        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2014-KA-00643-COA

DONALD ALLEN CAVES A/K/A DONALD                                         APPELLANT
CAVES A/K/A DONALD A. CAVES

v.

STATE OF MISSISSIPPI                                                      APPELLEE


DATE OF JUDGMENT:                       04/17/2014
TRIAL JUDGE:                            HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED:              PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                OFFICE OF STATE PUBLIC DEFENDER
                                        BY: GEORGE T. HOLMES
                                            MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: MELANIE DOTSON THOMAS
DISTRICT ATTORNEY:                      HALDON J. KITTRELL
NATURE OF THE CASE:                     CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                CONVICTED OF FAILURE TO REGISTER
                                        AS A SEX OFFENDER AND SENTENCED
                                        AS A HABITUAL OFFENDER TO LIFE IN
                                        THE CUSTODY OF THE MISSISSIPPI
                                        DEPARTMENT OF CORRECTIONS
                                        WITHOUT THE POSSIBILITY OF PAROLE
                                        OR PROBATION
DISPOSITION:                            AFFIRMED - 06/09/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      CARLTON, J., FOR THE COURT:

¶1.   Donald A. Caves appeals the conviction entered against him on April 9, 2014, by the

Pearl River County Circuit Court for failure to register as a sex offender pursuant to
Mississippi Code Annotated section 45-33-33 (Supp. 2014).1 The trial court sentenced Caves

as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Supp. 2014)

to life in the custody of the Mississippi Department of Corrections without the possibility of

parole.2 On appeal, Caves argues: (1) the trial court erred in excluding the testimony of a

defense witness, and (2) the verdict is against the overwhelming weight of the evidence.

Finding no error, we affirm Caves’s conviction and sentence.

                                          FACTS

¶2.    In May 2012, Caves; his live-in girlfriend, Amber Thomas; and his children moved

from the home Caves had lived in for twenty years to another home two blocks away. Caves

and Thomas both testified that the previous home was unsanitary. Caves testified that a

Department of Human Services social worker visited his family and informed them that their

home had mold and that they could not continue to live there. Caves testified that based on

this information, he moved his family to the new home.

¶3.    In 1990, Caves was convicted of touching of a child for lustful purposes and is

required by section 45-33-33 to register as a sex offender and to notify the Department of

Public Safety (DPS) of any changes to his residency. In 2012, Caves failed to personally

appear at the DPS and register ten days before moving his family to the new residence.



       1
        Section 45-33-33(2)(a) provides a maximum sentence of “imprisonment in the
custody of the Department of Corrections for not more than five (5) years[.]”
       2
        The procedural history reflects that a Pearl River County grand jury indicted Caves
for sexual battery and failure to register as a sex offender under section 45-33-33. Both the
State and Caves’s appointed counsel agreed to proceed to trial on the failure-to-register
charge, saving the sexual-battery charge for a later date.

                                              2
Consequently, Caves was arrested.

¶4.    On June 6, 2013, a Pearl River County grand jury indicted Caves for sexual battery

and failure to register as a sex offender under section 45-33-33. The indictment was later

amended to charge Caves as a habitual offender under Mississippi Code Annotated section

99-19-83. Both the State and Caves’s appointed counsel agreed to proceed to trial on the

failure-to-register charge, saving the sexual-battery charge for a later date.

¶5.    Caves testified in his own defense at trial, stating that he lacked the ability to read or

write, and thus possessed no actual knowledge that he had a duty to appear at the DPS ten

days before he planned to move. The jury heard testimony from the following: Chris

Robbins, an investigator with the Pearl River County Sheriff’s Department; Thomas, Caves’s

former girlfriend; Kristin Thibodeaux, the records clerk for the Pearl River County Sheriff’s

Department; and Charlie Hill, acting director of the sex-offender registry for the State.

