                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2013-KA-01742-SCT

MARVIN KIRK

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                           10/09/2013
TRIAL JUDGE:                                HON. WILLIAM E. CHAPMAN, III
TRIAL COURT ATTORNEYS:                      MARY B. COTTON
                                            GREGORY V. MILES
COURT FROM WHICH APPEALED:                  MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    PHILLIP W. BROADHEAD
                                            OFFICE OF STATE PUBLIC DEFENDER
                                            BY: GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                            BY: LAURA HOGAN TEDDER
                                                 JOHN R. HENRY, JR.
DISTRICT ATTORNEY:                          MICHAEL GUEST
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 02/05/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    Marvin Kirk was tried and convicted of aggravated domestic violence in the Circuit

Court of Madison County. He was sentenced as a Section 99-19-81 habitual offender to

twenty years in the custody of the Mississippi Department of Corrections. The State alleged

that Kirk twice had strangled his wife, Casey. At trial, witnesses testified that Casey had red

marks on her neck shortly after the alleged assaults had occurred, and Casey testified that
Kirk had strangled her. Kirk denied so doing. Finding Kirk’s assignments of error to be

without merit, we affirm his conviction and sentence.

                             STATEMENT OF THE FACTS

¶2.    On Friday, January 25, 2013, Marvin Kirk, home from working offshore, woke around

ten o’clock in the morning at his residence at 208 Waldrop Road in Madison County. Kirk

testified that he went to a hardware store to purchase tools to repair a leaking faucet in the

bath tub in the master bathroom. He testified that nothing occurred that day except “the

ususal being married.” Casey Kirk, Marvin’s wife, who did not work outside the home,

testified that she and the couple’s two-year-old son Gabriel had spent the majority of the day

at home watching cartoons, “until about 6:00 or so.” She testified that her husband took her

keys, phone, and wallet away from her, because “[h]e said I was doing drugs and that I was

wanting to go get drugs and that I was cheating on him” and that, generally, “[h]e was just

in an ill mood, just wanting me to do whatever he wanted me to do and control me.” Casey

testified that she did not use drugs on Thursday, January 24, 2013, or on the following

weekend.

¶3.    Casey testified that, at some point that Friday evening, Marvin began complaining that

the house was dirty. When Marvin started complaining, the family was “sitting on the couch

in the living room,” so Casey got up to wash dishes. She said, “And I’m washing dishes, and

he kept yelling at me, and I got irritated because I’ve done everything he wants me to do.”

Casey testified that, as the argument escalated, “[h]e started coming towards me.” Marvin

allegedly kicked Casey, which resulting in her falling onto the refrigerator. At that point,

Casey testified, Marvin grabbed her by the neck and proceeded to choke her in the presence


                                              2
of their son. She stated that she was not able to breathe. When Marvin released her, Casey

“gasped for breath,” grabbed her son, and proceeded again to wash dishes “with Gabriel right

beside me” in an effort to prevent Marvin from getting angrier. After completing the dishes,

Casey and Gabriel returned to the sofa. Casey testified that Marvin “told me that my mouth

was going to get me put in a shallow grave outside if I didn’t shut up.” That night, Casey and

Gabriel shared her bed.

¶4.    The next morning, Saturday, January 26, 2013, Casey and Gabriel watched cartoons

until Marvin got up, again around ten o’clock. Marvin had slept in his chair in the living

room. Casey testified that, when Marvin got up to go to the bathroom, she rushed to Marvin’s

chair, where he had been sitting for two days, in an effort to find her phone and her keys. She

located both her phone and her keys and, when Marvin returned from the bathroom, he began

asking Casey questions regarding why she needed them. He threw her phone out the back

door into the kudzu and proceeded to wrestle with Casey to get her keys back. Casey testified

that, as they were wrestling, she informed Marvin that she needed to go to the hospital.

Finally, Marvin “got the keys away from me and broke the lanyard. Whenever it broke the

lanyard, it cut my hand.”

¶5.    The melee continued, and “[h]e grabbed me, and he put me on the ground, and he

choked me until where I couldn’t see or breathe or anything.” This occurred between the

kitchen and the living room, because “the living room has carpet, the kitchen has hard

floors,” and Casey’s “back was on the carpet, but [her] head was on the hardwood floor.”

Marvin allegedly “choked [Casey] completely out,” meaning Casey “lost consciousness.”

When she came to, Casey testified, she searched frantically for a cigarette. When she located


                                              3
one, she “lit it in the house, not thinking. And he got mad at me, and he tried to wrestle the

cigarette away from he, and was trying to burn me with the cigarette.” According to Casey,

Marvin succeeded in burning her with the cigarette.

¶6.    Casey testified that, at that point, she was able to grab Gabriel and walk out the back

door. In hopes the “across-the-street neighbors,” the Hobsons, were home, Casey fled there,

but they were not home. Casey then returned to her driveway, “because I kept hearing car

doors slamming” and she observed Marvin packing up the family car. He threatened to lock

her out of the house, which he then agreed not to do. As he was walking to unlock the house

door, Casey “put Gabriel down in the middle of the driveway” and “ran over there to try to

get the car seat.” Marvin pushed her away. Casey then “got really scared again,” picked up

Gabriel and ran back through the woods to her landlord’s house.

¶7.    Colita Ogletree, whom Casey had never met, was the wife of the Kirks’ landlord,

David Ogletree, a neighboring homeowner. Casey did not want her landlord “to see how

crazy and messed up my family was because we were renting the house from them.”

Nevertheless, because other neighbors, the Hobsons, were not home, Casey fled to the

Ogletrees’ house. Colita answered the door and Casey informed her that her husband had

strangled her and that she needed to place a telephone call to 911. At trial, this recorded 911

call was played for the jury.

