Richard Ray Timmons v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00696-COA
RICHARD RAY TIMMONS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
04/15/2008
HON. LESTER F. WILLIAMSON, JR.
LAUDERDALE COUNTY CIRCUIT COURT
LESLIE S. LEE
HUNTER NOLAN AIKENS
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY, JR.
BILBO MITCHELL
CRIMINAL - FELONY
CONVICTED OF STATUTORY RAPE AND
SENTENCED TO TWENTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITH
TEN YEARS SUSPENDED AND FIVE
YEARS OF POST-RELEASE SUPERVISION
AND TO PAY A $2,000 FINE AND $1,000
TO THE CHILDREN’S TRUST FUND
AFFIRMED - 01/26/2010
BEFORE LEE, P.J., CARLTON AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.
Richard Ray Timmons was charged in the Circuit Court of Lauderdale County,
Mississippi, with four counts of statutory rape, which stemmed from four separate allegations
of sexual encounters with a fourteen-year-old girl. He was convicted on Count I of the
indictment and found not guilty on the remaining three counts. He was sentenced to twenty
years in the custody of the Mississippi Department of Corrections, with ten years suspended
and five years of post-release supervision. On appeal Timmons claims: (1) the circuit court
erred in limiting the scope of Timmons’s cross-examination of the victim, and (2) the verdict
is against the overwhelming weight of the evidence.
¶2.
Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3.
In the summer of 2006, the parents of Christy Lewis and Rebecca Lewis owned a
roofing business in Meridian, Mississippi.1 At the time, Christy was fourteen, and Rebecca
was ten. On July 16, 2006, the parents hired Timmons, a thirty-two-year-old roofer, to help
with their family business. The parents allowed Timmons to stay in their home and sleep on
a couch in their living room. Christy and Rebecca also regularly slept in the living room that
summer because the air conditioning was not working in their bedrooms.
¶4.
During a fishing trip around July 26 or 27, 2006, Rebecca witnessed Timmons
inappropriately touch Christy. Christy later testified at trial that she and Timmons had only
kissed on the fishing trip, but that Timmons had called her his girlfriend. The day after the
fishing excursion, Timmons brought the two young girls to pick up Christy’s friend Gina
Smith. Gina testified that Timmons asked her that day if she wanted to have a “threesome,”
meaning she, Christy, and Timmons would have sex with one another, but Gina thought
1
To protect the confidentiality of minors, we substitute fictitious names for their
actual names.
2
Timmons was kidding.
¶5.
Around this time Christy’s mother became suspicious of Timmons’s relationship with
Christy. Her suspicions grew when she found Timmons and Christy talking late one night.
Nevertheless, the next weekend, the parents invited Timmons and his friend Samantha
Stewart2 on a trip with them to the casinos in Philadelphia, Mississippi.3 After the casino
trip, Christy’s mother confronted Christy. She asked Christy if she was involved with
Timmons, and Christy came forward and admitted that she had a sexual relationship with
him. After learning of the relationship, Christy’s parents fired Timmons.
¶6.
Timmons later called Christy’s mother on at least two occasions to apologize for his
actions and to profess his love for Christy. During these phone conversations, Timmons
confessed he had engaged in both oral sex and sexual intercourse with Christy. At trial,
Christy testified she had sex with Timmons on each of the charged dates, and she explained
the nature of the various acts the two performed on one another.
¶7.
During deliberation, the jury sent a question to the judge asking: “Is it permissible for
the jury to find statutory rape on one of the dates only and on the other dates not guilty?
Then one count of statutory rape? Do you need the date for one count?” Over defense
counsel’s objection, the circuit judge responded:
2
Samantha is a teenage girl, the same age as Christy, who baby-sat for Timmons’s
child.
3
The date of the casino trip was disputed at trial. The mother reported the trip
occurred on July 27, 2006, but Christy testified it was either July 30 or 31. A photo booth
picture of Christy and Timmons taken during the vacation was dated July 31, 2006.
3
You have been instructed to render a verdict on each of the four counts. Your
verdict may be guilty or not guilty on each count. On each verdict, it is
required to specify the count number which will identify the date of the alleged
offense. Further explanation is not appropriate. See your previous form of the
verdict instruction.
¶8.
The jury continued to deliberate and later found Timmons guilty on Count I and not
guilty on the remaining three counts.
