William Scarbough v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-02016-COA
WILLIAM SCARBOUGH A/K/A WILLIAM
SCARBOROUGH AND THERESA CATCHINGS
SCARBOUGH
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
APPELLANTS
APPELLEE
11/25/2002
HON. LAMAR PICKARD
COPIAH COUNTY CIRCUIT COURT
WILLIAM SCARBOUGH (PRO SE)
PAMELA A. FERRINGTON
LISA MISHUNE ROSS
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
ALEXANDER C. MARTIN
CRIMINAL - FELONY
WILLIAM SCARBOUGH - FELONIOUS CHILD
ABUSE: SENTENCED TO SIXTEEN YEARS WITH
THE MISSISSIPPI STATE DEPARTMENT OF
CORRECTIONS. THERESA SCARBOUGH FELONIOUS CHILD ABUSE: SENTENCED TO
TWELVE YEARS WITH THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS.
AFFIRMED - 09/14/04
09/28/2004 - MOTION FOR MODIFICATION OF
OPINION GRANTED; AFFIRMED - 12/07/04
CERTIORARI FILED:
MANDATE ISSUED:
MODIFIED OPINION ON MOTION FOR MODIFICATION OF OPINION
EN BANC.
BRIDGES, P.J., FOR THE COURT:
¶1.
The motion for modification of opinion is granted. The previous opinion is withdrawn, and this
modified opinion is substituted in its place.
¶2.
Theresa and William Scarbough were convicted of felonious child abuse in a joint trial in the Circuit
Court of Copiah County, Mississippi. William represented himself at trial with his court appointed counsel
ordered to assist in his defense. Theresa was sentenced to twelve years and Williams was sentenced to
sixteen years both in the custody of the Mississippi Department of Corrections. Theresa and William
separately appeal their convictions on numerous independent issues. Those issues on appeal are addressed
in this consolidated opinion.
STATEMENT OF THE ISSUES
ISSUES RAISED ON APPEAL BY THERESA SCARBOUGH
I. WAS THE EVIDENCE PRESENTED BY THE STATE INSUFFICIENT TO SUPPORT THE
VERDICT RENDERED IN THE COURT BELOW?
II. DID THE TRIAL COURT ERR IN DENYING THE MOTION FOR JNOV BECAUSE THE
STATE FAILED TO PROVE SCARBOUGH’S GUILT BEYOND A REASONABLE DOUBT AND
TO THE EXCLUSION OF EVERY REASONABLE HYPOTHESIS CONSISTENT WITH
INNOCENCE?
III. SHOULD THE JURY HAVE MADE A FINDING OF GUILT OR INNOCENCE AS TO THE
LESSER-INCLUDED CHARGE OF MISDEMEANOR CHILD ABUSE?
ISSUES RAISED ON APPEAL BY WILLIAM SCARBOUGH
IV. DID THE ASSISTANT DISTRICT ATTORNEY VIOLATE WILLIAM’S FIFTH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION IN HIS CLOSING STATEMENT?
V. WHETHER THE TRIAL JUDGE ERRED IN ALLOWING A DHS SOCIAL WORKER AND
INVESTIGATOR TO TESTIFY ABOUT EXTRA-JUDICIAL STATEMENTS WILLIAM MADE TO
HIS WIFE IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION?
VI. WHETHER THE TRIAL COURT ERRED IN ALLOWING SUSANNA JONES AND MILTON
TWINER TO TESTIFY ABOUT PRIVILEGED AND CONFIDENTIAL STATEMENTS HIS WIFE
MADE ABOUT HIM DURING THE COURSE OF THE INVESTIGATION?
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VII. WHETHER THE TRIAL COURT ERRED WHEN IT DID NOT SUA SPONTE SEVER THE
TRIAL OF THERESA AND WILLIAM SCARBOUGH?
VIII. WAS THE EVIDENCE PRESENTED BY THE STATE INSUFFICIENT TO SUPPORT THE
JURY’S FINDINGS OF GUILT ON THE CHARGE OF FELONIOUS CHILD ABUSE?
