915 So.2d 1052 (2005)
CHANTEY MUSIC PUBLISHING, INC.
v.
MALACO, INC.
No. 2004-CA-01581-SCT.
Supreme Court of Mississippi.
December 1, 2005.
*1053 Meda Byrd Lindley, attorney for appellant.
Robert A. Malouf, attorney for appellee.
EN BANC.
CARLSON, Justice, for the Court.
¶ 1. The Circuit Court of the First Judicial District of Hinds County entered a judgment enforcing the settlement agreement reached in a mediation conference between Chantey Music Publishing, Inc. and Malaco, Inc. Feeling aggrieved from the entry of this judgment, Chantey appeals to us. Finding the judgment of the Hinds County Circuit Court, Judge Winston L. Kidd, presiding, to be supported by the evidence and consistent with the applicable law, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶ 2. This litigation arises from a copyright dispute concerning six songs written by Tommy Tate, a contract song writer originally retained by Chantey Music Publishing, Inc. Specifically, Chantey alleges that Malaco, Inc. interfered with its contractual relationship with Tate and caused it to suffer damages when Malaco hired Tate away from Chantey. Based on this alleged act of contractual interference, Chantey, in 1992, filed suit against Malaco, and the parties were actively engaged in pre-trial activities for the next two years until November of 1994, when Chantey inexplicably allowed the case to become dormant. Seven uneventful years passed in the life of this civil litigation. Finally, in October of 2001, Chantey filed a motion for *1054 summary judgment. In response to Chantey's motion, Malaco filed a motion to dismiss. Ultimately, the trial court denied both motions by order dated April 12, 2002.
¶ 3. On May 24, 2002, the circuit court judge referred the parties to mediation, and the mediation conference was held on July 22, 2002, by Patrick H. Zachary, a Mississippi attorney experienced in mediation. The mediation conference took place at the Mississippi Bar Center in Jackson, and present at this conference were Chantey's president and sole shareholder, Sam Kazery, his wife, Wren Kazery, and Chantey's legal counsel, Matthew Pepper and Peter K. Smith. Robert A. Malouf attended the mediation conference as Malaco's legal counsel.
¶ 4. The mediation conference primarily focused on bringing the parties to terms concerning the ownership of the intellectual rights of Tate's songs and the accompanying lost proceeds realized by these songs. Eight and one-half hours into the mediation conference, the parties reached a settlement which was memorialized in a document styled "Post Mediation Agreement." Malouf executed this agreement on behalf of Malaco, and Kazery, Pepper and Smith executed this agreement on behalf of Chantey.
¶ 5. Following the mediation conference, and in an attempt to clarify the agreed terms of the Post Mediation Agreement, Zachary, as promised, reduced the details of the day's deliberations to a typewritten document dated August 8, 2002. This document was in fact a draft letter to the participating attorneys, and this letter set out the full terms of the Post Mediation Agreement reached between the parties.
¶ 6. Shortly after this correspondence was delivered, Malaco filed with the court a motion to enforce the settlement. By way of a response, Chantey filed a motion to set aside the mediation agreement accompanied by a motion requesting that Chantey be allowed to be represented pro se through its president and sole shareholder, Kazery.
¶ 7. These motions were heard by the circuit court on January 13, 2003, and in open court, Judge Kidd denied Chantey's motion to represent itself pro se and found that Rule 1.06 of the Mississippi Uniform Rules of Circuit and County Court Practice clearly mandated that a corporation must be represented by counsel.[1] In actuality, while Judge Kidd acknowledged, at the beginning of the hearing, the existence of Chantey's pending motion to proceed pro se, this motion was not considered by the trial judge until Kazery rose to cross-examine Malaco's first witness at the hearing, at which time Malaco's attorney objected pursuant to URCCC 1.06. After an on  the-record discussion in open court with Kazery and Malaco's counsel, Judge Kidd found that URCCC 1.06 afforded him no discretion and that he was thus required to deny Chantey's motion to proceed pro se via Kazery. During the discussion prior to the trial court's ruling on the motion, Kazery requested of the trial judge that if he should deny the motion to proceed pro se, then the trial judge should "accept all the letters, all the motions, and all the attachments that are filed and those that have been hand-delivered to your administrator be considered [as well as] Mr. and Mrs. Kazery's sworn statement." After Judge Kidd's denial of Chantey's motion to proceed pro se, the transcript of the hearing reveals the following:

*1055 Mr. KAZERY: Yes, sir. Can you accept everything we have submitted as our testimony and based on Mr. Malouf, what he just
THE COURT: It's been filed and I have it. The Court reviewed numerous documents in this case and I believe there's been at least one hearing prior to now with respect to this matter following the mediation and the Court has reviewed all documents in this matter......
* * *
THE COURT: The Court will accept all filings you've made and in terms of any ruling that the Court makes, the Court will consider all documents you've filed.
¶ 8. Judge Kidd then continued the hearing on the issue of whether the settlement agreement was valid and enforceable. At the conclusion of the hearing, the trial court took this issue under advisement and in due course, the trial court entered a detailed findings of fact and conclusions of law, followed by an order granting Malaco's motion to enforce the settlement. Contained in the documents considered by Judge Kidd during his deliberations were assertions by Chantey that the mediation was tainted by coercion and that Kazery signed the Post Mediation Agreement under duress and mental impairment.[2]
¶ 9. Aggrieved by the circuit court's enforcement of the settlement agreement, Chantey timely filed its notice of appeal and retained new counsel to represent it before this Court.

DISCUSSION
¶ 10. Today's case involves a decision made by a circuit judge sitting without a jury. On appeal of a trial court judgment rendered subsequent to a bench trial where the judge has sat as the fact-finder, we afford deference to the findings of the trial judge. We have held "a circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence." City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000) (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993)). Therefore, this Court affords the same deference to the rulings of a circuit court judge ruling from the bench as it does a chancellor. It follows that we will not disturb the findings of the judge unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Hill v. Southeastern Floor Covering Co., 596 So.2d 874, 877 (Miss.1992), Bell v. Parker, 563 So.2d 594, 597 (Miss. 1990).
¶ 11. We begin with an acknowledgment of the general premise that compromise reached by way of mediation or otherwise, is favored in the state of Mississippi. Moreover, the law favors the settlement of disputes by agreement of the parties and, ordinarily, will enforce the agreement which the parties have made, absent any fraud, mistake, or overreaching. Hastings v. Guillot, 825 So.2d 20, 24 (Miss.2002) (citing First Nat'l Bank v. Caruthers, 443 So.2d 861, 864 (Miss. 1983); Weatherford v. Martin, 418 So.2d *1056 777, 778 (Miss.1982)). Importantly, we apply contract law analysis to settlement agreements. This is true of any type of negotiated settlement. Newell v. Hinton, 556 So.2d 1037, 1042 (Miss.1990); East v. East, 493 So.2d 927, 931-32 (Miss.1986). Settlement agreements are contracts made by the parties, upon consideration acceptable to each of them, and the law will enforce them. Id. at 932-33. Courts will not rewrite them to satisfy the desires of either party. Travelers Indem. Co. v. Chappell, 246 So.2d 498, 510 (Miss.1971). In McCorkle v. Hughes, 244 So.2d 386 (Miss.1971), we discussed the appropriate application of contract principles to agreements made in contemplation of settlement. One of the cases cited by the Court in McCorkle was Kohler v. Oliver, 114 Miss. 46, 74 So. 777 (1917). In Kohler, this Court stated:
Compromises are favored by law. The rule is stated in 5 R.C.L. 878, as follows:
"It is the duty of courts rather to encourage than to discourage parties in resorting to compromise as a mode of adjusting conflicting claims; and the nature or extent of the rights of each should not be nicely scrutinized. Courts should, so far as they can do so legally and properly, support agreements which have for their object the amicable settlement of doubtful rights by parties; the consideration for such agreements is not only valuable, but highly meritorious. They are encouraged because they promote peace, and when there is no fraud, and the parties meet on equal terms and adjust their differences, the court will not overlook the compromise, but will hold the parties concluded by the settlement.
114 Miss. at 46, 74 So. at 777. In addition to Kohler, this Court in McCorkle also cited Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914 (1938). In Fornea, we stated:
If the plaintiff signed the contracts involved in the above statements, knowing their conditions, and was not misled or deceived by fraudulent representations, he is bound by the written terms of the contract. While the law recognizes that there is no method known to the law by which to make people prudent, and that experience shows that people often imprudently make contracts, including the signing of releases, yet every person must be presumed to know the law, and in the absence of some misrepresentation or illegal concealment of facts, the person must abide the consequences of his contracts and actions.
In the light of the fact that people are not prudent, and may at times be unjustifiably imposed upon, this court has been liberal in reviewing transactions where one party might have the advantage over another party in experience, knowledge, and wisdom; but in the absence of fraud, deceit, or fiduciary relations of some kind, the court cannot relieve a person from the consequences of his acts merely because he has not acted prudently or diligently about his contracts or other matters.
181 Miss. at 65, 178 So. at 918.

