Zimmra Foster v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-KA-00034-COA
ZIMMRA FOSTER
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
10/20/1998
HON. KENNETH L. THOMAS
BOLIVAR COUNTY CIRCUIT COURT
STAN PERKINS
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
LAURENCE Y. MELLEN
CRIMINAL - FELONY
CHILD ABUSE: SENTENCED TO 15 YEARS IN THE
MDOC
AFFIRMED - 9/11/01
10/2/2001
BEFORE McMILLIN, C.J., THOMAS, AND CHANDLER, JJ.
THOMAS, J., FOR THE COURT:
¶1. Zimmra Foster appeals his conviction for felony child abuse, raising the following issues as error:
I. DID THE TRIAL COURT ERR IN FAILING TO GRANT THE DEFENDANT'S
PEREMPTORY JURY INSTRUCTION?
II. DID THE TRIAL COURT ERR IN LIMITING THE TESTIMONY OF THE
DEFENDANT'S CHARACTER WITNESSES?
Finding no error, we affirm.
FACTS
¶2. On August 19, 1998, A.H., about a year and a half old, was taken to the emergency room with second
and third degree burns on her feet and genitals. A.H. had been visiting at the home of her father Zimmra
Foster when the incident occurred.
¶3. According to Foster, A.H., after being given a bath and dressed for the day, "messed" on herself.
Foster at first made a statement in which he said A.H. fell into a tub of hot water. Later, Foster admitted
that he did participate in the act that scalded the child but that he "didn't realize the water was so hot." The
scalding burns were so severe that A.H. required the grafting of skin on her feet.
¶4. Emergency room nurse Jenny Coleman testified that she first noticed burns only to the top of A.H.'s
feet. Coleman went on to state that she observed "bruises on her thighs" and a "big, large blister" in the
genital area. Coleman also noted a "large handprint on the child's back area." Two expert witnesses Dr.
Robert Bowman and Dr. Lawrence George both testified that the burns were not consistent with immersion
burns, but pouring burns or burns caused by "water being poured or coming directly onto the areas." As a
result of the injuries received by A.H., Foster was indicted by a grand jury in the First Judicial District of
Bolivar County for felony child abuse under Miss. Code Ann. § 97-5-32(2)(Rev. 2000) alleging Foster
"unlawfully, wilfully and feloniously, and intentionally burn(ed) a child," A.H.
¶5. After a trial on the merits, a guilty verdict of felony child abuse was returned by the trial court. Foster
filed and presented his motion for a new trial, which was denied by the trial court. It is from this denial that
Foster now appeals.
ANALYSIS
I.
DID THE TRIAL COURT ERR IN FAILING TO GRANT THE DEFENDANT'S
PEREMPTORY JURY INSTRUCTION?
¶6. On appeal, Foster asserts that the trial court erred in failing to grant his requested peremptory jury
instruction. The standard of review for peremptory instructions and directed verdicts is the same. "In
passing upon a request for a peremptory instruction, all evidence introduced by the State is to be accepted
as true, together with any reasonable inferences that can be drawn from that evidence, and if sufficient
evidence to support a verdict of guilty exists, the motion for a directed verdict is to be denied." Wall v.
State, 718 So. 2d 1107 (¶15) (Miss. 1998) (citations omitted). "Furthermore, when the trial court has
erred in refusing to grant the defendant's request for a peremptory instruction, then the case must be
reversed and the defendant discharged." Brown v. State, 556 So. 2d 338, 340 (Miss. 1990). However,
this Court recognizes that a defendant shall not be discharged short of a conclusion that given the evidence,
taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a
reasonable doubt that the defendant was guilty. Wall, 718 So. 2d at (¶15).
¶7. Foster claims that his proposed jury instruction was improperly denied. The questionable instruction
read, "The Court instructs the jury to find the Defendant not guilty." Mississippi law is clear on the subject
of peremptory instructions in criminal cases: "Peremptory instructions should be refused if there is enough
evidence to support a verdict." Warn v. State, 349 So. 2d 1055, 1055 (Miss. 1977). See also Hicks v.
State, 580 So. 2d 1302, 1304 (Miss. 1991); Benson v. State, 551 So. 2d 188, 193 (Miss. 1989).
Reviewing the record in this case, substantial evidence did exist to support the verdict: Foster made
conflicting statements, in the first statement he claimed that the child fell into the tub and then in his second
statement he stated that he lost his cool and did place the child into the tub, but did not know the water was
hot; two expert witnesses, burn specialists, testified that the burns were inconsistent with a child being
immersed in hot water; the testimony of the emergency room nurse who testified that the burns were on the
top of the feet and genitals, and that she noticed bruises on A.H.'s legs and back; and pictures were
presented as evidence of the placement and severity of the burns. This peremptory instruction was not
proper, and the trial court did not err in refusing to give such instruction.
II.
DID THE TRIAL COURT ERR IN LIMITING THE TESTIMONY OF THE
CHARACTER WITNESSES?
¶8. Foster argues that he was improperly limited in the type of character witness testimony he was allowed
to put before the jury. The defendant in a criminal prosecution, as a matter of right, may introduce evidence
of his or her own good character. Rosser v. State, 230 Miss. 573, 577, 93 So. 2d 470, 471 (1957).
Proof of a character trait, however, may not be made by proof of specific past actions. The defendant is
limited to offering testimony as to general reputation. Kearney v. State, 68 Miss. 233, 237-38, 8 So. 292,
293 (1890). To the extent Foster was prohibited from eliciting testimony that he was a loving father and that
he would not intentionally hurt his own child was outside the scope of Foster's general reputation in the
community with respect to general character traits substantially related to the nature of the charge, and thus
properly excluded. Winters v. State, 449 So. 2d 766, 769 (Miss. 1984). Finally, the trial court properly
excluded testimony dealing with subjects other than Foster's reputation for truth and veracity. See Sheffield
v. Sheffield, 405 So. 2d 1314, 1315 (Miss. 1981). Therefore, this assignment of error lacks merit.
¶9. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION
OF FELONY CHILD ABUSE AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS
AND CHANDLER, JJ., CONCUR. BRANTLEY, J., NOT PARTICIPATING.
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