¶8.    Marvin’s testimony at trial consisted of a significantly different version of events. He

denied yelling at Casey during the weekend in question. He denied keeping Casey’s

telephone or keys from her, testifying that she had three phones and her keys were kept in

magnetic boxes under the cars’ hoods. He denied burning or attempting to burn Casey with


                                              4
a lit cigarette. He testified that, on the weekend in question, Casey “was looking for a bag of

crystal meth that she inadvertently folded up in a towel and dropped on the floor.” When

Marvin informed Casey that he had flushed her methamphetamine, she began “digging

through the house, just through everything, through stuff that you wouldn’t look through

generally if you were looking for something.”

¶9.    Marvin testified that, when Casey realized that her methamphetamine was gone, she

went on a tirade: “I’m talking about like, ‘You don’t do nothing for this family, all you do

is bitch. . . . All you do is gripe about what I don’t do.’” He then collected his packed bags,

his boots, his hard hat, and his life jacket and headed offshore. Marvin testified that, as he

was packing the truck, Casey begged him to stay—in fact, he testified that Casey cut her

thumb in an effort to wrest his keys from him as he was trying to leave. He denied that he

ever had assaulted or choked his wife. He testified that the marks on Casey came from

running though the woods to get to the Ogletrees’ house. On cross examination, Marvin

testified that no marks had been on Casey’s neck when he left the house, and that he was

unaware of how she had gotten the bruise on her arm or the cigarette burn. Marvin testified

that he was pulled over by the police, who took him to the Ogletrees’ house.

¶10.   Colita Ogletree testified that when Casey arrived at her house, “[s]he was just very

alarmed when she came in, and she showed me her forearm. It looked like she had a goose

egg.”Also, Colita noticed that Casey’s neck was red. She testified that “she just had kind of

a goose egg on her bicep and some bruising, and her neck was red.”

¶11.   Deputy Sheriff Tommy Strait, the officer who responded to the call from the

Ogletrees’ house, testified that he and Deputy Sheriff Brad Sullivan had received a call about


                                              5
a potential domestic-violence case on Waldrop Road involving a white Toyota Forerunner.

According to Strait, on the way to Waldrop Road, “we came into contact with him, Marvin

Kirk, and detained him at the time and went to where Casey Kirk was.” When asked about

Casey’s demeanor, Strait testified that;

       She was scared and frantic and just really didn’t know what to do because she
       was worried about Mr. Kirk coming back to where she was and getting her, as
       she said. I also noticed around her neck she had strangulation marks. She had
       several bruises upon her also.

Strait then photographed Casey’s injuries and called an ambulance to take her to the hospital.

¶12.   Deputy Sullivan testified that, when he observed the Toyota Forerunner, he detained

Marvin, placed him, in handcuffs, into the back seat of a patrol car, and returned him to

Waldrop Road. When the deputies arrived at the Ogletrees’ residence, Strait and Sullivan left

Marvin in the patrol car outside and went in to speak with Casey. Sullivan testified that when

he noticed that Casey “had red marks on her neck that she was pointing out to Deputy Strait,

and she had some red marks on her arms,” he returned outside and read to Marvin his

Miranda 1 warnings, because “Mississippi state statute says domestic violence with

strangulation is a felony domestic charge.”

¶13.   On April 3, 2013, Marvin Kirk was indicted by a Madison County grand jury under

Mississippi Code Section 97-3-7(4) for aggravated domestic violence. On July 26, 2013, the

State moved to amend Kirk’s indictment to charge him as an habitual offender under

Mississippi Code Section 99-19-81. Kirk previously had received a 1998 conviction for

grand larceny in Yazoo County, Mississippi, for which received a five-year sentence with



       1
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              6
three years and six months suspended, leaving one year and six months to serve and one year

of supervised probation following release from custody.2 In 2007, Kirk had received a

burglary conviction in Yazoo County, Mississippi, and was sentenced to serve six years, with

two years to serve and four years of post-release supervision.3 On August 12, 2013, the

Madison County Circuit Court ordered the amendment of Kirk’s indictment to include the

Section 99-19-81 habitual-offender charge. Kirk was tried on August 28, 2013, and was

found guilty of aggravated domestic violence by a Madison County jury.

¶14.   On October 7, 2013, the trial court sentenced Kirk as an habitual offender to twenty

years’ imprisonment, the statutory maximum for aggravated domestic violence. See Miss.

Code Ann. § 97-3-7(4)(a) (Rev. 2014). The trial court denied Kirk’s motion for judgment

notwithstanding the verdict, or in the alternative, for a new trial, on October 11, 2013. Kirk

filed a notice of appeal to this Court on October 16, 2013.

¶15.   Kirk raises four issues for review by this Court:

       I.     Whether it was plain error for the trial court to permit a law
              enforcement officer to testify to medical causation, that the victim’s
              injuries appeared to be a result of strangulation, in a case in which
              strangulation was an element of the crime charged in the indictment.

       II.    Whether the trial court erred by denying the Appellant’s motion for
              judgment notwithstanding the verdict or, in the alternative, for a new
              trial.

       III.   Whether the trial court erred by excluding letters and a text message.


       2
     The sentence computation record reflects that, on Kirk’s 1998 sentence, the sentence
commenced on April 10, 1998. Kirk was discharged on September 20, 1999.
       3
        As for the 2007 burglary charge, Kirk’s sentence commenced on August 8, 2007,
and he was released on probation on July 10, 2008. Prior to being sentenced, the sentence
computation record reflects that Kirk had spent a total of 110 days incarcerated.

                                              7
       IV.    Whether the trial court erred by prohibiting defense counsel from cross
              examining the victim regarding a drug hair follicle test on grounds of
              relevancy.

