author: LAMAR, Justice,

text:
    Raphael FLOWERS v. STATE of Mississippi.
    No. 2009-KA-00387-SCT.
    Supreme Court of Mississippi.
    May 27, 2010.

      Benjamin A. Súber, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before GRAVES, P.J., LAMAR and KITCHENS, JJ.
   LAMAR, Justice,

for the Court:

¶ 1. Raphael Flowers appeals his conviction of one count of statutory rape of a seven-year-old boy and sentence of thirty years in the custody of the Mississippi Department of Corrections. Finding error, we reverse his conviction and sentence.

FACTS

¶ 2. Flowers was indicted on two counts of statutory rape and two counts of sexual battery, offenses that are alleged to have occurred in April 2006. Flowers, who was eighteen years old at the time of the offense, was charged with having sexual relations with four boys, all under the age of fourteen, in an abandoned house. Further details of the incident are unnecessary for purposes of this appeal. In Count I, Flowers was convicted of statutory rape for having “sexual intercourse” with a seven-year-old boy. The trial judge declared a mistrial in Counts II, III, and IV, after the jury was unable to reach a unanimous verdict. Flowers appeals his conviction for statutory rape, raising three assignments of error. Although not raised in the trial court or on appeal, we find that the indictment in this case was fatally flawed, requiring reversal. We decline to address the remaining issues raised by Flowers on appeal.

DISCUSSION

¶ 3. Flowers did not object at trial, nor did he challenge on appeal, his indictment for statutory rape. However, Rule 28(a)(3) of the Mississippi Rules of Appellate Procedure provides that this Court “may, at its option, notice a plain error not identified or distinctly specified.” Miss. R.App. P. 28(a)(3). Under proper circumstances, this Court “has noted the existence of errors in trial proceedings affecting substantial rights of the defendants although they were not brought to the attention of the trial court or of this Court.” Grubb v. State, 584 So.2d 786, 789 (Miss.1991). Generally, this Court will address issues on- plain-error review only “when the error ... has impacted upon a fundamental right of the defendant.” Sanders v. State, 678 So.2d 663, 670 (Miss.1996). We find that this is such a case where it is appropriate to exercise this Court’s authority to address plain error.

¶ 4. At the time of the offense in April 2006, the statutory rape statute provided in relevant part that: “For purposes of this section, ‘sexual intercourse’ shall mean a joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female.” Miss.Code Ann. § 97-3-65(6) (Rev. 2006). Subsequently, in 2007, the Legislature amended the statute to read:

For purposes of this section, “sexual intercourse” shall mean a joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female or the penetration of the sexual organs of a male or female human being in which the penis or an object is inserted into the genitals, anus or perineum of amale or female.

Miss.Code Ann. § 97-3-65(6) (Supp.2009) (emphasis added). Apparently, at trial, both the State and Flowers proceeded under the erroneous assumption that the amended version of Mississippi Code Section 97-3-65(6) (Supp.2009) applied.

¶ 5. It is fundamental that the statute in effect at the time an offense is committed is the one that must control the prosecution of the offense. See generally Wilson v. State, 967 So.2d 32, 42 (Miss.2007) (holding that defendant was properly convicted under statute in effect at the time of offense). This rule helps to ensure the constitutional proscription against an ex post facto law. See U.S. Const, art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”); Miss. Const. art. 3, § 16 (“Ex post facto laws ... shall not be passed.”). In Puckett v. Abels, we quoted the Supreme Court’s decision in California Department of Corrections v. Morales for the proposition that the Ex Post Facto Clause “ ‘is aimed at laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.’”” Puckett v. Abels, 684 So.2d 671, 673 (Miss.1996) (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (emphasis added)). Furthermore, “[t]he purpose of the Ex post facto Clause is to assure that legislative acts ‘give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed!.]’ ” Id. (quoting Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)).

¶ 6. We find that Flowers’s due-process rights were disregarded and the Ex Post Facto Clause was violated when he was convicted and sentenced for the crime of statutory rape, as his alleged misconduct did not fall under the definition of statutory rape in effect at the time of the offense in 2006. In other words, the alleged misconduct did not involve the “joining of the sexual organs of a male and female human being in which the penis of the male is inserted into the vagina of the female.” Miss.Code Ann. § 97-3-65(6) (Rev. 2006). To the contrary, Count I of the indictment charged that Flowers had “sexual intercourse with ... a male child.” In the ease sub judice, a comparison of the indictment to the criminal statute would not disclose that the crime of statutory rape was charged. Therefore, we hold the indictment failed to charge a crime under the statutory rape statute in effect at the time of the offense and is therefore, fatally defective.

¶ 7. Based on the record before this Court, Flowers’s conduct could have been charged as sexual battery under Mississippi Code Section 97-3-95 (Rev.2006), but not as statutory rape under Section 97-3-65. We reverse Flowers’s conviction and sentence for statutory rape and remand the appellant to the Sheriff of Leflore County to await action of the grand jury.

CONCLUSION

¶ 8. Raphael Flowers’s conviction and sentence are reversed, and we remand Flowers to the custody of the Sheriff of Leflore County to await action of the grand jury.

¶ 9. REVERSED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ, CONCUR.

      . Mississippi Code Section 97-3-65(l)(b) provides that ”[t]he crime of statutory rape is committed when: .... (b) A person of any age has sexual intercourse with a child who: (i) Is under the age of fourteen (14) years: (ii) Is twenty-four (24) or more months younger than the person; and (iii) Is not the person’s spouse.” Miss.Code Ann. § 97-3-65(1 )(b) (Rev. 2006).

      . Under Mississippi Code Section 97-3-95, “(1) A person is guilty of sexual battery if he or she engages in sexual penetration with: .... (d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.” Miss. Code Ann. § 97-3-95(1 )(d) (Rev. 2006).


source: Caselaw Access Project

author: LEE, P.J.,

license: Public Domain

text:
    GULF SOUTH PIPELINE COMPANY, LP, Appellant/Cross-Appellee, v. Blanche Marie Downey PITRE, Appellee/Cross-Appellant.
    No. 2007-CA-01308-COA.
    Court of Appeals of Mississippi.
    March 10, 2009.
    Rehearing Denied July 21, 2009.

      Trey Bourn, Jackson, Robert C. Galloway, Gulfport, Leann W. Nealey, Jackson, attorneys for appellant.
    David M. Sessums, Vicksburg, attorney for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Gulf South Pipeline Company, LP (Gulf South) filed a complaint in the Special Court of Eminent Domain of Warren County against Blanche Marie Downey Pi-tre to acquire by eminent domain a right-of-way and easement through her property in Warren County, Mississippi, near the City of Vicksburg. The easement Gulf South sought to obtain was a permanent easement of approximately 5.59 acres of land for a forty-two inch gas pipeline.

¶ 2. A trial was held to determine the total amount of compensation due to Pitre. Gulf South presented the expert testimony of Brent Johnston, an appraiser, who testified that the value of the land taken for the easement was $38,250. Johnston opined that the value of the remainder of the property, including the house and workshop, would not decrease.

¶ 3. James Hamilton, the expert hired by Pitre, testified that the value of the land and damages to the remainder of the property was $175,000. Using the sales comparison approach, Hamilton determined that the fair market value of the property before the installation of the pipeline was $840,905, and the fair market value of the property after the installation of the pipeline would be $667,261. Hamilton also determined that the value for the temporary easement which would be needed during construction of the pipeline would be $3,751. The difference between the estimated before fair market value and after fair market value with the temporary easement included totaled $177,395, which Hamilton rounded to $175,000. Gulf South moved to limit or strike Hamilton’s testimony as having no reliable foundation. The trial court denied Gulf South’s motion.

¶ 4. After a two-day trial, nine of the twelve jurors returned a verdict in favor of Pitre for $175,000. Gulf South moved for a judgment notwithstanding the verdict (JNOV), which was denied. Gulf South now appeals, asserting the following issues: (1) the trial court erred in allowing the jury to consider Hamilton’s testimony, and (2) the trial court erred in denying Gulf South’s motion for a JNOV and not entering a judgment for $38,250.

¶ 5. Pitre cross-appeals, asserting the following issues: (1) the trial court erred in holding that she waived her right to file a motion to dismiss; (2) the trial court erred in ruling that the only issue to be decided was the value of the property; (3) the trial court erred in granting Gulf South the right of entry; and (4) the trial court erred in excluding evidence relating to the devaluing of the property.

¶ 6. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 7. The “standard of review for the trial court’s admission or suppression of evidence, including expert testimony, is abuse of discretion.” Tunica County v. Matthews, 926 So.2d 209, 212(¶ 5) (Miss.2006). “Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand.” Id. at 212-13(¶ 6) (quoting Crane Co. v. Kitzinger, 860 So.2d 1196, 1201(¶20) (Miss.2003)). “The party offering the expert’s testimony must show that the expert has based his testimony on the methods and procedures of science, not merely his subjective beliefs or unsupported speculation.” Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 36(¶ 11) (Miss.2003).

DISCUSSION

I. DID THE TRIAL COURT ERR IN ALLOWING PITRE’S EXPERT TO TESTIFY AS TO THE DECREASE IN VALUE OF THE PROPERTY CAUSED BY THE PIPELINE?

