing to find Shanda in contempt of court for her failure to comply with the property-settlement agreement. Specifically, Thomas alleges Shanda violated the property-settlement agreement by: (a) denying him visitation with the children, (b) failing to communicate with him regarding the children's medical appointments and school functions, (c) failing to notify him when she and the children traveled out of town, (d) failing to return his personal belongings after the divorce, and (e) failing to timely refinance the marital home. We separately address each allegation.

A. Visitation

¶22. Thomas claims Shanda often denied him weekend, summer, and holiday visitation with the children. He further claims that when Shanda did allow him weekend visitation, she would ask that he bring the children back on Saturday night so they could attend church.

¶23. When asked what weekends he was denied visitation, Thomas responded he did not have actual dates but that it occurred on "numerous occasions [over] the past seven or eight years." Additionally, Thomas was unable to specify which years he did not get the children for Thanksgiving.

He ultimately acknowledged that he "should have been writing [it] all down all the years."

¶24. Additionally, Thomas admitted he would voluntarily return the children on Saturday night in order to avoid "a big argument." Despite his assertion on appeal, Thomas advised the chancellor at trial that he did not intend to have the court hold Shanda in contempt because he voluntarily brought the kids home on Saturdays.

¶25. Shanda admitted that she has occasionally denied Thomas visitation with the children but explained that it was only during those times when Thomas had no place to live or was struggling with a drug problem. Thomas acknowledged that he has lived with three different women since the divorce and has been married twice. He further acknowledged that he has not owned a house since the divorce and has lived in six to eight different places since moving out of the marital home. Moreover, Thomas admitted to having a drug problem and to taking his son's Attention Deficit Hyperactivity Disorder medication.

¶26. The record shows that despite Thomas's lack of a residence, Shanda would allow Thomas to stay at her house with the children in order for him to have his weekend visitation. She would also allow him to use her car when he was without transportation.

¶27. Regarding holiday visitation, Shanda explained that Thomas has had numerous work schedules over the years and has had to work on holidays, including Christmas Day. As a result, Shanda would accommodate his work schedule and adjust the children's visitation accordingly.

B. Communication

¶28. Thomas claims Shanda failed to advise him of doctors appointments and school functions. Thomas asserts his biggest complaint about Shanda is that he "would have liked to have been included more."

¶29. While Shanda admitted that she "may not tell [Thomas] every time they go to the doctor for a sinus infection," she denied willfully withholding information from him. She acknowledged that Thomas is not listed on the children's school records as an emergency contact but explained it was because he lived too far from the school.

¶30. Importantly, Thomas acknowledged that he has joint legal custody of the children and, as a result, has equal access to the children's school and medical information. Additionally, Thomas acknowledged that information regarding school functions is available online for him to access. He agreed that Shanda has never refused to tell him information such as teacher names and, moreover, acknowledged that he could ask his children if he wanted to know about their schedules and/or school events.

¶31. When testifying regarding the expenses related to medical and/or school and extracurricular activities, Thomas initially stated that Shanda "probably" told him how much it cost because "[k]nowing Shanda[,] she's pretty much by the book." Yet, after hearing Shanda's testimony, Thomas's testimony changed. Thomas subsequently testified that despite his former testimony, he no longer believed Shanda was a good mother.

C. Out-of-Town Travel

¶32. The property-settlement agreement states that any out-of-town or out-of-state travel with the children shall be coordinated between the parties and each parent shall keep the other generally informed of the children's whereabouts. Thomas claims Shanda failed to notify him when she traveled out of town or state with the children.

¶33. Shanda admits to traveling out of town with the children without first advising Thomas. She explained that although she signed the property-settlement agreement, she did not recall that provision or requirement. Regardless, Shanda testified as follows:

[Counsel]: Did you take [the children] to Tennessee or somewhere [Thomas] didn't know about?
[Shanda]: Not that I know of.
[Counsel]: All right. Did you call and tell him I'm bringing them from Hurley to Pascagoula today? I'm leaving town and coming -
[Shanda]: No, sir.
[Counsel]: All right. Has he mentioned that to you that he's upset today because you didn't tell him you were leaving Hurley -
[Shanda]: No, sir.
[Counsel]: - and coming to Pascagoula?
[Shanda]: No, sir.
....
[Counsel]: And if he takes the children out of Mobile to Saraland or to any - does he call and say hey, we're going to Saraland?
[Shanda]: No, sir.

