      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2015-KA-00079-COA

JESSE LEE WALKER A/K/A JESSE WALKER                   APPELLANT
A/K/A JESSIE WALKER A/K/A JESSIE LEE
WALKER A/K/A JESSE L. WALKER

v.

STATE OF MISSISSIPPI                                   APPELLEE

DATE OF JUDGMENT:               12/11/2014
TRIAL JUDGE:                    HON. ROBERT WILLIAM ELLIOTT
COURT FROM WHICH APPEALED:      TIPPAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:        ROBERT SNEED LAHER
                                JOHN D. WATSON
ATTORNEY FOR APPELLEE:          OFFICE OF THE ATTORNEY GENERAL
                                BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:              BENJAMIN F. CREEKMORE
NATURE OF THE CASE:             CRIMINAL - FELONY
TRIAL COURT DISPOSITION:        CONVICTED OF COUNT I,
                                GRATIFICATION OF LUST, AND
                                SENTENCED TO FIVE YEARS AND A
                                $1,000 FINE; AND COUNT II, SEXUAL
                                BATTERY, AND SENTENCED TO THIRTY
                                YEARS WITH FIVE YEARS SUSPENDED
                                AND FIVE YEARS OF POST-RELEASE
                                SUPERVISION, WITH THE SENTENCES
                                TO RUN CONSECUTIVELY TO EACH
                                OTHER, ALL IN THE CUSTODY OF THE
                                MISSISSIPPI DEPARTMENT OF
                                CORRECTIONS AND WITHOUT
                                ELIGIBILITY FOR PAROLE
DISPOSITION:                    AFFIRMED: 07/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE LEE, C.J., CARLTON AND FAIR, JJ.

     FAIR, J., FOR THE COURT:
¶1.    Jesse Walker was convicted of sexual battery and gratification of lust for acts

perpetrated against his daughter, Abby,1 on Christmas Eve in 2013. Abby was thirteen years

of age at the time. Walker was sentenced to a total of thirty-five years, with five years

suspended for post-release supervision.

¶2.    On appeal, Walker asserts that the trial court erred in (1) refusing to suppress his

confession, (2) finding the victim was of tender years, (3) failing to exclude alleged prior bad

acts concerning the living conditions of his home, (4) refusing his proposed jury instruction

D-2, and (5) denying his motions for a new trial and a judgment notwithstanding the verdict.

¶3.    Finding no merit to these assertions of error, we affirm the judgment of the trial court.

                                         DISCUSSION

       1. Confession

¶4.    In support of his motion to suppress the confession, Walker testified that while in

custody and being interrogated, he signed “a piece of paper but wasn’t sure what was on it.”

An officer told him to “give a statement of what he had done all day and he would talk to the

judge and it would make it easier on his sentencing,” adding that “the judge would go lighter

on him.” Walker also claimed there were four officers in the room, and one yelled and

cursed at him, while all of the officers asked him questions. Then he was handed a typed

paper and told to sign it, which he did. Walker denied that he read it or that it was read to

him.


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           We use a fictitious name to protect the identity of the victim.

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¶5.    “The burden lies with the State to prove that a confession is voluntary.” Scott v. State,

8 So. 3d 855, 861 (¶24) (Miss. 2008). “[T]he burden is met by the testimony of an officer,

or other person having knowledge of the facts, that the confession was voluntarily made

without any threats, coercion, or offer of reward. This makes out a prima facie case for the

State on the question of voluntariness.” Id. (citation and quotation marks omitted). “The

trial judge must determine beyond a reasonable doubt that a confession was voluntary and

knowing and that the defendant was given his Miranda rights prior to any custodial

interrogation.” Id. at (¶23).

¶6.    “A confession is voluntary when, taking into consideration the totality of the

circumstances, the statement is the product of the accused’s free and rational choice.” Wilson

v. State, 936 So. 2d 357, 361-62 (¶8) (Miss. 2006).

¶7.    In his arguments on appeal, Walker completely ignores the testimony of the officers,

which paints a different picture. They described how they read aloud Walker’s Miranda

rights and how Walker voluntarily signed the waiver of his rights. At the end of the

interview, the officers prepared a typed version of Walker’s statement, which they read to

him, and Walker voluntarily signed the statement. They testified that there were no promises

of leniency or favor from them or the judge. Further, they testified they did not shout or

curse at Walker, and that they allowed him to smoke while in custody and provided him with

water when he requested it.

