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White v. State

Court of Appeals of Mississippi

February 14, 2017


          Date of Judgment: 08/27/2015





          ISHEE, J.

         ¶1. On August 27, 2015, Curtis White was convicted in Yazoo County Circuit Court of two counts of gratification of lust and one count of statutory rape. Counts I and III of the indictment charged White with gratification of lust and the statutory rape of MM, [1] and Count II charged White with gratification of lust for LM. White was sentenced to serve eight years for each count of gratification of lust and thirty years for the statutory-rape charge. White's statutory-rape sentence was to be served without the possibility of early release, and was to run concurrently with one count of gratification of lust, and consecutively to the other count. White timely appealed and argues that the circuit court committed a plethora of reversible errors. We agree. Because the circuit court repeatedly abused its discretion and violated White's constitutional rights of due process and a fair trial by an impartial jury, we reverse and remand.


         ¶2. White was MM's uncle by marriage, and LM was close friends with MM. White was tried for incidents that occurred in Yazoo County on April 30, 2013, and April 21, 2014. Both counts of gratification of lust stemmed from the alleged events on April 30, 2013. At that time, MM was approximately thirteen years old (born on December 28, 2000), LM was approximately twelve years old (born on January 25, 2001), and White was approximately thirty-two years old (born on March 13, 1981). MM testified that White gave her and a few of her friends beer while they rode horses together, before White drove MM and LM back home. MM alleged that while White was driving them home, he showed the girls pornography on his cell phone, handed the cell phone to MM, and told both girls to watch it. It was further alleged that White then lifted MM's and LM's shirts to touch their breasts and compare whose breasts were bigger. MM testified that White told her that her breasts were larger. White then continued to drive the girls home without further incident. MM testified that she did not tell anyone about the incident.

         ¶3. Count III of the indictment stemmed from events that allegedly took place on April 21, 2014. MM testified that she, along with others, helped White move a deck onto his property. She testified that White insisted that she ride in his truck with him while he pulled a trailer attached to the back of the truck, and while the other people helping rode in a separate vehicle following behind them. MM testified that while she was driving the truck, White put her hand on his penis while he put his hand on her vagina. MM alleged that when they arrived back at White's house, White insisted that he, as opposed to his wife Claire, should drive MM back to her house so that MM could attend an appointment later.[2] MM testified that White drove the truck behind a pond and parked the car, where she alleged that he took her clothes off, performed oral sex on her, engaged in vaginal and anal sex with her, and then placed her hand on his penis and moved it back and forth "until stuff came out." She testified that she got dressed as he drove the truck to her grandmother's house, who then took her to her appointment. MM testified that the sexual acts that took place behind the pond lasted "ten minutes at most."

         ¶4. Additional witnesses who testified recalled events differently than MM, and Lane Twiner testified that he rode in the back of the trailer attached to White's truck during the time MM alleges he touched her vagina while she touched his penis. Twiner testified that White, not MM, drove the truck, and that he kept eye contact on White because he was providing directional hand signals to White since the trailer's load obstructed the rear view. Twiner testified that there was a tool box between White and MM in the passenger seat, and that he saw no sexual activity occur between the two. Twiner noted that when White pulled into his driveway with the trailer, he "took out his mailbox." This was not mentioned by MM, who testified that she was driving.

         ¶5. White testified in his own defense at trial and in regard to the alleged events of April 30, 2013. He asserted that he neither showed MM or LM pornography nor ever lifted up their shirts. In response to the alleged events of April 21, 2014, he stated that he did not direct MM to ride with him in his truck, and confirmed that Twiner was riding on the trailer attached to the truck, and that he knocked down his mailbox when he pulled into his driveway. White testified that MM's mother called to say that MM had to be home for her appointment, and stated that Claire gave MM some hotdogs to take with her before White drove MM to her grandmother's house. White denied stopping anywhere on the drive back, said MM's grandmother pulled into the driveway when they arrived at the house, and claimed that he was around MM and others over the next several days and she did not act like anything was wrong or out of the ordinary.

         ¶6. Prior to the trial, White made a motion in limine to exclude any evidence that he engaged in an affair with a fifteen-year-old named AB when he was approximately twenty- three years old. The affair occurred nine years prior to the trial, and White was never charged with a crime stemming from the affair. The circuit court denied White's motion in limine and all contemporaneous objections during the trial that pertained to the affair.

