author: WILSON, J., FOR THE COURT:

text:
    In the MATTER OF the ESTATE OF Roselle Turner ROGERS, Deceased:
    Frederick M. Rogers, Jr., Appellant v. Walter T. Rogers, Executor, Walter T. Rogers, individually, and William T. Rogers, Appellees
    NO. 2016-CA-00821-COA
    Court of Appeals of Mississippi.
    July 17, 2018
    ATTORNEYS FOR APPELLANT: EDDIE JACOB ABDEEN, LAUREL, SAM STARNES THOMAS, MADISON, BENJAMIN ADAMS DUNCAN
    ATTORNEYS FOR APPELLEES: ROBERT H. COMPTON, GRACE WATTS MITTS, JOHN G. COMPTON, MERIDIAN
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. This appeal follows a jury trial in a will contest. The contestant, Frederick Rogers, alleges that his mother's will was the product of his brother's undue influence. However, the jury found that the will was valid, and the chancellor entered judgment on the verdict. On appeal, Frederick argues (1) that the chancellor should have given a peremptory instruction that there was a presumption of undue influence; and (2) that there is no substantial evidence to support the jury's verdict. However, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Roselle "Boots" Turner Rogers and her husband, Fred, were longtime residents of Meridian. Fred was an attorney and a member of the Mississippi Senate. Fred also raised cattle and had extensive holdings of timberland. Fred and Boots had three sons: Frederick, born in 1946; Walter, born in 1949; and William, born in 1952.

¶ 3. Fred and Boots made wills in 1975. Each left his/her entire estate to the other spouse and to their three sons in equal shares if the other spouse was already deceased. Prior to his death, Fred deeded to his three sons, in equal shares, his one-half interests in 799-acre and 160-acre tracts of timberland in Alabama. He also deeded four tracts in Mississippi to his sons: two 60-acre tracts to Frederick, one 60-acre tract to Walter, and one 60-acre tract to William. The Mississippi tracts were part of a 320-acre tract known as the "Smith-Rhyne Tract." Fred died in June 1996, leaving Boots his entire estate, including 838 acres of timberland in Lauderdale County and a two-thirds interest in a total of 798 acres in Kemper County. Fred's will also provided that Boots could designate assets of a specified value as a life estate in her, which would pass to her sons upon her death. Boots subsequently made such a designation. See infra ¶ 22.

¶ 4. On December 26, 1996, the family established The Fred M. Rogers Family Limited Partnership to hold timberland then owned by Boots. The partnership's primary purpose was as an estate planning device. The partnership agreement named Boots the "General Partner" and "Managing General Partner" and provided that initially she would have a 97% interest in the partnership, consisting of a 1% general partner interest and a 96% limited partner interest. The agreement named Frederick, Walter, and William as "Limited Partners" and "successor Managing General Partners" and granted each of them a 1% limited partner interest. The same day, Frederick's wife and three children, Walter's wife and three children, and William's wife and four children were all added to the partnership as limited partners. Thus, there were a total of sixteen limited partners. Boots also signed a power of attorney designating Frederick, Walter, and William as her attorneys-in-fact. Walter, an attorney, prepared the partnership agreement and the power of attorney. Fred's former accountant, Bob Rea, provided Walter with a template for the partnership agreement.

¶ 5. Boots planned to make lifetime gifts of her partnership interest to reduce the value of her estate and future estate tax liability. Specifically, she planned to make annual gifts of $10,000 of partnership equity to each of the limited partners (i.e., $160,000 total per year). She made gifts to all sixteen limited partners in December 1996 and again in January 1997. Walter and William testified that Bob Rea recommended this estate planning strategy at a 1996 meeting with Boots and all three brothers. However, Frederick denied that he attended such a meeting. He claimed that he first learned about the partnership from Walter.

¶ 6. When the partnership was established, Boots conveyed 200 acres of timberland, known as the "Tom Lyle Tract," to the partnership, and the timber on the tract was sold. Boots used proceeds from timber sales to make $10,000 annual cash gifts to her children and their spouses and children. These gifts, which were in addition to the equity gifts, began in December 1996 and continued each year at Christmas for eleven years.

¶ 7. In July 1997, Boots conveyed her interests in three additional tracts of timberland to the partnership. On the same day, Boots also conveyed the remaining 80 acres of the Smith-Rhyne Trace (see supra ¶ 3) and a separate 88-acre tract to Frederick, Walter, and William as tenants in common. Additional tracts were transferred to or acquired by the partnership in later years. Walter prepared all relevant deeds.

¶ 8. In 1997, Walter called a meeting at his law office to discuss management of the partnership's timberland. Frederick, Walter, and William met with Ricky Goforth, a registered forester who had appraised the timberland included in Fred's estate. According to Frederick, Goforth recommended planting 300 to 350 trees per acre on the partnership's timberland. Frederick testified that he "took exception to" this because Fred had always planted 700 to 750 trees per acre. However, William and Walter agreed with Goforth. Frederick testified, "I kind of took the position, right then, that it was going to be like a two to one vote on anything that happened, and I just kept that to myself and left."

¶ 9. On December 16, 1997, Frederick informed Walter by letter that he "desire[d] to dissolve [his] interest in the partnership by having his future interest bought out." Frederick testified that he sent the letter because he felt that Walter and William would always outvote him, that he would "be wasting [his] time trying to be involved," and that "anything [he] would say would not be taken into consideration." Frederick's letter stated:

Dear Walter:
After careful review and consideration, I would like to opt for an option afforded to me in [the partnership agreement]. I desire to dissolve my interest in the partnership by having my future interest bought out by an agreed upon amount that can be paid either by lump sum, or over a period not to exceed 10 years. I believe my interest, if any, has to be offered to the partnership for purchase before any other action can be taken. I would also like to offer for sale to you, William, the both of you, or the partnership, my full interest in the [two 60-acre tracts that were part of the Smith-Rhyne Tract]. I believe per the partnership agreement, you as the partnership's agent for service of process, are to be notified of a request such as I am making. I also believe per [the partnership agreement] that the offer for sale of the [two 60-acre tracts] must first be made to the partnership, and I am to give the partnership a 60 day period of time in which to act on my request. I am not setting a price for the [two 60-acre tracts], but will leave it up to you to tender me a fair offer based on a per acre cost for 4 year old planted pine plantation land, planted at 750 trees per acre, with an 85% survivability rate. This can be determined by you or a registered forester. This tendered offer will then be considered and accepted, rejected, or negotiated.
As for my future worth in the partnership, if any, at 51 years old I believe my interest can be invested in mutual funds, money market accounts, etc. such as I have done with my Bell South pension, and draw a higher rate of return than new planted pine plantation land or timber which may be growing at a 10% growth rate.

¶ 10. Walter testified that Frederick's letter "shocked" him because their mother wanted to keep the land together in the family. Moreover, as Walter saw it, Frederick was essentially asking their mother to pay him in advance for future gifts and his eventual inheritance. Walter took the letter to Boots, since she was the managing general partner-and the then-owner of the "future interest" that Frederick wanted "bought out."

¶ 11. Walter testified after Boots read the letter, she said that she would "need to change [her] will." Walter told Boots that he could not help her make a new will. Walter said that she could make an appointment with the Wilbourn law firm, since Boots knew Richard Wilbourn. Because Wilbourn was no longer actively practicing law, Walter suggested that she could talk to Wilbourn's law partner, Don Rogers. However, Boots did not tell Walter what she intended to do about her will, and Walter testified that he did not know until sometime later whether she contacted or met with Rogers or executed a new will.

¶ 12. Walter did call Don Rogers "as a courtesy" to tell him that Boots "might call and she might not." Walter and Rogers knew one another professionally, but they were not close friends and did not socialize. Both Walter and Rogers testified that their conversation lasted less than a minute, they did not discuss any matters of substance, and they did not discuss Boots's will again until several years later.

¶ 13. On January 6, 1998, Walter sent a response to Frederick's letter. Walter asked whether Frederick's wife, Barbara, and children also wanted out of the partnership. He also asked whether Frederick wanted to sell his interest in certain other family land. Finally, Walter stated that he could not make an offer on Frederick's part of the Smith-Rhyne Tract because he lacked sufficient information about that land.

¶ 14. On January 22, 1998, Boots made her annual transfers of partnership equity. Because of Frederick's stated desire to dissolve his interest in the partnership, Boots did not transfer equity to Frederick or his family in 1998. Nor did she transfer equity to Frederick or his family in 1999, 2000, or 2001. In those years, she transferred equity only to Walter and William and their families. However, each Christmas, Boots continued to make $10,000 cash gifts from timber proceeds to Frederick, his wife, and each of his children. Frederick and his family received approximately $550,000 in such gifts from 1996 to 2006.

¶ 15. On January 22, 1998, Boots also signed a new power of attorney that designated only Walter and William as her attorneys in fact. She also signed an amendment to the partnership agreement that removed Frederick as a "successor Managing General Partner," leaving Walter and William as the only successors. Walter and William and their wives signed the amendment, and Walter and William signed on behalf of their children. At trial, Walter acknowledged that he did not tell Frederick about the amendment. Walter testified that Boots's signature was the only signature that was necessary because the partnership agreement could be amended with the approval of the general partner(s) and limited partners holding 70% of the limited partnership interests. At that time, Boots was the only general partner and still held over 70% of the limited partnership interests. However, as Frederick pointed out at trial, the amendment did not comply with the partnership agreement's requirement that proposed amendments must be submitted to the limited partners with advance notice and an opportunity to respond.

¶ 16. On February 2, 1998, Frederick responded to Walter's January 6 letter. With respect to his wife and children, Frederick's letter stated only, "I am in discussion with Barbara and the girls as to our interest in the partnership and will inform you of our decision very shortly." However, Frederick did not follow up with Walter. Walter testified that they did not discuss the issue again until 2001. Walter apparently interpreted Frederick's silence to mean that Frederick's family no longer wanted to participate in the partnership. In contrast, Frederick claimed that because Walter did not follow up with him, he assumed that he and his family would continue to participate in the partnership.

