author: KITCHENS, Justice, GRAVES, Presiding Justice,

text:
    Nickey WILLIAMS v. STATE of Mississippi.
    No. 2008-KA-02129-SCT.
    Supreme Court of Mississippi.
    April 1, 2010.
    Rehearing Denied June 10, 2010.

      Office of Indigent Appeals by George T. Holmes, Jackson, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   KITCHENS, Justice,

for the Court:

¶ 1. Nickey Williams was convicted of two counts of sexual battery, the first against his daughter, Jane, and the second against his daughter, Ann. At the time of the offenses, Jane was four years old and Ann was less than a year old. Williams was sentenced to thirty years’ incarceration on the first count and twenty years’ incarceration on the second count with ten years suspended. The trial court ordered that those sentences run consecutively.

¶ 2. Finding that there was insufficient evidence to support a guilty verdict for sexual battery of the younger daughter, we reverse the conviction on the second count and render judgment here in favor of the defendant, vacating the sentence on the second count. As for the conviction for sexual battery of the older daughter, we find no reversible error and affirm.

Facts

¶ B. Nickey Williams and his wife Kimberly Williams are the biological parents of Jane, born May 22, 2001, and Ann, born April 20, 2005. The defendant initially was indicted for three counts of sexual battery and two counts of gratification of lust. Three of these charges were dismissed by means of nolle prosequi, and Williams was tried on two counts of sexual battery. The first count alleged that Williams inserted his finger into Jane’s vagina, and the second count alleged that Williams inserted a part of his body or an object into Ann’s anus. The jury convicted Williams of both counts.

¶ 4. In September of 2004, the Mississippi Department of Human Services (DHS) removed then-three-year-old Jane from the Williams home, based on reports and findings of neglect. The details surrounding her removal were not adduced at trial. Jane initially was placed with a cousin, but was moved six months later, on March 11, 2005, to a foster home with Kay and Michael Smith.

¶ 5. During the first night at the Smiths’ home, Jane told Mrs. Smith that she did not like nighttime because her father would come in her room at night and spank her. According to Mrs. Smith, Jane “patted herself between her legs in the front and said that he would hurt her at night.” Mrs. Smith testified that she did not report the statement to DHS because she assumed sexual abuse was the reason Jane had been placed in foster care. Mrs. Smith also testified that Jane had frequent nightmares and would scream and cry out in her sleep.

¶ 6. Kimberly and Nickey Williams initially were allowed only supervised visits with Jane twice a month, and the defendant was present at just two of those visits from March 2005 to November 2005. The youth court eventually approved an unsupervised weekend visit, and from Friday, November 11, 2005, until Sunday afternoon, November 13, 2005, Jane stayed with her biological parents.

¶ 7. Mrs. Smith testified that on the Sunday evening after Jane returned to the Smiths’ house, she witnessed Jane “being inappropriate” with a baby doll. When Mrs. Smith asked Jane what she was doing, Jane began crying and said that “her daddy had hurt her, he had poked her with his fingernail, he had hurt her on the bottom.” When Mrs. Smith asked Jane to demonstrate with the doll, she “jabbed her finger up its bottom between its legs.” Jane told her that the incident had occurred while she was in the bathtub and that her mother had witnessed it. Kimberly Williams testified at trial, but neither the State nor the defendant asked her whether she had witnessed the alleged abuse.

¶ 8. Mrs. Smith immediately contacted the foster care agency and Wanda Jones, the DHS social worker assigned to monitor Jane. Jones reported the incident to the Lee County Sheriffs Department and scheduled a forensic interview and a forensic medical examination for Jane. The forensic interview was not presented at trial, but Dr. William Marcy testified about the medical examination. Dr. Marcy had performed the medical examination on November 15, 2005, the Tuesday following the weekend visit. He previously had examined Jane in September 2004, based on an earlier report that she had been sexually abused. Dr. Marcy had found no evidence of sexual abuse during the September 2004 examination, but he did record the child’s hymenal diameter at that time. Dr. Marcy testified at trial that on November 15, 2005, the diameter had increased significantly from the time of his previous examination and that Jane’s vaginal area was abnormally inflamed. He found “to a reasonable degree of medical certainty” that these conditions were consistent with vaginal penetration and sexual abuse.

¶ 9. On December 8, 2005, Jane attended her regularly-scheduled counseling session with Tina Ballard, a counselor for the foster care agency. When Ballard asked Jane about her weekend visit with her parents, Jane told Ballard that her father had “hurt her down there” while she was in the bathtub, and the child pointed to her vaginal area.

¶ 10. Jane gave testimony at trial that was consistent with the statements she had given to Mrs. Smith and Ballard. She explained that the defendant had “stuck his finger up [her] front private” while she was in the bathtub. Jane testified that Williams used his middle finger and that his fingernail had hurt her. She also demonstrated this for the jury by jamming her index finger into the vagina of a doll.

¶ 11. Kimberly Williams testified that during Jane’s weekend visit at her and the defendant’s home, the defendant was alone in the bathroom with Jane on two different occasions, Friday night and Sunday morning. Kimberly also testified that no other adults were in her home that weekend and that she had never stuck anything in Jane’s vagina.

¶ 12. On February 13, 2006, when Williams and his wife Kimberly were arrested for sexual battery against Jane, DHS took custody of Ann, Jane’s ten-month-old sister who was still living with the Williamses. Two days later, Dr. Marcy examined Ann for signs of sexual abuse and found that her anal area was inflamed and swollen and that the shape of her anus was irregular. He testified that Aim’s anus was torn, which he found to be “very-consistent with sexual abuse.”

¶ 13. At trial, Kimberly Williams testified that since Ann’s birth, she had been cared for by only three people: the defendant, herself, and Kimberly’s grandmother. The grandmother, Iris Culver, testified that there was a period of time when the Williamses took Ann to another woman to be cared for while they were working; but Culver could not remember the woman’s name or the specific time period. Kimberly explained that, before Ann was taken into DHS custody, Nickey Williams often was left alone with their child, Ann, while she, the mother, was at work. Both Kimberly and her grandmother denied ever inserting anything into Ann’s anus.

¶ 14. Nickey Williams testified in his own defense, denying that he had ever abused his daughters and suggesting that Ann’s anal injuries might have been caused by severe constipation. He also testified that Kimberly often would run off for days and even a week at a time, leaving him as the primary caregiver for their children. He called five character witnesses who testified that he was a truthful person. Two of these witnesses also said that Williams appeared to be a normal, loving father.

Discussion

¶ 15. Williams raises several issues on appeal, arguing that (1) there was insufficient evidence to support a guilty verdict on the second sexual battery charge involving his younger daughter, (2) the two counts should have been severed, (8) the trial court erred in excluding testimony that the defendant was a good father, (4) the trial court erred in allowing the State to introduce certain hearsay testimony, (5) the jury was tainted by misconduct, (6) the verdict in the first count involving the older daughter was against the weight of the evidence, and (7) the trial court’s refusal to grant the defendant’s proposed jury instruction about child testimony entitles him to a new trial.

I. Sufficiency of the Evidence Supporting the Second Count

¶ 16. We first address whether the State, presented sufficient evidence to support the jury’s verdict that Williams had sexually abused his younger daughter, Ann. On appeal, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In addition,

Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70; see also Gibby v. State, 744 So.2d 244, 245 (Miss.1999).

Id.

¶ 17. The only evidence that Ann had been sexually abused was Dr. Marcy’s testimony. During trial, Dr. Marcy was shown two photographs of Ann’s anus, and he testified for several pages of the transcript that it was inflamed, swollen, misshapen, and torn. Part of Williams’s defense was that the injury was caused by the child’s having been constipated. When the State was examining him, Dr. Marcy testified as follows:

Q: So it wouldn’t be consistent with a bowel movement. Would this be consistent with an object or even a finger from the outside coming in?
A: Yes, it would be more consistent with that than a bowel movement.
Q: Now, as far as your expert medical opinion looking at your report, what was your conclusion as to whether there had been — or whether [Ann’s] symptoms were consistent with child sexual abuse?
A: I felt like it was very consistent with anal penetration. It — I came to the next to the highest level of suspicion of probable—
Q: And that’s without — and I’m — you had no background, I mean no witnesses, this was just based on the medical findings?
A: Yes. I believe we were seeing her because allegations had been made about her sister and they just wanted the baby checked. So, yeah, there were no allegations at all.
Q: And you found that her condition was very consistent with child sexual abuse?
A: Yes.
Q: So, again, in this case, going back to this case, with [Ann’s] tear on her anus was it very consistent — I’m going to put that at the top of your probable area, I’m going to ask was it very consistent with sexual abuse?
A: Yes. As I said, very consistent with anal penetration, very consistent with anal penetration.

(Emphasis added.)

¶ 18. Earlier, Dr. Marcy had explained that he considered “four levels of suspicion of child abuse,” namely, “unlikely, possible, probable, and definite.” He testified that “definite is very hard to come to,” and that he would only categorize his findings of sexual abuse as “definite” “maybe five or six times out of a thousand.” Dr. Marcy had found a “probable” level of suspicion from both Jane and Ann’s examinations. However, Dr. Marcy testified that Jane’s injuries were “definitely consistent” with someone who had been sexually abused “to a reasonable degree of medical certainty.” As the above testimony demonstrates, Dr. Marcy did not recount his findings in such unequivocal terms when discussing Ann; the physician’s testimony was that Ann’s injuries were “very consistent with anal penetration.”