¶8.    The trial court found that the testimony of the officers was more convincing and that


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“there were no threats, depravation of necessity, [or] any type of pressure or promises of

leniency.” The court also found that Walker understood the warnings given to him.

Ultimately, the court found that the State “proved beyond a reasonable doubt that the

statements were voluntarily and freely given.”

¶9.    “The circuit court sits as a fact finder when determining voluntariness of a confession,

and its determination will not be reversed unless manifestly wrong.” Horne v. State, 825 So.

2d 627, 639 (¶44) (Miss. 2002). This Court can reverse a trial court’s denial of a motion to

suppress “only when an incorrect legal standard was applied, manifest error was committed,

or the decision is contrary to the overwhelming weight of the evidence.” Williams v. State,

115 So. 3d 774, 778 (¶11) (Miss. 2013) (quoting Martin v. State, 871 So. 2d 693, 701 (¶30)

(Miss. 2004)). Crucially, “the resolution of conflicting testimony regarding voluntariness is

a question of fact to be resolved by the trial judge at the suppression hearing.” Chase v.

State, 645 So. 2d 829, 841 (Miss. 1994) (citation omitted).

¶10.   Given the officers’ testimony, we can find no error in the admission of Walker’s

confession.

       2. Hearsay / Tender-Years Exception

¶11.   Next, Walker argues that the trial court erred in admitting a video recording of a

forensic interview with the victim into evidence. The trial court found it subject to the

hearsay exception for statements made by a child of tender years. Walker challenges the trial

court’s finding that the victim was of tender years based on her age, which was thirteen years


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at the time she made the statement.

¶12.   The Mississippi Supreme Court has held that “there is a rebuttable presumption that

a child under the age of twelve is of tender years.” Veasley v. State, 735 So. 2d 432, 436

(¶16) (Miss. 1999). The court elaborated:

       Where an alleged sexual abuse victim is twelve or older, there is no such
       presumption and the trial court must make a case-by-case determination as to
       whether the victim is of tender years. This determination should be made on
       the record and based on a factual finding as to the victim’s mental and
       emotional age. If the court finds that the declarant is of tender years, then it
       must still rule on the [Mississippi Rule of Evidence] 803(25)(a) and (b) factors
       before admitting the testimony.

Veasley, 735 So. 2d at 437 (¶16).

¶13. Here, a tender-years hearing was held outside the presence of the jury. Since Abby

was thirteen when she disclosed the alleged sexual abuse by her father, the trial judge had

to first make an on-the-record determination, based on factual findings, that Abby’s mental

and emotional age was of tender years. That is exactly what he did.

¶14.   During the tender-years hearing, the judge heard testimony from a family protection

specialist from the Mississippi Department of Human Services and a forensic interviewer

from a child advocacy center. They described Abby as a “very low-functioning child,” a

special education student with an IQ of 70. She had previously been diagnosed with

attention deficit / hyperactivity disorder (ADHD) and did not “present as the average

thirteen-year-old child.” Abby “seemed to be very immature [and] very childlike,” and

appeared “scared and timid.” Her speech was difficult to understand, and she was frustrated


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that she could not articulate herself, so much so that one interviewer gave her a pen and paper

to write out her responses.

¶15.     The trial court cited this testimony and its own review of the video recording, and it

expressly found that “[Abby’s] mental and emotional age [is] that of a child of tender years.”

¶16.     As an appellate court, we “employ an abuse-of-discretion standard when reviewing

claims that the trial judge erred by admitting hearsay.” White v. State, 48 So. 3d 454, 456

(¶9) (Miss. 2010) (internal citations omitted).

¶17.     Walker offers no real argument on this point, except to point out that Abby was above

the age where she is presumed to be of tender years. That is not a showing of an abuse of

discretion. We find no error on this issue.

         3. Photographs

¶18.     Twenty-nine photographs showing the Walker home and surrounding areas, where the

sexual misconduct occurred, were admitted into evidence over Walker’s objections. On

appeal, Walker argues that the photographs “show the disheveled state of [his] property” and

should have been excluded because they were “an attempt to undermine [his] character.”

Other than a rote recitation of the controlling law, this is the entirety of his argument on this

point.

¶19.     The photographs show the home and its surrounding areas, which were the scene of

the crime. Furthermore, the record reflects that the pictures were taken as part of a DHS

investigation into the living conditions at the home, and it was during this investigation that


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Abby revealed the sexual abuse. The photographs also show numerous empty bottles of Jack

Daniels whisky, which corroborate a detail from Walker’s contested confession, where he

repeatedly emphasized his drinking Jack Daniels in an apparent attempt to excuse his actions.

