733 N.W.2d 397 (2007)
478 Mich. 934
Gust PAPADELIS, Niki Papadelis, Telly's Greenhouse and Garden Center, Inc., and Telly's Nursery LLC, Plaintiffs-Appellees/Cross-Appellants,
v.
CITY OF TROY, Mark Stimac, and Marlene Struckman, Defendants-Appellants/Cross-Appellees.
Docket No. 132366. COA No. 268920.
Supreme Court of Michigan.
June 29, 2007.
On order of the Court, the motion for leave to file brief amicus curiae is GRANTED. The application for leave to appeal the September 19, 2006 judgment of the Court of Appeals and the application for leave to appeal as cross-appellants are considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE in part the judgments of the Oakland Circuit Court and the Court of Appeals to the extent that they hold that the Right to Farm Act, MCL 286.471 et seq. (RTFA), and the State Construction Code, MCL 125.1502a(f), exempt the plaintiffs from the defendant city's ordinances governing the permitting, size, height, bulk, floor area, construction, and location of structures used in the plaintiffs' greenhouse operations. Assuming that the plaintiffs' acquisition of additional land entitled them under the city's zoning ordinance *398 to make agricultural use of the north parcel (a point on which we express no opinion, in light of the defendant city's failure to exhaust all available avenues of appeal from that ruling after the remand to the Oakland Circuit Court in the prior action, see City of Troy v. Papadelis (On Remand), 226 Mich.App. 90, 572 N.W.2d 246 (1997)), the plaintiffs' structures remain subject to applicable building permit, size, height, bulk, floor area, construction, and location requirements under the defendant city's ordinances. The plaintiffs' greenhouses and pole barn are not "incidental to the use for agricultural purposes of the land" on which they are located within the meaning of MCL 125.1502a(f). As no provisions of the RTFA or any published generally accepted agricultural and management practice address the permitting, size, height, bulk, floor area, construction, and location of buildings used for greenhouse or related agricultural purposes, no conflict exists between the RTFA and the defendant city's ordinances regulating such matters that would preclude their enforcement under the facts of this case. We REMAND this case to the Oakland Circuit Court for further proceedings not inconsistent with this order. In all other respects, the applications are DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.


170 Ariz. 315 (1991)
823 P.2d 1323
STATE of Arizona, Appellee,
v.
Kimberly Jean BOSTON, Appellant.
No. 1 CA-CR 89-1273.
Court of Appeals of Arizona, Division 1, Department E.
September 5, 1991.
Petition and Cross-Petition for Review Denied February 19, 1992.
As Corrected February 25, 1992.
Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Janet Keating, Asst. Atty. Gen., Phoenix, for appellee.
Dean W. Trebesch, Maricopa County Public Defender by Garrett W. Simpson, Deputy Public Defender, Phoenix, for appellant.

*316 OPINION
KLEINSCHMIDT, Judge.
The defendant, Kimberly Boston, was found guilty of possession of narcotics, a class 4 felony, and was sentenced to a mitigated term of two years imprisonment. On appeal, she argues that the trial court abused its discretion in accepting the prosecution's stated reason for exercising a peremptory challenge to remove a Hispanic member of the venire. The prosecutor said he struck the Hispanic woman from the panel because she had only a ninth grade education. We hold that given the nature of this case, it was an abuse of discretion to allow the peremptory challenge without a further attempt to determine whether the Hispanic woman's lack of education would somehow limit her ability to follow the proceedings and decide this particular case on a rational basis.
A trial judge's findings on the issue whether the state has exercised a peremptory challenge with discriminatory intent are entitled to great deference. Hernandez v. New York, ___ U.S. ___, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). It is with the greatest reluctance that we differ with the trial judge in this case. We do so because the prosecution failed to fully meet its burden in responding to the allegations that the state abused the use of its peremptory strike.
FACTS
The factual and procedural history of the case is as follows. Two Phoenix policemen were investigating a truck parked at a motel when they observed a man, Ginetto Castro, walking toward the truck. When Castro saw the police, he ran to his motel room. One of the policemen knocked on the door of the motel room, and Castro let him in. Upon entering, the officer saw the defendant, Kimberly Boston, flushing the toilet, and he saw an empty hypodermic syringe in the toilet bowl. Shortly after that, the defendant and Castro were sitting at a table, and Castro was playing with a hunting knife. In securing the knife, an officer bumped a ceramic tile that was on the table, revealing some small packets of heroin. Both the defendant and Castro were arrested.
During jury selection, the defendant's attorney objected to the state's peremptory strike of an Hispanic woman from the jury panel. The entire exchange on the issue was this:
MR. NOLAND: My client is part Hispanic and Miss Scott struck the only Hispanic juror on the available panel, number 23. And it is in issue.
THE COURT: Can you give me the name of the juror?
MR. NOLAND: Betty Martinez.
MS. SCOTT: My reason was that she only has a ninth grade education.
MR. NOLAND: Beyond that I cannot get into Miss Scott's mind. I simply say that looking at the papers that we were provided it is difficult to tell what education these people have. They write down information but not really a lot. The argument is that it is not sufficient.
THE COURT: I find that the reason stated is sufficiently acceptable and is not inappropriate and I will allow it at this time.
THE PEREMPTORY CHALLENGE
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court outlined a three-step process for evaluating a claim that the state has used a peremptory challenge in a manner which violates the equal protection clause. First, the defendant must make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. Second, if that showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror in question. Third, the trial court must determine whether the defense has carried its burden of proving purposeful discrimination. See also Hernandez v. New York, ___ U.S. ___, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (Plurality).
Batson, among other things, requires that the prosecutor's response contain two elements: first the explanation for *317 the strike must be race neutral. Secondly, the explanation must be related to the particular case to be tried. See 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Other decisions recognize that very point. See People v. Wheeler, 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978); and People v. Hall, 35 Cal.3d 161, 197 Cal. Rptr. 71, 672 P.2d 854 (1983).
Although the prosecutor offered a reason for striking the only Hispanic member of the panel that was race neutral on its face, she failed to state why an education beyond the ninth grade was of significance in this case. We do not believe that the trial court's cursory consideration of the matter established that the prosecutor's reason was material to anything having to do with the case to be tried. Accordingly, we conclude that the state failed to rebut the defendant's prima facie showing that the strike was exercised on the basis of race, and, thus, the trial court erred in permitting the peremptory challenge.
This case was a simple one involving few elements and no technical evidence. There is no reason to believe that the Hispanic woman who was struck from the jury was not intelligent or that she would have any problem following the proceedings. Rather, the record suggests the opposite. The woman had no difficulty following the court's direction in providing information requested on voir dire, and she had worked for five years in customer service for a large department store.
We do not hold that a lack of education can never be a legitimate reason for the use of a peremptory challenge. In some cases, the desirability of having well-educated people on the jury will be self-evident. See, e.g., United States v. Tucker, 773 F.2d 136 (7th Cir.1985). However, the correlation between a person's level of education on the one hand, and their intelligence and common sense on the other, is not so clearly established as to automatically justify the removal of a minority member of limited education in a case like this one. Too, the exercise of a strike for reasons of lack of education is apt to have a disparate impact on members of a racial minority and can easily serve as a pretext for purposeful discrimination. See Serr and Maney, "Racism, Peremptory Challenges, and The Democratic Jury: The Jurisprudence of a Delicate Balance," 79 J.Crim.L. & Criminology 1, 55 (1988). For these reasons, we recommend the practice suggested by the Texas Court of Appeals in Chivers v. State, 796 S.W.2d 539 (Tex. App. 1990): that is, where something about a prospective juror suggests that he or she might not have the ability to follow the proceedings, the court or counsel should address individualized questions to the prospective juror to shed more light on that person's suitability.
We have tried to survey every case which discusses, or even alludes to, a lack of education as a reason for the exercise of a peremptory challenge. Only two of them hold that a lack of education alone will support a peremptory challenge of a member of the venire who is a member of a racial minority. In one of these, United States v. Harrell, 847 F.2d 138 (4th Cir.1988), the court ruled to that effect without discussion. Of the other, Winfield v. Commonwealth, 404 S.E.2d 398 (Va. App. 1991) (Judge Coleman dissenting), it is enough to say that we find the dissent more persuasive than the majority opinion.
In four of the other cases we have found, a lack of education was only one of several legitimate reasons for the peremptory challenge. See United States v. Ross, 872 F.2d 249 (8th Cir.1989); United States v. Cartlidge, 808 F.2d 1064 (5th Cir.1987); Lockett v. State, 517 So.2d 1346 (Miss. 1987); and People v. Cartagena, 128 A.D.2d 797, 513 N.Y.S.2d 497 (1987). In two others, the proposition that a peremptory challenge because of a lack of education was permissible, was mere dicta. See Garrett v. Morris, 815 F.2d 509 (8th Cir.1987); and State v. Tomlin, 299 S.C. 294, 384 S.E.2d 707 (1989).
JURY INSTRUCTION
Although the police officer testified that he saw a syringe in the toilet bowl, apparently no attempt was made to retrieve and preserve it. The defendant argues that the *318 trial court erred by refusing the defendant's request for the following instruction:
If you find that the state has destroyed, caused to be destroyed, or allowed to be destroyed any evidence whose contents or quality are in issue, you may infer that the true fact is against the state's interest.
See State v. Willits, 96 Ariz. 184, 187, 393 P.2d 274, 276 (1964).
A defendant is entitled to a Willits instruction if (1) the state failed to preserve accessible material evidence that might have had a tendency to exonerate the defendant, and (2) there was resulting prejudice. State v. Hansen, 156 Ariz. 291, 295, 751 P.2d 951, 955 (1988). Absent an abuse of discretion, we will not reverse a trial court's decision on whether to give a Willits instruction. Id.
The production of the syringe would have tended to prove the defendant guilty, rather than to exonerate her. The state's failure to produce the syringe coupled with the testimony of the two police officers, one of whom saw the syringe and the other who did not, probably weighed in the defendant's favor. Nothing precluded the defendant from arguing that if the syringe had really existed the police would have retrieved it, preserved it, and that the prosecutor would have moved its admission. The circumstances, however, simply do not warrant a Willits instruction.
Accordingly, we reverse and remand this case for a new trial.
TAYLOR, P.J., and VOSS, J., concur.


