DRESHAWN SULLIVAN A/K/A DRESHAWN M. SULLIVAN APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 10/19/2017
FORREST COUNTY CIRCUIT COURT HON. JON MARK WEATHERS TRIAL
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KATY T. GERBER KAYLYN HAVRILLA McCLINTON JASON L. DAVIS
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
CARLTON, P.J., TINDELL AND McDONALD, JJ.
Dreshawn Sullivan appeals his Forest County Circuit Court
convictions of "breaking and entering" (i.e.
burglary), attempted kidnapping, and felony child abuse.
Having considered both his and his counsel's arguments,
those of the State, and relevant case law, we affirm.
In the early morning hours of March 16, 2016,
sixteen-year-old R.L. was brutally assaulted in her home by an
unknown male who came in through her bedroom window.
Initially, he told her not to talk and demanded that she
leave with him. When she refused, he punched her in the face
and hit her in the head with a metal object. She fell to the
floor, bleeding and unconscious.
On the evening of the incident, R.L.'s sister, J.L.,
brother, mother, stepfather and J.L.'s boyfriend,
Jonathan Hogen, were in the home. J.L. and Hogen slept in
J.L.'s bedroom. J.L. got up in the middle of the night to
go to the bathroom and heard her sister moaning. J.L. found
R.L. in her bedroom, bloodied and unconscious. J.L. woke her
mother and stepfather, who, along with J.L., took R.L. to the
hospital. Hogen left the home soon after they did and later
testified that he went straight home.
R.L. was severely injured. She underwent brain surgery and
was in a medically induced coma for three weeks. Her surgeon
testified that her skull fracture was so severe that her
brain was literally protruding from her skull and exposed to
the air. Because of brain swelling, he had to remove a
portion of the bone that he later reconstructed. Remarkably,
when she awoke, she remembered all of the events and could
describe her assailant. After hospitalization in Hattiesburg,
she went to Blair E. Batson Hospital in Jackson for a lengthy
For several weeks, the investigation stalled. The rape kit
revealed no semen or sperm. Nothing materialized from
physical items taken from the room and examined for trace DNA
evidence. Then police received a call from R.L.'s friend,
Brianna Pruitt, who had obtained information on the case. She
told them that her cousin, Alexia Jordan, had heard from
Xiara Thompson that Dreshawn Sullivan was at a party saying
that he was the person who had assaulted R.L. Police arranged
a photo lineup with R.L. She identified Sullivan as her
On June 5, 2015, Sullivan was arrested and charged with
aggravated assault. Police detectives testified at trial that
Sullivan waived his Miranda rights and stated that
he had been drinking on Dabbs Street the night of the
incident. He also said that he walked home on a route that,
according to detectives, took him close to R.L.'s home.
When Sullivan said that he did not strike R.L. in the head
with a hammer, the detectives pointed out that they had not
revealed any of the details of the assault. Sullivan stopped
talking and, according to investigators, then asked for a
Sullivan was ultimately indicted, and charged with breaking
and entering, attempted kidnapping and felony child abuse. A
jury trial was conducted during which prosecutors were
allowed to present evidence of another charge against
Sullivan involving a girl named K.L. and evidence of contacts
he had with a girl named R.M.
K.L., age fourteen, testified that during the early morning
hours of May 18, 2015, she awoke when she felt herself being
pulled out of her bedroom window. Her bed was directly under
the window and a man had opened it, reached down, and started
lifting her up and out. She awoke and struggled. When she
tried to scream, he forced a towel into her mouth, cutting
her lip. He had her halfway out of the window when she broke
free and ran down the hall where she met her mother. Although
the man wore a mask, K.L. remembered his eyes.
A few days later, K.L.'s mother, Kizzy Thomas,
encountered a man she thought was named "Mr.
Hattiesburg"; his real name is Derrian Moye. Moye told
Thomas that he was a friend of Sullivan's mother.
Ultimately, he made veiled threats to Thomas about pursuing
K.L.'s assault case. Thomas reported this incident to the
police, who arrested and charged Moye with witness tampering.