¶20.   “[T]he State has a legitimate interest in telling a rational and coherent story of what

happened.” Davis v. State, 40 So. 3d 525, 530 (¶18) (Miss. 2010) (citation omitted). “Where

substantially necessary to present to the jury the complete story of the crime, evidence or

testimony may be given even though it may reveal or suggest other crimes [or bad acts].” Id.

(citation omitted).

¶21.   We find no abuse of discretion in the admission of the photographs.

       4. Refusal of Instruction D-2

¶22.   Walker submitted the following as his proposed jury instruction D-2:

       The Court instructs the jury that if you believe from the evidence that the
       alleged confession of the Defendant was untrue you should disregard it or, if
       you believe from the evidence that it was made under the influence of hope or
       fear, you may take this into account in determining what weight or credit, if
       any, you may attach to it as evidence.

¶23.   The trial court refused the instruction. On appeal, Walker claims this was error based

on Thomas v. State, 426 So. 2d 795, 795 (Miss. 1983), where the Mississippi Supreme Court

found reversible error in the refusal of a similar instruction. However, the Thomas court also

noted that the trial court there had failed to give a general instruction “explaining to the jury

that they were the sole judge of the weight and credibility of the witnesses, and that they

could give testimony and evidence such weight as they deemed it justified.” Id. In this case,


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the court’s own instruction, C-1, stated just that (in relevant part):

       You are the sole judges of the facts in this case. Your exclusive province is to
       determine what weight and what credibility will be assigned the testimony and
       supporting evidence of each witness. You are required and expected to use
       your good common sense and sound honest judgment in considering and
       weighing the testimony of each witness[.]

¶24.   Jury instructions are reviewed for abuse of discretion. Bailey v. State, 78 So. 3d 308,

315 (¶20) (Miss. 2012). Moreover, all instructions should be read together as a whole, and

there is no reversible error if they “fairly state the law of the case and create no injustice.”

Id. We find no merit to this issue.

       5. Weight and Sufficiency of the Evidence

¶25.   Walker raises these issues, but he makes no actual argument in support. Mississippi

Rule of Appellate Procedure 28(a)(6) states: “The argument shall contain the contentions

of appellant with respect to the issues presented, and the reasons for those contentions, with

citations to the authorities, statutes, and parts of the record relied on.” And while Walker

does cite numerous authorities, the rule “does not simply require a party to mention authority;

the authority must be used to develop the argument in a meaningful way.” Archer v. State,

118 So. 3d 612, 621 (¶29) (Miss. Ct. App. 2012) (citation omitted). This is because “there

is a presumption that the judgment of the trial court is correct and the burden is on the

Appellant to demonstrate some reversible error to [the appellate court].” Birkhead v. State,

57 So. 3d 1223, 1231 (¶28) (Miss. 2011).

¶26.   Notwithstanding the procedural bar, these contentions are without merit. The record


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contains a signed confession from Walker as well as the statements of the victim. Suffice

to say that both lay out sufficient evidence supporting each count, in detail. We have no

difficulty concluding that “viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting

Jackson v. Virginia, 443 U.S. 307, 315 (1979)).

¶27.   As to the weight of the evidence, Walker did testify and deny the allegations. But this

just created a conflict in the evidence, the resolution of which was entrusted to the jury, as

the finder of fact. “The law is clear that the weight and credibility to give to the evidence are

within the province of the jury.” Victory v. State, 83 So. 3d 370, 375 (¶22) (Miss. 2012).

¶28.   We find no merit to Walker’s contentions regarding the weight and sufficiency of the

evidence.

¶29. THE JUDGMENT OF THE CIRCUIT COURT OF TIPPAH COUNTY OF
CONVICTION OF COUNT I, GRATIFICATION OF LUST, AND SENTENCE OF
FIVE YEARS AND A $1,000 FINE; AND COUNT II, SEXUAL BATTERY, AND
SENTENCE OF THIRTY YEARS WITH FIVE YEARS SUSPENDED AND FIVE
YEARS OF POST-RELEASE SUPERVISION, WITH THE SENTENCES TO RUN
CONSECUTIVELY TO EACH OTHER, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AND WITHOUT ELIGIBILITY
FOR PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
JAMES, WILSON AND GREENLEE, JJ., CONCUR.




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