¶ 19. “[Bjefore a qualified expert’s opinion may be received, it must rise above mere speculation.” Goforth v. City of Ridgeland, 603 So.2d 323, 329 (Miss.1992) (citing Fowler v. State, 566 So.2d 1194 (Miss.1990)). “[0]nly opinions formed by medical experts upon the basis of credible evidence in the case and which can be stated with reasonable medical certainty have probative value.” Catchings v. State, 684 So.2d 591, 596 (Miss.1996) (quoting Magnolia Hosp. v. Moore, 320 So.2d 793, 799 (Miss.1975)). Although an expert need not use the exact phrase, “reasonable degree of medical certainty,” this does not diminish the requirements for admissibility. Catchings, 684 So.2d at 597. This physician couched his opinion in terms of suspicion of probability, which, standing alone, absent additional corroborating evidence, is insufficient in a criminal ease.

¶ 20. Dr. Marcy did not express his medical opinion that Ann had been sexually abused “to a reasonable degree of medical certainty,” even though he did so concerning Jane. Additionally, in Jane’s case, her testimony and testimony from her foster mother and counselor provided substantial support for Dr. Marc/s findings. With Ann, there was no evidence to support the conviction for sexual battery other than Dr. MarcyA testimony. Reviewing the evidence in the light most favorable to the prosecution, we find that the evidence was insufficient to support a conviction for the sexual battery of Ann beyond a reasonable doubt. Moreover, the evidence, which was entirely circumstantial with regard to the charge concerning the younger child, Ann, fell far short of the applicable standard of proof of guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Therefore, we reverse and render the conviction of Williams on the sexual battery charge related to Ann.

II. Severance

¶ 21. Williams argues on appeal that the trial judge erred in overruling his motion to sever the two counts of the indictment. Williams was arraigned on August 2, 2006, but did not request a severance until two years later, on the first day of trial. The trial court heard arguments from both sides and denied the motion because it was untimely.

¶ 22. Williams argues that his motion was timely, relying on the language found in Uniform Rule of Circuit and County Court Practice 9.03:

The court may, on motion of the state or defendant, grant a severance of offenses whenever:
1. If before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
2. If during trial, upon the consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.

(Emphasis added.)

¶ 23. Although the rule permits a trial judge to sever offenses during trial, it is not reversible error for a trial judge to deny an untimely motion to sever, except under circumstances where the reasons supporting severance become apparent late in the process. Walker v. State, 729 So.2d 197, 200 (Miss.1998). Although Walker addresses motions to sever the trials of codefendants, and not motions to sever multicount indictments, its logic nevertheless is applicable to the instant case. In Walker, the Court held that it was not error to deny a defendant’s pretrial motion to sever his case from that of his codefen-dant when the motion was not filed until the morning of trial. Id. However, it was error for the trial judge not to reconsider the motion when it became apparent from the trial proceedings that one codefendant would be seriously prejudiced by the other’s defense. Id. at 200-02.

¶ 24. In the present case, nothing in the record suggests new developments or revelations during the two-year period between the date of arraignment and the morning of trial that would have given the defendant additional cause for severance. Thus, it was not error for the trial judge to deny Williams’s motion to sever the two offenses for trial.

III. Exclusion of Defense Evidence

1125. Williams argues that the trial court erred in excluding testimony regarding his relationship with his daughters. This Court reviews a trial court’s decision to admit or exclude evidence for an abuse of discretion. Ford v. State, 975 So.2d 859, 865 (Miss.2008) (citing Peterson v. State, 671 So.2d 647, 655 (Miss.1996)). We will not reverse unless the trial court applied an improper legal standard resulting in prejudice to the accused. Id. (citing Peterson, 671 So.2d at 656).

¶ 26. Williams called five individuals as character witnesses. The first two testified that he had a reputation as a truthful person and that he appeared to be a good father. When the third witness was asked about Williams’s relationship with his daughters, the State objected. The trial court refused to allow the remaining witnesses to testify that Williams was a good father, because the testimony was not provided to the State in pretrial discovery. The trial court also reasoned that the testimony was irrelevant, because none of the witnesses had observed the defendant with his children in the six months prior to the night of the incident involving Jane.

¶ 27. On appeal, Williams argues that the trial judge should have followed the procedures under Rule 9.04(1) of the Uniform Rules of Circuit and County Court Practice and granted a brief continuance to allow the State an opportunity to interview the witnesses. However, Williams does not address the trial court’s second reason for excluding the evidence, that is, that the testimony was irrelevant because none of the witnesses could establish that they had observed the defendant with his daughters at any time close to the alleged abuse. We do not find that the trial judge abused his discretion in excluding the evidence as irrelevant.

IV. Hearsay

¶ 28. Williams argues that the trial court erred in allowing Smith and Ballard to testify about the statements Jane had made to them about her abuse. He also argues that Dr. Marcy should not have been allowed to testify about the contents of the forensic interview. As noted above, the admission or exclusion of evidence is reviewed under an abuse-of-discretion standard, and we will not reverse unless an erroneous legal standard was applied that resulted in prejudice to the accused. Ford, 975 So.2d at 865.

A Tender-Years Exception

¶ 29. Before trial, the court held a hearing and determined that Smith and Ballard could testify about the statements Jane had made to them under the tender-years exception to the hearsay rule found in Mississippi Rule of Evidence 803(25). Under this rule,

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

M.R.E. 803(25). The comment to the rule contains a nonexhaustive list of twelve factors that the trial judge should consider when determining whether there are sufficient indicia of reliability:

(1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (8) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declar-ant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

M.R.E. Rule 808 (citing Smith v. State, 925 So.2d 825, 837 (Miss.2006); Hennington v. State, 702 So.2d 403, 415 (Miss.1997)). “[T]he unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” Bell v. State, 797 So.2d 945, 948 (Miss.2001) (quoting Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

¶ 30. The trial judge made an on-the-record determination that each factor favored admissibility of the statements, noting that: Jane had no motive to lie, the witnesses testified that Jane was truthful, more than one person had heard the statements, the statements were spontaneous and were made shortly after the incident, Jane had made the statements with certainty, there was no evidence that suggestive techniques were used, and, although Jane was very young, it would be difficult for her to fabricate such a story.

¶ 31. Williams argues, as he did at trial, that the statements could not be considered reliable because Jane could not provide details about the incident when she testified at the hearing. Throughout her testimony, Jane repeatedly answered questions with “I don’t know” or “I don’t remember.” Williams characterizes these statements as a recantation. The State counters that Jane was reluctant to testify at the hearing because she was face-to-face with her abuser. In rejecting Williams’s argument that Jane’s testimony was unreliable, the trial court acknowledged that Jane’s actions on the stand appeared to be related to fear, noting that as her testimony progressed, Jane “sank lower and lower in her chair.”

¶ 32. Williams also points to testimony that Jane was developmentally delayed and was often aggressive and defiant with adults. The State argues that, although she had a history of behavioral problems, there was testimony that she was generally well-mannered and communicated maturely for her age.

¶ 33. Reviewing the record, we cannot say that the trial court abused its discretion in allowing Smith and Ballard to testify about the statements Jane had made to them. The trial judge heard testimony from both witnesses, and the child herself, and determined that the statements were reliable, based on the factors listed in the comment to Mississippi Rule of Evidence 803(25). The defendant’s argument on this point is not persuasive.

B. Forensic Interview

¶ 34. Williams also argues that Dr. Marcy should not have been allowed to testify about the statements Jane gave during her forensic interview, as these constitute double hearsay. However, Dr. Marcy never testified about the specific statements and simply acknowledged that a forensic interview had been performed. Accordingly, we find this issue to be without merit.

V. Juror Misconduct

¶ 35. Williams argues that the jury was tainted because juror Melvyn Blackmon did not respond in voir dire examination to questions about his knowing one of the State’s witnesses, Wanda Jones. The trial court held a post-trial hearing on the matter, receiving testimony from Jones and Juror Blackmon, and determined that Blackmon had not been dishonest during voir dire examination and that she was not influenced by her acquaintance with Jones.

¶ 86. A trial judge’s decision that the jury was fair and impartial will not be disturbed on appeal unless it appears clearly that the decision is wrong. Fleming v. State, 687 So.2d 146, 148 (Miss.1997) (citing Odom v. State, 355 So.2d 1381, 1383 (Miss.1978); Chase v. State, 645 So.2d 829, 847 (Miss.1994); Bush v. State, 585 So.2d 1262, 1265 (Miss.1991)). A juror’s failure to respond to a question in voir dire does not warrant a new trial unless the trial court determines that the question propounded to the juror was (1) “relevant to the voir dire examination,” (2) “unambiguous,” and (3) such that “the juror had substantial knowledge of the information sought to be elicited.” Odom, 355 So.2d at 1383. If all three questions are answered in the affirmative, the court then determines “if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond.” Id.

¶ 37. During voir dire of the prospective jurors, the trial court read the list of potential witnesses and then asked, “any of you consider yourself close, personal friends with any of the witnesses I just named?” Later, Willliams’s attorney asked, “anyone have any close family members with the Department of Human Services that works with these kinds of situations?” Blackmon did not respond to either question because, according to her post-trial testimony, she did not recognize the name Wanda Jones. Both Blackmon and Jones testified that they did not know each other personally, but that they had met briefly, years earlier, when Blackmon had come to Jones’s workplace selling Avon products. Blackmon testified that she recognized Jones at trial and asked her whether she was “Brenda’s friend.” Jones nodded, but that was the extent of their interaction. At the sentencing hearing, the defendant noticed Jones and Blackmon sitting near each other; but both Jones and Blackmon testified that they were simply sitting with a group, and the two did not have a one-on-one conversation. Blackmon emphasized that her acquaintance with Jones had no bearing on her decision-making process.