D. Thomas's Personal Belongings

¶34. Thomas further claims Shanda has "kept, and is using, personal items and family heirlooms belonging to [him] and which he was awarded in the property settlement agreement." Specifically, Thomas claims Shanda has failed to return a rocking chair, a "whatnot shelf," a walnut chest of drawers, a maple chest of drawers, and a coffee table.

¶35. The property-settlement agreement did not specifically award these items to Thomas. Instead, the property-settlement agreement provided that Thomas would "retain possession of his personal belongings." The record shows the items at issue belonged to Thomas's mother and were acquired when Shanda and Thomas moved into their marital home. The record further shows Thomas moved out of the marital home before the divorce was final and left those items in the home. Shanda testified that Thomas left the items since they would be safe in the home and because he moved around so much after the divorce.

¶36. Additionally, Shanda testified that there was no rocking chair or coffee table, the "whatnot shelf" was in their son's room, the walnut chest of drawers was in their daughter's room, and the maple chest of drawers was in her room. Importantly, Shanda advised that although Thomas took what he wanted when he moved out prior to the divorce, he was welcome to come get those items.

E. Refinance of the Marital Home

¶37. The property-settlement agreement required Shanda to refinance the marital home within "two years after the date of divorce and remove [Thomas's] name from same." Thomas asserts Shanda failed to timely refinance the home.

¶38. Although Shanda did ultimately refinance the home, she admitted that it did not occur within two years of the divorce. Shanda explained that she simply did not have the thousands of dollars it was going to cost to refinance at that time, and discussed it with Thomas.

¶39. At trial, the chancellor inquired as to whether Thomas's credit was damaged as a result of Shanda's failure to timely refinance. Thomas testified that he did not think there were any late payments made on the marital home during the time Shanda failed to refinance. Yet, he "believed" his credit had been damaged since the marital home "came up" when he and his wife tried to obtain a loan for their home.

¶40. Thomas advised the chancellor that he did not currently have a mortgage and has not had a mortgage since the 2006 divorce. He explained that he and his wife purchased their home though his wife and mother-in-law's limited liability company because they "flip houses." According to Thomas, they decided to "keep" one of the houses that had been flipped. He clarified that there was no loan on the home.

¶41. "To be found in contempt, a party has to willfully and deliberately violate a court order." McKnight v. Jenkins , 155 So.3d 730, 732 (¶ 7) (Miss. 2013). While the record indicates that Shanda did not always comply with the property-settlement agreement, there is no evidence that she willfully and deliberately violated the court's order. Indeed, there is no evidence in the record to suggest that Shanda's actions were done with the intent to frustrate the court's order. Thus, the chancellor did not err in failing to find Shanda in contempt of court. We therefore affirm this issue.

IV. Whether the chancellor erred in awarding Shanda attorney's fees.

¶42. Thomas last argues the chancellor erred in awarding Shanda attorney's fees. "When a party is held in contempt for violating a valid judgment of the court, then attorney's fees should be awarded to the party that has been forced to seek the court's enforcement of its own judgment." Webster v. Webster , 17 So.3d 602, 609 (¶ 19) (Miss. Ct. App. 2009).

¶43. Because the chancellor erred in finding Thomas in contempt of court, we find the award of attorney's fees should be reversed and remanded. Upon remand, should the chancellor, after consideration of Shanda's sufficiency and timeliness of the bills and expenses, find that Thomas remains in contempt of court, an award of attorney's fees may be considered.

¶44. AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REVERSED AND REMANDED IN PART.

BARNES AND CARLTON, P.JJ., WILSON, GREENLEE, WESTBROOKS, TINDELL, McDONALD AND McCARTY, JJ., CONCUR. LAWRENCE, J., NOT PARTICIPATING.

      The chancellor set aside and vacated the modified wage-withholding order and ordered the parties to execute a new order consistent with the property-settlement agreement.

