                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2018-KA-00314-SCT

ALVIN C. WILSON a/k/a ALVIN WILSON a/k/a
ALVIN CORNELIOUS WILSON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         02/07/2018
TRIAL JUDGE:                              HON. STANLEY ALEX SOREY
TRIAL COURT ATTORNEYS:                    MATTHEW SULLIVAN
                                          CARTER SMITH
                                          STEPHANIE WOOD
                                          CHRIS HENNIS
                                          JONAS BOWEN
                                          RANCE N. ULMER
COURT FROM WHICH APPEALED:                JASPER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF THE STATE PUBLIC
                                          DEFENDER
                                          BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY:                        MATTHEW SULLIVAN
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 04/11/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.

       COLEMAN, JUSTICE, FOR THE COURT:

¶1.    On August 1, 2016, a grand jury indicted Wilson for sexual battery in violation of

Mississippi Code Section 97-3-95(1)(d) (Rev. 2014). The indictment charged Wilson with

willfully, unlawfully, and feloniously engaging in sexual penetration with a child under the
age of fourteen years old on or about March 1, 2012. The indictment provided that at the

time of the sexual battery, Wilson was over the age of eighteen and was twenty-four months

older than the victim.

¶2.    A Jasper County jury found Wilson guilty of sexual battery as charged. The trial court

sentenced Wilson to thirty-five years, with thirty years to be served day for day followed by

five years of supervised post release supervision. Wilson appeals, arguing that the trial court

erred by (1) admitting into evidence a video recording of his interview with law enforcement

and (2) proceeding with his trial and sentencing in absentia. Discerning no error, we affirm

Wilson’s conviction and sentence.

                     FACTUAL AND PROCEDURAL HISTORY

¶3.    The trial court appointed public defender Rance Ulmer to represent Wilson. On

August 22, 2016, Wilson personally appeared before the trial court, waived arraignment, and

entered a plea of not guilty. Wilson was released on bond, and the court set trial for February

14, 2017. The trial court ordered that Wilson remain in constant contact with his attorney

and keep him advised of changes to his address and phone number.

¶4.    On February 9, 2017, Wilson appeared before the trial court and entered a plea of not

guilty. The trial court entered an order allowing Wilson to remain out on bond and setting

trial for February 7, 2018. The order again required Wilson to remain in constant contact

with his attorney and to keep him advised of any change of address and phone number. The

order also provided that Wilson’s “failure to appear on the aforementioned date may result




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in [Wilson’s] being tried in [his] absence.” Wilson signed the order, agreeing to its form and

content.

¶5.    On February 1, 2018, Wilson filed a petition to plead guilty to statutory rape in

violation of Section 97-3-65(1)(b) (Rev. 2014). Wilson was scheduled to appear before the

trial court to enter his guilty plea on Monday, February 5, 2018, but Wilson did not appear.

After Wilson failed to appear, the sheriff’s department attempted to contact Wilson.

Likewise, Ulmer attempted to contact Wilson. Ulmer and the sheriff’s department were

unsuccessful.

¶6.    Trial commenced as scheduled on Wednesday, February 7, 2018.                  The State

announced it was ready for trial. The trial court then asked Ulmer whether Wilson was

present. Ulmer responded that he had not seen Wilson and moved for a continuance because

of his absence. Ulmer explained,

       Last Wednesday, which according to my calendar is January 31st, 2018, I met
       with Mr. Wilson at my office along with his wife. We discussed this case and
       prepared, went over a guilty plea which he signed, executed, and we filed the
       next day, February 1st, 2018. He has previously been told of his trial both by
       verbally and by mail, which is today February 7th, 2018.

       Since he was supposed -- he was to appear before this Court Monday, February
       the 5th, 2018, to enter his guilty plea in Bay Springs at 1 o’clock p.m. He did
       not show up. After that, my secretary and I made numerous phone calls to two
       different numbers that I have in my file. One number is disconnected, which
       is if I recall correctly is the number, his number which it says -- the answering
       machine disconnected, unavailable, and I forgot the other term that the voice
       on the phone left. The other number was to his mother, which just said the
       mailbox was full and hung up. Or no, excuse me, the mailbox had not been set
       up and hung up.

       I tried to contact him after 5 o’clock on Monday and I believe on yesterday.
       Still to no avail contact him at either number. I do not know if he has had an

                                              3
       emergency, but he is not here today and I feel on behalf -- to do my duty, I
       have to ask the Court for a continuance.

