Coy Michael Edmond v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01027-COA
COY MICHAEL EDMOND
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
05/23/2008
HON. ANDREW K. HOWORTH
LAFAYETTE COUNTY CIRCUIT COURT
JOE MORGAN
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
BENJAMIN F. CREEKMORE
CRIMINAL - FELONY
CONVICTED OF SEXUAL BATTERY OF A
CHILD OVER FOURTEEN AND UNDER
SIXTEEN YEARS OF AGE AND
SENTENCED TO THIRTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH
TWENTY YEARS SUSPENDED AND FIVE
YEARS OF POST-RELEASE SUPERVISION,
AND TO PAY $50,000 IN RESTITUTION
AFFIRMED - 09/22/2009
BEFORE LEE, P.J., ISHEE AND ROBERTS, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Coy Michael Edmond was indicted by a Lafayette County grand jury for the crime of
sexual battery of a child over fourteen and under sixteen years of age, pursuant to Mississippi
Code Annotated section 97-3-95(1)(c) (Rev. 2006). Edmond was found guilty in the Circuit
Court of Lafayette County and was sentenced to thirty years in the custody of the Mississippi
Department of Corrections, with twenty years suspended and five years of post-release
supervision. Edmond was also sentenced to pay court costs and restitution in the amount of
$50,000. Edmond appeals and asserts the following issues:
I.
Whether there was sufficient evidence presented to prove the age of the
victim.
II.
Whether the circuit court erred in allowing the trial to proceed despite
the State’s discovery violation in producing information at trial
regarding the diminished mental capacity of the victim.
III.
Whether the circuit court erred in failing to apply and follow the tender
years exception to the hearsay rule.
IV.
Whether the circuit court erred in overruling his motion for a new trial.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On February 4, 2006, a fifteen-year-old girl, Hannah,1 was baby-sitting for Edmond’s
family. Hannah’s sister, Sharon, was also at Edmond’s home on the night of the incident,
but she went home during the night. Both Hannah and her sister had previously baby-sat for
Edmond’s three small children on several other occasions. When she baby-sat for the family,
she would often stay overnight, and Edmond and his wife would take her home early the next
morning. Hannah’s parents and Edmond’s family were social friends. On the night of the
crime, Hannah’s parents and Edmond’s wife traveled to the casino with friends, but Edmond
1
The Court of Appeals declines to reveal the names of child victims of sexual battery.
In the interest of the child’s privacy, the minor’s name, as well as the names of family
members have been substituted with fictitious aliases.
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stayed behind, possibly because he was ill. Hannah testified that at some point that night,
Edmond approached her as she was resting in the recliner and the children were asleep.
Hannah testified that he talked to her, then started rubbing her breasts, and kissing her. She
testified that he then unzipped his pants and forced her head toward his private area. Hannah
testified that she performed oral sex on him, and afterwards, he informed her not to tell
anyone about what had happened. Edmond then left her and went into his bedroom. Bobby
Wilkerson testified that he and Edmond were friends before the sexual battery took place.
He testified that Edmond had suggested to him, before the crime took place, that they both
could “tag team” Hannah – or both have sex with the girl. Wilkerson told Edmond he
wanted no part in the plan. Wilkerson testified that he went to Edmond’s home the next day.
According to Wilkerson, Edmond told him that Hannah had given him a “blow job,” but they
had not had sex.
¶3.
Hannah testified that she was born on May 16, 1990, as did her mother, Dolly. Dolly
testified at trial that Hannah is actually her biological niece, but she and her husband had
adopted Hannah on April 4, 2000. Hannah’s mother testified that Hannah was enrolled in
special education classes and was currently in the eleventh grade at school. However, Dolly
explained that Hannah was reading and performing math at only a fifth or sixth grade level.
Dolly also explained that both Edmond and his wife were aware of Hannah’s mental
difficulties.
¶4.
Edmond testified on his behalf and said that he just checked on Hannah during the
night and eventually went to bed at approximately 10:30 p.m. He denied any wrongdoing
concerning Hannah. However, Edmond believed that Hannah had a crush on him.
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¶5.
A jury found Edmond guilty of sexual battery. Edmond was sentenced to serve thirty
years in the custody of the Mississippi Department of Corrections, with twenty years
suspended and five years of post-release supervision. Edmond was also sentenced to pay
court costs and restitution in the amount of $50,000. It is from this verdict that Edmond now
appeals.
DISCUSSION
I.
¶6.
Evidence of the Age of the Victim
Edmond acknowledges that the age of a person can be proven by testimony at trial,
citing Wright v. State, 856 So. 2d 341, 344 (¶9) (Miss. Ct. App. 2003). However, for
Edmond’s first assignment of error, he argues that the victim’s mother did not testify from
her own personal knowledge as to the time, date, and place of Hannah’s birth. Edmond
argues that no birth certificate was introduced at trial. Further, he argues that Hannah could
not possibly have known when she was born. Additionally, he argues the testimony of both
Hannah and Dolly regarding her age was hearsay. Edmond argues that the State failed to
prove every element of the offense, namely Hannah’s age at the time of the crime, beyond
a reasonable doubt.
