McCammon v. State

• Citation: 299 So.3d 873
• Decision Date: 04 February 2020
• Docket Number: NO. 2018-KA-00256-COA,2018-KA-00256-COA
• Parties: Marcus MCCAMMON a/k/a Marcus Wade Mccammon a/k/a Marcus W. McCammon, Appellant v. STATE of Mississippi, Appellee
• Court: Court of Appeals of Mississippi

299 So.3d 873

Marcus MCCAMMON a/k/a Marcus Wade Mccammon a/k/a Marcus W. McCammon, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-KA-00256-COA

Court of Appeals of Mississippi.

February 4, 2020

Rehearing Denied May 26, 2020

ATTORNEYS FOR APPELLANT: KELLY GUNTER WILLIAMS, KENNETH BRUCE DAVIS, DAVID L. VALENTINE

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

BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. Following a jury trial in the Madison County Circuit Court, Marcus McCammon was convicted of the sexual battery of a seven-year-old girl (LAV). The circuit court sentenced him to serve thirty years in the custody of the Department of Corrections, with ten years suspended and five years of post-release supervision. On appeal, McCammon raises a total of eight issues. He argues that the trial judge erred by excluding his expert witnesses and LAV's mental health records. He argues that the trial judge erred by admitting his two statements to law enforcement officers, evidence of his "prior bad acts," and LAV's hearsay statements to a neighbor. He also argues that a juror should have been excused for cause and that he was entitled to additional jury instructions. Finally, he challenges the sufficiency and weight of the evidence. We find no reversible error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In November 2016, Shaynetel Robinson was at her mother's house in the evening after work. Robinson's mother and younger sister, neighbor Ivy Fulton, and Fulton's granddaughter (LAV) were all in the living room. LAV lived with Fulton at this time. The kids were playing on the floor while Fulton and Robinson's mother chatted nearby. Robinson sat down to play with the kids, and she overheard Fulton say that LAV had been "acting out" recently. Robinson had only known LAV for three or four months. She knew LAV because LAV and Robinson's sister were friends and schoolmates.

¶3. Robinson asked LAV what was going on and whether there was anything she wanted to talk about that she was not comfortable discussing with her grandmother. LAV said yes, so Robinson took LAV to a bedroom to continue their conversation. LAV then told Robinson that at some point she had asked Marcus McCammon—Fulton's live-in boyfriend—if he wanted a massage, and McCammon told her that he wanted her to massage his penis. LAV told Robinson that she had not told anyone else about the incident because she was scared of what might happen and that she might get in trouble. LAV told Robinson that McCammon said he would leave Fulton if she told anyone what had happened.

¶4. LAV asked Robinson to tell Fulton. Fulton was alone when Robinson and LAV returned to the living room. Robinson started to tell Fulton that LAV had asked McCammon if he wanted a massage, and Fulton interrupted her and stated that it was normal for LAV to offer shoulder massages. Robinson then told Fulton the whole story.

¶5. On November 17, 2016, Fulton and LAV confronted McCammon about the abuse at their home. During the confrontation, LAV called 911 and told the dispatcher that McCammon had abused her.

¶6. Officer Ryan Wigley of the Madison Police Department received a call from another officer who had responded to LAV's 911 call. The responding officer told Wigley that McCammon was still present at the home. Wigley asked whether McCammon wanted to tell his side of the story, and McCammon said that he did. So Wigley met McCammon at the Madison Police Department for an interview.

¶7. A video of the interview was admitted into evidence at trial and published to the jury. McCammon told Wigley that the garage of his house had a seating area with chairs and a TV where McCammon went to smoke. McCammon said that one night he woke up in the chair to find LAV massaging his penis. McCammon told Wigley that his penis was in his pants. McCammon never told anyone about the incident. McCammon also said that LAV liked to give men massages and to bounce on their laps. McCammon said he thought that LAV got sexual excitement from it. McCammon indicated that LAV might have been a victim of sexual abuse previously, and he suggested that Wigley ask Fulton about it. However, Fulton later told Wigley that she "didn't know anything" about a previous incident.

¶8. After interviewing McCammon, Wigley asked the Children's Advocacy Center to conduct a forensic interview with LAV. Wigley testified that forensic interviewers have been trained to interview children who have alleged physical or sexual abuse. Wigley observed the interview but did not participate.

