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Lewis v. State

Court of Appeals of Mississippi

October 29, 2019

OREN JOSEPH LEWIS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/20/2017

          HANCOCK COUNTY CIRCUIT COURT HON. LAWRENCE PAUL BOURGEOIS JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: CYNTHIA ANN STEWART

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MATTHEW WYATT WALTON

          BEFORE J. WILSON, P.J., TINDELL AND LAWRENCE, JJ.

          TINDELL, J.

         ¶1. On June 16, 2017, a jury found Oren Lewis guilty of capital murder for the death of his two-year-old daughter, Ma'Leah Grace Bush. The Hancock County Circuit Court sentenced Lewis to life imprisonment without eligibility for parole. On June 23, 2017, Lewis filed an unsuccessful post-trial motion requesting an acquittal or, alternatively, a new trial. Lewis now appeals to this Court. Finding no error, we affirm Lewis's conviction and sentence.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On May, 21, 2015, Lewis was indicted for capital murder for Ma'Leah's death. Lewis's jury trial was held June 13-15, 2017. During trial, the jury heard testimony from numerous witnesses for the State and Lewis. The facts leading up to the incident primarily stemmed from the testimony of Lewis, Amanda Proulx (Lewis's wife), Jalen Walker (Lewis's son), Michaela Walker (Lewis's step-daughter), and Dena Lohman (Amanda's friend).

         ¶3. Prior to his conviction, Lewis testified that he was a special-education teacher at North Gulfport Middle School. Lewis and Amanda lived in Waveland, Mississippi, with four children-Jalen and Bralen (Lewis and Amanda's seven-year-old and three-month-old sons), Michaela (Amanda's nine-year-old daughter), and Ma'Leah, who was two years old at that time. Amanda testified that she worked the night shift at Ochsner's Hospital in Slidell, Louisiana, leaving Lewis responsible for taking care of the four children while she was at work.

         ¶4. Amanda and Dena testified that on the morning of August 24, 2013, they both went to Biloxi for a girls' day, leaving Lewis with Amanda's and Dena's children. When Amanda and Dena returned that evening, Dena took Jalen, Michaela, and Ma'Leah to spend the night at her house. Dena testified that at this point, Ma'Leah was acting normally and was excited to spend time with Michaela and Dena's daughter, Allie.

         ¶5. Dena stated that she left Lewis and Amanda's home and took the children to McDonald's to eat. After dinner, Dena took the children back to her house, where Jaylen played with Dena's son, Caden, and Allie, Michaela, and Ma'Leah played "Just Dance" and polished each other's toenails. Dena testified that Ma'Leah was dancing, walking around, and was very happy all night. Dena put the children to bed, and Ma'Leah slept in Allie's room with Allie and Michaela.

         ¶6. Meanwhile, that same night, Amanda and Lewis both testified that they went to a casino in Gulfport while a babysitter took care of Bralen. The couple returned home between 2 a.m. and 4 a.m. on Sunday, August 25, 2013, the day of the incident. Bralen woke up crying around 6 a.m., and Amanda fed him before returning to sleep. When Bralen woke up again, around 8 a.m., Lewis got up with him and cared for him the rest of the day while Amanda rested for work.

         ¶7. That Sunday morning, Dena testified that she took all of the children to church. Ma'Leah was very well-behaved at church and sat near Dena during the service. Dena took Michaela and Allie to dance practice and took Jalen and Ma'Leah back home around 2:30 p.m. At the time, Amanda recalled Ma'Leah walking, talking, and acting normally. Amanda testified that the last time she saw Ma'Leah before the incident in question was around 6:15 p.m., just before leaving their house for work. Again, Ma'Leah appeared to be normal and was eating a bag of chips just as Amanda left the house.