       V.     Whether the trial judge committed reversible error with regard to jury
              deliberations following the trial.

Each assignment of error is considered in turn.

                                        ANALYSIS

       I.     Whether it was plain error for the trial court to permit a law
              enforcement officer to testify to medical causation, that the victim’s
              injuries appeared to be a result of strangulation, in a case in which
              strangulation was an element of the crime charged in the
              indictment.

¶16.   Kirk recognizes that no contemporaneous objection was forthcoming when Deputy

Strait testified at trial regarding the marks he had observed on Casey Kirk’s neck. On direct

examination, when asked about Casey’s demeanor, Strait testified that he “noticed around

her neck she had strangulation marks.” He further testified that he requested an ambulance

“due to her complaining about her throat being sore and obviously because of the bruising

and things that can happen in a strangulation to the neck.” And when asked about the

incident report he prepared on the day in question, Strait responded: “She indicated that there

was shoving, hitting with a closed fist, and a slap with an open hand, beating up, and

strangulation.” But, in spite of the failure of trial counsel to interpose an objection, Kirk

claims that the doctrine of plain error applies.

¶17.   Generally, preservation of an issue for appeal requires a contemporaneous objection

at trial. Christmas v. State, 10 So. 3d 413, 421 (Miss. 2009) (quoting Walker v. State, 913




                                              8
So. 2d 198, 238 (Miss. 2005)). The doctrine of plain error permits this Court to consider, in

spite of a lack of a contemporaneous objection at trial:

       obvious error which was not properly raised by the defendant and which
       affects a defendant’s fundamental, substantive right. For the plain-error
       doctrine to apply, there must have been an error that resulted in a manifest
       miscarriage of justice or seriously affects the fairness, integrity, or public
       reputation of judicial proceedings.

Johnson v. State, 2014 WL 971542, *4 (Miss. March 13, 2014) (quoting Burdette v. State,

110 So. 3d 296, 303 (Miss. 2013) (quoting Conners v. State, 92 So. 3d 676, 682 (Miss.

2012))). Kirk claims that, “[w]ith no expert witness, no eye-witnesses, and witnesses with

mere reiterations of Casey Kirk’s testimony, the State improperly introduced medical expert

testimony through a lay law enforcement witness to salvage its case.” According to Kirk, this

violated his “right to a fair trial by misleading and blatantly poisoning the jury with

unreliable ‘expert testimony.’” The State responds that Strait “did not offer an opinion as to

whose hand made the mark, but only offered an opinion that the marks were consistent with

strangulation.”

¶18.   Mississippi Rule of Evidence 701 permits lay testimony “in the form of opinions or

inferences,” so long as those opinions or inferences are:

       (a) rationally based on the perception of the witness, (b) helpful to the clear
       understanding of the testimony or the determination of a fact in issue, and (c)
       not based on scientific, technical, or other specialized knowledge within the
       scope of Rule 702.

Miss. R. Evid. 701. Mississippi Rule of Evidence 702, however, provides:

       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or education,
       may testify thereto in the form of an opinion or otherwise . . . .

                                              9
Miss. R. Evid. 702. In the present case, Kirk was indicted for aggravated domestic violence

under Mississippi Code Section 97-3-7(4); the State alleged in the indictment that he “did

unlawfully, knowingly, feloniously, and intentionally hit and strangle or attempt to strangle

Casey Kirk, a human being, at a time when Casey Kirk was [Defendant Marvin Kirk’s]

spouse.” The jury which found Kirk guilty was instructed that “‘[s]trangle’ means to restrict

the flow of oxygen or blood by intentionally applying pressure on the neck or throat of

another person by any means or to intentionally block the nose or mouth of another person

by any means.” See Miss. Code Ann. § 97-3-7(9)(a) (Rev. 2014), the source of this statutory

definition.

¶19.   This Court has held that, “[b]ecause the public hold police officers in great trust, the

potential harm to the objecting party requires reversal where a police officer gives expert

testimony without first being qualified as such.” Roberts v. Grafe Auto Co., Inc., 701 So. 2d

1093, 1099 (Miss. 1997). In that case, this Court reversed where the trial court allowed a

police officer, admittedly not an expert in accident reconstruction, to testify that “driver error

did not contribute to the accident, the very issue to be determined at trial.” Id. Here, an issue

to be determined at trial was whether the injuries sustained by Casey were caused by

strangulation. The jury had seen photographs, exhibits introduced by the State, of Casey’s

neck. While Deputy Strait may have been able to testify regarding his observations, e.g., that

Casey’s neck had red marks on it, his testimony that it appeared Casey had been strangled

constituted the sort of testimony properly reserved to an expert.

¶20.   Nevertheless, the defense waived any potential objection to this testimony by, instead

of objecting to or moving to strike Strait’s testimony regarding strangulation or moving for

                                               10
a mistrial, emphasizing it on cross examination. See Copeland v. Copeland, 904 So. 2d 1066,

1073 (Miss. 2004) (citing De La Beckwith v. State, 707 So. 2d 547, 574 (Miss. 1997)

(“Failure to make a contemporaneous objection constitutes waiver of the objection and

cannot be raised for the first time on appeal because the trial court is denied the opportunity

to consider the issue and possibly remedy the situation.”); Goldsby v. State, 240 Miss. 647,

123 So. 2d 429, 441 (1960) (“[A]ppellant’s failure to move for a mistrial waived any further

objection . . . .”). The exchange between defense counsel and Deputy Strait proceeded during

cross examination as follows:

       Q:     So when you got to the house and you saw Casey, what made you
              assume that the marks on her neck were strangulation marks, since
              you’ve testified?

