Kuren Cordell Keys v. State of Mississippi , 2017 Miss. App. LEXIS 256 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-KA-01300-COA
KUREN CORDELL KEYS A/K/A KUREN KEYS APPELLANT
A/K/A KUREN K. KEYS A/K/A KUREN
KORDELL KEYS A/K/A KURRELL CORDELL
KEYS
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/12/2015
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MCMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF TWO COUNTS OF
SEXUAL BATTERY AND SENTENCED TO
CONSECUTIVE TERMS OF FIFTEEN
YEARS AND THIRTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AND
TO REGISTER AS A SEX OFFENDER
DISPOSITION: AFFIRMED - 05/09/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., FAIR AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶1. A jury in the Harrison County Circuit Court convicted Kuren Kordell Keys of two
counts of sexual battery. On appeal, Keys’s appointed counsel from the Office of State
Public Defender, Indigent Appeals Division, filed a Lindsey brief, certifying that she has
reviewed the record and has concluded that Keys’s case does not present any arguable issues
for appeal.1 Keys subsequently filed a pro se brief in which he challenges the weight and
sufficiency of the evidence and alleges various errors at trial. We have reviewed the issues
raised by Keys and the record as a whole and find no reversible error. Therefore, we affirm
Keys’s convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2. On November 28, 2013, AKT2 went to Club Illusions in Gulfport, where she was
training to be a waitress. She arrived at the club between 11 p.m. and midnight. AKT
planned to get a ride home with a friend and her friend’s boyfriend, but the boyfriend later
told AKT that he could not give her a ride because he had been drinking. Another friend of
AKT, Deanthony Haralson, then agreed to give her a ride home. Haralson lived near AKT.
Haralson, AKT, and two men she did not know—later identified as Keys and Donnell
Bolden—left the club in a four-door, silver Chevrolet sedan.
¶3. Keys gave Haralson the keys and told him to drive. Bolden sat in the front passenger
seat, and Keys and AKT sat in the backseat. Haralson dropped Bolden off first, then drove
to his apartment and got out of the car. Keys took over driving, and AKT moved into the
front passenger seat. Keys told AKT he would take her home, but she soon realized he was
driving in the wrong direction. She asked Keys where he was going, and he told her that he
1
See Lindsey v. State, 939 So. 2d 743, 748 (¶18) (Miss. 2005).
2
The Court of Appeals does not identify sexual assault victims. In the interest of the
victim’s privacy, initials have been substituted in place of her name.
2
needed to “hit a lick.” Keys eventually stopped the car on the side of County Farm Road in
a rural area of Harrison County. Keys told AKT that he needed to wait there for a friend to
bring him money.
¶4. This angered AKT because it was around 5 a.m., and she needed to get home. She
expressed her anger to Keys, then turned toward her side window. In her peripheral vision,
AKT noticed movement and turned to see Keys stroking his penis. AKT tried to get out of
the car and said she would find her own way home; however, Keys grabbed her, pulled her
back inside the car, and told her, “[T]his ride ain’t free.” Keys threatened to shoot AKT and
ordered her to remove her underwear. AKT told Keys that she had recently given birth and
had stitches. Keys told her to perform oral sex on him instead.
¶5. AKT began screaming and crying, but Keys again threatened to shoot her and
displayed a box-cutter blade. Keys held the blade near AKT’s face as she began to perform
oral sex on him. AKT was still screaming and crying, so Keys pulled her out of the car by
her hair and pushed her up against the back of the car on the driver’s side. Keys forced his
penis inside AKT’s vagina for approximately thirty seconds before a vehicle appeared on the
road traveling in their direction. Keys shoved AKT to the ground so the passing car could
not see her and held her there until the car passed. AKT realized it was a law enforcement
vehicle and tried to signal the driver, but he did not see her.
¶6. Once the car passed, Keys picked up AKT, pushed her back over the car, and tried to
penetrate her again. As he did, a truck appeared traveling in the opposite direction. AKT
managed to break free of Keys and ran into the road in front of the oncoming vehicle. The
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driver, Anita Corwin, stopped, and AKT ran to the passenger side door, screaming that she
had been raped and pulling on the door handle. Corwin unlocked the door, and AKT got
inside Corwin’s truck.