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  November 25, 2014                                                                                Robert P. Young, Jr.,
                                                                                Chief Justice

  148274 & (37)                                                                                Michael F. Cavanagh
                                                                                Stephen J. Markman
                                                                                Mary Beth Kelly
                                                                                Brian K. Zahra
                                                                                Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                                        David F. Viviano,
            Plaintiff-Appellee,                                                                                Justices

  v                                                                 SC: 148274
                                                                    COA: 313548
                                                                    Chippewa CC: 10-000378-FC
  DARRIN SCOTT LAPINE,
             Defendant-Appellant.
  _________________________________________/

         By order of October 1, 2014, the prosecuting attorney was directed to answer the
  application for leave to appeal the October 23, 2013 order of the Court of Appeals. On
  order of the Court, the answer having been received, the application for leave to appeal is
  again considered, and it is DENIED, because we are not persuaded that the questions
  presented should be reviewed by this Court.

                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           November 25, 2014
         p1117
                                                                               Clerk


13 Cal.App.2d 709 (1936)
In the Matter of the Estate of MATTIE S. PETERSON, Deceased. EMMA C. BOOS et al., Respondents,
v.
H. A. HARDINGE et al., Appellants.
Civ. No. 9964.
California Court of Appeals. First Appellate District, Division Two.
May 9, 1936.
 Owen D. Richardson, E. M. Rea and Louis R. Deadrich for Appellants.
 M. Mitchell Bourquin, Clinton L. Markley, Edward P. Murphy and Harvey C. Miller for Respondents.
 Spence, J.
 The last will of Mattie S. Peterson was admitted to probate on December 20, 1932, and appellant H. A. Hardinge was appointed executor. Under the terms of said will, appellant May Spencer, a friend of the deceased, was named as residuary legatee. On June 3, 1933, a contest and petition for revocation of probate of the will was filed by respondents. Four of the respondents were sisters of John August Peterson, the deceased husband of Mrs. Peterson. The remaining six of the respondents were the children of Oscar Peterson, a deceased brother of said John August Peterson. There were three alleged grounds of contest: (1) Unsoundness of mind; (2) undue influence on the part of Mr. and Mrs. Spencer; and (3) fraud on the part of Mr. and Mrs. Spencer. Upon a trial by jury all of said issues were determined in favor of respondents. This appeal is taken from the judgment revoking the probate of said will.
 The main contention of appellants is that the evidence was insufficient to sustain the verdict of the jury upon any of the issues submitted to them. We are of the opinion that this contention must be sustained and we shall therefore briefly set forth the salient facts which appear in the record. *711
 Mattie S. Peterson, deceased, and her husband, John August Peterson, deceased, had lived near Mr. and Mrs. Spencer in Mountain View for about twenty years prior to the death of said John August Peterson on October 17, 1929. After the death of the husband, Mrs. Peterson was taken to the home of one of the respondents in Redwood City where she remained for about three weeks. During that time, and on October 28, 1929, being eleven days after the death of her husband, Mrs. Peterson made what we may term the first will. In that will she left all of her property to the four sisters of her deceased husband. Shortly thereafter and on November 11, 1929, she returned to Mountain View and visited with Mr. and Mrs. Spencer. During her visit, she expressed a desire to have a home of her own stating that she preferred to live alone and to be free to do as she pleased rather than to live with friends or with relatives of her deceased husband. She suggested to Mr. Spencer that she would advance the sum of $1500 for the construction of a three-room cottage on the land of Mr. Spencer with the understanding that she could occupy the same during her lifetime without the payment of rent. This was agreed to by the parties and a written agreement was executed by them in the office of Mr. Hardinge, an attorney at law. The cottage was constructed and thereafter Mrs. Peterson occupied the same for over two years and until the time of her death on August 13, 1932. The evidence shows without contradiction and respondents concede that during all of the time that Mrs. Peterson visited with the Spencers and subsequently occupied the cottage, she was given the best of care and attention by them and particularly during her last illness when she was greatly in need of such care. The evidence further shows without contradiction that Mrs. Crounse was the only one of the ten respondents who ever visited or communicated with Mattie S. Peterson after she went to visit the Spencers and that Mrs. Crounse's visits were confined to the first few weeks after Mrs. Peterson returned to Mountain View. At the time of her death Mrs. Peterson had not seen or heard from any of respondents for a period of over two and a half years.
 Respondents claim that shortly after Mrs. Peterson went to live with the Spencers in Mountain View, her attitude toward them began to change. The record may sustain this *712 claim but the record also discloses ample reasons for the change in attitude. Upon the visits of Mr. and Mrs. Crounse during those first few weeks, they emphatically expressed to Mrs. Peterson and to the Spencers their disapproval of the building of the cottage as planned. Mr. Crounse testified that it had been suggested that Mrs. Peterson should go to some Old People's Home, "but that did not appeal to her". In respondents' brief, they state that when Mr. Crounse expressed his disapproval of the plan to build the cottage, "things began to change". They state that Mrs. Peterson then complained that some of her husband's relatives wanted to put her in an asylum and they further state that the Spencers made them feel that they were not wanted. Shortly thereafter Mr. and Mrs. Crounse called again, but no one came to the door although they claimed that they saw "the curtain moving stealthily". They did not subsequently see or communicate with Mrs. Peterson and, as above stated, none of the other respondents ever saw or communicated with Mrs. Peterson at any time after she returned to Mountain View.
 A second will was made by Mrs. Peterson on November 26, 1929, shortly after going back to Mountain View. In this will she made a few bequests including one of $500 to Mrs. Spencer and again named the four sisters of her deceased husband as residuary legatees. The third will, being the will in question here, was executed on March 1, 1930. This will contained a few bequests and Mrs. Spencer was made the sole residuary legatee. While this will was made in the home of Mr. and Mrs. Spencer before the completion of the cottage, neither Mr. nor Mrs. Spencer was present at the time. It was drawn by Mr. Hardinge at the request of Mrs. Peterson and was witnessed by Mr. Hardinge and Mr. Ackerman.
 [1] The testimony offered by respondents in an effort to establish the general mental incompetency of Mrs. Peterson at the time of the making of the will in question was wholly insufficient. We have reviewed the record and do not find that any witness gave an opinion that Mrs. Peterson was of unsound mind or incompetent at any time. Appellants' witnesses testified that in their opinions Mrs. Peterson was of sound mind and some of respondents' witnesses testified to the same effect. In the briefs respondents call attention to the fact that Mrs. Peterson was an elderly woman and had *713 suffered a stroke a year or two before her husband's death. The evidence as to age was in conflict, respondents claiming that Mrs. Peterson was approximately seventy-eight years old when she made the will in question while there was other evidence to show that she was under seventy. They also offered evidence to show that Mrs. Peterson was somewhat feeble and was not very keen mentally. When respondents' witnesses were asked their opinions regarding her soundness of mind, they made no direct answers. One answered, "I never considered her much more than a child. ... I don't know just how to describe one whose mental faculties are not keen." Another replied, "Well, I don't know as you would call it exactly in her right mind at all times; she seemed to be--I don't know." The reasons, if they may be called such, which were given for these answers were wholly insufficient to show unsoundness of mind and there was an entire absence of any substantial evidence of general mental incompetency. (Estate of Finkler, 3 Cal.2d 584 [46 PaCal.2d 149]; Estate of McDonough, 200 Cal. 57 [251 P. 916].) We believe respondents concede that the evidence was insufficient for this purpose as they rely mainly upon a claimed insane delusion to which reference will be hereinafter made.
 [2] Respondents discuss the subjects of "Misrepresentation, Fraud and Undue Influence" under one heading. Aside from the evidence upon which the claim of fraud is based, the remaining evidence was wholly insufficient to sustain the finding of undue influence. It was admittedly circumstantial in nature and, if stretched to its limits, it could at most only raise a suspicion of undue influence. Such circumstantial evidence "has the force of proof only when circumstances are proven which are inconsistent with the claim that the will was the spontaneous act of the alleged testator". (Estate of Leahy, 5 Cal.2d 301 [54 PaCal.2d 704].) No such circumstances were shown here and under the rules set forth in the authority last cited, we conclude that this evidence cannot be relied upon to sustain the verdict.
 [3] We come now to a discussion of the evidence relied upon to sustain the finding of fraud, which evidence is also discussed by respondents in connection with the other issues. Respondents claimed that Mrs. Spencer had told Mrs. Peterson *714 that one or more of her husband's relatives wanted to put her in an insane asylum. The only evidence to prove this was the testimony of alleged declarations of Mrs. Peterson, which declarations were admitted over the objection of appellants. It may be further stated that Mrs. Spencer denied making any such statements to Mrs. Peterson. We believe this evidence was insufficient to sustain the finding of fraud for two reasons. First, such declarations of the deceased, even though admitted in evidence, could not be relied upon to prove that the alleged statements had been made to the deceased by Mrs. Spencer. (Estate of Calkins, 112 Cal. 296 [44 P. 577]; Estate of Gregory, 133 Cal. 131 [65 P. 315]; Estate of Donovan, 140 Cal. 390 [73 P. 1081]; Estate of Arnold, 147 Cal. 583 [82 P. 252]; Estate of Snowball, 157 Cal. 301 [107 P. 598]; Estate of Gleason, 164 Cal. 756 [130 P. 872]; Estate of Casassa, 98 Cal.App. 97 [276 P. 366].) Second, there was no proof of the falsity of the alleged statements. In this connection Mr. Crounse testified that he told Mrs. Peterson that her idea that one of the sisters wanted to put her in an asylum was foolish; but there was no denial by any of the respondents that such was their desire. For aught that appears in the record, all of respondents may have wanted to put Mrs. Peterson in an asylum and they may have so expressed themselves on many occasions. Counsel for respondents take the position that appellants failed to establish the truth of the statement which was attributed to Mrs. Spencer. They overlook the fact that Mrs. Spencer denied making this statement, and even if the making of the statement had been proved, the burden was upon respondents to prove its falsity in support of their charge of fraud. We therefore conclude that the evidence was insufficient to sustain the finding of fraud. We further conclude that said evidence offered in support of the charge of fraud is not helpful to respondents in their attempt to sustain the finding of undue influence.
 [4] Returning to the issue of unsoundness of mind, it is respondents' contention that if Mrs. Spencer did not tell Mrs. Peterson that her husband's relatives wanted to put her in an asylum, then the statements of Mrs. Peterson regarding the attitude of her husband's relatives showed that she was suffering from an insane delusion. We are unable *715 to follow the reasoning of respondents. Assuming that Mrs. Peterson had such a belief regarding the attitude of her husband's relatives, the burden was upon respondents as contestants to show that such belief was not only a mistaken belief but also that it was an insane delusion. (Estate of Shay, 196 Cal. 355 [237 P. 1079].) Respondents failed to show that such belief was either a mistaken belief or an insane delusion and there is no evidence whatever to support the finding of unsoundness of mind upon this theory.
 In view of the conclusions which we have reached, it is unnecessary to discuss the other points raised by appellants.
 The judgment is reversed.
 Nourse, P. J., and Sturtevant, J., concurred.


