KELVIN D. ASHFORD a/k/a KELVIN ASHFORD a/k/a BOOMAN
STATE OF MISSISSIPPI
OF JUDGMENT: 10/27/2015
COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM, SR. TRIAL JUDGE
COURT ATTORNEYS: HELEN BAGWELL KELLY RHONDA MASON AMIS
ATTORNEY FOR APPELLANT: JOHN KEITH PERRY, JR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ALICIA MARIE AINSWORTH
RANDOLPH, P.J., KING AND BEAM, JJ.
RANDOLPH, PRESIDING JUSTICE
Kelvin Ashford was indicted, tried, and found guilty by a
Tate County jury on eight counts of sexual battery and two
counts of fondling. Aggrieved by the judgment of conviction
and resulting sentence, Ashford appeals. Finding no error, we
AND PROCEDURAL HISTORY
According to N.W.,  her aunt, Marjorie Willie, had an
on-again, off-again relationship with Kelvin
Ashford for N.W.'s entire life. N.W. and
Marjorie were close, they saw each other almost every day,
and N.W. considered Ashford to be like an uncle. N.W.
testified that the first time anything happened between her
and Ashford was in March or April of 2007, when she was nine
years old. Ashford lay in bed with N.W., but nothing happened
that first day. However, Ashford kept trying to touch N.W.
For four to six months, she ran from him, but eventually she
got tired of running. Ashford began touching her
inappropriately in her private areas, and he did so for four
to five years straight (from ages nine to fourteen).
In fifty pages of trial testimony, N.W. described in detail
the sexual acts that Ashford forced her to perform during the
four-to-five-year span, including numerous acts of vaginal
intercourse, sodomy, fellatio, and cunnilingus. When asked how
often these acts would take place, N.W. replied that it
depended on how often she went to her aunt's house or how
often Ashford came to N.W.'s house. Some weeks, it was
every day. Ashford regularly babysat N.W. and her brother,
along with Marjorie's children, while Marjorie and
N.W.'s mother (Marionette) were working.
N.W. testified she did not tell anyone earlier because she
did not want to experience the stress of a trial again like
she experienced when she was six. On May 7, 2012-when N.W. was
fourteen years old-she left a note for her mother on the
refrigerator. The note informed Marionette that the reason
N.W. had been behaving badly was because what happened to her
a long time ago had happened again, and it started three
years after the first time. After leaving the note, N.W.
finally told her mother that Ashford had been abusing her.
They went to the hospital, where N.W. tested positive for a
sexually transmitted disease (STD). N.W. testified that she
was not otherwise sexually active at the time, so Ashford had
to be the person from whom she contracted the disease. N.W.
then identified a statement she had given previously to
Detective Lisa Sanders, which was admitted into evidence
without objection after N.W. testified that the events were
clearer in her mind at the time she wrote the statement than
they were at the time of trial. In the statement, N.W.
claimed she was sexually abused by Ashford more than one
hundred times, that he had done "sexual thing[s]"
to her since she was nine years old. N.W. was asked if she
was lying about Ashford because she really caught the STD
from her boyfriend. She said no, that she and her boyfriend
were not sexually active.
On cross-examination, defense counsel referenced the
statement and asked N.W. what she and Ashford had done
"a hundred times, " to which N.W. again described
multiple sexual acts Ashford had committed against her or
forced her to perform. N.W. described a time when Ashford
sexually assaulted her in the bed while Marjorie slept beside
her. N.W. tried to wake her aunt to no avail: "I bumped
her and didn't wake up, so. . . I patted her. She
didn't wake up." N.W. testified it was not uncommon
for the children to sleep with Marjorie on occasion. When
asked where the various incidents took place, N.W. responded
wherever and whenever Ashford decided. She testified the last
time Ashford did anything to her was two to three months
before she wrote the letter in May 2012. After the last
incident, Ashford began working with N.W.'s grandfather
and was not at home as often. Finally, defense counsel asked
N.W. to describe Ashford's penis. She did: "The top
part of his penis has a-a-I'd say a bump, mole on top of
it. It has hair around it." Defense counsel then
abandoned that line of questioning.