¶7. Corwin saw the silver Chevrolet drive away, but she was not able to identify its driver.
Corwin had just passed a fire station and had seen a deputy parked there, so she and AKT
drove back to the fire station. As they drove, Corwin called 911 to report the assault.
¶8. Captain John Massengill of the Harrison County Sheriff’s Office was at the fire
station when Corwin and AKT arrived. Massengill had been driving the first vehicle that
passed Keys’s parked car. Massengill testified that he slowed as he passed and made eye
contact with Keys. However, Massengill saw only Keys, and Keys did not indicate that he
needed assistance, so Massengill continued to the fire station to use the restroom. Massengill
testified that he intended to return to check on Keys after he left the fire station.
¶9. While at the fire station, Massengill heard a call over his radio that a possible assault
had occurred on County Farm Road and that the victim was en route to the fire station.
Massengill met Corwin and AKT at the front of the station. AKT was sobbing and shaking,
and Massengill was afraid that she would go into shock. When Massengill led her inside the
station, AKT ran toward a sink and began gagging and dry heaving. AKT eventually
collapsed and was transported to the hospital via ambulance.
¶10. Before AKT collapsed, she told Massengill that the crime scene was the parked car
he had passed on County Farm Road, so he broadcast a description of the vehicle: a newer
model four-door sedan, gray or silver in color. Massengill was unable to give a full
4
description of Keys because it had been dark and he had only seen Keys from the waist up.
Massengill and another deputy, Walter Dukes, returned to the area where Massengill had
seen Keys’s car. It was a cold morning, and there was frost on the ground, so the vehicle’s
tire tracks were easy to find. The officers also found AKT’s underwear near the tracks.
¶11. Dukes met with AKT at the hospital. AKT told Dukes that she did not know the man
who raped her, but she knew that he was a friend of Haralson. Investigators made contact
with Haralson, and Haralson identified Keys as the only man in the car with AKT after they
dropped him off at his apartment.
¶12. Nurse Jennifer Duncan was in the emergency room when AKT arrived by ambulance
around 7:10 a.m. Duncan testified that AKT was upset and disheveled. AKT told Duncan
that she had been sexually assaulted, so Duncan conducted a sexual assault exam to collect
any evidence. AKT stated that the assault was oral and vaginal, so Duncan took swabs from
AKT’s mouth, vulva, and vagina. Duncan also collected AKT’s clothes and drew a blood
sample. AKT told Duncan that she had given birth about four weeks earlier. Duncan
testified that AKT was crying throughout the examination. Duncan testified that AKT told
her what had occurred. Duncan’s testimony concerning what AKT told her was consistent
with AKT’s own testimony at trial.
¶13. An investigator with the Harrison County Sheriff’s Office later collected a DNA
sample from Keys. This sample, along with the swabs that Duncan collected from AKT, was
given to Scales Biological Lab to perform DNA analysis. A forensic analyst from Scales
testified that she performed tests on these swabs and could not exclude Keys or his patrilineal
5
relatives as potential contributors of the male DNA found on AKT’s vulvar and vaginal
swabs. The vulvar swab and vaginal swab were both a match for Keys or his patrilineal
relatives. Both samples excluded 99.9 percent of the male population as contributors.
¶14. On September 2, 2014, a grand jury in the First Judicial District of Harrison County
returned an indictment against Keys for two counts of sexual battery against AKT under
Mississippi Code Annotated section 97-3-95(1)(a) (Rev. 2014). Count I alleged that Keys
inserted his penis into AKT’s mouth without her consent. Count II alleged that Keys inserted
his penis into AKT’s vagina without her consent. Keys was tried on August 10 and 11, 2015,
and the jury returned a guilty verdict on both counts. The trial judge sentenced Keys to
fifteen years for Count I and thirty years for Count II, with the counts to run consecutively,
in the custody of the Mississippi Department of Corrections. Keys filed a motion for
judgment notwithstanding the verdict (JNOV) or a new trial, which was denied. On appeal,
as noted above, Keys filed a pro se brief after his appointed counsel filed a Lindsey brief.
ANALYSIS
¶15. The statement of issues in Keys’s pro se brief identifies eleven assignments of error.
Some of these issues overlap, and all may be categorized as challenges to the weight or
sufficiency of the evidence, objections to jury instructions, or objections to comments by the
prosecutor. We address the issues below in that order.