¶7.
The State argues in reply that there is no merit to Edmond’s allegation. The State
contends that the testimony of the victim as to her birth date was credible, legally sufficient
evidence to show she was in fact fifteen years old at the time of the crime. The State cites
Hayes v. State, 803 So. 2d 473, 478-79 (¶12) (Miss. Ct. App. 2001) to support its contention
that the testimony of the victim regarding her date of birth is sufficient to prove her age at
the time of the crime.
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¶8.
In Rankin v. State, 963 So. 2d 1255, 1262 (¶28) (Miss. Ct. App. 2007), this Court
recognized that “[t]he State is not required to provide a birth certificate or other
documentation to show age.” In Rankin, a statutory rape case, this Court noted that both the
twelve-year-old victim and her mother testified as to the child’s date of birth and age at the
time of the crime. Id. In the present case, both the victim and her mother testified that her
date of birth was May 16, 1990. The crime occurred on February 4, 2006, which meant that
Hannah was fifteen years old at the time of the incident. While Dolly is Hannah’s adoptive
mother, Dolly is also related by blood to Hannah, as she is Hannah’s biological aunt. We
find that both Hannah and her mother, Dolly, could accurately testify as to Hannah’s actual
date of birth. This Court finds that this issue is without merit.
II.
¶9.
Discovery Violation
Edmond complains that he was not informed that the victim was developmentally
disabled until the first day of trial. Edmond argues that this information should have been
disclosed during the discovery process before trial. Edmond contends that he should have
been afforded more time to perform tests on the victim to determine her mental capacity and
whether she would be capable of testifying at trial. Edmond argues that this late disclosure
of her mental handicap violated Rule 9.04(E) of the Uniform Rules of Circuit and County
Court, thereby creating a reversible error.
¶10.
The State replies that Edmond did not ask for a continuance based on the alleged
discovery violation; therefore, this issue is procedurally barred. Further, the State argues
there was no showing that Edmond suffered actual prejudice from the State’s late disclosure
that Hannah was developmentally disabled.
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¶11.
Prior to trial, the prosecutor stated that Hannah’s mother had just informed him of
Hannah’s I.Q., which was why the prosecutor failed to disclose the information earlier.
There was no allegation or evidence in the record to indicate otherwise.
¶12.
According to the Rule 9.04(E) of the Uniform Rules of Circuit and County Court:
Both the [S]tate and the defendant have a duty to timely supplement discovery.
If, subsequent to compliance with these rules or orders pursuant thereto, a
party discovers additional material or information which is subject to
disclosure, that party shall promptly notify the other party or the other party's
attorney of the existence of such additional material, and if the additional
material or information is discovered during trial, the court shall also be
notified.
“Based on the procedure first outlined in Box v. State, 437 So. 2d 19, 23-24 (Miss. 1983),
when a trial court is faced with previously undisclosed evidence to which the defendant has
objected, it should give the defendant a reasonable opportunity to familiarize himself with
the evidence.” Bell v. State, 963 So. 2d 1124, 1133 (¶22) (Miss. 2007). It is then the
defendant’s responsibility to request a continuance if, thereafter, he believes he may be
prejudiced by his lack of opportunity to prepare for the admission of the evidence. Id. The
defendant may also request a motion for a mistrial. Id. If the defendant does not request a
continuance, he waives the issue. Id.; see also Porter v. State, 869 So. 2d 414, 420 (¶21)
(Miss. Ct. App. 2004) (finding an alleged discovery violation was waived on appeal for
failure to request a continuance). In Barnes v. State, 854 So. 2d 1, 5 (¶13) (Miss. Ct. App.
2003) (citing Kelly v. State, 778 So. 2d 149, 152 (¶¶12- 13) (Miss. Ct. App. 2000)) this Court
found no error on a claim of an alleged discovery violation because Rule 9.04(I) “requires
Barnes to have sought a continuance or mistrial, which he did not.”
¶13.
On cross-examination, Hannah testified that she understood the difference between
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telling the truth and lying, and she knew how important it was to tell the truth. She also
indicated that she understood that it was a serious criminal charge that was at issue, and she
understood the importance of the situation.
¶14.
In the case at bar, Edmond neither requested a continuance nor asked the circuit court
for a mistrial. Edmond claims that “if the Defendant had claimed undue surprise or undue
prejudice he could seek a continuance or mistrial but no such opportunity was afforded the
Appellant in this case.” However, Edmond has failed to demonstrate that he asked for a
continuance or a mistrial upon learning of Hannah’s mental handicap, and he has failed to
explain why he was unable to request a continuance or ask for a mistrial. Accordingly, this
issue is procedurally barred.
III.
¶15.
Tender Years Exception
Edmond argues that since the victim had an admitted limited mental capacity with an
I.Q. of between sixty and seventy, the circuit court should have applied the tender years
exception to the hearsay rule.