DISCUSSION
I.
Cross-examination of Christy
A.
¶9.
Relevance
Timmons first contends the circuit court erred in limiting his cross-examination of
Christy. Before trial, Christy informed law enforcement officers that she believed Timmons
may be sexually involved with other teenage girls. When defense counsel attempted to
question Christy about her statement, the State objected on relevance grounds. The circuit
judge sustained the State’s objection.
¶10.
We review the circuit court’s relevancy ruling, limiting cross-examination, for abuse
of discretion. Raiford v. State, 907 So. 2d 998, 1002 (¶8) (Miss. Ct. App. 2005) (citing
Zoerner v. State, 725 So. 2d 811, 813 (¶7) (Miss. 1998)). “Reversal is proper only where
such discretion has been abused and a substantial right of a party has been affected.”
Johnson v. State, 666 So. 2d 499, 503 (Miss. 1995) (citing Green v. State, 614 So. 2d 926,
935 (Miss. 1992); M.R.E. 103(a)). “‘Relevant Evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” M.R.E. 401.
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“All relevant evidence is admissible, except as otherwise provided by the Constitution of the
United States, the Constitution of the State of Mississippi, or by [the Mississippi Rules of
Evidence]. Evidence which is not relevant is not admissible.” M.R.E. 402.
¶11.
During cross-examination, Christy provided the following explanation about her
statement that Timmons was possibly having sex with other young females:
[Defense counsel]: So you thought they were having sex with each other?
[Christy]:
Well, he would have her baby-sit J.J., and he would go
over to his mom’s house with her there and still pay her
to baby-sit.
[Defense counsel]: And you told the police without mentioning any names
that this juvenile was also having sex - - that [Timmons]
was having sex with her?
[Christy]:
I told them I wasn’t sure, but I thought there was a
possibility.
[Defense counsel]: Okay. And you named another - - another teenage
female?
[Christy]:
Yes, but she had told me that.
(Emphasis added).
¶12.
The State objected to this line of questioning, claiming Christy’s statement about other
juveniles was irrelevant. Timmons’s attorney claimed Christy’s “false allegations” were
relevant. After dismissing the jury to hear more thorough arguments from both sides, the
circuit judge offered the following reason for sustaining the State’s objection:
[Christy] suspected that there was a - - and she believed. I don’t think that’s
the same thing as filing a false report. That’s not what happened here. She
was investigating. These officers were investigating someone who they
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suspected to be a serial offender with - - sex offender with young ladies. One
victim who they’re convinced is a victim mentions other possible contacts.
That’s something that happens every day, and she doesn’t know, but she
relates to law enforcement that [she suspects] that’s the case. I’m not going
to - - I think that’s not relevant here. I don’t think it rises to the level of
something that you could cross-examine this witness about and in any way add
to evidence that should be admissible or considered by the jury as to the facts
in this particular case. I’m not going to allow you to get into that issue or
cross-examine [Christy] about those reports. I don’t think those are relevant
issues to any fact here.
(Emphasis added).
¶13.
While the circuit judge determined Christy’s report to police was irrelevant, it appears
from his ruling that he specifically found her responses were speculative in nature, and not
intentionally false allegations. Mississippi Rule of Evidence 602 makes clear, “[a] witness
may not testify to a matter unless evidence is introduced sufficient to support a finding that
he [or she] has personal knowledge of the matter.” Informing an investigating officer of a
suspicion or possibility about which one is admittedly “unsure” is quite different than making
a knowingly-false allegation.
¶14.
We find it was within the circuit court’s discretion to find Christy had insufficient
personal knowledge about the other encounters, and that her statement was too speculative
to be deemed relevant for impeachment as a prior inconsistent statement under Mississippi
Rule of Evidence 613(b). Furthermore, what Christy may have been told by another teenage
girl was inadmissible hearsay. See M.R.E. 801, 802.
¶15.
Accordingly, we find the circuit court did not abuse its discretion in prohibiting cross-
examination regarding Christy’s statement about Timmons’s other possible sexual encounters
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with other teenage girls.
B.
¶16.
