Patrick William Cox v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-02140-COA
PATRICK WILLIAM COX
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
9/29/2008
HON. BOBBY BURT DELAUGHTER
HINDS COUNTY CIRCUIT COURT
WILLIAM R. LABARRE
VIRGINIA LYNN WATKINS
ALISON OLIVER KELLY
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
ROBERT SHULER SMITH
CRIMINAL - FELONY
CONVICTED OF COUNT I, FORCIBLE
RAPE, AND SENTENCED TO TWENTYEIGHT YEARS; COUNT II, CARJACKING,
AND SENTENCED TO FIFTEEN YEARS;
AND COUNT III, KIDNAPPING, AND
SENTENCED TO THIRTY YEARS, WITH
THE SENTENCES TO RUN
CONSECUTIVELY IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 12/14/2010
BEFORE MYERS, P.J., ISHEE AND ROBERTS, JJ.
ISHEE, J., FOR THE COURT:
¶1.
On September 22, 2008, Patrick W. Cox was tried before a Hinds County Circuit
Court jury for carjacking, kidnapping, and the forcible rape of J.R. On September 29, 2008,
the jury returned a verdict of guilty on all three counts. After denial of his post-trial motions,
Cox filed this appeal. Finding no error, we affirm.
FACTS
¶2.
On November 11, 2007, J.R., while filling her car with gas, was approached by a man,
later identified as the defendant, Cox, who threatened to kill her if she did not do what he
said. Cox forced J.R. into the backseat of her Chevrolet Equinox, and as she pleaded for him
to release her, Cox drove away from the gas station. J.R. remembered she had her cell phone
in her back pocket, and as discretely as possible, she dialed numbers in an effort to be
rescued. She first dialed 911; not knowing if her call had been received, she then dialed her
friend, Maria Wright, and then her ex-husband, Gregory Young. J.R. left the phone on while
she continued to plead with Cox to let her go.
¶3.
Cox eventually pulled the car over and got into the backseat with J.R. and demanded
that she remove her clothes. J.R. testified that Cox began to lick her neck and breast, and
once J.R. removed her clothes, Cox raped her. Fortunately, as Cox was distracted by another
vehicle passing by, J.R. was able to escape from her backseat and run to a BP gas station
operated by Willie Harris. Harris let J.R. into his store, found her something to cover up
with, and called the police.
¶4.
J.R. was then taken to the University of Mississippi Medical Center (UMC). While
at the hospital, J.R. was interviewed by Martha Pentecost, a UMC social worker, and Patty
Welch, a UMC registered nurse. Jackson Police Officer Taafee N. Hughes and Detective
Kimberly Brown were also present for the interview. In the interview, J.R. told Pentecost
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and Welch that she had been kidnapped and forced into her car against her will. She further
testified that she was raped, and a rape kit was then prepared to test J.R.’s person. Welch
also noted that she found “redness” on J.R.’s labia minor.
¶5.
Just off Highway 49, Officer Malcom Macon found J.R.’s vehicle. As Officer Macon
focused his flashlight on J.R.’s car, someone jumped out of the car and began to run. Deputy
Jon Cooley accompanied by a dog tracker, Stella, was also at J.R.’s abandoned car. After
acquiring a scent from the front seat of J.R.’s car, Stella began to move north; eventually,
Stella made her way to a clearing and stopped beside a different abandoned car, where
officers found Cox inside. Officer Macon testified that when they found Cox, he was
sweating, panting, and acting “very nervous.”
¶6.
During Detective Brown’s interview of J.R., officers presented J.R. with a
photographic lineup of suspects also found in abandoned cars in the clearing. Brown
testified J.R. became hysterical when she saw the photograph of Cox, exclaiming “that’s
him.”
¶7.
At trial, two DNA analysts testified on behalf of the State. Gina Pineda testified she
had found sufficient genetic material to determine that Cox’s DNA profile was present on
J.R.’s breast and neck. Further, she testified the black hat found by Officer Charles Taylor
in J.R.’s abandoned car also had sufficient genetic material to determine it was Cox’s DNA
present on the hat. Katryn Moyse, another DNA analyst, testified she also found sufficient
genetic material to determine that Cox’s DNA profile was present “inside” J.R.’s vagina.
¶8.
Based on discrepancies in the testimonies of investigators regarding who had taken
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the rape kits to the laboratory for analysis, Cox objected to the admittance of the rape kits
that were performed on J.R. and Cox. Because there was no evidence of tampering or any
break in the chain of custody, the trial court admitted the rape kits into evidence. Cox also
objected to the testimony of Pentecost on the ground that her testimony was hearsay; this
objection was also overruled by the trial court.
¶9.
