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JOHN DANIEL KOLB v. STATE OF MISSISSIPPI

APRIL 12, 1989

JOHN DANIEL KOLB
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., PRATHER AND ROBERTSON, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

John Daniel Kolb was indicted by the grand jury of Jackson County for feloniously engaging in sexual penetration with M., a child under the age of twelve years. Venue was changed to Forrest county where he was convicted and sentenced as a recividist under Miss. Code Ann. 99-19-81 (1977) to ten years imprisonment without parole. Upon appeal he argues the evidence did not authorize his conviction under Miss. Code Ann. 97-3-95, - 97 (1985), an erroneous and prejudicial cross-examination of him as to whether he was a homosexual, and erroneous admission into evidence of letters he wrote after incarceration to two acquaintances.

For the reasons which follow, we find no error and affirm.

 FACTS

 M. was born February 17, 1975. He and his mother lived in North Biloxi. He was swimming in the YMCA pool near Ocean Springs in the spring of 1985 when Kolb, a gymnastics instructor, asked him if he would like to try out for gymnastics. M. then enrolled in the program.

 On Saturday, November 2, 1985, M. and his cousin D. were invited to Kolb's home in Ocean Springs, along with a number of other boys, for a cook-out. Late that afternoon when Mrs. F. went to get M. and D., Kolb asked her permission for them to spend the night with him, and they could go to the movies, and then sleep in a tent in the yard. It developed that only M., D. and a six-year-old child J. stayed. The boys did not get in the movies because the film was" R "rated. Kolb bought some beer which he drank during the course of the evening. He also took the boys to a local McDonald's.

 Around 1:00 a.m. on Sunday, November 3, police officers Therese A. Vanek and Timmy Tue of the Ocean Springs police department were on patrol when they noticed two boys on a bicycle, one on the handle bars and the other peddling. The boys were M. and D., and they were waving for attention. The officers stopped, and found M. upset and excited. He reported having been sexually molested by Kolb.

 The parents were called, the boys' statements were evaluated by police officers, and a warrant issued for Kolb's arrest. He was taken into custody about 3:30 a.m. at his home.

 While Kolb was in jail, he wrote two acquaintances, Liz Welch, a fitness instructor at the YMCA, and David Harris, the chief executive officer of the Gulf Coast YMCA. The letter to Welch contained the following:

 Please forgive me for the mess I am in too [sic]. . . . At times I was so self-centered that I forget [sic] that what I do influences others. Although this problem is very bad, God has forgiven me. . . . All the good I did at the Y does not justifie [sic] my actions from the Y I know. I was very bad and sinned. I must now pay the price. . . . Reguarding [sic] my crime, it carries 10 years in (state prison).

 The letter to Harris contained the following:

 I am so sorry about all of this. . . . But now its [sic] over, all the sinfull [sic] things I have been doing all these years. . . . Now that my unfortunate position is known and out into the open I am glad. . . . I have been destroing [sic] myself for years over this problem, not knowing how to turn it around. There has never been any force in any way towards any of the willing partners. I've allways [sic] wanted a wife and family but this inter [sic]

 problem thier [sic] was no hope for me. Now I can get help and start a new life. . . . When I was seven or eight the things I've been accused of happen [sic] to me. I've been struggling with it since.

 Prior to trial and under a court order, Kolb was psychiatrically evaluated by a local psychiatrist, to whom he revealed his homosexuality, extending back to his childhood. The psychiatrist made a lengthy report to the circuit judge. The contents of this report were never admitted into evidence before the jury, however.

 At trial the police officers testified to M.'s being very upset, excited and having reported sexual abuse by Kolb. M. testified that when the boys returned to Kolb's house late Saturday night, Kolb got him away from the other boys, and into his bedroom. Then he told M. to take off all his clothes, and lie spread eagle. M. testified Kolb then started to lick or kiss him, and he turned his head, and then Kolb licked his neck and chest, and sucked his penis.

 M. further testified that after performing this fellatio, Kolb walked with him to the tent and left. D. asked M. if Kolb had done it to him, too. After some discussion between two, they left on Kolb's bicycle for help. When the officers went to arrest Kolb, the Martin child was still asleep in the tent.

 Mrs. F. testified as to the difference between M. before and after November 3, 1985. She said that he had recurring nightmares, was afraid to go to school, and wanted to stay home. His grades had gone down, he threw up at school, and she had sought counseling for him.

 Kolb's letter's to Welch and Harris were also introduced into evidence over the objection of Kolb as to relevancy.

 Kolb testified in his own defense. On direct examination he testified as follows:

 Q. Did you, at any time that night, do the things that M. has accused you of doing?

 A. No. I certainly did not. I've worked many, many years with kids and loved all of them, coached them as champions of athletes, and I would never do something like that (R.191)

 Further on direct examination, he testified:

 Q. Dan, did you do anything on that night, sexually, with M.?

 A. No. I certainly did not. I've worked too many years with all my athletes and the kids to do anything like that. (R.196-197)

 Kolb also testified there was nothing in the letter to Welch admitting he had behaved improperly with M., and that he did not intend ...


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