I. WHETHER THE MEDIATION AGREEMENT WAS THE PRODUCT OF DURESS, COERCION, MENTAL WEAKNESS AND THEREFORE PROCEDURALLY UNCONSCIONABLE.
¶ 12. Chantey claims that the mediation process which resulted in the settlement of this matter was fraught with inequity and procedurally unconscionable due to duress, coercion and mental weakness. Moreover, Chantey alleges that Malouf, in representing Malaco at the parties' court-ordered mediation conference, *1057 coerced the corporation's president, Kazery, into signing an agreement he was not prepared to sign by threatening him with prosecution in bankruptcy court. Conversely, Malaco asserts that Chantey has failed to offer a scintilla of evidence in support of these claims.
¶ 13. It is well-settled that "where conflicting testimony is presented, expert and otherwise, the [trial judge, when sitting as fact-finder] is required to make a judgment on the credibility of the witnesses in order to resolve the questions before the court." Hastings v. Guillot, 825 So.2d 20, 24 (Miss.2002) (citing Broadhead v. Bonita Lakes Mall, Ltd. P'ship, 702 So.2d 92, 101 (Miss.1997); Doe v. Doe, 644 So.2d 1199, 1207 (Miss.1994)).
¶ 14. In today's case, it was the circuit judge's responsibility to reconcile the evidence offered before the court and determine whether it supported Chantey's allegations of duress, lack of voluntariness, and overreaching. On this issue, Judge Kidd specifically found, "[t]hough Chantey, through Mr. Kazery, has filed various documents in this Court suggesting that there was confusion about the settlement, or that Chantey acted under duress, or that Chantey was somehow coerced into the settlement, there is no proof of any improper conduct in this matter on behalf of Chantey's attorneys, the mediator, or Malaco's attorney." Ultimately, Judge Kidd concluded that not only was there no proof in support of Chantey's allegations, there was no legal basis in which to undergird a finding that the settlement agreement was tainted by fraud, coercion, or duress.
¶ 15. Upon examination of the record, there is overwhelming evidence supporting Judge Kidd's determination to enforce the parties' settlement agreement reached at the mediation conference. At the motion hearing, the testimony of Malouf, Malaco's attorney at the mediation conference, Zachary, the mediator, and Pepper, who represented Chantey at the mediation conference, revealed an arm's-length settlement agreement.[3] Thus, the testimony of all the witnesses who testified revealed that the settlement process was fair and without oppression. Specifically, Pepper attested to the fact that he attended the mediation conference as Chantey's lawyer; that the parties negotiated at arm's length; that the parties reached a settlement agreement; that the terms of the settlement were clearly communicated to Chantey; that Chantey understood the terms of the settlement; that Chantey agreed to the settlement; that Kazery signed the settlement on behalf of Chantey; that he (Pepper) as well as his co-counsel, Smith, agreed to the terms of the settlement; that Chantey, through Kazery, participated in every conversation and every negotiation throughout the mediation; that at the conclusion of the mediation, the parties and the mediator came together to discuss the terms of the settlement in order to finalize the agreement; that throughout the mediation, Chantey was provided the assistance of counsel; and, that Zachary's letter prepared subsequent to the mediation conference stated the agreed terms and conditions of the settlement reached between the parties.
¶ 16. When testifying about the execution of the settlement agreement, Malouf stated "all the parties were in the same room and we went over the terms of this [agreement] twice. In other words, I was present, Mr. Smith was present, Mr. Pepper *1058 was present, Mr. Kazery and his wife were present, and the mediator was present as we sat down and went over the terms to make sure that the terms were right. This was not something that was done secretly."
¶ 17. Finally, a transcript of Zachary's deposition testimony was received into evidence at the motion hearing. Zachary's testimony corroborated the occurrences as described by the other witnesses. Additionally, Zachary testified that Kazery voluntarily signed the settlement agreement on behalf of Chantey; that Kazery understood the terms of the settlement agreement; that he [Zachary] did not see anyone threaten or intimidate Kazery; that nothing untoward occurred at the mediation which should cause the settlement to be set aside; that the parties were not forced to agree to any provision of the settlement; and, that his letter of August 8, 2002, reflected the settlement agreement reached at the mediation conference.
¶ 18. Interestingly, while the transcript of the hearing does reflect that the trial court disallowed Kazery's request to call a witness based on the trial court's ruling that Chantey could not proceed pro se (meaning that Kazery could not interrogate any witness called by Chantey), even Malaco's counsel conceded that "[Malaco's] position is that [Kazery] can testify as a witness but he can't act as an advocate." For whatever reason, Kazery chose not to testify. However, the record does reveal that at the conclusion of the evidentiary hearing, Kazery basically set out Chantey's position in non-stop argument to the trial court which consumed roughly one and one-half pages of the twenty-seven page transcript of the hearing.
¶ 19. Thus, while Kazery was not able to call and interrogate witnesses, it can hardly be said that the trial court was in the dark as to Chantey's position on the issue of the validity of the settlement agreement. See and compare Guar. Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 386 (Miss.1987).
¶ 20. Clearly, there is substantial evidence supporting Judge Kidd's discretionary determination regarding the viability of the parties' settlement agreement. Accordingly, for the reasons stated, we find this issue to be without merit.

II. WHETHER THE POST MEDIATION AGREEMENT REFLECTS A MEETING OF THE MINDS BETWEEN THE PARTIES.
¶ 21. Chantey argues that the parties' settlement agreement was not the product of a meeting of the minds. Specifically, it alleges that additional handwritten language which states, "or matters which could have been raised in the complaint," was added to the agreement without Kazery's knowledge and thus was never discussed nor ever explained. Citing Viverette v. State Highway Comm'n, 656 So.2d 102 (Miss.1995), Chantey claims that Kazery's lack of knowledge as to this phrase prevented there being a meeting of the minds.
¶ 22. The law espoused in Viverette is easily distinguishable from the facts of this case. In Viverette, we reversed an order of the trial court enforcing the parties' settlement agreement due to the fact that there was insufficient evidence of a meeting of the minds. The dispute in Viverette was over the consideration of a $2,800 payment made before settlement under the "quick take" provision found in our eminent domain statutory scheme. Id. at 103. In remanding the case back to the trial court for further proceedings concerning this provision, we noted that "there is no evidence in this record that the effect of the quick take deposit was considered and agreed upon." Id. Notably, *1059 in Viverette, the trial court entered an order without having entertained evidence concerning whether there had been a meeting of the minds between the parties concerning the effect of the quick take deposit.
¶ 23. Today's case evidences a clear intent by both parties to be bound by the terms of their negotiated settlement. Moreover, the evidence clearly demonstrates that both parties fully acquiesced in all the terms included in their agreement which was reached after an eight and one-half hour mediation conference.
¶ 24. Not only is Chantey's argument that there was no meeting of the minds unsupported by the record, it is contrary to Mississippi law. In Terminix Intern., Inc. v. Rice, 904 So.2d 1051 (Miss.2004), we reiterated the well-accepted contract principle that parties are charged with the responsibility of reading the agreements they execute, stating:
It is well settled under Mississippi law that a contracting party is under a legal obligation to read a contract before signing it. McKenzie Check Advance of Miss., LLC v. Hardy, 866 So.2d at 455. (citing Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991), Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763 (1946), McCubbins v. Morgan, 199 Miss. 153, 23 So.2d 926 (1945)). Under McKenzie, the law presumes that Dr. Rice read the agreement he signed with Terminix. Had he done so, he would have seen the arbitration clause in the contract. Furthermore, this Court has held that "[i]n Mississippi, a person is charged with knowing the contents of any document that he executes." Russell, 826 So.2d at 725 (citing J.R. Watkins Co. v. Runnels, 252 Miss. 87, 172 So.2d 567, 571 (1965) ("A person cannot avoid a written contract which he has entered into on the ground that he did not read it or have it read to him.")).
904 So.2d at 1056.
¶ 25. Mississippi law precludes Chantey from asserting ignorance in regards to a term or phrase clearly written into the parties' agreement. Moreover, Chantey does not deny that the phrase to which it objects existed in handwritten form on the face of the parties' settlement agreement at the time of execution. It follows that in negotiating with Malaco, Kazery, as president of Chantey, should be expected to have read and have full knowledge of the contractual language contained in the parties' settlement agreement. Kazery, on behalf of Chantey, attempts to argue that after a decade of litigation and over eight and one-half hours of mediation, he, accompanied by two attorneys, blindly signed or was duped into acquiescing in contractual language with which he did not agree. This argument is unconvincing. As stated, the evidence presented at the hearing clearly demonstrates that the parties reviewed and understood the terms of the agreement.
¶ 26. Thus we find that Chantey's assertion that there was no meeting of the minds between the parties is wholly without merit inasmuch as Kazery was an able participant in a freely negotiated bargaining process which produced an agreement of which he was presumed to have full knowledge. This issue is thus without merit.

III. WHETHER THE PARTIES AGREED TO A SPECIFIC PROVISION CONTAINED WITHIN THE SETTLEMENT AGREEMENT.
¶ 27. Chantey argues that the ninth provision included in Zachary's letter memorializing the terms of the parties' settlement agreement should not be recognized as part of what was negotiated at *1060 mediation.[4] In direct contradiction of a prior argument, Chantey now asserts here that the signed mediation agreement speaks for itself and that parol evidence of an additional provision should not be considered.
¶ 28. Chantey presents this argument for the first time on appeal to this Court. In Southern v. Mississippi State Hosp., 853 So.2d 1212 (Miss.2003), we reiterated the important procedural tenet that "[a] trial judge cannot be put in error on a matter not presented to him." Id. at 1214-15 (see Mills v. Nichols, 467 So.2d 924, 931 (Miss.1985)). Precedent mandates that this Court not entertain arguments made for the first time on appeal as the case must be decided on the facts contained in the record and not on assertions in the briefs. Parker v. Miss. Game & Fish Comm'n, 555 So.2d 725, 730 (Miss. 1989) (citing Britt v. State, 520 So.2d 1377, 1379 (Miss.1988); Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973)). Stated clearly, "[i]t is an elementary and familiar rule that we sit to review actions of the lower courts, and we will not undertake to consider matters which do not appear of record in the lower court, absent unusual circumstances." Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 446 (Miss.1989) (citing Educational Placement Servs. v. Wilson, 487 So.2d 1316, 1320 (Miss.1986)).
¶ 29. The record clearly evidences the fact that Chantey did not present this argument in its motion to set aside mediation and did not present the argument at the motions hearing. Inasmuch as Judge Kidd has been denied the opportunity to decide this issue, we find this issue is not properly before this Court and thus decline to consider it.
¶ 30. Although, Chantey, as a corporate plaintiff, has not assigned as error the trial judge's denial of its request to permit Kazery's pro se representation of the corporation at trial, Chantey does mention several times in its brief that it was prejudiced by the trial court's disallowing Chantey, through Kazery, to cross-examine Malaco's witnesses, and to call and interrogate witnesses in Chantey's case-in-chief. Thus, Chantey makes an alternative argument that, at the very least, this Court should remand this case to the trial court "for an evidentiary hearing where both parties can actively participate and all evidence that pertains to this issue can be heard." However, in making this assertion, Chantey has not cited any authority in support of his contention that he is entitled to a new evidentiary hearing because of the trial judge's invocation of URCCC 1.06. Therefore, we are under no obligation to consider this proposition. Ferrell v. River City Roofing, Inc., 912 So.2d 448, 456 (Miss.2005) (citing Williams v. State, 708 So.2d 1358, 1362-63 (Miss. 1998)); Hoops v. State, 681 So.2d 521, 535 (Miss.1996). See also M.R.A.P. 28(a)(6).

