Fulgham v. State
| Docket Number: | 2009-KA-01171-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-26-2010 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Sexual battery & Touching child for lustful purposes - Admission of transcript - M.R.E. 105 - M.R.E. 404(b) - Cross-examination Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts and Carlton, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 06-25-2009 Appealed from: WEBSTER COUNTY CIRCUIT COURT Judge: Joseph H. Loper Disposition: CONVICTED OF COUNT I, SEXUAL BATTERY, AND SENTENCED TO TWENTY YEARS AND COUNT II, TOUCHING A CHILD FOR LUSTFUL PURPOSES, AND SENTENCED TO TEN YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: DOUG EVANS Case Number: 2009-0013-CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | James D. Fulgham |
W. DANIEL HINCHCLIFF, LESLIE S. LEE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Sexual battery & Touching child for lustful purposes - Admission of transcript - M.R.E. 105 - M.R.E. 404(b) - Cross-examination |
| Summary of the Facts: | James Fulgham was convicted of sexual battery and touching a child for lustful purposes. Fulgham was sentenced to twenty years’ imprisonment for sexual-battery count and ten years’ imprisonment on the unlawful-touching-for-lustful-purposes charge. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Admission of transcript At trial, the State offered an audiotape and transcript that it claimed depicted a June 2009 telephone conversation between Fulgham and the victim’s mother. Fulgham objected to the admission of both the tape and transcript. At trial Fulgham did not request a limiting instruction regarding the use of the transcript. On appeal, he argues that the circuit court erred in failing to instruct the jury sua sponte that the audio recording, not the transcript, is the primary evidence of the conversation. However, he fails to point to any inaccuracies in the transcript. Nor does he assert any resulting prejudice. Though Mississippi appellate courts have approved the use of transcripts when limiting instructions are given, the appellate courts have not addressed whether a trial court must provide, sua sponte, a cautionary instruction. The Fifth Circuit has held that defendants must request a transcript-based cautionary instruction. This holding comports with our evidentiary rules. M.R.E. 105 instructs that when evidence which is admissible for one purpose but not admissible for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Even when seeking to temper prejudice in admitting prior felony convictions under M.R.E. 404(b), the burden to request a limiting instruction remains with trial counsel. Thus, the burden falls on the trial counsel to request the limiting instruction. Based on Fulgham’s failure to seek a cautioning instruction, there was no error in admission of the transcript. Issue 2: Cross-examination Fulgham argues the circuit judge prevented development of his theory of the case, because he was not allowed to question the victim’s mother about the victim’s friendships. When a trial court rules so as to prevent certain testimony from being introduced, it is incumbent on the party to make a proffer of what the witness would have testified to or the point is waived for appellate review. Because Fulgham made no on-the-record proffer of the proposed testimony, he waived his opportunity to challenge the circuit judge’s ruling. |
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