IX. WHETHER WILLIAM IS ENTITLED TO A NEW TRIAL DUE TO INEFFECTIVE
ASSISTANCE OF COUNSEL?
X. WHETHER THE TRIAL JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO
CONSIDER THE WHEELER FACTORS IN SENTENCING WILLIAM SCARBOUGH?
FACTS
¶3.
Theresa and William Scarbough were married on September 14, 2001. Theresa brought a child
into the marriage and William became the child’s stepfather. On January 8, 2002, Theresa took her two
and a half year old son to the Hazelhurst Clinic complaining that he fell on his shoulder and it was swollen.
Theresa told the clinic personnel he had fallen on the metal hump in the back seat of the vehicle. While at
the hospital the clinic personnel noticed her son had a black eye and a “healing burn” on his right hand.
¶4.
After an initial x-ray indicating a fracture of the boy’s right clavicle Martha Smith, the nurse
practitioner, decided pain in his left shoulder made necessary more x-rays. Smith noticed additional rib
fractures and changes in the bone. Smith sent the child to Hardy Wilson Hospital where more x-rays were
taken and many more fractures were discovered. The child had “multiple rib fractures on both sides” some
new and old, a clavicular fracture, two scapula fractures, and fractures to the humerus of both arms. The
child was finally transported to the University Medical Center and was seen by an orthopedic surgeon, Dr.
Patrick McCluskey, who found and treated a total of ten fractures. Dr. McCluskey testified that according
to the different ages of the fractures they appeared to have happened during three separate instances over
the course of about five weeks. The child had two fractures, the same age, in the upper humerus area of
both arms near the socket. The doctors thought a two and a half year old could only receive this type of
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injury from someone violently shaking the child. There is practically no way a child could accidentally break
both arms in that place at the same time.
¶5.
The doctor suspected child abuse and the child was taken into the custody of the Department of
Human Services. DHS interviewed Theresa and she explained that the burn on her son’s hand was an
accident when her husband stepped back and bumped the child into the space heater. She explained that
the black eye was due to his tripping and falling when trying to climb into the car. This incident she also
believed caused the swollen and fractured shoulder. A cut on the child’s eye Theresa claimed happened
when the child stumbled and fell on the Big Wheel in his bedroom and hit a five gallon bucket. Theresa also
says her son fell off the porch and had some swelling in his head but she failed to take the child to the
hospital. In fact the child was not taken to the hospital for any of the previous injuries. She told the
investigators that the only time she saw her husband punish the child was when he accidentally used the
bathroom in his pants.
ANALYSIS
¶6.
Our standard of review in a challenge to the sufficiency of the evidence is different, yet well
established. We may reverse only where all credible evidence, along with all reasonable inferences,
consistent with guilt and viewed in the light most favorable to the prosecution is such that a fair and
reasonable jury could not find the defendant guilty. Gibby v. State, 744 So.2d 244, 245(¶ 6) (Miss.1999).
I. WAS THE EVIDENCE PRESENTED BY THE STATE INSUFFICIENT TO SUPPORT THE
VERDICT RENDERED IN THE COURT BELOW?
VIII. WAS THE EVIDENCE PRESENTED BY THE STATE INSUFFICIENT TO SUPPORT THE
JURY’S FINDINGS OF GUILT ON THE CHARGE OF FELONIOUS CHILD ABUSE?
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¶7.
In their appeal both Theresa and William argue the proof given to the jury only supports a finding
of misdemeanor neglect and does not prove they intentionally injured her son. Under Mississippi Code
section 97-5-39 (2):
(2) Any person who shall intentionally (a) burn any child, (b) torture any child or, (c) except in
self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or
mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious
abuse and/or battery of a child and, upon conviction, may be punished by imprisonment in the
penitentiary for not more than twenty (20) years.
