           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2014-KA-00113-COA

ELBERT DAVIS A/K/A ELBERT LEE DAVIS                                         APPELLANT
A/K/A ELBERT L. DAVIS

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                           01/06/2014
TRIAL JUDGE:                                HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                  WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                            BY: GEORGE T. HOLMES
                                                HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                          WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE:                         CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                    CONVICTED OF SEXUAL BATTERY AND
                                            SENTENCED TO TWENTY-TWO YEARS
                                            AND SIX MONTHS IN THE CUSTODY OF
                                            THE MISSISSIPPI DEPARTMENT OF
                                            CORRECTIONS AND TO PAY $800 TO THE
                                            CRIME VICTIMS’ COMPENSATION FUND
DISPOSITION:                                AFFIRMED: 08/04/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

          BEFORE GRIFFIS, P.J., ISHEE AND MAXWELL, JJ.

          GRIFFIS, P.J., FOR THE COURT:

¶1.       Elbert Lee Davis appeals his sexual-battery conviction. Davis argues the Washington

County Circuit Court erred when it limited his right to show his confession was involuntary,

admitted hearsay testimony, and gave an improper jury instruction. We find no error and

affirm.
                                             FACTS

¶2.     In January 2013, a ten-year-old child, Victoria,1 lived with her grandmother in

Greenville, Mississippi. Family member Elbert Lee Davis, age forty-four, also lived in the

home.

¶3.     On January 25, 2013, Victoria was watching television with her two cousins. Davis

entered the room and asked Victoria to come to a back room to iron his clothes. Victoria

went with him.

¶4.     After about ten minutes passed, one of the cousins went to check on Victoria. The

door was locked, and the cousin knocked repeatedly on the door. When it opened she saw

Victoria on the bed pulling up her underwear and saw Davis behind the door pulling up his

underwear.

¶5.     Davis then left the home, and Victoria told her cousin what happened. Victoria

recounted, upon entering the room to iron the clothes, she noticed the clothes were brand new

and did not need to be ironed. Davis then asked Victoria to remove her underwear. She did

as told, and he also removed his underwear. Then, Davis got on top of her on the bed. He

proceeded to insert his penis into her vagina.

¶6.     Victoria told her cousin what happened, and her cousin told her mother about the

incident. The police were then contacted, and investigated the residence that same night.

Victoria was also taken to the emergency room the same evening for evaluation.


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            We use a fictitious name to protect the identity of the minor child.

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¶7.    Detective Steven O’Neal, with the City of Greenville Police Department, investigated

the sexual-battery allegations against Davis. After Davis was arrested the day after the

incident, Detective O’Neal read Davis his Miranda rights, which Davis waived. Davis then

confessed in a recorded statement to having sex with Victoria. In addition to Davis’s

confession, Detective O’Neal also obtained Victoria’s statement, her cousin’s statement, and

information from the emergency-room nurse, Kathy Childers.

¶8.    Davis was convicted of sexual battery. He was sentenced to time already served,

followed by a term of twenty-two years and six months in the custody of the Mississippi

Department of Corrections. It is from this judgment Davis appeals.

                                        ANALYSIS

       I.     Whether the trial court limited the right of Davis to show his confession
              was involuntary.

¶9.    Davis argues that the trial court limited his right to present evidence to show his

confession was involuntary. He adds that this deprived him of his Sixth and Fourteenth

Amendment rights to a fair opportunity to present a defense. “The standard of review

applied to a circuit judge’s admission or exclusion of evidence and testimony is abuse of

discretion.” Carpenter v. State, 132 So. 3d 1053, 1055 (¶5) (Miss. Ct. App. 2013).

¶10.   Before trial, Davis filed a motion to suppress his confession. The trial court held a

pretrial hearing where both Detective O’Neal and Davis testified. The trial court then denied

the motion and ruled that Davis’s confession was admissible.

¶11.   At trial, after opening statements, the State moved in limine to prohibit Davis from

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introducing testimony of the circumstances under which his confession was obtained:

testimony that “relates to any hope or fear or promise or any threats that [Detective] O’Neal

may have made . . . .” The State argued it was improper for Davis to present evidence of

these considerations because the trial court had already rejected them in ruling that Davis’s

confession was admissible.

