Cole v. State

126 So. 3d 880, 2013 WL 5648760, 2013 Miss. LEXIS 544
CourtMississippi Supreme Court
DecidedOctober 17, 2013
DocketNo. 2012-KA-00566-SCT
StatusPublished
Cited by23 cases

This text of 126 So. 3d 880 (Cole v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cole v. State, 126 So. 3d 880, 2013 WL 5648760, 2013 Miss. LEXIS 544 (Mich. 2013).

Opinions

DICKINSON, Presiding Justice,

for the Court:

¶ 1. Following his convictions for one count of sexual battery and three counts of gratification of lust, Joe Earl Cole argues on appeal that the trial court erroneously admitted hearsay and evidence of alleged prior unindicted acts of sexual misconduct with two of his minor granddaughters. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Joe Earl Cole’s grandchildren regularly visited his home in Rankin County. Granddaughters H.M., M.M., K.H., M.H., and E.C. all alleged that their grandfather touched them inappropriately. The Rankin County grand jury indicted Cole for one count of sexual battery, involving the [882]*882digital penetration of H.M., and three counts of gratification of lust for touching the vaginas of H.M., K.H., and E.C. The State did not seek an indictment for any conduct involving M.M. and M.H.

¶ 3. Prior to trial, Cole’s counsel filed a motion in limine to exclude taped forensic interviews of the alleged victims as inadmissible hearsay and — because they contained references to uncharged allegations involving a different victim — as improper character evidence.

¶ 4. On the day of trial, the judge held a hearing on Cole’s motion and determined that the tender-years exception to the rule against hearsay would overcome Cole’s hearsay objection to the taped interviews. Cole’s counsel also argued that admission of evidence of Cole’s prior, unindicted acts of alleged sexual misconduct would violate Rule 404(b) of the Mississippi Rules of Evidence, which prohibits the use of other crimes or wrongful conduct — often referred to as “prior bad acts” — to prove the defendant’s character, and to show that, when the defendant committed the acts for which he was indicted, he was acting in conformity with that character. Using the same argument, Cole also objected to any live testimony from alleged victim M.M., for whom no indictment was filed.

¶ 5. In response, the State argued that evidence of Cole’s prior bad acts was admissible through Mississippi Rules of Evidence 404(b) and 403, and under this Court’s opinion in Gore v. State.1

¶ 6. At the conclusion of the hearing, the trial judge found that the taped forensic interviews fell within the tender-years hearsay exception, but withheld ruling on the Rule 404(b) objection. Then, before opening statements, the trial judge found that the live testimony of H.M., M.M., K.H., E.C, and Amanda Haller — mother of K.H. and M.H. — regarding unindicted acts was admissible for all of the purposes argued by the State, and that the evidence was not substantially more prejudicial than probative.

¶ 7. At trial, all of Cole’s granddaughters except M.H. testified, alleging that most of the touching occurred when playing games, such as “find Kay Kay’s head” and “horses” with their grandfather. When playing “find Kay Kay’s head,” the children would get under the covers on the bed, turn out the lights, and then try to find K.H.’s head. K.H., who was ten years old at the time of the trial, testified that Cole had touched her “cookie,” another name for her vagina, on more than one occasion. She stated that, while playing this game, Cole touched her under her pants but on top of her underwear.

¶ 8. To play “horses,” they would pretend that the closet was a stable and one of the grandchildren was the hay in the stable for grandpa Joe (the horse) to eat. H.M. testified that while they were in the closet playing this game, Cole had inserted his finger into her vagina. She testified Cole had touched her several times either on top of or under her clothes. She also testified that Cole touched her while she was lying in a bed with several other people, including her grandmother. She testified that Cole had touched K.H. at least five times that she could remember.

¶ 9. E.C. testified that Cole had touched her more than once, including instances while playing “find Kay Kay’s head” and again when sitting on the couch watching TV. E.C. was eleven years old at the time of the trial.