It is their claim that the state did not prove beyond a reasonable doubt that either she or her husband
burned, tortured, whipped, struck or otherwise abused the child. The crux of their argument is that the
code language requires an intentional act on the part of the accused and that the state did not meet this
burden.
¶8.
Theresa, in support her claim, states that the incidents of her son falling she told the DHS worker
about, all but one took place in the presence of her husband and that she had no first hand knowledge of
them. The one incident that she was present for was the last of the injuries when her son fell while climbing
into the car and hurt his shoulder. Theresa points to the testimony of the police investigator, Milton Twiner,
who testified she was charged because she was with her son when he fell and failed to timely take him to
the hospital. Those instances, she claims are not sufficient for a finding of felony child abuse.
¶9.
MississippiCode section 97-5-39(1) states in part that "[a]ny parent, guardian or other person who
willfully commits any act or omits the performance of any duty .... shall be guilty of a misdemeanor ...."
Miss.Code Ann. § 97-5- 39(1). Thus, the child abuse statute clearly contemplates acts of omission that
result in "the abuse and/or battering of any child, as defined in Section 43-21-105(m) of the Youth Court
Law" as misdemeanor crimes. See Miss.Code Ann. § 97-5-39(1). There is, however, no language that
designates all acts of omission to be misdemeanor offenses. Mississippi Code Annotated section
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97-5-39(2) includes a catch-all, “or otherwise abuse.” The Mississippi Supreme Court, in Buffington v.
State, 824 So.2d 576, 581-582 (¶ 24) (Miss. 2002), found that the term "otherwise abuse" is a clear
indicator that the list provided is not exhaustive.
¶10.
Failure to provide adequate medical treatment to a child you have seen fall or to a child you know
to have fallen when such falls were severe enough to result in multiple fractures can be interpreted as
intentional. This Court explained in Faraga v. State, 514 So.2d 295, 303 (Miss.1987), that the purpose
of Mississippi Code Annotated section 97-5-39 is to protect the child. The conviction of those who fail to
notice their child is in need of medical treatment or of those who simply fail to provide it is in keeping with
the intentions of the statute.
¶11.
We find that the evidence did support the jury’s conviction of Theresa Scarbough. We further find
that evidence William Scarbough’s failure to take the child to receive medical treatment after witnessing
numerous falls was sufficient to convict under the statute. This allegation of error is without merit.
II. DID THE TRIAL COURT ERR IN DENYING THE MOTION FOR JNOV BECAUSE THE
STATE FAILED TO PROVE SCARBOUGH’S GUILT BEYOND A REASONABLE DOUBT AND
TO THE EXCLUSION OF EVERY REASONABLE HYPOTHESIS CONSISTENT WITH
INNOCENCE?
¶12.
In her appeal on this issue Theresa claims that the state’s evidence against her was entirely
circumstantial and that it did not adequately disprove all reasonable hypotheses of her innocence. Theresa
notes that “[t]he state could rely on circumstantial evidence, but where a case is based wholly on
circumstantial evidence, the state must prove [her] guilt beyond a reasonable doubt and to the exclusion
of every reasonable hypothesis consistent with innocence.” Murphy v. State, 566 So.2d 1201, 1204
(Miss. 1990). Theresa also cites to Daumer v. State, 381 So.2d 1014 (Miss. 1980). In Daumer, a
husband and wife were convicted of murdering the wife’s natural child. Id. at 1017. The conviction of the
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husband was affirmed by the Mississippi Supreme Court but the conviction of the mother was reversed.
Id. at 1018. In its decision the court held that “[t]here [was] not even a scintilla of evidence in the record
showing that she ever struck the child, or that she ever encouraged or aided or abetted [him] in striking or
harming the child.” Id.
¶13.