II. DID THE TRIAL COURT ERR IN DENYING GULF SOUTH’S MOTION FOR A JNOV AND MOTION TO ENTER A JUDGMENT OF $38,250?

¶ 8. Gulf South argues that Hamilton’s testimony should have been limited or excluded because it was based on unsupported speculation.

¶ 9. Taking into consideration the property’s highest and best use, Hamilton examined the property under the cost approach, the market data or sales comparison approach, and the income approach. Hamilton determined that the sales comparison approach was the best indicator of the fair market value of Pi-tre’s property. Hamilton analyzed six land sales in Warren County between 2004 and 2007 and made the appropriate adjustments to determine the market value of the property without the pipeline. However, Hamilton was not able to find any land in the area that had sold with a pipeline on it to use as a comparison to determine the after fair market value of the property. Despite not having comparable land sales, the trial court allowed Hamilton to testify.

¶ 10. To determine the value of the property with the pipeline running through it, Hamilton used percentages that, in his opinion, reflected how much the property would decrease in value. Hamilton testified that once the pipeline was installed, the value of the remaining land not subject to the easement would decline by fifteen percent; the workshop would decline in value by thirty percent; and the house would decline in value by twenty percent. He determined that the workshop would lose the most value because it was closest to the pipeline, and that the house would not lose as much value as the workshop because it was further away from the pipeline. Gulf South argues that the percentages used by Hamilton were arbitrary and should have been excluded.

¶ 11. Gulf South’s expert, Johnston, determined that the value of the property would decline zero percent after the installation of the pipeline. No indication was given as to how this percentage was reached, but Johnston’s testimony was still deemed admissible by the trial court. Like Hamilton, Johnston was not able to provide any comparable sales for property that had sold with an installed pipeline on it. Regardless, Gulf South argues that Johnston’s testimony was properly admitted, but without any comparables, Hamilton’s testimony should have been excluded because the burden of proof was different for Pitre than Gulf South.

¶ 12. In determining the admissibility of expert testimony, Mississippi uses the standard initially laid out by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and later modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 158, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). McLemore, 863 So.2d at 39 (¶ 22-24). . That standard is a two-pronged test. Id. at 38(¶ 16). For expert testimony to be admissible, it must be both relevant and reliable. Id. The testimony is relevant if it will “assist the trier of fact to understand the evidence or to determine a fact in issue.” M.R.E. 702. In determining whether the principles and methods used are reliable, Daubert provides “an illustrative, but not an exhaustive, list of factors” that trial courts may use in assessing the reliability of expert testimony. McLemore, 863 So.2d at 38(¶ 16) (quoting Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.2002)). The Daubert factors include:

whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.

Id. at 37(¶ 13) (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786). “Depending on the circumstances of the particular case, many factors may be relevant in determining reliability, and the Daubert analysis is a flexible one.” Id. at 38(¶ 16). The trial judge serves as a gatekeeper on questions of admissibility of expert testimony. Id. at 40(¶ 25).

¶ 13. Hamilton testified that he had been in the real estate business for fifty-one years, and he had been a certified appraiser for at least fifteen years. He testified that he was certified in three states and had testified as an expert in forty or fifty eminent domain cases. Hamilton testified that since it was impossible to use a formula to calculate the damage to the property, the appraisal was based on his opinion, which was formulated from his education and years of experience. Hamilton testified that his opinion was based on sufficient facts and data and was the product of reliable real estate appraisal principles and methods.

¶ 14. Hamilton testified that “[a]nytime you’ve got a gas line or something to that effect on a piece of property, people are going to have an diversion [sic] to buying it.” Contributing to Hamilton’s opinion that the property would decrease in value was the fact that Pitre would have to get permission from Gulf South if she ever desired to build an access road to the north portion of her property, which will be completely severed from the rest of the property by the pipeline. Also, Pitre had done extensive erosion control work on the property which would be partially destroyed by the installation of the pipeline. Pitre also lost the use of her land for growing timber over the pipeline.

¶ 15. This Court has explained the burden of proof for eminent domain cases as follows:

The burden of proof in an eminent domain case is unique, because the government is depriving the citizen of his or her property. Sarphie v. Mississippi State Highway Comm’n, 275 So.2d 381, 383 (Miss.1973). Therefore, the State has the “non-delegable” burden to establish a prima facie case of the value of the property taken. Id. If the condemnor fails to establish the prima facie case, a dismissal of the proceedings would be required. Mississippi State Highway Comm’n v. Fisher, 249 Miss. 198, 201-02, 161 So.2d 780, 781 (1964). The supreme court explained that “[t]he reason for placing the burden on the condemnor is that if it offers no evidence of the value of the property taken there is no basis for awarding any damages and there could be no compliance with Section 17, Mississippi Constitution.” Id. After a prima facie case has been established, if the party whose property is being condemned desires to receive greater compensation, then it must present evidence of a higher valuation. Ellis v. Mississippi State Highway Comm’n, 487 So.2d 1339, 1342 (Miss.1986).

Martin v. Miss. Transp. Comm’n, 953 So.2d 1163, 1166(¶ 10) (Miss.Ct.App.2007). Therefore, the only purpose of Hamilton’s expert testimony was to present evidence of a higher valuation than was presented by Johnston.

¶ 16. We find that Hamilton’s testimony was competent and relevant, and it was for the jury to pass upon the credibility and weight of his testimony. We cannot hold Hamilton’s testimony to a strict Dau-bert analysis because he was unable to find comparable sales to compute an after fair market value. No argument was made that Hamilton was not a qualified expert. Gulf South only challenges his method of calculating the after fair market value of the property. We find that the trial judge, as the gatekeeper, did not err in allowing the jury to hear Hamilton’s testimony. Since we also find that Hamilton’s testimony was properly allowed, we find that Gulf South’s motions for a JNOV and a judgment in the amount of $38,250 were properly denied.

Cross appeal

¶ 17. Pitre cross-appeals, making the following arguments: (1) she did not waive her right to file a motion to dismiss despite failing to do so within five days of trial in compliance with Mississippi Code Annotated section 11-27-15 (Rev.2004); (2) the trial court erred in holding that the only issue to be decided at trial was the value of the property; (3) the trial court erred in granting Gulf South the right of entry onto Pitre’s property to start installation of the pipeline; and (4) the trial court erred in excluding evidence concerning the potential danger associated with the pipeline.

¶ 18. In making these arguments, Pitre cites many instances in which she believes the trial court erred, but Pitre never asks this Court for any specific relief regarding the errors the trial court may have committed. Mississippi Rule of Appellate Procedure 28(a)(7) states that “[tjhere shall be a short conclusion stating the precise relief sought” after the argument section in the briefs filed with this Court. Since no specific argument is made stating what relief Pitre seeks, we find that her cross-appeal is procedurally barred. See Sorey v. Crosby, 989 So.2d 485, 487(¶ 9) (Miss.Ct.App.2008) (holding that failure to comply with the requirements of M.R.A.P. 28 renders an argument procedurally barred).

¶ 19. THE JUDGMENT OF THE WARREN COUNTY SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND THE APPELLEE/CROSS-APPELLANT.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.


author: ROBERTS, J., KING, C.J.,

text:
    Floyd ROBINSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-02202-COA.
    Court of Appeals of Mississippi.
    June 2, 2009.
    Rehearing Denied Nov. 17, 2009.

      Leslie S. Lee, Justin Taylor Cook, Glenn S. Swartzfager, Jackson, Latisha Nicole Clinkscales, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ROBERTS, J.,

for the Court.

¶ 1. A jury sitting before the Oktibbeha County Circuit Court found Floyd Robinson guilty of murdering his on-again, off-again girlfriend, Bridgette Moore. The circuit court sentenced Robinson to life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved, Robinson appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 30, 2005, a woman went to the Oktibbeha County Jail and asked Deputy Sheriff Shannon Williams to go to a house and check on her friend, Bridgette. Deputy Williams complied and went to Bridgette’s house in Starkville, Mississippi, where he found Bridgette’s lifeless body. An autopsy later confirmed that Bridgette had died due to a single gunshot that traveled through her spleen, her stomach, and lodged in her heart.

¶3. Officers from the Starkville Police Department searched the crime scene and found a brown paper bag, a black comb, and an unfired .25 caliber shell casing. Officers also found blood on a cinder block that supported the steps to Bridgette’s house, blood on the third step to the house, and two broken acrylic fingernails. Authorities focused their investigation on Bridgette’s boyfriend, Robinson.

¶ 4. Robinson was arrested at his home. During a subsequent interrogation, Robinson signed a statement indicating that he and Bridgette struggled over a pistol and that the pistol discharged during the struggle. That is, Robinson claimed that Bridgette’s death was an accident that happened during an altercation. Dr. Steven Hayne testified that the fatal gunshot entered Bridgette’s body through her left side, traveled from left to right and upward at a thirty to thirty-five degree angle. The bullet went between two of Bridgette’s ribs, through Bridgette’s spleen, stomach, liver, heart, and lung. The bullet came to rest in Bridgette’s right chest cavity. According to Dr. Hayne, the bullet was fired from approximately twelve to eighteen inches from Bridgette’s body. Robinson testified that after Bridgette was shot, she sat on the steps to her front door, and they had a conversation. However, Dr. Hayne testified that Bridgette would have lost consciousness in three to fifteen seconds after she was shot. Additional facts and procedural history will be discussed in greater detail as necessary. Suffice it to say, Robinson was indicted, tried, and convicted of murder. After an unsuccessful post-trial motion for a judgment notwithstanding the verdict, Robinson appeals.