         ¶8. Lewis testified that after Amanda left for work, he was in charge of making meals and taking care of Michaela, Jalen, Bralen, and Ma'Leah. Lewis stated that Ma'Leah was very tired and would not eat while Bralen-a newborn-was "inconsolable" that night. Lewis also testified that Ma'Leah refused to eat that night, and after she spit out her food, he cleaned her up. At trial, Amanda read a series of text messages to the jury that were exchanged between her and Lewis around 8:10 p.m. that night. In the messages, Lewis expressed frustration with taking care of the children, specifically Bralen, and Amanda attempted to calm Lewis down. Amanda also testified that she called Lewis around 10 p.m. to check on him. Lewis told Amanda that Bralen had finally fallen asleep but did not eat much that night. Amanda warned Lewis that he should be prepared to be up that night with Bralen because he would be hungry. Amanda testified that she and Lewis never spoke about Ma'Leah during these exchanges, and to her knowledge, Ma'Leah was fine at this point in the night.

         ¶9. At trial, Lewis, Michaela, and Jalen all testified to three different versions of the events leading up to Ma'Leah's death. Immediately prior to her testimony, Michaela informed a victim's coordinator for the State that her mother, Amanda, had asked her to tell the jury that she did not remember anything that happened the night of Ma'Leah's death. The State informed the circuit court that Michaela was visibly upset and crying. However, Michaela proceeded with her testimony.

         ¶10. Michaela testified that, after her mother went to work, Lewis was the only adult left to watch Jalen, Bralen, Ma'Leah, and her. That night, Michaela testified that she and Jalen watched television in Jalen's room. Michaela went to take a bath but heard a loud noise that sounded like thunder coming from the living room. Michaela then testified that she went back into Jalen's room. Soon after, Michaela and Jalen heard three "slapping noises," again coming from the living room. After hearing the slapping noises, Michaela went into the living room and saw only Lewis and Ma'Leah. Michaela testified that Ma'Leah was crying. Lewis turned to Michaela and said, "I didn't touch her." Michaela went back to Jalen's room and continued watching television.

         ¶11. Michaela testified that, some time later, she went into the living room again to put Ma'Leah to bed. Michaela picked Ma'Leah up from the couch and noticed a "knot on her head." Michaela took Ma'Leah to her room and placed Ma'Leah on her (Michaela's) bed before going back to Jalen's room. Michaela testified that she and Jalen were sitting on Jalen's bed watching television and could see out of Jalen's bedroom door into the hallway. Sometime later, Michaela and Jalen fell asleep. Michaela was later awoken by Lewis's loud footsteps and looked out into the hallway. In the shadows on the wall across from her room, Michaela saw Lewis pick Ma'Leah up and "toss" her onto Michaela's bed twice. Michaela testified that she fell asleep, and she was again awoken by Lewis's footsteps. Michaela again looked out into the hallway and saw Lewis, who was now walking down the hallway toward the back of the house. Michaela stated that Lewis was holding Ma'Leah's body out and away from him. Michaela testified that she fell asleep one more time and was awoken by strangers asking her questions and telling her that Ma'Leah had been hurt.

         ¶12. Jalen's testimony about that night differed slightly. Jalen testified that he and Michaela were watching television in his room when they heard a loud "boom" coming from Michaela's room. Jalen testified that he and Michaela both went to the bedroom and that Lewis came from the living room to the bedroom. Jalen further testified that he and Michaela saw Ma'Leah lying on the ground, and unlike Lewis's testimony, Jalen said that he did not see any part of her body caught in Michaela's trundle bed. Jalen then remembered going to the hospital in New Orleans after Ma'Leah had been hurt.

         ¶13. Lewis recalled a different set of events surrounding Ma'Leah's death. Lewis testified that he gave Ma'Leah a bath and dropped a bottle of shampoo, which made the first "boom" that Jalen and Michaela heard. Lewis testified that Jalen and Michaela came in the bathroom to ask about the "boom," and Lewis told them that he had dropped the shampoo bottle. Lewis testified that after Ma'Leah's bath, Jalen and Michaela watched television at the back of the house while he sat in the living room on the couch with Bralen and Ma'Leah. Lewis said that at some point later in the evening, Michaela came and put Ma'Leah to bed. But in a separate statement made on the night of the investigation, Lewis told investigators that he actually put Ma'Leah to bed. Lewis testified that Ma'Leah slept in Michaela's trundle bed, which was approximately two feet from the ground in Michaela's bedroom.