Marionette testified that she and Marjorie were close, that
they saw each other regularly. She identified Ashford as
Marjorie's long-time boyfriend who used to keep her
children, including N.W., every day. She testified that after
she read the note from N.W., she took her to the hospital
where she was diagnosed with trichomoniasis, an STD. When
Marionette informed Ashford about the allegations, he denied
being with N.W. Marionette testified that she saw Ashford
almost every day, that sometimes he stayed with her when he
was angry with Marjorie. He also sometimes stayed with his
mother or with another woman.
The State then called Detective Lisa Sanders, who testified
that, when she arrived at the hospital while N.W. was getting
tested, Marionette was on the phone with Ashford. Sanders had
Marionette put Ashford on speaker phone while Sanders
prompted Marionette on what to say. After repeatedly denying
ever being with N.W., Ashford stated he would help take care
of the baby if N.W. was pregnant, "just out of
kindness." Sanders testified he even agreed to pay for
an abortion. Ashford said he would submit to a DNA test but
did not want the police involved. Four days later, Ashford
went to the police station and, after signing an
acknowledgment of rights form, gave a videorecorded statement
to Sanders. In the video, Ashford stated he had been
with Marjorie off-and-on for about fourteen years. He denied
doing anything sexual with N.W., stating she never even
walked in on him while he was in the bathroom or getting
dressed. When told about N.W. having an STD, Ashford said he
was supposed to get tested too as part of the hiring process
at North Oak Hospital where he was trying to get a job.
Sanders identified Exhibit 2 as the statement she took from
N.W. She also testified that she had checked, and STD testing
was not part of the hiring process at the hospital-that they
check for only drugs and narcotics. On cross-examination,
Sanders admitted that she had never asked Ashford to submit
to any DNA or STD testing.
Next, the State called Dr. Olufemi Adeleye-the physician who
treated N.W. at the hospital-as an expert regarding the
examination, bloodwork, and results. On May 7, 2012,
N.W.'s chief complaint was a vaginal discharge. She told
the doctor she was molested two to three months back, that
she was fourteen, and that she had been molested since age
nine. Dr. Adeleye diagnosed N.W. with trichomoniasis, a
disease that is spread only through sexual intercourse. He
testified that trichomoniasis is treated with a single dose
of medication, which is how N.W. was treated. According to
Dr. Adeleye's testimony, one dose cures the patient. On
cross-examination, Dr. Adeleye testified that he had never
tested or treated Ashford for an STD, but that he could have
been treated elsewhere.
Marjorie testified that she had dated Ashford off-and-on for
ten to fifteen years and that he lived with her during that
time. She testified that N.W. came to her house often, that
she sometimes spent the night, and that she sometimes slept
in the bed with Marjorie and Ashford. Marjorie stated she is
a heavy sleeper and that it would be hard to wake her. She
testified that in May 2012, she and Ashford were not having a
sexual relationship "because of his infidelities."
When Marjorie told Ashford by phone about N.W.'s
allegations, he was not home. He said he would come by but he
never returned. He left all of his belongings in
Marjorie's house. According to Marjorie, Ashford did not
work during the time he and she were together until the last
six months, when he started working with her father. When
asked if she felt like she needed to get tested after the
allegations came out, Marjorie said, "No . . . because
me and Kelvin Ashford wasn't sexually active; so why
should I get tested?" On cross-exaination, Marjorie
stated she and Ashford began having a sexual relationship
when she was seventeen (sometime in 1998), but that he did
not begin staying with her until 2008. She again stated that
Ashford did not have a job between 2008 and 2012. If Ashford
worked for hospice during the times he would visit his
grandfather, Marjorie stated she did not know it. Marjorie
also confirmed she knew Ashford was seeing other women during
the time they were together. She also testified that it was
not uncommon for N.W. to stay with her every night of the
week during 2008-2010. Finally, Marjorie testified that the
last time she had sex with Ashford was the middle of April
2012, two to three weeks before the allegations came out, and
that she did not get tested for STDs. On redirect, Marjorie
stated there were times when Ashford stayed with another
woman or with his father, but that it was only a couple of
periods of four-to-five-days' duration. Marjorie did not
find it impossible that Ashford had sexually assaulted N.W.
