Small v. State
| Decision Date | 08 October 2020 |
| Docket Number | NO. 2019-KA-00997-SCT,2019-KA-00997-SCT |
| Parties | Dewayne Carlos SMALL v. STATE of Mississippi |
| Court | Mississippi Supreme Court |
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES, Jackson
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. A jury found Dewayne Carlos Small guilty of felony exploitation of a vulnerable adult. The charge stemmed from Small and his girlfriend cashing twenty checks totaling more than $12,000 written by 79-year-old Charlotte Davis. Small claimed he was performing yard work for Charlotte, a widow who lived alone. But after viewing photographs of a half-cut tree, piles of debris, unraked leaves, overgrown shrubs, and other evidence of a scam, the jury rejected his argument. Based on the guilty verdict, the trial judge sentenced Small as a habitual offender to ten years in prison without the possibility of parole.
¶2. Small appeals his conviction and sentence as a habitual offender. Though he attacks the weight and sufficiency of the evidence, the State presented substantial evidence that Charlotte was a vulnerable person, as defined by statute, and that Small exploited her.
¶3. Small has also filed a pro se supplemental brief. He first challenges his habitual-offender status, lodging a Sixth Amendment challenge to his conviction records. But he made no objection at trial. And the self-authenticated, out-of-state judgment and sentencing orders were nontestimonial. Thus, they did not require a sponsoring witness with personal knowledge to pass constitutional muster.1
¶4. Small next claims his jury was tainted because the trial court did not strike for cause a juror who had previously worked with the police officer who testified against Small. Despite being aware of this juror's relationship and suggestion he would "probably [be] unduly influenced" by the officer's testimony, Small never challenged this juror for cause. And this Court does not permit a defendant "to plant an error and grow a risk-free trial" by foregoing a challenge against a supposedly biased juror at trial, then arguing that juror's service requires reversal on appeal.2 Instead, Small's failure to challenge this juror during jury selection "operates as a conclusive waiver."3
¶5. We thus affirm Small's conviction of exploitation of a vulnerable person and sentence as a habitual offender.
Background Facts and Procedural History
¶6. Tim Davis, Charlotte's only child, first met Small in July 2017. Small was in Charlotte's yard. Small told Tim Charlotte had hired him to cut her yard every two weeks for $100. During Tim's visit, Charlotte asked Tim if she should have Small cut down a tree for $1,400 to $1,500. Tim told her the price seemed fair. But Small only cut part of the tree and never removed the remaining pieces from the yard.
¶7. Five months later, on December 6, 2017, Tim learned Charlotte's bank account had been overdrawn. Tim had asked his mother to help with his daughter's private-school tuition, and Charlotte told him her bank had advised her she had no money in her account. When Tim inquired with the bank, he learned someone had cashed a large number of checks written from Charlotte's account, leaving Charlotte overdrawn by $3,000. Tim immediately called the police.
¶8. That same day, Officer Patricia Mack responded to Charlotte's house. Small was there when she arrived. Small approached Officer Mack and told her, "I charged Ms. Davis $8,000 off the top." Following an investigation, Officer Mack learned Charlotte had written Small a series of checks totaling $12,425. After Small was arrested in April 2018, he gave a voluntary statement in which he claimed he and Charlotte had agreed Charlotte would pay Small $15,300 to complete her yard. As he put it, "I charged Ms. Davis: three trees to be removed at $3,000 per tree; $2,500 for the cutting back of shrubs; [and] $1,800 for the removal of bamboo[.]"
Officer Mack returned to the house the next day and took pictures of the overgrown yard and half-cut tree. These pictures were admitted into evidence.
¶10. Officer Mack also testified about Charlotte. To Officer Mack, Charlotte appeared unable to care for herself. Her sink and toilet did not work. And Charlotte smelled like urine. Charlotte asked Officer Mack if "the nice man" was going to jail. Charlotte could not remember Small's name. Officer Mack recalled that Charlotte "really didn't have a clue what was happening." Officer Mack suggested to Tim that Charlotte should not be left by herself. So Tim moved Charlotte in his wife and him.