ANALYSIS

I. ROBINSON’S FIFTH AMENDMENT RIGHTS

¶ 5. Robinson was interrogated after he was arrested. That interrogation was preserved in the form of a DVD. At trial, the circuit court allowed the prosecution to play the DVD recording of that interrogation before the jury. Robinson takes the position that the circuit court erred because he invoked his right to have an attorney present, but the interrogating officers ignored his request. Because Robinson did not raise this issue at trial, he is forced to argue that the circuit court’s decision constituted plain error.

¶ 6. “As a general rule, constitutional questions not asserted at the trial level are deemed waived.” Williams v. State, 971 So.2d 581, 590(¶ 29) (Miss.2007) (holding that an appellant’s claim that he was questioned before he was informed of his Miranda rights was procedurally barred when raised for the first time on appeal). Accordingly, this issue is procedurally barred.

II. PRIOR-BAD-ACTS EVIDENCE

¶ 7. In his second issue, Robinson again takes exception to the prosecution’s use of the DVD recording of his confession. Unlike his first issue, Robinson is not required to travel under a plain-error theory. When the prosecution attempted to introduce the DVD recording of Robinson’s interrogation into evidence, Robinson’s attorney objected and argued that it was inadmissible because during the interrogation, a law enforcement officer confronted Robinson with a report, dated sometime after an alleged incident on May 24, 2003, from a law enforcement officer identified only as “Officer Williams.” Officer Williams’s report indicated that Marilyn McKinney gave a statement and reported that Robinson threatened to kill her and that he put a gun to her head, pushed her, kicked her, and pulled out her hair. Robinson’s attorney reasoned that the jury should not be permitted to hear that portion of the interrogation because it tended to persuade the jury that, having been violent two years earlier with one romantic interest, Marilyn, Robinson was more likely to have behaved similarly with Bridgette, another romantic interest and the victim in this case.

¶ 8. The prosecution argued that the DVD recording was admissible because it contained evidence that Robinson and Bridgette had an increasingly violent relationship that culminated in her death. The circuit court overruled Robinson’s objection. According to the circuit court, “[t]he completeness of the issue that I have, that’s what they’re doing is interrogating concerning a homicide. That is different than eliciting evidence of a prior crime or criminal act. The objection and motion to suppress on that basis is overruled.” Robinson appeals and claims the circuit court committed reversible error.

¶ 9. As we review this issue, we are mindful that the circuit court judge “enjoys a considerable amount of discretion as to the relevancy and admissibility of evidence.” Shearer v. State, 423 So.2d 824, 826 (Miss.1982). We will not reverse the circuit court judge unless he abused his discretion and caused Robinson to experience prejudice. Id.

¶ 10. Pursuant to Mississippi Rule of Evidence 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The Mississippi Supreme Court has held that Rule 404(b) “exists to prevent the State from suggesting that, since a defendant has committed other crimes previously, the probability is greater that he is also guilty of the offense for which he is presently charged.” Jasper v. State, 759 So.2d 1136, 1141(¶ 23) (Miss.1999). “[E]ven when other-crimes evidence is admissible under M.R.E. 404(b), it must pass through the ‘ultimate filter’ of M.R.E. 403.” Id. at (¶ 24). Additionally, “when other-crimes evidence is admitted under M.R.E. 404(b) a limiting instruction is required[.]” Id.

¶ 11. In the event that “404(b) evidence is offered and there was an objection which is overruled, the objection shall be deemed an invocation of the right to [an] M.R.E. 403 balancing analysis and a limiting instruction.” Id. “The court shall conduct [a Rule 403 balancing test] and, if the evidence passes that hurdle, give a limiting instruction unless the party objecting to the evidence objects to giving the limiting instruction.” Id.

¶ 12. On the DVD admitted into evidence and played for multiple hours before the jury, the interrogating officer read Officer Williams’s report to Robinson and that report stated as follows:

On the above date at approximately 20:52 hours, I, Officer Williams, took a report from Ms. McKinney concerning her boyfriend. It says ... Floyd Robinson ... constantly keeps threatening her about killing her. He’s always talking to her [about] ... taking her to the middle of nowhere, putting a gun to her head and throat and telling her what he would do to her. On [May 24, 2003] ... he took her to his house and started washing dishes and when she told him she was going home, he started going ballistic and started to push, kick, and pull out her hair. He pulled a gun on her then[,] and once he settled down, he just told her to leave. She left and went home and then called the police.

After the interrogating officer read the report to Robinson, the interrogating officer commented, “[m]y goodness. You got two women saying they felt like you were going to kill them at one point in time— two separate times.”

¶ 13. At trial, the prosecution argued that this information was admissible pursuant to this Court’s decision in Moss v. State, 727 So.2d 720 (Miss.Ct.App.1998). The facts in Moss are distinctly different from the facts in the present case. In Moss, the prosecution presented evidence that the defendant abused his wife prior to killing her. Id. at 724-25(¶ 17). That evidence was admissible to demonstrate a continuing pattern of violence against the victim that ultimately culminated in the victim’s death. Id. at 725(¶ 19). See also Marbra v. State, 904 So.2d 1169, 1176(¶ 23) (Miss.Ct.App.2004). In the case presently before us, the challenged portion of the DVD at issue was that Robinson had previously been violent with Marilyn, rather than Bridgette. That evidence does not tend to demonstrate a continuing or escalating pattern of violence against Bridgette. Instead, it tends to persuade the jury that, because Robinson was violent with Marilyn on May 24, 2003, he was more likely to have been violent with Bridgette on November 30, 2005, and — by extension — he was more likely to have been guilty of the allegations against him. Accordingly, we find that the circuit court erred when it allowed the prosecution to submit that evidence to the jury. Be that as it may, the issue now becomes whether Robinson experienced prejudice as a result. Shearer, 423 So.2d at 826.

¶ 14. Viewed in light of Robinson’s own testimony during direct examination, we must conclude that the error is harmless. Robinson testified that Bridgette confronted him with a pistol, that he grabbed the pistol in self-defense, and that the pistol discharged accidentally during their struggle. According to Robinson, Bridgette stated that she had been shot. Robinson testified that Bridgette did not appear to be injured and that they talked for a brief moment. Robinson said he then told Bridgette that he was going to leave because he was on probation. Robinson’s own attorney then asked Robinson to elaborate on his prior convictions that led to his being on probation. Robinson responded and testified that he had prior domestic violence convictions for abusing Bridgette and Marilyn. Because Robinson testified as to his prior conviction for domestic violence against Marilyn, and used that prior conviction as his justification for leaving Bridgette’s house after Bridgette was shot, we find that Robinson did not experience any prejudice based on the revelation during the interrogation that he had a prior conviction for domestic assault against Marilyn. Accordingly, although we find that the circuit court erred, based on Robinson’s later testimony, we find that the error was rendered harmless.

¶ 15. The dissent argues that this logic is “syllogistically faulty circular reasoning.” With due respect for the dissent and its opinion of our logical reasoning, we disagree. Robinson was indicted for the premeditated murder of his girlfriend, Bridgette. Robinson’s defense was based on the premise that the homicide was excusable due to accident and misfortune as set forth in Mississippi Code Annotated section 97-3-17 (Rev.2006). Stated differently, Robinson claimed the pistol accidentally discharged during a domestic quarrel with Bridgette and that Bridgette’s death occurred either while he was “doing a lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent” or while he was acting “in the heat of passion, upon any sudden and sufficient provocation.” Miss.Code Ann. § 97-3-17(a) and (b). To make such a claim of excusable homicide credible, Robinson had to convince the jury that his flight from the scene, with the weapon, was logical. Reasonable jurors could conclude that Robinson’s unexplained flight from the scene of Bridgette’s shooting, whom he professed to love, without calling for assistance is incongruent with a claim of accident. It is apparent Robinson interjected on his status as a prior convicted domestic-violence offender on probation, which logically prohibited him from possessing a weapon or being present at Bridgette’s home, as a strategic trial decision to attempt to explain his otherwise unexplainable flight. Mississippi Rule of Evidence 103(a) instructs that a trial court’s error in admitting otherwise inadmissible evidence or excluding otherwise admissible evidence is not reversible error unless a substantial right of a party is affected. Under the particular facts of this case, we fail to see how this error by the trial court was anything but harmless.

III.CONFRONTATION CLAUSE

¶ 16. Robinson’s next assignment of error also involves the police report that was read during Robinson’s interrogation. As previously mentioned, Marilyn gave a statement to Officer Williams, and Officer Williams’s report was read to Robinson during Robinson’s interrogation. Robinson claims the circuit court violated his right to confront witnesses against him when it allowed the prosecution to play the DVD recording of the interrogation. Robinson argues that, because he never had an opportunity to cross-examine Marilyn or Officer Williams, when the circuit court allowed that portion of the DVD to be played before the jury, the circuit court infringed upon his right to confront adverse witnesses. However, Robinson did not object to the DVD interrogation on the basis that he never had the opportunity to cross-examine Marilyn or Officer Williams. Accordingly, this issue is procedurally barred. Williams, 971 So.2d at 590(¶ 29).