In Aldridge v. State, 398 So.2d 1308 (Miss. 1981), a husband and wife were convicted of
felonious child abuse and each sentenced to fifteen years in the custody of the Mississippi Department of
Corrections. Id. at 1309. The evidence in the Aldridge case is similar to the evidence presented during
the Scarbough’s trial in that the theory of “Battered Child Syndrome” and several x-rays of fractures and
doctor’s testimony giving hypotheses of abuse were the primary evidence. Id. The court in this case
believed the evidence appropriate and sufficient to uphold the convictions of both the husband and wife.
Aldridge also held that the circumstantial evidence need not refute every possible theory of innocence. Id.
Only those theories which are reasonable need to be refuted and in this case the doctor’s testimony that
child abuse is the only explanation available for this young child’s injuries is sufficient circumstantial
evidence. Id. at 1311.
¶14.
We believe the situation at bar differs from the Daumer case in that someone can be convicted of
committing child abuse through an act of omission. Furthermore, the Daumer case does not involve a
conviction of child abuse but rather of manslaughter. Buffington, 824 So.2d at 581-582 (¶ 24). Like
Aldridge the state presented the jury with circumstantial evidence in conjunction with direct evidence.
Direct evidence like the x-rays and medical records of the child, testimony regarding primary child care and
circumstantial evidence including theories of child abuse from the investigators, DHS workers and the
treating physicians was presented. The prosecution did present enough evidence to the jury to sufficiently
rule out all reasonable theories of innocence. Theresa’s appeal on this issue is without merit.
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III. SHOULD THE JURY HAVE MADE A FINDING OF GUILT OR INNOCENCE AS TO THE
LESSER-INCLUDED CHARGE OF MISDEMEANOR CHILD ABUSE?
¶15.
Theresa Scarbough claims the State did not sufficiently prove felonious child abuse and the jury
should have deliberated on whether or not she was guilty of misdemeanor child abuse under Mississippi
Code Annotated section 97-5-39(1). Our discussion of the sufficiency of the State’s argument above
specifically citing the Buffington and Aldridge cases renders this issue moot.
IV. DID THE ASSISTANT DISTRICT ATTORNEY VIOLATE WILLIAM’S FIFTH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION IN HIS CLOSING STATEMENT?
¶16.
Initially, we note that no contemporaneous objection was raised at trial to the assistant district
attorney’s comments, and consequently the issue is not properly raised on appeal. Simmons v. State, 805
So. 2d 452, 489 (Miss. 2001) (citing Evans v. State, 725 So.2d 613, 670 (Miss.1997)). A trial error
involving violation of a constitutional right may reach such serious dimension that this Court is required to
address it, though first raised on appeal. Brooks v. State, 209 Miss. 150, 46 So.2d 94, 97 (1950).
“Courts in this nation have also consistently held that the Fifth Amendment right not to be compelled to be
a witness against oneself, incorporated as well in Art. 3, § 26 of the Mississippi Constitution, includes the
right not to have the prosecution make any comment upon a defendant's exercise of that right.” Whigham
v. State, 611 So. 2d 988, 995 (Miss. 1992).
¶17.
William Scarbough complains of the following statement made by the assistant district attorney in
closing arguments:
Not once did either of these parents say that some other dude did it. Somebody else did
it. Not once die either of these parents say, you know, there must be some other
explanation. Somebody else had them. Neither parent gives adequate explanation of how
this child was broken in two, how this baby was broken in two. What do they say. He
was clumsy.”
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William claims this statement made by the State to the jury during closing arguments violated his Fifth
Amendment right not to testify in his own defense.
¶18.
After thoroughly reviewing the transcripts we find that the statements made by the district attorney
did not penalize the defendant for exerting his constitutional privilege but rather were comments on the
defendant’s lack of a defense. As recognized in Jimpson v. State, 532 So.2d 985, 991 (Miss.1988), not
every comment regarding the lack of any defense or upon the defense presented is equivalent to a comment
on the defendant's failure to testify. Attorneys are to be given wide latitude in making their closing
arguments. Id. (citing Johnson v. State, 477 So. 2d 196, 209 (Miss. 1985)). Moreover, the State is
entitled to comment on the lack of any defense, and such comment will not be construed as a reference to
a defendant's failure to testify "by innuendo and insinuation."Id. (citing Wilson v. State, 433 So. 2d 1142,
1146 (Miss. 1983)). We find that the comments were not comments on the failure to testify and without
merit and that the defendant’s objection is procedurally barred by the defendant’s failure to make a
contemporaneous objection.