      The children go to school in Jackson County, Mississippi. Thomas lives in Mobile, Alabama.


text:
    FAIRLEY CONSTRUCTION SERVICES, INC., Appellant v. James SAVAGE, Appellee
    NO. 2017-CA-00993-COA
    Court of Appeals of Mississippi.
    January 31, 2019
    ATTORNEYS FOR APPELLANT: ROBERT P. THOMPSON, Ridgeland, CARYN L. MILNER
    ATTORNEYS FOR APPELLEE: LAWRENCE C. GUNN JR., ANN L. GRIFFIN, Hattiesburg
    EN BANC.
   GRIFFIS, C.J., FOR THE COURT:

¶1. Fairley Construction Services Inc. appeals from a judgment entered on a jury verdict in a personal injury action in favor of James Savage. The jury found that Savage suffered total damages of $460,000, that Fairley was 80% at fault, and that Savage was 20% at fault. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Fairley was hired to construct a quick-lube automobile service facility. The facility was divided into four separate sections or "bays." The first bay was on the south end of the building and was used as an office and customer waiting area. The other three bays were used as a garage area for vehicle maintenance. The facility also included a basement with three openings to the main floor of the facility. Two of the openings were "oil pits" that allow the facility's mechanics to access the underside of vehicles for an oil change. The oil pits were approximately eight-feet deep.

¶3. Fairley ordered construction materials, including sheetrock, from ProBuild. ProBuild was a distributor of lumber and construction materials. Savage was a delivery driver for ProBuild.

¶4. On May 14, 2013, Savage delivered sheetrock to Fairley's construction site. When Savage arrived, none of Fairley's employees were present. Savage inspected the construction site and determined the best and safest location for him to place the sheetrock. Savage determined that the first bay - the office area - appeared to be too cramped to unload the sheetrock. He also determined that the second and fourth bays were blocked by machinery. As a result, Savage decided to unload the sheetrock in the third bay. While he was unloading the sheetrock, Savage fell into the oil pit.

¶5. At the time of the delivery, each oil pit was covered by a 4-foot by 8-foot sheet of plywood. Savage claimed that the oil pits were concealed and unable to be seen. The plywood was not fastened or attached to the floor. And there were no warning signs, cones, or any other type of warning that advised or alerted Savage of the presence of the oil pits or openings into the basement.

¶6. Savage explained his accident as follows:

[W]hen I pulled up to the door where I was going to put the [s]heetrock in, the [s]heetrock is 4 feet by 12 feet, and when I pulled up to the door, I determined that the door was not wide enough to slide it in straight because there was not enough clearance; so the way we do things like that is you turn it sideways. You put the 4 foot side in ... and you set it down, and you try to - on our forklifts, we have a side shift, and you can side shift it. You will set it down and side shift it as far as you can, and then you would go. You would set it down, come out from under it, and you would go to the other end. Pick the other end up. Level it and slide it in the building.
....
[However,] when I - when I looked in, I saw the plywood on the floor, and I determined that it was not enough room to - not enough - at least 12 to 13 feet to where you can safely slide the [s]heetrock in; so I went in to move the ... plywood forward so the [s]heetrock would not hit it, and so it wouldn't damage the [s]heetrock, and when I picked the plywood up to slide it forward, I took one step and fell into the [oil] pit.

Savage testified that he picked up the piece of plywood "[t]o about [his] knees" and "was going to slide it forward far enough to where [he] could safely get the [s]heetrock in without hitting the plywood."

¶7. Savage commenced this action against Fairley. Savage alleged that "the premises controlled by Fairley ... contained a hazardous condition in the form of the [oil] pit that was hidden or concealed by the plywood." Savage further alleged that Fairley "failed to eliminate this dangerous condition and further failed to warn [him] of its existence ...." After a trial, the jury returned a verdict that found that Savage had suffered $460,000 in total damages. The jury verdict also allocated fault with 20% assigned to Savage and 80% to Fairley.

¶8. Fairley filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. And, the circuit court denied the motion. It is from this judgment that Fairley now appeals and argues: (1) the circuit court erroneously denied its motion for a JNOV, (2) the circuit court erred in allowing testimony regarding OSHA and the American National Standards Institute (ANSI), (3) the circuit court failed to properly instruct the jury, and (4) the jury verdict is contrary to the overwhelming weight of the evidence.

