Poynor v. State

962 So. 2d 68, 2007 WL 1248510
CourtCourt of Appeals of Mississippi
DecidedMay 1, 2007
Docket2005-KA-01919-COA
StatusPublished

This text of 962 So. 2d 68 (Poynor 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
Poynor v. State, 962 So. 2d 68, 2007 WL 1248510 (Mich. Ct. App. 2007).

Opinion

962 So.2d 68 (2007)

John POYNOR, Sr., Appellant
v.
STATE of Mississippi, Appellee.

No. 2005-KA-01919-COA.

Court of Appeals of Mississippi.

May 1, 2007.

*70 Alison Oliver Kelly, Robert L. Williams, Elizabeth Paige Williams, attorneys for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

EN BANC.

MODIFIED OPINION ON MOTION FOR REHEARING

ISHEE, J., for the Court.

¶ 1. The motion for rehearing is denied, and the original opinion in this appeal is withdrawn, and this opinion is substituted in lieu thereof. Poynor was sentenced to serve ten years, with five years suspended, for statutory rape, and five years for child fondling, with both sentences to be served consecutively, all in the custody of the Mississippi Department of Corrections (MDOC). John Poynor, Sr. was convicted in the Circuit Court of Panola County of statutory rape and child fondling. Poynor was sentenced to serve ten years, with five years suspended, for statutory rape, and five years for child fondling, with that five year sentence suspended and to be served consecutively to the five year suspended sentence for the statutory rape conviction, all in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved by the judgment against him, Poynor appeals. He asserts the following issues for this Court's review:

I. Whether the indictment was fatally flawed as a matter of law.
II. Whether the court erred in allowing the testimony of the State's expert witness because she was not qualified and her opinions as to the general characteristics of other child sexual abuse victims were improper.
III. Whether the court erred in limiting and restricting Poynor from showing that the mother of the alleged victims, as well as the alleged victims, were prejudiced or biased toward Poynor and further erred in refusing to allow Poynor to call other witnesses to demonstrate such bias or prejudice.
IV. Whether the jury was inadequately instructed as to the law of the case.
V. Whether Poynor's trial counsel was constitutionally ineffective.
VI. Whether the cumulative effect of all the errors requires reversal.

Finding no error, we affirm.

FACTS

¶ 2. On April 18, 2005, Poynor was indicted by a Panola County grand jury for count one, statutory rape of A.M., count two statutory rape of C.S., and count *71 three, child fondling of T.S.[1] At the time of the trial, Poynor was sixty years old. The mother of the three female child victims (Mother) was Poynor's tenant. She also dated Poynor during the time that the alleged offenses were committed.

¶ 3. Count one of the indictment stated that, from July of 2001 through December of 2004, Poynor:

did wilfully, unlawfully and feloniously, have sexual intercourse with A.M., a child with a birth date of March 11, 1990, who was under the age of fourteen (14) years until March 11, 2004. [Poynor] was over the age of seventeen (17) years. [Poynor] was twenty-four (24) or more months older than A.M.A.M. was not [Poynor's] spouse, in direct violation of Section 97-3-65(1)(a), Mississippi Code 1972 Annotated.

Count three of the indictment stated that, during the fall of 2004, Poynor:

did wilfully, unlawfully and feloniously, touch or rub T.S., a child whose birth date of December 22, 1992, with his hands. [Poynor] was above the age of eighteen (18) years. T.S. was under the age of sixteen (16) years. [Poynor] did touch or rub T.S. for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, in direct violation of Section 97-5-23(1), Mississippi Code 1972 Annotated.

¶ 4. On July 11, 2005, Poynor filed a notice of intent to introduce evidence of prior sexual activity of the purported victims, and on July 26, 2005, Poynor filed an amended motion to offer evidence of past sexual behavior with persons other than the accused. In the amended motion, Poynor requested that he be allowed to introduce evidence that two teenage boys, J.E. and C.D., had sexual intercourse with one of the victims. Poynor asserted that this evidence was admissible pursuant to Rule 412 of the Mississippi Rules of Evidence and Mississippi Code Annotated section 97-3-68 (Rev.2006). During a hearing on Poynor's motion, the trial court ruled that Poynor's attorney had done "about all a defense lawyer can do to come up and tell the State, well you have an injury and we are going to show you that we have witnesses that can show there is another source of the injury and then it becomes a jury question." Thus, the trial court determined that Poynor complied with Rule 412 of the Mississippi Rules of Evidence and ruled that he could introduce evidence of past sexual behavior with persons other than the accused.[2]

¶ 5. On August 18, 2005, Poynor's trial began. During voir dire, the trial court ruled that each side would be allowed six, rather than twelve, peremptory challenges for cause because the statute under which Poynor was indicted did not carry a possible life sentence. In making this ruling, the trial court made clear that Poynor was charged under Mississippi Code Annotated section 97-3-65(1)(a), rather than (1)(b), as a conviction under (1)(a) carried a maximum sentence of thirty years, while a conviction under (1)(b) carried a maximum sentence of life imprisonment.

¶ 6. A.M., who was fifteen years old at the time of the trial, testified that when she helped Poynor in his radiator shop, he used to "feel on" her. She further testified *72 that Poynor "put his penis in [her] vagina" on numerous occasions, beginning when she was eleven years old and ending in December of 2004. According to A.M., Poynor gave her money and told her not to tell anyone about the incidents. A.M. testified that the sexual assaults ceased when she went to visit her dad in Illinois in December of 2004. The first person A.M. told about the sexual assault was her mother, who then took her to see a social worker with the Department of Human Services, as well as Dr. Tanya King.

¶ 7. T.S. was in the sixth grade at the time of the trial. She testified that Poynor touched her on her "private spot" between her legs when they were riding a four-wheeler together. T.S. further testified that Poynor put his hands between her shorts and her underwear on more than one occasion. T.S. explained that she did not tell her mother what had happened because she was scared that she would "get in trouble."

¶ 8. Dr. Tanya King testified as a medical expert for the State. Dr. King graduated from the University of Mississippi Medical Center with a specialty in pediatrics. She testified that she was board certified in pediatrics, that she was a member of the Lafayette County Child Abuse Task Force, and that she had been trained in the field of child sex abuse. Dr. King was qualified by the trial court as an expert witness without an objection from defense counsel.

¶ 9. Dr. King examined A.M.'s vagina with a culposcope, which enabled her to magnify A.M.'s genitalia and film the examination. Dr. King testified that her examination revealed that A.M. had a "thin hymenal ring with deep notches." She further testified that the notches were consistent with the history that A.M. had been vaginally penetrated more than forty times.

¶ 10. At the conclusion of the State's case-in-chief, Poynor moved for a directed verdict.

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962 So. 2d 68, 2007 WL 1248510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poynor-v-state-missctapp-2007.