V. WHETHER THE TRIAL JUDGE ERRED IN ALLOWING A DHS SOCIAL WORKER AND
INVESTIGATOR TO TESTIFY ABOUT EXTRA-JUDICIAL STATEMENTS WILLIAM MADE TO
HIS WIFE IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION?
¶19.
Again, we initially state that we will consider this issue despite the fact it was not
contemporaneously objected to during trial. A trial error involving violation of a constitutional right may
reach such serious dimension that this Court is required to address it, though first raised on appeal. Brooks
v. State, 209 Miss. 150, 46 So.2d 94, 97 (1950).
¶20.
The investigator and DHS worker who testified at trial both gave testimony regarding William’s
involvement in the child’s injuries as told to them by Theresa. William claims this hearsay testimony coupled
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with Theresa invoking her right not to testify resulted in a violation of his Sixth Amendment right to
confrontation.
¶21.
In Seales v. State, 495 So.2d 475, 480(Miss.1986) the Mississippi Supreme Court interpreted
several United States Supreme Court cases and adopted a rule regarding corroborative witness testimony
requiring that there is a showing of "particularized guarantee of trustworthiness" to permit introduction during
the state's case- in- chief. In Lee v Illinois, 476 U.S. 530, 530-31 (U.S. 1986) the court required an
“interlocking” of the testimony and factual recitations.
¶22.
In the defense given by Theresa’s defense counsel and by William himself in his pro se
representation there was the requisite “interlocking.” The statements both William and Theresa gave the
investigators were similar. Both said Theresa was not present when the child’s hand was burned on the
space heater. Also, William never attempted to offer a contradicting statement of how the injuries
occurred. Therefore the testimony given by investigators regarding statements made by Theresa about her
husband do not violate William’s Sixth Amendment rights.
VI. WHETHER THE TRIAL COURT ERRED IN ALLOWING SUSANNA JONES AND MILTON
TWINER TO TESTIFY ABOUT PRIVILEGED AND CONFIDENTIAL STATEMENTS HIS WIFE
MADE ABOUT HIM DURING THE COURSE OF THE INVESTIGATION?
¶23.
This court declines to hear this issue for two separate and valid reasons. First William did not
preserve this issue for appeal with a contemporaneous objection and this court does not address alleged
errors the trial court did not have an opportunity to address. Dunn v. State, 693 So. 2d 1333, 1339
(Miss. 1997). Second in the Mississippi Rules of Evidence 504(d) there are exceptions to the marital
privilege.
(d) Exceptions. There is no privilege under this rule in civil actions between the spouses or
in a proceeding in which one spouse is charged with a crime against (1) the person of any
minor child or (2) the person or property of (i) the other spouse, (ii) a person residing in
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the household of either spouse, or (iii) a third person committed in the course of committing
a crime against any of the persons described in (d)(1), or (2) of this rule.
Clearly the crime of felonious child abuse falls within this exception and there is no privilege available for
William to claim.
VII. WHETHER THE TRIAL COURT ERRED WHEN IT DID NOT SUA SPONTE SEVER THE
TRIAL OF THERESA AND WILLIAM SCARBOUGH?
¶24.