CONCLUSION
¶ 31. Compromise reached by way of mediation is a favored form of dispute resolution in Mississippi. In today's case, the evidence clearly indicates that the parties' settlement agreement was free from contractual defenses of fraud and overreaching. The trial judge's determination that there was no proof in support of the *1061 allegations of fraud, coercion and duress is fully supported by the record and as such must be upheld. Therefore, the judgment enforcing the parties' settlement agreement as entered by the Circuit Court of the First Judicial District of Hinds County is affirmed.
¶ 32. AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ J., NOT PARTICIPATING.
NOTES
[1]  URCCC Rule 1.06 states that "[a]ll Corporations that are party plaintiffs must be represented by an attorney licensed to practice law in this state, whose name must appear on the pleading prior to the filing of the pleading."
[2]  Chantey argues that a memorandum filed with the circuit court on the day of the hearing and its accompanying exhibits have been omitted from the record and are not listed on the circuit court docket, and that it is unclear whether these documents were ever considered by Judge Kidd. Suffice it to state here that there is nothing in the record to even infer to us that Judge Kidd did not do exactly as he announced in open court, and that was that he would "accept all filings you've made and in terms of any ruling that the Court makes, the Court will consider all documents you've filed."
[3]  Since Malouf was a witness at this hearing, another attorney represented Malaco at the hearing. Likewise, as to Pepper, both Malaco's attorney and Pepper agreed prior to Pepper's testimony, that there would be no effort to elicit from Pepper information which he may have obtained in his attorney-client relationship with Kazery and Chantey.
[4]  The ninth term or provision of the settlement agreement stated:

All other compositions composed in whole or in part by Tommy Tate during the period covered by the Malaco/Tommy Tate Songwriter Agreement shall be the sole and exclusive property of Malaco, Inc. Malaco, Inc. shall enjoy the ownership and use of such compositions free of all claims of Chantey Music Publishing, Inc.


142 So.2d 918 (1962)
Alto HUGGINS
v.
STATE.
4 Div. 128.
Supreme Court of Alabama.
June 21, 1962.
Boswell & Boswell, Geneva, for petitioner.
MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., opposed.
LAWSON, Justice.
Petition of Alto Huggins for certiorari to the Court of Appeals to review and revise the judgment and decision in Huggins v. State, 142 So.2d 915.
Writ denied.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.


326 F.2d 403
Jessie TREVINO, Appellant,v.The STATE OF TEXAS et al., Appellees.
No. 20836.
United States Court of Appeals Fifth Circuit.
January 15, 1964.
Rehearing Denied February 19, 1964.

Reynold M. Gardner, Amarillo, Tex., for appellant.
George W. Gray, III, Asst. Atty. Gen., Austin, Tex., Frank Gaston, Dist. Atty., Steve Hurt, County Atty., Plainview, Tex., Sam R. Wilson, Asst. Atty. Gen., Houston, Tex., Waggoner, Carr, Atty. Gen., of Texas, for appellees.
Before HUTCHESON, BREITENSTEIN,* and BELL, Circuit Judges.
PER CURIAM.

1
In this habeas corpus proceeding appellant Trevino seeks release from detention under a conviction in a Texas state court. He asserts that evidence obtained in a search of his premises was improperly used against him because such search was made under an illegal state search warrant. The warrant, which was issued by a county judge, is said to show no probable cause for the reason that the affidavit states conclusions based on hearsay.

2
The question of the validity of the warrant was raised at the jury trial and resolved against appellant. The Court of Criminal Appeals of Texas affirmed. After the filing of the petition for habeas corpus, the federal district court conducted a hearing at which the appellant was present with his counsel. Uncontroverted evidence at this hearing showed that the officers seeking the warrant presented to the county judge direct, rather than hearsay, testimony of the facts upon which the request for the warrant was made.

3
The question is whether the judge who issued the warrant had probable cause therefor. No claim is made that the merits of the factual dispute were not resolved in full, fair, and adequate state court proceedings.1 Reliance is placed on the hearsay nature of the affidavit. The rule is that hearsay may be the basis for the issuance of a search warrant.2 In spite of all this the federal district court held a hearing at which the evidence showed that the judge issuing the warrant had direct evidence of the supporting facts. We are satisfied that the warrant and the search thereunder were legal and proper.

4
Under the Texas Code of Criminal Procedure3 the appellant had the absolute right to present to the courts of Texas the questions raised in this federal habeas corpus. We suggest that before reaching the merits the federal district court should have considered whether the appellant had deliberately by passed orderly state procedures and, if he had, the effect thereof on his right to federal habeas corpus.4

5
Affirmed.

Notes:

*
 Of the Tenth Circuit, sitting by designation

1
 See Townsend v. Sain, 372 U.S. 293, 311, 83 S.Ct. 745, 756, 9 L.Ed.2d 770

2
 Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697

3
 See Vernon's Ann.C.C.P. arts. 113-176 and particularly articles 117 and 119

4
 See Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 848, 9 L.Ed.2d 837


458 So.2d 102 (1984)
Kathleen Dupre DUSENBERY, et al.
v.
McMoRAN EXPLORATION COMPANY, et al.
No. 83-C-1681.
Supreme Court of Louisiana.
October 15, 1984.
Rehearing Denied December 6, 1984.
*103 Dean A. Sutherland, S. Daniel Meeks, Hebert & Abbott, for applicant.
Grady C. Weeks, Authement, Weeks & Larke, Houma, John Blackwell, Gibbens & Blackwell, Richard N. Dicharry, Margot *104 Mazeau, Michael Bagot, Jr., Phelps, Dunbar, Marks, Claverie & Sims, E. Phelps Gay, Robert E. Peyton, Christovich & Kearney, New Orleans, John K. Hill, Lafayette, Phillip J. McMahon, McMahon, McCollam & Hargis, Houma, John J. McGuckin, Jr., John H. Musser, IV, Wegmann, Longenecker & Muser, Michael J. Maginnis, McGlinchey, Stafford & Mintz, New Orleans, for respondents.
LEMMON, Justice.
We granted certiorari in this wrongful death action solely to review the lower courts' denial of an incidental demand by McMoRan Exploration Company/Burmont Company, the joint venture which owned the oil well on which John Dusenbery was killed in a pressure explosion, for indemnity from Hart, Inc., the oilfield contractor whose employees negligently welded a nipple in the well's pressure system which was lighter than the nipple required by the specification. We now reverse, holding that McMoRan/Burmont, although solidarily liable to plaintiff as owner of the well which contained an unreasonably dangerous condition, is entitled to full indemnity against Hart, who created the unreasonably dangerous condition, which McMoRan/Burmont could not detect by visual inspection and of which McMoRan/Burmont had no actual knowledge.

I.
Dusenbery was an employee of Pel-Tex Oil Company, who had been hired by McMoRan/Burmont to drill and operate the well. During the operation, Pel-Tex contracted with Hart for Hart to perform the production hook-up according to Pel-Tex's specifications, which included the use of Schedule 80 nipples in the pressure system.
The pressure explosion occurred while Dusenberry was cleaning the flow lines on the well. In the cleaning process, called "pigging", the well pressure is turned off, and a polyurethane object, called a pig, is inserted into the pipeline. The pressure is then turned back on, and the pig is forced through the pipeline to the next well, removing the built-up paraffin residue as it travels along. The explosion occurred after Dusenbery had inserted the pig and turned the pressure back on, and Dusenbery was struck in the head by a flying object propelled by the blowout. Subsequent investigation determined that the failure occurred where Hart had used a Schedule 40 nipple in the system instead of the heavier Schedule 80 nipple required by the specifications.
The trial court found that Hart and McMoRan/Burmont were solidarily liable to plaintiffs, Hart on the basis of negligence and McMoRan/Burmont on the basis of strict liability. Because the liability of each defendant was founded on separate legal bases, the court refused McMoRan/Burmont's demand for indemnity against Hart. The appellate court affirmed, reasoning that McMoRan/Burmont was not entitled to indemnity because its liability was not vicarious. 433 So.2d 268. We granted the application for review limited solely to that issue. 441 So.2d 208.