IV. IMPEACHMENT WITH PRIOR CONVICTIONS

¶ 17. Robinson claims the prosecution improperly cross-examined him about his prior convictions. According to Robinson, the prosecution’s questions about his prior convictions for domestic assault were prohibited by Mississippi Rule of Evidence 609. Robinson admits that his attorney did not object to the questions that he now takes issue with on appeal. However, Robinson claims that the prosecution’s cross-examination amounts to plain error. We disagree. This Court will not rule on an issue that was not first presented to the trial court. Williams, 971 So.2d at 590(¶ 29). Due to a lack of a contemporaneous objection, this issue is procedurally barred.

V. SELF-DEFENSE INSTRUCTION

¶ 18. Robinson’s proposed jury instruction designated as instruction Dl(a) was a self-defense instruction. The circuit court declined to grant the instruction. According to Robinson, the circuit court committed reversible error in refusing the instruction.

¶ 19. The Mississippi Supreme Court has described the appropriate standard of review as follows:

When considering a challenge to a jury instruction on appeal, we do not review jury instructions in isolation; rather, we read them as a whole to determine if the jury was properly instructed. Similarly, this Court has stated that in determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.

Smith v. State, 835 So.2d 927, 934(¶ 23) (Miss.2002) (internal citations and quotations omitted).

¶ 20. Robinson did not present any evidence that he shot Bridgette in self-defense. The evidence indicated that Bridgette aimed a pistol at Robinson, that Robinson grabbed the pistol in self-defense, and that the pistol then discharged accidentally. Consequently, Robinson was not entitled to a self-defense instruction for shooting Bridgette.

VI. DEFINITION OF REASONABLE DOUBT

¶21. In this issue, Robinson claims the circuit court allowed the prosecution to define reasonable doubt during the prosecution’s closing argument. Robinson’s theory stems from the following statement:

Let me tell you what this reasonable doubt-let my [sic] quantify that for you. If you go to bed at night and you wake up in the morning and there’s snow all over the ground, you can suppose a number of things. You can suppose a bunch of Eskimos got a big tractor and they came down here in a trailer, and they shoveled snow on your front yard or that the Army brought in a C-130 and dumped snow out as they flew over your house, but you don’t do that because it’s not reasonable. It’s ludicrous. And so you say it snowed last night. That’s what this reasonable doubt thing is all about, Ladies and Gentlemen. That’s what it’s about. You weren’t there to see the snow. You weren’t there to see this woman killed. But the question is was it shoveled out or was it dumped out or did it actually snow that night? That’s the question.

Robinson concedes that he must travel under a plain-error theory, because his attorney did not object to the statement at issue.

¶ 22. We decline to review this issue for plain error. Our supreme court has held that “[i]f no contemporaneous objection is made, the error, if any, is waived.” Slaughter v. State, 815 So.2d 1122, 1131(¶ 47) (Miss.2002). We are under no obligation to review an assignment of error when an objection was not made or when an objection was made untimely. Id.

VII. CUMULATIVE ERROR

¶ 23. In his final issue, Robinson claims the cumulative effect of the errors at trial requires that this Court reverse the judgment of conviction and sentence. Although we found harmless error in Issue II, we have found no other errors. It follows that there can be no cumulative effect of errors that do not exist. As such, we find no merit to this issue.

¶ 24. THE JUDGMENT OF THE OKTIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

LEE AND MYERS, P JJ., GRIFFIS AND CARLTON, JJ., CONCUR. KING, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, BARNES AND ISHEE, JJ. MAXWELL, J., NOT PARTICIPATING.

KING, C.J.,

Dissenting.

¶ 25. The majority finds that the trial court committed error in allowing into evidence that portion of Floyd Robinson’s recorded interrogation which discussed his involvement in another crime substantially similar to that for which he was being tried. Having found this to be error, the majority proceeds to minimize it by saying Robinson’s later mention of the same matter transformed it into harmless error. Believing the majority to be in error, I dissent.

¶ 26. In order to understand why I believe the majority is wrong, it is necessary to first know precisely what was said in the interrogation and second to place Robinson’s trial testimony into the proper prospective.

¶27. During Robinson’s interrogation, the detective asked him about two prior allegations of violence against girlfriends, one of whom was the murder victim in this case. The relevant portion of that interrogation is transcribed as follows:

Detective 1: I want to read something, okay. This is the West Point Police Department report that Bridgette Moore filed on April-on the 16th of April, 2004 at 00:11.
I, PFC Everette Cook, was dispatched to 1615 Mayhew Street in reference to a fight. Upon arrival I spoke with a Ms. Bridgette Moore. She advised that her boyfriend, Floyd Robinson, had beat her with his fist in her face and upper body. She also advised that he choked her and she thought he was trying to kill her. She advised that she got away by opening her truck door and running to his mother’s house. She then called police.
Floyd was gone on my arrival. Bridgette came to the police department and signed an affidavit on Floyd for simple domestic violence.
Detective 1: Now, I want you to let me read this other one to you, too. Let me read this one to you, this is from of all people the other woman you have been talking about.
On the above date at approximately 20:52 hours I, Officer Williams, took a report from Mrs. McKinney concerning her boyfriend. It said Mrs. m-r-s McKinney concerning her boyfriend, Floyd Robinson, who constantly keeps threatening her about killing her. He’s always talking to her in the middle of nowhere-taking her to the middle of, no I’m sorry he is always taking her in the middle of nowhere putting a gun to her head and throat and telling her what he would do to her. On the last evening 5-24-03 at approximately 16:30 to 17:00 hours, he took her to his house and started washing dishes. And when she told him that she was going home, he went ballistic, and started to push, kick and pull out her hair. He pulled a gun on her then, and once he settled down he just told her to leave. She left and went home and then called the police.
Detective 1: My goodness.
Floyd: That’s a lie, and I know that’s a lie.
Detective 1: Okay, you’ve got two women saying they felt like you were going to kill them at one point or time. Two separate women.
Floyd: What would I want to do that—
Detective 1: Do you not do a good job of managing them? Or what, you don’t know how to talk to them? What happens?
Floyd: I don’t have no problem with no women.
Detective 1: Excuse me—
Floyd: A woman.
Detective 1: They have a problems with you, then right? You may not have a problem with them.
Floyd: I talk to a lot of ladies.
Detective 1: Well, we are talking about the two, that you
Floyd: It don’t get that serious with me.
Detective 1: I’m sorry, cause, we are talking about the two that you have been dealing with.
Floyd: Okay.
Detective 1: You been dealing with Mrs. Moore.
Floyd: Um-hum.
Detective 1: And she, you know you said that you didn’t have these incidents in West Point. I got two different women saying you know, saying you are doing these things to them. What do you say to them? What happened in that in — explain to me — explain what happened. First — tell us what happened with Mrs. McKinney? She said you were washing dishes. She said she was going home and you go ballistic. You take her to the middle of nowhere, you pull a gun on her, threaten her.
Detective 1: Now, here’s what I think, here’s what I think happened.
Detective 2: This sounds crazy, man.
Floyd: I’m like — a woman gonna tell you anything — they go over there and tell you anything, they are going to say anything.
Detective 2: This is true, this is true. Someone made mention of a gun.
Floyd: Huh?
Detective 2: Somebody made mention of a gun that they got from you last year. Did you have a gun?
Floyd: Last year?
Detective 1: 2003.
Floyd: That was 2003.
Detective 1: Mrs. McKinney.
Detective 2: Where did you get a gun? Floyd: I didn’t have no gun.
Detective 1: Who was she married to? Floyd: Uh-huh, some fellow.
Detective 1: So you were seeing her when she was married ?
Floyd: Uh-huh.
Detective 1: So you weren’t truthful when I asked you?
Floyd: She was going through her divorce.
Detective 1: Okay, but she was married?
Floyd: Her and her husband had broken up about a year or so.
Detective 1: Mrs — they were going through a divorce, they weren’t divorced.