¶ 17. In February 1998, Boots contacted Don Rogers's office and made an appointment to discuss a new will. She met with Rogers in his office on February 18, 1998. Rogers testified at trial, and his file was admitted into evidence. Rogers's contemporaneous handwritten notes from the meeting reflect that Boots began by telling him that "Frederick want[ed] out of the partnership." Rogers testified that he talked with Boots for about an hour. They discussed her assets, the family partnership, her children and grandchildren, and what she wanted in her will. With Boots's consent, Rogers then recorded part of their meeting to show what they had discussed and that Boots "knew what [she] was doing." Rogers kept the recording in his file, and it was admitted without objection at trial.

¶ 18. During the recorded portion of the meeting, Boots stated that she drove herself to Rogers's office, that she had no difficulties driving, and that she came to the meeting alone. Boots discussed Fred's death and identified all of her children and grandchildren. She then discussed, in general terms, the family's timberland and the purpose and operation of the family partnership. She stated that upon her death, she wanted her remaining interest in the partnership, if any, to pass to Walter and William. She explained that Frederick "wanted to get out of [the partnership]" and "would've already gotten his." Boots then discussed a number of specific bequests of personal property to children and grandchildren. Near the end of the recording, Boots stated that it was "only fair" that Frederick not receive any additional interest in the partnership because he wanted out and, therefore, "the burden" of maintaining the land and partnership would fall on Walter and William. Finally, Boots confirmed that she wanted a new will and that no one was "making [her] do this."

¶ 19. At the end of their first meeting, Rogers asked Boots to take some additional time to think about what she wanted and then write him a letter stating specifically what she wanted in her will. He told her that the letter should not be typed but should be in her own handwriting. Boots wrote several drafts of the letter, which were found after her death and admitted into evidence without objection. On March 24, 1998, she sent Rogers a handwritten letter stating what she wanted in her will. The letter was admitted into evidence without objection, and there is no dispute as to its authenticity. Boots's letter stated in part:

Since [Frederick] does not want to be a part of the partnership, this will leave William and Walter the jobs to do in taking care of the land. More than this, we will have to pay forestry management, keep up land lines, fight bugs, and although I hope not, we may have to fight fires as their father did before them. Since they have their own jobs in earning their livelihoods, this will be an imposition on them, so I am considering this in my will. Thus, I wish to leave the partnership land to [William and Walter] and their heirs.

¶ 20. After Rogers received Boots's letter, the two spoke briefly by telephone, Rogers drafted a new will based on her letter, and they met again in Rogers's office on March 27, 1998. On that date, Boots executed her new will with Rogers, his administrative assistant, and Richard Wilbourn as subscribing witnesses. The three-page will first makes specific bequests of personal property to all three sons and to grandchildren. Next, the will leaves all of Boots's interest in the partnership and all of her real property to Walter and William in equal shares. The will explains: "Frederick ... has expressed an interest in not owning real property in our family partnership or otherwise. Therefore, I am making gifts of other types of property to him and to his family during my lifetime, and I am not including him in this partnership and real property bequest." Finally, the will leaves the residuary of the estate to all three of her sons in equal shares. The will names Walter as the executor and William as the alternate executor.

¶ 21. With Boots's consent, Rogers also recorded part of their March 27 meeting, and the recording was admitted into evidence without objection. During the recorded portion of the meeting, Boots stated that the will reflected her wishes, including her desire to leave her partnership interest to Walter and William. She stated that she was not leaving Frederick an interest in the partnership because he wanted out of it. Boots stated that she again drove herself to the meeting and came alone. Indeed, she stated, "Nobody [else] knows about [the meeting]." Rogers asked whether "Walter or William [was] making [her] do this," and Boots answered, "Oh, heavens, no." There is no dispute that Boots was of sound and disposing mind when she executed her will. At trial, without objection, the chancellor gave the jury a peremptory instruction that Boots possessed testamentary capacity.

¶ 22. On February 11, 1999, Boots signed a designation of the assets to be included in her life estate pursuant to Fred's will. See supra ¶ 3. The document was filed later in Fred's estate proceeding. Boots designated an investment account with a balance of $178,500 as payable on death to Frederick. She designated $178,500 in partnership equity as payable on death to Walter and $178,500 in partnership equity as payable on death to William. When Boots died in 2013, the investment account passed to Frederick with a balance of approximately $174,000. Walter testified that the designations for him and William were essentially moot by the time Boots died because, as explained below, she distributed virtually all of her partnership equity during her lifetime. Thus, those two designations resulted in only a minor "bookkeeping entry" in the partnership's records.

¶ 23. Walter testified that around April 2001, Frederick called him to ask why Boots had stopped making annual transfers of partnership equity to his wife and children. According to Walter, Frederick said, "I understand why Mama did what she did with me, but what about Barbara and the children?" Walter testified that he reminded Frederick that he did not answer Walter's prior inquiry about whether Barbara and the children wanted to remain in the partnership. See supra ¶ 16. Walter testified that Frederick then stated that his wife and the children did want to continue to participate. Therefore, annual equity transfers to Frederick's wife and children-but not Frederick-resumed in January 2002 and continued through 2008. Frederick and his family received K-1 statements reflecting their partnership interests each year, which would have shown that Barbara's and the children's partnership interests were increasing while Frederick's was not.

¶ 24. In September 2006, Boots assigned half of her 1% general partner interest to Walter and William-0.25% to each of them. At trial, Walter acknowledged that the transfer did not comply with a provision of the partnership agreement that required all partners' approval of any transfer of a general partner interest.

¶ 25. In January 2009, Bob Rea informed Walter that Boots had only a small amount of equity remaining in the partnership-an amount insufficient to make her normal annual transfers. In other words, the partnership had accomplished its estate planning purpose. Accordingly, no equity transfers were made in 2009 or thereafter.

¶ 26. At trial, Frederick claimed that he "first came to believe things [with the partnership] were amiss" in March 2009. He claimed that Bob Rea accidentally mailed him all partners' K-1 statements, rather than just his family's statements. Frederick testified that when he compared the statements, he realized-for the first time-that he and his family had much smaller interests in the partnership than Walter and William and their families.

¶ 27. In November 2009, Frederick wrote to Walter to ask why his family had been omitted from partnership equity transfers from 1998 through 2001. In a response letter, Walter reminded Frederick that no equity was transferred to Frederick's family members in those years because Frederick never stated whether they wanted to continue to participate in the partnership. See supra ¶¶ 16, 23. Walter's letter stated that the transfers resumed once Frederick "called and [stated that his] family would remain in the partnership." Walter's letter further noted that he and Frederick had discussed this issue previously.

¶ 28. On December 31, 2009, Frederick asked Boots to sign an amendment to the family partnership agreement that purported to (1) reinstate him as a "successor Managing General Partner" and (2) prohibit "distributions" until he and his family were "brought current" and received all "distributions" to which they were "entitled." Boots signed the amendment. Frederick and his wife and children also signed. On January 7, 2010, Frederick sent Walter a copy of the amendment and requested a meeting.

¶ 29. Boots was ninety years old when she signed the amendment. Frederick claimed that she was competent. According to Frederick, Boots stated that she wanted the partnership to be "straightened out." However, Walter testified that by 2009, Boots was "suffering from ... a loss of memory and ... would not have remembered what she had done in the past." She was also taking ten prescription medications, including painkillers. Walter wrote to Frederick that he was disappointed that Frederick had "taken advantage" of Boots's diminished condition. Walter's letter also stated that the purported amendment was ineffective because Boots had distributed virtually all of her partnership equity to her children and grandchildren. Therefore, the signatories' combined partnership interests were insufficient to approve the amendment.

¶ 30. In 2011, Frederick and his family sued Walter and William in the Lauderdale County Chancery Court. The complaint alleged, among other things, that Walter and William breached the family partnership agreement, breached their fiduciary duty to Frederick's family, and committed fraud. That case remains pending in the chancery court.

¶ 31. Boots passed away on January 5, 2013. As of 2013, Ricky Goforth estimated the total value of the partnership's land and timber to be $2,370,419. K-1 statements issued after Boots's death show the partnership interests as follows:

Walter 9.01% Walter's wife, Ellen 8.17% Walter's daughter, Rosemary 7.22% Walter's son, Walter Jr. 7.07% Walter's son, Lee 7.31% Walter's family - TOTAL 38.78% William 2.48% William's wife, Mary 8.17% William's daughter, Amanda 7.94% William's son, Daniel 7.59% William's daughter, Caitlin 7.09% William's son, Wade 8.17% William's family - TOTAL 41.44% Frederick 0.13% Frederick's wife, Barbara 4.86% Frederick's daughter, Ann 4.86% Frederick's daughter, Kristin 4.86% Frederick's daughter, Kimberly 4.86% Frederick's family - TOTAL 19.57%

William's interest was reduced because he had elected to withdraw cash from his partnership account from time to time. As discussed above, Frederick's wife and children have smaller interests because Boots did not transfer equity to them from 1998 to 2001. The reasons for the minor differences in the other grandchildren's interests are not explained.

¶ 32. At the time of her death, Boots also owned two-thirds interests in Gully Place and Whitsett Field. See supra n.1. As noted above, Frederick had traded his interest in those properties to Walter and William in exchange for their interest in other family land. Under Boots's will, her interest in Gully Place and Whitsett Field pass to Walter and William in equal shares, which would give each of them a half interest in the properties.

¶ 33. Walter filed a complaint to probate Boots's will in the Lauderdale County Chancery Court, and the court admitted the will to probate and issued letters testamentary to Walter as the executor. Frederick filed a complaint to contest the will, alleging that it was the product of Walter's undue influence. Frederick's complaint sought to set aside the will, to remove Walter as executor, and other relief. Frederick also filed a motion to consolidate the will contest with his pending lawsuit related to the partnership; however, the chancery court consolidated the cases for discovery purposes only, and the first case remains pending.

