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Ashford v. State

Supreme Court of Mississippi

June 8, 2017

KELVIN D. ASHFORD a/k/a KELVIN ASHFORD a/k/a BOOMAN
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 10/27/2015

         TATE COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM, SR. TRIAL JUDGE

          TRIAL 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

          BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.

          RANDOLPH, PRESIDING JUSTICE

         ¶1. 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 affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. According to N.W., [1] her aunt, Marjorie Willie, had an on-again, off-again relationship with Kelvin Ashford[2] 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).

         ¶3. 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.[3] 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[4]) were working.

         ¶4. 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.[5] 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.

         ¶5. 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.

         ¶6. 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.

         ¶7. 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.[6] 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.

         ¶8. 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.

         ¶9. 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 sleeper.

         ¶10. 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.

         ¶11. 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."[7] 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.

         ¶13. 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.

         ¶14. 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.

         ¶15. 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.

         ¶16. 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.

         ¶17. 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.

         ¶18. 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.

         ¶19. 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 possible."

         ¶20. After Ashford's testimony, the defense rested. Following deliberations, the jury found Ashford guilty on all counts.[8] 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.

         ¶21. 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.

         ¶22. Facebook responded to the subpoena duces tecum by letter dated July 16, 2015, informing defense counsel that the Stored Communications Act[9] 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.

         ¶23. 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 events.

         ¶24. 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.

         ¶25. 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 ...

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