Fulgham v. State

46 So. 3d 396, 2010 Miss. App. LEXIS 572, 2010 WL 4188231
CourtCourt of Appeals of Mississippi
DecidedOctober 26, 2010
Docket2009-KA-01171-COA
StatusPublished
Cited by3 cases

This text of 46 So. 3d 396 (Fulgham 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
Fulgham v. State, 46 So. 3d 396, 2010 Miss. App. LEXIS 572, 2010 WL 4188231 (Mich. Ct. App. 2010).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. A jury in the Webster County Circuit Court found James D. Fulgham guilty of sexual battery and touching a child for lustful purposes. On appeal, Fulgham claims the circuit judge erred in (1) failing to provide sua sponte a limiting instruction when admitting a transcript of a recorded conversation and (2) limiting his defense by cutting short his cross-examination of the victim’s mother. We find no reversible error in admitting the transcript since Fulgham neither requested a limiting instruction nor points to any prejudicial inaccuracies in the transcript. Further, because Fulgham neglected to make a proffer of the testimony he sought to elicit from the victim’s mother, this issue was not preserved for appellate review. Therefore, we affirm.

FACTS

¶2. C.W. 1 was fourteen years old in December 2009 when he spent several nights at his grandmother’s 2 Webster County residence. On December 19, 2008, while C.W. was watching television at his grandmother’s house, Fulgham, 3 who was in his mid-fifties at the time, entered the room and sat next to C.W. on a couch. According to C.W., he became “uncomfortable” when Fulgham moved closer to him and rubbed C.W.’s head and stomach. C.W. recalled that Fulgham told him he loved him and grabbed C.W.’s hand and placed it on his penis. Fulgham then opened C.W.’s mouth and forced it down onto his penis. C.W. testified that he pulled away and told Fulgham to leave him alone.

¶ 3. Early the next morning, C.W. called his father several times asking him to pick him up. When his father arrived at C.W.’s grandmother’s house at 7:00 a.m., he found C.W. standing outside in the cold with his bag packed ready to leave.

¶4. At trial, C.W.’s mother testified about a later phone conversation with Fulgham, during which Fulgham claimed C.W. had unzipped Fulgham’s pants and performed fellatio on him. Fulgham main *398 tained that C.W. then began masturbating in his presence. Some time later, Fulg-ham called C.W.’s mother back and requested to speak to C.W. She asked why Fulgham had allowed this to happen, and Fulgham allegedly told her, “[h]e just wanted to see how far [C.W.] would go.” In June 2009, C.W.’s mother recorded a telephone conversation with Fulgham. At trial, the State offered the recording into evidence and played it for the jury during its case-in-chief.

¶ 5. Fulgham testified in his own defense and blamed C.W. for initiating the sexual encounter. He testified that while he was sleeping on the couch C.W. pounced on him, pulled down Fulgham’s pajamas, and grabbed Fulgham’s penis. Fulgham claimed C.W. then began masturbating. Fulgham contended this happened in the span of “possibly ten seconds.” Fulgham explained that when he came to his senses, he immediately called C.W.’s mother and voiced concerns that C.W.’s father had been molesting the young boy. Fulgham denied gratuitously touching C.W. in any manner.

¶ 6. The jury convicted Fulgham on both counts. And the circuit judge sentenced Fulgham to twenty years’ imprisonment for sexual-battery count and ten years’ imprisonment on the unlawful-touching-for-lustful-purposes charge, with the sentences to run concurrently. The circuit judge denied Fulgham’s post-trial motion for judgment notwithstanding the verdict or, alternatively, a new trial. Fulgham now appeals.

DISCUSSION

I. Admission of the Transcript

¶ 7. At trial, the State offered an audiotape and transcript that it claimed depicted a June 2009 telephone conversation between Fulgham and C.W.’s mother. Fulgham objected to the admission of both the tape and transcript. He argued neither the tape nor transcript memorialized a conversation between C.W.’s mother and grandmother that took place earlier during the phone call. C.W.’s mother explained the tape contained her entire conversation with Fulgham and that she did not record her earlier conversation with C.W.’s grandmother. The circuit court admitted the tape over Fulgham’s objection.

A. Limiting Instruction

¶ 8. At trial Fulgham did not request a limiting instruction regarding the use of the transcript. Now on appeal, he claims error in the circuit court’s failure to instruct the jury sua sponte that the audio recording, not the transcript, is the primary evidence of the conversation. Fulg-ham does not contest admission of the recording.

¶ 9. Though he claims reversible error in the circuit court’s failure to provide the unrequested cautionary instruction, he fails to point to any inaccuracies in the transcript. Nor does he assert any resulting prejudice. Further, at trial, he discovered what he deemed to be an error in the transcript, which the circuit judge corrected to Fulgham’s satisfaction. Then, Fulg-ham used the transcript, not the recording, to cross-examine C.W.’s mother.

¶ 10. The cases he cites in his appellate brief do not address whether a cautionary instruction concerning the permissible use of the transcript must be requested by counsel or raised sua sponte by the court. Coleman v. State, 697 So.2d 777, 784-85 (Miss.1997) (approved cautioning jury that tape is primary evidence and advising the jury that transcript is merely for jury’s convenience in following tape); Dye v. State, 498 So.2d 343, 344 (Miss.1986) (approved limiting instruction that tape is primary evidence and transcript is furnished *399 for convenience in following tape); Denson v. State, 858 So.2d 209, 211-12 (¶ ¶ 9-12) (Miss.Ct.App.2003) (permitted use of transcript where trial judge instructed jury that tape is primary evidence and any conflicts between the tape and transcript should favor recording).

¶ 11. Though Mississippi appellate courts have approved the use of transcripts when limiting instructions are given, neither the supreme court nor this court have addressed whether a trial court must provide, sua sponte, a cautionary instruction. The supreme court in Coleman and Dye favorably recognized the United States Fifth Circuit Court of Appeals’ decision in United States v. Onori, 535 F.2d 938, 946-49 (5th Cir.1976), which analyzed procedures for dealing with alleged inaccuracies in transcripts of recordings. Coleman, 697 So.2d at 785; Dye, 498 So.2d at 344. Thus, we too turn to Onori for guidance.

B. Onori

¶ 12. In addressing various methods for handling contested transcripts, the Fifth Circuit reasoned that district judges “need not necessarily listen to the tapes or pass on the accuracy of any transcript.” Onori, 535 F.2d at 948. The Onori court explained if no “official transcript” can be developed, a transcript may be prepared containing both versions of disputed portions. Id. at 948-49 (citing United States v. Carson,

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46 So. 3d 396, 2010 Miss. App. LEXIS 572, 2010 WL 4188231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fulgham-v-state-missctapp-2010.