Thomas learned from children in the neighborhood who
recognized "Mr. Hattiesburg" that he hung out with
someone named "Mad Five." From a cousin, she
learned that "Mad Five" was Sullivan. Thomas found
Mad Five's Facebook page and showed it to K.L. K.L.
identified Sullivan as the man who tried to kidnap her. K.L.
also testified that she had seen Sullivan on two prior
occasions; once at her cousin's birthday party and
another time just three days before her attack. During her
second encounter, Sullivan walked by her home, saw her on her
porch, and asked if he could come in. She especially recalled
his eyes, "spooky" and staring at her, which
enabled her to identify Sullivan as her attacker from his
Facebook page and a police photo lineup.
R.M., yet another child in the area, had contacts with
Sullivan on Facebook. He had communicated with her through
his account styled "Mad Five Sullivan." At one
point, he texted R.M. at 11 p.m. and asked her which window
led to her bedroom. He asked to come see her but she
declined. He asked again about the location of her window.
These texts and Facebook exchanges were entered into
evidence. Sullivan did not deny his contacts with R.M. or
K.L., but he denied that he tried to kidnap K.L.
Prior to trial, Sullivan challenged the admissibility of
K.L.'s and R.M.'s testimonies through a motion in
limine. After hearing argument, the trial court allowed their
testimonies into evidence based upon the State's
assertions that it was being offered to prove the identity of
R.L.'s assailant, the common scheme that Sullivan used,
and his intent. Sullivan also filed a motion in limine to
exclude Pruitt's testimony that led to the photo lineup,
which was granted. But Sullivan's counsel withdrew the
objection during the trial.
At trial, Sullivan testified in his defense and denied
assaulting R.L. On the night of the incident he said he was
hanging out with his friends-other members of the Almighty
Vice Lord Nation-drinking and selling crack until 3:30 a.m.
He said he was walking home when he spotted Hogen, who gave
him a ride. Hogen had testified earlier and denied this
allegation. Sullivan admitted the Facebook exchanges with
R.M. and said that he talked to K.L. one day while walking
his dog. He also admitted to speaking to his "spiritual
advisor" and "community leader," Moye, about
the allegations. According to Sullivan, Moye said he would
look into it.
The jury convicted Sullivan on all three counts. He was
sentenced to twenty-five years for burglary, to thirty years
for attempted kidnapping, and to life for felony child abuse.
Sullivan appeals these convictions.
Sullivan's appointed appellate counsel raises three
I. Whether the circuit court abused its discretion in
admitting evidence of Sullivan's other bad acts.
II. Whether the circuit court erred in allowing hearsay
testimony of Brianna Pruitt.
III. Whether there was sufficient evidence to sustain
Sullivan's attempted kidnapping conviction or, in the
alternative, whether the jury's verdict was against the
overwhelming weight of the evidence.
subsequently filed a pro se brief and raised additional
issues that we have rephrased for clarity:
IV. Whether Sullivan's constitutional right to a speedy
trial was violated.
V. Whether the weight of the evidence supported the
jury's verdicts for burglary and child abuse.
VI. Whether the prosecutor erred by charging Sullivan with
burglary of a dwelling, attempted kidnapping, and felony
VII. Whether the trial court erred in admitting
Sullivan's post-Miranda statement.
VIII. Whether the trial court erred by allowing Detective
Smith to testify.
IX. Whether the trial court erred by refusing proposed jury
instructions D-2 and D-8.
X. Whether the trial judge engaged in judicial misconduct.
XI. Whether the prosecutor engaged in prosecutorial
XII. Whether Sullivan received ineffective assistance of
Whether the circuit court abused its discretion in
admitting evidence of Sullivan's other
Sullivan challenges the admissibility of K.L.'s and
R.M.'s testimonies as impermissible evidence of other bad
acts. The appellate court reviews the admission of evidence
under the abuse-of-discretion standard and evidentiary
rulings are affirmed unless they affect a substantial right
of the complaining party. Boggs v. State, 188 So.3d
515, 519 (¶9) (Miss. 2016).
Mississippi Rule of Evidence 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be admissible
for other purposes such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
Thus, evidence of other acts or crimes cannot be admitted to
show that a defendant acted in conformity with his or her
character. For example, in Robinson v. State, 35
So.3d 501, 506-507 (¶16) (Miss. 2010), evidence that a
defendant beat and threatened to kill a prior girlfriend was
admitted in that defendant's trial for murdering his
current girlfriend because it was entered merely to show the
defendant's violent nature. The Mississippi Supreme Court
found this to be reversible error. Id. at 507
However, evidence of other acts can be admissible if the
prosecutor clearly articulates the alternative purpose for
the evidence, and shows that a Rule 404(b) exception is met.
