Jerry Duane Morris, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-02626-COA
JERRY DUANE MORRIS, JR.
V.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
11/18/2003
HON. GEORGE B. READY
DESOTO COUNTY CIRCUIT COURT
DAVID CLAY VANDERBURG
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CRIMINAL - FELONY
SEXUAL BATTERY OF A CHILD UNDER THE
AGE OF (14) YEARS OLD: SENTENCE OF (20)
YEARS IN THE CUSTODY OF MDOC WITH (10
YEARS SUSPENDED PENDING)
DEFENDANT’S FUTURE GOOD BEHAVIOR
AFFIRMED: 05/03/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KING, C.J., CHANDLER AND BARNES, JJ.
KING, C.J., FOR THE COURT:
¶1.
Jerry Duane Morris was convicted by a jury in the Circuit Court of Desoto County of the
sexual battery1 of a minor child, S.R. 2, on November 18, 2003. Morris was sentenced to serve a
term of twenty years in the custody of the Mississippi Department of Corrections with ten years
suspended pending his future good behavior. Aggrieved by the conviction, Morris has appealed
and asserts the following issues, which we quote verbatim.
I. The Court erred in denying Defendant’s Motion to Suppress his statements
given to law enforcement officers.
II. The Court erred in granting Jury Instruction No.13 submitted by the State as S4.
FACTS
¶2.
On June 13, 2003, S.R.’s mother received a report from her stepsister that her daughter, had
been sexually abused by Jerry Morris the previous night. Upon hearing this the mother contacted the
Desoto County Sheriff’s Department.
¶3.
According to the record, S. R. spent the evening of June 12, 2003 with her mother’s stepsister,
Ms. Morris. While Ms. Morris was away at work, her boyfriend, Jerry Morris, remained at their
apartment with S. R. and two other minor children. At the time of the incident, Jerry Morris was 36
years old and S. R. was ten years old. Jerry Morris was charged with sexual battery of S. R., who is
the niece of his girlfriend.
1
Pursuant to Miss. Code Ann. § 97-3-95 (1) (d) (Rev. 2000) ,“A person is guilty of sexual
battery if he or she engages in sexual penetration with: A child under the age of fourteen (14) years
of age, if the person is twenty-four ( 24 ) or more months older than the child.” Miss. Code Ann. § 97-397 (a) (Rev. 2000) provides: “Sexual penetration includes cunnilingus, fellatio, buggery or pederasty, any
penetration of the genital or anal openings of another person's body by any part of a person's body, and
insertion of any object into the genital or anal openings of another person's body.” Penetration is the very
essence of the crime of sexual battery.
2
Due to the nature of the offense, the victim's real name is not being used for purposes of
this opinion.
2
¶4.
At approximately 1:30 a.m., the child disclosed the molestation to her aunt, who confronted Jerry
Morris. Jerry Morris admitted to Ms. Morris that he had engaged in inappropriate touching of the child.
About 3:30 a.m., Ms. Morris took S. R. to her mother, who filed a complaint with the sheriff’s office.
Morris was arrested and gave a recorded confession. Morris’ confession was given in the presence of
Lt. Josh Zacaharias and Detective Jim Dunavant while in cus tody at the Desoto County Sheriff’s
Department.
ISSUES AND ANALYSIS
ISSUE I.
WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO
SUPPRESS HIS STATEMENTS GIVEN TO LAW ENFORCEMENT OFFICERS.
¶5.
When the trial court has overruled a motion to suppress a defendant's confession, we will reverse
the trial court's decision only if the trial court's ruling is manifest error or contrary to the overwhelming
weight of the evidence. McGowan v. State, 706 So.2d 231, 235 (¶ 11) (Miss.1997). In other words, this
Court will not reverse a trial court’s finding that a confession was voluntary and is admissible as long
as that trial court applied the correct principles of law and its finding was factually supported by the
evidence. Haymer v. State, 613 So.2d 837, 839 (Miss.1993).
¶6.
Morris contends that his custodial statement to law enforcement officers should not have been
admitted into evidence. He contends that the statement was not knowingly or voluntarily made because
he was under the influence of alcohol and drugs, specifically Xanax. According to Jerry Morris’
testimony, he drank “from about 9:30 that night until about 11:30 that morning” and finished the last beer
when he was arrested.
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¶7.