¶12.   Davis argued that the trial court “has ruled and had determined admissibility, but

there’s still a credibility issue that the jury decides[,]” and he has the “right to take the stand

and offer his reason for giving the statement that he made.” The trial court ruled that Davis

could offer evidence of his “state of mind” by “say[ing] that [he] was afraid and so [he] said

what [he] said,” but he could not present evidence of “[a]nything about whether [Detective

O’Neal] coerced the statement or whether it was by any kind of improper inducements, which

I’ve already ruled it wasn’t.” Davis claims that the trial court’s ruling was that Davis could

testify that he confessed because he was afraid, but he was prohibited from presenting

evidence of the circumstances to show why he was afraid. Thus, Davis claims this ruling

violated his fundamental right(s) to present a defense under the Sixth and Fourteenth

Amendments.

¶13.   The trial court denied the motion and held:

       I don’t think I can grant the motion in limine as far as, you know, what his
       state of mind was when he made the statement or something of that nature. I
       just don’t think I can, so I’ll overrule it as to that.

       As to specific things about whether the guy threatened him or not, I think I
       would agree with you about that. I guess what I’m going to say is I don’t think

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       you can ask the officer anything about whether he coerced the statement or
       whether it was by any kind of improper inducements, which I’ve already ruled
       it wasn’t. As far as the guy’s state of mind, I don’t think the officer can testify
       to that. So I don’t think I can give that as a motion in limine. I think I’ll just
       have to wait and hear the question.

¶14.   After this, Davis’s counsel did not raise the issue again during the trial. In addition

to not restricting the evidence, the trial court instructed the jury to determine if Davis made

the confession voluntarily:

       The Court instructs the jury that evidence has been received concerning a
       statement said to have been made by the defendant.

       It is for you to determine whether the defendant did, in fact, make the
       statement. If you find that the defendant did make the statement, then you
       must determine what weight, if any, should be given the statement; you should
       consider all matters in evidence having to do with the statement, as made, and
       if you find from the evidence that it was made under influence of hope or fear,
       you may take this into account in determining what weight or credit, if any,
       you decide to attach to it as evidence.

¶15.   Although Davis claims that the trial court’s ruling precluded him from “presenting

evidence of the circumstances to show why he was afraid” when he gave his confession, the

trial court did not prohibit the introduction of such evidence. Instead, the trial judge said, “I

don’t think you can ask the officer anything about whether he coerced the statement or

whether it was by any kind of improper inducements . . . .” The trial judge did not indicate

that Davis could not testify about any alleged coercion. As a result, we find that the trial

court did not prevent Davis from presenting evidence to show that he was allegedly afraid

due to alleged threats from Detective O’Neal. The trial judge merely reserved ruling on the

motion and said that he would “just have to wait and hear the question.”

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¶16.   Davis’s counsel did not raise the issue again during the testimony of either Detective

O’Neal or Davis. “This Court has repeatedly held that it is the responsibility of the movant

to obtain a ruling from the court on motions and [the] failure to do so constitutes a waiver.”

Byrom v. State, 863 So. 2d 836, 851 (¶27) (Miss. 2003) (internal quotations omitted).

Davis’s counsel’s failure to raise the issue again at the appropriate time and obtain a ruling

constitutes a waiver of the issue on appeal.

       II.    Whether the trial court allowed impermissible hearsay.

¶17.   Next, Davis argues that the trial court erred in allowing the State to admit hearsay

testimony. Hearsay is an out-of-court statement offered in court by someone other than the

declarant to prove the truth of the matter asserted. M.R.E. 801(c). We review the trial

court’s admission or exclusion of evidence and testimony under an abuse-of-discretion

standard of review. Carpenter, 132 So. 3d at 1055 (¶5).

¶18.   During the State’s direct examination of Detective O’Neal, he was asked and allowed

to testify that nurse Kathy Childers told him at the hospital “that there was penetration inside

[Victoria]’s vagina.” Davis argues that this testimony was inadmissible hearsay, the

probative value of which was substantially outweighed by its prejudicial effect. Thus, Davis

claims this testimony was inadmissible under Mississippi Rules of Evidence 801, 802, and

403.

¶19.   Indeed, the testimony by Detective O’Neal as to what Childers said appears to be

hearsay. However, the State responded to the objection and claimed that Childers’s


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statement was not being offered for the truth of the matter asserted, but to show why

Detective O’Neal charged Davis. The trial court agreed and overruled the objection.

¶20.    This Court has held that “[s]tatements are not hearsay when they are admitted to

explain an officer’s course of investigation.” Lawrence v. State, 116 So. 3d 156, 161 (¶19)

(Miss. Ct. App. 2012).      Here, we agree with the trial judge and find the testimony was

admitted to explain Detective O’Neal’s course of investigation. Accordingly, the trial court

did not abuse its discretion in allowing the testimony.