¶6.    Thomas testified that she and Caves dated for about two and a half years, and that she

knew that the sex-offender statute required Caves to re-register as a sex offender every ninety

days and to notify the registration office of any change of address. Thomas stated that Caves

did not attempt to re-register as a sex offender when they moved. Thomas testified that she

had accompanied Caves in the past when he would go to register as a sex offender.

Regarding Caves’s ability to read and write, Thomas testified, “He can read, but not like high

school level,” and “I’ve seen him write.” Thomas further specified that to her knowledge,

Caves “[doesn’t] have difficulty” reading and writing.

¶7.    Thibodeaux testified that as the records clerk of the sheriff’s department, she fills out



                                               3
the initial and re-registration paperwork for sex offenders. Thibodeaux testified that she

personally went over the registration paperwork with Caves, and she also read the forms to

him. Thibodeaux affirmed that she read the form to Caves, informing him that he possessed

the duty to record any change of address by personally appearing at the DPS driver’s license

station not less than ten days before changing addresses. Caves admitted that someone read

the forms to him, but testified that the person read them too fast, and he could not understand

the substance of the forms.

¶8.    After the State rested, Caves’s attorney informed the trial court that Caves would like

to introduce Erica Fraught as a defense witness. Caves stated that Fraught’s testimony would

confirm that he was unable to read and write, and that she had to read and explain things to

him regularly. The trial court excluded Fraught’s testimony, ruling that the issue of whether

Caves could read or write was not a pivotal issue in the case. The trial court further

explained that “it’s potentially confusing to the issue when you’ve had both [Thibodeaux and

Investigator Chris Robbins] testify they actually read from the documents to him.”

¶9.    After the trial, the jury found Caves guilty of failing to register as a sex offender.

Because Caves was indicted as a habitual offender under section 99-19-83, he was sentenced,

upon conviction, to life without the possibility of parole. Upon denial of his post-trial

motions, Caves filed his notice of appeal.

                                STANDARD OF REVIEW

¶10.   “The standard of review regarding admission or exclusion of evidence is abuse of

discretion. Where error involves the admission or exclusion of evidence, this Court will not



                                              4
reverse unless the error adversely affects a substantial right of a party.” Whitten v. Cox, 799

So. 2d 1, 13 (¶27) (Miss. 2000) (citation and internal quotation marks omitted). “Unless the

trial court has so abused this discretion as to prejudice the defendant's case, we will not

reverse the ruling of the trial court.” Tidwell v. State, 806 So. 2d 1146, 1148 (¶7) (Miss. Ct.

App. 2002) (citation omitted).

¶11.   In Daniels v. State, 107 So. 3d 961, 963 (¶¶10-12) (Miss. 2013), the supreme court

explained:

       [A] de novo standard of review [applies] to a trial court’s denial of a judgment
       notwithstanding the verdict [(JNOV)]. A motion for [a JNOV] is a challenge
       to the legal sufficiency of the evidence, and this Court will affirm the denial
       of a motion for [a] JNOV if there is substantial evidence to support the verdict.

       “Substantial evidence” is information of such quality and weight that
       reasonable and fair-minded jurors in the exercise of impartial judgment might
       have reached different conclusions. The evidence is viewed in the light most
       favorable to the verdict.

       A motion for a new trial falls within a lower standard of review than does that
       of a [JNOV] or a directed verdict. A motion for a new trial simply challenges
       the weight of the evidence. The [s]upreme [c]ourt will reverse the lower
       court’s denial of a motion for a new trial only if, by doing so, the court abused
       its discretion.

(Internal citations and quotation marks omitted).

                                       DISCUSSION

       I.     Exclusion of Witness Testimony

¶12.   Caves asserts that he was “essentially sentenced to serve life without the possibility

of parole for failure to meet a deadline.” In his appellate brief, Caves maintains that he is

illiterate and was found by a circuit court judge in 1990 to be mentally retarded. However,



                                              5
nothing in the record substantiates this assertion. Caves claims that because of his inability

to read the registration requirements, he lacked actual knowledge of his duty to appear in

person ten days before he intended to move.3

¶13.   Upon review of this assignment of error, the record reflects that the trial judge

excluded the witness testimony of Fraught because

       a subjective observation by someone that knows [Caves] is not a conclusive
       determination of what his abilities are to read or not or his inability to read.
       And it’s potentially confusing to the issue when you’ve had both [Thibodeaux
       and Investigator Robbins] testify they actually read from the documents to him.

