White v. State

• Decision Date: 14 February 2017
• Docket Number: NO. 2015–KA–01458–COA,2015–KA–01458–COA
• Citation: 228 So.3d 893
• Parties: Curtis Aaron WHITE a/k/a Curtis White a/k/a Curtis A. White, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

228 So.3d 893

Curtis Aaron WHITE a/k/a Curtis White a/k/a Curtis A. White, Appellant

v.STATE of Mississippi, Appellee

NO. 2015–KA–01458–COA

Court of Appeals of Mississippi.

February 14, 2017

Rehearing Denied June 13, 2017

ATTORNEY FOR APPELLANT: RICHARD T. STARRETT

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

BEFORE LEE, C.J., BARNES AND ISHEE, JJ.

ISHEE, J., FOR THE COURT:

¶ 1. On August 27, 2015, Curtis White was convicted in Yazoo County Circuit Court of two counts of gratification of lust and one count of statutory rape. Counts I and III of the indictment charged White with gratification of lust and the statutory rape of MM,¹ and Count II charged White with gratification of lust for LM. White was sentenced to serve eight years for each count of gratification of lust and thirty years for the statutory-rape charge. White's statutory-rape sentence was to be served without the possibility of early release, and was to run concurrently with one count of gratification of lust, and consecutively to the other count. White timely appealed and argues that the circuit court committed a plethora of reversible errors. We agree. Because the circuit court repeatedly abused its discretion and violated White's constitutional rights of due process and a fair trial by an impartial jury, we reverse and remand.

STATEMENT OF FACTS

¶ 2. White was MM's uncle by marriage, and LM was close friends with MM. White was tried for incidents that occurred in Yazoo County on April 30, 2013, and April 21, 2014. Both counts of gratification of lust stemmed from the alleged events on April 30, 2013. At that time, MM was approximately thirteen years old (born on December 28, 2000), LM was approximately twelve years old (born on January 25, 2001), and White was approximately thirty-two years old (born on March 13, 1981). MM testified that White gave her and a few of her friends beer while they rode horses together, before White drove MM and LM back home. MM alleged that while White was driving them home, he showed the girls pornography on his cell phone, handed the cell phone to MM, and told both girls to watch it. It was further alleged that White then lifted MM's and LM's shirts to touch their breasts and compare whose breasts were bigger. MM testified that White told her that her breasts were larger. White then continued to drive the girls home without further incident. MM testified that she did not tell anyone about the incident.

¶ 3. Count III of the indictment stemmed from events that allegedly took place on April 21, 2014. MM testified that she, along with others, helped White move a deck onto his property. She testified that White insisted that she ride in his truck with him while he pulled a trailer attached to the back of the truck, and while the other people helping rode in a separate vehicle following behind them. MM testified that while she was driving the truck, White put her hand on his penis while he put his hand on her vagina. MM alleged that when they arrived back at White's house, White insisted that he, as opposed to his wife Claire, should drive MM back to her house so that MM could attend an appointment later.² MM testified that White drove the truck behind a pond and parked the car, where she alleged that he took her clothes off, performed oral sex on her, engaged in vaginal and anal sex with her, and then placed her hand on his penis and moved it back and forth "until stuff came out." She testified that she got dressed as he drove the truck to her grandmother's house, who then took her to her appointment. MM testified that the sexual acts that took place behind the pond lasted "ten minutes at most."

¶ 4. Additional witnesses who testified recalled events differently than MM, and Lane Twiner testified that he rode in the back of the trailer attached to White's truck during the time MM alleges he touched her vagina while she touched his penis. Twiner testified that White, not MM, drove the truck, and that he kept eye contact on White because he was providing directional hand signals to White since the trailer's load obstructed the rear view. Twiner testified that there was a tool box between White and MM in the passenger seat, and that he saw no sexual activity occur between the two. Twiner noted that when White pulled into his driveway with the trailer, he "took out his mailbox." This was not mentioned by MM, who testified that she was driving.

¶ 5. White testified in his own defense at trial and in regard to the alleged events of April 30, 2013. He asserted that he neither showed MM or LM pornography nor ever lifted up their shirts. In response to the alleged events of April 21, 2014, he stated that he did not direct MM to ride with him in his truck, and confirmed that Twiner was riding on the trailer attached to the truck, and that he knocked down his mailbox when he pulled into his driveway. White testified that MM's mother called to say that MM had to be home for her appointment, and stated that Claire gave MM some hotdogs to take with her before White drove MM to her grandmother's house. White denied stopping anywhere on the drive back, said MM's grandmother pulled into the driveway when they arrived at the house, and claimed that he was around MM and others over the next several days and she did not act like anything was wrong or out of the ordinary.