¶ 34. The will contest proceeded to a jury trial on April 4-8, 2016, and the jury returned a unanimous general verdict for Walter and William, as the proponents of the will. The court entered judgment on the verdict, declaring the will valid. Frederick filed a motion for judgment notwithstanding the verdict (JNOV) or a new trial, which the chancellor denied, and a timely notice of appeal.

ANALYSIS

¶ 35. Frederick lists ten issues on appeal, but the issues may be combined and restated fairly as just two: First, Frederick argues that on the facts of this case a presumption of undue influence arose as a matter of law. Therefore, Frederick argues that the trial judge should have given a peremptory instruction that the presumption applied and that Walter and William bore the burden of rebutting the presumption by clear and convincing evidence. Second, Frederick argues that he was entitled to JNOV because there is no substantial evidence to support the jury's verdict. We address these arguments in turn.

¶ 36. We review de novo the trial judge's denial of a peremptory instruction on the presumption of undue influence. See Martin ex rel. Heirs of Martin v. B & B Concrete Co. , 71 So.3d 611, 614 (¶ 7) (Miss. Ct. App. 2011) ("Our review of a trial court's refusal of peremptory instructions is de novo."). We also review de novo the denial of a motion for JNOV. See Estate of Gardner v. Gardner , 228 So.3d 921, 926 (¶ 19) (Miss. Ct. App. 2017), cert. denied , 223 So.3d 787 (Miss. 2017). "We consider the evidence in the light most favorable to the non-movant, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence." Id. (internal quotation mark and alteration omitted). "If the facts so considered point so overwhelmingly in favor of the movant that reasonable jurors could not have arrived at a contrary verdict, then the movant is entitled to JNOV." Id. (internal quotation mark and alteration omitted). "However, if there is substantial evidence" to support the verdict-i.e., "evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions"-the motion for JNOV must be denied. Id.

¶ 37. The basic legal principles applicable to will contests and claims of undue influence are well-settled. "The proponent of a contested will bears the burden of proving its validity in all respects." In re Estate of Pigg , 877 So.2d 406, 409 (¶ 8) (Miss. Ct. App. 2003). "A prima facie case of validity is made when the will and its record of probate are admitted into evidence." Id. "The contestants then bear the burden of going forward with evidence to challenge the will's validity." Id.

¶ 38. A will that is the product of undue influence will be declared invalid. In re Estate of Thornton , 922 So.2d 850, 852 (¶ 7) (Miss. Ct. App. 2006). "A will is said to be the product of undue influence when an adviser has been so importunate as to subdue the testator's will and free agency." Estate of Pigg , 877 So.2d at 411 (¶ 24). "Such may be accomplished through a variety of methods, such as advice, arguments, or persuasion." Id. "However, not all influence exerted is undue. The influence must have been so overwhelming that the resulting instrument reflected the will of the adviser rather than the testator." Id. Under the traditional undue influence doctrine, the contestant bears the burden of producing "some evidence" of undue influence. Id. at 411 (¶ 26). But the ultimate burden of persuasion never shifts. The proponent must prove, by a mere preponderance of the evidence, that the will is valid-i.e., "the product of the [testator's] free will." Id. at 412-13 (¶¶ 32-34).

¶ 39. However, if there is a confidential relationship between testator and beneficiary, a presumption of undue influence may arise. See Costello v. Hall , 506 So.2d 293, 298 (Miss. 1987). In a will contest, a confidential relationship alone does not give rise to the presumption. Rather, "there must also be an abuse of that relationship relating to the execution of the will." Id. Thus, "where a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it , the law raises a presumption that the beneficiary has exercised undue influence over the testator, and casts upon the beneficiary the burden of disproving undue influence by clear and convincing evidence." Croft v. Alder , 237 Miss. 713, 722-23, 115 So.2d 683, 686 (1959) (emphasis added). The Supreme Court has also stated that the presumption of undue influence arises if the contestant proves "a confidential relationship and suspicious circumstances in the execution of a [w ]ill ." Davion v. Williams , 352 So.2d 804, 805 (Miss. 1977) (emphasis added).

¶ 40. Thus, if the contestant proves both (a) a confidential relationship and (b) the beneficiary's active involvement in the preparation or execution of the will or other "suspicious circumstances" in the execution of the will, the presumption of undue influence arises. See Robert A. Weems, Wills and Administration of Estates in Mississippi § 8:18 (3d ed. 2003). "The burden is then upon the proponent to overcome the presumption by clear and convincing proof of good faith on the part of the beneficiary, [the] testator's full knowledge and deliberation of his or her actions and their consequences, and [the] testator's exhibition of independent consent and action." Id. "Factors to be considered in determining whether the beneficiary exhibited good faith are: (1) who sought the preparation of the will; (2) where the will was executed and who was present; (3) the attorney's fee and who paid it; and (4) the secrecy or openness of the execution of the will." Id. Factors that may be relevant to the testator's "knowledge and deliberation" include the testator's (1) awareness of her assets and their general value; (2) understanding of her heirs at law and/or under a prior will; (3) understanding of the legal effect of the contested will; (4) knowledge that non-relative beneficiaries would be included or excluded; and (5) dependence on others in the handling of her finances. In re Last Will & Testament & Estate of Smith , 722 So.2d 606, 612 (¶ 22) (Miss. 1998). "[T]here is no express list of factors regarding the testator's 'independent consent and action.' " Weems, supra , § 8:18. Rather, the fact-finder should consider the totality of the relevant circumstances. Id. Finally, we note that good faith, knowledge and deliberation, and independent consent and action "are not independent requirements to be rigidly exacted in every case, but rather are indicia of the real question: whether the will was the product of undue influence." Id.

¶ 41. With these principles in mind, we first address Frederick's contention that the chancellor should have given a peremptory instruction that there was a presumption of undue influence. The chancellor did instruct the jury, as a matter of law, that there was a confidential relationship between Walter and Boots when the will was executed. However, the chancellor declined to instruct the jury that the presumption of undue influence arose as a matter of law. Rather, the chancellor instructed the jury that the presumption would arise if the jury found an abuse of the confidential relationship in the form of Walter's involvement in the preparation or execution of the will or other suspicious circumstances. The court's instruction correctly stated the applicable legal principles, and there was no objection to any of its specific language. Frederick argues only that a peremptory instruction should have been given on this issue. We disagree.

¶ 42. In some cases, it will be appropriate for the trial judge to decide this issue as a matter of law and instruct the jury that "the evidence creates a presumption of undue influence." In re Estate of Vick , 557 So.2d 760, 770 (Miss. 1989). However, whether the facts give rise to the presumption "may ... be a jury question as well." Id. "If the facts are in dispute, ... a two-pronged inquiry" should be submitted to the jury: "has there been sufficient evidence adduced to create the presumption, and if so, has there been sufficient evidence adduced to dissipate it." Id.

¶ 43. In this case, the facts surrounding the circumstances of the will's preparation and execution were, at the very least, "in dispute." Walter denied that he was "actively concerned in some way with the preparation or execution of [Boots's will]." Croft , 237 Miss. at 722-23, 115 So.2d at 686. In addition, the recordings of Boots's meetings with Don Rogers, the testimony of Rogers, and other evidence corroborated Walter's testimony. Walter appropriately told Boots that he could not be involved in the preparation of a new will, and he simply suggested another lawyer in town that she might call on for advice. As recordings of their meetings make clear, Boots contacted Rogers on her own and went to his office alone. Indeed, Boots told Rogers that no one else even knew about their meeting. As a "courtesy," Walter told Rogers that Boots might call him; however, they did not discuss Boots's will, and Walter only later learned that Boots had met with Rogers and made a new will. Without more, Walter's simple act of recommending an attorney is not the sort of active involvement in the preparation of a will that will raise a presumption of influence. At most, this was an issue for the jury-not an issue that could be decided against the proponents as a matter of law .

¶ 44. Nor can we say, as a matter of law , that this case involved any other "suspicious circumstances in the execution of [the will]." Davion , 352 So.2d at 805 ; see Weems, supra , § 8:18 (noting that the term "suspicious circumstances" is "obviously vague" if applied to conduct other than a beneficiary's "activity in preparing or executing the will"). When Walter received Frederick's letter requesting a buyout of his "future interest" in the partnership, he took the letter to Boots. Walter felt that it was appropriate and necessary to do so because Boots was the partnership's managing general partner. Indeed, Frederick testified at trial that he expected Walter to give the letter to Boots, and Frederick agreed that it was natural and logical for Walter to have done so. Walter also testified that Boots decided on her own what to do in response to the letter. When Boots said that she would need to change her will, Walter told her that he could not be involved and suggested that she call another attorney. The recordings of Boots's meetings with Don Rogers, Boots's handwritten letter and drafts, and Rogers's testimony all provide corroboration of Boots's reasons for wanting to change her will, her independence, and her deliberation. Frederick was not entitled to a peremptory instruction based on alleged "suspicious circumstances."

¶ 45. We now address Frederick's further contention that he was entitled to JNOV because there was insufficient evidence to support the jury's verdict. "We consider the evidence in the light most favorable to [Walter and William], giving [them] the benefit of all favorable inferences that may be reasonably drawn from the evidence." Estate of Gardner , 228 So.3d at 926 (¶ 19) (internal quotation mark and alteration omitted). If there is "substantial evidence" to support the verdict, we will affirm the judgment entered on the verdict. Id.

¶ 46. For the reasons discussed just above, the evidence at trial permitted the jury to find that Walter was not actively involved in the will's preparation or execution; that there were no other suspicious circumstances in the will's execution; and, therefore, that the evidence did not raise a presumption of undue influence. In the absence of such a presumption, Walter and William were required to prove by only a "preponderance of the evidence" that "the will was the product of [their mother's] free will." Estate of Pigg , 877 So.2d at 413 (¶ 33). Based on the evidence presented at trial, the jury certainly could have so found. As discussed above, there is substantial evidence to support the verdict, including Boots's own statements in her recorded meetings with Don Rogers, her handwritten letter and prior drafts, Walter's testimony, and Don Rogers's testimony. Because there is substantial evidence to support the jury's general verdict for the proponents, we affirm the chancellor's denial of Frederick's motion for JNOV. Estate of Gardner , 228 So.3d at 926 (¶ 19).