Intoxication does not automatically render a confession involuntary. However, the degree of
intoxication is a matter which may be considered by the court in making its determination as to whether
a statement should be suppressed. O'Halloran v. State, 731 So.2d 565, 571 (¶18) (Miss.1999). Jerry
Morris testified that he was intoxicated, and did not remember the confession or anything about the
events subsequent to his arrest. However, Lt. Zacharias and Detective Dunavant indicated that Jerry
Morris did not exhibit the symptoms of a person under the influence of drugs or alcohol. He lacked the
smell of alcohol, redness of the eyes, the dilation of his pupils, the slurring of his speech and the
appearance of confusion. In fact when given his Miranda warnings by the officers, Morris asked
questions and stated he had been through this before.
¶8.
In reaching its determination, the trial court also listened to the recording of the confession.
The trial court determined that (1) a full explanation of the Miranda rights had been given to Morris, (2)
Morris had asked questions and indicated that he had been through this process previously, (3) Morris
had indicated that he understood his Miranda rights, and had indicated his understanding by having
initialed each right on the waiver form, (4) Morris had indicated a willingness to talk with the officers,
and (5) the statements made to the officers had been coherent and had not sounded as if they were
made by someone who was impaired.
¶9.
These findings by the trial court were consistent with the audio tape of the confession, which
Morris agreed was the best evidence of the voluntariness of his confession. That tape does not suggest
that Morris was unwilling to talk, promised any leniency, threaten, that coercive measures were exerted
against him by the officers, or that he was mentally impaired.
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¶10.
When the trial judge follows the correct legal standards to determine the admissibility of the
contents of a confession, and there is substantial evidence to support the finding of voluntariness, we will
not disturb the trial judge's findings. Haymer, 613 So.2d at 840. The trial court’s decision applies the
proper law, and is supported by substantial evidence. Accordingly, this Court finds no merit to this
assignment of error.
ISSUE II.
WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION NO. 13
SUBMITTED BY THE STATE AS S-4.
¶11.
Morris contends that the Court erred in granting jury instruction 13 (S-4) because there was
no sufficient evidence in the record to grant this instruction. Our law is well-settled that jury instructions
are not given unless there is an evidentiary basis in the record for such. Turner v. State, 732 So.2d 937
(Miss.1999). The Mississippi Supreme Court has also held that instructions must be warranted by the
evidence and should not be indiscriminately granted. Mease v. State, 539 So.2d 1324, 1330 (Miss.1989).
¶12.
The instruction of which Morris complains, stated “slight penetration to the vulva or labia is
sufficient to constitute the offense of sexual battery.” Morris contends that medical testimony is a
prerequisite to granting this instruction. Morris correctly states the law of this State that all jury
instructions must be justified by the evidence. However, that evidence may take several forms, which
include medical testimony or testimony by the victim. In Jackson v. State, 452 So.2d 438 (Miss.1984),
the Mississippi Supreme Court held that slight penetration to the vulva or labia was sufficient penetration
to constitute the offense of rape. Jackson, 452 So.2d at 440. Sexual battery is no different. Johnson
v. State, 626 So.2d 631, 633 (Miss.1993).
¶13.
At trial, S. R. gave testimony that Morris digitally penetrated her private parts. S. R.’s testimony
is sufficient to establish an evidentiary basis for the act of penetration. The lack of medical testimony
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does not vitiate the claim of slight penetration of the vulva or labia. These are terms of biology, which
are accorded their ordinary usage in describing the victim’s account The Mississippi Supreme Court has
held that the "totally uncorroborated testimony of a victim is sufficient to support a guilty verdict where
that testimony is not discredited or contradicted by other evidence." Christian v. State, 456 So. 2d
729,734 (Miss.1984). The victim’s statements regarding Morris’ intrusion into her private body parts
were sufficient to warrant an instruction regarding digital penetration. Although her testimony is
contradicted by the accused, credibility is to be determine by the jury.
¶14.
It is also Morris’ contention that this additional information placed more emphasis on the
testimony of the child. The trial court instructed the jury that it was not to single out any one instruction
, but rather was duty bound to consider and apply all of them. Jurors are presumed to follow the court’s
instructions. Ragin v. State, 724 So.2d 901, 904 (¶ 13) (Miss.1998).
¶15.
Since an evidentiary basis was established via the testimony of the victim, it was not error to give
an instruction that provided an explanation of penetration. For the foregoing reasons, we find the trial
judge did not err in granting the instruction.
THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF
CONVICTION OF SEXUAL BATTERY OF A CHILD UNDER THE AGE OF (14) YEARS
OLD AND SENTENCE OF (20) YEARS IN THE CUSTODY OF MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITH (10) YEARS SUSPENDED PENDING
DEFENDANT’S FUTURE GOOD BEHAVIOR IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO DESOTO COUNTY.
¶16.
BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GIRFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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