ANALYSIS

I. Sufficiency of the Evidence

¶9. Fairley argues the circuit court erroneously denied its motion for a JNOV. A motion for a JNOV challenges the legal sufficiency of the evidence. Johnson v. St. Dominics-Jackson Memorial Hosp. , 967 So.2d 20, 22 (¶ 3) (Miss. 2007). In reviewing the denial of a motion for a JNOV, "[t]his Court will consider the evidence in the light most favorable to the appellee, giving the appellee the benefit of all favorable inferences that may be reasonably drawn from the evidence." Anderson v. McRae's Inc. , 931 So.2d 674, 678 (¶ 13) (Miss. Ct. App. 2006). "If the facts are so overwhelmingly in favor of the appellant that ... reasonable jurors could not have arrived at a contrary verdict, this Court must reverse and render." Id. "On the other hand, if substantial evidence exists in support of the verdict, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, then this Court must affirm." Id. (internal quotation marks omitted).

A. Savage's Status

¶10. Savage brought a premises-liability action against Fairley. "[P]remises liability is a theory of negligence that establishes the duty owed to someone injured on a landowners's premises as a result of 'conditions or activities' on the land ...." Doe v. Jameson Inn, Inc. , 56 So.3d 549, 553 (¶ 11) (Miss. 2011).

¶11. The duty owed by a business owner is determined based on the status of the injured party. The injured party should be classified as an invitee, licensee, or trespasser. Leffler v. Sharp , 891 So.2d 152, 153 (¶ 10) (Miss. 2004). An invitee is a person who enters the premises of another in response to an "express or implied invitation of the owner or occupant for their mutual advantage." Id. at 153 (¶ 11). A licensee enters the premises "for his own convenience, pleasure, or benefit pursuant to the license or implied permission ...." Id. A trespasser enters the premises "without license, invitation, or other right." Id.

¶12. The general rule is that a property owner is not the insurer of an invitee's safety. Instead, the property owner owes a duty to the invitee to keep the premises reasonably safe and, when not reasonably safe, to warn only of hidden dangers not in plain and open view. Corley , 835 So.2d at 37 (¶ 2). The property owner owes a duty to a licensee or trespasser to not willfully or wantonly injure them. Leffler , 891 So.2d at 157 (¶ 12).

¶13. Fairley asserts that Savage was an independent contractor. In Ratcliff v. Georgia Pacific Corp. , 916 So.2d 546, 549 (¶ 9) (Miss. Ct. App. 2005), this Court examined the slight difference between a business invitee and an independent contractor:

A business invitee is defined as one who enters the premises at the owner's invitation to pursue a matter of mutual advantage. On the other hand, an independent contractor is defined as a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking.

(Citations and internal quotation marks omitted). Ratcliff was also a truck driver, but he was injured while loading his truck. Id. at 547 (¶¶ 2-3). Ratcliff claimed that his injuries were the result of the landowner's negligence. Id. The Court ruled that Ratcliff was the employee of an independent contractor and not a business invitee. Id. at 549 (¶ 9).

¶14. Here, the record shows that Savage was properly considered to be an independent contractor. The jury was instructed that "Fairley had a duty to independent contractors such as ProBuild and/or Savage." Accordingly, we find that Fairley's claim regarding Savage's status as an independent contractor is moot.

B. ProBuild's Knowledge of the Oil Pits

¶15. Mississippi Code Annotated section 11-1-66 (Rev. 2004) provides that: "[n]o owner ... of property shall be liable for the death or injury of an independent contractor or the independent contractor's employees resulting from dangers of which the contractor knew or reasonably should have known." Fairley claims that "ProBuild knew about the oil pits" and that ProBuild's "knowledge of the presence of the oil pits was imputed to Savage." To support this claim, Fairley relies on the testimony of John Cummings, ProBuild's manager, and Stephen Fairley, Fairley's president.

¶16. Cummings testified that he arrived at the construction site after the accident. Cummings stated that it was obvious to him that the facility was an oil-change station. Cummings said, "it was a Quick Lube, Jiffy Lube whatever it was .... I recognize that by the spaces of the plywood that was down covering the holes .... You could tell that those were oil bays." Yet, there was no evidence presented that Cummings "knew about the oil pits" before the accident occurred.