114 Ill. App.2d 124 (1969)
252 N.E.2d 366
Robert Stephenson, Plaintiff-Appellee,
v.
Air Products and Chemicals, Inc., Defendant-Appellant.
Gen. No. 68-94.
Illinois Appellate Court  Fifth District.
October 10, 1969.
*125 *126 *127 *128 Chapman, Strawn & Kinder, of Granite City, for appellant.
Carr, Raffaelle & Cook, of East St. Louis (Rex Carr, of counsel), for appellee.
GOLDENHERSH, P.J.
Defendant appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $300,000.
In the first trial of this case, the jury returned a verdict in favor of plaintiff, the circuit court ordered a new trial on the issue of damages only, and this court denied plaintiff's petition for leave to appeal.
The injuries of which plaintiff complained in the first trial were suffered on July 7, 1961. Prior to the second trial, plaintiff amended his complaint to allege that as a result of his permanent injuries he "has been caused to suffer additional injuries...." Defendant filed a motion stating that upon taking plaintiff's deposition it learned of a fall allegedly suffered on June 24, 1966, and plaintiff was contending the fall occurred because of the condition of his leg as the result of the injuries sustained in July 1961. In compliance with an order entered by the circuit court, and to meet issues raised in defendant's *129 motion to strike or make more definite and certain, plaintiff amended his complaint to allege that as a direct and proximate result of the injuries previously suffered "and inherently related to these same injuries, plaintiff was caused to fall on the 24th day of June, 1966, at Irving School in St. Louis, Missouri, while he was in the exercise of ordinary care for his safety and without the intervention of any intervening cause or condition, plaintiff did sustain severe and additional injuries to his head, body and right foot, including a fracture thereof, which said injuries are permanent and permanently disabling."
Plaintiff testified that he is 41 years of age, has a tenth grade education; prior to July 7, 1961, his health was good; he has been employed as a painter for 15 years; in July of 1961, a flagpole fell while he was painting it and he fell 20 to 25 feet to the rooftop on which it was mounted; he was treated by various physicians; he returned to work in 1963; he could not do the required lifting and his fellow workers helped him; his leg "folded up" on him on many occasions; he described falls while working in 1963 and 1964, and on other occasions when he was not working. In June 1966, while painting in a school his left leg "folded up" and he fell off a pick and broke his foot. A pick is a walk board that is placed on two ladders.
Louis Mifflin testified that he is a painter, had known plaintiff 10 or 15 years, was working with plaintiff on July 7, 1961, when a flagpole at defendant's premises gave way while plaintiff was working near its top; he worked with plaintiff on various jobs; prior to July 7, 1961, plaintiff had performed his work well, but on jobs between 1963 and 1966, plaintiff "performed his work very poorly" and needed help in carrying paints and ladders; plaintiff sustained several falls; he was working with him on June 24, 1966, when plaintiff started to *130 make a step, "his leg collapsed" and he fell 8 feet off a pick.
Donald Cook, a painter, testified that he had worked with plaintiff at various jobs since April 1963, plaintiff fell on a job in "the middle of 1965" and said "his leg gave way on him"; he described falls suffered by plaintiff later in 1965 and May 1966.
Raymond Reed, a painter, had worked with plaintiff on various jobs since April 1963; on a job in September, 1964, plaintiff's leg gave way and he fell, he was laid off the job several times and Reed, as shop steward, intervened to get him back on; plaintiff needed help to lift things on the job; he fell on another occasion.
Dr. Bart Cole, an orthopedic surgeon, testified that he was called by Dr. Bowers to see plaintiff, who was then confined to St. Elizabeth's Hospital in Granite City. Plaintiff stated he had suffered a fall, prior to which he was in good health. He complained of pain in his neck, back and shoulders. The doctor identified X rays which he stated revealed loss of normal cervical lordosis and scoliosis. He made a diagnosis of cervical radiculitis and a lumbosacral joint derangement. Plaintiff was seen by Dr. Cole three times in 1961, seven times in 1962, in April 1963 and June 1964. He continued to have trouble with his neck, shoulder and back. There was a limitation of motion in lateral bending and a loss of left ankle reflex.
Dr. Cole saw plaintiff in 1966 at St. Mary's Hospital in East St. Louis. He gave a history of an injury several days earlier when his leg "gave way" and he fell. X rays revealed a compression type fracture of the right heel bone. X rays taken in January 1967 showed the loss of cervical lordosis and scoliosis as observed earlier, but with some improvement.
Examination in January 1967 showed a loss of motion in the right foot and an X ray in June 1967 showed subtaler arthritis.
*131 Dr. Cole expressed the opinion that the condition found in plaintiff's neck and lower back might or could result from the fall on July 7, 1961, and was permanent. In answer to a hypothetical question he expressed the opinion that there might or could be a causal connection between the injuries suffered on July 7, 1961, and the fall on June 24, 1966. He stated that in his opinion the condition found in plaintiff's foot was permanent, and plaintiff was unable to carry heavy objects, climb, or walk on uneven surfaces.
Dr. John McMahan, a psychiatrist testified that he first saw plaintiff on September 17, 1962. He enumerated plaintiff's complaints, reviewed the history given him and stated he had made a diagnosis of psychophysiological musculoskeletal disorder. He prescribed tranquilizers, and because plaintiff's condition did not improve, he was hospitalized on October 19, 1962. He was given electric shock treatments, and discharged on November 2. In his opinion the disorder described was "connected with" the fall on July 7, 1961. He last saw plaintiff on April 30, 1963, at which time he stated he had gone back to work and "was getting along fairly well."
Dr. John W. Deyton, a specialist in physical medicine and rehabilitation, saw plaintiff for the first time on January 18, 1967. Plaintiff related a history of a fall while painting a flagpole in 1961, was hospitalized, and as the result of his injuries did not work again until April or May of 1963. He told him of a fall on June 24, 1966; he complained of headaches, pains in the shoulders and neck, pain in his arms, loss of grip, pain in the leg, nervousness, and inability to sleep. He wore orthopedic shoes and there was minimal weight bearing on the right foot.
Dr. Deyton testified that upon examination he found restriction in the range of motion of the neck, restriction of motion in the shoulders, limitation of motion of the back, evidence of a fracture of the right heel and ankle, *132 tenderness of the back on palpation, and atrophy of the right leg. He expressed the opinion that plaintiff could not perform work which required bending or lifting, looking up, shoulder flexion or back extension. He found arthritis in the ankle and evidence of pain which would persist until fusion, either surgical or natural, was effected of the heel bone and "second" bone. He believed plaintiff's condition to be permanent.
Dr. W.W. Bowers, called by defendant, testified that he saw plaintiff in his office on July 7, 1961. He was sent home, called later complaining of pain and was sent to the hospital. He developed a paralysis of the bowel which cleared up but he continued to complain of pain in the left shoulder, numbness of the left hand, pain in the chest and left side of the abdomen. All of the symptoms could result from a severe blow to the area affected.
Dr. Lee T. Ford, an orthopedic surgeon, called by defendant, did not examine plaintiff but testified from X rays.
Dr. Norman Shippey, a radiologist, called by defendant, identified and testified with respect to a number of X rays.
Defendant contends that the trial court erred in admitting evidence of plaintiff's fall on June 24, 1966, and testimony with respect to the injuries suffered at that time. It argues that the injury of June 24, 1966, is not the natural or probable result of defendant's negligence and it cannot be held liable therefor.
Plaintiff contends that whether the second injury proximately resulted from the injury suffered on July 7, 1961, is a question of fact for the jury.
[1-3] The abstract proposition of law presented is stated in Restatement of Torts (2nd):
"§ 460. Subsequent Accidents Due to Impaired Physical Condition Caused by Negligence.