with Marjorie asleep in the bed because there were times when
all three of them were in the bed and Marjorie is a heavy
Sonya Graham, the chief executive officer of North Oak
Hospital, testified that there was no record of Ashford
applying for a job at the hospital and that STD testing is
not part of the hiring process. The hospital tests potential
employees only for tuberculosis, rubella, and drugs. On
cross-examination, she agreed with defense counsel that
Ashford may have gotten an application and just never turned
it in, to explain the lack of record.
N.W.'s other aunt, Jessica Willie, testified that Ashford
and Marjorie started living together in either 2008 or 2009.
She stated anytime her family got together for a function,
Ashford was always there. According to her, Ashford did not
work, so he stayed home cooking, cleaning, and taking care of
all the children. Jessica described a time when she walked in
on N.W. and Ashford laying in the bed in a
"spooning" position, but on top of the covers, with
space between and wearing clothes. She told Marionette and
Marjorie about the incident, but they told her to leave it
alone, that they did not think anything was going on.
¶12. N.W.'s grandfather, Willie Willie, testified
that when Marjorie was dating Ashford, he saw Ashford nearly
every day. Willie stated Jessica also told him about the
incident in the bed, but that he disregarded it as well
because Jessica "likes to keep confusing and deviling
going." Willie got Ashford a job in 2012 with a
mowing service. Ashford never returned to work after May 7,
2012. Willie admitted on cross-examination that he had made
several statements that could been seen as death threats
toward Ashford to explain why he never retrieved his
belongings or returned to work. Willie also testified that
Ashford moved in with Marjorie three to four years before the
allegations came out in 2012.
At this point, the State rested. The defense moved for a
directed verdict, arguing the State had failed to meet its
burden of proof. That motion was overruled.
The defense's first witness was Ruby Tate, Ashford's
mother. She testified that Ashford had stayed with her in
2007 and that all his belongings were at her house. Ashford
had stayed with her the first four-to-six months of 2008
because she had been recovering from a heart attack. In June
2009, Ashford began staying with his grandfather some because
his grandfather had Parkinson's and Alzheimer's
Diseases, but he continued his residence at Ruby's.
According to Ruby, Ashford dated Shirley Mabrey for two years
beginning in 2007. He then dated Tina Gardner off and on for
about two years. Ruby first heard Marjorie's name in 2009
or 2010 when Ashford began spending the night at
Marjorie's. Ruby testified Ashford stayed with another
girlfriend, a different Tina, from 2010 to 2012. Ruby was
asked if Ashford worked between 2007 and 2012. She responded
that he worked for hospice and a lawn service. But she
testified he worked for hospice for only about six months.
While he was working with hospice, he stayed with his
grandfather during the day and returned to Ruby's at
night "every day." She testified he worked in lawn
service during the summers of 2010 and 2011.
Next, Ashford's aunt, Gail Hawkins, testified that from
sometime in 2007 to sometime in 2008, Ashford was in and out,
helping take care of her father, who suffered from
Parkinson's and Alzheimer's. Ashford sometimes sat
with him during the day, sometimes at night, just whenever he
was needed. Gail testified that most nights, Ashford stayed
with her helping take care of her father. During the day he
was "in and out, back and forth." Gail stated she
had seen Marjorie, Kelvin, and the children together at
Walmart on occasion, but that to her knowledge, he had
continued living with Ruby.
Ashford's sister, Crystal Burton, testified he dated
Mabrey until 2008, followed by Tina Gardner and Tina Draper.