¶17. Stephen Fairley testified about his conversation with David Oglesbee, ProBuild's salesman, about the oil pits:

[Fairley's counsel]: [Y]our first order with ProBuild, can you tell me what materials were you ordering that day?
[Stephen]: This is 2 by 4's, some 4 by 8, three-quarter plywood, that's concrete form board. Some 2 by 6's, nails. That's what's on that invoice.
[Fairley's counsel]: Okay, and, of course, at the top of this invoice that ProBuild made where Mr. Savage was and worked, it says shipped to. You see where it says Quick Lube?
[Stephen]: Yes, ma'am.
[Fairley's counsel]: Okay, these materials that you were ordering from Mr. Savage's employer, what were these materials used for?
[Stephen]: This particular invoice, the first one here, was where we constructed the pit. It's all the plywood and everything to form the concrete basement in the pit.
[Fairley's counsel]: Okay, the pit and to get this order, would you have called ProBuild and had a conversation with your salesman?
[Stephen]: Yea, I'd have called David.
[Fairley's counsel]: Okay, and do you recall that first conversation you had with ProBuild?
[Stephen]: I mean the first one, we normally give him - you know, let him know that, hey, we need a sub-account set up because we're starting a new job; so that all those tickets gets labeled to that job; so that the ladies in the office will know what job to put it to, and then I give him the order, and he's always like what do you - what are y'all doing, and I said, well, this is to construct the Quick Lube we're starting in Wiggins. We're going to be building a pit.
[Fairley's counsel]: Okay, and in placing this order, did you talk with ProBuild about having to build pits?
[Stephen]: I talked to David.
[Fairley's counsel]: Okay, and David's with ProBuild, right?
[Stephen]: Right, right. The salesman.
[Fairley's counsel]: And he's in the same office as Mr. Savage, correct?
[Stephen]: Right. He is the point of contact we have.

Despite Stephen's testimony that he spoke with David regarding Fairley's purchase order, David did not testify and therefore did not verify or confirm the conversation.

¶18. Although Fairley claims ProBuild's knowledge of the oil pits is "undisputed," the testimony suggests otherwise. The disputed issue, i.e., whether ProBuild had knowledge of the oil pits before Savage's accident, was presented to and resolved by the jury.

C. Savage's Knowledge of the Oil Pits

¶19. Fairley also claims that Savage knew or should have known of the presence of the oil pits. Specifically, Fairley asserts both the invoice and delivery ticket identified the site location as a "Quick Lube." Although Savage acknowledged this fact, he testified that he does not have anything to do with the invoices. Savage further explained that although he received the delivery ticket, it had handwritten directions stapled to the front of it.

¶20. Savage also testified that he had never been to the job site before his accident and that the quick-lube facilities he had been to prior to his accident "had lifts where they would lift the vehicle up, and they would go up under to change the oil." Savage stated that prior to his accident, he had not seen a quick-lube facility with oil pits.

¶21. Savage further testified that upon his arrival to the construction site, he visually inspected the site area to determine where the easiest and safest place was to unload the sheetrock. Savage stated there was no indication that the area was a quick-lube facility or had oil pits underneath it. He further stated that at the time of delivery, no one from Fairley was present on the job site.

¶22. Although Fairley claims the oil pits were obvious, Savage repeatedly testified that there was no indication of the presence of oil pits or any holes underneath the plywood. Moreover, Savage emphasized there was no indication of any kind of hazard.

¶23. Savage's expert witness, James Dunaway, also testified that the facility was not obviously an oil-change location. Specifically, Dunaway stated, "it wasn't obvious to me; if I hadn't have known that that's what it was ... [i]t wouldn't have been obvious to me."

D. Savage's Control of the Work

¶24. Fairley next claims liability is precluded because Savage was in complete control of the nature and details of his work. In support thereof, Fairley relies on Ratcliff . In Ratcliff , Ratliff went to a Georgia Pacific plant to pick up a load of particle board for his employer. Ratcliff , 916 So.2d at 547 (¶ 2). There was no contract between Georgia Pacific and Ratliff's employer other than a bill of lading that required the load to be protected from the weather. Id. Georgia Pacific provided Ratliff with clear plastic and tarpaulin to cover the load and Ratliff's employer provided straps to secure the plastic and tarpaulin. Id. at (¶ 3). While spreading the tarpaulin over the load, Ratliff fell from the top of the load to the concrete below and was injured. Id. Ratliff sued Georgia Pacific for failing to provide him with a safe working environment. Id. at 547-48 (¶ 4). Georgia Pacific subsequently filed a motion for summary judgment, which the circuit court granted. Id. at 548 (¶ 7). Ratliff appealed to this Court. Id.