*133 "If the negligent actor is liable for an injury which impairs the physical condition of another's body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other's condition not been impaired, and which is a normal consequence of such impairment."
That the application of the rule to factual situations is sometimes difficult is apparent from an examination of the cases gathered and discussed at 9 ALR 255, 20 ALR 524, and 76 ALR 1285. The majority rule appears to be that whether the harm sustained in a subsequent occurrence resulted from the impairment or injury suffered in the first occurrence is a question of fact for the jury. Eli Witt Cigar & Tobacco Co. v. Matatics (Supreme Court of Florida), 55 So.2d 549; Underwood v. Smith, 261 Ala 181, 73 So.2d 717; Stephenson v. F.W. Woolworth Co., 277 Minn 190, 152 NW2d 138. The fact that the site of the original injury was not the same as the site of the later injury is not determinative that the cause of the original injury did not proximately produce the later injury. Brenan v. Moore-McCormack Lines, 3 App Div2d 1006, 163 NYS2d 889 (Supreme Court, NY Appellate Division, First Department); Creech v. Riss & Company, Inc. (Supreme Court of Missouri), 285 S.W.2d 554.
The rule as stated is consistent with the holding of Chicago City Ry. Co. v. Saxby, 213 Ill. 274, 72 NE 755, that the question whether plaintiff's injuries were the result of defendant's negligence, or resulted from some other cause, is one of fact.
[4] To sustain defendant's contention would require us to hold as a matter of law that there is no causal connection between plaintiff's second fall and the injuries which resulted therefrom. The record contains evidence that the causal relationship exists, and its sufficiency should be determined by the same standards which apply to direction of verdicts and entry of judgments n.o.v., *134 Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 NE2d 504. Applying the test of Pedrick to the record before us, we hold that the issue was properly one for the jury.
[5] Defendant argues that the evidence shows plaintiff was guilty of contributory negligence as a matter of law in working on a pick, knowing that his leg might "fold up," causing him to fall. The record shows that defendant tendered, and the court gave, instructions which defined contributory negligence and told the jury that with respect to the occurrence of June 24, 1966 plaintiff had the burden of proving that before and at the time of the occurrence he was using ordinary care for his own safety and the additional injuries suffered as the result thereof are the direct and proximate result of the injuries suffered by plaintiff on July 7, 1961, and if they found either proposition has not been proved the verdict should not include any damages for those injuries. Applying the rule of Pedrick to the record before us, the question of whether plaintiff's negligence contributed to cause his fall of June 24, 1966, was properly one for the jury.
[6] Defendant concedes there is authority for the award of damages for subsequent injuries but argues that recovery has been limited to those instances in which the second injury was suffered within the period of convalescence from the original injury. Some of the cases cited appear to support its contentions, but in our opinion, there is no sound basis for so holding. The test is whether there is a sufficient causal relationship and we are not persuaded that recovery should be limited to occurrences within the period of convalescence.
Defendant states "the basic question can be simply put  where does the responsibility on this or any other defendant end?" It ends where it has always ended  when the injured person has been compensated for the damage resulting from its negligence.
*135 [7] Defendant contends that any cause of action from injuries resulting from the occurrence of June 24, 1966, is barred by the Statute of Limitations (c 83, § 15, Ill Rev Stats 1967). We have examined the authorities cited (Larkin v. Gerhardt, 21 Ill. App.2d 122, 157 NE2d 426; 171 ALR 1087) and do not find them in point. Plaintiff, in his amendment, did not allege a new cause of action  he enumerated alleged further consequences of defendant's negligence.
[8] Defendant argues that the trial court ignored a pretrial order entered by another judge, and in so doing made a fact issue of a question which the judge who conducted the pretrial proceeding decided as a question of law. It concedes that a pretrial order may be amended at the trial, but argues that no amendment may be made which will result in substantial prejudice to a litigant. We have examined the pretrial order and fail to see in what manner defendant was prejudiced. The record does not bear out its contention that as the result of the trial court's failure to follow the pretrial order it was required to assume the burden of proving plaintiff was contributorily negligent and the fall of June 24, 1966 was an intervening cause which would relieve it of liability for the injuries suffered therein. The case was tried, and the jury instructed, on the theory contemplated by the pretrial order, i.e., that plaintiff, with respect to the occurrence of June 24, 1966, was required to prove that he was, at that time, in the exercise of due care, the injuries suffered at that time were the proximate result of the first injury, and did not result from an independent, intervening cause.
[9, 10] Defendant contends the trial court erred in denying its motion for a continuance after it allowed plaintiff to increase his ad damnum from $200,000 to $500,000. The denial of a motion for continuance is left to the sound discretion of the trial court. The record shows that when counsel for defendant argues the reason *136 for the need for a continuance, i.e., the involvement of another liability carrier, they were misinformed as to the applicable coverage. In denying the motion, the trial court did not abuse its discretion.
Defendant moved for a directed verdict both at the close of plaintiff's case and at the close of all the evidence "as to that part ... of the amendment to complaint which relates to the injuries allegedly sustained by plaintiff on the 24th day of June, 1966...." It contends that the court erred in denying the motions.
As previously stated, applying the test of Pedrick we cannot say that the court erred in denying the motions.
[11] Defendant contends the court erred in refusing to give its tendered instructions numbered 5, 6 and 11. Instruction number 5, not in IPI, purports to instruct on contributory negligence, already covered by defendant's instruction number 2 (IPI 10.03).
[12] Defendant's instruction number 6 purports to be an issue instruction in the form of IPI 21.03, and states that defendant has pleaded, as an affirmative defense, that any injuries suffered in the occurrence of June 24, 1966, were not the result of the fall of July 7, 1961, but "were a direct and proximate result of an intervening cause." The instruction, as tendered, advises the jury that plaintiff has the burden of proving certain enumerated propositions but fails to instruct them that the defendant has the burden of proving its affirmative defense.
Defendant's instruction number 13 instructed the jury that plaintiff had the burden of proving that any additional injuries suffered in the occurrence of June 26, 1966, are a direct and proximate result of the injuries suffered on July 7, 1961, and if he failed so to prove the verdict should not include any damages for those injuries. The jury was adequately instructed with respect to the issue of proximate cause of the occurrence of June 24, 1966, and in view of that fact, and the defect *137 in the tendered instruction, the court did not err in its ruling.
What we have said with respect to defendant's instruction number 6 is equally applicable to its number 11, and the court did not err in refusing the instruction.
[13-15] Defendant tendered a special interrogatory in the following form "Was the plaintiff in the exercise of ordinary care for his own safety on June 24, 1966?" It has long been the rule that a special interrogatory should not be given unless the answer thereto could control the general verdict. Under the theory upon which this case was tried, no contention is made that defendant was guilty of a second tort or act of negligence. The issue with respect to the second injury is whether it was proximately caused by the first; therefore, a negative answer to the interrogatory could serve to reduce, not set aside, a verdict in favor of plaintiff, and the court correctly refused to submit it. Further, the interrogatory is improper in form in that it fails to limit the inquiry to "before and at the time of the occurrence." (See IPI 10.03.)
[16] During the conference on instructions, defendant tendered forms of verdict which provided for separate findings with respect to the occurrences of July 7, 1961, and June 24, 1966. The court refused to submit these verdicts to the jury. The form of verdict submitted to the jury provided only for the assessment of plaintiff's damages.
Section 65 of the Civil Practice Act (c 110, § 65, Ill Rev Stats 1967) provides "Unless the nature of the case requires otherwise, the jury shall render a general verdict." The single issue to be determined by the jury was the amount of plaintiff's damages, and there is no statutory provision for specific findings with respect to the elements of damage upon which the verdict is based. The court correctly refused to submit the tendered forms of verdict.
*138 Defendant contends the verdict was grossly excessive and resulted from passion and prejudice on the part of the jury.
The testimony shows plaintiff continued to suffer pain, walks with a limp and requires the use of a cane. There is substantial evidence from which the jury could have decided that plaintiff was industrially unemployable and unable to pursue his trade of painter. He testified to a substantial loss of earnings up to the time of trial. At 41 years of age, he had lengthy life and work expectancies.
[17, 18] The courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury, and if the jury is properly instructed on the measure of damages, an appellate court should not substitute its judgment as to the sum to be awarded in a given case, for that of the jury.
[19] Our conclusion, following careful examination of the record, is best described in the following statement found in the opinion in Lau v. West Towns Bus Co., 16 Ill.2d 442, 158 NE2d 63, at page 453:
"We are not unmindful of our obligation to carefully scrutinize the record to determine whether the amount of the verdict is so large as to indicate passion and prejudice. This we have done, and we conclude from the evidence that although the verdict may well be in excess of the amount which the judges of this court would have allowed if they had heard the evidence and made the original determination, yet we do not believe that it is so excessive as to show passion or prejudice.
"We therefore conclude that the verdict and judgment below are correct and the judgment is affirmed."
Judgment affirmed.
MORAN and EBERSPACHER, JJ., concur.