¶7.    Ulmer informed the trial court that the last day he had contact with Wilson had been

on January 31, 2018. Before the last contact, Ulmer stated that he and Wilson had spoken

about his case, including possible defenses. The State offered into evidence the trial court’s

February 9, 2017, order of arraignment setting the case for trial on February 7, 2018. Ulmer

had no objection, and the order was admitted into evidence. The trial court also recalled that

the February 7, 2018, trial date had been confirmed at docket call.

¶8.    The State called Investigator Chris Thompson of the Jasper County Sheriff’s

Department to the stand. Investigator Thompson testified that on February 6, 2018, he went

to Wilson’s address on file. Upon arriving at the address, Thompson spoke to Wilson’s

mother, who advised Thompson that she had not heard from Wilson in “a couple of days.”

Wilson’s mother provided a phone number to Investigator Thompson.                  Investigator

Thompson called the number on February 6, 2018, and February 7, 2018, the day of trial.

Investigator Thompson was unable to contact Wilson with the phone number provided by

Wilson’s mother.

¶9.    The trial court denied the motion for continuance in light of the evidence presented,

the arraignment order setting the trial for February 7, 2018, and the confirmation of the trial

date at docket call. The trial court recognized Wilson’s constitutional right to be present in

the courtroom at every stage of his trial, however it noted that the right is subject to waiver.

The trial court found that Ulmer had made diligent efforts to contact Wilson. The trial court




                                               4
also found that Ulmer had done everything within his power to have his client present for

trial.

¶10.     The trial court found that sufficient evidence had been presented showing that

Wilson’s absence was not due to any intervening cause other than Wilson’s own willful and

voluntary absence. The trial court found that Wilson’s absence was willful and voluntary

amounting to a deliberate attempt to avoid trial. As such, the trial court concluded that

Wilson had waived his right to be present at trial and ordered that the trial proceed in

absentia. Ulmer announced that he was ready for trial, and the trial proceeded.

¶11.     At the time of trial, the minor victim Jane1 was seventeen years old. Jane testified that

she was born on October 26, 2000. Jane testified that in 2012, Wilson was her mother’s

boyfriend and that he lived with Jane and her mother. Jane testified that she had sexual

intercourse with Wilson on March 1, 2012. On March 1, 2012, Jane was eleven years old,

and Wilson was twenty-two years old. Jane became pregnant and, at the age of twelve years

old, gave birth to her daughter Mary2 on December 6, 2012. Jane testified that Wilson is

Mary’s father.




         1
             To protect the identity of the minor victim, the Court will use the fictitious name
Jane.
         2
           To protect the identity of the victim’s daughter’s name, the Court will use the
fictitious name Mary.

                                                 5
¶12.   Investigator Thompson testified that he investigated the alleged sexual battery of Jane.

After Wilson waived his Miranda3 rights, Investigator Thompson interviewed Wilson. A

video of the interview was played for the jury and entered into evidence.

¶13.   Forensic DNA analyst Katherine Rodgers testified as an expert in the field of DNA

testing. Rodgers performed a paternity test to determine whether Wilson was Mary’s father

using DNA samples from Wilson, Jane, and Mary. Rodgers testified that Wilson could not

be excluded as the biological father of Mary. Rodgers opined that the probability that Wilson

is the father of Mary is 99.999998 percent compared to an untested, unrelated man of the

same race. Rodgers prepared a report of her findings, which was admitted into evidence.

¶14.   The jury found Wilson guilty of sexual battery in violation of Section 97-3-95(1)(d)

as charged in the indictment. The trial court sentenced Wilson to thirty-five years, with thirty

years to be served day for day and the remaining five years to be served on supervised post

release supervision.

¶15.   Following trial, Wilson filed a motion for a judgment notwithstanding the verdict or,

alternatively, for a new trial. The trial court denied the motion, and Wilson filed a notice of

appeal. On appeal, Wilson raises two assignments of error: (1) whether the trial court erred

by admitting a video recording of Wilson’s interview with law enforcement into evidence

and (2) whether the trial court erred by trying and sentencing Wilson in absentia.

                                STANDARD OF REVIEW




       3
           Miranda v. Arizona, 384 U.S. 436 (1966).

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¶16.   The admission or exclusion of evidence is reviewed for an abuse of discretion.

Hargett v. State, 62 So. 3d 950, 952 (¶ 7) (Miss. 2011). “Unless the [trial court] abuses [its]

discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Shaw

v. State, 915 So. 2d 442, 445 (¶ 8) (Miss. 2005) (quoting Jefferson v. State, 818 So. 2d 1099,

1104 (Miss. 2002)).