       A:     You could obviously see the fingerprints and things of that nature on
              her neck. Not fingerprints, but the indentation of fingers. You could tell
              it wasn’t a rope or anything. You could tell that somebody actually put
              their hand around her neck and strangled her.
       ....

       Q:     Do you have any kind of medical background?

       A:     No, ma’am.

       Q:     So can you say with any certainty that the marks on her neck were from
              strangulation?

       A:     Well, they didn’t just appear there.

       Q:     But that wasn’t my question.

       A:     Actually you can see where it looks like fingers have been on her neck
              and disclosed.

       Q:     I’m going to hand you State’s Exhibits 11, 12, and 13. These have been
              published to the jury prior also.



                                              11
       A:     Do what?

       Q:     The jury has seen these already. Can you see the actual marks, the
              finger marks that you’re describing, on these pictures?

       A:     Yes, ma’am. You can see the round indentation. See here: Round
              indentation, round indentation, round indentation, round indentation.

       Q:     Now, let me ask you this. These round indentations or these round
              marks that you’re talking about, were they ever compared to Marvin’s
              hand to see if they were the same size? Might have been somebody
              else’s hand. Might have been Casey’s hand?

       A:     I have no idea, ma’am. I don’t know.

       Q:     Is it possible it couldn’t have been a hand at all?

       A:     In my opinion it is a hand.

¶21.   This Court considered a case in which Robert Lee Goldsby was convicted of capital

murder in the Circuit Court of the First Judicial District of Hinds County 4 and sentenced to

death. Goldsby, 123 So. 2d at 431. At trial, the State examined Sheriff Byrd, who had

investigated the crime, about another party’s accusation of the defendant. Id. at 441. But “the

witness apparently became confused, and stated that Goldsby admitted killing Mrs. Nelms,

while he was at the Holmes County jail.” Id. at 441. This Court held that, because

“[a]ppellant did not ma[k]e a motion for a mistrial . . . his failure to do so waived whatever

error occurred in Sheriff Byrd’s non responsive answer to the question of State’s counsel.”

Id. As in Goldsby, Deputy Strait’s answers to the State’s questions regarding Casey’s

demeanor and Strait’s request for an ambulance were nonresponsive when the witness


       4
        Goldsby had been indicted in the Circuit Court of the Second Judicial District of
Carroll County, but moved for a change of venue, which was sustained. Goldsby, 123 So.
2d at 431.

                                              12
injected the subject of strangulation. Consequently, this issue is waived on appeal. Defense

counsel failed to move for a mistrial. Nor did defense counsel object or move to strike the

nonresponsive testimony. Instead, defense counsel interrogated Strait not only in an effort

to call into question Strait’s expertise regarding strangulation, but also to adduce one of the

defense’s theories of the case, that the marks on Casey’s neck had been self-inflicted.

¶22.   Defense counsel cannot now attempt to assign this error to the trial court. It certainly

cannot claim that it was an “obvious error which was not properly raised by the defendant

and which affects a defendant’s fundamental, substantive right,” nor was it “an error that

resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Johnson, 2014 WL 971542, *4.

¶23.   The error now complained of may be raised in a post-conviction proceedings as a

claim of ineffective assistance of counsel. For the purposes of Kirk’s direct appeal, we find

his assignment of error to be of no merit.

       II.    Whether the trial court erred by denying the Appellant’s motion
              for judgment notwithstanding the verdict or, in the alternative, for
              a new trial.

¶24.   The standards for review of a denial of a judgment notwithstanding the verdict

(JNOV) and for denial of a new trial require differing analyses. A denial of a judgment

notwithstanding the verdict is subject to de novo review on appeal. Daniels v. State, 107 So.

3d 961, 963 (Miss. 2013) (citing Johnson v. St. Dominics-Jackson Mem’l Hosp., 967 So.

2d 20, 22 (Miss. 2007)). “A motion for JNOV is a challenge to the legal sufficiency of the

evidence.” Id. Conversely, “[a] motion for a new trial falls within a lower standard of review

than does that of a judgment notwithstanding the verdict . . . . A motion for a new trial simply

                                              13
challenges the weight of the evidence.” Daniels, 107 So. 3d at 963 (quoting Sheffield v.

State, 749 So. 2d 123, 127 (Miss. 1999). We address the sufficiency and the weight of

evidence presented in the case against Kirk each in turn.

              A.     Sufficiency of the Evidence

¶25.   In considering the legal sufficiency of the evidence, “this Court will affirm the denial

of a motion for JNOV if there is substantial evidence to support the verdict.” Daniels, 107

So. 3d at 963 (citing Johnson, 967 So. 2d at 22). “‘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.” Daniels, 107 So. 3d at 963 (quoting

Natchez Elec. & Supply Co. v. Johnson, 968 So. 2d 358, 362 (Miss. 2007)). This Court

considers “whether the evidence shows ‘beyond a reasonable doubt that accused committed

the act charged, and that he did so under such circumstances that every element of the offense

existed; and where the evidence fails to meet this test it is insufficient to support a

conviction.’” Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (quoting Carr v. State, 208

So. 2d 886, 889 (Miss. 1968)). This Court has held:

       Should the facts and inferences considered in a challenge to the sufficiency of
       the evidence “point in favor of the defendant on any element of the offense
       with sufficient force that reasonable men could not have found beyond a
       reasonable doubt that the defendant was guilty,” the proper remedy is for the
       appellate court to reverse and render.

Bush, 895 So. 2d at 843 (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985) (citing

May v. State, 460 So. 2d 778, 781 (Miss. 1984))). However,

       if a review of the evidence reveals that it is of such quality and weight that,
       “having in mind the beyond a reasonable doubt burden of proof standard,
       reasonable fair-minded men in the exercise of impartial judgment might reach

                                             14
       different conclusions on every element of the offense,” the evidence will be
       deemed to have been sufficient.