                     COURT OF APPEALS OF VIRGINIA

Present:    Judges Bray, Annunziata and Overton

MICHAEL R. McELROY
                                               MEMORANDUM OPINION *
v.   Record No. 0481-96-4                          PER CURIAM
                                                 OCTOBER 1, 1996
SANDRA W. COOKE, F/K/A
 SANDRA McELROY

              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Marcus D. Williams, Judge
            (Harvey H. Perritt, Jr., on brief), for
            appellant.

            No brief for appellee.

     Michael R. McElroy appeals the decision of the circuit court

awarding an increase in child support payable to Sandra W. Cooke.

 McElroy raises the following issues on appeal:     (1) whether the

trial court erred when it failed to impute income to Cooke

following a voluntary reduction in her work hours; (2) whether

the trial court erred when it failed to impute income to Cooke

for rental income; (3) whether the trial court erred when it

failed to consider the tax consequences to Cooke of a negative

cash flow attributable to the rental property; and (4) whether

the trial court erred in finding Cooke no longer owned the rental

property.   Upon reviewing the record and McElroy's opening brief,

we conclude that this appeal is without merit.      Accordingly, we

summarily affirm the decision of the trial court.     Rule 5A:27.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
      Cooke sought an increase in child support following a

reduction in insurance coverage for the costs of psychological

counseling for the parties' two children.      The trial court found

that a material change in circumstances had occurred which

warranted an increase in support.

                      Voluntary Reduction of Hours

      McElroy contends that the trial court erred by failing to

impute income to Cooke following her reduction in work hours.

Under Code § 20-108.1(B), there is a rebuttable presumption that

the amount of child support computed under Code § 20-108.2

guidelines is correct.       However, after computing the presumptive

amount, a court may determine that "application of such

guidelines would be unjust or inappropriate in a particular

case."   Code § 20-108.1(B). Such a deviation
           shall be determined by relevant evidence
           pertaining to the following factors affecting
           the obligation, the ability of each party to
           provide child support, and the best interests
           of the child:

                  *      *      *    *    *    *     *

           3. Imputed income to a party who is
           voluntarily unemployed or voluntarily
           under-employed . . . .

Id.   "In setting an award of child support, the 'primary issue

before a trial judge is the welfare and best interest of the

child, not the convenience or personal preference of a parent.'"

 Brody v. Brody, 16 Va. App. 647, 651, 432 S.E.2d 20, 22 (1993)

(citation omitted).     "The guidelines include voluntary

                                     2
underemployment as only one of several factors to be considered

in adjusting the presumptive child support amount."      Barnhill v.

Brooks, 15 Va. App. 696, 701, 427 S.E.2d 209, 212 (1993).

     Cooke reduced her work hours "basically based on my children

and on the advise of [their therapist]."      Both sons have serious

emotional and learning disabilities which require therapy at

least every week.    The therapist testified that "99% of the

effort involved with the children [was] carried out by Mrs.

Cooke."    Cooke testified that she also cared for her elderly

parents who had suffered strokes, but McElroy failed to point to

any evidence that this care was the reason Cooke reduced her work

hours.
         The trial court found a change in circumstances due to the

limited number of therapy sessions covered by Cooke's insurance.

The testimony relating to Cooke's reduction in hours indicated

that it was based upon her children's needs.     Those needs were

established by credible evidence, including the testimony of the

children's therapist.    Based upon the record before us, we cannot

say that the trial court abused its discretion by refusing to

impute income to Cooke based upon her reduced work hours.
                            Rental Property

     McElroy argues that the trial court erred when it refused to

impute income to Cooke arising from rental property formerly

owned by her and her new husband.      We disagree.

         Cooke testified that she and her new husband no longer

                                   3
owned the rental property and that its rental income had never

exceeded its expenses.    While McElroy contends that Cooke did not

prove they no longer owned the property, Cooke's testimony

concerning the negative income was uncontested.

     The trial court found that "the sale itself appears to be

one that is not adequately explained by [Cooke or McElroy], but I

don't doubt the credibility that she's not receiving income from

that property."   The trial court heard the testimony of the

parties and determined their credibility.   "The weight which

should be given to evidence and whether the testimony of a

witness is credible are questions which the fact finder must

decide."    Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351

S.E.2d 598, 601 (1986).   We will not reverse the trial court's

credibility determination.   Therefore, as the trial court found

credible Cooke's testimony that there was no rental income, it

did not abuse its discretion in refusing to impute additional

income to Cooke on this basis.

     Moreover, as the court found there was insufficient evidence

concerning Cooke's ownership of the property, the court did not

err in refusing to determine ownership or any related tax

consequences.

     Accordingly, the decision of the circuit court is summarily

affirmed.

                                                         Affirmed.

                                  4


                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2008-KA-01637-SCT

TONNIE L. THOMAS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                          08/28/2008
TRIAL JUDGE:                               HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED:                 WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    GEORGE T. KELLY, JR.
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                         W. DEWAYNE RICHARDSON
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 08/26/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    Tonnie Thomas was convicted of murder1 and first-degree arson 2 and sentenced to life

without parole as a habitual offender under Mississippi Code Section 99-19-83. He argues

the trial court erred in admitting two statements in violation of his Fifth-Amendment right

against self-incrimination and his Sixth-Amendment right to counsel, and in denying a

       1
           Miss. Code Ann. § 97-3-19 (1) (Rev. 2006).
       2
           Miss. Code Ann. § 97-17-1 (Rev. 2006).
directed verdict on each charge. Finding no merit in the errors raised, we affirm the

convictions for murder and arson.

                                           FACTS

Testimony and Evidence Admitted at Trial

¶2.    On March 1, 2007, the police and fire department responded to a house fire at 619

Silver Street in Greenville, Mississippi. Once the fire was extinguished, the responders

discovered a body, later identified as that of Louis Harris, located in the kitchen. Expert

testimony established that the fire was the result of six separate fires intentionally set in

various locations of the house.

¶3.    Harris’s body was located under a pile of debris, and various surfaces of the body

were charred. Dr. Steven Hayne, a pathologist, testified that the burns had occurred after

death. The body also had puncture wounds at multiple sites, including the face and neck.

Dr. Hayne stated that Harris’s death was caused by a puncture wound to the neck, which led

to massive external blood loss.

¶4.    Ursula Fowler, Harris’s neighbor, testified that she had seen Harris that morning,

standing alone on the steps of his house. Later that evening, she heard a commotion, like

fighting, that lasted about fifteen minutes. Approximately ten to twenty minutes later, a man

knocked on her door to alert her that Harris’s house was on fire. Fowler testified that she had

witnessed violent arguments between Harris and his girlfriend, Laquanda Gilmore, but that

she had not seen Gilmore at Harris’s house that day or during the week prior.