Edmond argues that the circuit court did not make a
determination of the child’s ability to perceive or remember events and failed to question her
to make a proper determination of whether she was competent to testify.
¶16.
The State argues that since Edmond failed to object to the testimony of the victim at
trial, and in fact cross-examined her, he is procedurally barred from raising this issue on
appeal. The State also points out that because Edmond cross-examined the victim, he cannot
now claim that the child was incompetent to testify, citing Rhymes v. State, 356 So. 2d 1165,
1169 (Miss. 1978).
¶17.
Under Mississippi Rule of Evidence 601, with some exceptions, “[e]very person is
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competent to be a witness . . . .” This Court has stated the following regarding the
admissibility of a minor’s testimony at trial:
Mississippi courts generally allow children of tender years to testify if
competent. Rule 601 of the Mississippi Rules of Evidence provides that every
person is competent to be a witness unless they are incompetent or otherwise
restricted. It is in the sound discretion of the trial judge to determine the
competency of a child witness. Before allowing the child to testify, the judge
should determine “that the child has the ability to perceive and remember
events, to understand and answer questions intelligently and to comprehend
and accept the importance of truthfulness.”
Tillman v. State, 947 So. 2d 993, 996 (¶13) (Miss. Ct. App. 2006) (quoting Hersick v. State,
904 So. 2d 116, 130 (¶63) (Miss. 2004)).
¶18.
In the present case, the circuit court found “no reason now to believe that the witness
should not be allowed and permitted to testify.” This was borne out by the fact that Hannah
understood the questions she was asked and formulated appropriate responses. Furthermore,
Edmond cross-examined Hannah extensively.
Edmond’s counsel questioned Hannah
regarding the importance of telling the truth, to which she responded, “You want to tell the
truth. It’s not good to lie because you could get someone else in trouble or you can get your
own self in trouble and it’s just good to tell the truth.” She also testified that she knew the
difference between the truth and a lie. In Rhymes, a child witness testified at trial, and during
both the direct and cross-examination, the child stated that he knew the difference between
telling the truth and telling a lie and the importance of telling the truth. Rhymes, 356 So. 2d
at 1168. The appellant in that case argued that the court erred in failing to determine whether
the child was competent to testify. Id. The supreme court found that the examination at trial
“indicate[d] that the child knew the meaning of telling the truth.” Id. at 1169. Additionally,
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the supreme court also found that “[t]he cross-examination by appellant waived his challenge
to the competency of such witness.” Id.
¶19.
In Williams v. State, 859 So. 2d 1046, 1049 (¶¶12-15) (Miss. Ct. App. 2003), this
Court found no error with the circuit court’s determination that an eight-year-old victim of
sexual abuse, who was in special education classes, was competent to testify at trial. In the
present case, the circuit court found no reason not to allow Hannah to testify. At trial, she
demonstrated her understanding of the importance of telling the truth and her understanding
of the seriousness of the pending charges. Notwithstanding Hannah’s diminished I.Q., there
was no indication that she was not competent to testify. We find no error with the circuit
court’s ruling that Hannah was competent to testify. This issue is without merit.
IV.
¶20.
Motion for a New Trial
Edmond argues that the main witness, the victim, had a reduced mental capacity and
became visibly confused and inconsistent regarding her version of events, including the date
and time the crime actually occurred. Edmond argues that the circuit court erred in denying
his motion for a new trial.
¶21.
A motion for a new trial is addressed to the discretion of the trial court. Bush v. State,
895 So. 2d 836, 844 (¶18) (Miss. 2005) (citation omitted). Appellate review of a trial court’s
denial of a motion for a new trial looks to the weight of the evidence. Id. (citing Herring v.
State, 691 So. 2d 948, 957 (Miss. 1997)). We will review the evidence in the light most
favorable to the verdict, and we will reverse the denial of the motion for a new trial only if
the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to
stand would sanction an unconscionable injustice.” Id.
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¶22.
In this case, the victim, Hannah, testified at trial regarding what happened on the date
of the crime. In addition, Edmond’s friend, Wilkerson, testified for the State. Wilkerson
testified that Edmond disclosed to him on the day after the crime allegedly occurred, that
Hannah had given him a “blow job.” This testimony corroborated the testimony given by
Hannah at trial. Edmond also testified at trial, giving his version of events on the date of the
crime. The jury, sitting as the finder of fact, found Edmond guilty, thereby finding Hannah’s
and Wilkerson’s testimonies to be more credible than the testimony given by Edmond. We
do not find that the verdict is contrary to weight of the evidence; therefore, the circuit court
properly denied Edmond’s motion for a new trial. This issue is without merit.
¶23. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY
OF CONVICTION OF SEXUAL BATTERY OF A CHILD OVER FOURTEEN AND
UNDER SIXTEEN YEARS OF AGE AND SENTENCE OF THIRTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH
TWENTY YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE
SUPERVISION, AND TO PAY $50,000 IN RESTITUTION IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
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