LESLIE DANIELLE DEWITT A/K/A LESLIE D. DEWITT APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 10/17/2016.
HANCOCK COUNTY CIRCUIT COURT HON. LAWRENCE PAUL BOURGEOIS,
JR., TRIAL JUDGE.
ATTORNEY FOR APPELLANT: JIM L. DAVIS, III.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LAURA HOGAN TEDDER.
GRIFFIS, P.J., CARLTON AND WILSON, JJ.
Leslie Danielle Dewitt appeals her conviction for two counts
of touching a child for lustful purposes pursuant to
Mississippi Code Annotated section 97-5-23(2) (Rev. 1998).
Dewitt argues that a new trial is warranted because of the
service of an unqualified juror who withheld disqualifying
information, the trial court incorrectly denied a motion to
prevent the admission of a recorded conversation involving
the appellant, and the trial court committed reversible error
in denying the introduction of a lesser-included jury
instruction. We find no error and affirm.
AND PROCEDURAL HISTORY
Leslie Danielle Dewitt, a female and once junior high and
high school girls' basketball coach at Hancock High
School, was convicted of two counts of touching a child for
lustful purposes. The child, Bethany Foster,  also female, was
a tenth-grade basketball player under Dewitt at Hancock.
Foster testified at trial that her and Dewitt's
player-coach relationship, which began in junior high school
and through basketball, developed over time during her high
school years. Foster would routinely practice with Dewitt
after school-hours and babysit her son at Dewitt's home.
The two maintained a close relationship for years prior to
Foster also testified that while in high school in December
2009, she was sixteen years old and spending the night at
Dewitt's house with a teammate. Foster stated that after
everyone else had gone to sleep, Dewitt committed sexual acts
against her. Foster testified that Dewitt kissed Foster,
placed her hand on Foster's vagina, and placed her
fingers in Foster's vagina. Foster testified that the
physical aspect of their relationship was repeated on more
than twenty occasions from December 2009 until July 2010. It
became routine. Foster also testified that during this time
Dewitt placed her mouth on Foster's vagina and also used
a sex toy on Foster's genitals. Dewitt denies that any
sexual conduct ever occurred.
Foster did not tell anyone about the nature of the
relationship. She testified that it was too embarrassing and
that she was concerned what her friends and family would
think given their religious background and the impact it
could have on Dewitt. However, despite their best efforts,
some semblance of a relationship between the two became
evident to others, and after repeated failed attempts by
Hancock school administrators to get Dewitt to distance
herself from Foster, Dewitt was forced to resign. Foster and
Dewitt remained in contact.
In January 2013, Foster returned home from college,
struggling with depression and anxiety that she testified
stemmed from her past relationship with Dewitt and the
subsequent confusion it caused her. While home, Foster told
her mother, Monique, about the sexual relationship between
her and Dewitt for the first time.
Monique then took Foster to the police station to report the
misconduct. Monique testified at trial that she later decided
to confront Dewitt about the accusations and record the
conversation on her cell phone. After letting the police know
of her intentions, the police asked if she would be willing
to use their recording device, instead of her cell phone, to
record the conversation. Monique agreed. The police provided
Monique with a recording device and followed her to meet
Dewitt and observe the encounter from a distance. The police
did not offer Monique any advice for techniques to use during
the conversation or assistance in carrying out the act.
Monique confronted Dewitt in the parking lot of Pearl River
High School where Dewitt had just finished coaching a
basketball game. While Monique did not physically force
Dewitt into her car, Monique threatened to "make a
scene" if Dewitt did not agree to get in the car and
speak with her. Dewitt and Monique got into Dewitt's car
and Monique recorded the conversation unbeknownst to Dewitt.
In the recording, Dewitt made allegedly incriminating
statements without instruction regarding Miranda
rights. After the encounter, Monique returned the
recording and recording device to the police. Later that
night, Dewitt went to the police station on her own accord
where she was informed of her Miranda rights before
giving a statement. She was arrested about two months later
in March 2013. Prior to trial, Dewitt filed a motion in
limine to exclude the recording. The motion was denied, and
the recording was played for the jury over Dewitt's
After jury deliberations began, but before the jury reached a
verdict, the circuit clerk discovered that one of the jurors,
Simmons, was not a registered voter of Hancock County and had
only lived in the county for two months prior to trial. As
the trial judge stated, Simmons appeared in court because he
was responding to a jury summons that was issued to his
address in Hancock County. Although it is believed that the
summons was meant for a prior occupant of the same address,
Simmons received the summons, appeared in court, and went
through all of the juror qualification process.
Before trial, the trial judge, the State, and the defense
counsel all agreed that to the best of their knowledge the
trial court properly impaneled and swore in the jury, a
complete and proper voir dire was conducted, and all of the
jurors were accepted in accordance with the competent juror
qualifications under Mississippi Code Annotated section
13-5-1 (Rev. 2012). The trial judge states in the record that
he "specifically ask[ed] the question, you must be
either a qualified elector or resident freeholder of the
[county] for more than one year." However, there is no
evidence of this actual line of questioning of the jurors by
the trial judge or the jurors' responses to the questions
in the record.
While the information regarding how long Simmons had lived in
the county was available to each side's counsel prior to
trial on the juror's information card, his voter
registration status was not. Dewitt alleges that Simmons
withheld information that would have allowed her to strike
him for cause. Again, according to the record, the parties at
trial seem to agree that the jury was properly questioned
during voir dire, but there is no record of the actual
questioning or responses from the jurors. Upon hearing of the
clerk's discovery, and before a verdict was reached,
Dewitt quickly moved for a mistrial based on Mississippi Code
Annotated section 13-5-1. However, according to the trial
judge, Simmons did not intentionally do anything wrong. He
responded to a summons issued to his address, was subjected
to voir dire by both sides, and was accepted by each.
Accordingly, the motion was denied.
The jury rendered the verdict of guilty of Counts III and IV
for touching of a child for lustful purposes. Dewitt was
subsequently sentenced to the maximums of fifteen years for
Count III and fifteen years for Count IV to run consecutively
for a total of thirty years in the custody of the Mississippi
Department of Corrections. The sentence is set to be served
day-to-day without the possibility of pardon, parole, early
release, or suspension. Dewitt was further ordered to
register as a sex offender. ANALYSIS
Whether the trial court correctly denied Dewitt's
Motion for New Trial despite the service of an
Dewitt argues that Juror 3-26, Simmons, was an incompetent
juror because he was not a registered voter in Hancock County
at the time of trial and had only lived in Hancock County for
two months prior to trial. She alleges that Simmons withheld
this information which would have supported a strike for
cause. Because Simmons served on the jury ...