                                              2
¶5.    Investigator Dondi Gibbs responded to the scene and took photographs showing blood

splatters throughout the house. He also collected from the scene blood samples that he sent

to the Mississippi Crime Laboratory for DNA testing. Gibbs testified that it appeared a

struggle had occurred, since the home was in disarray, with furniture thrown about. Gibbs

also testified that he had returned to the home on March 9 to collect more evidence, including

two shirts stained with blood and a VCR box.

First Statement

¶6.    The police department developed Thomas as a suspect, and on Friday, March 2, 2007,

Thomas turned himself in to the police. Gibbs took an unrecorded statement3 from Thomas

that Friday because Thomas needed medical attention for some “severe injuries” and had a

“loud odor” of alcohol on his person. Gibbs stated that Thomas told him, “Yeah, I killed that

punk bitch. I was feeding him money, marijuana, and my crack, and he wouldn’t give my

money. He bought a [VCR] and he couldn’t give me my money.” Thomas was then taken

to the hospital, where he received medical attention. Thomas suffered from a bite mark on

his face, with a stab wound below it, a scratch mark under his right eye, a stab wound on his

upper right lip, a cut on his inside right palm, and a stab wound in his left leg.

       3
        Facts relevant to this statement will be discussed in more detail under Thomas’s first
assignment of error. Gibbs provided more detailed testimony concerning the first statement
at the suppression hearing.

                                               3
Second Statement

¶7.      Gibbs testified that on Saturday, March 3, 2007, Thomas gave a second, recorded

statement.4 The recording was played for the jury, and a transcript of the recording also was

admitted into evidence. In his second statement, Thomas stated that he had been living with

Harris, and that on March 1, 2007, he had confronted Harris about a $65 debt for marijuana.

Harris had just bought a VCR and had told Thomas that he did not have the money.

According to Thomas, Harris then started “talking crazy and laughing” and swung at him

with a hammer. Thomas stated that he and Harris began to fight in the bedroom, and that

their fight continued into the living room and kitchen. While fighting with Harris, Thomas

pulled a knife out of his pocket and eventually stabbed Harris in the kitchen. Thomas stated

that he had blood on his hands and head, and that he had washed it off before he left the

house. Thomas denied setting the house on fire.

Third Statement

¶8.      On March 8, 2007, Thomas requested to speak with an investigator and gave a third

statement to Investigator Jerome Jackson. A tape and transcript of this recording were

admitted into evidence. In this statement, Thomas denied that he had killed Harris. Thomas

stated that he had witnessed another person stab and kill Harris, but that he was afraid his

family would be hurt if he disclosed the killer’s identity.

         4
             This statement will be discussed in more detail under Thomas’s first assignment of
error.

                                                 4
Fourth Statement

¶9.    On March 28, 2007, Thomas requested to speak with Investigator Timothy Elzy, and

Elzy witnessed a fourth statement. Elzy testified that he twice administered Miranda 5

warnings before Thomas gave the fourth statement. Elzy testified that Thomas refused to be

recorded but that Thomas wanted to tell him where to find the murder weapon. Thomas

informed Elzy that after he had left the house, he had pushed the knife, blade down, into the

ground. After receiving this information, Elzy tried to locate the knife with a metal detector

but could not find it.

¶10.   The jury also heard testimony from Dwana Broughton, a crime-scene analyst with the

Mississippi Bureau of Investigation. Broughton had taken various photographs of the scene

and had collected a hammer and wallet that was on top of the body. She also had collected

eighteen swabs of what had appeared to be blood from throughout the residence. She had

submitted all evidence except the wallet to the crime lab for further analysis.

¶11.   William Jones testified as an expert in the field of forensic science, specializing in

DNA analysis and bioscience and statistical analysis. Jones had analyzed the evidence from

the scene to determine if it had contained any blood from Thomas or Harris. Jones testified

that the hammer had tested negative for human blood, but that extreme temperatures and soot

from the fire could have affected the test result. Jones also testified that he had compared

samples of Thomas’s and Harris’s DNA with samples from the swabs and had found a match

       5
           Miranda v. Arizona, 384 U.S. 436, 467-68, 471, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).

                                              5
for Thomas on swabs from two locations: the east living-room wall, and a kitchen door. He

also had found a match between Harris’s blood sample and swabs from the bedroom chair,

south living-room wall, east living-room wall, bedroom door frame, bedroom door, north

bedroom wall, kitchen chair, and two kitchen doors. Jones also had tested the two shirts and

had found Harris’s blood on one and a mixture of Harris’s and Thomas’s blood on the

second.

                                       DISCUSSION

I.     Whether the trial court erred in admitting Thomas’s statements.

¶12.   Prior to trial, Thomas moved to suppress his statements taken March 2 and 3, 2007.

The trial court held a hearing on the motion to suppress, and heard testimony from all officers

who had witnessed each statement, as well as Thomas.

Suppression Hearing Testimony Relating to March 2, 2007, Statement

¶13.      At the motion-to-suppress hearing, Gibbs testified that Thomas had turned himself

in and had been arrested for two contempt-of-court warrants. After Thomas was placed in

Gibbs’s custody, Gibbs had brought Thomas to his office and had begun to ask Thomas the

identifying questions located at the top of the Miranda form, including questions concerning

name, address, phone number, highest level of education completed, last school attended,

ability to read or write, and whether the defendant understands what an attorney is.

                                              6
¶14.     As Gibbs was asking Thomas these preliminary questions, Thomas had interrupted

Gibbs and stated that he “may need” to talk to a lawyer.6 After Thomas had made this

statement, Sergeant Michael Merchant had entered the room, and Merchant, Gibbs, and

Thomas had moved to a bigger office. Gibbs stated that Lieutenant Xavier Redmond also

had entered the bigger office.

¶15.     Gibbs stated that he had known Thomas since Thomas was a juvenile and that he had

began discussing Thomas’s past run-ins with the law. Gibbs denied that he had asked

Thomas any questions about the homicide or arson investigation, but he admitted that he had

told Thomas “it would be a lot easier on everybody if he [Thomas] would just go ahead on

and cooperate.” Gibbs stated that he had smelled alcohol on Thomas, but that Thomas had

appeared to fully understand their conversation. Gibbs also testified that Thomas had “pretty

severe cuts, lacerations, a bite mark on his face, and he was . . . in a lot of pain.”

¶16.     Prior to being Mirandized, and during the course of their conversation, Thomas had

abruptly stated, “I’m going to go on and tell you, I killed that punk bitch.” Gibbs then read

Thomas his Miranda warnings, and Thomas indicated he understood and signed the waiver

form. After Thomas had waived his rights, he gave a statement of the events leading to

Harris’s death and admitted that he had stabbed Harris in the head approximately four or five

times.

         6
         On cross-examination, Gibbs admitted that, at the preliminary hearing, he had
testified that Thomas wanted to speak to an attorney. Gibbs stated that he was not asked at
the preliminary hearing to relay Thomas’s exact words.

                                               7
¶17.   Gibbs stated that he did not record this statement, because Thomas was “in an extreme

amount of pain” and wanted medical treatment. Thomas told Gibbs that he would give a

second statement after he received medical attention. However, Gibbs denied that he had

promised Thomas medical attention in exchange for any statement. After providing the first

statement, Thomas was transported to the hospital, where he received medical treatment.

¶18.   Merchant, Gibson, and Redmond also testified at the suppression hearing. Each

officer testified that Thomas had not appeared to be intoxicated. Merchant and Redmond

also testified that they did not recall anyone asking Thomas about the homicide or arson

before Thomas admitted to killing Harris. Redmond and Gibson testified that neither officer

had heard anyone promise Thomas anything in exchange for a statement.

¶19.   Thomas testified that, because he had heard the police were looking for him, he had

turned himself in to the police department. Thomas stated that Gibbs, Elzy, and Redmond

had taken him into a room where Gibbs had told Thomas that he wanted to talk about Louis

Harris. Thomas testified that at that point, he had told Gibbs he wanted to “take the Fifth”

until he could meet with an attorney. According to Thomas, Redmond stated “the truth will

set you free.” Thomas also testified that Gibbs had opened a law book and had read him the

maximum and minimum sentences for murder and had told him to cooperate. Thomas stated

that he had admitted to killing Harris because he was in pain from his wounds and the

officers had told him they would make it easy for him. However, Thomas admitted that no

one promised him anything in exchange for his confession.

                                             8
Suppression Hearing Testimony Relating to March 3, 2007, Statement

¶20.   At the motion-to-suppress hearing, Gibbs testified that he had gone to the station on

Saturday, March 3, 2007, and had instructed Elzy to get Thomas from his cell for a

statement. Gibbs testified that Thomas had been upset about conditions at the jail, and it had

taken approximately ninety minutes for Thomas to calm down. After Thomas had calmed

down, he had told Gibbs that he would give a statement. Gibbs had then read Thomas his

Miranda rights, and Thomas had signed a waiver form. Thomas had then given a statement,

which was recorded and witnessed by Gibbs and Elzy. Thomas again admitted to killing

Harris and recounted the events surrounding Harris’s death, but he denied the arson. After

Gibbs had obtained this second statement, he charged Thomas with murder and arson. Elzy

testified at the suppression hearing, and his testimony corroborated Gibbs’s testimony.