As stated previously, the record shows that Fraught was expected to testify that she had

known Caves for many years and that he could not read or write. Since the ability to read

and write provides no defense to compliance with the statutory requirement for sex-offender

registration, the trial court excluded the testimony due to its lack of relevancy and potential

to confuse the issues and mislead the jury. See M.R.E. 402 (stating that relevant evidence

is usually admissible); M.R.E. 403 (stating that relevant evidence may be excluded if it would

cause confusion or mislead the jury).

¶14.   Caves argues that the trial court erred in excluding Fraught’s testimony regarding

Caves’s ability to read and write, thus depriving Caves of the ability to present a defense at



       3
         Mississippi Code Annotated section 45-33-29(1) (Rev. 2011) states that “[u]pon any
change of address, including temporary lodging, an offender required to register under this
chapter is required to personally appear at a Department of Public Safety [d]river’s [l]icense
[s]tation not less than ten (10) days before he intends to first reside at the new address.”
“The failure of an offender to personally appear at a Department of Public Safety [d]river’s
[l]icense [s]tation or to provide any registration or other information, including . . .
reregistration [or] change of address information . . . required by this chapter[,] is a violation
of this chapter.” Miss. Code Ann. § 45-33-33(1)(a).

                                                6
trial. Caves claims that Fraught’s testimony was central to his defense that he lacked actual

knowledge of his duty to re-register under section 45-33-29(1) due to his inability to read and

write. Caves maintains that if Fraught had been allowed to testify, she would have testified

that Caves was unable to read and write, and that she had to read and explain things to him

regularly. Caves argues that his defense centered around his intellectual disabilities and his

lack of actual knowledge of his duty to inform the Department of Public Safety (DPS) ten

days prior to changing residences. Caves asserts that Fraught’s testimony would show that

Caves lacked actual knowledge of his duty to inform the DPS because he was unable to read

and understand the registration requirements. At trial, the State objected to Fraught’s

testimony because she was not disclosed to the State during discovery as a potential witness

for the defense. See URCCC 9.04 (requiring the defendant to disclose potential trial

witnesses).

¶15.   As previously acknowledged, at trial, the judge excluded Fraught’s testimony on

different grounds, stating:

       [T]he witness will be excluded, but not for the reason that it’s unfair surprise
       or the State hasn’t had notice. . . .

       The reason the witness will be excluded is the court finds that . . . both the
       investigator and [Thibodeaux] testified that they read to [Caves] under sworn
       testimony the contents of documents. And the court finds that a subjective
       observation by someone that knows [Caves] is not a conclusive determination
       of what his abilities are to read or not or his inability to read. And it’s
       potentially confusing to the issue when you’ve had both witnesses testify they
       actually read from the documents to him. So the ability to read is not — or
       inability to read is not the pivotal issue in the court’s view.

¶16.   Caves maintains that the issue at trial was not simply whether he knew he possessed



                                              7
a duty to register, but whether he had actual knowledge that he was “required to personally

appear at a Department of Public Safety [d]river’s [l]icense [s]tation not less than ten (10)

days before he intends to first reside at the new address.” Miss. Code Ann. § 45-33-29(1).

As a result, he argues that Fraught’s testimony constituted relevant evidence.

¶17.   The Mississippi Rules of Evidence define “relevant evidence” as “evidence having

any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” M.R.E.

