Lomas v. State

• Decision Date: 13 March 2021
• Docket Number: NO. 2019-KA-01827-COA,2019-KA-01827-COA
• Citation: 328 So.3d 670
• Parties: David Wayne LOMAS a/k/a David Lomas, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

328 So.3d 670

David Wayne LOMAS a/k/a David Lomas, Appellant

v.STATE of Mississippi, Appellee

NO. 2019-KA-01827-COA

Court of Appeals of Mississippi.

March 13, 2021

ATTORNEY FOR APPELLANT: JOHN M. COLETTE, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson

BEFORE CARLTON, P.J., McDONALD AND GREENLEE, J.J.

McDONALD, J., FOR THE COURT:

¶1. On July 24, 2019, a Desoto County Circuit Court jury convicted David Lomas of sexual battery in violation of Mississippi Code Annotated section 97-3-95 (Rev. 2014) and of fondling his eleven-year-old grand-niece in violation of Mississippi Code Section 97-5-23 (Rev. 2014). The circuit court sentenced him thirty years’ imprisonment for the battery conviction and fifteen years’ imprisonment for the fondling conviction, to be served concurrently in the custody of the Mississippi Department of Corrections. After the circuit court denied Lomas's post-trial motions, Lomas appealed. He raises issues of alleged error, including prosecutorial misconduct, the circuit court's admission and exclusion of testimony, the circuit court's denial of his post-trial motion, ineffective assistance of counsel, and cumulative error. Having considered the arguments of counsel and the record, we affirm Lomas's convictions and sentences.

Facts

¶2. In July 2016, Lomas, who lived outside of Hattiesburg, started to work with his nephew at a construction job in Hernando near where his nephew lived.¹ For the first few days, Lomas stayed with his nephew and his family, sleeping on the couch. Lomas then decided to go home, purchase an RV camper, and took it back to an RV park in Southaven. Lomas bought the camper, but because his spot at the RV park was not ready, Lomas moved it to his nephew's yard. At that time, Lomas's nephew was married and living with his wife and his two children. His father² and his father's girlfriend lived in a mother-in-law suite on the second floor of the house.

¶3. Lomas arrived at his nephew's home with his camper late on a Saturday night. On Sunday morning, July 10, 2016, the youngest child was not feeling well, and Lomas's nephew decided they would not go to church. The older child, eleven-year-old "Mary,"³ asked and was given permission to go to see her uncle and tell him good morning.

¶4. Lomas gave his grand-niece some cantaloupe to eat and then took her into the bedroom. There, according to Mary, he lay her on the bed, licked her private parts, and "French-kissed" her. He stopped when Mary's younger sister knocked on the camper door. Lomas told Mary not to tell anyone what happened, and he went into the bathroom to change his shorts.

¶5. Mary went into the house, crying and upset, and told her parents that Lomas had raped her. She told her mother that Lomas had licked her vagina. The medical record of Mary's physical examination later that day recounts:

11 yr. old female stated that her Uncle David french-kissed her and put his tongue in her privates. He told her she was beautiful and that he loved her. Mother reported that [Mary] had gone to his camper behind the family's home, and he told her to go to the back where it was cool. Her 7 yr. old sister walked in, and he stopped, and [Mary] said she had to go to the bathroom and left. Also touched her breasts. She immediately went into the house and told her mother she had been raped. Uncle is David Lomas, age 53, and he had come to Desoto Cty to work with [Mary]’s father.⁴

¶6. Mary's parents called law enforcement. Among those who responded was Detective Suzanne Wallace of the DeSoto County Sheriff's Department. Mary's mother told her what Mary had said. Wallace collected the underwear, shorts, and shirt that Mary was wearing at the time of the incident. Other deputies placed Lomas in a police car. Wallace determined she needed a bucchal swab from Lomas, but he did not agree. Wallace explained that she would need to detain him only so she could obtain a search warrant for the bucchal swab.⁵ Lomas was taken to the station, and after obtaining the search warrant and bucchal swab, Wallace told Lomas he was free to go.