¶ 28. The foregoing information was placed before the jury as a part of the prosecution’s case-in-chief, well prior to any testimony from Robinson. Once the prosecution introduced this admittedly prejudicial material as part of its case-in-chief, Robinson sought to minimize the prejudicial effect of this improper testimony by offering an explanation. That explanation is found in the testimony of Robinson which follows:

Q. What do you mean by you “B”?
A. My bitch. And I said, oh, Lord, here we go. I said, well, we ain’t fixing to start all this. She said no, that’s where you were. That’s why you really didn’t want to come over here because you just want to be with her. In my mind I said, yeah, I did, but I said, well — we just kept on talking. I said, well, I don’t know. You don’t hear me complaining about you with a man or nothing. Why you keep hounding me down. I said I’m not bothering you. I said why.
When I got up — I said, I’m fixing to get ready to out. I didn’t come over for this here. I said I’m going to get ready to go. When I got up, she hit me in my back. And she went and grabbed the phone. I said, oh, Lord, here we go with the poli — with the phone again. I said go on and call the police. I said, well, I’m gone.
I was leaving the house — I went and put my clothes on and leaving the house. When I opened the door to leave and I said so I left my keys. Let me go back and get my keys. I turned around to get my keys and I was getting my keys and I looked up and she had the gun. I said what you doing? And she, well, you going over to be with that bitch, ain’t you? I said this don’t make no sense.
I said — and she got up close to me. That’s when I grabbed her hand, and we started wrestling with the gun. And we fell outside the house. And we fell outside, and that’s when the gun went off. And I said see there, this don’t make no sense. I said — and really I thought I was shot, and she said she thought she was shot. And I said, Bridgette, this don’t make no sense, and I walked her back up to the steps. And she told me, said, she was kind of tired. I said, Bridge, this don’t make no sense. I said, I’m fixing to go. I seen the gun. I grabbed the gun. Said I’m fixing to go. I You know, the police come around here. I’m already on probation. I said I’m fixing to go and I left. And I said I’ll call you back.
When I got home, I tried to call her back. I called, and I didn’t get her answer. It was busy. And after that, I said, well, I’m going to bed. She probably got the police over there. And she mad and ain’t going to answer the phone. I said, well, I’m going to bed and get me some sleep so I can go to work. I got up that morning and went called again. I said the phone still busy. I said, well, she still mad with me.
I said, well, and I got in my car. It was about ten minutes after six that morning. And I said, let me warm this car up ’cause it’d been cutting off on me. I said, well, let me call again. I said no. We ain’t going to worry about it. I’m going to go on and go to work.
I started driving to work, and my car was cutting off on me. And I called my boss and told him, I said, I’m probably going to be little late. I’m trying to get my car fixed. My car keep cutting off on me. I’m out here on the bypass and it’s cutting up. I have to sit — let it sit for awhile and then it will start back up. And he said okay. He said, just come on in when you get a chance, and I said all right.
I got the car — went it finally — I said, well, I’m going to try to take it over to Mr. Logan. I’m getting a little late now. I said, I’ll get it over here. I went over there, and he wasn’t there. And I said, well, I said, okay, I’ll just check another time. I’ll try to do it again. I said let me try to go over to Bridgette’s and see how she doing, see if she’s still mad at me.
I went over to her house, and I went up there and drove up to the house and come out and walked out to the house. And the dog started to run (inaudible) like that. I said, you know who this is. And I said, well, let me knock on the door. I said she might not even open it. I knocked on the door and I didn’t get no answer. I said let me see is it locked, and I twisted the knob. It was open and then that’s when I saw her. And I said, uh-oh. I thought, man. And just like that and I said, well, I closed the door back. And I said, oh, Lord. And just like that. And I left. I said oh, man, I got to go tell my father. Let him know. This ain’t — huh-uh.
And I got up to my — I sat at — I said I’m going to take my life this here. Them folks going to think I did this here to her. I said, Lord, I feel like she dead. Folks going to think I did it to her. And I said I’m already only probation; ain’t got no business over there.
And I went out in the county. I was going to drink some beers and stuff to get my nerve up, and I put the gun to my head and pulled the trigger, and it did not shoot. And I said, well. I throwed the gun down in the water. I said, well, I’ll go and get a gun. That’s when I went to my father’s house and got his and tried to do the — I was going to do the same thing.
When I left my father’s house and I got ran off in the ditch, I pulled the trigger on it, and it didn’t shoot still. And I said what’s wrong? And I point the gun down in the floorboard and it shot. And my father told me, son, it’s not worth it. Ain’t no sense in you taking your life. And I thought about it and I said, well, yeah. And I said, Lord, I don’t know. These folks going to think I done did something. And I said, well.
I went on home. And I don’t know how I got home at that point, I really don’t, because I had been drinking. And when I did make it home, the only thing — it might have been about 1:30 or — about 1:30 or something, two I think. And I went in the house and I sat there and I-next thing I know I was — it was night, and I said, well, let me lay down and get me a little sleep. And I laid down. I said, well, I said, I’m tired. And I laid down and got me some sleep.
And the next thing I know, I said, I heard a shot. I said, what the world is this going on. I thought somebody shooting. And I said, I smell some gas or something. And I said, this is down here. So I go up here and I — I was upstairs, and I opened my window and went outside. And they said it’s the police. And I said, the police? I said, oh, man.
And then they ran on the opposite side of the house. I said, no, I’m on this side over here. And they came back over there and said come down. I got halfway down out of the — in the tree, and they dragged me down to the ground. And they said we’re arresting you for the murder of Bridgette Moore. And I said what? And then I got in the car and I asked the officer, I said, sir, how long y’all been out there? He said, man we been out there ever since — he said, it’s been about five hours. I said—
Q. Let me stop you right there. I want to go back because you’ve been going on for quite a while and I want to—
A. Sorry.
Q. No. No. No. I want to clarify some things that you mentioned in your statement. You said that you were already on probation. Why were you on probation?
A. It was because Bridgette and — it was for Bridgette Marilyn McKinney.
Q. When you say for Bridgette and for Marilyn, what do you mean?
A. It was like for the domestic violence situation.
Q. Had you been found guilty of domestic violence?
A. Well, I pled guilty to it. And only reason I pled guilty it because I had just started working at Weyerhaeuser. And I said, well, I said, since I can’t take off work to be coming back to court, I said, I’ll go ahead and plead guilty and pay the fíne and be through with it. That’s what I thought because I asked the lady working at the desk at the police department in West Point. She told me, said, that’s the best thing to—
BY MR. ALLGOOD: If your Honor please, I’m going to object to the continual hearsay.
BY THE COURT: Sustained.
BY MS. CLINKSCALES: (Continuing)
Q. Floyd, did you ever go to trial on any of the domestic violence charges that were filed against you?
A. No, I didn’t.
Q. Did any of the accusers ever appear with you and a judge on any of the charges of domestic violence?
A. No, they didn’t.

¶ 29. A careful reading of the record reveals that Robinson did not simply and carelessly offer evidence of prior bad acts attributed to him. Instead, Robinson attempted to blunt the prejudicial impact of the prosecution’s improper prior-bad-acts evidence by offering an explanation for those events. It is Robinson’s efforts at blunting the prejudicial effect of the improper prior-bad-acts testimony that the majority now claims turns the admission of that improper evidence into harmless error. Such a claim can only be the result of syllogistically faulty circular reasoning.

¶ 30. The prosecution’s prior-bad-acts evidence was admitted prior to any testimony from Robinson. The damage from this improper prior-bad-acts evidence was completed prior to any testimony from Robinson. The testimony by Robinson as to prior bad acts was presented in an effort to place into perspective the improper prior-bad-acts evidence that was previously introduced by the prosecution. Because the damage was done before Robinson’s attempt at mitigation, I would reverse and remand for a new trial.

¶ 31. In an apparent effort to camouflage its syllogistically faulty circular reasoning, the majority seeks to place the responsibility for the admission of the improper prior-bad-acts evidence upon Robinson by saying that: “Robinson’s defense was based on the premise that the homicide was excusable due to accident and misfortune as set forth in Mississippi Code Annotated section 97-3-17 (Rev.2006).” “It is apparent Robinson interjected his status as a prior convicted domestic violence offender on probation — -logically prohibited from possession of a weapon or from being present at Bridgette’s home-as a strategic trial decision to attempt to explain his otherwise unexplainable flight.”

¶ 32. The fallacy in the majority’s attempt at blaming Robinson is simple and straight forward. Robinson did not present any defense until after the State had rested its case in chief. The improper prior-bad-acts evidence was introduced by the State in its case-in-chief. The State’s sole purpose in introducing this improper prior-bad-acts evidence was to prove that Robinson killed Bridgette. Before Robinson uttered the first word in his defense, the State had introduced the improper pri- or-bad-acts evidence, and the damage had been done. Contrary to the opinion of the majority, once the damage has been done, it cannot be undone. It especially cannot be undone by attempting to blame Robinson for the improper actions of the prosecutor.

¶ 33. For the foregoing reasons, I believe the appropriate action is to reverse and remand this matter for a new trial.

