David Johnson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01010-COA
DAVID JOHNSON
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
05/22/2008
HON. ROBERT P. CHAMBERLIN
DESOTO COUNTY CIRCUIT COURT
W. DANIEL HINCHCLIFF
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
JOHN W. CHAMPION
CRIMINAL - FELONY
CONVICTED OF FONDLING AND
SENTENCED TO TEN YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS,
FOLLOWED BY FIVE YEARS OF
POST-RELEASE SUPERVISION, AND TO
PAY A $1,000 FINE (SUSPENDED), $1,000
TO THE MISSISSIPPI CHILDREN'S TRUST
FUND, AND $100 TO THE MISSISSIPPI
CRIME VICTIM'S COMPENSATION FUND,
AND TO REGISTER AS A SEX OFFENDER
AFFIRMED - 10/06/2009
BEFORE MYERS, P.J., ISHEE AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.
David Johnson was convicted in the DeSoto County Circuit Court of fondling a child
under the age of sixteen. Johnson now appeals his conviction arguing that one of the jury
instructions impermissibly shifted the burden of proof from the State to Johnson, thereby
denying him a fair trial. After considering his arguments, the record before us, and the
relevant case law, we find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On October 3, 2007, L.J.,1 a twelve-year-old fifth grade student, rode the school bus
home to her family’s apartment in Olive Branch, Mississippi. L.J. testified that while she
was on the stairs leading to her apartment, Johnson, her mother’s thirty-two-year-old halfbrother, handed her $6 and fondled her by reaching between her legs and grabbing her with
his hands.
¶3.
L.J. went inside her apartment and started crying. L.J. testified that Johnson then
walked into the apartment and “started messing with [her] like he was going to grab [her]
again.” According to L.J., Johnson started reaching for her breasts. L.J. responded by
stabbing Johnson’s hand with a comb and telling him to leave her alone. L.J. testified that
on a prior occasion Johnson made advances to her, which she interpreted to mean that “he
wanted to have sex with [her].” L.J.’s brother testified that he later confronted Johnson about
L.J.’s complaints, and Johnson said: “I didn’t mean to touch your sister.” L.J.’s brother then
hit Johnson six or seven times. A nearby store owner called the police, and the responding
officer arrested Johnson for public intoxication.
¶4.
At trial, Johnson took the stand and denied grabbing L.J. between her legs or reaching
1
To protect the anonymity of the minor, we use initials to represent the identity of
the victim.
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for her breasts. He also denied making previous sexual advances to her. Following a oneday trial, the jury found Johnson guilty of the crime of fondling a female child under sixteen
years of age in violation of Mississippi Code Annotated section 97-5-23 (Rev. 2006). The
trial judge sentenced Johnson to serve ten years in the Mississippi Department of Corrections
followed by five years of post-release supervision.
STANDARD OF REVIEW
¶5.
“In determining whether error lies in the granting or refusal of various instructions,
the instructions actually given must be read as a whole. When so read, if the instructions
fairly announce the law of the case and create no injustice, no reversible error will be found.”
Johnson v. State, 823 So. 2d 582, 584 (¶4) (Miss. Ct. App. 2002) (citation omitted).
DISCUSSION
The Jury Instruction
¶6.
Johnson claims he was denied a fair trial because jury instruction number five
impermissively shifted the burden of proof from the State to Johnson, thereby requiring him
to prove his innocence. He claims this same instruction also confused the jurors.
¶7.
The complained of jury instruction stated: “The Court instructs you that it is just as
much your duty under the law and upon your oaths as jurors to free an innocent person by
your verdict of not guilty as it is for you to convict a guilty person.”
¶8.
Before we reach the merits of Johnson’s argument, we must point out that Johnson did
not object to instruction number five when it was submitted to the jury, and the “[f]ailure to
object to an instruction at trial bars that issue on appeal.” Missala Marine Servs., Inc. v.
Odom, 861 So. 2d 290, 296 (¶25) (Miss. 2003) (citing Jones v. State, 776 So. 2d 643, 653
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(¶35) (Miss. 2000)). “If no contemporaneous objection is made at trial, a party must rely on
the plain-error rule to raise the assignment of error on appeal.” Baskin v. State, 991 So. 2d
179, 181 (¶9) (Miss. Ct. App. 2008) (citations omitted).
¶9.
Although Johnson acknowledges his argument about the jury instruction is
procedurally barred, he claims the trial judge’s decision to submit such an instruction was
so erroneous that he was denied a fair trial. Johnson does not specifically argue plain error,
however, we will review his claim under this doctrine. “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)).
¶10.
Johnson argues that, in light of the complained of instruction, a jury, which is not
completely assured of his innocence, might convict him. Thus, he contends the instruction
impermissibly shifted the burden of proof from the State to him. In addressing Johnson’s
argument, we are reminded that “[j]ury instructions are to be read together and taken as a
whole with no one instruction taken out of context.” Poole v. State, 826 So. 2d 1222, 1230
(¶27) (Miss. 2002) (quoting Smith v. State, 802 So. 2d 82, 88 (¶20) (Miss. 2001)). In
considering the other relevant jury instructions, we point out that instruction number seven
correctly stated: “the defendant(s) at the start of the trial is presumed to be innocent. The
defendant is not required to prove his/her innocence or to put in any evidence at all upon the
subject.” Also, instruction number eight informed the jurors that “[y]ou are to presume the
defendant is not guilty unless and until the defendant is proven guilty beyond a reasonable
doubt.” We disagree with Johnson’s claim that jury instruction number five impermissibly
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shifted the burden of proof to the defendant. Furthermore, when instruction number five is
considered in combination with instructions seven and eight, we find the defendant’s
presumption of innocence and the State’s burden of proof were fairly and accurately
announced and any potential for juror confusion was removed.
¶11.
We do not find the inclusion of jury instruction number five created any injustice,
much less manifest injustice. Therefore, we find the trial court did not commit plain error.
¶12.
For the reasons stated above, we affirm.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF
CONVICTION OF FONDLING AND SENTENCE OF TEN YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY
A $1,000 FINE (SUSPENDED), $1,000 TO THE MISSISSIPPI CHILDREN’S TRUST
FUND, AND $100 TO THE MISSISSIPPI CRIME VICTIM’S COMPENSATION
FUND, AND TO REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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