         ¶14. Lewis then testified that he put Bralen in his crib and went to bed himself. Lewis stated that he heard the second "boom" and went into Michaela's room to check on Ma'Leah. Lewis testified that Jalen and Michaela were asleep in Jalen's room and never came into Michaela's room to see what had happened, as they testified. Lewis testified that when he came to check on Ma'Leah, he saw her right foot caught in the wire of Michaela's trundle bed and her head and body on the carpeted floor next to the bed. After calling Ma'Leah's name, Lewis stated that she was unresponsive. He then called 911 and placed Ma'Leah on the living-room couch until an ambulance arrived. When asked about Jalen's and Michaela's versions of the events, Lewis responded that their accounts were "[f]abrication."

         ¶15. During trial, the State offered a number of medical and law-enforcement witnesses to testify as to the aftermath of Ma'Leah's injury. Allison Jacobson, a 911 dispatcher, testified that she received the call from Lewis the night of the incident stating that Ma'Leah had fallen from her bed. Benjamin Bowden, an investigating officer, testified that he was dispatched to Lewis's home following the 911 call. Bowden arrived at Lewis's house and saw Ma'Leah lying on the couch in the living room. Ma'Leah initially appeared to be deceased, but then Bowden heard a gurgling sound and saw Ma'Leah struggling to breathe. Bowden testified that he observed "a large indentation and some bruising [and] a large pooling of blood underneath the skin on the left side of her head." Bowden also testified that Lewis, who appeared to be calm, informed Bowden that Ma'Leah had fallen out of the bed in Michaela's room. Bowden then surveyed Michaela's room and observed that the bed was above carpeted floor. Bowden testified that he notified an investigator from the Waveland Police Department and remained at the house until someone was called to look after Michaela, Jalen, and Bralen.

         ¶16. David Allen, the police chief at the time of the incident, testified to investigating Lewis's house on August 26, 2013. Because Lewis claimed that Ma'Leah had fallen from the bed, Allen and another investigator inspected Michaela's room and bed. Allen testified that the house was raised, meaning that the floor under Michaela's room was hollow and not a solid, concrete slab. Allen further testified that he took measurements of Michaela's bed. According to Allen, the length from the top of the highest part of the bed to the carpeted floor measured approximately 26 inches.

         ¶17. Kyle Carter, a paramedic who arrived at the scene, testified that Ma'Leah appeared to be unresponsive and had significant swelling on her head. Carter also testified to suctioning a significant amount of blood from Ma'Leah's mouth. Carter ultimately transported Ma'Leah to Hancock Medical Center, stating that she was "cool to the touch."

         ¶18. Martha Moraway, an emergency-room nurse who treated Ma'Leah the night of the incident, also testified at trial. Moraway testified that Ma'Leah required ventilation upon arrival at Hancock Medical Center. Moraway observed a large contusion on the left side of Ma'Leah's head, a small indention on the right side of her head, a small abrasion on her forehead, bruising on her arms and legs, and blood in her mouth. Moraway also testified that Lewis told her in the emergency room that Ma'Leah had fallen from her bed. However, Moraway testified that, from her observations, Ma'Leah's injuries were inconsistent with a child who had fallen from a bed.

         ¶19. Dr. Edward Byrnes, Ma'Leah's treating emergency physician at Hancock Medical Center, testified at trial as an expert in emergency medicine. Dr. Byrnes stated that Ma'Leah entered the hospital around 11:34 p.m. on the night of the incident. Dr. Byrnes examined Ma'Leah and testified that she suffered "significant multiple skull fractures" as well as a significant bleeding in the brain. Dr. Byrnes testified that he had treated "a couple hundred" head injuries and that every year he treated 30-40 children whose injuries resulted from falling out of a bed. In his expert opinion, Dr. Byrnes stated that Ma'Leah's injuries were inconsistent with a child who had just fallen 26 inches from a bed. Dr. Byrnes further testified that Ma'Leah's injuries were consistent with non-accidental trauma.