Cox also objected to the trial court giving jury instruction S-4, claiming the language
used in the instruction significantly broadened the crime of rape, which subjected him to an
ex-post-facto law in violation of his constitutional rights. After a review of the statutory
amendments and a review of the relevant case law, the trial court decided jury instruction S-4
did not alter or substitute new elements for rape and was, therefore, permissible.
¶10.
A Hinds County jury found Cox guilty on all three counts, and he received
consecutive sentences of thirty, twenty-eight, and fifteen years in the custody of the
Mississippi Department of Corrections. Aggrieved, Cox has filed this appeal. Finding no
error, we affirm.
DISCUSSION
I.
¶11.
Jury Instruction
Cox first asserts that the trial court committed reversible error in giving instruction
S-4 1 and in denying instructions D-6 and D-7. He argues the instruction S-4 impermissibly
1
Instruction S-4 states: “. . . some penetration of the sexual organ of the female by
the sexual organ of the male must be proved. However, it need not be full penetration.
Proof of the slightest penetration of the sexual organ of the female by the sexual organ of the
male is proof of sexual intercourse. It is not necessary that the vagina be entered or that the
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subjected him to an ex-post-facto law in violation of his constitutional rights.
¶12.
The standard for review in challenging a jury instruction is well settled: “In
determining whether error lies in the granting or refusal of various instructions, the
instructions actually given must be read as a whole[; w]hen so read, if the instructions fairly
announce the law of the case and create no injustice, no reversible error will be found.”
Davis v. State, 909 So. 2d 749, 752 (¶11) (Miss. Ct. App. 2005) (citation omitted).
Moreover, “[a] defendant is entitled to have jury instructions given which present his theory
of the case[;] however, this entitlement is limited in that the court may refuse an instruction
which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without
foundation in the evidence.” Smith v. State, 802 So. 2d 82, 88 (¶20) (Miss. 2001) (citations
omitted).
¶13.
Cox was indicted under Mississippi Code Annotated section 97-3-65(6) (Rev. 2006).
On November 11, 2006, the date that the crime occurred, section 97-3-65(6) stated:
For the purposes of this section, “sexual intercourse” shall mean a joining of
the sexual organs of a male and female human being in which the penis of the
male is inserted into the vagina of the female.
In 2007, the Mississippi Legislature amended 97-3-65(6) to make the crime gender neutral.
After 2007, section 97-3-65(6) now reads as follows:
For the purposes of this section, “sexual intercourse” shall mean a joining of
the sexual organs of a male and female human being in which the penis of the
male is inserted into the vagina of the female or the penetration of the sexual
hymen by ruptured; the entering of the vulva or labia by the male sex organ is sufficient.”
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organs of a male or female human being in which the penis or an object is
inserted into the genitals, anus or perineum of a male or female.
¶14.
After hearing arguments from both sides, and after reviewing the changes in the
statute and the relevant case law, the trial court found that jury instruction S-4 was a proper
instruction. Although it is true the statute was changed after the crime was committed, the
change did not alter or significantly broaden the crime that was committed against J.R. In
fact, the statute was changed in order to make the crime of forcible rape gender neutral. Cox
was indicted for the forcible rape of a female. Had he been charged with the forcible rape
of a male, we may have come to a different conclusion. After a review of the instructions
as a whole, we find that the trial court gave an accurate recitation of the law; therefore, this
issue is without merit.
II.
Chain of Custody
¶15.
Cox argues that the trial court improperly admitted the rape kits performed on J.R. and
Cox.
He claims that, because there was a contradiction in the testimonies of those
responsible for the chain of custody, the rape kits should not have been admitted into
evidence.
¶16.
The Mississippi Supreme Court has held that “the test of whether there has been a
proper showing of the chain of possession of evidence is whether there is any indication or
reasonable inference of probable tampering with the evidence or substitution of the
evidence.” White v. State, 722 So. 2d 1242, 1244 (¶12) (Miss. 1998) (citations omitted).
However, “the burden to produce evidence of a broken chain of custody (i.e., tampering) is
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on the defendant.” Id. at 1245 (¶13). Additionally, “[m]atters regarding the chain of custody
of evidence are largely left to the discretion of the trial judge, and ‘unless this judicial
discretion has been so abused as to be prejudicial to the defendant, this Court will not reverse
the ruling of the trial court.’” Doby v. State, 532 So. 2d 584, 588 (Miss. 1988) (quoting
Morris v. State, 436 So. 2d 1381, 1388 (Miss. 1983)).
¶17.
Although it is true that Officer Wayne Monroe and Officer Kenny Lewis both testified
as to being the one who had delivered the rape kits to the Scales Laboratory for testing, the
trial court concluded that any discrepancies regarding who had taken the kits to the lab, and
then returned them after testing, could be dealt with on cross-examination. Further, both
DNA analysts who ran tests on the rape kits gave testimony regarding the condition of the
kits, and both agreed that there was no evidence of contamination or degradation when the
kits were submitted for testing. Cox has failed to produce evidence of a broken chain of
custody. Moreover, no abuse of judicial discretion has been demonstrated here. This claim
is devoid of merit.