CONCLUSION

¶ 47. The chancellor properly instructed the jury on the law of undue influence, and there is substantial evidence to support the jury's general verdict in favor of the proponents of the will, Walter and William. Therefore, the judgment is AFFIRMED .

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. GRIFFIS, P.J., NOT PARTICIPATING.

      Walter testified that Frederick later wanted to sell the 799-acre tract, but Walter and William did not want to sell it. Walter and William eventually agreed to trade their interests in the 799-acre tract to Frederick in exchange for his interests in other family lands, known as "Gully Place" and "Whitsett Field." Frederick "immediately sold [their combined interests in the 799-acre tract] and made $400,000."

      Walter has been a practicing attorney in Meridian since 1974. Frederick also lives in Meridian, and at the time of trial he was the Vice President, Chief Resource Officer, and Facility Manager for Rush Health Systems. William retired from BellSouth in 2002. He resides in Brandon, but he frequently stays on family property in Lauderdale County.

      Rogers is not related to any of the parties.

      Walter and Rogers acknowledged at trial that Rogers later represented Walter and William in a related lawsuit filed by Frederick.

      Walter initially sought to probate the will along with a codicil that Boots signed in 2007. The codicil, which Boots signed on Walter's recommendation, added an in terrorem (or forfeiture) clause to the will. In 2015, the Mississippi Supreme Court held, as a matter of first impression in this State, that such clauses are unenforceable as to any beneficiary who contests a will in good faith and based on probable cause. See Parker v. Benoist , 160 So.3d 198, 203-06 (¶¶ 9-15) (Miss. 2015). After the Parker decision, Walter confessed that the codicil to Boots's will probably was unenforceable, and he filed a motion to withdraw probate of the codicil. At trial, Walter confessed that the codicil was invalid, and the court instructed the jury that it was invalid and had no effect on Boots's will.

      The relationship was deemed confidential because Walter had acted as Boots's attorney in the past by drafting deeds and other documents for her. In addition, Boots's power of attorney designated Walter as her attorney in fact. As this Court has observed, the relationship between a parent and an adult child is not always, or even typically, "confidential." "[I]n the absence of evidence to the contrary, the parent is presumably the dominant party. This is true even though the parent is aged, or aged and infirm." Noblin v. Burgess , 54 So.3d 282, 296 (¶ 52) (Miss. Ct. App. 2010) (quoting In re Estate of Summerlin v. Summerlin , 989 So.2d 466, 477 (¶ 37) (Miss. Ct. App. 2008) ).

      Stated differently, the law did not require Walter to tell his mother to pick a lawyer out of the phonebook.

      Frederick briefly asserts that the verdict cannot be sustained based solely on the testimony of Walter and Don Rogers because neither was a "disinterested party." See, e.g. , Pallatin v. Jones (In re Will of Fankboner) , 638 So.2d 493, 495 (Miss. 1994). As noted above, Rogers and Walter both testified they knew one another professionally but were not close or social friends when Rogers drafted the contested will; however, they also acknowledged that Rogers later represented Walter and William in Frederick's first lawsuit against them. Yet, even if we assume that Rogers was not a "disinterested party," Boots's own recorded and handwritten statements provided compelling evidence of the will's validity.

      Even if the jury found that the presumption arose, there was substantial evidence from which the jury could have also found that Walter and William successfully rebutted the presumption by evidence of their own good faith and Boots's full knowledge, deliberation, and independent consent and action. See supra ¶ 40. However, it is unnecessary for us to address that issue in detail, as there is substantial evidence to sustain the jury's general verdict on the ground discussed in the text. Cf. Estate of Lawler v. Weston , 451 So.2d 739, 740 (Miss. 1984) (holding that a general verdict in favor of the contestants will be upheld if there is sufficient evidence to sustain the verdict on either of two possible grounds).


source: Caselaw Access Project

license: Public Domain

text:
    Patrick Dantre FLUKER a/k/a Patrick D. Fluker a/k/a Patrick Fluker, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00734-COA
    Court of Appeals of Mississippi.
    July 17, 2018 Rehearing Denied October 2, 2018
    ATTORNEY FOR APPELLANT: PATRICK DANTRE FLUKER (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS
    BEFORE IRVING, P.J., CARLTON AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. In 2007, Patrick Fluker pled guilty to armed robbery. The circuit court sentenced him to twenty years in the custody of the Mississippi Department of Corrections, with five years suspended and fifteen years to serve, and ordered the sentence to run consecutively to a sentence that Fluker was serving on a 2003 armed robbery conviction. Fluker has since filed at least four motions for post-conviction relief (PCR) related to his 2007 conviction. All of his motions have been denied, and the denials have been affirmed when appealed. See Fluker v. State , 17 So.3d 181 (Miss. Ct. App. 2009) ; Fluker v. State , 191 So.3d 127 (Miss. Ct. App. 2016), cert. denied , 203 So.3d 600 (Miss. 2016) ; see also Fluker v. State , 200 So.3d 1148 (Miss. Ct. App. 2016) (affirming the dismissal of Fluker's complaint seeking parole eligibility on his 2007 conviction), cert. denied , 214 So.3d 1058 (Miss. 2017) ; Fluker v. State , 2 So.3d 717 (Miss. Ct. App. 2008) (affirming the denial of PCR on Fluker's 2003 conviction); Fluker v. State , 170 So.3d 517 (Miss. Ct. App. 2014) (same), aff'd , 170 So.3d 471 (Miss. 2015) (same); Fluker v. State , 210 So.3d 1062 (Miss. Ct. App. 2015) (same), cert. denied , 202 So.3d 209 (Miss. 2016). In the PCR motion that is the subject of this appeal, Fluker alleges that (1) he was denied a speedy trial; (2) his plea was involuntary; (3) he was denied the effective assistance of counsel; and (4) the circuit court lacked "subject matter jurisdiction" because "the State repealed its boundaries." He also alleges that his motion is not subject to the procedural bars of the Uniform Post-Conviction Collateral Relief Act (UPCCRA) because his claims involve "fundamental constitutional rights." The circuit court denied Fluker's motion as procedurally barred. Fluker then appealed.

¶ 2. We affirm. This is at least the fourth PCR motion that Fluker has filed related to his 2007 conviction. The UPCCRA bars such successive motions. Miss. Code Ann. § 99-39-23(6) (Rev. 2015) (providing that an order denying a PCR motion "shall be conclusive until reversed" and "shall be a bar to a second or successive [PCR] motion"). In addition, Fluker filed the motion ten years after he pled guilty. Therefore, the motion is also untimely. Miss. Code Ann. § 99-39-5(2) (Rev. 2015) (providing that a PCR motion must be filed within three years after a judgment of conviction entered on a guilty plea). None of the issues raised in Fluker's motion involve "fundamental rights" that are excepted from the UPCCRA's procedural bars. See Green v. State , 235 So.3d 1438, 1440 (¶ 9) (Miss. Ct. App. 2018) (listing "fundamental rights" that are excepted from the Act's procedural bars). A petitioner cannot avoid the Act's procedural bars simply by asserting that "fundamental rights" are at stake when, as in this case, there is no evidence to support such a claim. We made the same point when we affirmed the denial of one of Fluker's prior PCR motions two years ago. Fluker , 191 So.3d at 129 (¶ 6). For these reasons, we affirm the circuit court's order denying Fluker's PCR motion.

¶ 3. We also conclude that Fluker's motion and appeal are frivolous because his claims had no hope of success and no basis in fact or law. See Dock v. State , 802 So.2d 1051, 1056 (¶ 11) (Miss. 2001). Clearly, Fluker's motion is procedurally barred, and he fails to identify any arguable exception to the procedural bars. Moreover, Fluker unsuccessfully litigated claims alleging an involuntary plea and ineffective assistance in at least one prior PCR motion. See Fluker , 17 So.3d at 182 (¶ 2). Finally, our Supreme Court has long held that a defendant waives his right to a speedy trial by pleading guilty. Anderson v. State , 577 So.2d 390, 391-92 (Miss. 1991). Because his motion and appeal are frivolous, Fluker shall forfeit earned time pursuant to Mississippi Code Annotated section 47-5-138(3) (Rev. 2015). See Dock , 802 So.2d at 1056 (¶ 11) (" Sections 47-5-138(3)(a) and (b) are fully applicable against pro se litigants who seek post-conviction relief."); McLamb v. State , 974 So.2d 935, 939 (¶ 17) (Miss. Ct. App. 2008) ("The circuit court did not sanction [the petitioner] pursuant to section 47-5-138(3), but the statute does not limit such a finding to the trial court."). This opinion shall be sent to the Department of Corrections, and the Department shall forfeit earned time as provided in section 47-5-138(b).

¶ 4. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      This Court has held "that Mississippi still possesse[d] sovereign state power" and that our courts still had jurisdiction notwithstanding the boundary repeal that Fluker alleges. Carlock v. Carlock , 743 So.2d 424, 425 (¶¶ 3-5) (Miss. Ct. App. 1999). Congress has the unquestioned power to set state boundaries, which remained in effect at all times. See United States v. Louisiana , 363 U.S. 1, 35, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960).

      This action is also deemed frivolous for purposes of Mississippi Code Annotated section 47-5-76 (Rev. 2015), which governs in forma pauperis filings by inmates.


text:
    Charles DYE a/k/a Charles Edward Dye, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00799-COA
    Court of Appeals of Mississippi.
    July 17, 2018
    ATTORNEY FOR APPELLANT: CHARLES DYE (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, JACKSON
    BEFORE IRVING, P.J., CARLTON AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. A Forrest County grand jury indicted Charles Dye for sexual battery under Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2006). The indictment alleged that

in Forrest County, between on or about May 1, 2013, and August 11, 2013, [Dye] did willfully, purposely, unlawfully, and feloniously commit Sexual Battery upon [H.B.], a child who was at the time in question under the age of 14 years, and [Dye] was at the time 24 months older than [H.B.], by engaging in the act of sexual penetration, to wit vaginal sexual intercourse ....