Strickland v. State, 220 So.3d 1027, 1033-34
(¶¶15-16) (Miss. Ct. App. 2016). The probative
value of such evidence must not be substantially outweighed
by the prejudicial effect. Leedom v. State, 796
So.2d 1010, 1015 (¶15) (Miss. 2001); M.R.E. 403. If such
evidence has been admitted under Rule 404(b), the trial court
must give an instruction to the jury explaining the limited
purposes for which that evidence may be considered.
Derouen v. State, 994 So.2d 748, 756 (¶20)
(Miss. 2008). There is no abuse of discretion if the circuit
court considered the evidence's admissibility under Rule
404(b) and then filtered it through Rule 403's balancing
test. Parks v. State, 228 So.3d 853, 869 (¶63)
(Miss. Ct. App. 2017).
Testimony of K.L and R.M.
Evidence of a different offense with a different victim may
be considered by the jury if properly admitted under Rule
404(b), weighed against any prejudice to the defendant
through Rule 403, and accompanied by an appropriately drafted
limiting or cautionary instruction. Green v. State,
89 So.3d 543, 549 (¶15) (Miss. 2012) (quoting
Derouen v. State, 994 So.2d at 756 (¶20)).
In Gore v. State, 37 So.3d 1178 (Miss. 2010), the
defendant was charged with molesting his granddaughter. The
court allowed testimony from defendant's children that he
molested them when they were minors. Id. at 1184
(¶14). The court reasoned that the defendant's means
of accomplishing pedophilic sexual activities on past
occasions bore substantial resemblance to each other and with
the present offense, which served as proof of motive and a
common plan or scheme. Id. at 1187 (¶20). The
supreme court agreed, saying that the similarities between
prior instances of misconduct and the charged offense
undeniably brought the testimony of these other victims
within the purview of admissibility under Rule 404(b).
Id; see also Green, 89 So.3d at 550 (¶17)
(determining that the trial court did not abuse its
discretion by allowing four females, who were all related to
the defendant charged with gratification of lust with his
minor stepdaughter, to testify that he had molested them when
they were about the same age).
In Boggs v. State, 188 So.3d 515 (Miss. 2016),
testimony of other minors sexually abused by the defendant
was allowed to show a common plan or scheme and motive. The
minors were all abused at about the same age; two were
related to the defendant; he tutored the other. Id.
at 521 (¶17). He used his relationship of trust as a
family member and caretaker to be alone with them.
Id. Two of the minors' testimonies concerning
the defendant's conduct at the school library were
substantially the same. Id. (¶18). The
testimony was admissible to prove Boggs's motive.
Id. Moreover, the supreme court found the probative
value substantially outweighed the danger of unfair
prejudice. Id. at 822 (¶19).
The case of Fisher v. State, 532 So.2d 992 (Miss.
1988), is also applicable. In that case the victim while
driving in her car was followed by the defendant who flashed
his lights to get her to pull over. He told her she had a
taillight out and when she got out of the car, he raped her.
The victim definitely identified the rapist. But when news of
the incident became public, another woman came forward and
was allowed to testify that the same thing happened to
her-that the same defendant had used the same ruse to get her
to stop, which she did, but she was able to get away before
the defendant could assault her. On appeal, the supreme court
affirmed the admission of the second victim's testimony
to show the defendant's "plan" for assaulting
women. Id. at 1000 (¶12).
In Parks v. State, 228 So.3d 853 (Miss. Ct. App.
2017), we found no error in the admission of prior similar
assaults on other girlfriends to show Parks's motive,
intent and modus operandi. There, two other women testified
about the particulars of the physical assaults, which
included sexual abuse and how Parks used a knife or other
sharp object to threaten or harm his victims. Id. at
In this case, the circuit court heard arguments of counsel
and Sullivan himself on the admissibility of K.L.'s and
R.M.'s testimonies. The court determined that the
evidence was relevant under Mississippi Rule of Evidence 401
because of the substantial similarity of the events. The
circuit court next acknowledged that the evidence would not
be admissible to prove Sullivan's character under Rule
404(b) but that it was admissible to show a common plan or
scheme and identity. The court further found that after
"considering the nature of the case, the act in this
case, the acts in the other two incidents, I believe . . .