¶25. On appeal, we emphasized that generally a premises owner has a duty to provide an independent contractor or the independent contractor's employee with a reasonably safe place to work or to warn of danger. Id. at 549 (¶ 10). However, the owner is relieved of that duty if the independent contractor is aware of the danger or the danger "arises out of or is intimately connected with the work to be performed by the independent contractor." Id.

¶26. We noted that Georgia Pacific "merely provided the load and the material to be used to cover it" and "did not ... direct Ratliff as to his method for covering and securing the load." Id. at (¶ 11). Moreover, we found the "danger posed to Ratliff [in spreading and securing the load] arose out of or was intimately connected with his duties as a truck driver." Id. As a result, we determined that Georgia Pacific owed no duty to Ratliff and affirmed the circuit court's entry of summary judgment. Id. at 549-50 (¶ 13).

¶27. We find Fairley's reliance on Ratcliff is misplaced. Ratliff's injury occurred when he fell from the flatbed truck he drove for his employer while securing the load on the truck. Id. at 549 (¶ 11). Here, Savage's injuries occurred when he fell into an oil pit, which was unknown to Savage and located on Fairley's premises. Unlike in Ratcliff , the danger of falling into an oil pit did not arise out of and was not intimately connected with the work Savage performed as a delivery driver.

E. Reasonably Safe Work Environment

¶28. Fairley last claims it provided a reasonably safe place to work and is therefore not liable for Savage's injuries. See id. at 549 (¶ 10) (noting that a premises owner has a duty to provide an independent contractor's employee with a reasonably safe place to work). However, Dunaway, an expert in the field of construction safety, opined that Fairley's maintenance of the construction site was not consistent with commonly accepted industry standards. Specifically, Dunaway opined that Fairley's maintenance was inconsistent with industry standards of what's expected of a hole cover. Dunaway testified that "[n]ot knowing there was a hole and lifting the plywood for the purpose of moving it out of the way" caused Savage to fall into the oil pit.

¶29. In response, Fairley offered Stephen's testimony that he thought laying unsecured sheets of plywood over the open holes in the floor was sufficient. However, as Savage explained to the jury, there was no reason to believe that there was a hole underneath the plywood. Although he acknowledged that had he looked under the plywood, he would have seen the hole, Savage emphasized that prior to his fall, there was no indication of any danger under the plywood.

¶30. Fairley asserts that even if the exposed oil pit constituted a dangerous condition, Savage, not Fairley, created it. Fairley argues the "sole proximate cause of Savage's alleged injuries was his decision to lift the plywood and step forward." However, Dunaway explained that the hole covers so much space that a piece of plywood would need to be fastened down and opined that Savage's injuries were caused by the exposed oil pit.

¶31. Additionally, Dunaway advised the jury that he has "investigated a lot of accidents" and did not find Savage's actions to be unsafe. Indeed, Dunaway stated that "it's not an unsafe practice to pick up a piece of plywood."

¶32. Considering the evidence in the light most favorable to Savage, we find sufficient evidence was presented to support the verdict. The record shows that the jury heard testimony from both parties and was instructed on Fairley's defense. Specifically, the jury was instructed that Savage was an independent contractor and that Fairley "[did] not have a duty to warn of a danger or defect that was known to ... Savage and/or which should have been known to ... Savage if he had been exercising ordinary care." Because sufficient evidence exists to support the verdict, Fairley's motion for a JNOV was properly denied.

II. Admission of Evidence

¶33. Prior to trial, Fairley filed a motion in limine to exclude evidence concerning OSHA. The circuit court granted the motion in part and held that "evidence of OSHA regulations was only admissible at trial for the limited purpose of demonstrating reasonable care consistent with industry standards with a limiting instruction ... the parties [were] ... prohibited from all other references, testimony or evidence concerning OSHA ...."

¶34. Fairley argues that the court erred in allowing testimony regarding OSHA. "The admission or suppression of evidence is within the discretion of the [circuit court] and will not be reversed absent an abuse of that discretion." Accu-Fab & Const. Inc. v. Ladner , 778 So.2d 766, 771 (¶ 21) (Miss. 2001), overruled on other grounds by Mack Trucks, Inc. v. Tackett , 841 So.2d 1107 (Miss. 2003).

