Copes v. State

• Decision Date: 02 February 2021
• Docket Number: NO. 2019-KA-00302-COA,2019-KA-00302-COA
• Parties: SETH COPES A/K/A SETH THOMAS COPES A/K/A SETH T. COPES APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Court: Mississippi Court of Appeals

SETH COPES A/K/A SETH THOMAS COPES A/K/A SETH T. COPES APPELLANT v. STATE OF MISSISSIPPI APPELLEE

NO. 2019-KA-00302-COA

COURT OF APPEALS OF THE STATE OF MISSISSIPPI

February 2, 2021

DATE OF JUDGMENT: 11/30/2018

TRIAL JUDGE: HON. JAMES T. KITCHENS JR.

COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE

DISTRICT ATTORNEY: SCOTT WINSTON COLOM

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 02/02/2021

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Seth Copes was convicted in the Lowndes County Circuit Court of two counts of sexual battery of two minors, Anna and Betty.¹ He was sentenced to twenty years on each count, to be served consecutively, in the custody of the Mississippi Department of Corrections.

¶2. On appeal, Copes claims (1) he was denied his right to his counsel of choice, (2) the court erred by excluding evidence of counseling sessions that would have showed thatanother witness, Cathy,² displayed a pattern of dishonesty, (3) the court erred by excluding evidence that would have showed that one victim, Anna, engaged in misconduct, and (4) the court erred by admitting incompetent opinion evidence from Mokesha Thompson, an employee of the Division of Family and Children Services. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. Anna and Betty were born in 1998 and lived with their parents until they were approximately five years old. Then they, along with their older sister, moved in with their grandparents for approximately one and a half years. In 2006, their grandparents became unable to care for them, so they moved to the Palmer Home for Children in Columbus, Mississippi, and were placed in a residential cottage with house parents Seth Copes ("Seth") and Kara Copes ("Kara"). In 2013, Betty and Anna disclosed to their aunt, Michelle Flores, that they had been sexually abused by Seth years earlier. After an investigation, Seth was indicted for two counts of sexual battery. Testifying at trial was another former resident of the Palmer Home, Cathy.

¶4. Prior to trial, Seth, by and through his local counsel Patrick Rand, filed a motion for admission of counsel from Maryland pro hac vice. Seth requested that Thomas Pavlinic, an out-of-state attorney, be admitted for the purpose of participating as co-counsel. Also prior to trial, the State filed a motion to introduce evidence of Seth's sexual misconduct towardCathy pursuant to Mississippi Rule of Evidence 404(b)³ and a motion in limine to prevent the defense from soliciting testimony regarding the victims' sexual behavior or predisposition pursuant to Mississippi Rule of Evidence 412, commonly referred to as the "rape shield" rule.⁴

¶5. During opening statements, Pavlinic told the jury that Anna and Betty had used someone else's electronic device to send inappropriate text messages, or "sexts." The State asked to approach the bench and asserted that the alleged text messages had not been produced in discovery. Pavlinic responded that the messages had been deleted, but he assumed that Anna and Betty would not lie about them. The court stated, "I've told you to be very careful, both sides, about this. And I've told you to approach when you have something that was probably going to be problematic. And what you're doing is, you're going around that in opening statements." Ultimately, the court held that Pavlinic could say that an internet rule of the Palmer Home had been violated but could not discuss the sexual nature of the violation because it was protected by the rape shield rule.

¶6. At trial, evidence was presented that the Copes began working at the Palmer Home in February 2006. The Copes lived in a residential cottage with their daughters and several female residents. Three of the residents were Anna, Betty, and Cathy.

¶7. Cathy testified that she was born in 1997 and that Seth touched her inappropriately sometime before 2009. According to Cathy, one night she woke up, and Seth was lying behind her in bed. She tried to move over, but he put his hands on her pelvic bone and pulled her back toward him. Another time, Seth picked her up while she was sleeping and put her on his bed while Kara was away. Then he got in the bed and put her hand on something, which she realized was his penis. When she moved to the edge of the bed, he pulled her back and touched her vagina with his hands and thrust against it with his penis.