Dye later pled guilty, and the circuit court accepted his plea and sentenced him to serve thirty years in the custody of the Department of Corrections, with fifteen years suspended, fifteen years to serve, and five years of post-release supervision.

¶ 2. Four months after he pled guilty, Dye filed a motion for post-conviction relief (PCR). His motion asserted one claim: that his indictment was "fatally defective for failing to charge and contain all the essential elements of sexual battery pursuant to [ section] 97-3-95(1)(d)." Specifically, Dye claimed that the indictment was defective because it did not allege the victim's specific age or birth date or Dye's specific age or birth date. The circuit court summarily dismissed Dye's motion as without merit. Dye then appealed.

¶ 3. "The rule in this state is that an indictment which states the statutory language is generally sufficient to inform the accused of the charge against him." State v. Hawkins , 145 So.3d 636, 639-40 (¶ 8) (Miss. 2014) (quoting King v. State , 580 So.2d 1182, 1185 (Miss. 1991) ). "The [Supreme] Court has held repeatedly that, so long as a fair reading of the indictment, taken as a whole, clearly describes the nature and cause of the charge against the accused, the indictment is legally sufficient." Id. at 640 (¶ 9) (quotation marks, alterations omitted). Here, Dye's indictment specifically cited the statute under which he was indicted, Mississippi Code Annotated § 97-3-95(1)(d), and tracked the language of the statute. Consistent with the statute, the indictment alleged that the victim was under the age of fourteen and that Dye was at least twenty-four months older than her at the time of the offense. There is no requirement that an indictment provide the victim's or defendant's exact age or birth date. Dye's indictment sufficiently informed him of the nature of the charge, and the circuit court correctly dismissed his PCR motion as without merit.

¶ 4. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Dye was twenty-five years old at the time of the offense.


text:
    Bruce PATTERSON, Appellant v. MI TORO MEXICAN, INC., Appellee
    NO. 2017-CA-01113-COA
    Court of Appeals of Mississippi.
    July 17, 2018
    ATTORNEY FOR APPELLANT: BRIAN L. STARLING, Tupelo
    ATTORNEY FOR APPELLEE: MARC A. SORIN
    BEFORE IRVING, P.J., CARLTON AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. On a rainy day in Corinth, Bruce Patterson slipped and fell on a wheelchair ramp as he left Mi Toro, a Mexican restaurant, carrying takeout. Patterson later sued Mi Toro, but the circuit court granted summary judgment in favor of Mi Toro after concluding that there were no genuine issues of material fact and that the wheelchair ramp was not a "dangerous condition." We agree with the circuit court and therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Around lunchtime on November 5, 2014, Patterson went to Mi Toro for takeout. He went inside the restaurant while his then-fiancée stayed in the car. It was raining at the time, and the parking lot was wet. Patterson picked up his order and left the restaurant. In his deposition, Patterson testified that he slipped and fell on a short wheelchair ramp that connects the parking lot to the sidewalk near the door to the restaurant. The ramp was painted yellow, and Patterson claims that the paint was "slick" because it was wet from the rain and there was no "gravel" or "sand" in the paint. Patterson had used the same door when he entered and exited Mi Toro on about ten prior occasions, and he had never slipped on the ramp or noticed that it was slick. Patterson claims that the ramp appeared "freshly painted" on the day he fell.

¶ 3. Patterson told Mi Toro employees that he did not need an ambulance. He drove himself to the hospital because his back, knee, and side hurt, but he left the hospital later that day. In January 2016, he sued Mi Toro in circuit court, alleging that he suffered injuries because Mi Toro failed to keep its property in a safe condition.

¶ 4. Mi Toro's manager, Salvador Garcia, testified in his deposition that the ramp was not freshly painted and had not been painted since around 2012. Garcia, who had worked at Mi Toro for twenty years, also testified that he was not aware of any other customer who had ever slipped and fallen on the ramp.

¶ 5. After the parties engaged in discovery, Mi Toro moved for summary judgment on the ground that there was no evidence of a dangerous condition on the premises at the time and place of Patterson's fall. The circuit court agreed there was no genuine issue of material fact and granted Mi Toro's motion for summary judgment. Patterson appealed.

ANALYSIS

¶ 6. "We review the grant or denial of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the [non-moving] party ...." Karpinsky v. Am. Nat'l Ins. , 109 So.3d 84, 88 (¶ 9) (Miss. 2013) (internal quotation mark omitted). Summary judgment "shall be rendered" if the record evidence shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). Thus, "summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Karpinsky , 109 So.3d at 89 (¶ 11) (internal quotation mark omitted). Furthermore, the non-moving "party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or [deposition testimony, answers to interrogatories, or admissions], must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56(e).

¶ 7. There is no dispute in this case that Patterson was a business invitee of Mi Toro. Under Mississippi law, a business "owes a duty to an invitee to exercise reasonable care to keep the premises in a reasonably safe condition ...." Jerry Lee's Grocery Inc. v. Thompson , 528 So.2d 293, 295 (Miss. 1988). However, "the store owner is not an insurer of business invitees' injuries," and "mere proof that the invitee fell and was injured while on the premises is insufficient to establish liability." Jones v. Wal-Mart Stores E. LP , 187 So.3d 1100, 1104 (¶ 12) (Miss. Ct. App. 2016). Rather, a business has certain duties to protect customers from "dangerous conditions" of which the business has actual or constructive knowledge:

[I]f the operator is aware of a dangerous condition, which is not readily apparent to the invitee, he is under a duty to warn the invitee of such condition.... When a dangerous condition on the premises is caused by the operator's own negligence, no knowledge of its existence need be shown. When a dangerous condition on the premises ... is caused by a third person unconnected with the store operation, the burden is upon the plaintiff to show that the operator had actual or constructive knowledge of its presence.

Jerry Lee's Grocery , 528 So.2d at 295 (citations omitted). As the foregoing discussion indicates, "regardless of the invitee's precise theory of premises liability, proof that her injury was caused by a 'dangerous condition' is an essential element of her claim." Jones , 187 So.3d at 1104 (¶ 12). "[A] property owner cannot be found liable for the plaintiff's injury where no dangerous condition exists." Stanley v. Boyd Tunica Inc. , 29 So.3d 95, 97-98 (¶ 10) (Miss. Ct. App. 2010) (internal quotation mark omitted). "In every premises-liability case, the plaintiff must show that a dangerous condition exists. " McCullar v. Boyd Tunica Inc. , 50 So.3d 1009, 1012 (¶ 13) (Miss. Ct. App. 2010) (emphasis added); see also Adcock v. Wal-Mart Stores E. LP , No. 3:10-cv-313-DPJ-FKB, 2011 WL 3047623, at *3 (S.D. Miss. July 25, 2011) ("It is axiomatic that no liability attaches absent a dangerous condition." (collecting cases) ).

¶ 8. We agree with the circuit court that Patterson failed to create a genuine issue of material fact on this essential element of his claim. To begin with, an ordinary wheelchair ramp is an accommodation required by federal law, not a "dangerous condition." Cf. King v. King , 229 So.3d 197, 201 (¶ 13) (Miss. Ct. App. 2017) (holding that an ordinary tractor is not a dangerous condition). Nor is there evidence that this particular ramp was unusual or dangerous. There is no evidence, for example, that the ramp was defectively designed or in disrepair. Patterson asserted that the ramp was "slick," he opined that sand or gravel should have been added to its yellow paint, and he speculated that it was "freshly painted" when he fell. However, Mi Toro presented evidence that the ramp was not freshly painted and that there have been no other similar incidents on the ramp. Patterson presented nothing to contradict Mi Toro's evidence. Indeed, as the circuit court noted, Patterson presented no evidence as to what type of paint was used-or that some other type of paint should be used on wheelchair ramps. Absent such evidence, and absent proof of any "similar incidents on the [ramp]," "no reasonable jury could conclude the [ramp was] unreasonably dangerous." Vivians v. Baptist Healthplex , 234 So.3d 304, 310 (¶ 23) (Miss. 2017) (Dickinson, P.J., specially concurring).

¶ 9. This Court previously has affirmed summary judgment when the plaintiff's only supposed evidence of a dangerous condition was his or her own opinion that a floor or ramp was "slick" or "slippery." In Treadwell v. Circus Circus Miss., Inc. , 942 So.2d 221 (Miss. Ct. App. 2006), the plaintiff testified that she slipped and fell at the casino because "the floor was slippery." Id. at 223 (¶ 8). Notwithstanding her testimony, we held that the casino was entitled to summary judgment because there was "no evidence that any dangerous condition in fact existed." Id. Similarly, in Case v. Board of Supervisors of Lauderdale County , 164 So.3d 1043 (Miss. Ct. App. 2014), the plaintiff testified that she slipped and fell on a metal exit ramp at a county office building because "the ramp itself was, for unknown reasons, 'slick.' " Id. at 1046 (¶ 10). Nonetheless, we held that the county was entitled to summary judgment because the plaintiff had "no evidence to support her contention that the ramp was dangerously slippery other than the fall itself." Id. Finally, in Adcock , supra , the plaintiff testified that she slipped and fell in a Wal-Mart bathroom because the floor was "slick" and appeared "shiny." Adcock , 2011 WL 3047623, at *3-*4. Nonetheless, the federal district court held that Wal-Mart was entitled to summary judgment because there was no "evidence of other falls" or any other evidence to show that the floor was a dangerous condition. Id. at *4 (following Treadwell , supra ). Patterson's testimony is not materially distinguishable from the testimony of the plaintiffs in Treadwell , Case , and Adcock . Applying the reasoning of those decisions, we likewise hold that Patterson's opinion that the ramp was "slick" is insufficient to survive summary judgment.

¶ 10. In summary, Patterson failed to create a genuine issue of material fact as to the existence of a dangerous condition on Mi Toro's premises. Accordingly, the circuit court correctly granted Mi Toro's motion for summary judgment.

¶ 11. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Mi Toro has two locations in Corinth. The slip-and-fall in this case occurred at the Highway 72 location.

      Patterson's then-fiancée gave similar testimony in her deposition.