¶35. OSHA regulations are not admissible to show negligence on the part of the defendant. Sumrall v. Miss. Power Co. , 693 So.2d 359, 367 (Miss. 1997). However, Mississippi Rule of Evidence 105 provides that evidence not admissible for one purpose may be admissible for another purpose provided a proper limiting instruction is given. Accu-Fab , 778 So.2d at 771 (¶ 20). In Accu-Fab , the Mississippi Supreme Court held that OSHA regulations were not admissible to show negligence but could "be used as a measure of reasonable care consistent with industry standards." Id. at (¶ 21).

¶36. Here, as in Accu-Fab , the court allowed testimony regarding the OSHA regulations "for the limited purpose of demonstrating reasonable care consistent with industry standards." Moreover, the circuit court gave a limiting instruction that advised the jury that "OSHA standards are not to be considered in determining whether Fairley was negligent" but may be considered "only for the limited purpose of determining what constitutes reasonable care consistent with industry standards." We do not find the circuit court abused its discretion in allowing testimony regarding the OSHA regulations for such limited purposes.

¶37. Fairley further argues the circuit court erred in allowing Savage's expert to testify as to Exhibits 9, 11, and 22. Exhibit 9 is a set of OSHA regulations; Exhibit 11 is a list of OSHA-related incidents nationwide; Exhibit 22 is ANSI-related materials. Prior to trial, the circuit court excluded Exhibits 9, 11, and 22. Specifically, the circuit court found that Savages's expert, Dunaway, could rely on the exhibits and testify regarding OSHA regulations and ANSI standards "to demonstrate what is reasonable care consistent with industry standards, but that said exhibits [c]ould not be admitted into evidence or shown and/or provided to the jury."

¶38. Fairley asserts that despite being marked for identification only, Dunaway was permitted to read from Exhibit 22. However, Fairley failed to object. Indeed, when Dunaway was asked to "tell the jury what [the second sentence of paragraph 7.1 of Exhibit 22] provides," Fairley did not object. Fairley did not object at any point during Dunaway's recitation of the exhibit. In fact, the record shows Fairley objected only twice during Dunaway's entire direct examination, and neither objection involved OSHA and/or ANSI.

¶39. Fairley asserts no objection was necessary due to its previously filed and ruled-upon motion in limine. However, although the circuit court ruled that OSHA regulations and/or ANSI standards were admissible for the limited purpose of demonstrating reasonable care consistent with industry standards, the court clearly excluded the exhibits and advised that the exhibits could not be admitted into evidence or provided to the jury. Thus, when Dunaway was asked to read from the exhibits or to tell the jury what the exhibits provided, Fairley should have objected if it thought that such testimony was improper or inconsistent with the circuit court's pretrial ruling.

¶40. Because Fairley failed to object, it cannot now claim that the circuit court erroneously allowed Dunaway to testify as to the exhibits. See Davis v. Estate of Tiblier , 107 So.3d 181, 184 (¶ 9) (Miss. Ct. App. 2013) (determining that the "failure to object in the trial court waives any objection on appeal"); see also Trustmark Nat. Bank v. Jeff Anderson Reg. Med. Ctr. , 792 So.2d 267, 278 (¶ 32) (Miss. Ct. App. 2000) ("Failure to raise a contemporaneous objection constitutes a waiver of the issue on appeal."). Regardless, we also note that the jury was instructed on the limited purpose for which industry standards such as OSHA may be considered.

III. Jury Instructions

¶41. Fairley next argues that "errors within the jury instructions warrant a new trial." We separately address each jury instruction at issue, but note that our standard of review is the same. "This Court reviews the giving or refusal of jury instructions for an abuse of discretion." Magers v. Diamondhead Resort LLC , 224 So.3d 106, 109 (¶ 6) (Miss. Ct. App. 2016). "When jury instructions are challenged on appeal, we do not review them in isolation: rather, we read them as a whole to determine if the jury was properly instructed." Id. at 110 (¶ 6) (internal quotation marks omitted). "If the jury instructions, read as a whole, fairly announce the law of the case and create no injustice, no reversible error will be found." Id.

A. Jury Instruction D-1

¶42. Fairley argues that the court erred in refusing its peremptory instruction, D-1. As previously discussed, Fairley was not entitled to a directed verdict. Thus, the jury instruction was properly denied.