She said he dated Marjorie as well, but that it was just an
"occasional relationship." He dated Gardner for two
years and then dated Draper and Marjorie at the same time.
According to Crystal, Ashford worked with hospice in 2007
keeping their grandfather and at some point worked in
construction with Tony Jones. Crystal said she knew the
Willies very well, that the children called her Aunt Crystal,
but that Ashford never had stayed with Marjorie. Crystal
testified that Marjorie had told her Marjorie was going to
get tested for STDs. According to Crystal, Marjorie had told
her that she went to the health department and
"didn't have anything." On cross-examination,
Crystal stated she never told law enforcement officials about
Marjorie saying she had tested negative for STDs because no
one had asked. However, she claimed she told defense counsel
back in 2012 when Ashford first sought representation.
The defense then called Tina Draper, who testified that she
had dated Ashford from April 2010 to August 2012. During that
time, Ashford typically stayed with Ruby during the week and
with Draper on the weekends. Occasionally, Draper would pick
up Ashford at Marjorie's house. Draper testified that she
and Ashford were sexually active during that time but that
she never had an STD and never knew Ashford to have one.
During the time they dated, Draper knew Ashford worked for a
lawn service. Draper testified she sometimes picked up
Ashford at Marjorie's because he kept the children there.
Draper said she was sexually active only with Ashford and
that she tested negative for STDs in July 2012.
Finally, Ashford testified in his own defense. According to
Ashford, he was living with Ruby in 2007 until late 2010 when
he began living with Draper. He denied ever staying
continuously with Marjorie. However, he admitted to staying
at Marjorie's during the week in 2011 and 2012 because it
was closer and more convenient for him to get to work from
Marjorie's. During that time, he was working seasonally
for the lawn service. Ashford testified that on May 7, 2012,
he had gone with one of Marionette's relatives to get an
application at North Oaks Hospital. While there, Marionette
called the relative to pick up N.W. from school. The relative
left the hospital, picked up N.W. at school, and came back to
the hospital to get Ashford. Ashford took the application
with him and was dropped off at Marjorie's. A friend
picked him up and he left. He was gone when he got the call
from Marjorie about N.W.'s allegations. Ashford stayed in
Tunica until Crystal told him Detective Sanders wanted to
talk to him. He went to the police station and gave a
recorded statement. According to Ashford, in the early 2000s,
he was working for Metro Foods. Then he went to Lucite
International as a forklift operator. After that, he worked
in construction for Tony Jones before taking a job at Walmart
in Batesville, where he worked in loss-prevention before
being promoted to service manager of the tire and lube
express. However, he later testified that, at the time of his
arrest on December 19, 2012, he was working at Tri-Lakes
Hospital. When he got out on bond, he went to work at
Walmart, first in the garden center, then in loss-prevention,
and finally as tire and lube service manager.
Ashford denied having any sexual or inappropriate contact
with N.W. He stated Marjorie was easy to wake up. He denied
ever sleeping in the same bed with N.W., regardless of
whether Marjorie was present or not. He stated he saw N.W.
only on holidays, birthdays, and other special occasions. He
denied ever having an STD. Ashford testified he never spent
any time in 2007, 2008, or 2009 with Marjorie. In 2010, he
and Marjorie started talking. Though he was still seeing and
staying with Draper, he started going to Marjorie's
during the week to be closer to work. According to Ashford,
he never volunteered to keep any of the children and was
never alone with N.W. However, he did admit to taking
Marionette and her children to Le Bonheur and driving back
with just N.W. in the car. This occurred in either January or
February of 2012, when N.W. was fourteen years old. He denied
trying to mess with or touch her in any way or that they were
having sex going down the road. On cross-examination, Ashford
denied ever being alone with N.W. He admitted that N.W. had
spent the night at Marjorie's with Ashford present. He
reasserted that he did not see Marjorie until 2010 and that,
even then, they were simply "sex partners." He
testified he started working for the seasonal lawn service in
2011 and worked in construction as needed for Tony Jones
before that. Ashford denied ever agreeing to pay for an
abortion but admitted to agreeing to help "in any way
After Ashford's testimony, the defense rested. Following
deliberations, the jury found Ashford guilty on all
counts. Ashford then filed a motion on April 28,
2015, for judgment notwithstanding the verdict (JNOV) as to
count three or in the alternative, a motion for new trial. In
the motion, Ashford alleged that the verdict was not
supported by evidence, that it was contrary to the weight of
the evidence, and that he had newly discovered evidence that
would produce a different result at a new trial. Ashford
alleged that, following trial, N.W. posted on Facebook that
she had been forced to lie. Two days later, he filed a motion
requesting a subpoena duces tecum directed to Facebook to
produce Facebook pages belonging to N.W., Marionette,
Marjorie, and Jessica.