¶ 38. Applying the Odom factors, we agree with the trial judge that Blackmon was justified in not responding to the questions asked during voir dire. The ve-nire members were asked whether they were “close, personal friends” of the witnesses or “close family members” of DHS employees. These questions were unambiguous and relevant. However, given that Jones was simply an acquaintance and that Blackmon did not recognize her name, Blackmon did not have “substantial knowledge of the information sought to be elicited.” Odom, 355 So.2d at 1383. The trial judge did not err in refusing to grant a new trial based on this issue.

VI. Jury Instruction Regarding Child Testimony

¶ 39. At trial, Williams requested that the jury be instructed to “view the testimony of [Jane] in light of [her] age and understanding” and to “give it such weight and credit as you deem it is entitled.” The trial court refused the instruction, and Williams argues on appeal that the refusal entitles him to a new trial.

¶ 40. Although this Court has held that a trial court may instruct the jury “to view the testimony in the light of the child’s age and understanding,” we also have held that the trial court’s granting of such an instruction is not mandatory, and its refusal to do so is not grounds for reversal. Robinson v. State, 662 So.2d 1100, 1106 (Miss.1995). See Bandy v. State, 495 So.2d 486, 493 (Miss.1986) (“If the jury is to be instructed at all with respect to the testimony of a child, it should be told to view the testimony in the light of the child’s age and understanding, not his veracity.”). We also are mindful of the general rule that “the trial judge should not give undue prominence to particular portions of the evidence in the instructions.” Sanders v. State, 586 So.2d 792, 796 (Miss.1991). We find that the trial court did not err by refusing the proposed instruction.

VII. Weight of the Evidence

¶ 41. Williams’s final argument is that his conviction of sexual battery of Jane is against the overwhelming weight of the evidence. When reviewing such a claim, the evidence is weighed in the light most favorable to the verdict. Bush v. State, 895 So.2d 836, 844 (Miss.2005) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). This Court will not order a new trial unless it finds that “the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice.” Id. (citing Herring, 691 So.2d at 957).

¶ 42. Williams briefly argues that Jane was “unstable, she recanted, she was aggressive, and did not follow rules.” In addition, he contends, “not knowing whether she was tainted in the forensic interview makes all of the evidence which might arguably support the verdict unreliable and tainted.” We find these arguments unpersuasive. Although Jane claimed she did not know about the abuse or could not remember it at the pretrial hearing, she testified at trial about the incident without any apparent difficulty and was cross-examined by the defendant. Her foster mother and counselor also testified that Jane had told them about the abuse shortly after it happened. Finally, Dr. Marcy testified that, in his expert medical opinion, Jane had been sexually abused “to a reasonable degree of medical certainty.” We find that the trial court did not err in refusing to grant a new trial.

Conclusion

¶43. Given that the State failed to present sufficient evidence to support the jury’s verdict that Williams had sexually abased his daughter, Ann, that conviction is reversed and rendered. However, the conviction related to the alleged sexual abuse of Jane (Count I) is not against the overwhelming weight of the evidence, and no error related to that charge was committed at trial. Accordingly, the conviction of Williams for the sexual abuse of Jane and the sentence of thirty years in the custody of the Mississippi Department of Corrections are affirmed.

¶ 44. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., DICKINSON AND LAMAR, JJ., CONCUR. GRAVES, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, CHANDLER AND PIERCE, JJ.

GRAVES, Presiding Justice,

Concurring in Part and Dissenting in Part:

¶ 45. I agree with the majority’s findings regarding all issues except the first issue: whether the State presented sufficient evidence to support the jury’s verdict that Williams had sexually battered his younger daughter, Ann. The record reveals that there was sufficient evidence to support such a finding. In addition to the medical evidence consistent with sexual abuse brought forth through Dr. Marcy’s testimony, the jury had the opportunity to observe the testimony of the three individuals, including Williams, who had cared for Ann before she was placed in foster care. Based on the substance of the expert and lay witness testimony, as well as on observation of the witnesses’ demeanors, it was reasonable for the jury to conclude that Williams had sexually battered Ann.

¶ 46. An inquiry into whether evidence is sufficient to sustain a conviction “does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Johnson v. State, 950 So.2d 178, 182 (Miss.2007). Rather, as the majority notes, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. See also Moore v. State, 996 So.2d 756, 760 (Miss.2008). This Court must accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom. Moore, 996 So.2d at 760.

¶47. The jury determines the weight and credibility to give witness testimony and other evidence. Massey v. State, 992 So.2d 1161, 1163 (Miss.2008). This Court may not “pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Id. (quoting Davis v. State, 568 So.2d 277, 281 (Miss.1990)).

¶ 48. A rational trier of fact could have found that the essential elements of the crime of sexual battery of Ann were established beyond a reasonable doubt. The jury instructions explained the elements of the crime:

The defendant, NICKEY WILLIAMS has been charged in Count II of the indictment with the felony crime of Sexual Battery of [Ann]. If you find from the evidence in this case beyond a reasonable doubt that:
(1) [Ann], at the time of the offense was a child under the age of fourteen (14) years, having a date of birth of April 20, 2005, and
(2) the defendant NICKEY WILLIAMS, at the time of the offense was twenty-four (24) or more months older than [Ann], having a date of birth of October 7, 1973, and
(3) between the dates of April 20, 2005 and February 14, 2006, the defendant, NICKEY WILLIAMS, did willfully, unlawfully and feloniously engage in sexual penetration with [Ann] by inserting a part of his body and/or an unknown object into the anus of [Ann].
then you shall find the defendant, NICKEY WILLIAMS, guilty of Sexual Battery in Count II of the indictment. ...

The first two elements — Ann’s and Williams’ dates of birth — are not in dispute, and a rational trier of fact could find the third element — the sexual penetration of Ann’s anus — to be true beyond a reasonable doubt.

¶ 49. While there is no statement or testimony from Ann because she was only ten months old at the time of the alleged abuse, Dr. Marcy’s medical findings strongly support a finding of sexual battery. Dr. Marcy explained to the jury, using photographs of Ann’s anus taken during his examination of her, that Ann’s anus was inflamed and swollen. He explained that a baby should have linear folds around the anus, radiating out from the middle to the outside, but the swelling and inflammation had caused the folds around Ann’s anus to disappear. Dr. Marcy also testified that a baby’s anus should be round, but due to stretching or swelling, Ann’s anus was an irregular shape. In addition, Ann had a Y-shaped fissure (which is a tear in the skin that reveals the raw tissue underneath) outside the anal opening. Dr. Marcy testified that a very large, hard bowel movement could cause a fissure, but that if it did, it would tend to tear the inside of the anal opening. He explained that the fissure on Ann’s anus, which extended well outside the anal opening, was more likely caused by something being pushed into the anus. The fissure on Ann’s anus would be more consistent with digital penetration than with a bowel movement, he elaborated. Based solely on his physical exam of Ann and not considering any other evidence, such as the evidence indicating that Jane was sexually abused, Dr. Marcy concluded that Ann’s anal injuries were consistent with anal penetration and it was “probable” — the next-to-highest level of suspicion — that Ann had been sexually abused.

¶ 50. While Dr. Marcy may not have testified that Ann’s injuries were consistent with sexual abuse “to a reasonable degree of medical certainty,” as he did regarding Jane’s injuries, his testimony and findings suggest that Ann’s injuries were even more indicative of sexual abuse than Jane’s were. Dr. Marcy concluded that, based solely on the physical evidence, it was “possible” that Jane had been sexually abused, but consideration of other factors, including Jane’s allegations against Williams, led him conclude that it was “probable” that Jane had been sexually abused. In contrast, Dr. Marcy was able to conclude that it was “probable” that Ann had been sexually abused based solely on the physical evidence — i.e., without consideration of any other factors. Therefore, there is no reason to believe that, had Dr. Marcy been asked to phrase his findings regarding Ann in terms of “reasonable degree of medical certainty,” Dr. Marcy would not have stated that Ann too was sexually abused “to a reasonable degree of medical certainty.”

¶ 51. The majority states that Dr. Marcy “couched his opinion (regarding Ann] in terms of suspicion of probability, which, standing alone, absent additional corroborating evidence, is insufficient in a criminal case.” First, the majority is taking the words “suspicion of probable,” stated in Dr. Marcy’s testimony, out of context. As can be seen in the quoted portion of Dr. Marcy’s testimony discussing Ann included in the majority opinion, Dr. Marcy stated, “I came to the next to highest level of suspicion of probable.” In other words, of the “four levels of suspicion of child abuse” — “unlikely, possible, probable, and definite” — Dr. Marcy concluded that a suspicion-level classification of “probable” was most appropriate, given Ann’s injuries. Second, the majority’s conclusion that Dr. Marcy “couched his opinion [regarding Ann] in terms of suspicion of probability, which, standing alone, absent additional corroborating evidence, is insufficient in a criminal case” is unsound in that Dr. Marcy also couched his opinion regarding Jane in terms of “suspicion of probability.” As noted above, Dr. Marcy found that it was “probable” (not “definite”) that Jane had been sexually abused (yet the majority concludes that there was sufficiently weighty evidence to convict Williams for sexual battery of Jane).

¶ 52. In summary, the majority is misconstruing Dr. Marcy’s testimony and also placing more significance than is justified on Dr. Marcy’s stating that Jane’s injuries were consistent with sexual abuse “to a reasonable degree of medical certainty.” The majority itself notes that an expert need not use the phrase “to a reasonable degree of medical certainty” in describing his findings.