¶9. After the forensic interview, McCammon was charged with sexual battery. He was arrested and brought to the police department for a second interview, which was also recorded. He was informed of his Miranda rights, and he signed a waiver of those rights. In the second interview, McCammon changed his story. He now claimed that he was asleep in a chair in the garage and woke to find LAV rubbing his penis on her mouth. He also said that LAV had a bottle of lotion with her. McCammon said that Fulton was not home at the time, and LAV's younger brother was inside the house watching television. McCammon told no one about the incident. Wigley showed McCammon a photograph of the garage and asked to identify the chair where the encounter occurred. McCammon identified the same chair that LAV identified as the location of the assault.

¶10. LAV testified at trial that she was born in January 2008 and that McCammon sexually abused her multiple times when she was seven years old. LAV stated that she and her younger brother were living with Fulton and McCammon at the time. She stated that McCammon moved out after "he did sexual abuse to [her]." The prosecutor asked LAV to explain what she meant. LAV testified McCammon made her perform oral sex on him while they were in the garage and Fulton was out shopping. LAV stated she was seven years old at the time and that she did not tell anyone. That was the first time it happened.

¶11. LAV testified that McCammon sexually abused her again. The second instance of abuse was similar to the first—McCammon again made her perform oral sex on him in the garage while her grandmother was out—except that McCammon ejaculated ("something white came out"). This occurred during summer break when LAV was seven years old. McCammon told LAV that his semen was "baby medicine" and that she needed to "drink it." LAV explained how the semen looked ("white and thick") and tasted ("salty"). She did not know what it was. Again, LAV did not tell anyone.

¶12. LAV testified that McCammon made her perform oral sex on him again, on a subsequent occasion, until he ejaculated. LAV testified that McCammon was again sitting in "his chair" in the garage and that he "always" sat there. On this occasion, McCammon also performed oral sex on LAV.

¶13. LAV also testified to a similar instance of abuse that took place inside the home on a couch. LAV was unsure whether the incident on the couch was the third or fourth time that McCammon abused her. LAV admitted that she had forgotten to mention the couch on direct examination. She explained, "I'm a kid. I forget stuff." She also stated that she had "practiced and practiced" with the prosecutor, who "took notes" during their first conversation and "trie[d] to correct" LAV when she misspoke. LAV stated she had not "practiced" her testimony with Fulton or anyone other than the prosecutor.

¶14. LAV decided to tell Robinson about the abuse because she "couldn't take it anymore." She also testified that the "only reason" she did not tell anyone sooner was because McCammon had "threatened he would kill [her], and he owned ten guns in the house." LAV testified that she was scared of McCammon.

¶15. On cross-examination, LAV testified that she knew the difference between the truth and a lie and that she had gotten in trouble before for not telling the truth. LAV testified that she called 911 to report McCammon "[b]ecause [she] couldn't take it. He did something wrong, and he needed to pay the price." LAV also testified that she had been afraid that no one would believe her because she was just "a kid." LAV denied that she had been in any sort of serious trouble the day that she disclosed the abuse to Robinson. She admitted that she had stolen a check from Fulton and that Fulton had said she "could go to jail for that." But LAV stated that Fulton got her check back and that it was no longer an issue. She denied that the check had anything to do with her decision to disclose the abuse.¹

¶16. McCammon testified in his defense. He met Fulton in October 2011 and moved in with her in March 2012. Sometime in 2013, LAV came to live with them. McCammon testified that he had no issues with LAV at the beginning. At some point, LAV started having weekend visits with her mother. McCammon claimed that LAV would return from those visits "with a different attitude" and that she became "hateful" toward him.

¶17. McCammon claimed that he was intoxicated during his first interview with Wigley. He claimed that he "hardly remember[ed]" that interview. He admitting telling Wigley that LAV had been rubbing his penis through his pants. He also admitted that he told officers in his second interview that he woke to find LAV rubbing his penis on her lips. He said that his second version of events was the truth. He claimed that he did not offer a complete account during his first interview because he was intoxicated. McCammon denied that he ever sexually abused LAV.

¶18. McCammon testified that he had only one encounter with LAV that was sexual in nature. He testified that he fell asleep in his chair in the garage. He claimed that LAV unzipped his blue jeans, removed his penis from his briefs, and then put her lips on it—all while he was asleep. McCammon testified that LAV would have been about seven years old at the time this incident occurred. McCammon stated that he had been asleep for about two hours...