Parker v. State

825 So. 2d 59, 2002 WL 1969844
CourtCourt of Appeals of Mississippi
DecidedAugust 27, 2002
Docket2001-KA-00697-COA
StatusPublished
Cited by5 cases

This text of 825 So. 2d 59 (Parker 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
Parker v. State, 825 So. 2d 59, 2002 WL 1969844 (Mich. Ct. App. 2002).

Opinion

825 So.2d 59 (2002)

Robert Lee PARKER, Sr., Appellant
v.
STATE of Mississippi, Appellee.

No. 2001-KA-00697-COA.

Court of Appeals of Mississippi.

August 27, 2002.

*61 Felicia Dunn Burkes, Gulfport, for appellant.

Office Of The Attorney General by W. Glenn Watts, for appellee.

Before SOUTHWICK, P.J., BRIDGES, AND BRANTLEY, JJ.

BRIDGES, J., for the Court.

¶ 1. Robert Lee Parker, Sr., was charged in a three count indictment in November of 1998. Count I charged Parker with sexual battery of CM, a child under the age of fourteen and Counts II and III charged Parker with touching a child for lustful purposes. Following a jury trial, Parker was found guilty of all counts and sentenced to fifteen years for each count, to be served concurrently in the Mississippi Department of Corrections, for a total of fifteen years. Aggrieved, Parked perfected his appeal and comes before this Court citing five issues for review:

I. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW A CONTEMPORANEOUS REPORT OF ABUSE TO THAT OF THE DEFENDANT?

II. DID THE TRIAL COURT ERR IN DENYING DEFENSE COUNSEL CHALLENGES FOR CAUSE FOR VENIRE MEMBERS 1-7 AND 2-10?

III. DID THE TRIAL COURT ERR IN REFUSING ALL PROPOSED DEFENSE JURY INSTRUCTIONS, SPECIFICALLY D-5 AND D-6?

IV. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTOR'S NEGATIVE STATEMENT DURING CLOSING REMARKS?

V. DID THE TRIAL COURT ERR IN DENYING A DIRECTED VERDICT AS *62 THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 2. Finding no error, we affirm the conviction and sentence of the lower court.

Statement of the Facts

¶ 3. Parker resided at Cypress Lane Apartments in Gulfport, Mississippi, where CM, the ten-year-old victim, also lived with her family. Parker and CM befriended one another and would frequently visit together at the swimming pool area of the apartment complex. As their relationship continued, CM would visit Parker's apartment to borrow videos. Occasionally, CM would accompany Parker and his wife on outings in their red Mustang convertible to places like Marine Life and McDonald's. On one occasion, when Parker's grandchildren were visiting, CM spent the night in the Parkers's home.

¶ 4. CM told the courtesy police officer at the apartment complex, another friend of hers, that Parker did something to her. The courtesy officer contacted officers from the Gulfport Police Department who came to investigate the case. CM gave her statement to the police, alleging that Parker had committed sexual acts on her.

¶ 5. At trial, CM testified that sexual incidents happened with Parker "about three or four times." She stated that the first incident happened downstairs in Parker's apartment when CM awoke from a nap and Parker was rubbing her body on the outside of her clothes with his hands. She further testified that he put his hands under her shirt to touch her breasts. The second incident also occurred downstairs at Parker's apartment when Parker performed oral sex on CM and digitally penetrated her. The third incident occurred upstairs in Parker's bedroom when he played a pornographic videotape in the VCR for CM to watch. Additionally, Parker showed CM vibrators and other pornographic literature. The fourth incident included Parker touching CM's buttocks on the outside of her clothes. Another incident occurred at the swimming pool located in the apartment complex when Parker attempted to remove CM's swimsuit but was unsuccessful. CM also testified that Parker threatened her and verbally assaulted her.

¶ 6. CM's testimony was impeached by defense counsel's use of CM's statement to the police. Mrs. Parker testified that her husband was not in the State of Mississippi during the time the alleged events occurred. Parker testified in his own defense and emphatically denied that any sexual incidents ever occurred between him and CM.

Legal Analysis

I. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW A CONTEMPORANEOUS REPORT OF ABUSE TO THAT OF THE DEFENDANT?

¶ 7. Parker argues that he should have been allowed to submit evidence of a contemporaneous report of sexual abuse by CM alleged against a different man. Parker relies on Mississippi Rules of Evidence 412(b)(2)(C) as authority. The State rebuts that although the second alleged abuse was disclosed at the same time as the allegation against Parker, the second report was about a different man in a different apartment on a different day and therefore Rule 412 is inapplicable.

¶ 8. The record indicates that CM spoke of two different men, Parker and Allen Gray Sheely, Sr., who had sexual encounters with her. CM said that Parker's abuse occurred in his apartment and Sheely's abuse occurred in his apartment. The two men and the two cases are unrelated, with the exception that they share the same victim. CM told gave information to *63 the Gulfport police officers who were investigating the crimes. The police department did not investigate the crimes jointly, illustrated by the fact that each crime has a specific and different file number.

¶ 9. The attempt to offer evidence about a different, unrelated incidence of sexual abuse by the defense was improper and irrelevant following Mississippi Rules of Evidence Rule 412. Rule 412 prohibits "the introduction of evidence of a victim's past sexual behavior unless it falls under one of the three exceptions in rule 412(b)(2)." Peterson v. State, 671 So.2d 647, 657 (Miss.1996). These exceptions include:

(A) Past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen, pregnancy, disease, or injury; or
(B) Past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which a sexual offense is alleged; or
(C) False allegations of past sexual offenses made by the alleged victim at any time prior to the trial.

M.R.E. 412(b)(2)(A)-(C). The purpose of Rule 412 is to impede counsel for the defense from putting the victim on trial or unfairly invading the victim's privacy and diverting the attention of the jury away from the true issue. Peterson, 671 So.2d at 657. Subsections (A) and (B) are not applicable to the case at bar. Looking solely at subsection (C), defense counsel attempted to introduce evidence of an allegation of abuse, not a false allegation of abuse as the rule dictates. Had the two allegations been correlated, the allegation would have been relevant and admissible by an exception to show a different source for the injury. However, the cases are not related and therefore the allegation is inadmissable.

¶ 10. "The relevancy and admissibility of evidence is largely within the discretion of the trial court and reversal may be had only where that discretion has been abused." Peterson, 671 So.2d at 658 (quoting Johnson v. State, 655 So.2d 37, 41 (Miss.1995)). It is clear from the record that the trial court properly excluded the evidence concerning the allegations against Mr. Sheely. This Court will not overturn the determination, as no abuse of discretion is evident.

II. DID THE TRIAL COURT ERR IN DENYING DEFENSE COUNSEL CHALLENGES FOR CAUSE FOR VENIRE MEMBERS 1-7 AND 2-10?

¶ 11. Parker challenged venire members 1-7, Craig Wagner, and 2-10, Sylvia Willis, for cause based upon answers they gave during voir dire.

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Cite This Page — Counsel Stack

Bluebook (online)
825 So. 2d 59, 2002 WL 1969844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-state-missctapp-2002.