Bush, 895 So. 2d at 843 (quoting Edwards, 469 So. 2d at 70). “The evidence is viewed in

the light most favorable to the verdict.” Daniels, 107 So. 3d at 963 (citing Johnson, 967 So.

2d at 22).

¶26.   Mississippi Code Section 97-3-7(4)(a)(iii) sets forth the requirements for proving a

charge of aggravated domestic violence: “When the offense is committed against a current

or former spouse . . . a person is guilty of aggravated domestic violence who . . . [s]trangles

or attempts to strangle another.” Miss. Code Ann. § 97-3-7(4)(a)(iii) (Rev. 2014). “Strangle”

means “to restrict the flow of oxygen or blood by intentionally applying pressure on the neck,

throat or chest of another person by any means or to intentionally block the nose or mouth

of another person by any means.” Miss. Code Ann. § 97-3-7(9)(a) (Rev. 2014). In order to

prove allegations of aggravated domestic violence for which Kirk was indicted, the State

bore the burden at trial of proving (1) that Marvin and Casey Kirk were current or former

spouses and (2) that Marvin Kirk had strangled Casey Kirk by restricting “the flow of oxygen

or blood by intentionally applying pressure on” Casey’s neck.

¶27.   The State adduced testimony at trial that Marvin and Casey Kirk were married. Casey

Kirk testified that Marvin “grabbed me by my neck, and he started choking [] me . . . . I

couldn’t even cry or scream or anything because he had his hands on my neck and he was

choking me.” She testified that she “wasn’t able to breathe.” Casey testified that, the next

day, Marvin choked her again; she could not breathe and lost consciousness. Casey identified

the pictures, State’s Exhibits 11, 12, and 13, as the result of “him choking me.” Colita



                                              15
Ogletree, who provided refuge to Casey in her home after Casey fled her own home, recalled

that Casey’s neck was red. The recording of the 911 call which Casey had placed shortly

after arriving at Ogletree’s house was played for the jury.

¶28.   Deputy Strait testified to marks on Casey’s neck. The other deputy called to

investigate, Deputy Brad Sullivan, testified that he “noticed that [Casey] had red marks on

her neck that she was pointing out to Deputy Strait . . . .” Sarah Horvath, a friend of both

Marvin and Casey Kirk, testified for the State that she and Marvin had a telephone

conversation regarding the events. She testified that, during this conversation, Marvin

testified that “he f***ed up and that he ruined his family.”

¶29.   Kirk argues on appeal that the only evidence of strangulation, “this fundamental

element of the crime was the uncorroborated testimony of the Accuser, a self-admitted meth

addict.” Kirk states that “the State moved forward without a medical expert to substantiate

the Accuser’s claims that she was strangled” and that “[t]he only evidence the State presented

in an attempt to corroborate the meth-addict’s testimony was the testimony of Deputy Strait,

which was a mere reiteration of the accuser’s version of events.” But, even in the absence of

testimony from an expert, Deputies Strait and Sullivan and Colita Ogletree, who all saw

Casey on the day in question, testified to marks they observed on her neck. The jury observed

photographs of Casey’s neck taken by Deputy Strait on the day in question. The jury

reasonably could infer from this testimony and from the photographs that the red marks on

Casey Kirk’s neck were sustained as a result of strangulation by Marvin Kirk.

¶30.   Viewing the evidence in the light most favorable to the guilty verdict, we find that any

rational juror could have found beyond a reasonable doubt that the defendant was guilty. As


                                             16
such, the verdict was supported by substantial evidence and the trial court did not err in

denying Kirk’s motion for JNOV.

              B.     Weight of the Evidence

¶31.   In reviewing the denial of a motion for a new trial “based on an objection to the

weight of the evidence,” this Court “will only disturb a verdict when it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Bush, 895 So. 2d at 844 (citing Herring v. State, 691 So. 2d 948,

957 (Miss. 1997)). And while “the court sits as a thirteenth juror,” the motion for new trial

“is addressed to the discretion of the court, which should be exercised with caution, and the

power to grant a new trial should be invoked only in exceptional cases in which the evidence

preponderates heavily against the verdict.” Bush, 895 So. 2d at 844 (quoting Amiker v.

Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000)). As with a sufficiency analysis,

when considering the weight of the evidence, “the evidence should be weighed in the light

most favorable to the verdict.” Bush, 895 So. 2d at 844 (citing Herring, 691 So. 2d at 957).

¶32.   In arguing that allowing the verdict in the present case to stand would sanction an

unconscionable injustice, Kirk reiterates his sufficiency argument that “[a]bsent any reliable

medical evidence on strangulation against the Appellant, the State’s case must rely upon the

inconsistent and implausible allegations of Casey Kirk.” But, again, ample testimony at trial

supported the guilty verdict. Deputies Strait and Sullivan and Colita Ogletree testified they

had observed red marks on Casey’s neck on the day in question. Photographs of Casey taken

on the day of the alleged strangulation were viewed by the jury. This evidence, coupled with

Casey’s testimony that Marvin had strangled her, supported the jury’s verdict. The jury

                                             17
reasonably could infer from the testimony and the photographs adduced at trial that Marvin

Kirk strangled his wife.

¶33.   We find that, when viewed in the light most favorable to the verdict, the evidence does

not preponderate heavily so heavily against the verdict that to allow it to stand would

sanction an unconscionable injustice. Thus, we hold that the trial judge correctly denied

Kirk’s motion, in the alternative, for a new trial.

       III.   Whether the trial court abused its discretion in excluding letters
              and a text message.

¶34.   Kirk claims that the trial court abused its discretion by excluding letters and text

messages sent to him by Casey Kirk.