Confrontation Clause
Timmons next claims the circuit court violated his right to confront his accuser by
limiting his cross-examination of Christy. He contends the United States Supreme Court’s
decision in Delaware v. Van Arsdall, 475 U.S. 673 (1986) supports this conclusion. In Van
Arsdall, the Supreme Court held:
[A] criminal defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of
the witness, and thereby “to expose to the jury the facts from which jurors
could appropriately draw inferences relating to the reliability of the witness.”
Id. at 680 (emphasis added) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)).
¶17.
All criminal defendants have “a fundamental right implicit in the confrontation clauses
of our state and federal constitutions to cross-examine witnesses testifying against [them].”
Betts v. State, 10 So. 3d 519, 523 (¶11) (Miss. Ct. App. 2009). However, that right “does not
allow cross-examination on any matter affecting the credibility of witnesses without
restraint.” Id. Though cross-examination is ordinarily broad in scope, it is within the sound
discretion and inherent power of the circuit judge to limit cross-examination to only relevant
matters. Id. (citing Ellis v. State, 856 So. 2d 561, 565-66 (¶10) (Miss. Ct. App. 2003)).
¶18.
We have already determined the testimony in question was not “otherwise appropriate
cross-examination” material because of its speculative nature.
Furthermore, general
objections are insufficient to preserve alleged Confrontation Clause violations for appellate
review. Briggs v. State, 16 So. 3d 696, 698-99 (¶11) (Miss. Ct. App. 2008). We note
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Timmons’s only response to the circuit court was that he was entitled to question Christy
about what he deemed were relevant “false allegations.” He made no specific Sixth
Amendment objection to the limitation of Christy’s testimony at trial or in his post-trial
motion. Thus, his Confrontation Clause argument is procedurally barred. Id.
¶19.
However, under the plain-error doctrine, “we can recognize obvious error which was
not properly raised by the defendant on appeal, and which affects a defendant’s ‘fundamental
substantive right.’” Neal v. State, 15 So. 3d 388, 403 (¶32) (Miss. 2009) (citing Smith v.
State, 986 So. 2d 290, 294 (¶10) (Miss. 2008)). “The plain[-]error doctrine has a two-part
test which requires: (i) an error at the trial level and (ii) such an error resulted in a manifest
miscarriage of justice.” Stephens v. State, 911 So. 2d 424, 432 (¶19) (Miss. 2005) (citing
Gray v. State, 549 So. 2d 1316, 1321 (Miss. 1989)). Even if we found the limitation of
Timmons’s cross-examination of Christy was error, Timmons must show the exclusion
resulted in a manifest miscarriage of justice.
¶20.
Our supreme court has held “even errors involving a violation of an accused's
constitutional rights may be deemed harmless beyond a reasonable doubt where the weight
of the evidence against the accused is overwhelming.” Clark v. State, 891 So. 2d 136, 142
(¶29) (Miss. 2004) (quoting Riddley v. State, 777 So. 2d 31, 35 (¶12) (Miss. 2000)). In
addition to Christy’s testimony about her various underage sexual encounters with Timmons,
the State also offered letters written by Christy to Timmons, which were found in both
Christy’s possession, and in Timmons’s bedroom in his mother’s home. Also, Timmons
confessed to Christy’s mother that he had both oral sex and sexual intercourse with her minor
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daughter.
¶21.
To the extent Timmons contends he was deprived of the opportunity to inquire about
Christy’s jealousy of Timmons’s relationships with other teenage girls, we note that
Timmons’s counsel engaged in a lengthy and vigorous cross-examination of Christy on this
topic. And Christy readily admitted during both direct examination and cross-examination
that she was jealous of Timmons’s relationships with other young girls. Thus, any jealousyrelated bias was already before the jury.
¶22.
Accordingly, we find any potential error from the limitation of Timmons’s cross-
examination of Christy does not amount to a manifest injustice.
II.
¶23.
Weight of the Evidence
Timmons’s final argument is that the guilty verdict on Count I is against the weight
of the evidence. In reviewing a challenge to the weight of the evidence, we will only disturb
the verdict “when it is so contrary to the overwhelming weight of the evidence that to allow
it to stand would sanction an unconscionable injustice.” Lamar v. State, 983 So. 2d 364, 367
(¶5) (Miss. Ct. App. 2008) (quoting Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005)).