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

text:
    V'Nell L. MISKELL a/k/a V'Nell Miskell a/k/a V'Nell Lee Miskell, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00136-COA
    Court of Appeals of Mississippi.
    July 17, 2018
    ATTORNEY FOR APPELLANT: DAVID NEIL MCCARTY
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD, JACKSON
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. Following a jury trial in the Forrest County Circuit Court, V'Nell L. Miskell was convicted of first-degree murder and sentenced as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections without eligibility for parole or early release. Miskell now appeals his conviction, arguing that: (1) the trial court erred in its application of Batson during jury selection; (2) the trial court erred by denying his request for a confession instruction; and (3) the State made improper remarks during its closing argument. Finding no error, we affirm.

FACTS

¶ 2. On September 11, 2014, Johnny Cooper's body was discovered at Timberton Park in Hattiesburg, Mississippi. His body was found submerged in water in the ditch/creek near the softball fields. An autopsy revealed he had been shot six times, and the manner of death was determined to be homicide.

¶ 3. Miskell's brother, Vernell Miskell, provided a sworn statement to police that the morning after Cooper had been murdered, Miskell came to his house and admitted to Vernell he had murdered Cooper. According to Vernell's statement and trial testimony, Miskell was with Cooper smoking weed at the park the evening before the body was discovered. While Cooper, a known drug dealer, was counting his money, Miskell shot him once. Cooper ran and Miskell continued to shoot him until he fell into the ditch, where Miskell shot him again. Vernell also testified at trial that he found in Miskell's clothes a nine-millimeter firearm and later sold it. Later, while in jail on an aggravated-assault charge, Vernell wrote another statement which stated that Miskell had not told Vernell anything regarding Cooper. At trial, Vernell admitted he wrote the latter statement at Miskell's request, because he did not want to get his brother in trouble. He further admitted that his initial statement was true.

¶ 4. Jeff Byrd, a crime-scene investigator with the Metro Crime Scene Unit, testified at trial that he was called to collect evidence at the scene where Cooper's body was found. Investigator Byrd testified that he observed blood around the edges of the creek and other spots of blood he believed to be the path Cooper traveled as he was bleeding. He also recovered several nine-millimeter shell casings in a pathway leading to a nine-millimeter bullet that he found near the edge of the creek. Photographs of the scene and evidence were shown to the jury. Cooper's car was found nearby at Kamper Park. Investigator Byrd attempted to collect DNA and fingerprints from the car, but he was unable to do so due to dew or rain from the night before and an unidentified sticky substance that prevented any fingerprint collection. Investigator Byrd also swabbed the car's steering wheel, but testified he was unaware of any DNA evidence connecting Miskell to the crime.

¶ 5. Cooper's sister, Patience Williams, also testified. Williams stated that on the day Cooper's body was found, she read online that the body of a young man had been found in the park. She became concerned when she attempted to call Cooper several times, but he never answered or returned her call. Williams called her mother, Theresa Cooper, and asked her if she had seen or heard from Cooper. Theresa answered that she had not heard from Cooper and that he may have stayed with his girlfriend the night before. Williams called Cooper's girlfriend, but she had not seen or heard from Cooper either. Worried that Cooper was arrested or something else was wrong, Williams went to the police station to check. Williams inquired about Cooper at the police station, but the police did not reveal anything to her. Williams testified that the officers asked her a lot of questions and told her to hang around, to which she became alarmed that something was wrong and they were not telling her, so she called her mother, Theresa, to come to the station.

¶ 6. While Williams was at the police station, she saw Miskell and his brother, Pedro Alvarez. At that time, she did not know the identity of the body that was found in the park. When Theresa arrived at the police station, she saw Alvarez but did not see Miskell. Theresa testified that Alvarez came up to her, hugged her neck, and said "I'm so sorry for your loss." At this point, the police still had not informed Theresa or Williams of the identity of the body found, and Theresa testified that at no point while she was at the police station did the officers inform her of the identity of the body.

¶ 7. Neal Rockhold, a detective with the Hattiesburg Police Department, also testified. Detective Rockhold stated that on the day Cooper's body was discovered, Alvarez came to the police station and indicated he believed his friend, Cooper, had been killed. At some point later, Cooper's girlfriend provided the police with a photograph of Cooper, and the body was identified to be Cooper. Detective Rockhold then interviewed Alvarez who stated that he and Miskell had been with Cooper the day before the body was found. When Detective Rockhold indicated he wanted to interview Miskell also, Alvarez attempted to reach him on the phone to come in. Alvarez then stated he would be able to get Miskell to come talk to the police if they would release him. The police released Alvarez, but Miskell did not come in for questioning that day. After attempting to contact Alvarez several times, he gave multiple excuses as to why he could not come back for continued questioning.

¶ 8. Detective Rockhold used Cooper's cell-phone records to determine who had made calls to him. From those records, Detective Rockhold determined that Jeremy Waters was the last person to speak to Cooper on the phone prior to his death. Waters gave a statement to the police the day after Cooper was murdered. He also testified at trial. Waters stated that on September 10, 2014, he met Cooper at Timberton Park around 10:00 p.m. to buy some weed. Waters parked between Cooper's BMW and a silver or white Ford SUV that he did not recognize. When Waters arrived at the park, he saw Cooper smoking with some friends in the dugout area. Waters did not know who Cooper's friends were. After Waters purchased the weed, he left and went to his grandmother's house, which was a block or two from the park. Waters sat in his car for about ten minutes and then he heard five or six gunshots. He ran inside to tell his grandmother, but he did not call the police.

¶ 9. On September 12, 2014, Detectives Jeremy Dunaway and Brandon McLemore were able to interview Miskell. Both detectives testified at trial. Detective Dunaway testified that he advised Miskell of his Miranda rights, but Miskell waived them. During the portion of the interview conducted by Detective Dunaway, Miskell initially denied that he knew Cooper. Eventually, however, Miskell admitted that he knew Cooper and had met him through his brother, but did not indicate which brother-Alvarez or Vernell. On the evening before Cooper's body was found, Miskell stated he was with Alvarez and Vernell at Shoemaker Apartments, and while they were there, Cooper showed up because they were all supposed to smoke together. According to Miskell, Cooper left to make a stop before they were supposed to meet up again. Miskell stated he went with Vernell to Tony Drive where Alvarez had an apartment, but Cooper never showed up. Detective Dunaway testified that Tony Drive was across the street from where Cooper's body was found. Miskell stated that he left Alvarez's apartment on Tony Drive, went back to Shoemaker apartments, and then to Broadway Inn where he had a room. Miskell told Detective Dunaway he arrived back at his hotel room at 10:00 p.m.

¶ 10. Detective McLemore also testified regarding his portion of the interview with Miskell. During the interview, Miskell initially denied he had been in the area near the park where Cooper's body was found. However, later in the interview he admitted that he and his brother Alvarez had been at the park and in the dugout where the bullet casings were recovered. Miskell used a map to explain where he was in the park and signed the map. He also admitted that he was at the park with Cooper when Waters came to buy weed. Miskell did not admit to shooting Cooper.

¶ 11. The State rested, and the defense did not put on any witnesses. The jury found Miskell guilty of first-degree murder, and he was sentenced as a habitual offender to life imprisonment without the possibility of parole. Miskell now appeals his conviction.

DISCUSSION

I. Jury Selection

¶ 12. Miskell argues that the trial court failed to correctly follow Batson , 476 U.S. at 89, 106 S.Ct. 1712, when Miskell challenged the State's use of five out of its six peremptory strikes on African-American jurors. Specifically, Miskell argues that the trial court collapsed the first two Batson steps; ruled that only a "pattern" of discrimination mattered; and failed to rule on striking one of the jurors. Miskell further argues that these errors require reversal and remand for a new trial because Miskell was denied a jury of his peers. We do not agree.

¶ 13. "The trial judge acts as finder of fact when a Batson issue arises." Allen v. State , 235 So.3d 168, 171 (¶ 7) (Miss. Ct. App. 2017). "We will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence." Id.

¶ 14. The use of peremptory strikes "is subject to the commands of the Equal Protection Clause[,]" which "prohibits using peremptory strikes to engage in racial discrimination." H.A.S. Elec. Contractors Inc. v. Hemphill Const. Co. , 232 So.3d 117, 122-23 (¶ 13) (Miss. 2016) (citing Batson , 476 U.S. at 89, 106 S.Ct. 1712 ). "To safeguard against racial discrimination in jury selection, the United States Supreme Court in Batson established a three-step process." Id. at 123 (¶ 14).

First, the party objecting to the use of a peremptory strike has the burden to make a prima facie case that race was the criterion for the strike. Second, if the objecting party makes such a showing, the burden shifts to the striking party to state a race-neutral reason for the strike. Third, after the striking party offers its race-neutral explanation, the court must determine if the objecting party met its burden to prove purposeful discrimination in the exercise of the peremptory strike-that the stated reason for the strike was merely a pretext for discrimination.

Id. (footnote omitted).

A. Step 1

¶ 15. The records shows that when Miskell's counsel objected to the State's use of five peremptory strikes on African-American jurors, the trial court first noted there were four African-American jurors already empaneled. The trial court then stated, "Let me have your reasons. I don't think he's made out a prima fa[cie] case, but just out of an abundance of caution."

¶ 16. [W]here the trial court does not explicitly rule on whether the defendant established a prima facie case under Batson but nevertheless requires the State to provide gender/race-neutral reasons for its challenges and the State provides reasons for its [strikes], the issue of whether the challenging party established a prima facie case is moot.

Payne v. State , 207 So.3d 1282, 1285 (¶ 9) (Miss. Ct. App. 2016) (citing Lynch v. State , 877 So.2d 1254, 1271 (¶ 48) (Miss. 2004) ). Here, the trial court did not find Miskell had made a prima facie case that race was the reason for the strikes. Nevertheless, the trial court still required the State to articulate race-neutral reasons for the strikes. As such, "the issue of whether [the challenging party] met its burden to establish a prima facie case is moot. We begin our review with step two." H.A.S. Elec. Contractors , 232 So.3d at 123 (¶ 17).