¶ 53. The majority states that “[t]he only evidence that Ann was sexually abused was Dr. Marcy’s testimony.” However, in addition to the medical evidence, there is the fact that, from Ann’s birth until she was placed in foster care at ten months of age, Ann was cared for almost exclusively by only three individuals: Williams, Kimberly Williams, and Kimberly’s grandmother, Iris Culver, all of whom testified at the trial and denied sexually abusing Ann. Both Kimberly and Kimberly’s grandmother testified that they had never inserted any object into Ann’s anus. Kimberly explained that, before Ann was placed in foster care, Williams was frequently left alone with Ann when Kimberly was working or out-of-town, which was often. The only explanation Williams offered regarding the condition of Ann’s anus was that Ann’s baby formula caused her to be constipated and then to have large, hard bowel movements. As mentioned, Dr. Marcy testified that the fissure on Ann’s anus was more consistent with something being pushed into the anus than with a bowel movement.

¶ 54. In addition, while certainly not determinative of whether Ann was sexually abused, Ms. Smith, Ann and Jane’s therapeutic foster mother, testified that when Ann was first placed with her, Ann “had no emotion” but now “she’s wide open” and “has blossomed.”

¶ 55. The jury heard the medical evidence and the testimony of the three individuals who had cared for Ann before she was placed in foster care. Based on the testimony presented and their observations of the witnesses, the jurors came not to believe Williams’ denial of guilt nor his explanation for Ann’s anal injuries. As stated above, it is not for this Court to “pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Massey, 992 So.2d at 1163. Thus, based solely on evidence presented at trial that was specific to Ann, and viewing it in the light most favorable to the prosecution, a rational trier of fact could have found that the elements of sexual battery of Ann were established beyond a reasonable doubt.

¶ 56. Therefore, I concur regarding issues “two” through “seven,” but must dissent regarding issue “one” because I conclude that there was sufficient evidence to support the jury’s verdict that Williams had sexually battered Ann. Accordingly, I would affirm the judgment of the trial court, convicting Williams on both counts of sexual battery.

RANDOLPH, CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.

      . Jane and Ann are pseudonyms.

      . The record does not reveal the disposition of the charges against Kimberly Williams.

      . The trial judge did not allow a third witness to testify, ruling that the statements made to this witness by Jane were too vague to be indicative of sexual abuse.


source: Caselaw Access Project

author: RANDOLPH, Justice, KITCHENS, Justice,

license: Public Domain

text:
    GULF SOUTH PIPELINE COMPANY, LP v. Blanche Marie Downey PITRE.
    No. 2007-CT-01308-SCT.
    Supreme Court of Mississippi.
    April 15, 2010.
    Rehearing Denied June 10, 2010.

      Leann W. Nealey, Jackson, Fred Exzell Bourn, III, Robert C. Galloway, Gulfport, attorneys for appellant.
    David M. Sessums, Vicksburg, attorney for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court:

¶ 1. Gulf South Pipeline Company (“Gulf South”) sought a 5.59-acre easement and right-of-way for a forty-two-inch pipeline through 115 acres of property owned by Blanche Pitre in Warren County, Mississippi. During trial in the Warren County Special Court of Eminent Domain, Gulf South’s appraiser, Brent Johnston, valued the property to be taken at $38,250 and opined that the remainder of the property would be unaffected. Johnston testified (1) that no severance damages were due because of the pre-existing presence of a power line; (2) that, “because of the 700-foot distance between the pipeline and the other buildings,” no other damages arose; and (3) that “in the market I found no difference between property with a pipeline and not.”

¶ 2. Pitre’s appraiser, James Hamilton, opined that total damage to Pitre’s property, including damage to property not taken, was approximately $175,000. Hamilton used sales comparables for the property actually taken and valued it at $5,000 per acre. However, regarding damage to property not taken, Hamilton opined that such property would suffer an additional fifteen percent diminution in value, the shop would suffer an additional thirty percent diminution in value, and the house would suffer an additional twenty percent diminution in value. Hamilton testified that, in formulating his opinion for the additional diminution in value to the remainder property, shop, and house, he could not find sales comparables. Thus, he failed to offer evidence that he: (1) had applied established and reliable principles or methods; (2) had relied on accepted publications or other authoritative appraisal texts; or (3) otherwise had utilized underlying facts or data to support his opinion as to the remainder. Hamilton maintained that:

[j]ust about everything that we do is the opinion of the appraiser. And we either back it up with education and all of the information that we can get to arrive ... at our opinion. But when it ... gets down to it, it’s our opinion as to ... value....

In Hamilton’s estimation, “[fit’s tainted property. It’s got that gas line on it, and people are going to be scared of it.”

¶ 3. Over objection, the trial court admitted Hamilton’s testimony regarding diminution to the remainder, despite his earlier testimony that the reliability of an appraisal is dependent upon (a) the availability of comparable sales data; (b) the verification of the sales data; (c) the degree of comparability or extent of adjustment necessary for time differences; and (d) the absence of nontypical conditions affecting the sales price. Following a jury verdict in favor of Pitre for $175,000, Gulf South moved for judgment notwithstanding the verdict, which was denied. On appeal, the Mississippi Court of Appeals affirmed. See Gulf South Pipeline Co. v. Pitre, 35 So.3d 519, 520 (Miss.Ct.App.2009). According to the Court of Appeals:

[w]e cannot hold Hamilton’s testimony to a strict Daubert [] 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.

Pitre, 35 So.3d at 523.

ISSUE

¶ 4. This Court will consider:

Whether an appraiser can offer opinion testimony on diminution, or lack thereof, without utilizing any of the three recognized methods for determining the fair market value of real property.

ANALYSIS

¶ 5. The Mississippi Constitution states that “[pjrivate property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof....” Miss. Const, art. 3, § 17 (1890). “[T]he words ‘or damaged’ were added to the Constitution to secure [for] a private property owner ... damages not covered by the actual taking.” Potters II, 608 So.2d at 1230 (citing Parker, 162 So. at 163). This Court has stated that “just compensation in cases involving a partial taking is generally the value of the part taken plus all the damages which the residue of the property suffers, including a diminution in the value of the remainder.” Miss. State Highway Comm’n v. Franklin County Timber Co., 488 So.2d 782, 785 (Miss.1986). In eminent-domain cases, “[t]he condemnor has the burden of proving the value of the condemned property.” Ellis v. Miss. State Highway Comm’n, 487 So.2d 1339, 1342 (Miss.1986). “After a prima facie case has been made out by the condemnor, then, if the landowner expects to receive more compensation than that shown, he must go forward with the evidence showing such damage.” Id. (quoting Miss. State Highway Comm’n v. Crooks, 282 So.2d 232, 235 (Miss.1973)).

¶ 6. Three standards are accepted in determining fair market value for real property: (1) the cost approach, (2) the income-capitalization approach, and (3) the market-data or comparative-sales approach. See Rebelwood, 544 So.2d at 1360; Franklin County, 488 So.2d at 785. “These approaches do not, considered singly, establish value. Each rather is one approach to value, with the appraiser’s estimate of value being, in the end, an opinion which is the product of a reconciliation of the indications yielded by the three approaches.” Rebelwood, 544 So.2d at 1360. See also Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 947 (Miss.2008) (“all three methods of valuation need not be considered in every appraisal, particularly those of non-commercial property”). The market-data or comparable-sales approach was used by the experts for both parties for the property actually taken, but not for the remainder. Using that approach, “the value estimate is predicated upon prices actually paid in open market transactions for various properties similar to the one at issue in the appraisal.” Rebelwood, 544 So.2d at 1360-61 (emphasis added). Neither expert offered admissible market-data or comparable-sales evidence for the diminution, or lack thereof, in the value of the remainder.

¶ 7. Mississippi Rule of Evidence 702 provides that:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702 (emphasis added). This Court has stated that “[u]nder the modified Daubert standard, the trial court must first determine whether expert testimony is relevant and, second, whether the proffered testimony is reliable.” Adcock, 981 So.2d at 946-47 (emphasis added). No serious question arises as to relevancy. Certainly, the value of property is relevant in an eminent-domain taking. See Tunica County v. Matthews, 926 So.2d 209, 214 (Miss.2006). In determining reliability, the:

[f]actors to consider may include “whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether ... 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 the expert’s particular field.

Adcock, 981 So.2d at 947 (quoting Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 37 (Miss.2003)).

¶ 8. Under Rule 702, “trial courts are charged with being gatekeepers in evaluating the admissibility of expert testimony.” Watts v. Radiator Specialty Co., 990 So.2d 143, 146 (Miss.2008) (citation omitted). In short, “[t]he trial judge has the sound discretion to admit or refuse expert testimony; an abuse of discretion standard means the judge’s discretion will stand unless the discretion he used is found to be arbitrary and clearly erroneous.” Troupe v. McAuley, 955 So.2d 848, 856 (Miss.2007) (quoting Poole v. Avara, 908 So.2d 716, 721 (Miss.2005)) (emphasis added). However, merely speculative expert opinions should not be admitted. See Edmonds v. State, 955 So.2d 787, 792 (Miss.2007) (“a court should not give ... an expert carte blanche to proffer any opinion he chooses”); Matthews, 926 So.2d at 214 (“the trial court is vested with a gatekeeping responsibility to prevent the admission of expert testimony based on guess or conjecture”); McLemore, 863 So.2d at 41.