¶17.   The decision to grant or deny a motion for a continuance is reviewed for an abuse of

discretion. Miles v. State, 249 So. 3d 362, 367 (¶ 23) (Miss. 2018). Likewise, the decision

to try a felony defendant in absentia is reviewed for an abuse of discretion. Wales v. State,

73 So. 3d 1113, 1119–20 (¶¶ 16-18) (Miss. 2011).

                                       DISCUSSION

I.     Whether the trial court erred by admitting the video of Wilson’s interview with
       law enforcement.

¶18.   Wilson argues that the trial court erred by admitting a video of Wilson’s inculpatory

interview with law enforcement because no foundation had been established by the State

under Mississippi Rule of Evidence 901. Wilson argues that no evidence was presented

showing that the video recording was accurate. Wilson also argues that no evidence

explained how the recording was made and whether the equipment used was functioning

properly or otherwise was reliable.

¶19.   At trial, Investigator Thompson testified that he had interviewed Wilson as part of the

investigation of the case. Investigator Thompson testified that he read Wilson his Miranda

rights prior to conducting the interview. Investigator Thompson testified that Wilson waived

his Miranda rights and executed a Miranda waiver form. Investigator Thompson testified


                                               7
that, after executing the Miranda waiver, Wilson provided a statement to him in the Jasper

County Sheriff’s Department’s interview room. Investigator Thompson testified that the

statement was video recorded. Investigator Thompson also testified that he did not threaten

or coerce Wilson into providing the statement. Investigator Thompson testified that the

statement was freely and voluntarily given. Investigator Thompson testified that he did not

offer any reward to Wilson in exchange for making the statement. Investigator Thompson

testified that Wilson did not appear to be under the influence of alcohol or drugs.

¶20.   After the Miranda waiver was admitted into evidence without objection, the following

colloquy ensued:

       MR. SMITH:4           I would also ask at this point in time that the video
                             statement that [Investigator Thompson] just mentioned
                             be entered into evidence and be allowed to play it for the
                             jury at this time.

       THE COURT:            Any objection?

       MR. ULMER:            Play the whole thing, Judge.

¶21.   The video was then played for the jury. After the video concluded, the State requested

that the video be admitted into evidence. Ulmer objected “for lack of a proper foundation

to admit the video into evidence.” The State responded that it had laid the proper foundation,

that Wilson had been advised of his Miranda rights, that the statement was voluntary, and

that the statement had been provided without threat or coercion.

¶22.   Ulmer raised no specific concern about the accuracy, video recording equipment, or

reliability of the video recording; rather, Ulmer inquired about the date of the executed

       4
           The prosecutor for the State was Carter Smith.

                                              8
Miranda waiver. Investigator Thompson verified the date of the waiver, and the trial court

overruled the objection. Investigator Thompson then testified that Wilson had provided his

video recorded statement immediately after he had executed the Miranda waiver. The trial

court then admitted the video statement into evidence.5 The State asked Investigator

Thompson a follow up question: “to recap that interview with you, what did Mr. Alvin

Wilson admit to you during the statement?” Ulmer objected, and the trial court said he

would allow “some leeway[, b]ut Mr. Smith the video is going to speak for itself.”




       5
           The record’s exhibit envelope contains a CD/DVD purporting to be the subject
interview. The CD/DVD is marked “Alvin Wilson Interview 9-24-15” along with the
exhibit sticker labeled “EXHIBIT S-3.” The CD/DVD contains two video files. The video
files are a video recording of a law enforcement interview with a female apparently from an
entirely unrelated case based on the content of the interview. No other video file is on the
CD/DVD, and no other CD/DVD is contained in the exhibit folder or elsewhere in the
record.