         ¶20. Around 3 a.m. on August 26, 2013, Ma'Leah was airlifted to the Children's Hospital in New Orleans and treated by a team of doctors. That team included Dr. Jamie Jackson, a child-abuse pediatrician, who also testified at trial. Dr. Jackson testified that because there was suspected child abuse involved, she examined Ma'Leah and spoke with Lewis, Michaela, and Jalen. According to Dr. Jackson, Lewis told her that, after putting Ma'Leah to sleep, he heard "a boom boom" noise and found Ma'Leah unresponsive with her right foot stuck in the trundle bed. Upon interviewing Michaela and Jalen, however, Dr. Jackson became concerned. Dr. Jackson testified that the children's statements conflicted in such a way that it seemed as if someone was trying to influence their statements. Dr. Jackson also testified that Jalen stated that his sister told him "not to talk about things."

         ¶21. In treating Ma'Leah, Dr. Jackson testified that Ma'Leah sustained serious bruising around both ears, on the left side of her face and head, on her right knee and lower leg, and on her left shoulder. Dr. Jackson testified that the amount and specific locations of the bruising was not indicative of one incident of a child falling from her bed. Dr. Jackson stated that the ear bruising alone indicated that Ma'Leah had been physically abused. Dr. Jackson also testified that Ma'Leah sustained a complex skull fracture and multiple fractures to her vertebrae. Dr. Jackson explained that most "typical simple household falls" result in a single linear skull fracture or, in very rare occasions, two skull fractures. Ma'Leah's injuries, however, were severely complex and suggestive of a child being forcibly "slammed down directly onto [her] head," thereby fracturing the skull and "crunching" the vertebrae. Also, Dr. Jackson noted that Ma'Leah had extensive retinal hemorrhaging, or bleeding to the eyes, which "is almost exclusively seen with regard to abusive head traumas." Overall, Dr. Jackson concluded that Ma'Leah's injuries were not consistent with the history Lewis provided. Dr. Jackson testified that, in her expert opinion, the injuries were the result of child abuse.

         ¶22. Dr. Alejandro Leon, Ma'Leah's pediatric ophthalmologist at the Children's Hospital of New Orleans, also testified at trial. Dr. Leon testified that, like Dr. Jackson, he too received a medical history on Ma'Leah stating that she had fallen from a trundle bed. Dr. Leon explained that most children who are injured from a low-height fall sustain little, if any, hemorrhaging to the eyes. However, Dr. Leon's examination showed that Ma'Leah had sustained extensive hemorrhaging in both eyes, which affected multiple layers of her eyes. Dr. Leon testified that, in his opinion, this type of damage to Ma'Leah's eyes was the result of non-accidental trauma or child abuse.

         ¶23. Another one of Lewis's defense theories at trial was that Ma'Leah's injuries resulted from Lewis rolling onto Ma'Leah while they were asleep on the couch and crushing her. Lewis's counsel questioned each doctor about the possibility of Ma'Leah sustaining a "crush injury," or an injury resulting from Lewis accidentally rolling onto Ma'Leah during sleep. Dr. Byrnes testified that, based upon his knowledge and experience, he had never heard of a parent rolling onto a child and the child sustaining Ma'Leah's severity of injuries. Dr. Jackson testified that children typically do not suffer such severe skull fractures in these situations but usually die from suffocation, which was not present with Ma'Leah. Dr. Leon also testified that when a parent rolls onto a child during sleep, the child likely suffers from a lack of oxygen. Dr. Leon explained, however, that a lack of oxygen would not cause the type of multi-layer hemorrhaging that Ma'Leah suffered.