B. Step 2

¶ 17. Under step two of Batson , the State was required to provide its race-neutral reasons for the strikes. "Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral." Id. at 133 (¶ 9). "This process does not demand an explanation that is persuasive, or even plausible-any reason [that] is not facially violative of equal protection will suffice." Id. (internal quotation mark omitted).

¶ 18. "[O]nce the striking party offers a valid race-neutral reason, the trial judge must allow the strike unless the other party demonstrates that the valid race-neutral reason was a pretext for discrimination." Id. at 124 (¶ 19). "[W]hen the objecting party offers no rebuttal, the court is forced to examine only the reasons given by the striking party." Id. at 125 (¶ 24). At this point, "the court must determine if the objecting party met its burden to prove purposeful discrimination in the exercise of the peremptory strike-that the stated reason for the strike was merely a pretext for discrimination" Id. at 123 (¶ 14).

¶ 19. Miskell challenged the State's striking of Jurors 2, 7, 9, 12, and 18. We examine each strike in turn.

1. Juror 2

¶ 20. The State's reasons for striking potential Juror 2 were that "she had no eye contact"; "she looked down a lot"; "she seemed tired"; "she seemed disinterested"; and that "her form was incomplete." Miskell's counsel responded with various reasons as to why the juror form was incomplete but offered nothing in response to the State's reasons for fatigue or inattentiveness. The trial court then found that "[the State] has stated a race[-]neutral reasoning for exercising the strike." On appeal, Miskell argues that the trial court failed to rule on its challenge of this strike. However, it is clear from the record that the trial court accepted the State's reason as race-neutral, allowing the strike to stand. Further, at the end of the Batson hearing, after examining all the reasons for each challenged strike, the trial court stated it believed the State's reasons were race-neutral and did not find a "discriminatory purpose on the exercise of any of these challenges." (Emphasis added). We find no error in the trial court's acceptance of the stated race-neutral reason.

2. Juror 7

¶ 21. The State explained that it chose to strike potential Juror 7 because "she wasn't paying attention. She looked down dramatic a lot. A lot of times we looked at her, it was like she was nodding asleep." Miskell's counsel responded, "I think she'd make a good juror." This response does not constitute a rebuttal that the reason given was pretext for discrimination. The trial court then found the State's reasons were "acceptable reasons for striking a juror." Miskell's counsel failed to rebut and we find no error in the trial court's acceptance of the State's reason to strike Juror 7; as such, no further examination for pretext was required. See H.A.S. Elec. Contractors , 232 So.3d at 125 (¶¶ 24-25). Therefore, we do not disturb the trial court's finding that the strike of Juror 7 was nondiscriminatory.

3. Juror 9

¶ 22. The State informed the trial court that it chose to strike potential Juror 9 because the juror form was incomplete regarding whether he had sat on a criminal jury; the form was not signed; "he had an angry look on his face"; and "didn't look like he wanted to be here." Miskell's counsel offered no rebuttal and agreed that the juror's form was incomplete. The trial court found that the State "had race[-]neutral reasons for striking [Juror 9]" and "conclude[d] that the exercise of a challenge by [the State] [wa]s appropriate[.]" We find no error in the trial court's determination that the strike was nondiscriminatory.

4. Juror 12

¶ 23. The State's articulated reasons for striking Juror 12 included "that he looked down a lot"; "looked in the other direction" when the prosecutor "[a]ttempted to make eye contact with him"; "was unattentive"; "seemed tired"; and failed to respond to questions asked of him. Miskell's counsel stated that he did not notice Juror 12 looking tired, but offered no rebuttal. The trial judge found "those [we]re acceptable race[-]neutral reasons for exercising [the] [peremptory] challenge, and [he did] not find that the strike was -- [he did] not believe that the strike of [Juror 12] was based on his race but rather on other acceptable factors." We find no error.

5. Juror 18

¶ 24. The State explained that it chose to strike Juror 18 because "she was extremely tired"; "did not respond to questions of whether she was tired"; "looked down a lot"; and she was seen "nodding and sleeping a few times." Miskell's counsel replied, "I have no response, Your Honor." The trial court found that the State's explanations for the strike were race neutral. We find no error in the trial court's acceptance of the State's race-neutral reason, thereby allowing the strike to stand.

¶ 25. We have already addressed Miskell's arguments that the trial court collapsed the first two steps of Batson and that the trial court failed to rule on the challenge to strike Juror 2. Additionally, Miskell argues that the trial court "stated that only a pattern of racial discrimination violated Batson , and failed to look at the individual strikes." We reject this argument. A review of the transcript does show that the trial court stated it saw "no pattern of strikes based on race." The transcript also reveals that at no point, however, did the trial court require a showing of a "pattern of racial discrimination" as Miskell contends. And, as is evident by the foregoing discussion, the trial court did not fail to look at the individual strikes, but rather, required the State to articulate its reasons for the striking of each juror. It is further clear that the trial court accepted the State's reasons as valid race-neutral reasons and determined there was no "discriminatory purpose on the exercise of any of these challenges." We find no error in the trial court's findings. This issue is without merit.

II. Jury Instructions

¶ 26. Miskell claims the trial court erred when it denied his proposed jury instruction regarding his statement to the police. Miskell's proposed jury instruction, D-13, read as follows: "The Court instructs the jury that if you believe from the evidence that the alleged confession of the defendant was untrue you should disregard it." The trial court denied the instruction, finding that it was cumulative of other instructions, and that it was not a proper statement of law.

¶ 27. "This Court reviews the grant or denial of jury instructions for an abuse of discretion." Windless v. State , 185 So.3d 956, 960 (¶ 8) (Miss. 2015). "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. (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.

¶ 28. Miskell argues that the trial court's refusal of D-13 deprived him the opportunity to attack the truthfulness of his statement and deprived the jury of its duty to determine the weight and credibility of the statement. He also asserts that the trial court's ruling regarding the admissibility of the statement amounted to a peremptory instruction that the jury must find the statement true. The record does not support Miskell's arguments.

¶ 29. First, the trial court's admission of Miskell's statement did not amount to a peremptory instruction that the statement must be accepted by the jury as true. It is well-settled that "[t]he voluntariness and admissibility of a confession is to be decided by the trial court judge as a matter of law, while the weight and credibility to be given to a confession is within the sole province of the jury." Mayes v. State , 925 So.2d 130, 133 (¶ 7) (Miss. Ct. App. 2005). The trial court, in the presence of the jury, stated the following: "I find that Mr. Miskell's interview or confession was intelligently, knowingly, voluntarily made having understood and waived his Miranda rights and that the interview or the confession is not the product of promises, threats or inducements." The trial court then allowed the transcript of Miskell's interview with the police into evidence. This was an evidentiary ruling made during the course of the State's case-in-chief. In its instructions to the jury, the trial court stated the following regarding the admissibility of evidence:

The production of evidence in court is governed by rules of law. From time to time during the trial it has been my duty as judge to rule on the admissibility of evidence. You must not concern yourselves with the reasons for my rulings since they are controlled and governed by the rules of law. You should not infer from my rulings on these motions or objections to the evidence that I have any opinion on the merits favoring one side or the other.

¶ 30. Thus, it is clear that the court's admissibility ruling regarding Miskell's statement was not a peremptory instruction as to its truthfulness or acceptability, and the jury was further instructed regarding such evidentiary rulings.

¶ 31. Second, Miskell was not, as he contends, deprived of the opportunity to attack the truthfulness of his statement based on the trial court's refusal of D-13. Our law is clear that "[o]nce a confession is admitted into evidence, a defendant is entitled to submit evidence and have the jury pass upon the factual issues of its truth and voluntariness and upon its weight and credibility."

Allen v. State , 212 So.3d 98, 104 (¶ 13) (Miss. Ct. App. 2016) (quoting Wilson v. State , 451 So.2d 724, 726 (Miss. 1984) ). "The defendant may offer proof to show that the confession is untrue and explain why he made the untrue statement." Id. "Once this rebuttal or impeachment testimony is offered, then the jury may conclude that the confession, though found by the court to be voluntary, is untrue and not entitled to any weight." Id. Thus, Miskell was entitled to submit evidence regarding his confession as to any factual issues of its truth, its voluntariness, and its weight and credibility. He did not do so. As such, Miskell's argument that he was deprived the opportunity to attack the truthfulness of his statement is misplaced.

¶ 32. " '[W]hile the weight and credibility to be given to a confession is within the sole province of the jury[,]' ... there is no requirement that a trial court grant a separate instruction on the weight and credibility to be given to a confession." Mayes , 925 So.2d at 133 (¶ 7) (citing Scott v. State , 878 So.2d 933, 968 (¶ 96) (Miss. 2004) ). Again, on appeal, "this Court considers the jury instructions given as a whole." Dora v. State , 20 So.3d 46, 50 (¶ 16) (Miss. Ct. App. 2009). "The trial court may refuse to grant jury instructions that incorrectly state the law, are covered fairly elsewhere in the instructions, or are without foundation in the evidence." Id.

¶ 33. Upon our review of the instructions as a whole, we find no abuse of discretion by the trial court in refusing D-13. The records shows that the jurors were instructed that it was their "exclusive province to determine the facts in this case and to consider and weigh the evidence for that purpose," and that they were "the sole judges of the weight and credit to be assigned the testimony and supporting evidence of each witness who has testified in this case." Thus, the jury was properly instructed regarding its duty to judge the weight and credibility of the evidence presented and witness testimony, which certainly included Miskell's statement to police and Detectives McLemore's and Dunaway's testimony regarding their interview with Miskell. Therefore, the jury instructions given accurately stated the law and fairly covered the instructions proposed in D-13. This issue is without merit.

III. Closing Argument

¶ 34. In his final issue on appeal, Miskell argues that the State committed prosecutorial misconduct by making improper remarks during its closing argument. As such, Miskell argues he is entitled to a new trial.

