Clark v. State
| Decision Date | 27 August 2013 |
| Docket Number | No. 2012–KA–00459–COA.,2012–KA–00459–COA. |
| Citation | 122 So.3d 129 |
| Parties | Jermil CLARK a/k/a Jermail Clark, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
W. Daniel Hinchcliff, George T. Holmes, Jackson, Bentley E. Conner, Flora, attorneys for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
EN BANC.
CARLTON, J., for the Court:
¶ 1. On October 6, 2011, a Madison County grand jury indicted Clark for kidnapping and aggravated domestic violence. After a trial held on March 12, 2011, a jury found Clark guilty of aggravated domestic violence by strangulation but acquitted Clark of the kidnapping charge. The trial judge sentenced Clark as a habitual offender to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), to run consecutively to a previous sentence. Clark now appeals his sentence and conviction. Finding no error, we affirm.
FACTS
¶ 2. On June 18, 2011, Tremekia Sims arrived home to the apartment she shared with her sister at the Canton Garden Apartments in Canton, Mississippi. Sims's boyfriend, Clark, was waiting at the apartment, and upon Sims's arrival, Clark expressed anger that Sims had been out all night. Sims testified that Clark “ran up and caught [her] around the waist and around the neck” and ordered her to open the door to the apartment before he broke her neck. Clark threw Sims into the apartment and threatened that “if [he] wanted to do something to [her], [he could] easily get [her].” Sims testified that the two began to argue. Sims stated that after she answered a phone call from a girlfriend, the argument escalated into a fight. Sims explained that Clark thought that based on Sims's phone conversation, she was cheating on him.
¶ 3. On the following Monday, June 20, 2011, Sims told Clark that she was going to work, and she dropped him off at his mother's house. Instead of going to work, Sims went to her cousin's house because she did not want to go to work with bruises on her. Sims explained that she received the bruises after Clark hit her and pushed her into a wall. Sims also testified that after leaving her cousin's house on Monday, she went to the hospital to receive treatment for pain in her ribs resulting from Clark hitting her.
¶ 4. Sims's friend put her in touch with Virginia Parker of the Canton Victims' Assistance Program. Parker contacted Sims after the 2011 incident and took photographs of Sims to document the bruises on her arms and face. Parker and Sims both testified that Clark previously abused Sims in 2011. At trial, Parker also identified three color photographs of the prior injuries received by Sims in 2010. These photographs were admitted into evidence without objection.
¶ 5. After interviewing Sims, Parker contacted Kim Henderson, a children's sexual abuse investigator for the Madison County Sheriff's Department, about her conversation with Sims. Investigator Henderson met with Sims and photographed her recent injuries. Sims testified that she told Investigator Henderson that “[Clark] jumped on me for the weekend.” Investigator Henderson provided testimony recounting the details of her conversation with Sims, wherein Sims told Investigator Henderson that Clark had written a suicide note trying to convince Sims to come home. Sims told Investigator Henderson that as she put her key in the door of the apartment, Clark approached her from behind, put one hand around her neck and the other hand over her mouth, and pushed her into the apartment.
¶ 6. Investigator Henderson filled out an affidavit for Clark's arrest, and she and another deputy picked him up. Clark admitted to Investigator Henderson that he and Sims had been arguing and that “he may have caused the bruises or scratches to her neck by trying to defend himself.”
¶ 7. At a trial held March 12, 2012, the jury heard testimony from Sims, Investigator Henderson, and Parker. Sims informed the jury that Clark had previously served jail time for domestic assault, stemming from abuse in their relationship. The transcript shows that with regard to the kidnapping charge, Sims began testifying to a different version of events than what her statement to police officers reflected. At trial, Sims explained that she did not want to go forward with the kidnapping charges against Clark—only the domestic-violence charge—and she refuted her previous statements to police officers that Clark had forcefully refused to let her leave the apartment during the weekend of June 18. Sims instead stated that she could have left whenever she wanted, but she never attempted to leave. The court, observing that it appeared Sims did not “want her recollection refreshed” granted the State's request to treat Sims as a hostile witness.