¶21.   Thomas testified that he did not request to see Gibbs on Saturday, March 3, 2007.

Thomas stated that Elzy had brought him to Gibbs’s office, and Gibbs had instructed him to

sign some papers and to talk about what had happened.

Analysis

¶22.   Thomas argues that the trial court erred in allowing into evidence his March 2 and

March 3 statements, claiming that he affirmatively had asserted his right to remain silent and

his right to counsel on March 2, 2007. Thomas argues he was intoxicated and in need of

medical attention when he provided the first statement. Thomas further argues that the police

impermissibly initiated the second interrogation, which resulted in his second statement. He

                                              9
expressly denies any error regarding the admission into evidence of his subsequent

statements to Investigators Jackson and Elzy.

¶23.   Findings by a trial court that a confession is voluntary and admissible are findings of

fact, and “[t]his Court will reverse a trial court’s denial of a motion to suppress only if the

ruling is in manifest error or contrary to the overwhelming weight of the evidence.” 7 In this

case, the trial court issued a detailed order denying Thomas’s motion to suppress. The trial

court specifically found that Thomas was not a credible witness. The trial court found that

Thomas had made an ambiguous and equivocal request for an attorney, and that Thomas

voluntarily had admitted to the murder prior to any questioning about the murder and arson.

The trial court also found that the police had read Thomas his Miranda rights and Thomas

had signed a waiver prior to any questions concerning the investigation. The trial court also

found that Thomas clearly had waived his Miranda rights before providing a second

statement on March 3, 2007.

¶24.   In Miranda v. Arizona,8 the United States Supreme Court held that, under the Fifth

Amendment, a person subjected to custodial interrogation must first be informed of his right

to remain silent and right to counsel. “If the individual indicates in any manner, at any time

prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” 9

       7
           Barnes v. State, 30 So. 3d 313, 316 (Miss. 2010).
       8
           Miranda, 384 U.S. at 467-68, 471.
       9
           Id. at 473-74.

                                               10
Likewise, “[i]f the individual states he wants an attorney, the interrogation must cease until

an attorney is present.” 10 Furthermore, a defendant’s request for counsel must be clear and

unambiguous in order for an officer to stop questioning the suspect.11 If a custodial statement

is given outside the presence of an attorney, “a heavy burden rests on the government to

demonstrate that the defendant knowingly and intelligently waived his privilege against self-

incrimination and his right to retained or appointed counsel.” 12          Additionally, “the

voluntariness of a waiver, or of a confession, is a factual inquiry that must be determined by

the trial judge from the totality of the circumstances.” 13 We have found “that a defendant

may waive his Sixth Amendment right to counsel when he waives his Miranda rights.” 14

¶25.   As noted by this Court in Culp v. State, Miranda warnings must be given prior to

custodial interrogation.15 “To be subject to ‘custodial interrogation’ one must be both in

       10
            Id. at 474.
       11
            Davis v. U.S., 512 U.S. 452, 458, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994).
       12
            Miranda, 384 U.S. at 475.
       13
            O’Halloran v. State, 731 So. 2d 565, 570 (Miss. 1999).
       14
        Mettetal v. State, 602 So. 2d 864 (Miss. 1992). We note that while Thomas argues
a Sixth-Amendment violation, his argument properly falls within the procedural safeguards
of Miranda. We recognize that Thomas was in custody on unrelated charges, but his Sixth-
Amendment right to counsel is offense-specific and had not attached in this case at the time
he made his first statement regarding Harris’s murder. See generally Balfour v. State, 598
So. 2d 731, 740 (Miss. 1992).
       15
            Culp v. State, 933 So. 2d 264, 273 (Miss. 2005).

                                               11
custody and undergoing interrogation.” 16       In Rhode Island v. Innis, the Supreme Court

defined “interrogation” to mean “not only express questioning, but also any words or actions

on the part of the police (other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating response from the

suspect.” 17 As noted by the Court in Innis, the “Miranda safeguards” are to protect against

“coercive police practices.” 18

¶26.   It is undisputed that on March 2, 2007, Thomas admitted to killing Harris before the

police had administered his Miranda warnings. Additionally, Thomas asserts that he had

invoked his right to silence and his right to counsel prior to being Mirandized. However, the

trial court made a factual finding that Thomas was not a credible witness and discounted his

version of events. No officer testified that Thomas had invoked his right to silence or right

to an attorney. Investigator Gibbs testified that Thomas had stated that he “may” need an

attorney. We find that the trial court, as the trier fact, was not in manifest error in believing

the officers rather than Thomas, and in finding that Thomas did not make an unequivocal

request for an attorney under Davis v. U.S. Therefore, we affirm the trial court’s finding that

Thomas did not assert his right to silence or counsel on March 2, 2007. Consequently, we

       16
            Id.
       17
            Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).
       18
            Id.

                                               12
find no violation of Thomas’s right to counsel or silence when the police took Thomas from

his cell on Saturday before he gave his second statement.

¶27.   Because Thomas’s first statement19 was made while in custody on unrelated charges

and prior to being given his Miranda warnings, we must examine whether the police should

have known that their words and actions likely would produce an incriminating response.20

Thomas argues that he confessed because he wanted medical attention, and Investigator

Gibbs told him it would be easier if he would cooperate. In Willie v. State, we considered

a similar statement to the one at issue here.21 In Willie, the sheriff Mirandized the defendant

and then told him that “it would be best or better for [the defendant] to tell the truth[.]” 22 On

appeal, the Court considered whether the sheriff’s statement was an exhortation to tell the

truth or an inducement.23 The Court looked at the “specific circumstances surrounding the

confession[,]” and concluded that defendant was not induced to confess. Id. In reaching its

decision, the Court noted that the defendant was an adult who was familiar with the justice

system; that any trust in the interrogation officers “emanated from past dealings . . . not a

       19
            “I’m going to go on and tell you, I killed that punk bitch.”
       20
            Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).
       21
        Willie v State, 585 So. 2d 660, 668 (Miss. 1991), overruled on other grounds by
King v. State, 784 So. 2d 884 (Miss. 2001).
       22
            Id.
       23
            Id.

                                                13
friendship or personal relationship”; and that the officers had not made any promises to the

defendant.24

¶28.      While the defendant in Willie had been Mirandized prior to confessing, we find that

our analysis of the “specific circumstances surrounding the confession[,]” in the instant case

is like that in Willie.25 Notably, the record shows that Thomas is an adult male with a

criminal record and who clearly was familiar with the justice system at the time of his arrest.

The record shows that Thomas was familiar with Investigators Gibbs and Redmond through

past dealings with the police, and not through any “friendship or personal relationship.” Id.

Thomas also testified that no officer had promised him anything in exchange for his

confession. We also find it relevant that Thomas voluntarily had turned himself in to the

police.

¶29.      However, this Court must also take into account the fact that Thomas smelled of

alcohol and suffered from various injuries. This Court has ruled that the “‘admissibility of

a confession depends upon the degree of intoxication.’” 26 Further, this Court has excluded

          24
         Id.; see also Ruffin v. State, 992 So. 2d 1165, 1172 (Miss. 2008) (“Whether an
interrogator’s statement is a mere exhortation or an inducement generally depends on the
circumstances surrounding the confession, such as the defendant’s youth, good reputation,
lack of familiarity with the criminal justice system, and relationship with or trust in the
interrogating officer(s).”).
          25
               Willie, 585 So. 2d at 668.
          26
        O’Halloran v. State, 731 So. 2d 565, 571 (Miss. 1999) (quoting Johnson v. State,
511 So. 2d 1360, 1365 (Miss. 1987)).

                                              14
a confession only when a defendant was so intoxicated that he was in a state of mania.27

While Gibbs testified that Thomas had smelled of alcohol, he also stated that Thomas had

not been intoxicated. The other officers also testified that Thomas had not appeared

intoxicated. While Thomas was injured, he had incurred these injuries the day before, when

fighting with Harris. Thomas could have sought medical attention before turning himself in.

Under the “specific circumstances surrounding the confession[,]” we do not find that the

police induced Thomas’s confession.28 Therefore, we find that the March 2, 2007, statement

was voluntary, and “[v]olunteered statements of any kind are not barred by the Fifth

Amendment[.]” 29

¶30.   Immediately after Thomas confessed 30 on March 2, 2007, Investigator Gibbs gave

Thomas his Miranda warnings, and Thomas signed a waiver before providing a detailed

statement and confession. Furthermore, Investigator Gibbs again gave Thomas his Miranda

warnings and Thomas signed a second waiver prior to his March 3, 2007, statement. We find

the trial court did not commit manifest error in finding Thomas voluntarily had waived his

Miranda rights, nor was the trial court’s finding against the weight of the evidence. We

       27
            Id. (citing State v. Williams, 208 So. 2d 172 (Miss. 1968)).
       28
            Willie, 585 So. 2d at 668.
       29
            Miranda, 384 U.S. at 478, 471.
       30
            We again are referring to Thomas’s statement: “I’m going to go on and tell you, I
killed that punk bitch.”