A hearing was held on June 10, 2015, regarding the post-trial
motions. At that first post-trial hearing, the trial court
granted the motion for a subpoena duces tecum and held the
motion for JNOV or new trial in abeyance per Ashford's
request. At that hearing, Ashford offered a post he
attributed to N.W. "wherein she recants her testimony
and says that she was lying." Ashford also claimed to
have text messages from Jessica describing a scheme to have
him convicted for leaving Marjorie for another woman.
According to Ashford's counsel, the Facebook post was
provided by some third party to Ashford's wife, who was
hospitalized in Tennessee and unable to attend the hearing.
The State countered that if questioned, N.W. would deny
making the post alluded to by Ashford. In regard to the
subpoena requested, the State requested that the subpoena be
expanded to include Crystal's Facebook page, for Crystal
had acknowledged the existence of fake profiles to create
drama between the families. That request also was granted.
The court granted the subpoena duces tecum in the interest of
justice so the evidence could be "properly explored and
given whatever value it ought to be given." The subpoena
was issued on July 7, 2015.
Facebook responded to the subpoena duces tecum by letter
dated July 16, 2015, informing defense counsel that the
Stored Communications Act exempted it from state subpoena powers.
In the same correspondence, Facebook informed her of two
alternative means of retrieving the information sought: (1)
subpoena the information directly from the individual users
or (2) work with the prosecutor to secure a search warrant.
Ashford chose to issue subpoenas directly to Marjorie,
Jessica, Marionette, and N.W. The trial court granted that
request on October 7, 2015. The respondents were to produce
the requested pages to the court on October 16, 2015.
At the October 16 hearing, Ashford's counsel acknowledged
receipt of the information requested in the motion for
subpoenas duces tecum from everyone except N.W. The State
informed the court that N.W.'s Facebook pages had been
placed in the court file. When those pages could not be found
in the court file, the State provided Ashford a printout of
N.W.'s Facebook page that Detective Sanders had obtained
voluntarily from N.W. after Ashford filed his first motion
for JNOV or new trial on April 28, 2015. The State had N.W.
review the pages produced by Detective Sanders to determine
if they were identical to those N.W. had brought to the court
that day and that N.W. would testify that they were
identical. Defense counsel took issue with those pages. The
court specifically asked N.W. if she had brought her pages to
court that day. She said she did, and she had given them
either to Sanders or to the prosecutor. The court then
inquired of the prosecutor what she had done with N.W.'s
pages. She replied that she had furnished N.W.'s pages to
the sheriff at Ashford's counsel's request.
Ashford's counsel confirmed the State's version of
No further action was taken that day other than setting
Ashford's sentencing hearing for October 27-eleven days
later. The court unequivocally stated that the 27th was for
sentencing only and imposed an October 20 deadline for filing
any other matters. No other motions or matters were brought
to the court's attention by the October 20 deadline.
On the 27th, the court opened the hearing by stating,
The last time we were here, which I believe was October 16,
the court announced that all discovery or any other matters
pertaining to this case would be brought on or before the
20th. Nothing's been brought to my ...