¶ 9. Neither expert’s testimony as to diminution of the remainder satisfies the requirements of our rules and established caselaw. Both failed to use time-tested techniques, supported by peer review or publications, and/or industry standards generally accepted within his field of expertise. Neither offered comparable sales, whether from Warren County, or any other county in this state. Hamilton offered no pretense that he was following any recognized method or procedure acceptable in the appraisal industry, and he admitted he was not relying on peer-reviewed articles or industry publications. Furthermore, Hamilton’s claim that no comparisons were available defies both judicial knowledge and the evidence excluded by the trial court. See footnote 3 supra. Pipelines run through numerous counties in Mississippi and have for more than half a century. Pipelines and power grids cross thousands of tracts of land in Mississippi. As such, finding comparable sales with utility or pipeline rights of way should present no impediment to applying the methods utilized in the appraisal industry and previously accepted by the courts of this State. See Rebelwood, 544 So.2d at 1360; Franklin County, 488 So.2d at 785.

¶ 10. Although there is no dispute that both experts were qualified appraisers, the lack of an acceptable methodology to formulate the subject opinions fails a Daubert analysis. See footnote 5 supra. Where an expert admits that no basis satisfying the accepted criteria for that profession exists for an opinion, the opinion should be excluded. See Edmonds, 955 So.2d at 792; Matthews, 926 So.2d at 214; McLemore, 863 So.2d at 41. Hamilton’s testimony was purely subjective, little more than rank speculation. As Hamilton’s opinion lacked reliability when examined through the lens of Rule 702, it should have been excluded. The Warren County Special Court of Eminent Domain abused its discretion by admitting the subject opinion testimony into evidence.

CONCLUSION

¶ 11. Accordingly, we reverse the trial court and the Court of Appeals and remand for a new trial consistent with this opinion.

¶ 12. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P. J.

KITCHENS, Justice,

dissenting:

¶ 13. I do not agree that the trial court abused its discretion in allowing Pitre’s expert, James Hamilton, to testify, and I would affirm the jury verdict in favor of Pitre, based in part on this Court’s “longstanding history of not disturbing jury verdicts in eminent domain proceedings.” Trowbridge Partners, L.P. v. Miss. Transp. Comm’n, 954 So.2d 935, 944 (Miss.2007).

¶ 14. At the time of trial, Hamilton, Pitre’s designated expert, had lived in Vicksburg for seventy-six years and had worked in the real estate business since 1954. He obtained his broker’s license in 1967 and his license to appraise both residential and commercial properties in the early 1990s. Hamilton testified concerning numerous professional accomplishments over a long career in real estate and, quite correctly, was accepted as an expert witness by the trial court. Notably, he had testified as an expert witness in at least forty eminent domain cases.

¶ 15. With regard to his testimony, Hamilton used comparable sales to establish the fair market value of Pitre’s property and determined that the 115-acre parcel was worth $5,000 per acre before the taking, an amount $1,000 per acre less than the fair market value established by Gulf South’s expert appraiser. However, Hamilton was unable to find a suitable comparable sale by which to measure the diminution in value of Pitre’s remainder. Clearly, this was due to the unique characteristics of the property at the time of the appraisal. To that end, Hamilton testified,

We can find land [comparable sales] when we go out just about anytime. We can find house [comparable sales] about anywhere. But you find houses with land with gas lines and pipelines on it and find sales of that type of property, that’s kind of hard to do.... If I could have found any, I would have.

Notwithstanding this uncontradicted testimony before the jury, the majority notes that Hamilton’s assertion that no comparable sales existed defies judicial knowledge. Maj. Op. at ¶ 9. However, when an expert witness’s testimony defies judicial knowledge, which falls far short of omniscience, our inclination should be to defer to the testimony of a qualified expert, rather than disregard it altogether. To be sure, the court’s need for, .and reliance on, expert witnesses is rooted in the reality that expert analysis and opinion usually exceed the knowledge and understanding of technical subject matter that is reposed in the minds of mere jurists and jurors.

¶ 16. Here, neither expert presented evidence of comparable sales to the jury to undergird their opinions regarding diminution of value of the parcel. Gulf South’s expert testified that the diminution in the value of the land was zero, and Pitre’s expert testified that the diminution in the value of the land amounted to 15% for the remainder of the parcel not taken by eminent domain, 20% for the house, and 30% for the barn, the barn being nearer the pipeline than the house. Hamilton testified that his opinion was based on his expertise, training, and certification in the field of real estate appraisal, and that “[j]ust about everything [appraisers] do is the opinion of the appraiser.”

¶ 17. It is not for this Court to establish, by judicial fiat, the “standards ... accepted in determining fair market value for real property.” Maj. Op. at ¶ 6. We should not be in the business of dictating methodology to real estate appraisers, or to experts in any other field. It is they, and not we, who are the experts in then-respective disciplines. The fact that neither party’s expert based his opinion on comparable sales is telling. Such information is not always available, and when it is not, as here, qualified appraisers, such as these, may resort to other appropriate and accepted methodology, including, but not necessarily limited to, their professional judgment, born of experience.

¶ 18. I would hold that the evidence presented by both experts was both reliable and relevant, and that it was the prerogative of the jury to weigh their relative credibility and the validity of their opinions. That was done here, and the jury, having heard and considered the testimony of both experts, concluded that Pi-tre was entitled to $175,000 for the taking of his land. Accordingly, I would affirm.

GRAVES, P.J., JOINS THIS OPINION.

      . According to Gulf South’s "Complaint to Exercise Right of Eminent Domain,” the pipeline "shall be buried during construction to provide a minimum cover of not less than thirty-six inches.... ” Furthermore, as noted by Gulf South, the pipeline is "parallel to an existing high-voltage power line easement” on the subject property.

      . Using sales comparables, Johnston determined that the property actually taken was worth approximately $6,000 per acre.

      . Sales comparables relating to properties through which a gas line passed, used by Johnston and referenced in his deposition, were excluded by the trial court and marked for identification only. Specifically, the trial court stated:
      [t]he Rules of Civil Procedure ... have a duty to timely and seasonblfy] supplement discovery. The comparables that Mr. Johnston was getting ready to testify to yesterday ... were supplied to [counsel for Pitre] on June 8th, which was a Friday afternoon. This trial has been set for June ... 13th for some time. It’s been continued several times. I find that that is not ... timely and seasonable.... So, therefore, any testimony regarding those comparables is hereby disallowed.

      . See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . While not raised, but certainly applicable on remand, is Johnston’s testimony on lack of diminution of the remainder. Johnston's testimony fails a Daubert analysis, as the evidence offered regarding comparable sales properly was excluded from jury consideration. Gulf South’s evidence of diminution of value, or lack thereof, does not address "damages not covered by the actual taking.” Potters II v. State Highway Comm’n of Miss., 608 So.2d 1227, 1230 (Miss.1992) (citing Parker v. State Highway Comm'n, 173 Miss. 213, 219, 162 So. 162, 163 (1935)). In so holding, this Court makes no comment regarding whether the excluded comparable sales sufficiently constituted "properties similar to the one at issue in th[is] appraisal.” Rebelwood, Ltd. v. Hinds County, 544 So.2d 1356, 1360-61 (Miss.1989).

      . Contrary to the dissent's assertion that this Court established by "judicial fiat” the accepted standards for real estate appraisers, this Court has merely adopted the industry standard, to be followed as a prerequisite to offering opinion testimony. Without coincidence, that industry standard is also the "statutorily-authorized” standard. Rebelwood, 544 So.2d at 1360. The dissent's suggestion that this Court has dictated the methodology is not supported by the precedent followed by the courts of this State for years.

      . Johnston’s attempt to satisfy our Rule 702 concerns was properly excluded. See footnote 3 supra.

      . The "statutorily-authorized” standard mentioned by the majority and by this Court in Rebelwood, Ltd. v. Hinds County, 544 So.2d 1356, 1360 (Miss.1989), is used by the State to determine the "true value” of a parcel for the sole purpose of assessing ad valorem taxes. Miss.Code Ann. § 27-35-50 (Rev.2006). Real estate appraisers in eminent domain cases, or otherwise, are not statutorily mandated to adhere to this method of appraisal. Id.


author: RANDOLPH, Justice,

text:
    Floyd ROBINSON v. STATE of Mississippi.
    No. 2007-CT-02202-SCT.
    Supreme Court of Mississippi.
    May 13, 2010.

      Office of Indigent Appeals by Leslie S. Lee, Justin Taylor Cook, Glenn S. Swartz-fager, Latisha Nicole Clinkscales, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court:

¶ 1. Floyd Robinson was indicted for the murder of his on-again, off-again girlfriend, Bridget Moore. Following a jury trial in the Circuit Court of Oktibbeha County, Mississippi, Robinson was found guilty as charged and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (“MDOC”). Following denial of his “Motion for Judgment Notwithstanding the Verdict,” Robinson filed notice of appeal. The Mississippi Court of Appeals, in a five-four split, affirmed. See Robinson v. State, 35 So.3d 524, 525-26 (Miss.Ct.App.2009). This Court granted Robinson’s “Petition for Writ of Certiorari.”

FACTS

¶ 2. On the afternoon of November 30, 2005, Moore’s body was discovered inside her home. Moore had a gunshot wound, a bruise on her head, a bruise and minor scratches on her right arm, scrape marks on the backs of her calves, and a scratch and dried grass on her right knee. Officers from the Starkville Police Department found, inter alia, an unused .25 caliber shell casing in Moore’s front yard. On the right side of Moore’s front steps, the officers found two of Moore’s broken fingernails.

