Barnes v. State

• Decision Date: 12 April 2022
• Docket Number: 2021-KA-00404-COA
• Citation: 348 So.3d 974
• Parties: Reginald BARNES, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

348 So.3d 974

Reginald BARNES, Appellant

v.STATE of Mississippi, Appellee

NO. 2021-KA-00404-COA

Court of Appeals of Mississippi.

April 12, 2022

Rehearing Denied August 09, 2022

ATTORNEYS FOR APPELLANT: EDWARD BLACKMON, BRADFORD JEROME BLACKMON, Canton

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: PARKER ALAN PROCTOR JR.

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

EMFINGER, J., FOR THE COURT:

¶1. Reginald Barnes was indicted on two counts of sexual battery pursuant to Mississippi Code Annotated sections 97-3-97 (Rev. 2014) and 97-3-95(2) (Rev. 2014) in the First Judicial District of Hinds County on October 25, 2018. After multiple days of trial in November 2020, a jury found Barnes not guilty of sexual battery in Counts I and II. However, the jury found Barnes guilty, in both counts, of the lesser offense of fondling, pursuant to Mississippi Code Annotated section 97-5-23 (Supp. 2015). For each conviction, Barnes was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with three of those years suspended and twelve years to serve, with the sentences ordered to run concurrently.

Upon release, Barnes was to be placed on supervised probation for a period of three years, was required to register as a sex offender, was ordered to have no contact with the victim, and was ordered to pay a fine in the amount of $7,500 during the period of his probation.¹

FACTS AND PROCEDURAL HISTORY

¶2. D.W.² was a senior at Provine High School (Provine) when both of the alleged sexual encounters occurred between her and Barnes. According to D.W., one encounter occurred in August 2018 and the other occurred in September 2018. D.W. was unable to give exact dates for either encounter. She testified that prior to attending Provine, she attended J.J. McClain High School (McClain)³ in Holmes County. D.W. first became familiar with Barnes when she was a student at McClain, and Barnes was the vo-tech principal there. D.W. testified that one day at McClain, while she was in the office before class, Barnes told her that her "underwear were too small." D.W. did not tell her parents about Barnes’ comment and testified that she "tried to laugh it off as if it was nothing." Based upon this prior experience, D.W. testified that she recognized Barnes at Provine on the first day of school when all the students were gathered in the gym to meet the teachers and principals.

¶3. As to Count I, D.W. testified that while she was not one of Barnes’ students, she was in his classroom on one occasion in August 2018. According to D.W., she had gotten in an altercation with another student in her assigned class and entered Barnes’ empty classroom to remove herself from the situation and to cool off. D.W. testified that she was "in there cleaning up, and he came in. And me and him talked for a minute, and he asked me to do it for him. And I said, ‘sure.’ " When asked by counsel to clarify what she meant by "it," D.W. testified that Barnes "asked [her] to give him oral." D.W. claims that Barnes unzipped his pants, she got on her knees and did what he asked. D.W. did not report the incident to the principal or anyone else at that time.

¶4. Barnes did not testify at trial, but his written statement dated October 12, 2018, reveals:

In an attempt to help a former student of mine, ([D.W.]) that attended the Holmes County School District, I began to try to help her so that she can remain out of trouble. There were two times that she stayed in my classroom during my planning period, as I conducted other duties. The main purpose of this was to keep her from walking the hallway and remain out of trouble. On those two occasions, she attempted to have intercourse (sexual) with me. On the first time as I entered back into the classroom, she approached me as if to give me oral sex. I immediately stopped, but she approached me again.

When specifically asked by investigators, "Did [D.W.] pull your penis out during this encounter?" Barnes stated, "No, there was an attempt to, however, I immediately stopped the intent." Later in the investigator's interview, Barnes was asked again, "Did [D.W.] pull your penis out?" Barnes responded, "[Y]es." Barnes further describes the incident by stating, "[D.W.] unzipped my pants and pulled my penis out. I then backed away from her and asked her to leave." Barnes did not report this incident when it happened.

¶5. D.W. was in Barnes’ empty classroom during his planning period in September 2018 when the allegations contained in Count II of the indictment occurred. According to D.W.,

I was behind a desk, and he came in the classroom and closed the door. He came behind the desk where I was, and he held his hand out to me as if he was going to help me up off the floor. But instead, he just pushed me down onto the floor and put his hands in my pants. He fingered me, took his hands out of my pants and put them in my mouth.

D.W. did not report the incident to the principal or anyone else at the school at that time.