"[T]he decision whether to grant a severance depends on whether the severance is necessary to
promote a fair determination of the defendant's guilt or innocence." Carter v. State, 799 So.2d 40, 44
(¶13) (Miss. 2001). "Where the testimony of one defendant did not tend to exculpate himself at the expense
of another and there does not appear to be a conflict of interest among the co-defendants, severance is not
required." Id. at 45. Severance is also proper where the evidence points more to the guilt of one
co-defendant than the other. Payton v. State, 785 So.2d 267, 269 (Miss. 1999). Court rules place the
decision whether to grant or deny a severance in non-death penalty cases within the discretion of the trial
court. URCCC 9.03. Unless one can show actual prejudice, a trial court cannot be found to have abused
its discretion. Payton, 785 So.2d at 269. Defendants jointly indicted for a felony are not entitled to
separate trials as a matter of right. Price v. State, 336 So.2d 1311, 1312 (Miss.1976).
¶25.
In his appeal on this matter William does not point to any actual prejudice which may have
occurred as result of trying these cases jointly. Also, William dose not indicate nor does the record reflect
that William ever requested the cases to be severed. Therefore his appeal on this issue is without merit.
IX. WHETHER WILLIAM IS ENTITLED TO A NEW TRIAL DUE TO INEFFECTIVE
ASSISTANCE OF COUNSEL?
¶26.
William Scarbough represented himself in this trial. Mark King was appointed by the state to
represent him but William wished to represent himself and asked King to withdraw. The trial judge did not
11
allow King to withdraw completely but did allow William to represent himself with King available for
assistance during the trial. William claims he was denied effective assistance of counsel because King failed
to advise him that he needed to move to sever the trials, that he needed to object to testimony during
closing arguments and that he should have objected to testimony regarding potential spousal privilege. All
of these claims are issues he has raised as errors on appeal and have been discussed above.
¶27.
It has been established by the Mississippi Supreme Court that as stand-by counsel, a defense
attorney is "without authority, discretion or control and the charge that he rendered constitutionally
ineffective assistance is without merit." Estelle v. State, 558 So.2d 843 (Miss. 1990). Estelle held that
where a defendant declines appointed counsel and proceeds to represent himself with appointed counsel
only standing by to provide assistance if called upon that the defendant will not be heard to complain on
appeal of ineffective assistance of counsel. Estelle, 558 So.2d at 847. The case sub judice is one such
case and therefore this issue is without merit.
X. WHETHER THE TRIAL JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO
CONSIDER THE WHEELER FACTORS IN SENTENCING WILLIAM SCARBOUGH?
¶28.
William Scarbough was sentenced to sixteen years in the custody of the Mississippi Department
of Corrections while his wife, Theresa was sentenced to twelve. William claims that the trial judge should
have considered the Wheeler factors when considering sentencing of co-defendants. In United States.
v. Wheeler, 802 F.2d 778, 783 (5th Cir. 1986), the court held:
Factors such as whether the crime was a first offense, whether a defendant was
mastermind or follower, and whether a defendant cooperated with the prosecution can
justify giving co- defendants widely different sentences. United States v. Nichols, 695
F.2d 86, 93-94 (5th Cir.1982). As long as the trial court stays within statutory bounds and
respects procedural safeguards, the sentence may be reversed only for "arbitrary or
capricious abuse of discretion." United States v. Cimino, 659 F.2d 535, 537 (5th
Cir.1981). (emphasis added)
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¶29.
William fails to note in his brief how their sentences are wildly different and does not claim that the
sentence was either outside the statutory guidelines or an abuse of discretion on the part of the judge.
Jackson v. State, 551 So. 2d 132, 149 (Miss. 1989) holds that sentencing is within the discretion of the
trial judge subject to statutory and constitutional limitations. Mississippi Code section 97-5-39 (2) allows
a sentence of no more than twenty years when someone is convicted under this statute. Finding the
sentence within the statutory guidelines, we do not find any error on the part of the trial judge.
¶30. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY OF
CONVICTION OF FELONIOUS CHILD ABUSE OF BOTH WILLIAM SCARBOUGH AND
THERESA SCARBOUGH AND SENTENCE OF SIXTEEN AND TWELVE YEARS,
RESPECTIVELY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
COPIAH COUNTY.
KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, AND BARNES, JJ.
CONCUR. ISHEE, J., NOT PARTICIPATING.
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