         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2016-KA-01271-COA

SERGIO SEBASTIAN GONZALEZ A/K/A                                            APPELLANT
SEBASTIAN GONZALES A/K/A SERGIO S.
GONZALEZ A/K/A SERGIO SEBASTAIN
GONZALEZ

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         07/27/2016
TRIAL JUDGE:                              HON. JAMES SETH ANDREW POUNDS
COURT FROM WHICH APPEALED:                PONTOTOC COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   PATRICK M. RAND
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: KATY TAYLOR GERBER
DISTRICT ATTORNEY:                        J. TRENT KELLY
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED: 11/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       FAIR, J., FOR THE COURT:

¶1.    Sergio Sebastian Gonzalez was convicted of felony aggravated assault and was

sentenced to serve twenty years in the custody of the Mississippi Department of Corrections.

Gonzalez appeals, claiming that the trial court committed reversible error by allowing the

prosecution to enter a medical screening form into evidence. Finding no abuse of discretion

or reversible error, we affirm.

¶2.    Gonzalez and Gina Rodriguez were married in 2010. By 2014, the couple had

separated and were contemplating divorce. On August 9, 2014, Gonzalez went to Gina’s
house in violation of a protective order. Upon entering the home, he saw Andres Gonzalez

sitting on the couch in a state of undress. Gina and Andres began seeing each other while

Gina was still living with Gonzalez.

¶3.    Gonzalez testified that when he walked in, Andres stated, “Here I am. Do you want

something from me?” Gonzalez is 5'3" tall, and weighs 136 pounds, while Andres is 5'8"

tall, and weighs approximately 185 pounds. Gonzalez then went to the kitchen and grabbed

two kitchen knives. A struggle followed, and Andres suffered stab wounds to the right side

of his head, his side, his back, and several lacerations to his arms. He also suffered a

collapsed lung. As a result, Andres was airlifted to North Mississippi Medical Center. Four

days after the incident, Gonzalez voluntarily turned himself in to the authorities and was

charged with aggravated assault.

¶4.    Gonzalez testified in his own defense. On cross-examination, he claimed that he

attacked Andres in self-defense and had been left with bitemarks on his arms and bruises

from the struggle – though he admitted they had been inflicted after he stabbed Andres. The

prosecution called as rebuttal witnesses Lynn Parrish and Tyler Reed, the jailers who

prepared Gonzalez’s booking paperwork at the jail.          Parrish, whose testimony was

corroborated by Reed, testified that while booking Gonzalez into jail, she did not observe any

bitemarks or bruising. The prosecution presented a medical screening form, which was

unsigned, undated, and the majority of it left blank. Parrish testified that she had asked

Gonzalez the questions contained in the form, but because he answered them all in the


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negative, and because she did not observe any cuts or bruises on him, she did not mark

anything on the medical form.

                                        DISCUSSION

       1.     Discovery Violation

¶5.    Gonzalez contends the medical form was not produced to defense counsel during

discovery, and therefore, should not have been entered into evidence at trial. When

reviewing whether a discovery violation has occurred, it must first be noted that the decision

to admit or exclude evidence is left to the trial court’s discretion. Carpenter v. State, 132 So.

3d 1053, 1055 (¶5) (Miss. 2013). The same standard applies to violations of the Mississippi

Uniform Rules of Circuit and County Court Practice 9.041 and to a trial court’s denial of

motions for continuance or mistrial. Payton v. State, 897 So. 2d 921, 942 (¶67) (Miss. 2003);

see also Hurst v. State, 195 So. 3d 736, 744 (¶20) (Miss. 2016).

¶6.    Rule 9.04 provides that if the prosecution attempts to introduce evidence that has not

been disclosed according to the rule and the defense objects, the court shall:

       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


       1
         The URCCC rules related to criminal procedure were superseded by the Mississippi
Rules of Criminal Procedure. However the former rules apply here because they were in
effect at the time of the proceedings in this case.

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       continuance for a period of time reasonably necessary for the defense to meet
       the non-disclosed evidence or grant a mistrial.

       3. The court shall not be required to grant either a continuance or a mistrial for
       such a discovery violation if the prosecution withdraws its efforts to introduce
       such evidence.

URCCC 9.04(I).

¶7.    This Court has held that when faced with a discovery violation, the trial court should

follow the procedure set out in Box v. State:2

       1) Upon defense objection, the trial court should give the defendant a
       reasonable opportunity to become familiar with the undisclosed evidence by
       interviewing the witness inspecting the evidence, etc.

       2) If, after this opportunity for familiarization, the defendant believes he may
       be prejudiced by lack of opportunity to prepare to meet the evidence, he must
       request a continuance. Failure to do so constitutes a waiver of the issue.

