Smith v. State

907 So. 2d 389, 2005 WL 288999
CourtCourt of Appeals of Mississippi
DecidedFebruary 8, 2005
Docket2003-KA-01063-COA
StatusPublished
Cited by5 cases

This text of 907 So. 2d 389 (Smith 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
Smith v. State, 907 So. 2d 389, 2005 WL 288999 (Mich. Ct. App. 2005).

Opinion

907 So.2d 389 (2005)

Kenneth SMITH a/k/a Kenneth Allen Smith, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-01063-COA.

Court of Appeals of Mississippi.

February 8, 2005.
Rehearing Denied May 17, 2005.
Certiorari Denied July 21, 2005.

*391 Jack R. Jones, Southaven, attorney for appellant.

Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.

Before BRIDGES, P.J., CHANDLER and GRIFFIS, JJ.

CHANDLER, J., for the Court.

¶ 1. Kenneth Allen Smith was convicted by a jury in the DeSoto County Circuit Court for the crime of fondling a child, in violation of Mississippi Code Annotated Section 97-5-23(1) (Rev.2000) and for the *392 crime of sexual battery to a child between the ages of fourteen and sixteen, in violation of Mississippi Code Annotated Section 97-3-95(1)(c) (Rev.2000). The circuit court judge sentenced Smith to twenty years for the battery conviction, with five years suspended, and he sentenced Smith to fifteen years for the fondling conviction, with the sentences to run concurrently. The judge denied Smith's requests for appeal bond and for parole eligibility. Smith appeals, raising the following issues:

I. WHETHER PLAIN ERROR EXISTS IN THE ADMISSION OF SMITH'S STATEMENT
II. WHETHER THE CIRCUIT JUDGE ERRED IN FAILING TO GRANT A NEW TRIAL ON THE GROUNDS THAT THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE
III. WHETHER THE CIRCUIT JUDGE ERRED IN DENYING THE DEFENDANT THE RIGHT TO QUESTION THE STATE'S WITNESSES ABOUT THEIR REFUSAL TO SPEAK TO DEFENSE COUNSEL PRIOR TO TRIAL
IV. WHETHER THE CIRCUIT JUDGE IMPROPERLY REFUSED SMITH'S REQUEST FOR A JURY INSTRUCTION OF A LESSER OFFENSE
V. WHETHER THE STATE'S COMMENT IN CLOSING ARGUMENT WARRANTS THE GRANT OF A NEW TRIAL

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Kenneth Smith was the business partner of the father (Father) of victim G.P and worked at American Billboard Painting. Father was good friends with Smith and his family, having known each other from church. Smith had a son and a daughter. G.P. would spend time with Smith's children, and Smith would often take G.P. out with him and his family. This complaint arose when an employee discovered child pornography on Smith's business computer. Father called the police, and the Horn Lake Police Department initiated an investigation on Smith.

¶ 4. At the time, G.P. went to Horn Lake Middle School, and she was best friends with K.E. Smith frequently went places with G.P. and K.E and with other kids. G.P. testified that Smith often told them to perform sexual acts on him, and he once told G.P. to kiss her friends.

¶ 5. G.P. testified that on one occasion, Smith placed his hand between G.P.'s legs without her consent, but she did not stop him because she was scared. "He slid his hand down my pants before and up in under my panties." After this incident, Smith told her not to tell anyone and to keep her mouth closed like a zipper. Smith also gave her a pair of black thong underwear and wanted her to model them for him. At the time of the commission of the crimes, Smith was thirty seven years old, and G.P. was fourteen years old.

¶ 6. Smith was also indicted for engaging in sexual penetration with K.E, who was also fourteen years old at the time of the commission of the crimes. K.E. testified that Smith made frequent sexual comments and would ask her and G.P. to touch each other on their private parts. On one occasion, he stopped the car and refused to go any farther until they kissed. While they kissed, he grabbed himself and made sexual noises. K.E. testified that while she was at Smith's office, Smith unzipped her pants and put his finger in her vagina. She pulled away and went into another room. She testified that she did not tell anyone because she was scared that Smith *393 would tell her parents that she smokes cigarettes.

¶ 7. After a trial in the DeSoto County Circuit Court, Smith was convicted for the crimes of fondling a child and sexual battery, in violation of Miss.Code Ann. § § 97-5-23(1) and 97-3-95(1) respectively.

ANALYSIS

I. WHETHER PLAIN ERROR EXISTS IN THE ADMISSION OF SMITH'S STATEMENT

¶ 8. At the trial Danielle McKenzie, a detective for the Horn Lake Police who investigated the case, testified that Smith made a statement to the effect that anything between him and the girls was consensual. Although Smith concedes that no objection to the testimony was made at trial, he wishes to raise the issue on appeal. If a contemporaneous objection is not made, an appellant must rely on plain error to raise the argument on appeal. Watts v. State, 733 So.2d 214, 233(¶ 53) (Miss.1999). "The plain error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice." Williams v. State, 794 So.2d 181, 187 (Miss.2001) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). "Further, this Court applies the plain error rule only when it affects a defendant's substantive/fundamental rights." Id. (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991)). Because it is undisputed that no objection was raised at trial, Smith solely relies on the plain error rule to raise this issue on appeal.

¶ 9. Our analysis of the plain error rule includes a determination of whether there is, in fact, "error," that is, some deviation from a legal rule. United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Smith contends that the admission of his statement to McKenzie is error because Smith made the statement in the absence of Miranda warnings. The statement was given on June 24, 2002, according to McKenzie's detective case narrative. Smith was arrested on June 21, 2002, and received Miranda warnings on that day. Smith argues that his statement to McKenzie was inadmissible for two reasons. First, he was never given new Miranda warnings on June 24, 2002. Second, Smith concedes that McKenzie did not ask him questions on June 24, 2002. Instead, McKenzie explained the case to him, the crimes for which he was being arrested, and the accusations from the girls. Smith argues that these statements are nevertheless the functional equivalent of questioning because the statements could have reasonably resulted in an expression or statement by Smith. See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

¶ 10. This alleged Miranda violation did not rise to the level of plain error. "The plain error doctrine has been construed to include `anything that seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Porter v. State, 749 So.2d 250, 261 (Miss.Ct.App. 1999) (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). The error of which Smith complains does not rise to this level. With sexual crimes involving children, consent is not an element that the State must prove, and in this case, the jury did not consider the issue of consent. It is therefore extremely unlikely that the jury's verdict would have been any different without the admission of this statement. Smith had ample opportunity to exclude this statement, but he did not. He filed a motion in limine

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Cite This Page — Counsel Stack

Bluebook (online)
907 So. 2d 389, 2005 WL 288999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-missctapp-2005.