IRVING, BARNES AND ISHEE, JJ., JOIN THIS OPINION.


author: ISHEE, J.,

text:
    Coy Michael EDMOND, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-KA-01027-COA.
    Court of Appeals of Mississippi.
    Sept. 22, 2009.
    Rehearing Denied March 9, 2010.
    Certiorari Dismissed May 27, 2010.
    Joe Morgan, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

      Before LEE, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Coy Michael Edmond was indicted by a Lafayette County grand jury for the crime of sexual battery of a child over fourteen and under sixteen years of age, pursuant to Mississippi Code Annotated section 97-3-95(l)(c) (Rev.2006). Edmond was found guilty in the Circuit Court of Lafayette County and was sentenced to thirty years in the custody of the Mississippi Department of Corrections, with twenty years suspended and five years of post-release supervision. Edmond was also sentenced to pay court costs and restitution in the amount of $50,000. Edmond appeals and asserts the following issues:

I. Whether there was sufficient evidence presented to prove the age of the victim.
II. Whether the circuit court erred in allowing the trial to proceed despite the State’s discovery violation in producing information at trial regarding the diminished mental capacity of the victim.
III. Whether the circuit court erred in failing to apply and follow the tender years exception to the hearsay rule.
IV. Whether the circuit court erred in overruling his motion for a new trial.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On February 4, 2006, a fifteen-year-old girl, Hannah, was baby-sitting for Edmond’s family. Hannah’s sister, Sharon, was also at Edmond’s home on the night of the incident, but she went home during the night. Both Hannah and her sister had previously baby-sat for Edmond’s three small children on several other occasions. When she baby-sat for the family, she would often stay overnight, and Edmond and his wife would take her home early the next morning. Hannah’s parents and Edmond’s family were social friends. On the night of the crime, Hannah’s parents and Edmond’s wife traveled to the casino with friends, but Edmond stayed behind, possibly because he was ill. Hannah testified that at some point that night, Edmond approached her as she was resting in the recliner and the children were asleep. Hannah testified that he talked to her, then started rubbing her breasts, and kissing her. She testified that he then unzipped his pants and forced her head toward his private area. Hannah testified that she performed oral sex on him, and afterwards, he informed her not to tell anyone about what had happened. Edmond then left her and went into his bedroom. Bobby Wilkerson testified that he and Edmond were friends before the sexual battery took place. He testified that Edmond had suggested to him, before the crime took place, that they both could “tag team” Hannah — or both have sex with the girl. Wilkerson told Edmond he wanted no part in the plan. Wilkerson testified that he went to Edmond’s home the next day. According to Wilkerson, Edmond told him that Hannah had given him a “blow job,” but they had not had sex.

¶ 3. Hannah testified that she was born on May 16, 1990, as did her mother, Dolly. Dolly testified at trial that Hannah is actually her biological niece, but she and her husband had adopted Hannah on April 4, 2000. Hannah’s mother testified that Hannah was enrolled in special education classes and was currently in the eleventh grade at school. However, Dolly explained that Hannah was reading and performing math at only a fifth or sixth grade level. Dolly also explained that both Edmond and his wife were aware of Hannah’s mental difficulties.

¶ 4. Edmond testified on his behalf and said that he just checked on Hannah during the night and eventually went to bed at approximately 10:30 p.m. He denied any wrongdoing concerning Hannah. However, Edmond believed that Hannah had a crush on him.

¶ 5. A jury found Edmond guilty of sexual battery. Edmond was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections, with twenty years suspended and five years of post-release supervision. Edmond was also sentenced to pay court costs and restitution in the amount of $50,000. It is from this verdict that Edmond now appeals.

DISCUSSION

I. Evidence of the Age of the Victim

¶ 6. Edmond acknowledges that the age of a person can be proven by testimony at trial, citing Wright v. State, 856 So.2d 341, 344(¶ 9) (Miss.Ct.App.2003). However, for Edmond’s first assignment of error, he argues that the victim’s mother did not testify from her own personal knowledge as to the time, date, and place of Hannah’s birth. Edmond argues that no birth certificate was introduced at trial. Further, he argues that Hannah could not possibly have known when she was born. Additionally, he argues the testimony of both Hannah and Dolly regarding her age was hearsay. Edmond argues that the State failed to prove every element of the offense, namely Hannah’s age at the time of the crime, beyond a reasonable doubt.

¶ 7. The State argues in reply that there is no merit to Edmond’s' allegation. The State contends that the testimony of the victim as to her birth date was credible, legally sufficient evidence to show she was in fact fifteen years old at the time of the crime. The State cites Hayes v. State, 803 So.2d 473, 478-79(¶ 12) (Miss.Ct.App.2001) to support its contention that the testimony of the victim regarding her date of birth is sufficient to prove her age at the time of the crime.

¶ 8. In Rankin v. State, 963 So.2d 1255, 1262(¶ 28) (Miss.Ct.App.2007), this Court recognized that “[t]he State is not required to provide a birth certificate or other documentation to show age.” In Rankin, a statutory rape case, this Court noted that both the twelve-year-old victim and her mother testified as to the child’s date of birth and age at the time of the crime. Id. In the present case, both the victim and her mother testified that her date of birth was May 16, 1990. The crime occurred on February 4, 2006, which meant that Hannah was fifteen years old at the time of the incident. While Dolly is Hannah’s adoptive mother, Dolly is also related by blood to Hannah, as she is Hannah’s biological aunt. We find that both Hannah and her mother, Dolly, could accurately testify as to Hannah’s actual date of birth. This Court finds that this issue is without merit.

II. Discovery Violation

¶ 9. Edmond complains that he was not informed that the victim was developmentally disabled until the first day of trial. Edmond argues that this information should have been disclosed during the discovery process before trial. Edmond contends that he should have been afforded more time to perform tests on the victim to determine her mental capacity and whether she would be capable of testifying at trial. Edmond argues that this late disclosure of her mental handicap violated Rule 9.04(E) of the Uniform Rules of Circuit and County Court, thereby creating a reversible error.

¶ 10. The State replies that Edmond did not ask for a continuance based on the alleged discovery violation; therefore, this issue is procedurally barred. Further, the State argues there was no showing that Edmond suffered actual prejudice from the State’s late disclosure that Hannah was developmentally disabled.

¶ 11. Prior to trial, the prosecutor stated that Hannah’s mother had just informed him of Hannah’s I.Q., which was why the prosecutor failed to disclose the information earlier. There was no allegation or evidence in the record to indicate otherwise.

¶ 12. According to the Rule 9.04(E) of the Uniform Rules of Circuit and County Court:

Both the [Sjtate and the defendant have a duty to timely supplement discovery. If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, that party shall promptly notify the other party or the other party’s attorney of the existence of such additional material, and if the additional material or information is discovered during trial, the court shall also be notified.

“Based on the procedure first outlined in Box v. State, 437 So.2d 19, 23-24 (Miss.1983), when a trial court is faced with previously undisclosed evidence to which the defendant has objected, it should give the defendant a reasonable opportunity to familiarize himself with the evidence.” Bell v. State, 963 So.2d 1124, 1133(1122) (Miss.2007). It is then the defendant’s responsibility to request a continuance if, thereafter, he believes he may be prejudiced by his lack of opportunity to prepare for the admission of the evidence. Id. The defendant may also request a motion for a mistrial. Id. If the defendant does not request a continuance, he waives the issue. Id.; see also Porter v. State, 869 So.2d 414, 420(¶ 21) (Miss.Ct.App.2004) (finding an alleged discovery violation was waived on appeal for failure to request a continuance). In Barnes v. State, 854 So.2d 1, 5(¶ 13) (Miss.Ct.App.2003) (citing Kelly v. State, 778 So.2d 149, 152 (¶¶ 12-13) (Miss.Ct.App.2000)) this Court found no error on a claim of an alleged discovery violation because Rule 9.04(1) “requires Barnes to have sought a continuance or mistrial, which he did not.”

¶ 13. On cross-examination, Hannah testified that she understood the difference between telling the truth and lying, and she knew how important it was to tell the truth. She also indicated that she understood that it was a serious criminal charge that was at issue, and she understood the importance of the situation.

¶ 14. In the case at bar, Edmond neither requested a continuance nor asked the circuit court for a mistrial. Edmond claims that “if the Defendant had claimed undue surprise or undue prejudice he could seek a continuance or mistrial but no such opportunity was afforded the Appellant in this case.” However, Edmond has failed to demonstrate that he asked for a continuance or a mistrial upon learning of Hannah’s mental handicap, and he has failed to explain why he was unable to request a continuance or ask for a mistrial. Accordingly, this issue is procedurally barred.

III. Tender Years Exception

¶ 15. Edmond argues that since the victim had an admitted limited mental capacity with an I.Q. of between sixty and seventy, the circuit court should have applied the tender years exception to the hearsay rule. Edmond argues that the circuit court did not make a determination of the child’s ability to perceive or remember events and failed to question her to make a proper determination of whether she was competent to testify.

¶ 16. The State argues that since Edmond failed to object to the testimony of the victim at trial, and in fact cross-examined her, he is proeedurally barred from raising this issue on appeal. The State also points out that because Edmond cross-examined the victim, he cannot now claim that the child was incompetent to testify, citing Rhymes v. State, 356 So.2d 1165, 1169 (Miss.1978).

¶ 17. Under Mississippi Rule of Evidence 601, with some exceptions, “[e]very person is competent to be a witness....” This Court has stated the following regarding the admissibility of a minor’s testimony at trial:

Mississippi courts generally allow children of tender years to testify if competent. Rule 601 of the Mississippi Rules of Evidence provides that every person is competent to be a witness unless they are incompetent or otherwise restricted. It is in the sound discretion of the trial judge to determine the competency of a child witness. Before allowing the child to testify, the judge should determine “that the child has the ability to perceive and remember events, to understand and answer questions intelligently and to comprehend and accept the importance of truthfulness.”

Tillman v. State, 947 So.2d 993, 996(¶ 13) (Miss.Ct.App.2006) (quoting Hersick v. State, 904 So.2d 116, 130(¶ 63) (Miss.2004)).