¶ 3. That same evening, Robinson was arrested at his home in Columbus, Mississippi, and taken to the interview room at the Columbus Police Department. A subsequent four-and-one-half-hour interrogation spanned into the early morning hours of December 1, 2005, and parts were vid-eorecorded. The interrogation included prior domestic-violence allegations against Robinson by Moore and another former girlfriend, Marilyn McKinney. For example:

Detective 1: ... Let me read this one to you....
I, Officer Williams, took a report from [McKinney].... It said ... her boyfriend, [Robinson], ... constantly keeps threatening her about killing her. He’s 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.
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.
Detective 1: ... I got two different women saying ... you are doing these things to them. What do you say to them? ... First — tell us what happened with [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.

(Emphasis added.)

¶ 4. During the interrogation, Robinson signed a statement, which he subsequently supplemented. On December 2, 2005, Robinson signed a second statement. These statements provided that, after an argument at Moore’s home, Moore had pulled a gun on Robinson and, in the ensuing struggle, they had fallen to the ground, the gun had discharged, and the bullet had struck Moore.

¶ 5. On January 18, 2006, Robinson was indicted for “unlawfully, wilfully, and felo-niously, with deliberate design to effect death, killing] and murder[ing] [Moore], without authority of law and not in necessary self defense, in violation of [Mississippi Code] § 97-3-19_” Trial commenced on January 29, 2007.

¶ 6. During the State’s case-in-chief, a DVD recording of Robinson’s November 30, 2005, interrogation was tendered as an exhibit. Counsel for Robinson objected and moved to suppress the DVD recording. According to counsel for Robinson, outside the jury’s presence, “[t]here is inadmissible information concerning a possible criminal background of [Robinson]. I don’t know if we can redact those portions.” The circuit court overruled Robinson’s objection and motion to suppress, stating that “[t]he completeness of the issue that I have, that’s what they’re doing is interrogating a homicide. That is different than eliciting evidence of a prior crime or criminal act.” The DVD recording was received into evidence and played before the jury in its entirety.

¶ 7. After the State rested and Robinson’s motion for directed verdict was overruled, Robinson took the witness stand. On direct examination, Robinson acknowledged that he had a prior physical confrontation with Moore in 2004 when “she stuck her fingernail in my eye.... ” Despite that altercation, Robinson continued to live with Moore until July 2005, when she “called the police on me to come and get my clothes out of her house.” During this incident, Robinson admitted to pushing Moore. Thereafter, Robinson moved back to his home in Columbus, although he continued to stay at Moore’s home “[t]wo or three times out of a week.... ” On the evening of November 29, 2005, Robinson testified that the same McKinney brought food to his home and stayed for a few minutes when “[t]he phone rang, and it was [Moore] calling.” Robinson went over to Moore’s home. According to Robinson, while in bed, watching television with Moore:

I said [referring to a television character] that’s an ugly lady there, and she said probably like your [bitch] look like.... 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 ... we just kept on talking. I said, well, I don’t know.

After an argument ensued, Robinson claimed that he got up to leave, and Moore struck him in the back. As Robinson proceeded to leave, he realized he had forgotten his keys, and as he turned around, he saw “she had the gun.” According to Robinson:

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 that’s when the gun went off.... I thought I was shot, and she said she thought she was shot.... I walked her back up to the steps. And she told me, ... she was kind of tired.... I said, I’m fixing to go. I seen the gun. I grabbed the gun. I said I’m fixing to go. You know, the police come around here. I’m already on probation. ... And I said I’ll call you back.

In claiming that Moore’s death was the result of an accident arising out of his act of self-defense, Robinson maintained that he loved Moore and had no reason to harm her.

¶ 8. On cross-examination, the prosecutor was warned by the circuit court for the following argumentative questions, “[g]ot any scratches on you face, nose bleeding? Did you look like Marilyn McKinney?” (Emphasis added.)

¶ 9. The jury found Robinson guilty of murder, and he was sentenced to life imprisonment by the circuit court. Following denial of his “Motion for Judgment Notwithstanding the Verdict,” Robinson filed notice of appeal.

COURT OF APPEALS PROCEEDINGS

¶ 10. The Court of Appeals affirmed Robinson’s conviction. See Robinson, 35 So.3d at 530. Regarding “Issue II. Prior Bad-Acts Evidence,” the Court of Appeals found that:

the challenged portion of the DVD at issue was that Robinson had previously been violent with [McKinney], rather than [Moore]. That evidence does not tend to demonstrate a continuing or escalating pattern of violence against [Moore], Instead, it tends to persuade the jury that, because Robinson was violent with [McKinney] on May 2k, 2003, he was more likely to have been violent with [Moore] 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.

Id. at 528 (emphasis added). However, based upon Robinson’s testimony, the Court of Appeals held that this error was harmless. Specifically:

Robinson said he ... told [Moore] 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 [Moore] and [McKinney]. Because Robinson testified as to his prior conviction for domestic violence against [McKinney], and used that prior conviction as his justification for leaving [Moore’s] house after [she] 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 [McKinney].

Id. at 528 (emphasis added).

¶ 11. The Court of Appeals’ dissent countered:

[i]t 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. 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-aets 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.
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 [Moore], Before Robinson uttered the first word in his defense, the State had introduced the improper prior-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.

Id. at 535 (King, C.J., dissenting) (emphasis added).

ISSUE

¶ 12. This Court will consider:

Whether the circuit court abused its discretion in admitting evidence of Robinson’s prior bad acts.

ANALYSIS

¶ 13. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.... The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990) (citations omitted).

¶ 14. Robinson argues that “it’s impossible to un-ring a bell[,]” and “it was impossible for the jury to disregard the highly prejudicial prior-bad-acts evidence.” According to Robinson, the Court of Appeals’ “harmless error determination creates a ‘pre-impeachment’ exception to the [Rules’] prohibition on the admission of prior-bad-acts evidencef,]” such that defendants are left with two undesirable options:

either take the stand and attempt to explain away and/or mitigate the prejudice already caused by the evidence, or, sit on one’s hands, ignore one’s Constitutional right to testify, assure one’s own conviction based on the prejudicial prior-acts-evidence, and hope that the Appellate court rules in his or her favor.

¶ 15. Mississippi Rule of Evidence 404(b) provides that “[ejvidence 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 ....” Miss. R. Evid. 404(b). See also Eubanks v. State, 419 So.2d 1330, 1331 (Miss.1982) (“Mississippi follows the general rule that proof of a crime distinct from that alleged in the indictment should not be admitted in evidence against the accused.”). “This rule 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 (Miss.1999). See also Floyd v. State, 166 Miss. 15, 148 So. 226, 230 (1933) (“[s]ueh evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and, while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him.”).

¶ 16. We agree with the Court of Appeals that the circuit court erred in admitting the disputed portions of the DVD recording. See Robinson, 35 So.3d at 527-28, 530 (King, C.J., dissenting). Robinson was indicted only for Moore’s murder, arising out of the November 29, 2005, incident. Nonetheless, the circuit court admitted evidence that Robinson previously had “constantly ke[pt] threatening [McKinney] about killing her[,]” and that “[h]e’s 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.” Moreover, regarding the specific incident of May 24, 2003, involving McKinney, the jury was presented with evidence that Robinson “went ballistic, and started to push, kick and pull out [McKinney’s] hair. He pulled a gun on her.... ” As stated by the Court of Appeals, “[t]hat evidence ... tends to persuade the jury that, because Robinson was violent with [McKinney] ..., he was more likely to have been violent with [Moore] on November 30, 2005, and— by extension he was more likely to have been guilty of the allegations against him.” Id. at 528. Given the facts of this case, the evidence clearly was inadmissible under Rule 404(b). Therefore, its admission was outside the boundaries of the circuit court’s discretion. See Miss. R. Evid. 404(b); Jasper, 759 So.2d at 1141; Johnston, 567 So.2d at 238; Floyd, 148 So. at 230.

¶ 17. The question then becomes, is this error harmless? This Court rejects the Court of Appeals’ reasoning that Robinson’s subsequent testimony cured this error. As cogently explained by the Court of Appeals dissent, “[b]efore Robinson uttered the first word in his defense, the State had introduced the improper prior-bad-acts evidence, and the damage had been done.” Robinson, 35 So.3d at 535 (King, C.J., dissenting). Not only had the damage been done with respect to the jury being presented with inadmissible, prejudicial evidence, but also, Robinson’s constitutional right to testify (or refrain therefrom) had been compromised. See U.S. Const, amend. V (“[n]o person shall ... be compelled in any criminal case to be a witness against himself....”). Based upon the admission of this evidence, Robinson was presented with the options of either taking the witness stand in an attempt to mitigate the prejudice caused, or foregoing that right and permitting the jury’s consideration of such evidence without response. Subsequent testimony does not cure this error.

¶ 18. In sum, the disputed portions of the DVD recording were inadmissible under Rule 404(b). See Miss. R. Evid. 404(b); Jasper, 759 So.2d at 1141; Floyd, 148 So. at 230. The circuit court’s error in admitting such prejudicial evidence was not rendered harmless by Robinson’s subsequent testimony. Therefore, the circuit court’s admission of such evidence constituted an abuse of discretion, requiring that this Court reverse and remand for a new trial.

CONCLUSION

¶ 19. We reverse the circuit court and the Court of Appeals and remand for a new trial.

¶ 20. REVERSED AND REMANDED.

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

      . Judge Maxwell, not participating.

      . A more complete version of the following discussion can be found in the dissenting opinion in Robinson. See Robinson, 35 So.3d at 531-33 (King, C.J., dissenting).

      . While the interrogation lasted four-and-one-half hours, the DVD recording included only three of those hours. However, the prior domestic-violence allegations, see ¶ 3 supra, were included on the DVD recording.

      4.Specifically, "[t]here is evidence of a criminal proceeding involving another young lady, which had nothing to do with [Moore].”