The record demonstrates that defense counsel objected to the medical form being received

into evidence:

       STATE:                 Your Honor, we would move at this time that State’s
                              Exhibit S-16 be received into evidence.

       THE COURT:             Any objection?

       MR. RAND:              Your Honor, I do offer an objection. That document was
                              not provided during the course of discovery. Certainly
                              it’s been available since the booking date of August 9,
                              2014. Therefore, we object to it being untimely.

       THE COURT:             State?



       2
           See Box v. State, 437 So. 2d 19 (Miss. 1983).

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       STATE:                   Your Honor, this is a rebuttal witness. Up until now,
                                there’s been no indication he was claiming injuries.

       THE COURT:               I concur. The objection will be overruled. It’ll be
                                received as S-16. It is rebuttal evidence.

The record does not, however, reflect whether the defense had a reasonable opportunity to

interview Parrish during this exchange as required by Rule 9.04 or whether defense counsel

was given an opportunity to review the blank medical form before the proceedings resumed.

Regardless, defense counsel did not claim unfair surprise or seek a continuance or mistrial.

This Court has previously held that “it is the responsibility of defense counsel to request a

continuance if unfairly surprised and, if requested, the trial court should almost certainly

grant it.” Wooten v. State, 811 So. 2d 355, 366 (¶30) (Miss. Ct. App. 2001). Because

Gonzalez failed to ask for a continuance, this issue has been waived.

¶8.    Procedural bar notwithstanding, any error of the medical form’s admission would be

harmless.3 Andres and Gina both testified that Gonzalez attacked Andres. Further, both

jailers testified that Gonzalez arrived at jail with no injuries.

       2.      Medical Form as Improper Rebuttal Evidence

¶9.    Gonzalez next claims that he was “ambushed” with the medical form on rebuttal. He

argues that the medical form was improper rebuttal evidence and should have been presented

in the State’s case-in-chief.


       3
       Smith v. State, 136 So. 3d 424, 435 (¶26) (Miss. 2014) (citing Young v. State, 99 So.
3d 159, 165 (¶20) (Miss. 2012)) (“Errors in the admission of evidence are subject to a
harmless-error analysis.”).

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¶10.   The “purpose of rebuttal testimony is to explain, repel, counteract or disprove

evidence by the adverse party.” Towner v. State, 837 So. 2d 221, 226 (¶17) (Miss. Ct. App.

2003) (quoting Williams v. State, 539 So. 2d 1049, 1051 (Miss. 1989)). The trial court has

discretion to determine whether evidence is properly admitted as rebuttal evidence. Id.

(citing Wakefield v. Puckett, 584 So. 2d 1266, 1268 (Miss. 1991)).

¶11.   Gonzalez never objected to the medical form as improper rebuttal evidence, so he is

barred from raising this issue on appeal. See Dunaway v. State, 919 So. 2d 67, 74 (¶23)

(Miss. Ct. App. 2005). Even so, the medical form was proper rebuttal evidence. During his

case-in-chief, Gonzalez testified that Andres grabbed his neck and hands and pushed him

toward the wall. He also stated that Andres bit his hands. This testimony prompted the State

to ask about Gonzalez’s alleged injuries on cross-examination. Gonzalez testified that he

suffered bruises and a bite mark on his arm. On rebuttal, the State called the two jailers as

witnesses, which led to the entry of the medical form. We find that the State properly used

its rebuttal to disprove Gonzalez’s testimony that he suffered injuries from the altercation.

Accordingly, we find no merit to Gonzalez’s argument.

       3.     Medical Form’s Admission into Evidence

¶12.   Finally, Gonzalez claims that “because the [m]edical [f]orm was not actually filled in

or otherwise completed, it should never have been admitted into evidence for the jury to use

as substantive proof that [he] did not sustain any injuries.”

¶13.   This issue was never raised in the trial court. Our supreme court has repeatedly held


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that “an appellant must present to us a record sufficient to show the occurrence of the error

he asserts and also that the matter was properly presented to the trial court and timely

preserved.” Byrom v. State, 863 So. 2d 836, 853 (¶35) (Miss. 2003) (quoting Acker v. State,

797 So. 2d 966, 967 (¶18) (Miss. 2001)). Further, Gonzalez cites no legal authority for his

argument. “Failure to cite relevant authority obviates the appellate court’s obligation to

review such issues.” Id. (quoting Simmons v. State, 805 So. 2d 452, 487 (¶90) (Miss. 2001)).

Thus, we need not address Gonzalez’s final argument.

¶14.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




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