         ¶24. As a result of her injuries, Ma'Leah died on August 27, 2013. On August 28, 2013, Dr. Paul McGarry performed the autopsy, but he passed away prior to trial. Dr. Mark LeVaughn, the Chief Medical Examiner for the State of Mississippi, testified at trial as to Ma'Leah's autopsy report. Dr. LeVaughn testified that Ma'Leah sustained external bruising on the left ear, the left side of her head, the left shoulder, the right lower abdomen, the right side of her chest, the right foot, and the front of her left shin. Internally, Ma'Leah sustained a complex skull fracture and massive hemorrhaging to all levels of her brain, indicating "a tremendous amount of force" to the left side of Ma'Leah's head. Dr. LeVaughn testified that, had Ma'Leah fallen from her bed, at most, she would have suffered "some redness and abrasion" and possibly swelling. Dr. LeVaughn testified that Ma'Leah would "absolutely not" have sustained such severe injuries from falling out of bed. Dr. LeVaughn further testified that, to a reasonable degree of medical certainty, Ma'Leah's cause of death was a "blunt head injury," and her manner of death was "homicide."

         ¶25. After hearing all the evidence, the jury convicted Lewis of capital murder. The circuit court sentenced Lewis to life imprisonment without eligibility for parole, pursuant to Mississippi Code Annotated section 97-3-21(3)(b) (Supp. 2013). Aggrieved, Lewis appeals and argues the following: (1) Mississippi Code Annotated section 97-5-39(2) (Supp. 1989) is unconstitutional; (2) The State violated Lewis's due-process rights by failing to include all the elements of felony child abuse in his capital-murder indictment; (3) The State violated Lewis's due-process rights by failing to include a statutory aggravating factor or a mens rea element in his capital-murder indictment; (4) The circuit court erred by denying his motion to dismiss and refusing a jury instruction regarding spoliation of evidence; (5) The circuit court erred by admitting improper Rule 404(b) evidence; (6) The circuit court erred by denying Lewis's jury instruction on culpable negligence; (7) The circuit court erred by allowing the underlying felony of child abuse to be used as an aggravating factor for sentencing; and (8) The circuit court erred by imposing a life sentence without eligibility of parole without conducting a jury hearing.

         STANDARD OF REVIEW

         ¶26. "When addressing a statute's constitutionality, we apply a de novo standard, bearing in mind (1) the strong presumption of constitutionality; (2) the challenging party's burden to prove the statute is unconstitutional beyond a reasonable doubt; and (3) all doubts are resolved in favor of the statute's validity." Bosarge v. State, 141 So.3d 24, 27 (¶11) (Miss. Ct. App. 2014). Additionally, we apply a de novo standard of review when a defendant challenges the legal sufficiency of an indictment. Beal v. State, 86 So.3d 887, 891 (¶9) (Miss. 2012). We also review de novo a circuit court's denial of a defendant's motion to dismiss and will not disturb the circuit court's findings unless they are manifestly wrong, clearly erroneous, or apply an erroneous legal standard. McLendon v. State, 945 So.2d 372, 382 (¶26) (Miss. 2006).

         ¶27. Admission of evidence under Mississippi Rule of Evidence 404(b) is reviewed for abuse of discretion. Wilson v. State, 149 So.3d 544, 550 (¶22) (Miss. Ct. App. 2014). We also review a circuit court's denial of proposed jury instructions for abuse of discretion. Thompson v. State, 119 So.3d 1007, 1009 (¶3) (Miss. 2013). Finally, "[s]entencing is [also] within the complete discretion of the [circuit] court and not subject to appellate review if it is within the limits prescribed by statute. Unless the sentence is grossly disproportionate or not within the statutory limits, we will not disturb the sentence on appeal." Cummings v. State, 58 So.3d 715, 719 (¶19) (Miss. Ct. App. 2011) (citation omitted).

         ANALYSIS

         I. Whether Mississippi Code Annotated section 97-5-39(2) (Supp. 1989) applies and whether the amended statute is unconstitutional.

         ¶28. Lewis was convicted of capital murder while in the commission of felonious child abuse, pursuant to Mississippi Code Annotated section 97-3-19(2)(f) (Supp. 2013). The statute defines this type of capital murder as "[t]he killing of a human being without the authority of law by any means or in any manner . . . [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of felony child abuse and/or battery of a child in violation of subsection (2) of section 97-5-39." Miss. Code Ann. ...


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