                                               15
uphold the trial court’s ruling that both statements were admissible and that there was no

violation of the Fifth Amendment.

II.    Whether the trial court erred in denying Thomas’s motion for a directed
       verdict on the murder charge.

¶31.   A motion for directed verdict challenges the sufficiency of the evidence, and “the

critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused

committed the act charged, and that he did so under such circumstances that every element

of the offense existed[.]’” 31 In judging the sufficiency of the evidence, “the trial judge is

required to accept as true all evidence that is favorable to the State, including reasonable

inferences that may be drawn therefrom, and to disregard evidence favorable to the

defendant.” 32

¶32.   Thomas argues that the trial court should have granted his motion for directed verdict

under Weathersby v. State.33 In support of his argument, Thomas asserts that he was the only

witness to the crime, and that he “consistently” had stated that he killed Harris in self-

defense. The State, however, argues that the Weathersby Rule does not apply and points to

Thomas’s conflicting statements.

¶33.   In Weathersby v. State, this Court ruled that:

       31
        Jones v. State, 904 So. 2d 149, 153 (Miss. 2005) (quoting Carr v. State, 208 So. 2d
886, 889 (Miss. 1968)).
       32
            Clemons v. State, 460 So. 2d 835, 839 (Miss. 1984).
       33
            Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).

                                              16
       [W]here the defendant or the defendant’s witnesses are the only eyewitnesses
       to the homicide, their version, if reasonable, must be accepted as true, unless
       substantially contradicted in material particulars by a credible witness or
       witnesses for the state, or by the physical facts or by the facts of common
       knowledge.34

“A defendant who [meets] the Weathersby Rule [is] entitled to a directed verdict of

acquittal.” 35 However, the Weathersby Rule is inapplicable where the defendant provides

“conflicting versions of how the killing took place, or initially denies the act.” 36

¶34.   In this case, Thomas provided conflicting statements of how the killing took place.

Thomas initially confessed that he had stabbed Harris during a fight. Thomas later provided

a statement in which he denied killing Harris but stated that he had witnessed another person

murder Harris. Therefore, the Weathersby Rule is inapplicable to this case.

       34
            Id. at 482.
       35
            Blanks v. State, 547 So. 2d 29, 33 (Miss. 1989).
       36
            Id.

                                               17
¶35.   Additionally, the State presented evidence of each element of the murder 37 charge.

The jury had before it two confessions in which Thomas admitted that he had confronted

Harris about a $65 debt and then had killed Harris by stabbing him in the head. Dr. Hayne

testified that Harris had multiple puncture wounds in the head and neck and had died from

massive blood loss. Jones testified that both Thomas’s and the decedent’s blood were on

parts of the house and clothing located at the scene. Harris’s neighbor testified that she had

heard fighting coming from the home, which explained the home’s disarray. We find the

trial court did not err in denying the directed verdict, as the State proved beyond a reasonable

doubt that Thomas murdered Harris.

       37
        Thomas was indicted for murder under Mississippi Code Section 97-3-19(1). The
jury was instructed under subsections (a) and (b) of Section 97-3-19(1), which provides that:

       (1) The killing of a human being without authority of law by any means or in
       any manner shall be murder in the following cases: (a) When done with
       deliberate design to effect the death of the person killed, or of any human
       being; (b) When done in the commission of an act eminently dangerous to
       others and evincing a depraved heart, regardless of human life, although
       without any premeditated design to effect the death of any particular
       individual[.]

Miss. Code Ann. § 97-3-19(1)(a)-(b) (Rev. 2006).

                                              18
III.   Whether the trial court erred in denying Thomas’s motion for directed
       verdict of the arson charge.

¶36.   Thomas argues there is no evidence that he is guilty of the arson 38 charge, and as such,

the trial court erred in denying his motion for directed verdict. Conversely, the State argues

that there was sufficient evidence that Thomas was present in the home near the time the fires

started, and there was evidence that the fires were the result of arson.

¶37.   The State’s case was based on circumstantial evidence. In circumstantial-evidence

cases, “the state is required to ‘prove the accused’s guilt not only beyond a reasonable doubt,

but to the exclusion of every other hypothesis consistent with innocence.’” 39 However, “a

circumstantial evidence conviction will not be disturbed [on appeal] unless it is opposed ‘by

a decided preponderance of the evidence.’” 40 While Thomas did not confess to the arson, he

admitted that he had been living with Harris at 619 Silver Street and that he had killed Harris.

Ursula Fowler, Harris’s neighbor, testified that she had heard fighting at the home and within

ten or twenty minutes, the home had been on fire. Therefore, the testimony of Harris’s

neighbor, along with Thomas’s confession, place him at the scene during the time the fire

       38
        Thomas was indicted under Mississippi Code Section 97-17-1, which provides that:
“Any person who willfully and maliciously sets fire to or burns or causes to be burned or
who aids, counsels or procures the burning of any dwelling house, whether occupied,
unoccupied or vacant . . . shall be guilty of arson in the first degree[.]” Miss. Code Ann. 97-
17-1(1) (Rev. 2006).
       39
        Leflore v. State, 535 So. 2d 68, 70 (Miss. 1988) (quoting Guilbeau v. State, 502 So.
2d 639, 641 (Miss. 1987)).
       40
        Stokes v. State, 518 So. 2d 1224, 1227 (Miss. 1988) (quoting Kitchens v. State, 300
So. 2d 922 (Miss. 1974)).

                                              19
began and with a motive for setting the fire. Furthermore, various witnesses testified that

debris had been piled on top of the body, and Broughton testified that a hammer had been

placed on the body. Last, it was undisputed that the fire was the result of six separate fires

that were intentionally set. Therefore, we affirm the trial court’s denial of a directed verdict,

since sufficient evidence (which is unopposed by a preponderance of the evidence) supports

the arson conviction.

                                       CONCLUSION

¶38.   We find that the trial court did not commit manifest error in admitting Thomas’s

statements from March 2, 2007, and March 3, 2007. We also find that sufficient evidence

supports Thomas’s convictions of murder and first-degree arson. We affirm Thomas’s

conviction and sentence of one count of murder and one count of first-degree arson.

¶39. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE
IMPRISONMENT, AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY
OF PAROLE OR PROBATION, AFFIRMED. COUNT II: CONVICTION OF FIRST
DEGREE ARSON AND SENTENCE OF LIFE IMPRISONMENT, AS AN
HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE
OR PROBATION, AFFIRMED.

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

                                               20


                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                                No. 99-1206

GEZA ISTVAN,

                                              Plaintiff - Appellant,

          versus

J. FREDERICK MOTZ, The Honorable Judge of the
Federal District Court,

                                              Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-99-
61-AMD)

Submitted:     April 29, 1999                 Decided:   May 4, 1999

Before WILLIAMS, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geza Istvan, Appellant Pro Se.

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

     Geza Istvan appeals from the district court’s order dismissing

his “Complaint for Declaratory Judgment.” Our review of the record

and the district court’s opinion discloses no reversible error.

Accordingly, we affirm on the reasoning of the district court. See

Istvan v. Motz, No. CA-99-61-AMD (D. Md. Jan. 15, 1999).   We dis-

pense 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.

                                                           AFFIRMED

                                2


954 So.2d 27 (2007)
FOREST RIVER, INC.
v.
GELINAS.
No. SC06-1654.
Supreme Court of Florida.
March 8, 2007.
Decision without published opinion. Rev.denied.


                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                               No. 08-8450

UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

REGINALD LEON EDWARDS, a/k/a Reginald L. Edwards,

                  Defendant – Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.  Norman K. Moon, District
Judge. (6:07-cr-00014-nkm-l)

Submitted:    March 17, 2009                 Decided:   March 24, 2009

Before TRAXLER, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Reginald Leon Edwards, Appellant Pro Se.    Donald Ray Wolthuis,
Assistant United States Attorney, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Reginald     Leon   Edwards       appeals    the   district   court’s

order   denying   his    motion    for       reconsideration    of    the     order

granting   Edwards’     § 18   U.S.C.        § 3582(c)    (2006)     motion    for

modification of sentence.         We have reviewed the record and find

no reversible error.      Therefore we affirm for the reasons stated

by the district court.         United States v. Edwards, No. 6:07-cr-

00014-nkm-1 (W.D. Va. Nov. 5, 2008).                   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.

                                                                         AFFIRMED

                                         2


9 So.3d 577 (2007)
BARBARA S. BOX
v.
STATE.
No. CR-05-1609.
Court of Criminal Appeals of Alabama.
May 11, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Rehearing denied.