In conducting this analysis, the evidence must be viewed in the light most favorable to the
verdict. Id. This Court “sits as a hypothetical thirteenth juror,” and “[i]f, in this position, the
Court disagrees with the verdict of the jury, the proper remedy is to grant a new trial.” Id.
(internal quotations omitted).
¶24.
Timmons contends the State failed to prove sexual interaction between Christy and
him occurred on July 30, 2006. Timmons specifically takes issue with what he deems to be
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confusing and contradictory testimony from Christy. He claims the jury’s note, which asked:
“Is it permissible for the jury to find statutory rape on one of the dates only and on the other
dates not guilty? . . . Do you need the date for one count?,” illustrates a lack of evidence of
an encounter on July 30, 2006.
¶25.
Before addressing the weight of the evidence, we first note the statutory-rape charge
laid out in Count I was alleged to have occurred “on or about” July 30, 2006. Our supreme
court has instructed that charging a defendant with committing a sexual crime “‘on or about’
a certain date, [is] . . . sufficiently specific to put the defendant on notice of the charge
against him and the date that the crime took place[.]” Davis v. State, 866 So. 2d 1107, 1110
(¶11) (Miss. Ct. App. 2003) (citing Daniel v. State, 536 So. 2d 1319, 1326 (Miss. 1988)).
Thus, we find Timmons was on sufficient notice of the statutory-rape charge set forth in
Count I. Furthermore, we point out that in response to the jury’s note, the circuit judge
advised the jury:
You have been instructed to render a verdict on each of the four counts. Your
verdict may be guilty or not guilty on each count. On each verdict, it is
required to specify the count number which will identify the date of the alleged
offense. Further explanation is not appropriate. See your previous form of the
verdict instruction.
We also recognize that the circuit judge had previously instructed that the jury must find each
element of Count I beyond a reasonable doubt, including that the offense was committed:
“On or about July 30, 2006, in Lauderdale County, Mississippi.” Thus, the jury was properly
instructed that it must consider each count separately and that it must find beyond a
reasonable doubt that Timmons committed the statutory rape on or about the date charged
10
in Count I. We presume the jury follows the instructions of the circuit judge when making
its decision. Forbes v. State, 771 So. 2d 942, 952 (¶33) (Miss. Ct. App. 2000) (citing
Reynolds v. State, 585 So. 2d 753, 755 (Miss. 1991)). This issue is without merit.
¶26.
Timmons’s argument about the contradictory evidence is also unpersuasive. He
claims Christy’s testimony that the two were together at her parent’s home “the whole day”
on July 30 conflicts with her later statement that the casino trip occurred that same day.
Timmons also points out that his mother provided an alibi of sorts — that Timmons spent the
entire day of July 30 with her and was in his bed at her home the next morning. As we
approach Timmons’s argument about conflicting evidence, we are reminded, it is the function
of the jury to weigh the evidence, evaluate witness credibility, and determine which
witnesses are to be believed. Thomas v. State, 14 So. 3d 812, 823 (¶37) (Miss. Ct. App.
2009) (citing Ford v. State, 737 So. 2d 424, 425 (¶8) (Miss. Ct. App. 1999)).
¶27.
We find Christy’s testimony that the first sexual encounter occurred on July 30 and
that it occurred on the day of the casino trip does not necessarily contradict her testimony that
the casino trip took place either July 30 or 31. Furthermore, this Court has previously held
a child victim’s variance “when pressed for specific dates of when various sexual acts
occurred is of little consequence.” Grimes v. State, 1 So. 3d 951, 956 (¶14) (Miss. Ct. App.
2009). Even so, the circuit court instructed that the State must prove beyond a reasonable
doubt that the offense charged in Count I occurred “on or about July 30,” and we find
Christy’s testimony was sufficiently specific to prove this necessary element.
As to
Timmons’s alibi, we note the circuit court granted an alibi-defense instruction, but the jury
11
obviously rejected it, as it was free to do.
¶28.
Considering the evidence in the light most favorable to the verdict, we find
Timmons’s conviction on Count I is not contrary to the overwhelming weight of the
evidence.
¶29.
For these reasons, we affirm Timmons’s conviction and sentence.
¶30. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY
OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
WITH TEN YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE
SUPERVISION AND TO PAY A $2,000 FINE AND $1,000 TO THE CHILDREN’S
TRUST FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
LAUDERDALE COUNTY.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.
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