         ¶7. At trial, the State was allowed to present evidence, over the defense's vehement objections, that MM alleged White statutorily raped her on July 4, 2012, at Wolf Lake in Humphreys County, Mississippi. That incident was under indictment in a separate county and was not part of any charge that White was tried for in Yazoo County-the trial from which this appeal stems. MM provided the details of that incident in a handwritten statement prepared on January 19, 2015. In the written statement, MM alleged that on July 4, 2012, she, along with her sister and two of White's daughters, went with White to the lake to prepare for the July 4th festivities taking place later that day. Also in her written statement, she said White sexually assaulted her and that he threatened to hurt her and anyone she told. However, on direct examination at trial, MM testified that the alleged events took place a few days before July 4, 2012. MM testified that White asked her to go into the lake with him to retrieve water jugs he placed in the water to attract fish. She told the jury that White then grabbed her head and forced it under water and made her perform oral sex on him until she could not breath. She then testified that he engaged in vaginal sex with her and that she did not tell anyone when they returned to the festivities because she was afraid he would hurt her.

         ¶8. On cross-examination, MM admitted that the pictures that defense counsel showed her were taken after the alleged rape occurred on July 4, 2012, and depicted her having a good time. On redirect, the assistant district attorney led MM to say again that the rape actually occurred a few days prior to the Fourth of July party where the pictures were taken.

         ¶9. Additional evidence was presented at trial, over defense counsel's objections, that White cheated on his first wife, Karen Hemphill, and gave her STDs on two separate occasions. The circuit court allowed further testimony that White gave Hemphill one of the STDs while she was pregnant. Hemphill testified that when this occurred, she was approximately seventeen years old and White was eighteen years old.

         ¶10. After deliberations, the jury returned a verdict of guilty on all three counts. White timely appeals to this Court for relief.


         ¶11. It is long established that the standard of review regarding the admission and exclusion of evidence is abuse of discretion. Newell v. State, 49 So.3d 66, 71 (¶9) (Miss. 2010). Decisions regarding the relevance and admissibility of evidence are "largely within the discretion of the trial court." Mabus v. State, 809 So.2d 728, 733 (¶24) (Miss. 2001). The Mississippi Supreme Court has held that a trial court's evidentiary rulings will not be reversed "unless the error adversely affects a substantial right of a party." Id. (citing Mingo v. State, 944 So.2d 18, 28 (¶23) (Miss. 2006)). This Court will not reverse an evidentiary ruling "unless an abuse of discretion is shown, or the trial judge acted outside the rules of evidence." Id.

         I. The circuit court erred by denying White the opportunity to authenticate evidence of electronic communications to attempt to establish the defense's theory regarding MM's motive to fabricate allegations.

         ¶12. "A criminal defendant is entitled to present his defense to the finder of fact, and it is fundamentally unfair to deny the jury the opportunity to consider the defendant's defense where there is testimony to support the theory." Edmonds v. State, 955 So.2d 787, 798 (¶29) (Miss. 2007). "While a defendant is entitled to present his defense, the right is not without its limitations, as 'all evidence admitted in support of the defendant's theory of the case must comport with the Mississippi Rules of Evidence.'" Scott v. State, 2014-KA-00572-COA, 2016 WL 3391630, at *2 (¶12) (Miss. Ct. App. June 21, 2016) (quoting Clark v. State, 40 So.3d 531, 542 (¶30) (Miss. 2010)). Authentication is a condition precedent to admissibility of evidence. Smith v. State, 136 So.3d 424, 432 (¶18) (Miss. 2014). "A party must make a prima facie showing of authenticity, and then the evidence goes to the jury, which ultimately will determine the evidence's authenticity." Id. (citing Young v. Guild, 7 So.3d 251, 262 (¶32) (Miss. 2009)). "Electronic evidence may be authenticated by the traditional means, and is adequately covered by the current rules of evidence, but "the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium." Id. Because social-media posts are subject to fabrication, "something more" than the account owner's name and photograph is required to authenticate the posts. Id. at (¶20).