¶8. Approximately one month after the inappropriate contact occurred, Cathy told the Copeses' nine-year-old daughter, Madison, and Madison told her to tell Kara. According to Cathy, Kara told her that it was "just a dream." Cathy initially agreed with Kara and said, "Okay." But Cathy testified, "I know for a fact [that] I was not dreaming."⁵ According to Kara, she reported the incident to a Palmer Home counselor and completed an incident report on August 3, 2008, which stated, in part:

[Cathy] told Madison that she had been having bad dreams about being touched inappropriately and thought that maybe it was Seth because he was the only man (in our all girls house)[.] Madison encouraged [Cathy] to tell. [Cathy] said that she has been having dreams about someone touching her vagina and it hurts. Her uncle is in her dream, but she can't see his face. . . .

According to Kara, she was told to continue taking Cathy to counseling, and the incident report indicated that Cathy would go to her appointment with Teressa Hubbard on August 5, 2008, as scheduled.

¶9. Anna testified that Seth began sexually abusing her in approximately 2006. Anna described various incidents when Copes lay in her bed and used her hand to stroke his penis and testicles, pulled her pants down and felt underneath her panties, rubbed his penis against her vagina, and rubbed "jelly" on her vagina. She also testified that he once inserted his penis in her mouth, and on another occasion, he attempted to put his penis inside her vagina.

¶10. According to Anna, she was "not the good child." The Copeses testified that she began breaking the rules in approximately 2010. They said that in 2012, she was removed from sports as a result of rule violations. According to Kara, things got worse after that. In 2013, while Anna was visiting her aunt, her aunt asked her who had sexually abused her as a child. According to Anna, her family had long suspected that she had been abused. Anna told her aunt to "drop it." Shortly thereafter, Anna received a phone call from Kara. According to Anna, Kara yelled at her for breaking Madison's iPod and took money out of her account to purchase another one. According to Kara, Betty and/or Anna had damaged Madison's iPod, and Kara had previously said that they would have to pay for it. Kara testified that she texted them to tell them that the debt had been paid, but Anna and Betty called her and screamed at her over the phone. Afterward, Seth called Anna and Betty and reprimanded them for talking disrespectfully to Kara and told them that their sports privileges were on the line for the next year. Anna testified that she thought, "[I]f you're so worried for your wife, why are you touching on kids?" After Anna hung up the phone, she disclosed to her aunt that Seth had sexually abused her. Betty confirmed the abuse to her aunt.

¶11. Outside the presence of jury, Pavlinic told the court that he wanted to establish oncross-examination why Anna was "the bad one." He proffered that in 2007 Anna had urinated in orange juice and told Madison to drink it. He also wanted to question Anna about sneaking out to meet boys, using an electronic device for inappropriate purposes, and violating other rules such as the dress code. However, the court ruled that the alleged juice incident had not been disclosed in discovery and was inadmissible. The court further ruled that Pavlinic could question Anna about sneaking out, but he could not question her about why she was sneaking out. And he could question her about breaking Madison's iPod but not about using an electronic device for inappropriate purposes. Basically, the court held that Pavlinic could question Anna about rule violations but not the sexual nature of the violations because it was an impermissible attack on her character. Finally, there was a discussion about discovery issues, and the court noted that Pavlinic "had not provided much of anything" during discovery. The court told local counsel, Rand, to explain reciprocal discovery to Pavlinic and stated that if Pavlinic could not agree with the rules in Mississippi "then [Rand] will have to take over this[,] and [Pavlinic] will assist."

¶12. Then Pavlinic reasserted that he wanted to question Anna about the alleged juice incident, sneaking out to meet boys, and sending inappropriate text messages to show that she was manipulative, malicious, and deceptive. Pavlinic wanted to show that Anna would do anything in order to leave the Palmer Home. The court reiterated that the juice incident, which allegedly occurred in 2007, was too remote from when Anna allegedly made false allegations against Seth to leave the Palmer Home. And the court reiterated that Pavlinic could question Anna about sneaking out and breaking Madison's iPod but not the sexualnature of the rule violations.

¶13. On cross-examination, Anna admitted that she had violated the curfew and testified that she had snuck out with a twenty year old when she was twelve years old. According to Anna, she told on herself and was still punished for it. Pavlinic asked, "[A]s a result of that occurrence, was there a suicide attempt in your life?" The State objected, and outside the presence of the jury, the court asked Pavlinic how his question was relevant. Pavlinic responded that it showed that Anna went to counseling but never made any allegations against Seth during...