¶6. Again, while Barnes did not testify at trial, in his written statement he related his version of the events of that day:

In addition she also took my hand and placed it on her genitalia area asking me to stick my finger there (this occurred on the second time). After this I made it a point for her not to come to my room at anytime and required her to leave, especially since she is not one of my students that I teach.

Barnes did not report this incident at the time that it occurred.

¶7. In October 2018, D.W. made two audio recordings on her cell phone of conversations she had with Barnes. One recording was approximately eight minutes in length, and the other was approximately two and one-half minutes. According to D.W., she made the recordings "[b]ecause [she] felt like somebody needed to know that [she] wasn't lying." After objection by defense counsel, the first recording was played for the jury, and then D.W. was questioned about the substance of the audio. D.W. testified as follows:

What I remember, we were basically talking about school. And then I guess he thought I was recording, which I was, but I didn't know that he would have picked up on it. So he asked me if I could show him my phone, and I was scared to take it out of my bra because I didn't know what was going to happen. I didn't know if he was going to see that I was recording or not. So I just pressed my power button and showed it to him.

The second recording was also played for the jury. After the recording was played, D.W. was questioned about the substance of this recording. D.W. testified as follows:

[Barnes] pulled me to the side and told me that he had shaved all down there. And he asked me if I could come over after school, but I told him that I had to go home. He asked me again. I told him I needed to go home today because I didn't have any after school programs[.]

¶8. On October 12, 2018, D.W. and two other female students went to the school office and told the office manager, Debra Sawyer-Lawson, that they wanted to report a perverted teacher. Sawyer-Lawson separated the girls and instructed them each to write a statement. Pursuant to school protocol, Sawyer-Lawson then contacted the assistant principal, Erica Gee-Bradley. Gee-Bradley spoke with D.W., and D.W. played the audio recordings from her cell phone. According to Gee-Bradley, she recognized Barnes’ voice in the recording but had her play the recordings twice to verify the content. Gee-Bradley immediately notified campus law enforcement and turned the matter over to them for further investigation. Jackson Public School (JPS) Police Investigators Shalonda Hiley and William Waples took over the investigation at that point. Investigator Waples took the statement from Barnes, parts of which are noted above.

¶9. After being indicted on two counts of sexual battery, Barnes’ trial began on November 9, 2020. The State called six witnesses at trial, including Investigator Hiley; D.W.’s stepmother, Leshair Fisher-Warren; D.W.; Sawyer-Lawson; Gee-Bradley; and Investigator Waples. Barnes did not testify, but defense counsel called two former Provine students, N.B. and M.G. Barnes was ultimately found guilty of two counts of fondling pursuant to Mississippi Code Annotated section 97-5-23. Having been granted extensions of time by the court, on February 11, 2021, Barnes filed a "Motion for Judgment Notwithstanding the Verdict or, Alternatively, Motion for New Trial." An order denying his motion was entered on April 12, 2021. Aggrieved, Barnes appealed and raises eight issues, which we discuss separately below.

ANALYSIS

I. Did the trial court err in giving a jury instruction that "[t]he unsubstantiated and uncorroborated testimony of a victim of a sex crime is sufficient to support a guilty verdict if their testimony is not discredited or contradicted by other credible evidence?"

¶10. Barnes’ counsel did not make a contemporaneous objection to the State's proposed Jury Instruction S-6, which was given to the jury as Jury Instruction 11. The Mississippi Supreme Court has held that the failure to make a contemporaneous objection waives the right to raise the issue on appeal. Walker v. State , 671 So. 2d 581, 623 (Miss. 1995) ; Ballenger v. State , 667 So. 2d 1242, 1259 (Miss. 1995). Further, "[i]n Southern v. Mississippi State Hosp. , 853 So. 2d 1212, [1214-15] (Miss. 2003), [the Mississippi Supreme Court] reiterated the important procedural tenet that ‘[a] trial judge cannot be put in error on a matter not presented to him.’ " Chantey Music Pub. Inc. v. Malaco Inc. , 915 So. 2d 1052, 1060 (¶28) (Miss. 2005). "Precedent mandates that this Court not entertain arguments made for the first time on appeal as the case must be decided on the facts contained in the record and not on assertions in the briefs." Id . (citing Parker v. Miss. Game & Fish Comm'n , 555 So. 2d 725, 730 (Miss. 1989) ).

¶11. Notwithstanding the procedural bar, Barnes’ claim regarding Jury Instruction 11 is without...