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Ellis v. State

Court of Appeals of Mississippi

June 4, 2019

ROBERT ELLIS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 11/18/2016

          UNION COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JOHN ANDREW GREGORY

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN

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

          DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE

         EN BANC.

          J. WILSON, P.J.

         ¶1. Robert Ellis was indicted on three counts of sexual battery of his then-fourteen-year- old daughter. A Union County jury found Ellis guilty on all three counts, and the court sentenced him to three concurrent terms of thirty years in the custody in the Department of Corrections. On appeal, Ellis argues that his trial counsel provided ineffective assistance by not objecting to the continued service of a juror who realized and disclosed mid-trial that he had taught the victim in school. In addition, Ellis raises a number of other issues in his pro se supplemental brief. We find no error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In 2015, Ellis lived in New Albany, Mississippi, with his wife, Vicky, and their four children-three sons and a daughter. The oldest son was Vicky's from a previous marriage but was adopted by Ellis. Kelly was Ellis's daughter from a previous relationship.[1]

         ¶3. Kelly began living with Ellis and Vicky when she was eleven or twelve years old. The Department of Human Services (DHS) had removed her from her mother's home due to her mother's habitual drug use. Before Kelly moved in with Ellis and Vicky, she saw Ellis only occasionally on holidays. Even after she moved in with Ellis, she did not have a close relationship with him. However, at some point things between them began to change. Ellis started to hug her more often, and "when [they] would hug at night, sometimes he would pull [her] into his lap and it would last longer than a normal hug should."

         ¶4. Kelly testified that Ellis had sex with her on three occasions. The first incident occurred on or about May 21, 2015. Ellis said that he needed to go buy cigarettes and told Kelly to come with him. They drove to a secluded area in the woods near their home. Ellis told Kelly to get in the backseat. She testified that Ellis got in the backseat with her, took off her clothes, took off his own clothes, put on a condom, and had sex with her.

         ¶5. The second incident occurred in the family's home about two days later. Kelly was in the living room reading a book, while Vicky was out fishing with her sons. Ellis came home and went to take a shower. When he returned to the living room, they "had a normal conversation for a while," but then Ellis "took [her] book, took off [her] clothes, took off his [own clothes], put a condom on," and had sex with her.

         ¶6. The third incident occurred on or about June 2, 2015. Kelly testified that this final incident happened much like the first. Ellis took her to the same secluded area in the woods near their home, undressed her, and had sex with her in the backseat of his car.

         ¶7. When Ellis left the house with Kelly on June 2, Vicky and her three children left the family's home. Vicky testified that she had become suspicious of Ellis's relationship with Kelly about a year after Kelly moved in with them. She explained that "when she moved in, [Ellis] kind of pushed me and the boys away." Vicky eventually confronted Ellis about the nature of his relationship with Kelly. Ellis told her that if anyone found out about his relationship with Kelly, he "would kill the bitch and the body would never be found." Vicky testified that she also knew about Ellis's relationship with Kelly because she had seen text messages that Ellis and Kelly had exchanged. She testified that when Ellis admitted to having sex with Kelly, she did not initially believe him.

         ¶8. When Kelly and Ellis returned home on June 2, Vicky and her sons were gone. Vicky's grandfather was there and told Ellis and Kelly that they needed to leave. Ellis and Kelly quickly packed a few things and went to the home of Brad and Melanie Lott. Brad was Ellis's employer at the time. When they arrived at the Lotts' home, Ellis told Kelly to take a shower. When Kelly came back downstairs, Brad Lott had taken Ellis to a hotel. Kelly stayed at the Lotts' home that night.

         ¶9. Vicky's grandfather reported to law enforcement that Ellis was sexually abusing Kelly, and Detective David Garrison of the Union County Sheriff's Department went to the Ellises' home to investigate. When Garrison arrived on the night of June 2, no one was there, but Vicky's grandfather told Garrison that Ellis and Kelly were at the Lotts' home. Later that night, Garrison contacted Brad Lott. Garrison instructed Brad Lott to keep Ellis and Kelly separated and to have them report to the sheriff's department the next day.

         ¶10. The next morning, June 3, 2015, Melanie Lott took Kelly to the sheriff's department. Initially, Kelly disclosed few details to the investigators because "[she] was scared that somehow it would get back to [her] dad and [she] would get in trouble for it." However, she eventually told the investigators where Ellis had sex with her.

         ¶11. After Kelly was interviewed, she was taken to the Rape Crisis Center in Memphis, where she was examined by Phyllis Crump, a forensic nurse practitioner who specializes in sexual assault examinations. Crump testified that her examination of Kelly indicated that penetration had occurred.

         ¶12. Ellis also reported to the sheriff's department on June 3. Garrison read Ellis his rights, and Ellis signed a Miranda waiver. Garrison interviewed Ellis briefly. Ellis stated that he would plead guilty and did not want to "drag his daughter through the mud." Ellis also ...


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