III.
¶18.
Hearsay Testimony
Cox next takes issue with the admittance of Pentecost’s testimony believing the
testimony does not meet the requirements of Mississippi Rule of Evidence 803(4). Rule
803(4) exempts statements made for purposes of medical diagnosis and treatment from the
otherwise stringent prohibition against hearsay, regardless of the availability of the declarant.
M.R.E. 803(4). Specifically, the rule states:
Statements made for purposes of medical diagnosis or treatment and describing
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medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment, regardless of to whom the
statements are made, or when the statements are made, if the court, in its
discretion, affirmatively finds that the proffered statements were made under
circumstances substantially indicating their trustworthiness. For purposes of
this rule, the term “medical” refers to emotional and mental health as well as
physical health.
¶19.
This Court applies an abuse-of-discretion standard of review regarding the
admissibility of testimonial evidence. Harris v. State, 861 So. 2d 1003, 1018 (¶41) (Miss.
2003). We leave such admissions to the sound discretion of the trial judge, and reversal is
only warranted when the abuse of discretion prejudices the accused. Id.
¶20.
Cox argues that because Pentecost is not a diagnostician, her testimony is
inadmissible. The rule states that if the trial court finds the circumstances surrounding the
statement indicate substantial trustworthiness, the statement can be admitted regardless as
to whom the statement was made. The trial court found that because the statements were
made after J.R. had just been brought into the hospital and because they were made in the
company of a nurse and a police officer, there was enough trustworthiness to admit the
statements. Furthermore, Pentecost’s testimony was corroborated by a UMC registered
nurse, Welch, and J.R. herself. Accordingly, this issue is without merit.
IV.
¶21.
Sufficiency of Evidence
In his fourth assignment of error, Cox asserts that there was insufficient evidence to
support a guilty verdict. We disagree. In Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. Ct.
App. 2005), the supreme court reiterated the standard of review for a sufficiency-of-the-
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evidence claim, stating:
[I]n considering whether the evidence is sufficient to sustain a conviction in
the face of a motion for directed verdict or for [a] judgment notwithstanding
the verdict, 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; and
where the evidence fails to meet this test it is insufficient to support a
conviction.”
The supreme court went on to clarify itself, stating that the inquiry does not require a court
to “ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia,
443 U.S. 307, 315, (1979)).
¶22.
We find that, after a review of the record, there was sufficient, credible, substantial
evidence for the jury to consider and return a verdict of guilty. J.R.’s use of her cell phone
during the attack, the DNA analysts who corroborated her testimony, and the fact that the
nurse found “redness” or “erythema” on J.R.’s labia minor all point to a verdict of guilty.
Therefore, this issue is without merit.
V.
¶23.
Civil Suit
Cox, on his final issue for appeal, asserts that the trial court’s decision to exclude
evidence of a civil action, which was filed by J.R. against the convenience store where she
was abducted, unfairly prevented him from being able to show bias or prejudice on the part
of J.R. This Court's review of the admission of evidence is limited. The standard of review
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for the admission or exclusion of evidence is abuse of discretion. Williams v. State, 991 So.
2d 593, 597 (¶8) (Miss. 2008) (citing Brown v. State, 969 So. 2d 855, 860 (¶13) (Miss.
2007)). Therefore, “a trial judge enjoys a great deal of discretion as to the relevancy and
admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to
the accused, the [appellate court] will not reverse [the] ruling.” Id. (quoting Shaw v. State,
915 So. 2d 442, 445 (¶8) (Miss. 2005)).
¶24.
The trial court found that, under Mississippi Rule of Evidence 401, any mentioning
of the civil suit would not be relevant to the guilt or innocence of Cox regarding the charges
submitted to the jury. Further, the trial court found that, even if the evidence was considered
relevant, it could be excluded under Mississippi Rule of Evidence 403.
¶25.
“[Mississippi Rule of Evidence] 403 is the ultimate filter through which all
evidentiary objections eventually flow.” Ware v. Entergy Miss., Inc., 887 So. 2d 763, 774
(¶29) (Miss. 2003). “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” M.R.E. 403. Here, the trial court found that any
mention of the civil suit filed by J.R. would be highly prejudicial and misleading to the jury.
Cox has offered no compelling argument as to how the trial court abused its discretion in not
allowing the testimony. Accordingly, this final issue is also without merit.
¶26. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, FORCIBLE RAPE, AND SENTENCE OF TWENTYEIGHT YEARS; COUNT II, CARJACKING, AND SENTENCE OF FIFTEEN
10
YEARS; AND COUNT III, KIDNAPING, AND SENTENCE OF THIRTY YEARS,
WITH SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
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