¶ 18. In the present case, the circuit court found “no reason now to believe that the witness should not be allowed and permitted to testify.” This was borne out by the fact that Hannah understood the questions she was asked and formulated appropriate responses. Furthermore, Edmond cross-examined Hannah extensively. Edmond’s counsel questioned Hannah regarding the importance of telling the truth, to which she responded, “You want to tell the truth. It’s not good to lie because you could get someone else in trouble or you can get your own self in trouble and it’s just good to tell the truth.” She also testified that she knew the difference between the truth and a lie. In Rhymes, a child -witness testified at trial, and during both the direct and cross-examination, the child stated that he knew the difference between telling the truth and telling a lie and the importance of telling the truth. Rhymes, 356 So.2d at 1168. The appellant in that case argued that the court erred in failing to determine whether the child was competent to testify. Id. The supreme court found that the examination at trial “indicate[d] that the child knew the meaning of telling the truth.” Id. at 1169. Additionally, the supreme court also found that “[t]he cross-examination by appellant waived his challenge to the competency of such witness.” Id.

¶ 19. In Williams v. State, 859 So.2d 1046, 1049 (¶¶ 12-15) (Miss.Ct.App.2003), this Court found no error with the circuit court’s determination that an eight-year-old victim of sexual abuse, who was in special education classes, was competent to testify at trial. In the present case, the circuit court found no reason not to allow Hannah to testify. At trial, she demonstrated her understanding of the importance of telling the truth and her understanding of the seriousness of the pending charges. Notwithstanding Hannah’s diminished I.Q., there was no indication that she was not competent to testify. We find no error with the circuit court’s ruling that Hannah was competent to testify. This issue is without merit.

IV. Motion for a New Trial

¶ 20. Edmond argues that the main witness, the victim, had a reduced mental capacity and became visibly confused and inconsistent regarding her version of events, including the date and time the crime actually occurred. Edmond argues that the circuit court erred in denying his motion for a new trial.

¶ 21. A motion for a new trial is addressed to the discretion of the trial court. Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (citation omitted). Appellate review of a trial court’s denial of a motion for a new trial looks to the weight of the evidence. Id. (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). We will review the evidence in the light most favorable to the verdict, and we will reverse the denial of the motion for a new trial only if the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 22. In this case, the victim, Hannah, testified at trial regarding what happened on the date of the crime. In addition, Edmond’s friend, Wilkerson, testified for the State. Wilkerson testified that Edmond disclosed to him on the day after the crime allegedly occurred, that Hannah had given him a “blow job.” This testimony corroborated the testimony given by Hannah at trial. Edmond also testified at trial, giving his version of events on the date of the crime. The jury, sitting as the finder of fact, found Edmond guilty, thereby finding Hannah’s and Wilkerson’s testimonies to be more credible than the testimony given by Edmond. We do not find that the verdict is contrary to weight of the evidence; therefore, the circuit court properly denied Edmond’s motion for a new trial. This issue is without merit.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY OF CONVICTION OF SEXUAL BATTERY OF A CHILD OVER FOURTEEN AND UNDER SIXTEEN YEARS OF AGE AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWENTY YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY $50,000 IN RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . The Court of Appeals declines to reveal the names of child victims of sexual battery. In the interest of the child's privacy, the minor’s name, as well as the names of family members have been substituted with fictitious aliases.


author: LEE, P.J., GRIFFIS, J.,

text:
    J. CRISS BUILDER, INC. and Janie Criss, Individually, Appellants, v. William P. WHITE and Patricia L. White, Appellees.
    No. 2008-CA-00832-COA.
    Court of Appeals of Mississippi.
    Oct. 13, 2009.
    Rehearing Denied March 9, 2010.
    Certiorari Denied May 27, 2010.

      Paul E. Rogers, Jackson, attorney for appellants.
    John W. Christopher, attorney for ap-pellees.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. On February 12, 2003, William' P. White and Patricia L. White (the Whites) filed a complaint against J. Criss Builder, Inc. (JCB), Janie Criss (Criss), and Bailey Engineering and Land Surveying, LLC (Bailey) alleging breach of warranty, negligence, and failure to disclose regarding the construction of the Whites’ home. Bailey was subsequently dismissed as a party. JCB and Criss moved for summary judgment alleging that the Whites did not file their complaint within the six-year statute of repose under Mississippi Code Annotated section 15-1-41 (Rev.2003). The trial court denied the motion for summary judgment. After a trial on the matter, a jury in the Madison County Circuit Court found in favor of the Whites in the amount of $30,000. The trial court granted the Whites an additur in the amount of $103,701.82.

¶ 2. JCB and Criss now appeal the judgment, arguing that: (1) this action was untimely under section 15-1^41; (2) Criss should not be held personally liable for any alleged faulty construction; and (3) it was error to grant an additur.

FACTS

¶ 3. JCB is a Mississippi corporation that was wholly owned by Criss, a licensed residential builder. JCB did not have a builder’s license. Criss had a valid builder’s license, which was obtained in her individual capacity. On July 30,1996, JCB purchased the lot in Madison County, Mississippi, on which the Whites’ home was constructed. As the licensed builder, Criss oversaw the construction of the home. On November 21, 1996, JCB conveyed the lot and completed home to Criss in her individual capacity. Criss lived in the home and applied for homestead exemption. On February 17, 1997, Criss sold the home to the Whites.

¶ 4. Approximately one year after the Whites moved into the home, they noticed a hairline crack in the scored concrete floor which grew larger over time. Soil testing revealed that the home was constructed upon soil containing Yazoo clay. Criss knew, prior to building, there was Yazoo clay present. The Whites repaired the foundation and other damage resulting from the foundation problems. According to expert testimony, the home suffered a $50,000 diminution of value due to these repairs.

DISCUSSION

I. STATUTE OF REPOSE

¶ 5. In their first issue on appeal, JCB and Criss argue that the trial court erred in failing to dismiss the action based upon the applicable six-year statute of repose found in Mississippi Code Annotated section 15-1-41. We note that issues of statutory interpretation present a question of law; therefore, this Court will conduct a de novo review of the trial court’s decision. Grand Casino Tunica v. Shindler, 772 So.2d 1036, 1038(¶ 8) (Miss.2000).

¶ 6. Section 15 — 1—41 states, in pertinent part, that:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof. This limitation shall apply to actions against persons, firms and corporations performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property for ... any private ... entity.
This limitation shall not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvement causes injury.

¶ 7. Since the statute of repose does not apply to circumstances where the possessor and builder are the same, it logically follows that it does not commence until the builder is no longer in possession of the home.

¶ 8. In West End Corp. v. Royals, 450 So.2d 420, 424 (Miss.1984), a homeowner sued an owner and developer of a ditch that caused his home to flood, and the issue before the supreme court was whether the then ten-year statute of repose applied where the developer was the current owner. The supreme court interpreted the second paragraph of section 15-1-41 and found that it did not apply. Id. The following passage from West End provides insight about the applicability of section 15-1-41 in situations where the builder is also the owner:

We hold that § 15-1-kl does not provide the applicable statute of limitations where the owner is the builder. We reach this result by addressing the purpose of § 15-1-41. The builder who usually no longer has control over, nor access to, the property, is absolved from liability after the proscription period; however, under the statute the owner remains responsible for the defective condition, thus insuring a plaintiff will not lose his day in court before injury ever occurs. When the builder is also the owner[,] the distinctions which give rise to this dichotomy disappear. The builder, being the same entity as the owner, necessarily has equal access to the control over the defective condition. Consequently, a builder/owner is not within the purview of § 15-1-41.

Id. (emphasis added).

¶ 9. Based on a review of the language of the statute, as well as the direction given by the supreme court in West End, the statute of repose in the present case did not commence until the builder/owner, Criss, was no longer in possession of the house. Criss, undisputably the builder, sold the home to the Whites on February 17, 1997, within six years of the filing of the complaint on February 12, 2003. Therefore, we find that the Whites’ claims are not barred by the six-year statute of repose.

II. CRISS’S LIABILITY

¶ 10. In their second issue on appeal, JCB and Criss argue that the trial court erred by failing to dismiss Criss, individually, from the lawsuit. JCB and Criss contend that “the only way Janie Criss as an individual can be held liable ... is by proper piercing of the corporate veil of J. Criss Builder, Inc.” We should note that the present cause of action was not filed under a veil-piercing theory, and none of the parties requested that the court instruct the jury on piercing the corporate veil. Instead, while discussing the issue of corporate versus individual liability, the attorney representing JCB and Criss told the trial court:

We don’t have a veil[-]to[-]pierce instruction. You have to prove by clear and convincing evidence flagrant disregard of corporate formalities, frustration of purpose and some fraud or other [malfeasance] on behalf of [Criss.] We don’t have that in this case. This is not a veil[-]piercing case. It’s no different than if a corporate employee was driving a car and had a wreck and they were negligent. They’re liable for their own actions.

¶ 11. After much discussion between the parties and the court, the trial court crafted the following jury instruction, which the parties agreed adequately covered the contested issue of Criss’s individual liability:

An officer, director and/or shareholder of a corporation is not generally held personally liable for the acts of the corporation. An officer, director, and/or shareholder of a corporation may be held personally liable for the acts of the corporation by her own acts or conduct. If you find by a preponderance of the credible evidence presented in this case that at the time the subject house was being built that Janie Criss was acting solely on behalf of J. Criss Builder, Inc., and not individually then your verdict shall be in favor of Janie Criss in her individual capacity.