II.
The court of appeal erred in restricting indemnity to cases of vicarious liability.[1] Indemnity is available in some (but not all) cases of strict liability. To determine the availability of indemnity, it is necessary to examine the basis for imposition of strict liability in the particular case.
As owner of the well, McMoRan/Burmont was liable for Dusenbery's injuries upon proof that the well presented an unreasonable risk of injury which resulted in plaintiffs' damages. It was not necessary for plaintiffs to prove that McMoRan/Burmont either created the risk or knew of the danger and failed to remedy it. The owner of a structure has an absolute *105 duty to discover its hazards, and he is held liable to an injured party upon proof that damages resulted from a hazard in the structure that he failed to discover and correct, whether or not the hazard was created by the owner and whether or not the hazard was visibly detectable. This liability is strict in the sense that it is imposed without the requirement of proof of negligence or actual fault. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978). Rather, liability is imposed on the basis of the owner's relationship with the damage-causing structure (the same basis upon which the duty to discover is imposed). Kent v. Gulf States Utilities, 418 So.2d 493 (La.1982).
Of course, the injured party may also recover his damages from the party who actually created the dangerous condition (whether or not that party is the owner of the structure) or from a party who knew of the dangerous condition and had a duty to correct it but failed to do so. Liability in such an instance is imposed on the basis of negligence or actual fault.
The indemnification claim is based not on the relationship between the owner of the structure and the injured party, but upon the relationship between the owner and the party who actually created the dangerous condition in the structure. When liability to the injured party is imposed on one party on the basis of strict liability only and on a second party on the basis of negligence or actual fault, the strict liability defendant may recover full indemnity by incidental demand against the party actually at fault.[2]Appalachian Corp. v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539 (1922). While both defendants are liable to the injured party, the defendant who is liable only as the owner of the unreasonably dangerous structure should be made whole by the defendant who actually caused the unreasonably dangerous condition for which the owner is strictly liable. As between the two defendants, ultimate responsibility rests with the party who was actually at fault, and the fact that the law imposed liability on the owner to the injured party does not detract from the owner's right to indemnification against the party who actually created the dangerous condition.[3] The defendant whose actual fault has been proved by the claimant on the principal demand may prevail on the strict liability defendant's incidental demand for indemnification only by proving affirmatively that the strict liability defendant was guilty of concurrent fault.[4]
In the Appalachian case, a night watchman was injured by a falling door two days after Appalachian purchased a warehouse, but while the previous owner was still in possession. Having been cast for damages and having paid the judgment, Appalachian sought indemnity from the previous owner, who filed an exception of no cause of action. This court held that a party only technically at fault, because of a failure to perform some legal duty, could recover indemnity from the party whose negligence actually caused the damage. The court reasoned that the previous owner (according *106 to the facts alleged in the petition) was negligent for having created the situation which brought about the injury and that the new owner, not yet having taken possession, did not have knowledge of the defect or the opportunity to remedy it. Accordingly, the court held that Appalachian had stated a cause of action for indemnification.
This court recently reiterated the Appalachian doctrine in Narcise v. Illinois Central Gulf Railroad, 427 So.2d 1192 (La. 1983). In Narcise, defendant railroad, which had been held liable to plaintiff under the FELA, sought indemnification from the manufacturer of the defective equipment that caused plaintiff's injuries. Answering questions certified to us from the United States Court of Appeals for the Fifth Circuit, we held that the railroad (who was the lessee of the defective equipment) and the equipment manufacturer could be solidary obligors to the injured party, but noted that the railroad's third party demand stated a claim for "relief by way of contribution or possibly by way of indemnification, depending on the jury's fault weighing process".[5] 427 So.2d at 1196. The fact that the railroad's liability to plaintiff was based on FELA and the manufacturer's liability to plaintiff was based on general tort law did not change the rule of Appalachian that indemnification is allowed between solidary debtors when one party is liable only on the basis of strict liability for an undiscovered dangerous condition of the owned structure while the other is liable for actually creating the unreasonably dangerous condition.[6]

III.
In the present case, McMoRan/Burmont was liable to the injured party (just as the new owner was in the Appalachian case) not because of any "negligence on its part, independently of or in combination with [Hart], but because of the ownership of the [structure] and its legal duty to keep the [structure] in safe condition". 91 So. at 542. Hart was liable, on the other hand, because it actually created the hazard by fabricating the well with a substandard launching system. Because Hart was actually negligent and McMoRan/Burmont was only liable on the basis of strict liability as the owner of the well, McMoRan/Burmont is entitled to recover indemnity from Hart, unless Hart proved that McMoRan/Burmont was also actually negligent. Upon such proof, McMoRan/Burmont's incidental demand would be limited to contribution.
Hart points out that the trial court in reasons for judgment stated that "employment of the Schedule 40 nipple, in combination with the lack of support of the weight of the launching system hanging from the Nipple, ultimately caused the defective Schedule 40 Nipple to fail". (Emphasis supplied.) Hart therefore argues that the trial court found McMoRan/Burmont was concurrently negligent in failing to provide adequate support for the launching system and that this failure was a concurrent cause of the accident.
The trial court's statement is not tantamount to a finding of negligence on the part of McMoRan/Burmont. The trial court expressly held McMoRan/Burmont liable under strict liability and never reached the question of negligence.
After a thorough review of the record, we conclude that Hart failed to prove a basis for holding McMoRan/Burmont liable in negligence. The trial court relied heavily on the testimony of Dr. Courtney Busch, an expert in metallurgy and mechanical engineering. Dr. Busch opined that the nipple would not have *107 failed if Hart had used a Schedule 80 nipple as specified, and the trial judge found that a Schedule 80 nipple "would have been sufficient to hold". Therefore, since the use of a Schedule 80 nipple would have prevented the blowout, the improper use of a Schedule 40 nipple was a cause-in-fact of the accident. On the other hand, Hart failed to prove that greater support for the launching system would have prevented the accident. Moreover, while a competent welder should have noticed that the lighter nipple was being welded to a heavier-walled flange, the defect of inadequate thickness could not be detected visually once the lighter nipple was installed. We therefore conclude that Hart failed to prove McMoRan/Burmont was negligent or actually at fault with regard to the use of the Schedule 40 nipple which caused this accident.
Accordingly, the judgments of the lower courts are reversed in part, and judgment is rendered in favor of McMoRan/Burmont on its third party demand against Hart for full indemnity.
DIXON, C.J., and MARCUS and DENNIS, JJ., concur.
WATSON, J., dissents and assigns reasons.
WATSON, Justice, dissenting.
The Schedule 40 nipple had been a part of Burmont/McMoRan's well for six years prior to the fatal accident. It is extremely difficult to justify complete exoneration of a well owner having complete custody and control for a long period of time.
There is evidence that Burmont/McMoRan failed to perform ordinary preventative maintenance on Well B-5D that could have revealed the problem with the nipple. Burmont/McMoRan compounded the problem by adding the paraffin scraper which put additional weight on the Schedule 40 nipple and thereby put too much stress upon the launch system.
Because of the extra weight, along with the undetected inadequate nipple, Burmont/McMoRan should share responsibility for the death of John Dusenbery with Hart, Inc., and is not entitled to indemnity since it was actually negligent and not just strictly liable.
Therefore, I respectfully dissent.

On Application for Rehearing
PER CURIAM.
On application for rehearing, Hart complains that our original opinion places the burden on the third party defendant to defeat the incidental demand by proving negligence on the part of the third party plaintiff. Hart argues that the burden of proof should be on the party seeking relief by means of the third party demand.
When two defendants are held solidarily liable to the plaintiff in this type of proceeding, contribution among solidary obligors is the rule, in the absence of other evidence. However, the evidence presented by the plaintiff in the present case established that Hart was negligent, while not showing any negligence on the part of McMoRan/Burmont. Thus, when plaintiff rested, the evidence entitled McMoRan/Burmont to a judgment on its third party demand for indemnity, and it was up to Hart to overcome McMoRan/Burmont's entitlement to indemnity by presenting evidence of McMoRan/Burmont's independent negligence.
This court's original opinion did not place any burden of proof on Hart. Rather, our opinion simply placed on Hart the burden to proceed with the evidence, at the point that the evidence showed negligence only on Hart's part.
WATSON, J., would grant.
NOTES
[1]  Indeed, indemnity may not be available at all in many cases of vicarious liability. It is doubtful that indemnity would be allowed to an employer against an employee for simple negligence, since such recovery is contrary to the very purpose of imposing vicarious liability on an employer who benefits from the services of the employee in the course of his employment.
[2]  The negligence or actual fault of a third party may entitle the owner to full indemnity as between the defendants (or possibly even to exoneration from the injured party's claim for damages, if the third party is a stranger to the owner rather than a person acting with the owner's consent in the performance of the owner's non-delegable duty to keep the structure in repair).
[3]  This is not to say that indemnity is available in every case in which there is one strict liability defendant and one negligent defendant. Indemnity is available only when, as in the present case, the strict liability defendant is liable to the injured party on the basis of responsibility, imposed without proof of negligence, for an unreasonably dangerous condition which the negligent defendant actually created and which the strict liability defendant neither concurrently caused nor had an opportunity to actually discover and remedy.
[4]  This case is distinguishable from Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980), in which the operator of a department store that contained an escalator with an unreasonably dangerous condition was denied indemnity against the elevator manufacturer. The court held that the evidence did not establish "greater fault" on the part of the manufacturer, since both parties were aware of the risks which caused the injury and both failed to provide a warning.
[5]  With regard to the contribution versus indemnity issue, this court further noted:

"The legislative adoption of a comparative fault system, which requires that the fault of all parties be quantified, possibly will do away to a large extent with the necessity of distinguishing between contribution and indemnity among solidary tort obligors." 427 So.2d at 1196, n. 5.
[6]  This rule is followed in other jurisdictions. See J. Dooley, Modern Tort Law §§ 26.07, 26.10 (1982); W. Prosser, Law of Torts § 51 (1971).


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 97-6157

VESTEL MCKINLEY MOYER,

                                           Petitioner - Appellant,

          versus

PATRICIA HUFFMAN; EDWARD W. MURRAY,

                                          Respondents - Appellees.