         ¶13. In this case, the State made a pretrial motion in limine to prevent White from using social-media evidence at trial. White sought to use social-media posts purported to be from MM to establish the defense's theory that MM was lying and that the alleged events never took place. The social-media posts were discovered by family friend Brenda Dew, who reported the posts to MM's mother. The posts depicted MM kissing and engaging in romantic conversations with another female; testimony from her mother regarding text messages she found on MM's phone, MM's behavioral issues, and testimony from Dew supported the validity of the social-media posts. White further sought to offer testimony from various family members of MM that she was seeing a counselor for behavioral problems, that the family had a large fight when informed of MM's social-media posts, and that the family sent MM to a church camp upon hearing of the posts. White sought to introduce the electronic communications and testimony under Mississippi Rule of Evidence 404(b)[3] as evidence of MM's motive to fabricate the allegations against White. However, the State opposed admission of this evidence, arguing it was irrelevant, improper evidence of the victim's sexual past under Mississippi Rule of Evidence 412, and inadmissible due to a lack of authentication under Mississippi Rule of Evidence 901. The circuit court interrupted the State's argument against the admission of the aforementioned evidence, and stated:

Well let me say this. As far as the posting on social[-]media, that is not relevant. There's no way we can authenticate that. So that motion-as far as the posting, that motion is granted. That will not be reliable, would not be admissible, the social-media posting, okay. Now go ahead.

         ¶14. In Smith, 136 So.3d at 433 (¶21), the supreme court delineated a nonexhaustive list of possible ways to authenticate social-media evidence. The supreme court listed the following:

[T]he purported sender admits authorship, the purported sender is seen composing the communication, business records of an internet service provider or cell phone company show that the communication originated from the purported sender's personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have access to the computer or cell phone, the communication contains information that only the purported sender could be expected to know, the purported sender responds to an exchange in such a way as to indicate circumstantially that he was in fact the author of the communication, or other circumstances peculiar to the particular case may suffice to establish a prima facie showing of authenticity.

         ¶15. While we decline to delve into the merits of the various evidentiary arguments, specifically those regarding Rules 404(b) and 412, presented by the State and the defense on this issue, we find that the circuit court abused its discretion in refusing to allow the defense the opportunity to even attempt to authenticate the evidence. At minimum, the circuit court should have allowed the defense the chance to proffer the authenticity of the evidence with the court, outside the presence of the jury. A "proffer allows the nature and significance of the evidence to be evaluated." Trotter v. State, 878 So.2d 248, 251 (¶11) (Miss. Ct. App. 2004). Because the nature of these types of child-victim cases inherently involves circumstantial, word-of-mouth evidence, evidence supporting MM's motive to lie is relevant. Under the specific facts of this case, we find that it was reversible error to deny White the chance to authenticate the proposed evidence, especially in light of the significance the evidence had to White's defense.

         II. The circuit court erred in denying White's motion in limine and trial objections regarding evidence of the nine-year-old uncharged statuary rape of AB and an indictment in Humphreys County.

         ¶16. Under Rule 404(b), "[e]vidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Also under Rule 404(b), however, this evidence may "be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." M.R.E. 403.

         ¶17. In Derouen v. State, 994 So.2d 748, 756 (¶20) (Miss. 2008), the supreme court held:

[E]vidence of a sexual offense, other than the one charged, which involves a victim other than the victim of the charged offense for which the accused is on trial, . . . if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury, should not be considered per se error.

         ¶18. In pretrial hearings and on appeal, the State used the rule established in Derouen to argue that a nine-year-old, uncharged statutory rape committed by White as part of an extramarital affair was admissible in his trial for the forcible statutory rape of MM. The State argued that such "bad-acts evidence" was admissible to show White's motive, intent, opportunity, and pattern in committing sexual acts against underage girls. Here, the circuit court misapplied the principle established in Derouen; it does not automatically admit such similar evidence or testimony, but simply eliminated a per se exclusion on such evidence. The proposition that an uncharged, factually dissimilar, and almost decade-old offense contains probative value that substantially outweighs the threat of unfair prejudice to the defendant's constitutional rights is certainly a stretch.

         ¶19. MM alleged that White raped her behind a barn on April 21, 2014, and that he first raped her when she was eleven years old, in the incident that allegedly took place in Humphreys County on July 4, 2012. As previously discussed, MM testified that on July 4, 2012, White forced MM to perform oral sex on him while he held her head under water until she could not breath, vaginally penetrated her, and told her that if she told anyone about what he did to her, that he would "hurt [her] and whoever [she] told."

