       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2013-KA-01782-COA

WILLIAM HENDERSON A/K/A WILLIAM E.                                         APPELLANT
HENDERSON A/K/A WILLIAM EARL
HENDERSON

v.

STATE OF MISSISSIPPI                                                         APPELLEE


DATE OF JUDGMENT:                         04/09/2013
TRIAL JUDGE:                              HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                YAZOO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: MELANIE DOTSON THOMAS
DISTRICT ATTORNEY:                        AKILLIE MALONE OLIVER
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF STATUTORY RAPE AND
                                          SENTENCED AS A HABITUAL OFFENDER
                                          TO THIRTY YEARS IN THE CUSTODY OF
                                          THE MISSISSIPPI DEPARTMENT OF
                                          CORRECTIONS, WITHOUT THE BENEFIT
                                          OF PAROLE OR SUSPENSION OF
                                          SENTENCE
DISPOSITION:                              AFFIRMED: 06/23/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., BARNES AND FAIR, JJ.

      FAIR, J., FOR THE COURT:

¶1.   William Henderson was convicted of the statutory rape of his thirteen-year-old cousin,
Abby.1 She testified that Henderson had repeatedly displayed a pistol to intimidate her into

having sex with him.2 After their final encounter was interrupted, Henderson literally

jumped out the window of the victim’s bedroom, leaving behind some of his clothes and a

condom wrapper bearing his fingerprint. On appeal, he raises four varied issues. We find

no merit to any of them, and so we affirm Henderson’s conviction and sentence.

                                          DISCUSSION

         1. Admission of the Letter

¶2.      The trial court admitted into evidence a handwritten letter given by Henderson to a

jailmate to be delivered to a friend Henderson had visited the day of his final sexual

encounter with Abby. In the letter, Henderson asked the friend to testify in his defense and

corroborate his account that he had left the friend’s residence with a girlfriend. It closed by

asking the friend not to say anything about a gun. The letter was delivered, but the friend’s

mother found it; and it ultimately made its way to the authorities. It was offered into

evidence by the prosecution and was admitted into evidence over Henderson’s objection.

The friend testified at trial and contradicted the narrative of the letter in material respects.

¶3.      A trial court’s decision to admit or exclude evidence is reviewed for abuse of

discretion. Gillett v. State, 56 So. 3d 469, 494 (¶61) (Miss. 2010).


         1
             This Court uses fictitious names to protect the identity of minor victims of sexual
abuse.
         2
        Henderson was also tried for two counts of sexual battery, but the jury could not
reach a verdict on those counts.

                                                 2
¶4.    The cellmate testified that Henderson gave him a letter and that he delivered it to the

friend. The friend testified that the letter was the one delivered to him by the cellmate on

Henderson’s behalf. Henderson contends that the letter was not properly authenticated

because the handwriting was never confirmed to be his. Henderson’s position is, it seems,

that Mississippi Rule of Evidence 901(b)(2) is the only way a handwritten note could have

been authenticated. Rule 901(b)(2) does permit authentication of a handwriting by nonexpert

opinion testimony. But Rule 901(b) makes it clear that 901(b)(2) is an “example” which is

provided “[b]y way of illustration only, and not by way of limitation.”

¶5.    Rule 901(a) outlines the relevant standard for admission: “The requirement of

authentication or identification as a condition precedent to admissibility is satisfied by

evidence sufficient to support a finding that the matter in question is what its proponent

claims.” At trial, the prosecution never claimed to authenticate the letter by way of

handwriting, contending instead that it was authenticated by the chain of custody and by its

subject matter. Henderson waves this away by simply asserting, without citing any relevant

authority and without further argument, that “[i]t is not enough that Henderson is alleged to

have given this letter to someone in order to have it delivered” and that “it is immaterial that

the letter itself contained a desire for [the friend] to testify in Henderson’s trial.”

¶6.    [T]here 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). Accordingly, Mississippi Rule of


                                                3
Appellate Procedure 28(a)(6) requires that the appellant’s argument “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.” This 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).

¶7.    Raising an issue on appeal requires more than the announcement of a position, and

the failure to affirmatively demonstrate error waives the issue for our consideration.

Jefferson v. State, 138 So. 3d 263, 265 (¶9) (Miss. Ct. App. 2014).

       2. The Sleepy Juror

¶8.    Henderson next argues that the trial court erred in not sua sponte dismissing a juror

Henderson alleges was sleeping during the trial. Twice during the trial, the judge interrupted

the proceedings to check on one of the jurors.3 The first time, she stated:

       THE COURT:            [Juror], you’ve got to stay with us.

       JUROR:                Yes, ma’am.

       THE COURT:            Keep your eyes open so I know you’re listening.

Subsequently, the prosecutor asked for a recess after noting that the juror was holding his

head in his hand. The prosecutor expressed concern that the juror may have been asleep.