Appeal from the United States District Court for the Western Dis-
trict of Virginia, at Roanoke. Samuel G. Wilson, Chief District
Judge. (CA-94-344-R)

Submitted:   May 29, 1997                  Decided:   June 10, 1997

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Vestel McKinley Moyer, Appellant Pro Se.       Eugene Paul Murphy,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant seeks to appeal the district court's order denying

relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &

Supp. 1997), alleging ineffective assistance of counsel in failing

to pursue Appellant's appeal rights. We have reviewed the record

and the district court's opinion and find no reversible error. The
district court's determination of credibility will not be disturbed

on appeal. United States v. Locklear, 829 F.2d 1314, 1317 (4th Cir.
1987). Accordingly, we deny a certificate of appealability and dis-

miss the appeal. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before the Court and argument would not aid the decisional process.

                                                         DISMISSED

                                2


180 F.3d 371,
Joseph Martin GAINES, Petitioner-Appellant,v.Walter KELLY, Superintendent, Attica Correctional Facility,Respondent-Appellee.
No. 96-2761.
United States Court of Appeals,Second Circuit.
June 4, 1999.

Appeal from the United States District Court for the Western District of New York (Arcara, J.).
Appearing for Appellant: Gail Jacobs, Great Neck, NY.
Appearing for Appellee: Thomas H. Brandt, Assistant District Attorney, Lockport, NY (Matthew J. Murphy, III, District Attorney for the County of Niagara, on the brief).
Present: CARDAMONE, JACOBS, Circuit Judges, CARMAN, Chief Judge.*

ORDER

1
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 4th day of June, one thousand nine hundred and ninety-nine.

2
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be REVERSED.

3
Joseph Martin Gaines appeals from the final judgment of the United States District Court for the Western District of New York denying Gaines's petition for writ of habeas corpus and dismissing his 28 U.S.C. § 2254 action.

4
The judgment of the district court is hereby REVERSED on the ground that the state trial court's reasonable doubt instruction was constitutionally defective.  An opinion further explaining the panel's reasons shall follow forthwith.  This case is hereby REMANDED to the district court with instructions to grant Gaines's petition and to order Gaines's release from custody unless the State of New York provides him with a new trial within sixty (60) days of the date of entry of the district court's order.

5
The mandate shall issue immediately.

*
 The Honorable Gregory W. Carman, Chief Judge of the United States Court of International Trade, sitting by designation


355 S.W.2d 174 (1962)
INDUSTRIAL FARM HOME GAS CO., Appellant,
v.
Ronald McDONALD, by Gladys McDonald as His Next Friend, and A. C. McDonald, Appellees.
No. 5-2605.
Supreme Court of Arkansas.
March 5, 1962.
Rehearing Denied April 9, 1962.
*175 Frierson, Walker & Snellgrove, Jonesboro, for appellant.
John Watkins, Paragould, W. B. Howard, Jonesboro, Kirsch, Cathey & Brown, Paragould, for appellees.
HARRIS, Chief Justice.
Ronald McDonald, appellee, a minor, was injured in a collision, between a pickup truck, driven by appellee, and a butane gas delivery truck, owned by appellant, Industrial Farm Home Gas Company, and driven by its employee, James Gathings. The collision took place on a rural road in Greene County in March, 1960, during a time when snow and ice covered the area. The impact occurred at the top of a hill where there is a right angle turn creating a blind curve. The gas truck was proceeding uphill in a westerly direction,[1] and McDonald, 15 years of age, was approaching the curve from the north. The road, covered with snow and ice, and according to the testimony, extremely slick and dangerous, ran through a deep cut, so that the vision of each party was obscured. According to McDonald, he approached the curve at a speed of about 15 miles per hour, and according to Gathings, he (Gathings) approached at a speed of approximately 5 miles per hour. Admittedly, both operators were driving slowly, and, according to the testimony of each, were about 25 feet apart before they observed each other. It appears from the evidence that this distance was the approximate limit of visibility, and neither could have observed the other earlier. When the drivers came into view, McDonald applied his brakes, and his truck began to skid, striking the gas truck a few inches behind the left head light, and the left fender of appellee's truck striking the left fender of appellant's truck. According to the boy, he had gotten over to the right as far as he could go, and the gas truck was in the middle of the road at the time of the collision. McDonald was unable to say whether any part of his vehicle was across the center of the road. Gathings testified that he had gotten to his right as far as possible, and denied that he was in the center of the roadway. One thing is evident; the road (which was just a dirt, country road, with a little gravel on it) was quite narrow. No one testified as to its width, but photographs in the record establish its narrowness  probably no wider than to permit two vehicles to barely pass.
Suit for personal injuries was instituted against appellant by Gladys McDonald, mother and next friend of the minor, Ronald. Appellant answered, denied negligence, pleaded contributory negligence, and asserted that the negligence of Ronald McDonald exceeded that of appellant; a counterclaim was filed seeking damages to the gas truck in the amount of $175. A third party complaint was filed against A. C. McDonald, Ronald's father, alleging that the former was the owner of the truck, and that he was negligent in trusting the vehicle *176 to his son, who was only 15 years of age. Judgment was sought against the father in the amount of $175. The third party defendant subsequently moved to strike so much of the third party complaint as sought relief under the provisions of the Arkansas Contribution Among Tortfeasors Act, and the motion was granted. The cause proceeded to trial, and after the taking of evidence, was submitted to the jury on interrogatories. The jury found both McDonald and appellant's driver, Gathings, to be negligent, establishing Gathings' negligence at 60%, and McDonald's at 40%. Damages to McDonald were fixed at $7000. Judgment against appellant was accordingly entered by the Court in the amount of $4200 and costs, and the cause dismissed as to A. C. McDonald. From the judgment so entered, appellant brings this appeal. For reversal, several points are urged, and we proceed to a discussion of same.
I.
"The Court erred by informing the jury of the effect of answers to interrogatories on liability of appellant."
The Court submitted the case to the jury upon interrogatories in the customary form, #1, inquiring if they found Gathings guilty of negligence; #2, if they found Ronald McDonald guilty of negligence; and #3 (if the answer to both questions was "yes"), the percentage of fault attributable to each. As previously stated, the jury prorated the negligence as 60% to Gathings and 40% to McDonald. After the jury had retired, they subsequently returned to the courtroom and asked the Court a question. The Court answered that question, and the record then reflects the following:
"Foreman of Jury: Another question, in making this on a percentage basis, if, on account of the boy's injuries, do we include, stipulate the damage done to the boy?
"The Court: You determine that, what you feel the weight of the evidence establishes is his damages, what you feel the total compensation should be. The Court: Do you have another question? Foreman of Jury: We want to know, too, if we make this settlement on a percentage basis, the hospital bills we have a record of here, is that going to be on a percentage basis or do we make it in full? The Court: Let me give you an example, perhaps I might clarify this in an example. I am not using the facts in this case at all. Going to use, say `A' and `B', who become involved in charges and countercharges of negligence as against each other, each claims to have been damaged. In my example, let us assume the jury says `A' is 25 percent at fault and `B' is 75 percent at fault. The jury found, in response to interrogatories, after it made that determination of 25 and 75 percent, as indicated by the interrogatories, since `B' is 75 percent at fault, which is more than 50 percent, he is not entitled to recover anything, having contributed most of the fault causing the damages. `A', if the jury finds his damages as established, say for example, to be $100.00, then the total amount of his recovery against `B' would be $100.00 less 25 percent, which is a deduction made because he contributed 25 percent of the fault that brought about the particular injuries to himself.
(Note: Short conference at Bar of Court.)
"The Court: At the request of counsel, in the event  go back to my example of `A' and `B'. In the event the jury found `A' 50 percent at fault and `B' 50 percent at fault, in that event, since they are equally at fault, neither can recover against the other any damages and it would not be *177 necessary to make any calculation as to damages.
"The Court: Any other question.
(Note: The jury again retired to consider case.)
"Mr. Walker: The defendant objects to the Court's explanation insofar as the Court undertook to explain to the jury the effect of a finding of negligence in diminution of the damages by showing the result which would follow from a certain percentage of negligence, on the ground that this example tends to inflame the jury and prejudice them to establish a result which would not follow from a fair, unbiased answer to the interrogatories.
"Mr. Howard: Let the record show, the objection was made after the jury retired, counsel stood mute at the time that the Court was instructing the jury.
"Mr. Burris: The third party defendant concurs in the objection and adopts the objection of the defendant."
Appellant vigorously argues that the Court committed reversible error by informing the jury of the effect of answers to interrogatories. The case of Wright v. Covey, Ark., 1961, 349 S.W.2d 344, is relied upon in support of this contention. In that case, we held that no error was committed because the information given the jury was already known by them, but appellant says that in the matter before us, it is obvious the jury did not already know, nor understand, the effect of the interrogatories. Quoting from its brief:
"It is obvious that the jury did not already know what the Court told them in detail and with illustrations as to how their answers to interrogatories would determine the ultimate outcome of the case. The jury clearly did not understand the effect of the interrogatories or even how they were used and it was quite obvious that they desired to decide the merits of the matter by a general verdict according to their own notions of right and wrong. The effect of the Court's explanation was to afford them the means of determining how to make certain that the plaintiff prevailed, even though they apparently were not convinced that such a result would follow by simple and direct answers to the plain interrogatories which were addressed to them."
Appellant further states:
"Thus, the Court followed exactly the practice which was condemned in Wright v. Covey, decided Sept. 11, 1961, 108 Law Rep. No. 5, p. 174 at 177 [Ark., 349 S.W.2d 344] where the Court made the following statement: `The appellants rely upon the rule, often announced in other jurisdictions, which prohibits a trial court, in submitting a case upon special interrogatories, from informing the jury of the effect that their answers may have upon the ultimate liability of the parties. Mitchell v. Perkins, 334 Mich. 192, 54 N.W.2d 293; Grasso v. Cannonball Motor Freight Lines, 125 Tex. 154, 81 S.W.2d 482; Anderson v. Seelow, 224 Wis. 230, 271 N.W. 844. The reason for the rule is that the special interrogatories are intended to elicit the jury's unbiased judgment upon the issues of fact, and this purpose might be frustrated if the jurors are in a position to frame their answers with a conscious desire to aid one side or the other."
We are unable to consider this contention for no proper objection was made. Appellant's objection does not go to the fact that the Court's statement informed the jury of the effect their answers would have on the ultimate liability of the parties; rather, the objection is that the Court's *178 explanation "tends to inflame the jury and prejudice them." We find nothing in the Court's statement that could be considered inflammatory, nor anything that could possibly have aroused prejudice; in fact, appellant's own argument in the brief, heretofore quoted, is indicative of the fact that it recognizes that if any prejudice existed, it was present before the questions were asked. Since no proper objection was made, it becomes unnecessary to consider either whether the objection was made too late,[2] or if appellant should have gone farther and moved for a mistrial.