¶ 8. At the close of the State's case-in-chief, Clark moved for a directed verdict. The trial court denied the motion. Clark chose not to testify, and the defense rested without calling any witnesses. The jury returned a verdict acquitting Clark of the kidnapping charge, but finding him guilty of aggravated domestic violence. The trial court sentenced Clark as a habitual offender to serve twenty years in the custody of the MDOC. Clark filed a motion for a new trial or a judgment notwithstanding the verdict, which the trial court denied. On appeal, Clark asserts the following issues: Whether sufficient evidence was presented at trial to support the verdict and whether evidence of a prior domestic-assault charge was properly admitted at trial.
STANDARD OF REVIEW
¶ 9. The standard of review for motions for a directed verdict and a JNOV is abuse of discretion. Smith v. State, 925 So.2d 825, 830 (¶ 10) (Miss.2006) (citing Brown v. State, 907 So.2d 336, 339 (¶ 8) (Miss.2005)). In considering whether the evidence is sufficient, the court must determine whether a reasonable, fair-minded juror could find that the accused committed the offense charged beyond a reasonable doubt, and that every element of the offense existed given the evidence presented. Brown, 907 So.2d at 339 (¶ 8) (citation omitted). If the evidence fails to meet this test, then it is insufficient to support a conviction. Carr v. State, 208 So.2d 886, 889 (Miss.1968). However, where reasonable and fair-minded jurors may have found the appellant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47 (¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81 (¶ 13) (Miss.2001)).
¶ 10. We also review the admission or exclusion of evidence under an abuse-of-discretion standard of review. Jones v. State, 904 So.2d 149, 152 (¶ 7) (Miss.2005).
DISCUSSION
¶ 11. Clark argues that the evidence presented at trial was insufficient to support the guilty verdict. Clark submits that Sims, the victim, testified that Clark only put his hand over her throat and mouth momentarily, and that Clark did not strangle her. Clark also asserts that Investigator Henderson's testimony describing Sims's statement, in which she claimed that Clark beat her, constitutes inadmissable hearsay evidence, and thus could not lawfully be considered as substantive evidence in support of his aggravated-domestic-violence conviction.
¶ 12. “A motion for a directed verdict challenges the sufficiency of the evidence.” McMillan v. State, 6 So.3d 444, 446 (¶ 8) (Miss.Ct.App.2009) (citing Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005)). In Bush, the Mississippi Supreme Court expressed that “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Id. (quoting Bush, 895 So.2d at 843 (¶ 16)). If any rational trier of fact, when viewing the evidence in the light most favorable to the State, could have found that the essential elements of the crime existed beyond a reasonable doubt, this Court “will affirm the denial of a motion for a directed verdict.” Id. “If we find that reasonable, fair-minded jurors could have concluded that the defendant was guilty of the accused crime, the evidence will be deemed sufficient.” Id.
¶ 13. Mississippi Code Annotated section 97–3–7(4)(a)(iii) (Supp.2012) provides: The statute defines “strangle” as “restrict[ing] the flow of oxygen or blood by intentionally applying pressure on the neck, throat or chest of another person by any means or to intentionally block the nose or mouth of another person by any means.” SeeMiss.Code Ann. § 97–3–7(5)(a) (Supp.2012) (emphasis added).
¶ 14. Clark claims that at trial, Sims denied that Clark ever restricted the flow of oxygen or blood into her body by intentionally applying pressure on her neck or throat, nor did he ever restrict the flow of oxygen or blood by blocking her nose or mouth. However, a review of the record shows that Sims indeed testified at trial that Clark held his arm around her neck and his hand over her mouth, albeit momentarily. The statutory elements, stated above, are also satisfied for this offense by proof that Clark intentionally blocked the nose and mouth of Sims. The trial court also admitted into evidence Sims's June 21 statement to Investigator Henderson. This statement by Sims reflected that on June 18, 2011, Clark ran up to Sims and “had one hand around [her] mouth and his arm around [her neck] .... and said open the door bitch before I break your neck in.” The statement was signed by both Investigator Henderson and Sims. Investigator Henderson provided testimony detailing her interview with Sims, confirming that she saw bruises on Sims, and Investigator Henderson testified that based on Sims's statement and the visible bruises, she arrested Clark. Investigator Henderson also testified that Sims specifically told...
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