B. Jury Instructions D-8 and D-11

¶43. Fairley also argues that the court erred in refusing jury instructions D-8 and D-11 since each instruction "is a sound statement of the law." However, simply because it may be a "sound statement of the law" does not require that the instruction be given. D-8 and D-11 both refer to dangers or injuries arising out of or intimately connected with the work performed by Savage. As previously discussed, there was no evidence that the hole or oil pit into which Savage fell arose out of or was intimately connected with his work as a delivery driver. Thus, the circuit court did not err in refusing the instructions.

C. Jury Instruction D-10

¶44. Fairley next argues that the court erred in refusing jury instruction D-10, which instructed the jury that "knowledge by an independent contractor (such as ProBuild) that a condition exists on certain premises is imputed to its employees." Fairley relies on Stephen's testimony that he had a conversation with ProBuild's salesman, David, about the oil pits. The circuit court found this testimony to be "questionable" and refused the instruction. However, the circuit court advised that Fairley could still "argue it." Thus, although the jury was not formally instructed by the court on the issue, Fairley was able to address the issue with the jury. We do not find the circuit court abused its discretion in refusing jury instruction D-10.

D. Jury Instruction D-12

¶45. In jury instruction D-12, Fairley sought to instruct the jury regarding the standards set forth by OSHA. The circuit court gave the instruction in its entirety except for one sentence, which read: "The Court instructs the jury that OSHA standards are not the law." Fairley now claims the circuit court erred in limiting the jury instruction.

¶46. The circuit court's amendment to the instruction was not an abuse of discretion. Pursuant to Accu-Fab , jury instruction D-12 properly advised the jury that it could consider OSHA standards for the limited purpose of determining what constitutes reasonable care consistent with industry standards. Accu-Fab , 778 So.2d at 771 (¶ 21). Accordingly, the instruction was properly given.

E. Jury Instructions P-12, C-6, and C-7

¶47. Fairley last argues that the court erred in giving jury instructions P-12, C-6, and C-7. P-12 instructed the jury as follows:

The defendant had a duty to exercise reasonable care to keep the premises in a reasonably safe and suitable condition and to warn the plaintiff of hidden or concealed danger which Fairley Construction knew or should have known existed. If you find that Fairley Construction failed to warn the plaintiff of a hidden danger which Fairley Construction knew or should have known existed, then you should find in favor of the plaintiff.

Jury instructions C-6 and C-7 further instructed the jury that Fairley had a duty to an independent contractor such as ProBuild and/or Savage to keep the premises in a reasonably safe condition or, if not reasonably safe, to warn ProBuild and/or Savage of dangerous conditions not obvious or apparent to Savage.

¶48. Fairley claims jury instruction P-12 "amounts to a heightened duty on the part of Fairley, e.g. it must warn even if the premises is safe." We disagree.

¶49. When read together with instructions C-6 and C-7, P-12 fairly instructs the jury regarding Fairley's duty. Indeed, the instructions make clear that Fairley had a duty to provide an independent contractor with a reasonably safe work environment or to warn of danger. Ratcliff , 916 So.2d at 549 (¶ 10).

¶50. Fairley further claims the instructions "fail to consider the exceptions applicable to independent contractors." However, other instructions were given which advised the jury of Fairley's defense. Specifically, D-9 instructs the jury that "Fairley does not have a duty to warn of a danger or defect that was known to ... Savage and/or which should have been known to ... Savage if he had been exercising ordinary care." Overall, we do not find the circuit court abused its discretion in giving jury instructions P-12, C-6, and C-7.

IV. Weight of the Evidence

¶51. Fairley last argues the jury verdict "is contrary to the overwhelming weight of the evidence and evinces bias, passion and prejudice on the part of the jury and is an unconscionable injustice." We disagree.

¶52. "The standard of review on a motion for a new trial is abuse of discretion." Johnson, 967 So.2d at 23 (¶ 8). "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 so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id.

¶53. Here, the jury heard from both parties and resolved any conflicts of evidence presented at trial. See id. at (¶ 10) (Any "conflicts of evidence presented at trial are to be resolved by the jury."). "The jury was free to accept or reject any or all of the testimony and evidence presented." Id. at (¶ 11). The jury chose to accept the testimony that supported Savage. We do not find that the overwhelming weight of the evidence is contrary to the jury's verdict. Thus, the circuit court did not abuse its discretion in denying the motion for a new trial.

¶54. AFFIRMED.

BARNES, P.J., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.