II.
"The Court erred in overruling appellant's objection to testimony of appellee's witness, Varvil, as to conversation with appellant's insurance adjuster."
Johnny Varvil, a friend of McDonalds, was following McDonald in another vehicle at the time of the collision. Varvil testified that McDonald had pulled out of the ruts on the right side of the road prior to the collision; that he did not see the McDonald car skid prior to the collision, and did not see the gas truck prior to the collision. On cross-examination, the witness was interrogated about a written statement which he admitted signing; this statement related that Varvil had said that both trucks were in the middle of the road, and that the McDonald truck was skidding and hit the gas truck.[3] The witness denied saying that both trucks were in the middle of the road. On redirect examination, counsel for appellee stated, "Will you tell the jury, please, who, according to your best recollection, it was who took the statement?" The answer from the witness was, "I believe, it was the insurance man." Appellant moved for a mistrial, which was overruled. The witness stated that the insurance man was representing the IFH Butane Company. Several references are thereafter made to the insurance adjuster. Appellant strongly urges that the injection of insurance into the testimony was highly prejudicial and justified a mistrial being declared. We do not agree. Our rule is that the injection of insurance coverage (to be proper) must be relevant and pertinent to some issue in the case. Let it be borne in mind that this written, signed, statement was introduced by appellant as an effort to impeach Varvil's testimony. In Murray v. Jackson, 180 Ark. 1144, 24 S.W.2d 960, this Court said:
"The next assignment of error relates to the admission of testimony for the plaintiff, Mrs. Jackson. It had been shown in behalf of Mrs. Jackson that her injuries were permanent, and that it was necessary to keep her in the hospital for some time with special nurses and a physician attending her daily. The hospital, nurses' and physician's bills amounted to something over $1,700. The defendant then introduced a physician as a witness who testified that he examined Mrs. Jackson at the hospital, that she could walk about while there, that it was not necessary to keep her there for so long, and that her injuries were not permanent. On cross-examination, counsel for the plaintiff asked for whom he made the examination, and he replied that he did not remember, but believed that it was for an insurance company, and stated further that the Southern Insurance Company asked him to make a report on the case.
"A reversal of the judgment was asked on account of the admission of *179 this testimony. The claim is made that the cross-examination of the witness as to who employed him was made for the purpose of showing that an insurance company was in reality defending the case, and that the cross-examination of the witness brought the case within the rule announced in Pekin Stave & Manufacturing Co. v. Ramey, 104 Ark. 1, 147 S.W. 83. We do not agree with counsel in this contention. The testimony of the physician introduced by the defendant tended to contradict the testimony of the physician introduced by Mrs. Jackson as to the character and extent of her injuries and as to the necessity of expending the money that was expended for her for hospital bills and attendance by nurses and a physician. The cross-examination was proper for the purpose of impeaching or contradicting the witness. The jury might have found that the employment of the physician made him biased in favor of the defendant, or at least tended to show the interest of the witness in the case."
This is in accord with the general rule, which is expressed in 4 A.L.R.2d, § 9, p. 782, under the title, "Showing of Liability Insurance", as follows:
"As a general rule, where a previously written statement is produced in court and used for the purpose of impeaching plaintiff or one of his witnesses, it is proper for plaintiff's counsel to show that the person procuring such statement was a representative of defendant's insurance company."
It thus appears that when a witness is asked about a statement, previously given, and he denies making some of the remarks appearing in the writing, opposing counsel may then show who wrote the account as a matter of permitting the jury to determine whether the person who took the statement had any possible bias or interest in the matter. Therefore, if a defendant desires to impeach the testimony of a witness by interrogating him relative to a statement taken by an insurance company representative, he must be prepared for the jury to know that insurance is involved.

III.
"The Court erred in refusing appellant's instruction on inevitable accident."
Appellant requested the following instruction, which was refused over its objection and exceptions:
"If you find from the evidence in this case that the collision was caused solely by conditions of weather or of the road, or any other conditions beyond the control of either driver, without negligence on the part of either driver, then the collision would be an unavoidable accident which neither party would be liable, and, if you should so find, you should answer the interrogatories in this case that neither party was negligent."
After thorough study, we have reached the conclusion that this point contains merit. There are quite a number of cases involving this question, in some of which we held the instruction proper, and contrariwise in the others. Really, whether such an instruction is justified depends upon the facts in evidence in each particular case. In St. Louis-San Francisco Ry. Co. v. Bryan, 195 Ark. 350, 112 S.W.2d 641, we said:
"It has been frequently stated by this and other courts that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances."
Appellee cites the cases of Bennett v. Staten, 229 Ark. 47, 313 S.W.2d 232, and Sullivan v. *180 Fanestiel, 229 Ark. 662, 317 S.W.2d 713, as authority for the fact that the instruction was properly refused. However, a reading of the opinions, as well as the transcripts, of those cases, reflects notable differences from the case at bar. In the Bennett case, this Court said that the facts did not warrant such an instruction, and we quoted from an earlier case with the comment that the statement equally applied in Bennett, as follows: "Moreover, there is no evidence in the record tending to show an unavoidable accident." In the Sullivan case, we upheld the trial court in refusing to instruct the jury relative to unavoidable accident, and commented that the collision was certainly caused by somebody's negligence. There, also, both parties contended and testified that the collision was the fault of the other. This is not the situation before us. Neither the Bennett nor Sullivan cases related to situations involving unusual weather conditions, and more than that, the testimony was completely different. For instance, during the examination of McDonald, the question was asked, "How wide was the curve in the narrow part of it there?" Appellee answered, "Wasn't very wide." "Wasn't?" "I don't think room for the gas truck and my truck to pass." Subsequently, McDonald stated that he put on his brakes and slid, but did not slide to the other side. "Q. You say you were on the right-hand side, he was on the left-hand side coming around the curve, you got over and hit him? A. I couldn'ta missed him. Q. You couldn't miss him? A. No, sir." Gathings, appellant's truck driver, stated, "As near as humanly possible, it was an unavoidable accident." Accordingly, we have both parties making statements that certainly bring into issue the question of whether the collision was an unavoidable accident. In fact, the quoted testimony of the two principals, together with the testimony about the weather conditions, and the admitted slow speed of each vehicle, was sufficient to warrant the giving of the instruction. Appellee states that the jury's finding of negligence has the effect of rendering this question moot; however, we do not agree; we do not know what view the jury might have taken had it been instructed on inevitable accident, for the evidence was sufficient to have sustained such a finding. Really, it is difficult to visualize a case where the instruction would be more proper than in the case at bar; in fact, the strongest evidence of negligence on the part of appellant's driver was his failure to sound his horn as he entered the curve. We are of the opinion that appellant was entitled to have this instruction given, and the court committed reversible error in failing to comply with the request.
It is also urged that the court committed error in refusing to permit appellant to prove by the witness Varvil that McDonald had previously made a statement to Varvil that contradicted testimony given on the witness stand by appellee. Without entering into a detailed discussion of this point, suffice it to say that we find no error, since appellant had not laid the proper foundation (for asking Varvil the question) while McDonald himself was on the stand.
For the error herein indicated, the judgment is reversed, and the cause remanded.
McFADDIN and JOHNSON, JJ., dissent.
McFADDIN, Justice (dissenting).
As I understand the Majority Opinion the judgment of the Trial Court is reversed solely because the Court refused to give the instruction requested by the appellant on unavoidable or inevitable accident, as copied in the Majority Opinion. Conceding, without admitting, that the instruction was properly worded, nevertheless I insist that the Trial Court was correct in refusing this instruction because the driver of the appellant's truck admitted that he failed to sound his horn as required by law. The violation of traffic laws directly connected *181 with the mishap is always evidence of negligence. Mays v. Ritchie Grocer Co., 177 Ark. 35, 5 S.W.2d 728; Browder v. St. Louis Southwestern Ry. Co., 221 Ark. 773, 256 S.W.2d 333. James Gathings, who was driving appellant's truck at the time of the collision, admitted: "I was approaching a blind 90 degree curve * * * Just as I turned the 90 degree turn and topped the hill I met Mr. McDonald coming south * * * I didn't sound by horn before I went into the curve. It hasn't been my practice to do that * * * I didn't know at that time it was prudent going into a blind situation to sound my horn. I didn't know that was the law. I didn't know it was the prudent thing to do. It never occurred to me. I did not sound my horn going into the curve. I knew it was narrow and dangerous there * * *"
These admissions by the driver of the appellant's vehicle fairly admit the violation of § 75-653 Ark.Stats., which reads:
"The driver of a motor vehicle traveling through defiles or canyons or on mountain highways shall hold such motor vehicle under control and as near the right-hand edge of the highway as reasonably possible, and, upon approaching any curve where the view is obstructed, within a distance of 200 feet along the highway, shall give audible warning with the horn of such motor vehicle."
When the driver of the Gas Company truck admitted violation of the traffic law directly connected with the mishap, then the truck owner was not entitled to an instruction on unavoidable accident. It is only when all parties deny negligence that an instruction should be given on unavoidable accident. In Taggart v. Scott, 193 Ark. 930, 104 S.W.2d 816, this Court approved the following instruction on unavoidable accident:
"The court instructs the jury that if they believe from the evidence that the injuries, if any, sustained by the plaintiff were a result of a mere accident, that is, without negligence of any one, then your verdict will be for the defendant."
Mr. Justice Humphreys stated why the said instruction should have been given in that case:
"Appellant claimed she was not negligent. Likewise appellee claimed he was not negligent. If neither was to blame, the collision was necessarily an accident and it would have been error not to give this instruction. It was so decided in the case of Morgan v. Cockrell, 173 Ark. 910, 294 S.W. 44."
Under the holding in Taggart v. Scott it is proper to give an instruction on unavoidable accident only when both plaintiff and defendant deny negligence. The admission of a violation of the traffic laws is certainly admission of facts from which the jury could find negligence. So the requested instruction in this case should not have been given.
In Am.Jur. vol. 5, p. 939, "Automobiles" § 1100, the holdings are summarized in this language:
"The giving of an instruction that if the injury complained of was the result of mere accident or misadventure, without the fault of anyone, the plaintiff cannot recover, is proper only where there is something in the record tending to show that the casualty resulted from some unknown cause, and is improper where it resulted from known actions of known persons and things, * * *"
In Blashfield's Cyclopedia of Automobile Law, vol. 1 § 635, in discussing unavoidable accidents, the text reads:
"A mere accident being one in which neither party is at fault, the mere fact that neither driver of two automobiles *182 colliding with each other saw the other until too late to avoid the collision is not enough to show that the accident was unavoidable, since in such a case the negligence, if any, producing the situation, determines the liability, so that if either party can avoid an accident by the exercise of proper care it cannot be said to be unavoidable."
In 65 A.L.R.2d 12 there is an exhaustive annotation entitled, "Instructions on unavoidable accident or the like in motor vehicle cases." In that article the propriety of unavoidable accident instructions is considered in great detail. In Paragraph 3 of the annotation, Arkansas is listed as one of the States in which such an instruction is proper in certain cases; but I find no case which holds that the instruction is proper when the defendant has admitted violation of the traffic rules directly connected with the collision.
I maintain that the Trial Court was correct in refusing the instruction on unavoidable accident in this case; and therefore I respectfully dissent.
JOHNSON, Justice (dissenting).
I dissent. In my opinion the majority is this day doing violence to the established law on harmless error.
From at least as early as 1887 with the decision in Hames v. Harris, 50 Ark. 68, 6 S.W. 233, and as late as 1958 in Weatherford v. George, 229 Ark. 536, 317 S.W.2d 147, this Court has consistently held that an error which does no prejudice to the complaining party is harmless and that such an error is not ground for reversal. In Weatherford v. George, supra, this Court made it abundantly clear that a failure to give a proper instruction is immaterial where the interrogatories and the jury's answers thereto show that the matter covered by the requested instruction was actually decided by the jury. There is no valid distinction between the holding in Weatherford and that in the case at bar. In the cited case, the defendants requested an instruction to the effect that there could be no recovery if one of the plaintiffs was guilty of negligence which was the sole proximate cause of the accident and resulting injuries. The requested instruction was refused. However, this Court pointed out that the question of negligence was fairly submitted by interrogatories numbered 5 and 6. Interrogatory No. 5 read:
"Do you find from a preponderance of the evidence that Charlie George (the plaintiff mentioned in the requested instruction) was negligent and that such negligence, if any, was a proximate cause of his damages, if any, complained of by him?" (parenthesis supplied).
The jury answered this interrogatory "no".
Interrogatory No. 6 read:
"Using 100% to represent the total negligence involved, what do you find from a preponderance of the evidence to be the amount of negligence on the part of the following:
   "Charlie George:   `none %'
   "Russ Weatherford:  `100%'"
After setting forth the quoted interrogatories, this Court said:
"It certainly follows that if the jury found George guilty of no negligence whatever they would not have found that negligence on his part was the proximate cause of the mishap. Accordingly, even if the failure to give the instruction was error, the verdict rendered by the jury had the effect of healing or remission."
In the case at bar the term "negligence" was fully and correctly defined in Court's Instruction No. 2 and the term "proximate cause" was properly defined in Court's Instruction No. 3. The trial court submitted *183 the instant case to the jury upon interrogatories.
Interrogatory No. 1 read:
"Do you find from a preponderance of the evidence that James Gathings (appellant's admitted servant) was negligent and that such negligence caused or contributed to cause the collision herein?" (Parenthesis supplied).
Interrogatory No. 1 was answered "yes".
Interrogatory No. 2 was a verbatim copy of Interrogatory No. 1 except it inquired as to Ronnie McDonald's negligence.
Interrogatory No. 2 was answered "yes".
Interrogatory No. 3 read:
"What do you find is the proportion of fault, expressed in percentages totaling 100%, attributable to James Gathings and Ronnie McDonald, is a cause of the collision?"