¶35.   Before trial, the State filed Motion in Limine 2, in which it sought an “order

precluding the defendant or defense counsel or witness from mentioning or presenting

evidence in any way in the presence of the jury at any time during this trial a handwritten

letter which is three (3) pages long which is copied on 2 pages.” Apparently “written by the

victim in this case” and “delivered or sent to the defendant in this case,” the letter, according

to the State “in no way indicates guilt or innocence of the defendant since it apparently was

written months before the crime and thus [is] irrelevant in this case.”

¶36.   Likewise, State’s Motion in Limine 3 sought to preclude mention of a letter from the

victim to the defendant five months after the crime which “indicate[s] that the victim was at

the time undergoing drug rehabilitation.” Finally, the State sought to exclude, through

Motion in Limine 5, “pictures of what is purported to be texts from the victim to the

defendant.” Defense counsel, at the motion hearing, informed the trial court that the victim



                                               18
wrote the letters herself “talking about how wonderful a husband, how wonderful a father he

[Kirk] is.” The text message, according to Kirk’s counsel, contained the following message

from Casey Kirk to Marvin Kirk: “I’m sorry for what I did[.] I’ll have to pay for that the rest

of my life[.] I never meant to hurt you.”The State argued in its motions in limine that the

letters and text message were not relevant.

¶37.   At the motion hearing, the State presented its relevancy objection, and Kirk took the

position that the letters were admissible as a present-sense impression and that the text

message was admissible as an admission against interest. Despite the State’s objection to

relevancy, the trial court ruled that “the letter in relation to State’s motion in limine 2 and

State’s motion in limine 3 and the text in relation to State’s motion in limine 5 are not

admissible because they’re hearsay.” On appeal, Kirk argues that his fundamental right to

a fair trial was violated by the trial court’s ruling that the letters and text message were

inadmissible hearsay. This Court reviews “the admission or exclusion of evidence at trial for

an abuse of discretion . . . .” Ferguson v. State, 137 So. 3d 240, 245 (Miss. 2014) (citing

Williams v. State, 991 So. 2d 593, 597 (Miss. 2008)). The trial court “enjoys a great deal of

discretion as to the relevancy and admissibility of evidence. Unless the judge abuses this

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

Ferguson, 137 So. 3d at 245 (quoting Shaw v. State, 915 So. 2d 442, 445 (Miss. 2005)).

¶38.   First, Kirk claims the letters and text were admissible because they were relevant,

arguing that they “had more than a tendency to make the existence of a fact more or less

probable,” since they “would assist the jury in its fact-finding task to determine whether the

allegations against the Appellant were true.” It is true that evidence is relevant which has

                                              19
“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.” Miss.

R. Evid. 401. But Mississippi Rule of Evidence 402 provides that relevant evidence is

admissible, “except as otherwise provided by . . . these rules.” Miss. R. Evid. 402. Thus,

relevancy has no bearing on whether the letters and text message constituted inadmissible

hearsay, which the trial court found held they did.

¶39.   Rule 801(c) of the Mississippi Rules of Evidence provides the definition of hearsay:

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.” Miss. R. Evid. 801.

Kirk concedes that the letters and text message are hearsay but contends that they are

admissible by virtue of two exceptions to the hearsay rule: (1) statement against interest, and

(2) present-sense impression.

¶40.   A statement against interest, under Mississippi Rule of Evidence 804(b)(3), is defined

as follows:

       A statement which was at the time of its making so far contrary to the
       declarant’s pecuniary or proprietary interest, or so far tended to subject him to
       civil or criminal liability, or to render invalid a claim by him against another,
       that a reasonable man in his position would not have made the statement unless
       he believed it to be true.

Miss. R. Evid. 804(b)(3). Kirk claims that the letters and text messages demonstrate that

Casey Kirk perjured herself when she testified that her husband strangled her. But neither

Casey’s statements regarding Marvin’s conduct as a husband and father, or her statements

regarding drug treatment to which she testified, or her statements apologizing for some

unknown misdeed “tended to subject [her] to civil or criminal liability, or to render invalid


                                              20
a claim by [her] against another.” Miss. R. Evid. 804(b)(3). More importantly, Rule 804(b)

requires the unavailability of the declarant as a witness and lists those statements “not

excluded by the hearsay rule if the declarant is unavailable as a witness.” Miss. R. Evid.

804(b) (emphasis added). Here, the declarant, Casey Kirk, testified as a witness at trial; thus,

she cannot be said to have been unavailable as a witness under any of the applicable

“unavailability” definitions. See Miss. R. Evid. 804(a).

¶41.   Next, Kirk claims that the letters and text message constituted a present-sense

impression. Rule 803, which does not require the unavailability of a witness, defines a

present-sense impression as “[a] statement describing or explaining an event or condition

made while the declarant was perceiving the event or condition or immediately thereafter.”

Miss. R. Evid. 803(1). The comment states that the present-sense-impression exception “is

based on the theory that the contemporaneous occurrence of the event and the statement

render it unlikely that the declarant made a deliberate or conscious misrepresentation.” Miss.

R. Evid. 803(1) cmt. 1. While “[p]recise contemporaneity of the event and the statement may

not be possible; a slight lapse may be permissible. Spontaneity is the essential factor.” Id.

Letters and text messages proceed from conscious deliberation of the author. The letters and

text message here refer to past events and conditions and do not describe or explain an event

or condition made while Casey “was perceiving the event or condition or immediately

thereafter,” as contemplated by Rule 803(1).

¶42.   The trial court’s exclusion of these letters and the text message cannot be said to have

been an abuse of discretion. This Court finds no merit in Kirk’s argument that the trial court




                                              21
abused its discretion in disallowing the admission of two letters and a text message from the

victim to the defendant.

