Davis v. State


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Docket Number: 2005-KA-00604-COA

Court of Appeals: Opinion Link
Opinion Date: 07-18-2006
Opinion Author: Roberts, J.
Holding: Affirmed and Remanded for Clarification of Sentence

Additional Case Information: Topic: Sexual battery - Weight of evidence - Ineffective assistance of counsel - Closing argument - Sentencing - Section 99-7-2(3) - M.R.A.P. 28(a)(3)
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Chandler, Griffis, Barnes and Ishee, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 02-24-2005
Appealed from: Holmes County Circuit Court
Judge: Jannie M. Lewis
Disposition: CONVICTION OF THREE COUNTS OF SEXUAL BATTERY AND SENTENCE OF TEN YEARS.
District Attorney: JAMES H. POWELL, III
Case Number: 11,343

  Party Name: Attorney Name:  
Appellant: Todd D. Davis




ANTWAYN LAVELL PATRICK



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS  

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Topic: Sexual battery - Weight of evidence - Ineffective assistance of counsel - Closing argument - Sentencing - Section 99-7-2(3) - M.R.A.P. 28(a)(3)

Summary of the Facts: Todd Davis was convicted of three counts of sexual battery. He appeals.

Summary of Opinion Analysis: Issue 1: Weight of evidence Davis argues that the verdict was against the weight of the evidence, because the child fabricated the allegations. However, no evidence suggested that the child’s mother coached the child. Davis also argues that the child first implicated his two-year- old cousin as the perpetrator of the physical injuries to his rectum. Matters regarding the credibility and weight to be accorded the evidence are to be resolved by the jury. Davis argues that the emergency room physician found no indications that the child had been molested. The jury heard conflicting evidence from two examinations. One examination found inconclusive results, and the other concluded that the child had been molested. Where there is conflicting testimony, the jury is the judge of the credibility of the witnesses. Davis also argues that the child did not specifically testify that Davis molested him and that no physical evidence specifically indicated that he molested the child. However, the jury heard evidence, albeit in the form of hearsay testimony, that Davis molested the child. Even the testimony of a single uncorroborated witness can sustain a conviction even though there may be more than one witness testifying to the contrary. Issue 2: Ineffective assistance of counsel Davis argues he received ineffective assistance of counsel because his attorney failed to cross-examine the victim, failed to subpoena records, and failed to subpoena witnesses. When a party raises an ineffective assistance of counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the defendant’s right to assert the same claim in a post-conviction relief proceeding. Accordingly, Davis may raise his ineffective assistance of counsel claim in a post-conviction relief proceeding. Issue 3: Closing argument Davis argues that prosecutorial misconduct occurred based on two comments during closing arguments. However, Davis did not object to either of these statements. When a defendant fails to contemporaneously object at trial, the issue is procedurally barred on appeal. Issue 4: Sentencing The jury found Davis guilty of three counts of sexual battery under section 97-3-5(2). As such, the jury returned three separate verdicts of guilt against Davis. The circuit court sentenced Davis to serve ten years. Pursuant to section 99-7-2(3), when a defendant is convicted of two or more offenses charged in separate counts of an indictment, the court shall impose separate sentences for each such conviction. Although this issue was not raised, M.R.A.P. 28(a)(3) allows the court, at its option, to notice a plain error not identified or distinctly specified. Here, the court’s sentence is plain error and the case is remanded to the circuit court for appropriate sentencing.


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