¶21.    Davis also argues that the probative value of this testimony was substantially

outweighed by its prejudicial effect, and it was therefore inadmissible under Mississippi Rule

of Evidence 403. The State responds that Davis’s only objection at trial was that the

testimony should be excluded as hearsay. Davis did not argue that the testimony was more

prejudicial than probative. An “[o]bjection on one ground at trial waives all other grounds

for objection on appeal.” Rubenstein v. State, 941 So. 2d 735, 758 (¶75) (Miss. 2006).

Therefore, we do not find error in this issue.

        III.     Whether the trial court gave an improper instruction.

¶22.    Finally, Davis argues that the trial court erred in giving jury instruction S-8. It

instructed the jury “that the unsupported testimony of a sex[-]crime victim is sufficient to

sustain a conviction if that testimony is not discredited or contradicted by other credible

evidence.” The State argues Davis is precluded from raising this issue because he failed to

raise it at trial.


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¶23.      The Mississippi Supreme Court has held that an opposing party must state a

contemporaneous objection in specific terms to a jury instruction in order to preserve that

point for appeal. Young v. Robinson, 538 So. 2d 781, 783 (Miss. 1989). Here, Davis did not

state a contemporaneous objection to preserve his objection for appeal. Therefore, this issue

is barred from consideration on appeal unless the circuit court committed plain error.

Williams v. State, 61 So. 3d 981, 983 (¶11) (Miss Ct. App. 2011).

¶24.      Here, Davis argues that the instruction improperly commented on the sufficiency of

the evidence and the witness’s testimony. However, “[o]nly an error so fundamental that it

creates a miscarriage of justice rises to the level of plain error.” Willis v. State, 999 So. 2d

411, 414 (¶9) (Miss. Ct. App. 2008) “Plain error occurs where the substantive rights of a

defendant are violated.” Id.

¶25.      When considering whether jury instructions created a manifest injustice,“instructions

are to be read together and taken as a whole with no one instruction taken out of context.”

Johnson v. State, 19 So. 3d 145, 147 (¶10) (Miss. Ct. App. 2009) (quoting Poole v. State, 826

So. 2d 1222, 1230 (¶27) (Miss. 2002)). In considering other relevant jury instructions, D-4

states:

          Each person testifying under oath is a witness. You have the duty to determine
          the believability of the witnesses. In performing this duty, you must consider
          each witness’[s] intelligence, the witness’[s] ability to observe and accurately
          remember, the witness’[s] sincerity, and the witness’[s] demeanor while
          testifying. You must consider also the extent the witness is either supported
          or contradicted by other evidence; the relationship the witness may have with
          either side; and how the witness might be affected by the verdict.


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       In weighing a discrepancy by a witness or between witnesses, you should
       consider whether it resulted from an innocent mistake or a deliberate
       falsehood, and whether it pertains to a matter of importance or an unimportant
       detail.

       You may reject or accept all or any part of a witness’[s] testimony[,] and you
       may reject part and accept other parts of a witness’[s] testimony. After making
       your own judgment, you will give the testimony of each witness the credibility,
       if any, as you may think it deserves.

¶26.   Viewing the jury instructions as a whole, “this Court must determine if the trial court

has deviated from a legal rule, whether that error is plain, clear, or obvious, and whether the

error has prejudiced the outcome of the trial.” Cox v. State, 793 So. 2d 591, 597 (¶22) (Miss.

2001). Considering all of the jury instructions, there is no plain, clear, or obvious error that

prejudiced the outcome of Davis’s trial.

¶27.   Further, “[i]f the instructions fairly announce the law of the case and create no

injustice, no reversible error will be found.” Taylor v. State, 763 So. 2d 913, 915 (¶8) (Miss.

Ct. App. 2000). Both sides agree that the disputed jury instruction fairly states the law of the

case. This Court has stated:

       [O]ur appellate courts have held that the unsupported testimony of a sex-crime
       victim is sufficient to support a guilty verdict where that testimony is not
       discredited or contradicted by other credible evidence, especially if the conduct
       of the victim is consistent with the conduct of one who has been victimized by
       a sex crime.

Faulkner v. State, 109 So. 3d 142, 149 (¶31) (Miss. Ct. App. 2013) (internal citations

omitted). Therefore, we find the trial court did not abuse its discretion in giving jury

instruction S-8.


                                               9
¶28.   In conclusion, we find no reversible error. Therefore, we affirm the judgment of

conviction.

¶29. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY
OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-TWO
YEARS AND SIX MONTHS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND TO PAY $800 TO THE CRIME
VICTIMS’ COMPENSATION FUND IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

    LEE, C.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ.,
CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. WILSON, J., NOT PARTICIPATING.




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