       On June 8, 2018, the Jasper County Circuit Clerk served notice of the completion of
the appeal record for attorney review as required by Mississippi Rule of Appellate Procedure
11(d)(2). On June 21, 2018, Ulmer certified that the record was correct and complete to the
best of his knowledge after careful examination as required by Rule 10(b)(5). On July 19,
2018, Ulmer filed a motion to withdraw and requested that the Indigent Appeals Division
of the Office of the State Public Defender be substituted as counsel of record. On June 23,
2018, Ulmer’s motion was granted. Although the representations made in the parties’ briefs
and exhibit list indicate that Wilson’s video interview is in the record, it is not. Wilson’s
appellate counsel had the “duty to see that all . . . exhibits . . . are included in the record, and
he may not complain of his own failure in that regard. . . . There are adequate procedures
and safeguards to assure that incorrect or incomplete records are remedied.” State ex rel.
Miss. Bureau of Narcotics v. Canada, 164 So. 3d 1003, 1006 (¶ 9) (Miss. 2015) (quoting
Oakwood Homes Corp. v. Randall, 824 So. 2d 1292, 1293 (¶ 4) (Miss. 2002)).
Notwithstanding appellate counsel’s failure, a review of the police interview is not necessary
for purposes of the issues on appeal. Both parties agree that the interview contained
inculpatory statements. Other than generally referring to the statements as inculpatory,
neither party describes the substantive content of the interview.

                                                 9
¶23.   Based on Wilson’s trial counsel’s invitation to “play the whole thing, Judge[,]” we

cannot say that Wilson suffered any prejudice due to the subsequent admission of the video

interview into evidence. See Shaw, 915 So. 2d at 445 (¶ 8) (“Unless the [trial court] abuses

[its] discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.”

(quoting Jefferson v. State, 818 So. 2d 1099, 1104 (¶ 6) (Miss. 2002))).

¶24.   Notwithstanding Ulmer’s invitation to play the entire video, Wilson’s interview was

sufficiently authenticated by Investigator Thompson’s testimony under Mississippi Rule of

Evidence 901.     Rule 901 provides, “To satisfy the requirement of authenticating or

identifying an item of evidence, the proponent must produce evidence sufficient to support

a finding that the item is what the proponent claims it is.” M.R.E. 901(a). An example that

satisfies the requirement is testimony of a witness with knowledge that an item is what it is

claimed to be. M.R.E. 901(b)(1). “A party need only make a prima facie showing of

authenticity, not a full argument on admissibility. ‘Once a prima facie case is made, the

evidence goes to the jury and it is the jury who will ultimately determine the authenticity of

the evidence, not the court.’” Walters v. State, 206 So. 3d 524, 535 (¶ 32) (Miss. 2016)

(quoting Sewell v. State, 721 So. 2d 129, 140 (¶ 60) (Miss. 1998)).

¶25.   Wilson cites Conway v. State, 915 So. 2d 521, 526 (¶ 19) (Miss. Ct. App. 2005), in

support of his argument. In Conway, the Mississippi Court of Appeals reasoned that an

edited surveillance video of the crime scene was admitted without proper authentication,

because the officer whose testimony had been used to authenticate the video was not present

at the crime scene, the officer had not edited the original video, and the officer never



                                               10
indicated that he had ever watched the original video. Id. at 526 (¶¶ 18-19) (concluding that

the State had failed to prove that the officer had sufficient knowledge of the crime scene in

order to testify that the edited videotape accurately depicted the events on the day in

question). Unlike the testimony in Conway, the authentication testimony offered to

authenticate Wilson’s video interview was based on information within Investigator

Thompson’s knowledge.

¶26.   Investigator Thompson testified that he personally conducted the interview with

Wilson. Investigator Thompson testified about the events immediately preceding Wilson’s

statement involving his waiver of Miranda rights. Investigator Thompson also described

where he interviewed Wilson. Furthermore, Investigator Thompson testified that the

interview had been video recorded.

¶27.   Investigator Thompson, who was familiar with and had knowledge of the contents of

the recording, provided testimony supporting the trial court’s finding that the video interview

was what the State claims it was, i.e., Wilson’s interview with Investigator Thompson.

Authentication might be accomplished “by testimony from someone familiar with and with

knowledge of the contents of the document or recording” under Rule 901(b)(1). Corrothers

v. State, 148 So. 3d 278, 310 (¶ 78) (Miss. 2014) (quoting Bunch v. State, 123 So. 3d 484,

492 (¶ 20) (Miss. Ct. App. 2013)). The trial court did not abuse its discretion by admitting

the video interview into evidence.

II.    Whether the trial court erred by trying and sentencing Wilson in absentia.




                                              11
¶28.   Wilson argues that, although he did not appear for his scheduled trial, the trial court

erred by denying his motion for a continuance, because it was not abundantly clear that his

absence was willful. Wilson also argues that the trial court erred by proceeding with his trial

and sentencing him in absentia.

