Henry v. State


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Docket Number: 2008-KA-01648-COA
Linked Case(s): 2008-KA-01648-COA

Court of Appeals: Opinion Link
Opinion Date: 02-09-2010
Opinion Author: Griffis, J.
Holding: Affirmed

Additional Case Information: Topic: Felony child abuse - Right to counsel - Ineffective assistance of counsel - Due process - Serious bodily harm
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 08-28-2008
Appealed from: LOWNDES COUNTY CIRCUIT COURT
Judge: Lee J. Howard
Disposition: CONVICTED OF FELONY CHILD ABUSE AND SENTENCED TO TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS OF POST-RELEASE SUPERVISION
District Attorney: Forrest Allgood
Case Number: 2007-0638-CR1

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: TOBY LEE HENRY




WILLIAM PAUL STARKS II



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS  

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    Topic: Felony child abuse - Right to counsel - Ineffective assistance of counsel - Due process - Serious bodily harm

    Summary of the Facts: Toby Henry was convicted of felony child abuse and was sentenced to twenty years, with five years of post-release supervision. He appeals.

    Summary of Opinion Analysis: Issue 1: Right to counsel Henry argues that his representation by an inactive member of The Mississippi Bar deprived him of his right to counsel. Henry’s trial began on August 28, 2008; however, his attorney’s status with The Mississippi Bar changed from active to inactive on August 1, 2008. Henry correctly asserts that an inactive member of The Mississippi Bar is not authorized to practice law in this state. There is no question that the attorney was engaged in the practice of law during his representation of Henry. However, the attorney’s recent status change with The Mississippi Bar was harmless error as it relates to the jury’s verdict. Henry has not shown how he was prejudiced by the attorney’s inactive status. Issue 2: Ineffective assistance of counsel Henry argues that the attorney’s overall performance during his representation of Henry constitutes ineffective assistance of counsel. The record is insufficient to affirmatively show ineffective assistance of counsel of constitutional dimensions. As such, relief is denied on this issue without prejudice so that Henry may present an ineffective-assistance-of-counsel claim in a motion for post-conviction collateral relief. Issue 3: Due process Henry argues that the Supreme Court’s interpretation of the phrase “serious bodily harm” found in the felony child-abuse statute violates the Rule of Lenity and the Whole Act Rule. Specifically, he argues that if temporary disfigurement of an organ, i.e., bruising of the skin, constitutes serious bodily harm, there is no clear distinction between felony child abuse and misdemeanor child abuse. The Supreme Court has held that the appropriate definition of serious bodily harm as used in the felony child-abuse statute is bodily injury which creates a substantial risk of death, or permanent or temporary disfigurement, or impairment of any function of any bodily organ or function. Medical testimony at trial unequivocally proved that the child’s severe bruising was a temporary disfigurement of a bodily organ.


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