¶11. Tim testified that, before his mother moved in with him, he had visited her regularly. In 2017, he began noticing Charlotte no longer ate in the dining room, nor would she put up her dishes. She had also stopped flushing the toilet. Tim testified that Charlotte used to be an avid baker and would sell her cakes. But she had stopped that too. Tim surmised she had forgotten how to bake. Tim's wife Christie also testified. Christie had noticed, before Charlotte moved in, that she had not been taking care of herself. Charlotte had poor hygiene. She did not bathe or wash her clothes. She had also stopped returning her friends’ phone calls, prompting them to contact Tim to check if Charlotte was okay.
¶12. Christie remembered meeting Small the Sunday before Thanksgiving 2017. Small told Christie he "was going to make [Charlotte's] yard the most beautiful yard in Flora." Christie watched Charlotte write Small a $400 check. Small promised to return the next day to perform the paid-for work. But Small did not return that Monday.
¶13. Soon after learning about Charlotte's payments to Small, on December 22, 2017, Tim took Charlotte to see family physician Dr. William Eugene Loper about her memory loss. Dr. Loper, who was accepted at trial as an expert in general medicine, testified that Charlotte's long-term memory seemed fine. But he noted Charlotte struggled with her short-term memory. He testified that Charlotte, "as a 79-year-old, was further along than you would like to see with her memory loss." Because Charlotte's Vitamin B12 levels were low, Dr. Loper started her on B12 injections
, hoping to boost her memory.
¶14. To counter Dr. Loper's expert testimony, Small admitted the report of his own medical expert, Dr. Robert Allen Sheely. Dr. Sheely opined there was insufficient evidence Charlotte suffered from dementia
in December 2017. She was never prescribed dementia medication and never evaluated by a neurologist. Further, in 2018, she refused to undergo recommended bypass surgery, indicating she was able to make her own medical decisions.
¶15. The jury also heard from Charlotte herself. At the March 2019 trial, Charlotte had just turned eighty years old. But she told the jury she was sixty-seven. When asked about her home, she could not "think right now" where she was living. Though Tim testified he was an only child, Charlotte believed she had two children. And she could not "think of who it was" that she had hired to work on her yard. She did not recognize Small in the courtroom. She also had no idea who the jury members were or why they were there. But on cross-examination, she answered affirmatively that she "remember[ed] a man by the name of Dewayne Small." Charlotte testified she had paid him for a "a good bit" of yard work.
¶16. To show exactly how many times Charlotte paid Small, the State called Floyd Plummer, an investigator with Charlotte's bank, Regions Bank. Plummer had culled through Charlotte's bank records from the latter months of 2017. He had also viewed bank security footage. Plummer testified that in the month of October alone, Small cashed ten checks from Charlotte and his girlfriend cashed one. The checks—ranging from $400 to $1,400—were cashed at multiple Regions branches, often within days. On one day, October 10, 2017, Small cashed a $1,000 check in Madison County, Mississippi, and his girlfriend cashed another $1,000 check from Charlotte in Slidell, Louisiana. By Plummer's count, Small and his girlfriend had cashed twenty checks, withdrawing more than $12,000 from Charlotte's account.4
¶17. Defense counsel pointed out—when cross-examining Tim—that during this same time period Charlotte had also written multiple checks to her son totaling $6,388.85 to help him pay bills and debts. Tim testified his parents, and then his mother after his father died, had always helped with his mortgage and his daughters’ education.
¶18. After deliberating, the jury found Small guilty of felony exploitation of a vulnerable person. Miss. Code Ann. § 43-47-19(1), (2)(b) (Rev. 2015). The trial court sentenced him as a habitual offender to the maximum ten years’ imprisonment without parole.5 Miss. Code Ann. § 43-47-19(2)(b) ; Miss. Code Ann. § 99-19-81 (Rev. 2015).
Discussion
¶19. Small appeals both his conviction and habitual-offender sentence.
¶20. Under the Mississippi Vulnerable Person Acts, it is "unlawful for any person to abuse, neglect or exploit any vulnerable person." Mississippi Code Section 43-47-19(1). "Any person who willfully exploits a vulnerable person, ...where the value of the exploitation is Two Hundred Fifty Dollars ($250.00) or more, ... shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment ... for not more than ten (10) years." Miss. Code Ann. § 43-47-19(2)(b). Small's first challenge,...
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