       IV.    Whether the trial court erred by prohibiting defense counsel from
              cross examining the victim regarding a drug hair follicle test on
              grounds of relevancy.

¶43.   When Kirk’s counsel attempted to cross examine Casey Kirk regarding a hair-follicle

drug test that she had taken in April 2013, the State objected to relevancy. Casey had testified

that she was not using crystal methamphetamine the weekend her husband allegedly

strangled her. Kirk hoped to impeach Casey’s credibility regarding whether she had used

drugs on the weekend in question. During a bench conference, the trial court ruled that the

evidence was not relevant. Kirk claims on appeal that this ruling constituted an abuse of

discretion.

¶44.   Relevant evidence is defined as evidence which has “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.” Miss. R. Evid. 401. Kirk takes the

position that the questioning regarding the hair-follicle drug test was relevant because it

would make whether Marvin strangled Casey, a fact of consequence to the determination of

the action, less probable because Casey was using drugs at that time. The theory of Kirk’s

case was that Casey “fabricated her injuries in order to get painkillers because Mr. Kirk had

flushed the last of her crystal meth down the toilet.”

¶45.   While Kirk’s trial counsel contended at the bench conference that “[t]he hair follicle

test goes back for ninety days,” the test did not show any particular dates upon which Casey

had used crystal methamphetamine. Cross examination of Casey regarding the drug test had


                                              22
no tendency to make the consequential fact, whether Marvin had strangled Casey, any more

or less probable, nor did cross examination regarding the drug test make any more or less

probable Marvin’s theory that the case against him was a scheme devised by Casey in an

effort to obtain medication. All the test showed was that, at some point during the ninety days

prior to its administration in April 2013 (the precise date is not to be found in the record),

Casey had used drugs. It does not suggest any likelihood that Casey had been using on the

weekend of the alleged strangulation. Additionally, Casey testified that she had a problem

with crystal methamphetamine and that she was, at the time of trial, residing at Jacob’s Well

Recovery Center. Kirk’s brief inquired “[i]f the accuser were not using drugs at all during

the weekend, why would the crystal meth be found on the bathroom floor?” This argument

strains credulity.

¶46.   Considering that evidence already had been adduced that Casey Kirk had a problem

with crystal methamphetamine use, we find no merit in Marvin Kirk’s argument that the trial

court abused its discretion in ruling evidence of a hair-follicle drug test inadmissible on

relevancy grounds.

       V.      Whether the trial judge committed reversible error with regard to
               jury deliberations following the trial.

¶47.   After more than two hours of deliberation, the bailiff informed the court that the jury

foreperson needed to speak to the court. The foreperson informed the court that the jurors

could not come to a unanimous verdict and that further deliberation was unlikely to help the

jury to reach unanimity. The trial judge then instructed the foreperson to stand out in the hall

“without going back into the jury room.” With the foreperson in the hall, the judge discussed



                                              23
with the lawyers the giving of a Sharplin instruction.5 Neither the State nor Kirk’s counsel

objected to the giving of the instruction.

¶48.   The court then asked the bailiff to summon the foreperson, whereupon he read the

following and inquired whether it would aid the jury in reaching a verdict:

       I know that it is possible for honest men and women to have honest differing
       opinions about the facts of a case, but if it is possible to reconcile your
       differences of opinion and decide this case, then you should do so.

       Accordingly, I remind you that the Court originally instructed you that the
       verdict of the jury must represent the considered judgment of each juror. It is
       your duty as jurors to consult with one another and to deliberate in view of
       reaching an agreement if you can do so without violence to your individual
       judgment.

       Each of you must decide the case for yourself, but only after an impartial
       consideration of the evidence with your fellow jurors. In the course of your
       deliberations, do not hesitate to re-examine your own views and change your
       opinion if you are convinced it is erroneous, but do not surrender your honest
       convictions as to the weight or the opinion of your fellow jurors or for the
       mere purpose of returning a verdict. Please continue your deliberations.

The foreperson responded, “I can only say it might.” After instructing the foreperson again

to stand in the hall, the trial court recalled her and said, “I have decided that it’s appropriate

for me to give that instruction to the entire jury.” He then instructed the bailiff to retrieve the

remainder of the jury; when the jury had been assembled, the trial court read the Sharplin

instruction. After the jury resumed deliberations, the bailiff informed the court that one juror

wanted to telephone home “just to let somebody know where they are.” With no objection




       5
        See Sharplin v. State, 330 So. 2d 591 (Miss. 1976) (Court approved a jury
instruction to be “given in either criminal or civil [cases] when the trial judge is confronted
by a hung jury.”)

                                                24
from counsel, the trial judge permitted this “in the presence of the bailiff so he make[s] sure

she doesn’t give or receive any information.”

¶49.   Kirk avers that the trial court committed reversible error by separating the foreperson

from the rest of the jury and by allowing a juror to make a telephone call during

deliberations.

¶50.   Kirk cites Wilson v. State for the following proposition:

       As to the dispersal of the jury, the defendant in a prosecution for felony is
       entitled to have the jury kept together without exception from the time it is
       selected until finally discharged. The separation of even one juror in such
       cases is an irregularity which will vitiate the verdict. Even at the request of the
       defendant, they cannot be dispersed in a capital case.

Wilson v. State, 248 So. 2d 802, 804 (Miss. 1971) (quoting Clark v. State, 209 Miss. 586,

48 So. 2d 127 (1950)) (internal citations omitted). “The purpose of the requirement is to

prevent access to outside influences.” Id. Of course, the Court in Wilson continued:

       We are of the opinion that the court has no power to authorize the separation
       of the jury during the trial of a capital case, either with or without the consent
       of the prisoner, except in cases of great necessity; and if it be done, and the
       prisoner be found guilty, a new trial will be granted.

