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Ellis v. State

Court of Appeals of Mississippi

October 29, 2013

THOMAS EARL ELLIS A/K/A THOMAS ELLIS A/K/A THOMAS E. ELLIS A/K/A THOMAS ELLIS MCCOY, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

Page 416

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/13/2011. TRIAL JUDGE: HON. TOMIE T. GREEN. TRIAL COURT CONVICTED OF SEXUAL BATTERY AND GRATIFICATION OF LUST, AND SENTENCED AS A HABITUAL OFFENDER TO THIRTY YEARS AND FIFTEEN YEARS, RESPECTIVELY, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION.

DISPOSITION: AFFIRMED.

FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER.

BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 417

NATURE OF THE CASE: CRIMINAL - FELONY

BARNES, J.

¶1. Thomas Earl Ellis was convicted of sexual battery and gratification of lust in the Circuit Court of Hinds County. He was sentenced to thirty years for sexual battery and fifteen years for gratification of lust, as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007), with the sentences to be served consecutively in the custody of the Mississippi Department of Corrections (MDOC). On appeal, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 2008, Ellis was married to Carla, and the couple lived with Carla's two children, eight-year-old Tiffany and her brother, in Jackson, Mississippi.[1] Although Tiffany told her mother that Ellis had been entering her bedroom and penetrating her vagina with his finger, Carla felt that more evidence was needed in order to take any action. One evening while Tiffany was lying on a mattress by the couple's bed, Carla finally observed Ellis reaching over her and putting his hand near Tiffany's pelvic area. As a result, Carla and the children left Ellis and went to a shelter. Tiffany was subsequently placed in a foster home.

¶3. Tiffany was interviewed by Rachel Daniels, the program director of the Mississippi Children's Advocacy Center (CAC). Also present at the CAC interview was LaTasha Holmes, a child-protection investigator with the Hinds County Sheriff's Department. Tiffany later authenticated the videotape of the CAC interview at trial. Dr. Scott Benton, director of CAC and an associate professor of pediatrics at the University of Mississippi Medical Center, examined Tiffany, but found no physical evidence to support the allegation of sexual abuse. Kimberly Smith, with the Mississippi Children's Home Services, testified that she had provided therapy to Tiffany, who told her that she (Tiffany) had been sexually abused by Ellis.

¶4. There was also testimony at trial by two witnesses who had been sexually abused by Ellis.[2] The jury was read prior testimony by Ellis's nephew, Charles Edwards, that Ellis had kissed him when he was nine. Charles also said that Ellis came to his bed and tried to rub on his penis. Another witness, twenty-eight-year-old Sandra Carter, testified at trial that when she was seven years old, Ellis came into her room on several occasions and penetrated her with his finger. Ellis had been married to her mother. The trial court gave a cautionary instruction to the jury regarding these witnesses' testimony, noting that it was offered only for the purpose of showing motive, intent, absence of mistake, and opportunity.

¶5. On March 31, 2011, Ellis was convicted of sexual battery and gratification of lust and sentenced as a habitual offender to thirty years and fifteen years, respectively, in the custody of the MDOC, with the sentences to be served consecutively. Ellis now appeals, raising three issues:

I. Whether Ellis's right to a speedy trial was violated.
II. Whether the victim's recorded out-of-court interview was improperly published to the jury without ...

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