¶ 35. Attorneys are generally afforded wide latitude in closing arguments. Moffett v. State , 156 So.3d 835, 857 (¶ 61) (Miss. 2014). Any alleged improper prosecutorial comments must be considered in the context of the circumstances of the case. Id. at 867 (¶ 95). "The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Id. at 857 (¶ 60).

¶ 36. Miskell specifically complains that during closing argument, the State made five different improper arguments that individually and cumulatively prejudiced him.

A. Miskell's Decision Not to Testify

¶ 37. Miskell first alleges that the prosecutor unlawfully commented on his decision not to testify. Miskell argues that these violations occurred while the State argued that the first element of the crime-the date and location of the victim's death, was "an undisputed fact. The defense doesn't disagree with this. They haven't put on any evidence to the contrary." Miskell's counsel objected to the comment arguing that Miskell was not bound to put on any evidence, and the trial court responded that it had already instructed the jury regarding that issue.

¶ 38. "While a direct reference to the defendant's failure to testify is 'strictly prohibited,' all other statements must be looked at on a case-by-case basis." Young v. State , 236 So.3d 49, 59-60 (¶ 58) (Miss. 2017). "There is a difference between a comment on the defendant's failure to testify and a comment on the failure to put on a successful defense." Id. at 60 (¶ 58). "The State is entitled to comment on the lack of any defense, and such a comment will not be construed as an insinuated reference to a defendant's failure to testify." Id.

¶ 39. Here, the prosecutor made no direct reference to Miskell's decision not to testify, and upon our review of the allegedly improper comments, we do not find the comments are an insinuated reference to such. Rather, the State's comments were fair arguments based on the testimony and evidence presented at trial. Furthermore, the record reflects that during opening statements, Miskell's counsel stated, "We don't dispute that Johnny Cooper was murdered," and "another fact that's not disputed in this case is that Johnny Cooper was at Timberton ballpark on September 10th or September 11th, the evening of September 10th, 2014, selling drugs." The prosecutor's comments were in direct reference to the first element the State had to prove regarding the location and date of the crime charged, and therefore, they were proper arguments before the jury. Thus, having reviewed the comments in the context of the circumstances of the case, we do not find these comments were improper.

¶ 40. Miskell next argues that the State made an impermissible "send-a-message" argument, erroneously invoked the "Golden Rule," and made an improper "accountability" argument. Miskell's allegation of these errors all refer to the following statements made during the prosecutor's closing argument:

In their world a gun is a tool. In their world a gun is a tool. Let me be clear one more time. In their world a gun is just a tool; like a screw driver. It's not like us. We take a gun, and it's ours, and we give it to a friend, but it's ours to take responsibility. In their world, just like he said, a gun is a tool.
....
It's used, and it's passed along. It's discarded. Why he didn't think anything of his little brother coming to confess to him. What did he reveal to him? He didn't think anything of it. When we circle the wagons and the mom and girlfriend was charged for hiding the weapon, he had no other choices down there. Let me be clear. The weapon is just a tool to them, in the world they live in. To them it's not a big deal. It's meaningless. The fact that that guy is dead, it's meaningless. That park across from the university didn't mean anything. Find the gun. Go and sell it for $150. Didn't mean anything. Going to the police department and not telling the truth, didn't mean anything. Let me be clear one last time. It didn't mean anything to them. It was just a tool to be destroyed, when it's done with. It means something to me. It means something to him, to her, to her and to her. It means something to them, and I'm going to ask you to make it mean something to you. You don't do this. You don't do that. It's not allowed. It's illegal, and there's accountability here in Hattiesburg. We're nowhere else. We will always be for accountability. They were always be for accountability.

¶ 41. Miskell's counsel objected stating, "The verdict must be based on the evidence and not emotion." The trial court encouraged the Stated to move on, but overruled the objection.

B. Send-a-Message Argument

¶ 42. Miskell now argues that the State's comments that Hattiesburg was like "nowhere else" constituted an improper send-a-message argument.

¶ 43. "Our supreme court has repeatedly condemned the 'send a message' argument and warned prosecutors accordingly." Bryant v. State , 232 So.3d 174, 183 (¶ 24) (Miss. Ct. App. 2017) (internal quotation mark omitted). "Two threshold questions are used to determine whether a send-a-message argument constitutes reversible error." Jackson v. State , 174 So.3d 232, 238 (¶ 17) (Miss. 2015). "This Court first looks at whether the argument is procedurally barred because defense counsel failed to object to the statement at trial." Id. "However, even in the absence of a contemporaneous objection, we will review on appeal a claim that a prosecutor made an improper send-a-message argument if the argument is so inflammatory that the trial judge should have objected on his own motion." Id. (internal quotation marks omitted). "Second, this Court considers whether the defense counsel provoked the prosecution to make the challenged statement." Id. "After considering the two threshold questions, the Court then must determine (1) whether the remarks were improper, and (2) if so, whether the remarks prejudicially affected the accused's rights." Id. (internal quotation mark omitted).

¶ 44. Here, Miskell's counsel objected to the comments, and our review of the record does not reveal that the alleged improper comments were provoked by Miskell's defense counsel. So, we must first determine "whether the remarks were improper." Id. Here, whether the State's singular comment that Hattiesburg was "nowhere else," constituted a send-a-message argument is, as stated in O'Connor v. State , 120 So.3d 390, 399 (¶ 22) (Miss. 2013), "dubitable at best." Nevertheless, assuming the comment was improper, we must determine "whether the remark prejudicially affected the accused's rights." Jackson , 174 So.3d at 238 (¶ 17). Under this second prong, "it must be clear beyond a reasonable doubt that, absent the prosecutor's inappropriate comments, the jury would have found the defendant guilty." Brown v. State , 986 So.2d 270, 276 (¶ 16) (Miss. 2008) (emphasis omitted). "This, of course, amounts to a harmless-error analysis, and is the analysis to be used for the second prong ...." Id. In this case, having considered the evidence and testimony presented at trial and the context in which the alleged improper comments were made, it is clear beyond a reasonable doubt that, absent the prosecutor's comment that Hattiesburg is "nowhere else," the jury would have found Miskell guilty. Therefore, we find that any error was harmless.

C. Golden-Rule Argument

¶ 45. Miskell also argues that the State's comments, "make it mean something to you," constituted an impermissible "Golden Rule" argument. " 'Golden rule' arguments, which ask the jury to put themselves in the place of one of the parties, are prohibited." Batiste v. State , 121 So.3d 808, 863 (¶ 145) (Miss. 2013). The Court has explained:

It is the essence of our system of courts and laws that every party is entitled to a fair and impartial jury. It is a fundamental tenet of our system that a man may not judge his own case, for experience teaches that men are usually not impartial and fair when self interest is involved. Therefore, it is improper to permit an attorney to tell the jury to put themselves in the shoes of one of the parties or to apply the golden rule. Attorneys should not tell a jury, in effect, that the law authorizes it to depart from neutrality and to make its determination from the point of view of bias or personal interest.

Id. (quoting Chisolm v. State , 529 So.2d 635, 639-40 (Miss. 1988) ). Additionally, an error may be harmless where an improper argument was "sufficiently insignificant in the overall context of the case." Id.

¶ 46. Upon our review of the transcript, we do not find that the prosecutor's comment "make it mean something to you" asked the jurors to put themselves in the place of the victim, thereby violating the prohibition against the "Golden Rule" comments. A review of the context in which the comments were made demonstrates that the prosecutor appealed to the jury to make the evidence "mean something"-referring to the sold gun, dead body, location of the body, and statements given to police. As such, the comments do not constitute an improper golden-rule argument.

D. Accountability Argument

¶ 47. Miskell also argues that his rights to a fair trial were violated because of the State's comments regarding accountability: "there's accountability here in Hattiesburg. We're nowhere else. We will always be for accountability. They were always be for accountability." Miskell argues that the comments "created an extra-legal burden of accountability which was prejudicial."

¶ 48. For support, Miskell cites Sheppard v. State , 777 So.2d 659 (Miss. 2000), in which the supreme court found the prosecutor's comments constituted reversible error. In Sheppard , "the prosecutor stated that if the jury voted to acquit, he wanted them to call him and explain their rationale of finding the defense witnesses credible, so he could explain it to the victim's family." Id. at 661 (¶ 6). The supreme court found this was reversible error because it "suggest[ed] to the jury that it would be accountable to the prosecution and the victim's family for its decision" thereby creating "an extra-legal burden of accountability to the State prejudicial to the rights of the accused." Id. at 661-62 (¶¶ 9-10). That is not the case here. As such, Miskell's reliance on Sheppard is misplaced. Here, the prosecutor's comments regarding accountability did not suggest to the jurors they were accountable to the State or to the victim's family, and did not impose an "extra-legal burden of accountability."

¶ 49. The inquiry remains "whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Moffett , 156 So.3d at 857 (¶ 60). Again, "[a]ny alleged improper prosecutorial comments should be considered in the context of the circumstances of the case. Id. at 867 (¶ 95). Here, we do not find that the comments complained of constituted an improper accountability-argument as found in Sheppard and the comments did not have a natural and probable effect to create unjust prejudice against Miskell. This issue is without merit.

E. Facts Not in Evidence

¶ 50. Miskell argues that the State, in its closing argument, "repeatedly strayed outside the evidence presented at trial." However, our review of the record reveals the prosecutor made two comments regarding facts not in evidence, to which Miskell timely objected, and the objection was sustained. Our supreme court has held "where an objection is sustained, and no request is made that the jury be told to disregard the objectionable matter, there is no error." Ford v. State , 975 So.2d 859, 868 (¶ 33) (Miss. 2008). Because Miskell did not ask the judge to admonish the jury, he is barred from arguing any error in regard to this on appeal.

CONCLUSION

¶ 51. For the foregoing reasons, we find Miskell received a fair trial and that no reversible error occurred. Accordingly, we affirm his conviction and sentence.

¶ 52. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND TINDELL, JJ., CONCUR. WILSON AND WESTBROOKS, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      Batson v. Kentucky , 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      Later during the investigation, a cell phone belonging to Miskell was found in a silver Ford Expedition that was parked outside the police station.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).