    "James Gathings   `60%'
    "Ronnie McDonald  `40%'"

Thus, we see that the matter of the negligence of both parties and the percentage of such negligence was fully and fairly submitted to and passed upon by the jury just as in the Weatherford case. The majority says: "We do not know what view the jury might have taken had it been instructed on inevitable accident." I submit that the jury did pass on this issue and their view on the matter is obvious.
The only possible distinction between Weatherford and the case at bar is that in the cited case the court refused to instruct on negligence whereas here the court refused to instruct on unavoidable accident. This, of course, is a distinction without a difference. It is inescapable that before a jury can find a person guilty of negligence they must first find that the collision was not unavoidable.
To find negligence under the definition in this case, it was necessary for the jury to find that the parties failed to exercise that degree of care which is used by ordinary prudent persons under the same or similar circumstances. Had the jury found that defendant's servant Gathings exercised ordinary care, then their answer to Interrogatory No. 1 would have been "no". This would, of course, have been a finding that so far as the defendant was concerned the accident was unavoidable. The same thing may be said as to the jury's finding on the negligence of the plaintiff.
To paraphrase Weatherford: It certainly follows that if the jury found both parties guilty of negligence, they would not have found that the mishap was unavoidable.
As the Court said in Hames v. Harris, supra, "His injury by the court's charge is therefore not real, but imaginary, even if his theory of the law is right."
We have seen that the issue of unavoidable accident was necessarily determined by the jury in making its determination as to negligence. If the issue was determined then certainly it was submitted in Interrogatories No. 1 and 2. There is no virtue in having the jury instructed in phraseology selected by the appellant rather than that selected by the court provided that the issue was presented. In Ratton v. Busby, 230 Ark. 667, 326 S.W.2d 889, we held that it was not necessary to give the converse or negative of a proposition and cited 88 C.J.S. Trial § 303, p. 820. In Ratton, we said:
"Where the law has been clearly and adequately stated in a positive manner, ordinarily the court need not instruct in a negative form."
Having submitted the issue as to negligence, it was not incumbent on the trial court to submit the negative which was unavoidable accident.
One other illustration should make it absolutely clear that there was no prejudicial error in refusing the appellant's requested instruction. Under the interrogatories submitted, the jury could have found that the *184 negligence of each party was zero. Had the jury so found what would this be other than a finding of unavoidable accident?
Under the "general verdict" practice, it might be error to refuse to instruct in a proper case upon "unavoidable accident". However, where a case is submitted to the jury on interrogatories, such as those in the case at bar, such an instruction is absolutely superfluous. Of course it would be proper in any case to instruct that the mere happening of an accident creates no presumption of negligence. However, the appellant did not request such an instruction and the instruction which it did request cannot be tortured into an instruction on no presumption of negligence.
It would unduly extend this opinion to minutely analyze the host of cases holding errors such as that in the case at bar to be harmless. Suffice it to say that Arkansas Lumber Company v. Wallace, 99 Ark. 537, 139 S.W. 534, presents a striking parallel to the case at bar. In that case it was held that failure to give an instruction that defendant was not liable if plaintiff's injuries resulted from an accident which the defendant could not foresee in the light of attending circumstances was not error where all instructions given made it essential that plaintiff prove his injuries were proximately caused by the defendant's negligence.
An excellent discussion of "Error Cured by Verdict or Judgment" may be found in 5A, C.J.S. Appeal & Error § 1776, pages 1284-1290. Our Court has always followed the general rules there set forth and it grieves me to think of the Pandora's Box which we now open by turning our back on these rules.
Whether it be said that the jury verdict made the matter moot, or that failure to give the instruction was harmless because of the jury's answers or that the subject matter of the instruction was covered, it boils down to the fact that appellant was not prejudiced by the action of the court. Therefore, to the majority's view to the contrary, I respectfully dissent.
NOTES
[1]  After making the curve, this truck would have been proceeding north.
[2]  The objection was not made until the jury left the courtroom.
[3]  Subsequently, on re-direct examination, Varvil admitted that the statement was offered to him to read before he signed, but the witness testified that he could not read the writing, but was ashamed to admit it. "Seemed kinda funny to him, I couldn't read his handwriting."


                         STATE OF MICHIGAN

                          COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  September 13, 2018
              Plaintiff-Appellee,

v                                                                 No. 337929
                                                                  Wayne Circuit Court
GERALD DEVAN TARPLEY,                                             LC No. 16-009218-01-FH

              Defendant-Appellant.

Before: SWARTZLE, P.J., and JANSEN and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial conviction of third-degree criminal sexual
conduct (CSC-III), MCL 750.520d(1)(c) (sexual penetration with knowledge that the victim was
physically helpless). The trial court sentenced defendant to 6 to 15 years’ imprisonment, with
credit for 150 days served in jail. We affirm.

