Davis v. State

933 So. 2d 1014, 2006 WL 1984729
CourtCourt of Appeals of Mississippi
DecidedJuly 18, 2006
Docket2005-KA-00604-COA
StatusPublished
Cited by2 cases

This text of 933 So. 2d 1014 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. State, 933 So. 2d 1014, 2006 WL 1984729 (Mich. Ct. App. 2006).

Opinion

933 So.2d 1014 (2006)

Todd D. DAVIS, Appellant
v.
STATE of Mississippi, Appellee.

No. 2005-KA-00604-COA.

Court of Appeals of Mississippi.

July 18, 2006.

*1016 Antwayn Lavell Patrick, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before MYERS, P.J., IRVING and ROBERTS, JJ.

ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. On February 24, 2005, a jury sitting before the Holmes County Circuit Court found Todd Davis guilty of three counts of sexual battery under Section 97-3-95(2) of the Mississippi Code. Post-trial, Davis filed an unsuccessful motion for judgment notwithstanding the verdict or for a new trial. Aggrieved, Davis appeals and raises four issues, listed verbatim:

I. WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?
II. WHETHER THE DEFENSE COUNSEL REPRESENTATION WAS SO INADEQUATE AND INEFFECTIVE WHEN HE FAILED TO CROSS-EXAMINE THE VICTIM, SUBPOENA RECORDS WHICH DETERMINED THAT THE VICTIM WAS NOT MOLESTED AND SUBPOENA THE WITNESS WHICH WOULD HAVE SHOWED THE MOTHER WHO REPORTED THE MOLESTATION BIAS TOWARDS THE APPELLANT?
III. WETHER THE STATE CLOSING ARGUMENTS WERE SO PREJUDICED WHEN HE SAID THAT THIS CASE IS ALL ABOUT HOMOSEXUALITY AND EVEN O.J. ATTEMPTED TO LOOK FOR THE PURPORTED REAL KILLER?
IV. THE CUMULATIVE ERRORS IN THIS CASE DENIED TODD DAVIS A RIGHT TO A FAIR TRIAL.

Finding no error in Davis's convictions, we affirm. However, for inconsistencies in Davis's sentencing, which we will discuss in detail below, we remand this matter to the circuit court for clarification of Davis's sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. Todd Davis and Josha Fields had a four year old son, Jack.[1] Jack lived with Josha during the week and spent weekends with Davis. For approximately three weeks in February, Jack told Josha that his "behind was itching." Josha assumed that Jack was not cleaning himself properly, as Jack seemed to feel better after Josha bathed him. However, on Wednesday, February 25, 2004, Josha examined Jack and found what to her appeared as indications that Jack had been molested. Josha asked Jack if anyone had been touching him. First, Jack implicated his two-year-old cousin. Josha thought Jack was not being truthful with her so she asked him again. Jack then told his mother that Davis "sucked on my thing like it was a bottle." Jack also told Josha that Davis "put his fingers in my bootie" and that Davis "stuck his thing in his behind."

¶ 3. Alarmed, Josha took Jack to see her mother, Sheila Murray. At Josha's request, Jack told his grandmother exactly what he told Josha. Sheila and Josha took Jack to the emergency room at the Montfort Jones Hospital in Kosciusko, Mississippi.

*1017 ¶ 4. That same day, Glenda Nail, a social worker employed by the Attala County Department of Human Services, received a telephone call from the Montfort Jones emergency room. The hospital requested that a social worker come to the hospital and interview Jack. Nail responded and took Ruth Eden, a fellow social worker, and Jamie Burks, a student intern. Nail and Eden interviewed Jack. Jack told them Davis "stuck his fingers in his bootie." Eden asked Jack if anything else happened. Jack told them that Davis "put his thing in his mouth." When asked to identify his "thing," Jack "grabbed his own penis." Jack told them that Davis "sucked on it like it was a bottle."

¶ 5. Jack's allegations notwithstanding, the emergency room physician found no conclusive indications of trauma and no conclusive indications of molestation. Josha was unsatisfied with the emergency room physician's conclusions. Josha was especially dissatisfied that the emergency room physician did not interview Jack. To that end, Josha sought a second opinion.

¶ 6. Apparently, Josha took Jack to the Attala County Health Department because Dr. Betty Turner testified that, on Thursday, February 26, 2004, the health department contacted her and requested that she examine Jack for possible molestation. Dr. Turner, a pediatrician at the Kosciusko Medical Center, examined Jack and found that the "skin around [Jack's] rectum was red and irritated and ... [Jack] had several fairly fresh lacerations in the rectum." According to Dr. Turner, those lacerations were consistent with sexual penetration. Dr. Turner's opinion was that Jack had been molested or sodomized, but she found no DNA evidence. Jack also indicated that Davis touched him inappropriately.

¶ 7. On April 28, 2004, the Holmes County Grand Jury returned an indictment against Davis and charged him with three counts of sexual battery under Section 97-3-95(2) of the Mississippi Code. An order dated May 26, 2004, reflects that Davis pled not guilty to the charges. Davis was tried on February 24, 2005. Before the prosecution presented any testimony before the jury, the circuit court conducted a hearing to determine whether statements that Jack made to other witnesses would be admissible under M.R.E. 803(25), the "tender years" exception. The circuit court heard testimony from Josha, Sheila Murray, Glenda Nail, and Deputy Sam Chambers. Afterwards, the circuit court held:

The Court, after hearing testimony of the witnesses out of the presence of the jury, finds that, due to the child's age at a time of the alleged incident, the child's lack of knowledge of sexual behavior and lack of experience at age four, and the contents of the statements, in that the child described the sexual misconduct that was alleged to have been perpetrated upon him.... This Court, therefore, finds that because of the timing of the statement, the detailed contents of the statement, and the circumstances surrounding the statement, that the child, at the time of this incident, was of tender years, and that the statements allegedly made to the witnesses provide additional reliability and they are therefore admissible pursuant to Rule 803(25) of the Mississippi Rules of Evidence.

¶ 8. The circuit court then considered whether Jack was competent to testify. Jack was five at the time of trial. The circuit court questioned Jack and allowed the prosecution and Davis's attorney an opportunity to question Jack. Afterwards, the circuit court found that Jack was competent to testify.

¶ 9. The prosecution called Jack as its first witness. The prosecution's examination proceeded as follows:

*1018 Q. [Jack], I just have a couple of questions for you. Okay? Do you know Todd Davis?
A. Yes.
Q. Who is Todd Davis?
A. My daddy.
Q. Okay. Did Todd Davis do something to you?
A. Yes.
Q. Did you tell your mother about that?
A. Yes.
Q. Did you tell her the truth?
A. Yes.

Davis waived cross-examination of Jack.

¶ 10. The prosecution then presented testimony from Josha, Sheila Murray, Dr. Turner, and Glenda Nail. They each testified that, according to Jack, Davis touched Jack inappropriately. Additionally, Dr. Turner testified that she found physical indications that Jack had been molested. However, Dr. Turner found no evidence that specifically pointed to Davis.

¶ 11. Davis took the stand and testified that he did not molest Jack. Davis claimed that, the weekend of February 21-22, Jack spent the majority of that weekend with Davis's sister, Sherrell Riley.

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Related

Jefferson v. State
958 So. 2d 1276 (Court of Appeals of Mississippi, 2007)
Issac v. State
968 So. 2d 951 (Court of Appeals of Mississippi, 2007)

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Bluebook (online)
933 So. 2d 1014, 2006 WL 1984729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-missctapp-2006.