Wilson, 248 So. 2d at 804 (quoting Woods v. State, 2 Morr. St. Cas. 1624, 43 Miss. 364, 372-

73 (1870)) (emphasis added).

¶51.   The language cited to this Court by Kirk, however, is found only in capital cases,

where jury sequestration is required. See URCCC 10.02 (“In any case where the state seeks

to impose the death penalty, the jury shall be sequestered during the entire trial.”) The rule

in capital cases is that, “where the crime charged is punishable by death or a maximum of

imprisonment for life in the state penitentiary, the jury shall be sequestered during the entire



                                               25
trial and this right cannot be waived either by the attorney for the accused or at the discretion

of the trial court.” Cox v. State, 365 So. 2d 627, 629 (Miss. 1978).

¶52.   As in Weaver v. State, 272 So. 2d 636, 638 (Miss. 1973), “[t]he case before us is not

a capital case.” Aggravated domestic violence, for which Kirk was indicted and ultimately

convicted, carries a maximum penalty of twenty years’ imprisonment. Miss. Code Ann. § 97-

3-7(4) (Rev. 2014). In fact, “in the absence of any evidence to the contrary we could not say

that a defendant in a case less than capital was prejudiced by separation of the jury.” Id.

Here, the jury was unable to reach a verdict and the jury foreperson sought the intervention

of the trial judge. It is unclear from the face of the record whether, as Kirk contends, the

“foreperson stood in the hallway outside of the courtroom alone on two separate occasions.”

(emphasis in original). Even if she was alone in the hall, which the record does not make as

clear as Kirk claims, the record does not reflect that the foreperson was in the hall for an

extended period of time.

¶53.   Nevertheless, we observe that it was irregular for the court in these circumstances to

separate the foreperson from the rest of her peers on the jury. Trial courts should not separate

the jury during deliberations in this manner—capital case or otherwise. Further, the judge’s

soliciting the advice of the foreperson with regard to the utility of the Sharplin instruction

(though, in the end, he ended up giving the Sharplin instruction anyway) was inappropriate

and unnecessary. Nevertheless, considering the acquiescence of Kirk’s counsel, and without

any identifiable prejudicial effect on the jury, we find no reversible error. We caution bench

and bar that this sort of practice could in some circumstances constitute reversible error and

scrupulously should be avoided.

                                               26
¶54.   At the commencement of the trial, the court admonished the jury with the following

instructions:

       One, you are not permitted to mix and mingle with the attorneys, parties,
       witnesses and spectators, and you are to avoid all contacts with such persons.

       Two, other than during the course of deliberation, you are not to converse with
       anyone about the case or any subject connected with the trial. Of course, you
       may inform your family members or other persons about your schedule.

       Three, prior to the case being submitted for jury deliberation, you are not to
       form or express an opinion on the case or any subject connected with the trial.

       Four, you are not to view any place connected with the case or any subject
       connected with the trial.

       Five, you are not to read, listen to or watch any news account or other matter
       relating to the case or any subject connected with the trial.

       Six, you are required to report to the court any communication or attempt to
       communicate with you on the case or any subject connected with the trial.

       Seven, you may not take notes during the course of the trial . . . .

Thus, this Court presumes that the jury followed the instruction of the trial court with regard

to conduct during the course of the trial. Weaver, 272 So. 2d at 638 (citing Nicholson v.

State, 254 So. 2d 881 (Miss. 1971)). We find no evidence in the record to support Kirk’s

claim that the foreperson, or anyone else on the jury, failed to conduct themselves in

accordance with instruction from the trial court. This Court holds, therefore, that Kirk’s claim

that the trial court committed reversible error by separating the foreperson from the rest of

the jury is without merit.

¶55.   Also, and in light of the presumption that the jury conducted itself in accordance with

the instructions from the trial court, we find Kirk’s claim that allowing a juror to make a



                                              27
telephone call during deliberations did not constitute reversible error. After the jury resumed

deliberations following the trial court’s reading of the Sharplin instruction to them, the

bailiff informed the court that one juror wanted to telephone home “just to let somebody

know where they are.” With no objection from counsel, the trial judge permitted this “in the

presence of the bailiff so he make[s] sure she doesn’t give or receive any information.” Any

claim of prejudice to Kirk in allowing a juror to make a telephone call home to inform family

why that juror had not yet returned home is belied by the record. The court instructed the jury

that they could inform family regarding their schedules, and the bailiff was instructed to

listen in on the telephone conversation to ensure that there was no exchange of information

regarding the trial. Thus, this assignment of error is without merit.

                                      CONCLUSION

¶56.   Finding that Kirk’s assignments of error are without merit, this Court affirms his

conviction and sentence.

¶57. CONVICTION OF AGGRAVATED DOMESTIC VIOLENCE AND
SENTENCE OF TWENTY (20) YEARS, AS A NONVIOLENT HABITUAL
OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. SAID SENTENCE SHALL NOT BE REDUCED OR
SUSPENDED; NOR SHALL THE APPELLANT BE ELIGIBLE FOR PAROLE,
PROBATION OR ANY OTHER FORM OF EARLY RELEASE. UPON RELEASE,
WITHIN NINETY (90) DAYS, THE APPELLANT SHALL PAY COURT COSTS,
FEES AND ASSESSMENTS IN THE AMOUNT OF $898.50. ALL TIME SERVED IN
PRE-TRIAL DETAINMENT RELATING TO THIS CHARGE SHALL BE
CREDITED AGAINST THIS SENTENCE.

     WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




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