        This case arises from a sexual encounter that occurred on October 8, 2016, between
defendant and the victim, in Detroit, Michigan. Defendant was eventually charged with two
counts of CSC-III under multiple theories. 1 The trial court, without objection from the
prosecution, dismissed the theory under 750.520d(1)(b) (sexual penetration with the use of force
or coercion), which left the prosecution to pursue the CSC-III charges using the theory under
MCL 750.520d(1)(c) (sexual penetration with knowledge that the victim was physically helpless
or mentally incapacitated or mentally incapable). Defense counsel requested the instruction of
consent be provided to the jury because there was a factual issue regarding whether the victim
was awake and consented to the sexual contact. The trial court declined to give the consent
instruction based on the Use Note for M Crim JI 20.27. The jury eventually convicted defendant
as described above. This appeal followed.

        Defendant argues that the trial court abused its discretion by refusing to provide the
special jury instruction regarding the defense of consent. We disagree.

1
 Count 1 was based on finger into genital opening and Count 2 was based on cunnilingus.
Defendant was found not guilty on Count I.

                                              -1-
        “We review a claim of instructional error involving a question of law de novo, but we
review the trial court’s determination that a jury instruction applies to the facts of the case for an
abuse of discretion.” People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010). “An abuse
of discretion occurs when the trial court chooses an outcome falling outside the range of
principled outcomes.” People v Kosik, 303 Mich App 146, 154; 841 NW2d 906 (2013). “The
defendant bears the burden of establishing that the asserted instructional error resulted in a
miscarriage of justice.” Dupree, 486 Mich at 702.

        “Jury instructions must include all the elements of the charged offense, and must not
exclude material issues, defenses or theories if the evidence supports them.” Kosik, 303 Mich
App at 155. In determining whether there was an instructional error requiring reversal, this
Court reviews the jury instructions in their entirety. People v Heikkinen, 250 Mich App 322,
327; 646 NW2d 190 (2002). If the instructions given fairly present the issues to be tried and
sufficiently protect defendant’s rights, there is no error requiring reversal. Id.

        The trial court instructed the jury on the elements of CSC-III, including the definition of
physically helpless. Defendant contends that the trial court erred in declining to give jury
instructions on the defense of consent. Indeed, jury instructions must not exclude defenses if the
evidence supports them. Kosik, 303 Mich App at 155. As this Court has long held, a consent
defense instruction is available to a defendant if the prosecution proceeds on any of the force or
coercion provisions of § 520b(1)(c). See People v Vaughn, 186 Mich App 376, 380; 465 NW2d
365 (1990); see also People v Waltonen, 272 Mich App 678, 689; 728 NW2d 881 (2006) (“In the
context of the CSC statutes, consent can be utilized as a defense to negate the elements of force
or coercion.”). However, a consent defense is not available for a CSC-III charge pursuant to
MCL 750.520d(1)(c) because consent requires a “willing, noncoerced act of sexual intimacy or
intercourse between persons of sufficient age who are neither ‘mentally defective’, . . . ‘mentally
incapacitated’, . . . nor ‘physically helpless.’ ” People v Bayer, 279 Mich App 49, 67; 756
NW2d 242 (2008), vacated in part on other grounds 482 Mich 1000 (2008), quoting People v
Khan, 80 Mich App 605, 619 n 5; 264 NW2d 360 (1978) (ellipses in Bayer). Consent requires
that a person agree to a sexual act freely and willingly, whereas a person is physically helpless
when the person is “physically unable to communicate unwillingness to an act,” MCL
750.520a(m). Thus, consent cannot exist where a person meets the definition of being physically
helpless because, by definition, such a person is not able to willingly agree to a sexual act.
        That the consent defense is not available for a charge of CSC-III under the physically
helpless theory is supported by the language of MCL 750.520d(1)(c), which “does not provide
that it applies to ‘nonconsenseual sexual penetration,’ but rather it simply refers to ‘sexual
penetration.’ ” Waltonen, 272 Mich App at 690 (discussing MCL 720.520b(1)(c)).2 In
Waltonen, this Court stated that “[t]he statute leaves no room for consent.” Id. at 690. When the
Legislature’s meaning is clearly expressed, this Court is required to enforce the statute as written.
Id. at 685. Similarly, in People v Starks, 473 Mich 227, 235; 701 NW2d 136 (2005), the
defendant was convicted of CSC-III under the theory that the defendant sexually penetrated the
victim and the victim was at least 13 but younger than 16 years old, MCL 750.520d(1)(a). Based

2
    The language at issue is the same in both MCL 720.520b and MCL 720.520d.

                                                 -2-
on the language of MCL 750.520d(1)(a), the Michigan Supreme Court concluded that “a
thirteen-year-old child cannot legally consent to sexual penetration with another person because
sexual penetration of a thirteen-year-old child is automatically third-degree criminal sexual
conduct.” Id. (emphasis added).

        Here, the theory of force or coercion was dismissed, and the prosecutor only pursued the
CSC-III charges under the theory that defendant sexually penetrated the victim with the
knowledge that the victim was physically helpless, MCL 750.520d(1)(c). Thus, the only
disputed issue was whether the victim was physically helpless and, as discussed above, consent
is not an applicable defense to a charge of CSC-III under the theory of physically helpless. See
Starks, 473 Mich at 235; Waltonen, 272 Mich App at 690; Khan, 80 Mich App at 619 n 5. This
conclusion is consistent with the Use Note for M Crim JI 20.27, which states, “[The consent
instruction] is also obviously inappropriate where the victim is . . . physically helpless.”3

        Even if the consent instruction was applicable and should have been provided, there is no
error requiring reversal in this case because the instructions given fairly presented the issues to
be tried and sufficiently protected defendant’s rights. See Heikkinen, 250 Mich App at 327. The
instructions clearly stated that the prosecution had to prove each of the elements of MCL
750.520d(1)(c) beyond a reasonable doubt in order for the jury to find defendant guilty. One of
those elements was that the victim was physically helpless. Based on the victim’s testimony and
defendant’s statement, there was a factual dispute regarding whether the victim was asleep
during the act. It is undisputed that if the jury found that she was asleep, then it would have
necessarily found that she was physically helpless. Conversely, if the jury found that the victim
was not asleep, then the prosecution’s case would have failed because its only theory was that
the victim was physically helpless. Indeed, evidence of consent was relevant to whether the
victim was physically helpless. However, the omission of the consent instruction did not prevent
the jury from finding that the victim consented and was therefore awake and not physically
helpless because throughout trial, defendant was able to argue that the victim did indeed consent.
If the jury believed that the victim had consented, then, by definition, it would have determined
that the victim was awake and not physically helpless. The instructions that were provided fully
protected defendant’s rights because the jury was informed of the defense that was applicable to
the case—that the victim was not physically helpless. See Heikkinen, 250 Mich App at 327.
Therefore, defendant failed to meet his burden of establishing that the asserted instructional error
resulted in a miscarriage of justice. See Dupree, 486 Mich at 702.

       Affirmed.

                                                             /s/ Brock A. Swartzle
                                                             /s/ Kathleen Jansen
                                                             /s/ Colleen A. O'Brien

3
 We recognize that the Use Note is not binding legal authority, but we consider it here for its
persuasive value and to provide context to defendant’s assertions. See People v Petrella, 424
Mich 221, 277; 380 NW2d 11 (1985).

                                                -3-


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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
CURTIS LEE WATSON, )
)
Petitioner, )
) Case: 1:15-cv—00867 (G Deck)
V ) Assigned To : Unassigned
) Assign. Date : 6/9/2015
UNITED STATES OF AMERICA, et al., ) Description: Habeas Corpus/2241
)
Respondents. )
)
MEMORANDUM OPINION

This matter is before the Court on petitioner’s application to proceed in forma pauperis
and his pro se complaint. According to petitioner, he should not have been charged with a
felony because the indictment on which the criminal prosecution in the Superior Court of the
District of Columbia was based did not exist.

“Under DC. Code § 23-110, a prisoner may seek to vacate, set aside, or correct sentence
on any of four grounds: (1) the sentence is unconstitutional or illegal; (2) the Superior Court did
not have jurisdiction to impose the sentence; (3) the sentence exceeded the maximum authorized
by law; or (4) the sentence is subject to collateral attack.” Alston v. United States, 590 A.2d 51 1,
513 (DC. 1991). Such a motion must be ﬁled in the Superior Court, see DC. Code § 23-110(a),
and “shall not be entertained . . . by any Federal . . . court if it appears that the [prisoner] has
failed to make a motion for relief under this section or that the Superior Court has denied him

relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the

legality of his detention.” DC. Code § 23-110(g); see Williams v. Martinez, 586 F.3d 995, 998

r WWW-wawwmum. wmwww.m w.- mumvmnm WWW.” m, i . V

(DC. Cir. 2009) (“Section 23-110(g)’s plain language makes clear that it only divests federal

courts of jurisdiction to hear habeas petitions by prisoners who could have raised viable claims
pursuant to section 23-110(a).”).
Petitioner does not demonstrate that the remedy available to him under DC. Code § 23-

110 is inadequate or ineffective to test the legality of his conviction and subsequent
incarceration. His apparent lack of success on a prior collateral attack on his conviction, see Pet,
Ex. (Judgment, Watson v. United States, No. l4-CO-672 (D.C. Ct. of App. Mar. 30, 2015)
(afﬁrming Superior Court’s denial of § 23-110 motion as procedurally barred as successive and
for abuse of the writ)), does not render his local remedy inadequate or ineffective. See Wilson v.
Ofﬁce of the Chairperson, 892 F. Supp. 277, 280 (D.D.C. 1995). Petitioner has no recourse in
this federal district court, and, therefore, the Court will deny the petition and dismiss this action.

See Watson v. Middlebrooks, No. 09—1682, 2009 WL 3163067, at *2 (D.D.C. Sept. 28, 2009).

An Order accompanies this Memorandum Opini -

DATE: /
7  / ) United tates District Judge