¶ 12. Based upon the jury’s verdict against JCB and Criss, individually, it is reasonable to find that the jury found that Criss was acting on her own behalf when she built the house.

¶ 13. Under Mississippi law, residential builders must be licensed by the State Board of Contractors. Mississippi Code Annotated section 73-59-3(1) (Rev.2008) provides, in pertinent part, that “persons who perform residential construction or residential improvement shall be licensed by the board annually[.]” Corporations or individuals are deemed residential builders for purposes of this statute. See Miss. Code Ann. § 73-59-1 (b) (Rev.2008). Criss’s corporate entity, JCB, did not have a builder’s license; thus, it was prohibited from performing residential construction. See Miss. Code Ann. § 73-59-9(3) (Rev. 2008). Criss did, however, have a valid builder’s license, which was obtained in her individual capacity. Criss, in her individual capacity, was the licensed builder of the house. According to her testimony, Criss’s job duties included designing the house plans, arranging financing, coordinating the subcontractors, selecting building materials, negotiating prices with suppliers, choosing paint colors, selecting roof types, working with engineers to design the foundation, and overseeing the dirt work on the lot to make sure it was handled properly.

¶ 14. Since Criss was the licensed builder and JCB was legally prohibited from performing residential construction, we cannot find that the trial court erred in declining to dismiss Criss, individually, from the suit. The jury clearly found that Criss was personally liable for the construction of the home. This issue is without merit.

III. ADDITUR

¶ 15. In the final issue on appeal, JCB and Criss argue that the trial court erred in granting an additur. After the jury awarded the Whites $30,000, the Whites filed a motion for an additur. The trial court found that the Whites were entitled to an additur in the sum of $103,701.82. Pursuant to Mississippi Code Annotated section 11-1-55 (Rev.2002), the court may grant an additur, “if the court finds that the damages are ... inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence.”

¶ 16. The standard of review for considering an additur on appeal is limited to determining whether the trial court abused its discretion. Ross-King-Walker, Inc. v. Henson, 672 So.2d 1188, 1193 (Miss.1996). The trial court may only usurp the jury’s function in setting a damage award, when it complies with the language of the statute and finds either that: (1) the jury’s verdict is so shocking to the conscience that it evinces bias, passion, and prejudice on the part of the jury; or (2) the verdict is contrary to the overwhelming weight of the credible evidence. State Highway Comm’n of Miss. v. Warren, 530 So.2d 704, 707 (Miss.1988). “Absent either of these findings, the trial court abuses its discretion.” Id.

¶ 17. The trial court’s order granting the additur simply finds that the “motion [was] well taken and should be granted.” Because the trial court did not indicate its specific findings in granting the additur, we find this to be an abuse of discretion. However, this does not preclude the trial court, on remand, from granting the addi-tur. Rather, if the trial court chooses so, there must be adequate findings to support the additur. Accordingly, we remand the case to the trial court to either reinstate the jury’s verdict or consider the additur in accordance with the applicable statutory guidance.

¶ 18. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY TO THE APPELLANTS AND APPELLEES.

KING, C.J., MYERS, P.J., IRVING, BARNES AND ISHEE, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS, J. CARLTON, J., NOT PARTICIPATING.

GRIFFIS, J.,

Dissenting.

¶ 19. I respectfully dissent because I find that William and Patricia White’s (collectively “the Whites”) claims are time-barred by Mississippi Code Annotated section 15-1-41 (Rev.2003). Accordingly, I would reverse the judgment of the Madison County Circuit Court and render judgment in favor of J. Criss Builder, Inc. (“JCB”) and Janie Criss (“Criss”) dismissing the Whites’ claims.

¶ 20. JCB and Criss argue that the statute of repose began to run under section 15-1-41 on November 23, 1996, when Criss purchased the home and occupied the home. The Whites argue that the legislative intent behind section 15-1-41 is that the statute does not begin to run until the builder relinquishes access and control to a third party.

¶ 21. “It is a well[-]recognized principle of law in this State that ambiguity must exist in the language used by the Legislature in a statute before resort will be had to any rules of statutory construction or interpretation.” Forman v. Carter, 269 So.2d 865, 868 (Miss.1972). This Court must begin our inquiry with the plain language of section 15-1-41, which states, in pertinent part, that:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof This limitation shall apply to actions against persons, firms and corporations performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property for the State of Mississippi or any agency, department, institution or political subdivision thereof as well as for any private or nongovernmental entity.

(Emphasis added.)

¶ 22. The Whites urge this Court to look beyond the plain language of the statute to the Legislature’s intent and argue that “[s]ection 15-1-41 was intended by the [Legislature to protect architects, builders and the like who have completed their jobs and who have relinquished access and control of the improvements.” Ferrell v. River City Roofing, Inc., 912 So.2d 448, 453(¶ 18) (Miss.2005) (quoting West End Corp. v. Royals, 450 So.2d 420, 424 (Miss.1984)). The Whites stress that this Court must consider Criss to be the builder within the meaning of section 15-1-41, because she was licensed as required by Mississippi Code Annotated section 73-59-3(1) (Rev.2008), and JCB did not have a builder’s license. The Whites claim that the builder — Criss—did not relinquish control of the home until she sold it to the Whites.

¶ 23. I find that section 15-1-41 is not ambiguous when applied to a situation where a builder — Criss—builds a home for the original owner — JCB—and subsequently purchases the home. The statute does not use “relinquish control” as a test to determine whether the statute begins to run; rather, the statute states that “written acceptance or actual occupancy or use” by the owner triggers the statute. Here, Criss — even if considered the builder— purchased the completed home from JCB and actually occupied and used the home in her personal capacity.

¶ 24. While the supreme court has determined that the intent behind section 15-1-41 is to protect architects, builders and the like who have completed their jobs and who have relinquished access and control of the improvements, the statute makes no exception to the six-year statute of repose if a builder or architect subsequently accepts, actually occupies, or uses the home. The plain language of the statute states that the statute of repose starts to run from the time of “written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.” Miss.Code Ann. § 15-1-41. The supreme court “requires occupancy or acceptance of the building or improvement made thereon as the beginning point for the tolling of the statute of [repose].” McMichael v. Nu-Way Steel and Supply, Inc., 563 So.2d 1371, 1376 (Miss.1990). The Whites do not dispute that Criss purchased the home on November 21, 1996, and resided therein beginning on November 23, 1996, and filed for homestead exemption.

¶25. The majority, by following the Whites’ argument, creates a scenario where the statute of repose could begin to run on two different dates, depending on who the claim was against. Here, the Whites ask this Court to find that the statute of repose began to run when Criss sold the house to them, because Criss maintained control during the time that she occupied the home as her residence. But the architect who designed the home would not have maintained control over the home during Criss’s ownership and occupancy, so the statute of repose would have started at some other date with respect to the architect.

¶ 26. The majority relies on West End Corp., 450 So.2d at 424 as authority for their position that section 15-1-41 does not apply when the builder purchases the home from the original owner. There, the issue was whether the West End Corporation was liable to Robert and Judy Royals for flooding to their home due to a drainage system built and continuously owned by West End. Id. West End argued that it did not possess or control the drainage ditch because ownership had passed to the City of Hattiesburg, Mississippi. Id. The supreme court found that the drainage system had never passed to the City and stated that:

We hold that § 15-1-41 does not provide the applicable statute of limitations where the owner is the builder. We reach this result by addressing the purpose of § 15-1^41. The builder who usually no longer has control over, nor access to, the property, is absolved from liability after the proscription period; however, under the statute the owner remains responsible for the defective condition, thus insuring a plaintiff will not lose his day in court before injury ever occurs. When the builder is also the owner the distinctions which give rise to this dichotomy disappear. The builder, being the same entity as the owner, necessarily has equal access to the control over the defective condition. Consequently, a builder/owner is not within the purview of § 15-1-41.

Id. The supreme court held that the builder/owner of a drainage system was liable to a third party when the builder maintained possession and control of the drainage system from the time it was constructed until the time that the suit was filed by a third party. Id. West End is factually distinguishable from this case; there, the builder/owner never relinquished possession or control to anyone. Here, the original owner, JCB, did relinquish control to Criss in her individual capacity, and she did show actual occupancy of the home.

¶ 27. Therefore, I would not extend this exception, based on legislative intent, beyond the factual situation in West End. Instead, effect should be given to section 15-1-41, and I would hold that the statute of repose began to run when Criss purchased the home in her individual capacity from the owner — JCB—because she showed actual occupancy and use when she used the home as her personal residence and applied for a homestead exemption.

ROBERTS, J., JOINS THIS OPINION.

      .Mississippi Code Annotated section 79-59-1 to-21 was set to repeal effective July 1, 2009. However, the Legislature has reenacted the statute in 2009 and amended section 79-59-3. See 2009 Miss. Laws Ch. 556 (H.B. 8). The language quoted from section 79-59-3 was not changed.

      . See n. 1. The language in 73-59-1 was not changed.

      . See n. 1. The language in 73-59-9 was not changed.