       3
       The judge referred to the juror by his surname, but there were two jurors with that
name. From the context it appears to have been the same individual in both instances.

                                              4
After the recess, the judge was again concerned:

       THE COURT:            [Juror], still listening[?]

       JUROR:                Yes.

       THE COURT:            Keep your eyes open. Keep your eyes open for me.

When adjourning for the day, the judge directed these words to the juror in question:

“[Juror,] if you go home now, go to bed. I bet you’ll do better tomorrow.”

¶9.    Henderson never objected, interjected, or otherwise expressed any concern about the

juror in question during the trial. Nonetheless, on appeal he claims that the juror was asleep

during critical parts of the case, and he contends that the trial court had an obligation to

dismiss the juror sua sponte.

¶10.   We find no merit to this argument. The record reflects only suspicion that the juror

was sleeping – and at two or three discrete points in time, not for extended periods, as

Henderson alleges. To the extent the record is unclear about what actually occurred, it is

because Henderson did not raise the issue before the trial court; had he done so, the court

could have inquired further, made express findings of fact, and taken action to prevent any

error before it occurred.

¶11.   Without a timely request from Henderson, the trial court was under no obligation to

remove the juror suspected of sleeping. Norris v. State, 490 So. 2d 839, 846 (Miss. 1986).

We find no merit to these belated complaints.

       3. Police Interview


                                               5
¶12.   Next, Henderson contends that the trial court erroneously admitted into evidence an

audio recording of a police interview with the victim, Abby. The recording was offered as

a prior consistent statement under Mississippi Rule of Evidence 801(d)(1)(B) to rebut the

repeated claims of Henderson’s attorney that Abby had recently fabricated some of the details

of her account – primarily that Henderson used a gun to intimidate her into having sex with

him.

¶13.   On appeal Henderson ignores this basis for admitting the recording and instead argues

that Abby’s statement could not be admitted under the tender-years exception to the rule

against hearsay. See M.R.E. 803(25). This is a curious contention since, so far as we can

see, no one had previously suggested that Abby was of tender years. A child is presumed to

be of tender years if she is younger than twelve years of age, Veasley v. State, 735 So. 2d

432, 433 (¶1) (Miss. 1999), but Abby was fourteen when she was interviewed. Neither the

State nor the trial court ever suggested Rule 803(25) was the basis for admitting the

recording.

¶14.   Henderson otherwise only offers the bald assertion that “[n]o other hearsay exception

applies.” Even if that were true, Rule 801(d) explicitly defines prior consistent statements

as nonhearsay, and since such statements are not hearsay, no exception to the rule against

hearsay is required. Henderson has failed to show any error in the admission of the

interview.

       4. Sentencing as a Habitual Offender


                                             6
¶15.   Finally, Henderson contends that the trial court did not have before it sufficient

evidence to sentence him as an habitual offender, because “there was absolutely no evidence

admitted during the sentencing hearing.” Henderson does not acknowledge in his brief that

there is extensive documentation of his prior offenses in the record – the documents were just

accepted into evidence prior to the sentencing hearing.

¶16.   When the same issue was squarely presented to the Mississippi Supreme Court last

year, it found the admission of the evidence prior to the sentencing hearing to be irregular,

but not reversible error. Conner v. State, 138 So. 3d 143, 150-52 (¶¶17-26) (Miss. 2014).

It bears mentioning that although Henderson does not cite Conner or explain how its holding

relates to his arguments, Henderson’s appellate counsel was counsel of record in Conner, and

the decision in Conner was handed down and the mandate issued several months before

Henderson’s brief was submitted.

¶17.   Various documents establishing that Henderson is a habitual offender were made a

part of the record, without objection, during the pretrial hearing to amend Henderson’s

indictment to charge him as a habitual offender. During the sentencing hearing, the

prosecutor asked the trial court to take judicial notice of the exhibits previously admitted.

Not only did this not garner an objection from Henderson, but his attorney conceded that

Henderson was a habitual offender; she stated that “the convictions speak for themselves.”

Henderson only contested the timing of the order amending the indictment. In his brief on

appeal, Henderson ignores all of this, repeatedly contending that the evidence had to be


                                              7
admitted during the sentencing hearing. This argument was rejected in Conner. See id.

¶18.   As in Conner, this issue is procedurally barred because it was not raised in the trial

court. Id. at 150 (¶19). Furthermore, it is plain from the transcript that the trial judge

examined the documents at the sentencing hearing, and they were made part of the record.

Id. at 152 (¶25). This issue is without merit.

¶19. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF
CONVICTION OF STATUTORY RAPE AND SENTENCE AS A HABITUAL
OFFENDER OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITHOUT THE BENEFIT OF PAROLE OR
SUSPENSION OF SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO YAZOO COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, MAXWELL AND JAMES, JJ., CONCUR.




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