IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Dec :28: KA COA Pages: 9 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TREVOR HOSKINS APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE...1 STATEMENT OF FACTS...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...2 ISSUE I. ISSUE II. THE LANGUAGE IN THE INDICTMENT WAS ONE OF FORM AND NOT SUBSTANCE. IT MERELY ADDED THE LANGUAGE OF THE STATUTE IN THE HEADING OF THE INDICTMENT...2 THE RULING OF THE TRIAL COURT THAT TESTIMONY ABOUT A PRIOR INCIDENT OF DOMESTIC VIOLENCE WAS MORE PROBATIVE THAN PREJUDICIAL WAS NOT ERROR CONCLUSION...5 CERTIFICATE OF SERVICE...6 i

3 TABLE OF AUTHORITIES STATE CASES Taylor v. State, 954 So.2d 944 (Miss. 2007)...4 Weeks v. State, 123 So.3d 373 (Miss. 2013)...3 STATE STATUTES Miss. Code Ann (4)...1 ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TREVOR HOSKINS APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE The Grand Jury of Washington County indicted this defendant for the crime of Domestic Aggravated Assault in violation of Miss. Code Ann (4). (Indictment, c/p. 1). After a trial by jury, the Hon. Ashley Hines, presiding, the jury found defendant guilty. (Jury Verdict, c.p. 129). The trial court sentenced defendant to 20 years, to be served consecutive to the time imposed in Washington County Cause number (Sentencing order, c.p. 130). th On October 14, the notice of appeal was filed, (c.p. 143), divesting the lower court of jurisdiction. (Trial court order, c.p. l76). STATEMENT OF FACTS The Defendant beat his girlfriend with a bat about the head, arm and leg. A doctor testified as to her injuries. (Tr. 156). She sustained a laceration to her scalp, a broken arm (two bones) and a broken leg. The victim herself testified that it was this defendant Trevor Hoskins that beat her. Tr An expert (Tr. 113) testified that DNA from the bat, and a portion of the shirt defendant wore, contained DNA from the victim. Tr There were also photographs of the victim showing the 1

5 extent and severity of the injuries. The jury heard the testimony and found defendant guilty. (Jury Verdict, Tr. 258). SUMMARY OF THE ARGUMENT Issue I. The language in the indictment was one of form and not substance. It merely added the language of the statute in the heading of the indictment. The face of the indictment told defendant exactly which statutory provison under which he was indicted. Ample notice was given and there was no impairment in his defense by having the indictment more closely track the statutory language. Issue II. The ruling of the trial court that testimony about a prior incident of domestic violence was more probative than prejudicial was not error. As the trial court noted, during the testimony of a prior victim of domestic violence The testimony is not really to prove what happened to her. It s just admissible for purposes of intent and knowledge, lack of accident or mistake... Tr ARGUMENT Issue I. The language in the indictment was one of form and not substance. It merely added the language of the statute in the heading of the indictment. Looking to the record, the indictment clearly states at the top that defendant was being charged with DOMESTIC AGGRAVATED ASSAULT. The problem is a scrivener s error in that within the body of the indictment it failed to list the relationship of the victim that made it a domestic violence charge. (Indictment, c.p.1). The State filed a motion to amend to substitute the 2

6 who had a romantic relationship with or was the girlfriend to TREVOR HOSKINS at the time of the aggravated assault The State merely changed the descriptor of the victim from a person to one that fit within the cited statutory provision for domestic violence. The indictment on its face stated that the charge was Domestic Aggravated Assault. The motion to amend was filed about six months before the trial of this case. It would appear from the record that it did not hinder or change his defense to the charge and he had ample opportunity to prepare his defense. This argument is consistent with the holding and rationale that changing the indictment to track the statutory language is not error if it does not change the defendant s defense. Weeks v. State, 123 So.3d 373 ( 8-10)(Miss. 2013). Considering that defendant had notice of the amendment and exactly under which statutory provision he was indicted, amending the indictment did not prejudice defendant or subject him to higher maximum sentence. There being no error, no relief should be granted on this assertion of trial court error. Issue II. The ruling of the trial court that testimony about a prior incident of domestic violence was more probative than prejudicial was not error. The motion regarding admission of evidence of a prior crime (domestic violence) by this defendant was brought to the Court s attention, Tr.62. The Court took it under advisement and reviewed the law, (Tr. 70). The trial court then ruled that under the 403 balancing test that the evidence of prior domestic violence being the same type of incident would be highly probative and was no more prejudicial than other evidence introduced against defendant. Tr Further, 3

7 during the testimony of the witness, the trial court limited the presentation of photographic evidence stating that... The testimony is not really to prove what happened to her. It s just admissible for purposes of intent and knowledge, lack of accident or mistake... Tr While there was not much of a defense presented on behalf of this defendant, it would appear counsel was ready to argue it might have been someone else or the victim s testimony just didn t support the charges. 13. The defendant also argues that these incidents should not have been admitted at trial because they were highly prejudicial to the defendant. Rule 403 provides, [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. M.R.E Because the evidence was highly relevant to show motive and absence of accident, it cannot be said that the judge abused his discretion in admitting the prior charges. Taylor v. State, 954 So.2d 944 (Miss. 2007). It is the succinct position of the State the trial Court was correct in allowing the testimony for the limited purpose for which it was offered pursuant to the rules of evidence and being more probative than prejudicial. Again, there being no error no relief should be granted on this claim of trial court error. 4

8 CONCLUSION Based upon the arguments presented herein as supported by the record and exhibits on appeal, the State would ask this reviewing Court to affirm the verdict of the jury and sentence of the trial Court. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) BY: /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO

9 CERTIFICATE OF SERVICE I, JEFFREY A. KLINGFUSS, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable W. Ashley Hines Circuit Court Judge P.O. Box 1315 Greenville, MS Honorable Dewayne Richardson District Attorney P.O. Box 426 Greenville, MS Erin E. Pridgen, Esq. Office of State Public Defender Indigent Appeals Division P.O. Box 3510 Jackson, MS This the 1st day of December, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL 6