      5. Regarding his probation, Robinson testified that it arose from the domestic-violence incidents involving Moore and McKinney, to which he had pleaded guilty. In explaining those guilty pleas, however, Robinson stated that the "only reason I pled guilty [was] because I had just started working at Weyerhau-ser. And I said, well, ... since I can't take off work to be coming back to court, ... I’ll go ahead and plead guilty and pay the fine and be through with it.”
      As to why his probation compelled him to leave Moore’s home, Robinson explained on cross-examination that his probation prohibited him from seeing Moore, even though they were still in a relationship.

      6. Robinson stated that Moore was not bleeding when he left her home. He could not explain how Moore got back into her home following the shooting.

      7. The Court of Appeals later stated that "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 [Moore's] home, as a strategic trial decision to attempt to explain his otherwise unexplainable flight.” Id. at 529.

      . Rule 404(b) also lists several exceptions to this rule, providing that such evidence “may ... be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Miss. R. Evid. 404(b). Regarding the disputed portions of the DVD recording, however, none of these exceptions applies.


author: WALLER, Chief Justice,

text:
    In the Matter of the DISSOLUTION OF the MARRIAGE OF Kelly Drew WOOD, Husband, and Melissa Weeks Wood, Wife: Melissa Weeks Wood. v. Kelly Drew Wood.
    No. 2009-CA-00679-SCT.
    Supreme Court of Mississippi.
    May 27, 2010.

      Kristen Wood Williams, Marc D. Amos, Columbus, attorneys for appellant.
    Timothy C. Hudson, Columbus, attorney for appellee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Melissa Weeks Wood appeals the Lowndes County Chancery Court’s valuation and equitable distribution of a joint retirement savings account. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Melissa and Kelly Wood were married in 1990 and separated on April 24, 2008. Subsequently, they filed a joint bill for divorce on the ground of irreconcilable differences. On May 2, 2008, Melissa and Kelly executed an “Agreement Concerning the Custody, Support of and Visitation with Minor Children and Settlement of Property Rights Made in Contemplation of Obtaining a Divorce on the '¡Around of Irreconcilable Differences” (“the Agreement”). The Agreement included the following provision, at Section VIII(b).

Husband and Wife acknowledge, contract and agree that Wife shall receive the sum of Two Hundred Three Thousand Two Hundred and no/100 Dollars ($203,200.00) from the GGC savings account which has an estimated balance of Three Hundred Seventy[-]Six Thousand and no/100 Dollars ($876,000.00). Husband shall receive the sum of One Hundred Seventy[-]Two Thousand Eight Hundred and no/100 Dollars ($172,-800.00).

The chancellor granted the parties an irreconcilable-differences divorce on August 12, 2008, and incorporated the Agreement into the final “Judgment of Divorce.”

¶ 3. On January 12, 2009, Melissa filed a Motion for Contempt in the trial court. She asserted that “as of the date of filing of this Motion, [the $203,200] had not been paid to [her,]” as required by the Agreement and the final Judgment of Divorce. Melissa averred that she had requested that Kelly transfer the money into her separate IRA account as early as September 2008, but Kelly had refused. Melissa stated that, after Kelly’s first refusal, she had told him that she wanted her money by the end of the year (2008), even though she requested the transfer again in November 2008. Melissa prayed that the trial court hold Kelly in contempt and order him to pay her the $203,200.

¶ 4. Kelly responded by filing a “Motion for Clarification.” In it, he asserted that “the decline in this account due to the global economic situation has rendered it impossible to perform as stated in the [divorce decree] due to the fact that the account is substantially lower than three hundred seventy-six thousand dollars ($376,000.00).” Kelly further argued that “the applicable percentages of the account at the time of the divorce was the Wife receiving 54% and the Husband receiving 46%.” Thus, Kelly asked the chancellor to “clarify the aforementioned provision of the Divorce [Judgment] and [have] the Parties divide the current balance of the GGC savings account pursuant to the percentages set forth above.”

¶ 5. A hearing on Melissa’s contempt motion was held on March 9, 2009. At the hearing, when asked why he did not transfer the money on August 12, 2008, the date of divorce, Kelly responded that it was impossible for Melissa to receive $203,200 and for Kelly to receive $172,800 as stated in the agreement, because there was not enough money to accomplish this. Kelly also asserted that he was unaware of the existence of a qualifying account to which to transfer the money, and that he did not receive the appropriate account information to make the transfer until February or March 2009. However, Melissa averred that, when she requested the transfer in September, she had told Kelly that the account information was in the former marital home, where Kelly continued to live.

¶ 6. On March 25, 2009, the chancellor issued his final judgment, ruling in favor of Kelly. The chancellor’s analysis, states, in pertinent part, that:

Kelly argues that it was always the intent of the parties that Melissa receive 54% of the account, and he 46%. He argues that these percentages should still apply no matter what amount is in the account. He further argues it was not the parties intent that the one party get all of the funds[,] which is essentially what would happen if Melissa were to receive the full amount of $203,200.00 at this point.
This Court is inclined to agree with Kelly. Exhibit P4 clearly shows that Kelly was to receive 46% of the subject account. Furthermore, Melissa did not establish to this Court’s satisfaction that she provided the necessary information to effect the roll over until 2009, after the current litigation began. Finally, this is a Court of equity and it would be patently unfair for Kelly to be the sole bearer of the stock market losses, a situation that was beyond either parties’ control.

Thus, the chancellor ordered that “Kelly shall transfer to Melissa’s account 54% of any monies therein as of April 1, 2009[, and] Kelly shall retain the remaining 46%.” Melissa filed an unsuccessful Motion for a New Trial or, Alternatively, to Amend Judgment.

¶ 7. Melissa timely appealed the chancellor’s “clarification” of the divorce judgment on April 23, 2009. On appeal, Melissa argues that: (1) the property settlement agreement was a valid, unambiguous contract which was not subject to modification or clarification by the chancery court; (2) alternatively, even if the agreement was subject to contract interpretation, the documentary evidence showed that the parties intended to divide the GGC account according to specific dollar amounts, not percentages of the balance therein; and (3) alternatively, even if the parties intended to divide the account according to percentages, those percentages should have been calculated as of the date of divorce, on August 12, 2008, as opposed to April 1, 2009.

STANDARD OF REVIEW

118. We employ a limited standard of review in domestic relations cases. “This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Duncan v. Duncan, 774 So.2d 418, 419 (Miss.2000) (citing Kilpatrick v. Kilpatrick, 732 So.2d 876, 880 (Miss.1999)). “Under the standard of review utilized to review a chancery court’s findings of fact, particularly in the areas of divorce, alimony and child support, this Court will not overturn the court on appeal unless its findings were manifestly wrong.” Id. For questions of law, our standard of review is de novo. Id. (citing Consol. Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (Miss.1999)).

DISCUSSION AND ANALYSIS OF LAW

I. Whether the chancellor erred in modifying or reforming the contract by applying the percentages, as opposed to the specific dollar amounts.

¶ 9. Because they are intertwined, Melissa’s first two asserted errors will be discussed together. This Court historically has recognized that a property settlement agreement “is no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” Townsend v. Townsend, 859 So.2d 370, 376 (Miss.2003) (quoting East v. East, 493 So.2d 927, 931-32 (Miss.1986)). This Court uses a three-tiered approach to contract interpretation. Put simply, step one is to look to the four corners of the agreement to attempt to translate a clear understanding of the parties’ intent; only if that intent remains illusive may a court apply the canons of contract construction or turn to parol evidence. Harris v. Harris, 988 So.2d 376, 378-79 (Miss.2008) (citing Tupelo Redev. Agency v. Abernathy, 913 So.2d 278, 283 (Miss.2005)). “[I]t is a question of law for the court to determine whether a contract is ambiguous. In the event of an ambiguity, the subsequent interpretation presents a question of fact for the trier of fact which we review under a substantial evidence/manifest error standard.” Harris, 988 So.2d at 378. “Where terms of a contract are ambiguous, the contract will be interpreted in a reasonable manner.” Id.

¶ 10. By agreeing with Kelly, the chancellor found that the contract was ambiguous with respect to the parties’ intent regarding how the account should be divided. Thus, the chancellor found that, at the time they entered into the Agreement, Melissa and Kelly intended that, regardless of the account’s value, Melissa would receive 54% of the account’s balance, and Kelly would retain 46%, instead of the specific dollar amounts stated in the Agreement.

¶ 11. We cannot say that the chancellor erred in reaching this conclusion. The specific dollar amounts given in Section VIII(b) of the Agreement were expressly based on an estimate of the GGC account’s balance. But that estimate turned out to be incorrect at the time of the divorce, when the Agreement became effective. The Agreement thus indicates that, by incorporating an estimate into the Agreement and basing their respective shares of the account on that estimate, Kelly and Melissa essentially intended to divide the GGC account according to an indefinite and fluctuating account balance. As such, Section VIII(b) did not clearly specify the parties’ intentions with respect to the distribution of the account, so it was ambiguous. Hence, the chancellor was free to apply the canons of contract construction and consider parol evidence to determine the meaning of Section VIII(b). One canon of contract construction is that “uncertainties should be resolved against the party who prepared the instrument.” Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352-53 (Miss.1990) (citing Clark v. Carter, 351 So.2d 1333, 1334 & 1336 (Miss.1977)). Here, Melissa’s attorney drafted the Agreement, so it should be construed against her interpretation of Section VIII(b). And after reviewing all the exhibits presented as parol evidence, including the spreadsheet in exhibit P4 offered by Melissa, the chancellor determined that the exhibits “clearly show[ ] that Kelly was to receive 46% of the subject account.” This conclusion was based on substantial evidence, and we cannot say that it was manifest error.