¶29.   “The decision to grant or deny a motion for a continuance is within the sound

discretion of the trial court and will not be grounds for reversal unless shown to have resulted

in manifest injustice.” Simmons v. State, 805 So. 2d 452, 484 (¶ 72) (Miss. 2001) (citing

Coleman v. State, 697 So. 2d 777, 780 (Miss. 1997)). Here, the trial court properly

proceeded within its discretion under Mississippi Code Section 99-17-9, which provides

       In criminal cases the presence of the prisoner may be waived (a) if the
       defendant is in custody and consenting thereto, or (b) is on recognizance or
       bail, has been arrested and escaped, or has been notified in writing by the
       proper officer of the pendency of the indictment against him, and resisted or
       fled, or refused to be taken, or is in any way in default for nonappearance, the
       trial may progress at the discretion of the court, and judgment made final and
       sentence awarded as though such defendant were personally present in court.

Miss. Code Ann. § 99-17-9 (Rev. 2015). The trial court’s discretion under Section 99-17-9

is “limited by the fact that a felony defendant has a constitutional right to be present at trial.”

Wales, 73 So. 3d at 1120 (¶ 17) (citing U.S. Const. amend. VI; Miss. Const. art. 3, § 26).

¶30.   In Wales, the Court held that the trial court did not abuse its discretion in finding that

defendant Leo Wales had voluntarily absented himself from his trial. Wales, 73 So. 3d at

1120 (¶ 18). The Court explained that Wales had assisted in his defense by consulting with

his attorney in anticipation of trial a week later. Id. Although Wales knew his trial date, he

did not appear at the courthouse for his trial. Id. The Court noted that extensive efforts to



                                                12
locate Wales over a two day period by the prosecution, the defense, and law enforcement

were fruitless. Id. Like Wilson, Wales argued that “no direct evidence was before the trial

court that his absence was voluntary[,]” however, the Court held that “substantial

circumstantial evidence was before the trial court demonstrating Wales’s intent to avoid

trial.” Id.

¶31.   Here, Wilson failed to appear on the date of his scheduled trial, and the trial court

thoroughly inquired into Wilson’s nonappearance. Ulmer informed the trial court that he

personally told Wilson that his trial was set for February 7, 2018. Ulmer informed the trial

court that Wilson had been advised of his February 7, 2018, trial date by mail. Ulmer

explained his multiple unsuccessful efforts to contact Wilson, even though Wilson had been

ordered by the trial court to keep in constant contact with his trial counsel, including advising

his trial counsel of any address or telephone number changes. Investigator Thompson also

testified that he had made multiple unsuccessful efforts to contact Wilson after he had failed

to appear at a hearing two days before his scheduled trial date.

¶32.   Based on the evidence presented, the trial court found that Wilson’s absence had been

a willful, voluntary, and deliberate attempt to avoid trial. As a result, the trial court found

that Wilson waived his constitutional rights to be present at trial. As in Wales, we hold that

the trial court did not abuse its discretion in trying Wilson in absentia.6

¶33.   Alternatively, Wilson argues that even if the trial court did not err by trying him in

absentia, the trial court should have waited to sentence Wilson until he was in custody.

       6
       Wilson never raised—at trial or on appeal—Mississippi Rule of Criminal Procedure
10.1, which went into effect on July 1, 2017.

                                               13
¶34.   After the jury returned a guilty verdict, the trial court announced

       Because we tried this matter in absentia under Section 99-17-9, as I read the
       statute even though we had trial today, we may proceed to final judgment.
       Any objection from the defendant on me sentencing Mr. Wilson at this time?

¶35.   Ulmer responded that he was not familiar with the statute and that he would “certainly

defer to [the trial court’s] judgment on [the statute].” The State also stated that it would

“[d]efer to the [trial c]ourt.” After reviewing the statute, the trial court found that it might

progress with sentencing at its discretion. The trial court proceeded by sentencing Wilson

as though he were present.

¶36.   Even if Wilson’s alternative argument had been properly preserved, his argument

wholly lacks merit. As written above, the trial court did not abuse its discretion by finding

that Wilson had waived his constitutional rights to be present at trial and by trying him in

absentia. Under Section 99-17-9, “the trial may progress at the discretion of the court, and

judgment made final and sentence awarded as though such defendant were personally

present in court.” Miss. Code Ann. § 99-17-9 (emphasis added).

                                       CONCLUSION

¶37.   For the reasons stated above, we affirm the trial court’s judgment.

¶38.   AFFIRMED.

    RANDOLPH, C.J., KITCHENS AND KING, P.JJ., MAXWELL, BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




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