¶ 6. Prior to the trial, White made a motion in limine to exclude any evidence that he engaged in an affair with a fifteen-year-old named AB when he was approximately twenty-three years old. The affair occurred nine years prior to the trial, and White was never charged with a crime stemming from the affair. The circuit court denied White's motion in limine and all contemporaneous objections during the trial that pertained to the affair.

¶ 7. At trial, the State was allowed to present evidence, over the defense's vehement objections, that MM alleged White statutorily raped her on July 4, 2012, at Wolf Lake in Humphreys County, Mississippi. That incident was under indictment in a separate county and was not part of any charge that White was tried for in Yazoo County—the trial from which this appeal stems. MM provided the details of that incident in a handwritten statement prepared on January 19, 2015. In the written statement, MM alleged that on July 4, 2012, she, along with her sister and two of White's daughters, went with White to the lake to prepare for the July 4th festivities taking place later that day. Also in her written statement, she said White sexually assaulted her and that he threatened to hurt her and anyone she told. However, on direct examination at trial, MM testified that the alleged events took place a few days before July 4, 2012. MM testified that White asked her to go into the lake with him to retrieve water jugs he placed in the water to attract fish. She told the jury that White then grabbed her head and forced it under water and made her perform oral sex on him until she could not breathe. She then testified that he engaged in vaginal sex with her and that she did not tell anyone when they returned to the festivities because she was afraid he would hurt her.

¶ 8. On cross-examination, MM admitted that the pictures that defense counsel showed her were taken after the alleged rape occurred on July 4, 2012, and depicted her having a good time. On redirect, the assistant district attorney led MM to say again that the rape actually occurred a few days prior to the Fourth of July party where the pictures were taken.

¶ 9. Additional evidence was presented at trial, over defense counsel's objections, that White cheated on his first wife, Karen Hemphill, and gave her STDs on two separate occasions. The circuit court allowed further testimony that White gave Hemphill one of the STDs while she was pregnant. Hemphill testified that when this occurred, she was approximately seventeen years old and White was eighteen years old.

¶ 10. After deliberations, the jury returned a verdict of guilty on all three counts. White timely appeals to this Court for relief.

DISCUSSION

¶ 11. It is long established that the standard of review regarding the admission and exclusion of evidence is abuse of discretion. Newell v. State, 49 So.3d 66, 71 (¶ 9) (Miss. 2010). Decisions regarding the relevance and admissibility of evidence are "largely within the discretion of the trial court." Mabus v. State, 809 So.2d 728, 733 (¶ 24) (Miss. 2001). The Mississippi Supreme Court has held that a trial court's evidentiary rulings will not be reversed "unless the error adversely affects a substantial right of a party." Id. (citing Mingo v. State, 944 So.2d 18, 28 (¶ 23) (Miss. 2006) ). This Court will not reverse an evidentiary ruling "unless an abuse of discretion is shown, or the trial judge acted outside the rules of evidence." Id.

I. The circuit court erred by denying White the opportunity to authenticate evidence of electronic communications to attempt to establish the defense's theory regarding MM's motive to fabricate allegations.

¶ 12. "A criminal defendant is entitled to present his defense to the finder of fact, and it is fundamentally unfair to deny the jury the opportunity to consider the defendant's defense where there is testimony to support the theory." Edmonds v. State, 955 So.2d 787, 798 (¶ 29) (Miss. 2007). "While a defendant is entitled to present his defense, the right is not without its limitations, as ‘all evidence admitted in support of the defendant's theory of the case must comport with the Mississippi Rules of Evidence.’ " Scott v. State, 2014–KA–00572–COA, ––– So.3d ––––, ––––, 2016 WL 3391630, at *2 (¶ 12) (Miss. Ct. App. June 21, 2016) (quoting Clark v. State, 40 So.3d 531, 542 (¶ 30) (Miss. 2010) ). Authentication is a condition precedent to admissibility of evidence. Smith v. State, 136 So.3d 424, 432 (¶ 18) (Miss. 2014). "A party must make a prima facie showing of authenticity, and then the evidence goes to the jury, which ultimately will...