Graves v. State

216 So. 3d 1152, 2016 Miss. LEXIS 150
CourtMississippi Supreme Court
DecidedApril 14, 2016
DocketNo. 2014-KA-00464-SCT
StatusPublished
Cited by20 cases

This text of 216 So. 3d 1152 (Graves 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
Graves v. State, 216 So. 3d 1152, 2016 Miss. LEXIS 150 (Mich. 2016).

Opinion

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. The motion for rehearing is granted. The previous opinion of this Court is withdrawn, and the following opinion is substituted therefor. Marshall Graves was convicted of fondling (two counts) and sexual battery (one count) and was sentenced to terms of fifteen years for each count of fondling and life as to one count of sexual battery, all to be served concurrently. Graves’s appellate counsel filed a brief in compliance with Lindsey v. State, 939 So.2d 743 (Miss.2005), certifying to this Court that the record presented no argua[1155]*1155ble issues for appeal. Graves has filed a pro se brief, asserting numerous errors.

¶ 2. After a thorough review of Graves’s pro se brief and the record, this Court finds that Graves’s appeal presents no arguable issues, and no supplemental briefing is necessary. Therefore, we affirm Graves’s convictions and sentences.

STATEMENT OF FACTS AND PROCEEDINGS BELOW

¶3. Ten-year-old G.W. lived with her parents and younger brother in The Reserve Apartments in Hattiesburg. During the summer of 2010, Mr. W. invited his friend Marshall Graves to stay with them because Graves was “down on his luck.” One evening, Mr. and Mrs. W. went to dinner for their anniversary, and Graves agreed to watch G.W. and her younger brother. After her parents left, G.W. and her brother were playing video games in the living room when Graves called G.W. into her parents’ bedroom. G.W. testified that:

Marshall was playing on the computer in my mom and dad’s bedroom. He called me into the bedroom, and I walked in there and stood by the door. He told me come here, so I walked closer. And he told me that I was smart and I was beautiful and he loved me and he wanted to show me how much he loved me.... And he gave me a hug and started kissing me with his tongue in my mouth and started grabbing my butt and my boobs and then reached his hand down the front of my pants.... He told me that I couldn’t tell anybody or he would get in trouble and he would tell on my daddy ... [for] the bad things that he did.... I was shocked and scared.

G.W. testified that she did not tell her parents or her brother what had happened. Her brother testified that he did recall G.W. crying when she came back in the living room. G.W. testified that she tried to limit the time she spent around Marshall and started spending more time with her friends away from her home.

¶ 4. G.W. testified that the second time Graves sexually assaulted her was approximately one week later. G.W. testified that, one night when she was in bed, Marshall came in her room and “started kissing me again on the lips with his tongue. And then he told me to get into some looser pajamas.” G.W. testified that her brother was in the living room watching a movie, her father was sitting on the balcony, and her mother was asleep. G.W. testified that Graves then led her into her bathroom.

He started kissing me again and touching me. He was grabbing my butt and my boobs and then pulled my pants down and laid me onto the ground and pulled my underwear down and unbuckled his pants and started rubbing my private part with his private part.

G.W. testified that Graves promised to give her money and a cell phone as long as she kept quiet. G.W. further testified that, when she was interviewed by Cheryl Caldwell, a Child Advocacy Center counselor, she informed Caldwell that Graves had rubbed her vagina with his hand and had inserted his finger inside her.

¶ 5. The day after this second incident, G.W. told a friend of hers who lived in the same apartment complex that Graves was touching her in inappropriate ways. G.W.’s friend then told her mother, who contacted the authorities. G.W.’s parents were then contacted by the police and told of G.W.’s accusations against Graves.

¶ 6. Graves ultimately was indicted for two counts of sexual battery1 and two [1156]*1156counts of fondling. After a two-day trial, a Lamar County jury found Graves guilty of two counts of fondling and one count of sexual battery. Graves was sentenced as a habitual offender2 to concurrent, fifteen-year sentences for the fondling convictions and a concurrent life sentence for the sexual-battery conviction. Graves timely filed his appeal.

STATEMENT OF THE ISSUES

¶ 7. Graves raises the following issues in his pro se brief, which have been restated for clarity:

I. Whether Graves’s indictment was defective.
II. Whether Graves’s counsel, Shirlee Baldwin, provided ineffective assistance.
III. Whether the trial court erred in allowing evidence of Graves’s prior bad acts to be admitted at trial.
IV. Whether the trial court erred in allowing G.W.’s father to testify at trial.
V. Whether the trial court erred in allowing statements to be introduced at trial pursuant to the “tender years” exception.
VI. Whether the evidence presented was sufficient to sustain a conviction.
VII. Whether the various witnesses’ statements were conflicting such that the jury’s verdict should be called into question.
VIII. Whether the verdict was against the overwhelming weight of the evidence.
IX. Whether Graves was denied a fair trial due to prosecutorial misconduct.
X. Whether the trial court abused its discretion in denying Graves’s motion to sever the indictment.
XI. Whether the trial court abused its discretion in denying Graves’s objection regarding the State’s reference to a jury instruction during closing arguments.
XII. Whether the cumulative errors warrant a reversal.

ANALYSIS

¶8. In Lindsey, this Court adopted a procedure “to govern cases where appellate counsel represents an indigent criminal defendant and does not believe his or her client’s case presents any arguable issues on appeal.” Lindsey, 939 So.2d at 748. Counsel is required to “file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)—(4),(7).” Id. In the brief,

counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.

[1157]*1157Id. Counsel is then required to forward a copy of the brief to the client, informing the client that counsel was unable to discover any arguable issues in the record, and advising the client that he or she has a right to file a pro se brief. Id. If the pro se

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Bluebook (online)
216 So. 3d 1152, 2016 Miss. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graves-v-state-miss-2016.