Hunt v. State
| Docket Number: | 2010-KA-00902-COA Linked Case(s): 2010-KA-00902-COA ; 2010-CT-00902-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-12-2011 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Statutory rape - Post-trial motions - M.R.A.P. 10(b) - Post-arrest silence - Youth court adjudication - Weight of evidence - Section 97-3-65(1)(b) Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers, Ishee and Maxwell, JJ. Concur in Part, Concur in Result 1: Irving, P.J. Without Separate Written Opinion Concurs in Result Only: Barnes and Carlton, JJ. Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-18-2010 Appealed from: Lowndes County Circuit Court Judge: James T. Kitchens, Jr. Disposition: Convicted of Statutory Rape and Sentenced to Twenty-five Years in the Custody of the Mississippi Department of Corrections, Without Eligibility for Parole, Probation, or Early Release District Attorney: Forrest Allgood Case Number: 2008-0086-CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Kenneth Dewayne Hunt |
GEORGE T. HOLMES |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE |
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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: | Statutory rape - Post-trial motions - M.R.A.P. 10(b) - Post-arrest silence - Youth court adjudication - Weight of evidence - Section 97-3-65(1)(b) |
| Summary of the Facts: | Kenneth Hunt was convicted of statutory rape and was sentenced to twenty-five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Post-trial motions It is the responsibility of the appellant to designate the record pursuant to M.R.A.P. 10(b) in a manner sufficient to allow the Court to review the appellant's issues. The record contains an order denying the motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. However, the order is the usual summary denial, and it does not detail the specific grounds that Hunt raised. The record does not contain a motion for a new trial or a JNOV, nor does the transcript show that such a motion was made before the circuit court ore tenus. Therefore, the issues were waived by the failure to present the Court with the substance of the motion for new trial or a JNOV. Issue 2: Post-arrest silence Hunt argues that the circuit court erred in denying his request for a mistrial after a witness for the State testified to Hunt’s post-arrest, pre-Miranda silence. The United States Supreme Court has held that improper comments about a defendant's silence may deprive a defendant of his right to due process. When a defendant chooses to testify, his post-arrest, pre-Miranda silence can be admissible for impeachment purposes, but when a defendant invokes his right to not testify, such silence is not admissible to create an inference of guilt. Hunt did not raise a contemporaneous objection, and he requested a mistrial only after cross-examining the witness. In the absence of a contemporaneous objection from defense counsel, there is no ground for a mistrial. The victim, who was eighteen years old at the time of trial, provided clear, consistent, and graphic testimony as to the long-term sexual abuse she suffered at the hands of Hunt. Her sister, who was twenty years old at the time of trial, testified she witnessed Hunt having sexual intercourse with the victim. And while Hunt had no duty to present any evidence tending to show his innocence, the record shows that the defense did not call any witness to contradict the evidence put forth by the State. Based on the overwhelming evidence of Hunt’s guilt, the testimony of which Hunt complains is harmless error, even if it had not been waived by the failure to include in the record the specific issues raised in a motion for a new trial or a JNOV, as well as the failure to offer a contemporaneous objection. Issue 3: Youth court adjudication Hunt argues that it was improper and prejudicial for the jury to hear that the victim and her sister had been adjudicated to be abused children in a youth court proceeding. The Youth Court Act prohibits use of an adjudication of the Youth Court for impeachment purposes in any court. While the testimony was improper, the circuit court correctly sustained the objection and offered a curative instruction. As such, there was no error. Issue 4: Weight of evidence Hunt argues that there was no testimony specifically indicating penetration as required by section 97-3-65(1)(b). It is very clear that the victim’s testimony established the element of penetration. Hunt’s argument is that the victim’s repeated testimony concerning being forced into having “sexual intercourse” with Hunt is insufficient because she did not expressly state “penetration” had occurred. Hunt’s trial counsel repeatedly used the term “sexual intercourse” as involving penetration. There is no ambiguity in this record. The verdict was supported by sufficient evidence. |
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