¶ 10. M.M., age nine at the time of trial, testified that Cole had touched her private parts while they were sitting on the couch [883]*883watching television with her grandmother. Cole also would come into M.M.’s bedroom while she was sleeping and touch her, she said. When Cole touched her, it was always over her clothes, she testified. She also stated that, when they would play “find Kay Kay’s head,” Cole would touch K.H. the most.

¶ 11. M.H., who was three years old at the time, did not testify at trial. Her mother, Amanda, testified that she had informed M.H. about “bad” and “good” touches while changing her diaper, at which point M.H. told her that Grandpa Joe had touched her there. The State introduced into evidence taped forensic interviews of all five granddaughters. The interviewers testified as well.

¶ 12. The trial judge instructed the jury that any acts involving M.M. and M.H. were unindicted acts, and were admissible only to show “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” A jury found Cole guilty of all counts. Cole received sentences of twenty years for sexual battery and fifteen years for each count of gratification of lust, to run concurrently. Cole appealed, arguing that the trial judge committed reversible error by allowing evidence of the acts involving M.M. • and M.H., for which he was not indicted.

STANDARD OF REVIEW

¶ 13. We must employ two standards of review while reviewing this case. In determining whether a trial judge made an erroneous ruling on the admission or suppression of evidence, we employ an abuse-of-discretion standard.2 But even where we find error, we do not reverse unless “the error adversely affects a substantial right of the party.”3 Stated another way, trial judges enjoy “a great deal of discretion as to the relevancy and admissibility of evidence. Unless the judge abuses his discretion so as to be prejudicial to the accused, the Court will not reverse [the] ruling.”4

ANALYSIS

¶ 14. At trial, the State offered evidence, through live testimony and taped forensic interviews, of instances of Cole’s sexual misconduct involving different victims — M.M. and M.H. — than those alleged in the indictment. Cole’s attorney lodged two objections to the evidence, arguing first that the taped forensic interviews were hearsay, and also that the evidence of prior bad acts violated Rule 404(b), as inappropriate use of character evidence.

¶ 15. The trial judge conducted an extensive and thorough analysis of the children’s conduct, demeanor, and lack of motive to lie in the taped interviews, and he found the evidence admissible, holding that the tender-years hearsay exception5 applied, and that the prior bad acts were admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident.6 He also found that the evidence was not substantially more prejudicial than probative as required under Mississippi Rule of Evidence 403.

¶ 16. On appeal, Cole argues that the trial court erred by admitting this evidence under Rules 404(b) and 403, because no Rule 404(b) purpose was relevant to an [884]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dwayne Leland Wilson v. State of Mississippi
Mississippi Supreme Court, 2022
Darron Lashaun Thames v. State of Mississippi
Mississippi Supreme Court, 2021
Cole v. Hall
S.D. Mississippi, 2019
Wade Hampton Blackwell, Jr. v. State of Mississippi
273 So. 3d 801 (Court of Appeals of Mississippi, 2019)
Jason Cunningham McGrath v. State of Mississippi
271 So. 3d 437 (Mississippi Supreme Court, 2019)
Robert Patrick Terrell v. State of Mississippi
237 So. 3d 717 (Mississippi Supreme Court, 2018)
James L. Johnson, Jr. v. State of Mississippi
204 So. 3d 763 (Mississippi Supreme Court, 2016)
Gregory Lorenzo Pritchett v. State of Mississippi
201 So. 3d 1095 (Court of Appeals of Mississippi, 2016)
Marion O' Bryan Strickland v. State of Mississippi
220 So. 3d 1027 (Court of Appeals of Mississippi, 2016)
Patrick Higgins v. State of Mississippi
202 So. 3d 1274 (Court of Appeals of Mississippi, 2016)
Steven Lee Boggs v. State of Mississippi
188 So. 3d 515 (Mississippi Supreme Court, 2016)
David Dickerson v. State of Mississippi
Mississippi Supreme Court, 2015
Dickerson v. State
175 So. 3d 8 (Mississippi Supreme Court, 2015)
Cole v. Mississippi
134 S. Ct. 1901 (Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
126 So. 3d 880, 2013 WL 5648760, 2013 Miss. LEXIS 544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-state-miss-2013.