401. Caves also relies on Rule 402, which states that “[a]ll relevant evidence is admissible,

except as otherwise provided by the Constitution of the United States, the Constitution of the

State of Mississippi, or by these rules.” M.R.E. 402. Caves also asserts that the trial court

erred in not adhering to the procedure set out in Rule 9.04(I)4 of the Uniform Rules of Circuit

       4
          Rule 9.04(I) of the Mississippi Rules of Circuit and County Court provides a
procedure for instances where a party has failed to comply with the discovery rules. The rule
states, in part:

       If during the course of trial, the prosecution attempts to introduce evidence
       which has not been timely disclosed to the defense as required by these rules,
       and the defense objects to the introduction for that reason, the court shall act
       as follows:

              1. Grant the defense a reasonable opportunity to interview the
              newly discovered witness, to examine the newly produced
              documents, photographs or other evidence; and

              2. If, after such opportunity, the defense claims unfair surprise
              or undue prejudice and seeks a continuance or mistrial, the
              court shall, in the interest of justice and absent unusual
              circumstances, exclude the evidence or grant a continuance for
              a period of time reasonably necessary for the defense to meet
              the non-disclosed evidence or grant a mistrial.


                                              8
and County Court, which requires that the trial court grant continuances and only exclude

evidence as a last resort for discovery violations. Caves argues that although the trial court

did not exclude Fraught’s testimony based on the State’s assertion that the defense failed to

disclose Fraught as a potential witness in discovery, any discovery violation could have been

easily cured by granting a short continuance in order for the State to investigate.

¶18.   As previously stated, Thomas, Caves’s ex-girlfriend, provided testimony that she had

witnessed Caves read and write. Thomas also testified that Caves possessed awareness that

the sex-offender statute required Caves to notify the DPS of any change of address. See

Miss. Code Ann. § 45-33-29(1). Thibodeaux, the records clerk for the sheriff’s department,

testified that she personally reviewed and explained the sex-offender registration paperwork

with Caves and personally read the forms to him. Investigator Robbins of the Pearl River

County Sheriff’s Department testified that when he arrested Caves, he read Caves his

Miranda5 rights and also verbally explained these rights to Caves, as well as the charge

against him. In his decision to exclude Fraught’s testimony, the trial judge referred to

Thibodeaux and Investigator Robbins’s testimony providing that they both read the forms

aloud to Caves, and explained that “it’s potentially confusing to the issue [to allow Fraught’s

testimony] when you’ve had both [Thibodeaux and Investigator Robbins] testify they actually

read from the documents to him.”



                3. The court shall not be required to grant either a continuance
                or mistrial for such a discovery violation if the prosecution
                withdraws its efforts to introduce such evidence.
       5
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                               9
¶19.   In Gribble v. State, 760 So. 2d 790, 791 (¶1) (Miss. Ct. App. 2000), Quancidine

Gribble was charged with simple assault against her husband, Robert Gribble. At trial, the

State sought to introduce Robert’s divorce complaint into evidence to show that he was

claiming cruel and inhuman treatment. Id. at 792 (¶4). The trial judge refused to admit the

complaint into evidence, explaining that the jury already heard testimony that a divorce was

pending and that the grounds were cruel and inhuman treatment. Id. Upon review, this Court

found no error in the trial court’s exclusion of the divorce complaint, stating that “admitting

the actual divorce complaint in conjunction with the testimony about the grounds for divorce

would unnecessarily confuse the jury as to the issue in question in the pending case rather

than benefit the jury.” Id. at 793 (¶9).

¶20.   “The admissibility of evidence rests within the discretion of the trial court, and

reversal will be appropriate only when an abuse of discretion resulting in prejudice to the

accused occurs.” Palmer v. State, 939 So. 2d 792, 794-95 (¶7) (Miss. 2006). After our

review of the record before us, we find that the trial court did not err in excluding Fraught’s

testimony.

       II.    Weight of the Evidence

¶21.   Caves claims that the verdict is against the overwhelming weight of the evidence, and

as a result, the trial court erred in not granting Caves a JNOV or, in the alternative, a new

trial. Caves states that the evidence at trial showed that he “lacked actual knowledge of the

intricacies of the duty to notify the DPS” of his intent to change his residence. Caves asserts

that because he cannot read and has been found to be mentally retarded, allowing a



                                              10
conviction and sentence of life without the possibility of parole to stand based on a

technicality would sanction an unconscionable injustice.