¶7. Lomas's nephew also told Detective Wallace about a prior incident that occurred approximately two years earlier. At that time, Mary's grandfather, "Pops," was staying with them. One day Lomas's nephew observed "Pops" come in from work, and nine-year-old Mary hugged him. "Pops" kissed her on the forehead, and they talked about their day. Mary's father saw and heard all of this. After "Pops" went upstairs, Mary told her dad that "Pops" had "French-kissed" her. Her father immediately asked if anything further had happened, and when Mary explained that she was referring to the kiss on her forehead, he corrected her and said, "That was not a French-kiss."⁶ This prior incident is meaningful because after the more current incident in July 2016, Lomas called "Pops." Lomas told "Pops" that he had "French-kissed" Mary because Lomas had heard that "Pops" had done so in the past.⁷

¶8. Wallace accompanied Mary and her parents to the Rape Crisis Center in Memphis, where Mary underwent a physical examination. No injuries were found, yet pursuant to protocol, staff completed a rape kit for subsequent testing.⁸ In addition to collecting evidence at the scene and accompanying Mary and her parents to Mary's physical examination, Wallace arranged for Mary to undergo a forensic interview at the Healing Hearts Child Advocacy Center in Southaven. The next day, Mary appeared, and forensic examiner Tina Roberson interviewed her. The interview was videotaped. Roberson said Mary gave age-appropriate responses and clear answers as to what her uncle had done. Roberson determined that the child's descriptions were consistent with those of a child who had been sexually abused.

¶9. DNA testing was performed on Mary's underwear, which was visibly stained. Tests showed that although there was some difference in the coloration of the stain, there was no seminal fluid. Utilizing the bucchal swab taken from Lomas, further DNA testing showed that neither Lomas nor his parental line could be excluded as contributor to the male DNA material found in Mary's underwear.

¶10. On October 13, 2016, a grand jury indicted Lomas on two counts: sexual battery in violation of Mississippi Code Annotated section 97-3-95 and fondling in violation of Mississippi Code Annotated section 97-5-23. Lomas filed several pre-trial motions, including a motion to exclude hearsay, a motion to preclude DNA evidence, and a motion to exclude his own prior statements. The circuit court held several hearings on these matters and ultimately denied these motions. The case was tried from July 22, 2019, to July 24, 2019.

¶11. Before empaneling a jury, the circuit court conducted an in camera competency hearing at the defense's request to determine if Mary was competent to testify. The circuit court reported to the parties what it covered with Mary and why it held that Mary was competent. Thereafter, the circuit court held a tender-years hearing with the parties present. Her parents testified, as well as Roberson concerning Mary's forensic interview, and the circuit court found that Mary's statements to them were admissible.

¶12. Witnesses for the State included Mary's parents, Mary, Wallace, Mary's grandfather "Pops," and experts Roberson, Leah Dygert, Steven Little, and Leslia Davis. Mary's father testified that Lomas, his uncle, was like a father-figure to him because his own father, who was divorced from his mother, was in the military and gone a lot. He also testified that he and his wife had adopted Mary when she was three. Prior to that time, Mary had lived with her biological parents in a very difficult situation. Her mother was arrested when Mary was just a baby; her father tried to raise her, but Mary was found by the police wandering the streets at age two. She was put in foster care, and Lomas's nephew and his wife ultimately adopted her a year later. Mary's father testified that the effects of Mary's early life had taken a toll on her and that she began therapy when they first adopted her. She was diagnosed with Reactive Attachment Disorder, which is a self-protective reflex stemming from a lack of care during her first twenty-four months of life that caused Mary to have a negative reaction toward anyone who subsequently tried to care for her. Mary's father testified that Mary was still in therapy at Journey for New Beginnings Counseling Center eight years later when the subject incident happened, which set her back considerably. He said she could not accept how slow the justice system was working and she started becoming aggressive and eventually violent. She spent one year in a children's home. Ultimately, her parents decided it might help Mary to live with her biological mother, who had been released from prison for several years and was doing well. So at the time of the trial, Mary was living with her biological mother and doing better, though she was also still in therapy and taking medication.

¶13. Mary's father was asked about Mary's March 10, 2015 psychological evaluation. At that time, he and his wife had to review a form and check off concerns they had which included:

[Mary] exhibiting intense displays of anger, self-destructive behavior

; being manipulative; victimizes others; is argumentative, bossy, needs to control everything, and lacks impulse control. She exhibits persistent, nonsense questions, perceives herself as a victim, has presumptive entitlement issues and [is] indiscriminately affectionate with strangers. [Mary] lies about obvious things, has marked mood changes, inappropriate emotional responses, has sleep disturbances and has hidden food.

This evaluation was performed before the incident in question. Mary's father clarified that all this behavior was similar to the conduct of his other children, i.e., normal childish lies and stubborn behavior. He pointed out that Mary only reacted angrily toward him and his wife due to...