         ¶20. Contrasting those allegations with the testimony that AB gave at trial, it is clear that White's affair with AB is not probative of his plan, motive, intent, or opportunity in regard to MM. AB testified that her affair with White was based on a "mutual flirtation" and that White "was never forceful with [her]." Further, at the time of the affair, White was approximately twenty-four years old, while AB was between fifteen and seventeen years old.[4]In the case at hand, White was accused of being a thirty-three-year-old uncle who repeatedly forcibly raped his eleven-year-old niece for several years. The two scenarios are hardly factually similar in a way that allows Derouen to be a persuasive supporting argument.

         ¶21. Additionally, the circuit court failed to make a detailed finding on the record explaining its decision to allow such evidence to be heard by the jury. When the State opposed White's motion in limine, it essentially just read the language of Rule 404(b) and argued that the nine-year-old uncharged statutory-rape affair was admissible, seemingly under all nine delineated permitted uses of the Rule; it never offered one permitted use as more appropriate than any other. Though defense counsel responded persuasively in arguing to exclude such evidence, the circuit court made the following ruling on the record:

The [c]ourt[, ] after using the filter test under 403 as to the probative or prejudicial effect, as well as 404(b), as to why the State wishes to offer the evidence, . . . finds the case law in this area is pretty clear, and as late as . . . 2013, the Supreme Court held that if the evidence is found to be more probative than prejudice [sic] and it is filtered through 404(b) as to why the State wished to offer the evidence, then the evidence is admissible. The court finds that the reasons the State gives for the offering of the evidence is [sic] proper pursuant to 404(b), that the evidence is more probative than prejudicial and that the-there will be a cautionary instruction given to the jury . . . .

         ¶22. The circuit court did not cite any permitted use under Rule 404(b) in its decision, but merely parroted the generalized and blanketed argument made by the district attorney that the evidence was admissible under such rule. "When the trial court admits other bad acts evidence under Rule 404(b), it should make an on-the-record Rule 403 finding that the probative value is not substantially outweighed by the danger of unfair prejudice." Archer v. State, 118 So.3d 612, 625 (¶57) (Miss. Ct. App. 2012) (citing Tate v. State, 912 So.2d 919, 925 (¶16) (Miss. 2005)). While the circuit court did make the aforementioned required finding on the record, it failed to find under which permitted use listed in Rule 404(b) the evidence would be admitted. The circuit court merely cited the entirety of the Rule in its decision to admit the evidence, which would allow an inference to be made that the evidence was admitted to show preparation-a permitted use under which a nine-year-old, factually dissimilar act certainly could not properly be admitted. This Court finds that the circuit court abused its discretion in admitting the highly prejudicial and minimally probative nine-year-old, uncharged statutory-rape evidence, and as such, committed reversible error.

         ¶23. As part of the same motion in limine, defense counsel sought to exclude testimony from Brenda Dew, an adult woman who asserted vague allegations that White made sexual advances on her. Because the circuit court failed to specify which aspect of White's motion that her ruling applied to, defense counsel attempt to clarify the ruling with the court, and the following exchange took place on the record:[5]

Mr. Hollomon: But I want to make sure-I mean, my motion goes to [Dew's testimony] also, that that be excluded also.
The Court: My ruling goes to that as well. As long as it's offered for the reasons pursuant to Rule 404(b) and it will be given a limited instruction, okay. It goes to any prior victims or statements that have been filtered under 404(b).
Mr. Hollomon: Your Honor, just so the Court is clear on this and I'm clear on this, Brenda Dew is an adult woman who was a neighbor and friend of the White family who's making these allegations. I don't know how that would play into gratification of lust and a charge of statutory rape.
The Court: Making allegations of what? Mr. Hollomon: She's made vague allegations that Curtis [White] made sexual advances toward her.
The Court: Yeah. It comes under 404(b).
Mr. Hollomon: To prove what, Your Honor, if I may ask the State?
The Court: The same-that the State stated that they would offer to prove.
Mr. Hollomon: The same reasons that were given?
The Court: Okay. Now, I'm not going to sit here-I've made my ruling on that. I'm not going to sit here and-
Mr. Hollomon: I'm just trying to be clear for any appellate record, Your Honor.
The Court: Well, the trial will make it clear for any appellate record. Basically, I told you if it comes under 404(b), which is what ...

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