¶22.   Caves maintains that the overwhelming weight of the evidence shows that he lacked

actual knowledge of his duty to appear in person at a DPS driver’s license station ten days

before he intended to first reside in a new home. Caves argues that since he had never lived

anywhere other than his first residence on Lee Street in Carriere, Mississippi, he had never

dealt with any of the requirements of the statute other than the re-registration every ninety

days. Caves argues that he did not understand that he was required to notify the DPS in

person ten days before moving.

¶23.   The Mississippi Supreme Court has held that “[t]he issue of whether [the defendant],

beyond a reasonable doubt, had actual or probable knowledge of the duty to register as a sex

offender is a factual issue for a jury to decide.” Garrison v. State, 950 So. 2d 990, 994 (¶11)

(Miss. 2006). In Garrison, the defendant claimed that he lacked notice that state law

required him to register as a sex offender. The Garrison court relied on Lambert v.

California, 355 U.S. 225 (1957), wherein the United States Supreme Court established:

       In cases where circumstances are completely lacking which might move one
       to inquire as to the necessity of registration and the defendant's conduct is
       merely passive, the State must prove actual knowledge of the duty to register
       or proof of the probability of such knowledge and a subsequent failure to
       comply with the duty to register.

Garrison, 950 So. 2d at 994 (¶12) (citing Lambert, 355 U.S. at 228-29).

¶24.   Our review of the record reflects that during the trial, the jury heard testimony from

Thomas, who stated that Caves could indeed read and write. Thomas also testified that she



                                              11
had previously accompanied Caves when he re-registered as a sex offender. Thibodeaux, the

records clerk for the sheriff’s department, also testified that she personally read the sex-

offender registration forms to Caves, including the form listing his duty to record any change

of address by personally appearing at the DPS driver’s license station not less than ten days

before changing addresses.

¶25.   The trial court admitted the sex-offender registration forms into evidence. The forms

reflected that Caves initialed the forms as acknowledging that he received them. Caves also

provided testimony during trial admitting that someone told him what his duties would entail

if he ever moved, but stated, “they read [the duties] so fast I couldn’t understand them. Just

me being in a hurry to get out of there, I just signed [the form] and told them I understood

it. I really didn’t.” Charlie Hill, acting director of the sex-offender registry for the State,

testified that the sex-offender registration office possessed no documentation showing that

Caves had updated his registration since January 10, 2011. The evidence also showed that

on July 12, 2012, Caves completed the personal information on the Miranda-warning form

where he identified his address as 47 Camellia Street, Carriere, Mississippi.

¶26.   After the trial, the jury received a jury instruction regarding notice, which provided:

       In general, mistake or ignorance of the law is no defense. However, mistake
       or ignorance of the law can be a defense when the defendant has a duty to act
       but is unaware of the duty. Therefore, you must find the State has proven
       beyond a reasonable doubt that [Caves] had actual knowledge or the
       probability of such knowledge of the duty to appear at a [DPS] [d]river’s
       [l]icense [s]tation not less than ten (10) days before he intends to first reside
       at a new address. If the State has proven this beyond a reasonable doubt, then
       you must find [Caves] “Guilty.”

¶27.   After our review of the record, we find that substantial evidence exists to support the

                                              12
jury’s verdict finding Caves guilty of failing to register as a sex offender. See Daniels, 107

So. 3d at 963 (¶¶10-12). This Court will not disturb the jury verdict. Furthermore, the trial

court’s denial of Caves’s motion for a JNOV or, in the alternative, a new trial, is hereby

affirmed.

¶28. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT OF
CONVICTION OF FAILURE TO REGISTER AS A SEX OFFENDER AND
SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY
OF PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO PEARL RIVER COUNTY.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND
FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.




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