the evidence is more probative than prejudicial and the
probative value substantially outweighs the danger of unfair
prejudice to Mr. Sullivan." We agree. Here, the
prosecutor clearly presented the alternative purpose of
K.L.'s and R.M.'s testimonies, which was to show
Sullivan's plan or scheme. As the prosecutor stated,
Sullivan sees young girls, may try to talk to them, but
ultimately goes after them through a window. Their
testimonies were also probative as to the identity of
R.L.'s assailant. We find that there was no error in the
admission of the testimonies of K.L and R.M as they were
entered for an alternative purpose under 404(b), and their
probative value outweighed the prejudicial effect to
Sullivan. Moreover, the court properly gave the limiting
instruction required under Derouen.
Testimony of Moye's attempt to get Thomas to drop
charges, thus creating the inference that Sullivan
was an accessory to witness tampering.
Prior to trial, Sullivan did not attempt to exclude evidence
that Moye attempted to influence Thomas, K.L.'s mother,
the fact that Moye was arrested and charged with witness
tampering. Now Sullivan argues that admission of this
evidence implied that Sullivan was an accessory to Moye's
crime "by his association" with Moye. But the State
never mentioned this testimony or its implications in
closing, and no jury instruction concerning it was requested.
More importantly, at trial, Sullivan did not object when the
investigating officer testified that after Thomas reported
Moye's behavior Moye was arrested and charged with
tampering with a witness. The failure to object to testimony
at trial waives any assignment of error on appeal. Ross
v. State, 16 So.3d 47, 57 (¶21) (Miss. Ct. App.
2009). Accordingly, we find that Sullivan is procedurally
barred from raising this issue for the first time on appeal.
Whether the circuit court erred in allowing hearsay
testimony of Brianna Pruitt.
Mark Hogen allegedly overheard Sullivan at a party saying
that he (Sullivan) had assaulted R.L. Mark told this to Xiara
Thompson, who told Alexia Jordan, who told her cousin,
Brianna Pruitt. When she received this information, Pruitt
went to the police. Authorities later arranged the photo
lineup during which R.L. identified Sullivan as her
assailant. Only Pruitt testified at trial.
Hearsay is a statement, other than the one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted. M.R.E.
801(c). Hearsay is inadmissible "except as provided by
law." M.R.E. 802. Double hearsay is even more
complicated and is incompetent unless each link in the chain
fits under some exception to the hearsay rule. Murphy v.
State, 453 So.2d 1290, 1294 (Miss. 1984). However,
"reversal is required only where abuse of that
discretion can be shown to cause prejudice to the
defendant." Franklin v. State, 136 So.3d 1021,
1028 (¶22) (Miss. 2014). "When determining whether
a statement is prejudicial, th[e] Court has established an
objective test asking how a reasonable objective observer
would under the circumstances be likely to perceive the
statement." Id. at 1029 (¶26) (internal
quotation mark omitted).
Even if evidence is admissible under an exception to the
hearsay rule, the court must conduct an on-the-record
balancing test pursuant to Rule 403 to establish that the
probative value outweighs any prejudice to the defendant.
Jones v. State, 920 So.2d 465, 475 (¶32) (Miss.
2006). In this sense Rule 403 is the ultimate filter through
which all otherwise admissible evidence must pass.
Id. Consequently, this rule necessarily vests in the
circuit court a certain amount of discretion. Id.
(quoting Hart v. State, 637 So.2d 1329, 1336 (Miss.
In a motion in limine prior to trial, Sullivan's defense
counsel objected to Pruitt's hearsay testimony and the
Court sustained the objection in a written order. However, at
trial, when the State started questioning Pruitt and the
hearsay arose, defense counsel initially objected to the
testimony. He then withdrew the objection:
A. My cousin had got in contact with me, and she told me that
she had some information, but she didn't want to tell me
over the phone; so she told me to meet up with her.
Q. There's some tissue, ma'am, if you need it, in
front of you, and when you say your cousin, who's your
A. Alexia Jordan. So she told us to meet up at the beauty
salon. We was at the beauty salon, and she told me that she
heard about him getting drunk and saying what he had did
[DEFENSE COUNSEL]: Objection, Your Honor. It's hearsay
and double hearsay.
THE COURT: All right, let me see the attorneys over here.
MR. WALLACE: It's a miscommunication on our part. This is
. . . .
[STATE]: Are you withdrawing your ...