¶ 12. Alternatively, to the extent that the parties did in fact intend to divide the account according to the specific dollar amounts, the incorrect estimate of the account’s balance rendered performance of the contract impossible, such that the chancellor had little choice but to apply the percentages. Recognizing that, as of the date of the contempt hearing, the GGC account had an estimated total balance of only $206,000, the chancellor agreed with Kelly that it would be impossible for the parties to perform their duties and for each party to receive the specific dollar amount under Section VIII(b).

¶ 13. Impossibility of performance of a contract “is determined by whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been within the contemplation of both parties when they entered into the contract.” Hendrick v. Green, 618 So.2d 76, 79 (Miss.1993) (citing Littleton v. Employers Fire Ins. Co., 169 Colo. 104, 453 P.2d 810 (1969)) (emphasis added). The doctrine of impossibility of performance of a contract was adopted by this Court as early as 1919. In re Guardianship of Lane, 994 So.2d 757, 763 (Miss.2008) (citing Piaggio v. Somerville, 119 Miss. 6, 80 So. 342, 344 (1919)) (internal citations omitted). We explained the doctrine as follows:

There are ... certain classes of events the occurring of which are said to excuse from performance [of the contract] because “they are not within the contract,” for the reason that it cannot reasonably be supposed that either party would have so intended had they contemplated their occurrence when the contract was entered into, so that the promisor cannot be said to have accepted specifically nor promised unconditionally in respect to them. These three classes are: First, a subsequent change in the law, whereby performance becomes unlawful. Second, the destruction, from no default of either party, of the specific thing, the continued existence of which is essential to the performance of the contract. And, third, the death or incapacitating illness of the promisor in a contract which has for its object the rendering by him of personal services.

Id. (quoting Piaggio, 119 Miss. 6, 80 So. at 344). The instant case falls into the second class of events, “the destruction, from no default of either party, of the specific thing, the continued existence of which is essential to the performance of the contract.” Id.

¶ 14. The Agreement stated that Melissa “shall receive the sum of Two Hundred Three Thousand Two Hundred and no/100 Dollars ($203,200.00) from the GGC savings account....” Because Kelly controlled the account at the time of divorce, this provision imposed a duty upon Kelly to transfer that amount to Melissa. However, the Agreement also stated that Kelly “shall receive the sum of One Hundred Seventy[-]Two Thousand Eight Hundred and no/100 Dollars ($172,800.00).” This provision imposed a duty on Melissa to allow Kelly to keep that amount. Based on the total estimated balance of the account ($376,000), Melissa receiving $203,200 and Kelly receiving $172,800 was “reasonably ... within the contemplation of both parties when they entered into the contract.” Hendrick, 618 So.2d at 79 (emphasis added).

¶ 15. However, as Kelly stated at the contempt hearing, it was impossible for Melissa to receive $203,200 and for Kelly to receive $172,800 as stated in the agreement, because there was not enough money to accomplish this. As early as July 1, 2008, there was only $374,886.33 in the account, and on July 31, 2008, the GGC account had a balance of only $365,106.65. Thus, the parties’ duties under Section VIII(b) were rendered impossible to perform long before their divorce was finalized on August 12, 2008. In other words, the global economic crisis and the attendant stock market decline had caused “the destruction, from no default of either party, of the [total estimated balance of the GGC account of $376,000], the continued existence of which [was] essential to the performance of the contract [by both parties].” Lane, 994 So.2d at 763. This “destruction” excused both parties from the performance of the contract, at least insofar as dividing the account based on specific dollar amounts because “performance of the promise [had become] vitally different from what ... reasonably [was] within the contemplation of both parties when they entered into the contract.” Id.; Hendrick, 618 So.2d at 79 (emphasis added). As of the date of divorce, it simply was impossible for both parties to receive the dollar amounts they had promised one another.

¶ 16. A property settlement agreement may be reformed on the basis of impossibility of performance. Townsend, 859 So.2d at 376 (citing Dilling v. Dilling, 734 So.2d 327, 335-36 (Miss.Ct.App.1999)). This Court noted in Townsend that Mississippi Code Section 93-5-2(2) provides that a judgment which incorporates a property settlement agreement “may be modified as other judgments for divorce.” Id. at 377 (citing Miss.Code Ann. § 93-5-2(2) (Rev.2004)). And we cited approvingly the Court of Appeals’ decision in Dilling v. Dilling, 734 So.2d 327 (Miss.Ct.App.1999). In Dilling, the chancellor reformed the property settlement agreement, finding that it was impossible for the wife to pay the monthly mortgage payment, insurance premiums, and taxes on the marital home. Dilling, 734 So.2d at 336. Thus, the Court of Appeals affirmed the chancellor’s modification of the judgment of divorce, noting that it “necessarily followed from [the chancellor’s] reformation of the Dillings’s property settlement agreement[.]” Id. at 337.

¶ 17. In the case at bar, as of the date of divorce, the distribution of the account according to the specific dollar amounts was impossible, because the balance of the GGC account on that date was approximately $365,106. This impossibility stemmed from the incorrect estimate of the account’s balance at the time of divorce, and from the fact that Kelly did not have the information regarding the account to which to effect the transfer. As such, the chancellor was within her authority to utilize the equitable powers of the chancery court to “modify” or “reform” the Agreement and to order its distribution according to the applicable percentages, Melissa receiving 54% and Kelly 46%.

¶ 18. As this case illustrates, incorporating an estimate of an asset’s value into a property settlement agreement can cause problems when the parties later try to divide the asset, and the estimate turns out to be incorrect or inaccurate. Therefore, we make the following recommendations for the benefit of the bar. Where the value of an asset must be estimated because of the inherently indefinite or fluctuating nature of the asset itself, we recommend the use of percentages when setting forth the asset’s intended distribution in a property settlement agreement. Where the value of an asset remains sufficiently concrete or static, however, we recommend the use of specific dollar amounts.

II. Whether the chancellor erred in ordering the division of the GGC account balance as of April 1, 2009.

¶ 19. The rapid decline in the account balance following the divorce makes the date of valuation of the account extremely important. By choosing the date of valuation, for equitable distribution purposes, the court decides whether any appreciation or depreciation of the asset after the cutoff date should inure to the benefit (or detriment) of one party or both parties.

¶ 20. We have held that, “[w]hen equitably dividing marital property upon divorce, the date of valuation is necessarily within the discretion of the chancellor.” Hensarling v. Hensarling, 824 So.2d 583, 591 (Miss.2002) (citing MacDonald v. MacDonald, 698 So.2d 1079, 1086 (Miss.1997)). And “the chancellor’s discretion in the area of equitable distribution is exceedingly broad and he ‘has the flexibility to do what equity and justice requires.’ ” Id. at 590 (quoting Chamblee v. Chamblee, 637 So.2d 850, 864 (Miss.1994)). Therefore, the chancellor enjoys broad discretion to value property as of any date that, in the chancellor’s view, equity and justice may require.

¶ 21. We cannot say that the chancellor abused her discretion in valuing the GGC account as of April 1, 2009. The chancellor concluded that Kelly was not at fault for not transferring Melissa’s share of the account as of the date of divorce because Melissa had not sufficiently proven that she had provided Kelly with the appropriate account information to effect the transfer until sometime in early 2009. Additionally, the chancellor found that it would be patently unfair for only one party to bear the loss in the account’s value caused by the global economic crisis and the attendant stock market decline. The chancellor did not reach these conclusions until after the March 2009 hearing. Thus, the chancellor’s decision to value the account as of April 1, 2009, was reasonable and was founded upon concerns for justice and equity. Therefore, we affirm the chancellor’s application of the aforementioned percentages to the value of the GGC account as of April 1, 2009.

CONCLUSION

¶ 22. We affirm the chancellor’s application of the percentages for purposes of distributing the GGC account, as the Agreement was impossible to perform as of August 12, 2008, the date of divorce. We also affirm the chancellor’s valuation of the GGC account, and the application of the percentages thereto, as of April 1, 2009, because that date was reasonable and based upon the chancellor’s concerns for equity and justice.

¶ 23. AFFIRMED.

CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.

      . The "GGC” account is a retirement savings account administered by Georgia Gulf Corporation. The account is labeled in periodic reports as the "Old Vista Rollover IRA,” and in Kelly's spreadsheet, it is called the "Joint IRA — Fidelity.”

      . An account spreadsheet provided by Kelly at the contempt hearing listed the value of the account at various times as follows:
      April 23, 2008: $375,919.00.
      May 1,2008: $376,319.64.
      May 31, 2008: $389,150.89.
      July 1, 2008: $374,886.33.
      July 31, 2008: $365,106.65.

      . The chancellor noted that "[a]t the time of [the hearing], Kelly testified that the GGC account had a balance of approximately $206,000.00.”

      . Exhibit P4 is a spreadsheet Kelly prepared prior to the execution of the Agreement, which listed the parties’ assets and the portions thereof to be distributed to each party (the "Split”). Kelly's portion of the GGC account is given as $172,719, and Melissa’s is given as $203,200. In the "Split” column next to Kelly's amount, Kelly’s percentage of the account is given as "46%.” Melissa introduced the spreadsheet to prove the parties’ intent was to separate the GGC account according to the specific dollar amounts. Melissa does not dispute that the dollar amounts given in the Agreement were taken from the spreadsheet, but she disputes that the dollar amounts were derived from the application of the percentages.

      .Melissa's asserted issues have been rephrased for clarity.