I. Weight and Sufficiency of the Evidence
¶16. When we address a challenge to the sufficiency of the evidence, “the relevant question
is whether, after viewing the evidence in the light most favorable to the prosecution, any
6
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting Jackson v. Virginia,
443 U.S. 307, 315 (1979)). The issue is not whether we would have found Keys guilty based
on the evidence at trial; rather, his conviction must be affirmed if there was enough evidence
for “any rational trier of fact” to have returned a guilty verdict. Id.
¶17. “When reviewing a denial of a motion for a new trial based on an objection to the
weight of the evidence, we will only disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice.” Id. at 844 (¶18). The evidence must be “[v]iewed in the light
most favorable to the verdict,” and we will affirm unless “[t]he trial court . . . abuse[d] its
discretion in denying a new trial.” Id. at (¶19).
¶18. Applying these standards, we have no difficulty concluding that there was sufficient
evidence to sustain Keys’s convictions and that the verdict is not against the overwhelming
weight of the evidence. Our Supreme Court has long held that even “the totally
uncorroborated testimony of a rape victim is sufficient to support a guilty verdict where that
testimony is not discredited or contradicted by other evidence.” Christian v. State, 456 So.
2d 729, 734 (Miss. 1984). In this case, AKT’s testimony was substantially corroborated by,
inter alia, DNA evidence, Haralson’s testimony, and the testimony of those to whom she
immediately reported the assault. There was ample evidence to support the jury’s verdict
finding that Keys sexually penetrated AKT both orally and vaginally without her consent.
See Miss. Code Ann. § 97-3-95.
7
¶19. As to Count I, Keys argues that he should not have been convicted because Instruction
S-4 stated as follows: “The Court instructs the jury that ‘sexual penetration’ is any
penetration of the genital or anal openings of another person’s body by any part of a person’s
body.” Although the Court mistakenly omitted fellatio from this definition,3 the elements
instruction for Count I clearly required the jury to find beyond a reasonable doubt that Keys
willfully committed sexual battery “by engaging in an act of sexual penetration, to-wit: by
inserting his penis into the mouth of [AKT]” without her consent. The instruction further
stated that if the jury could not find any one or more of the elements beyond a reasonable
doubt, it was required to find Keys not guilty. The jury obviously found that all essential
elements had been proven beyond a reasonable doubt. Given the clarity of the elements
instruction, we find that the omission from the separate instruction was harmless.
¶20. Keys’s pro se brief also makes a variety of arguments to the effect that there was
insufficient evidence of his “intent” or “specific intent” because no witness testified about
Keys’s “mind set” or “state of mind.” These arguments are without merit. The State was
only required to prove beyond a reasonable doubt that Keys penetrated AKT without her
consent and not by mistake or accident. Cf. Friley v. State, 856 So. 2d 654, 658 (¶18) (Miss.
Ct. App. 2003) (Southwick, P.J., concurring) (“Sexual battery is a ‘general intent’ crime, i.e.,
it is only necessary that the accused have the intent to commit an unlawful act and that the
offense not have been an accident or mistake.”), rev’d on other grounds, 879 So. 2d 1031(Miss. 2004). Again, there was ample evidence to support the jury’s verdict and resultant
3
See Miss. Code Ann. § 97-3-97(a) (Rev. 2014) (“‘Sexual penetration’ includes,”
inter alia, “fellatio . . . .”).
8
convictions. Therefore, the trial court properly denied Keys’s motions for a directed verdict,
peremptory instruction, JNOV, and a new trial.4
II. Jury Instructions
¶21. Keys challenges various jury instructions on a number of grounds. Our standard of
review with regard to jury instructions “is well-established”:
Jury instructions must be read as a whole to determine if the instructions were
proper. Jury instructions must fairly announce the law of the case and not
create an injustice against the defendant. This rule is summed up as follows:
. . . , if all instructions taken as a whole fairly, but not necessarily perfectly,
announce the applicable rules of law, no error results.
Davis v. State, 18 So. 3d 842, 847 (¶14) (Miss. 2009) (internal citations, quotation marks
omitted).
A. Instructions S-1 and S-2
¶22. Instructions S-1 and S-2 properly and completely instructed the jury on the elements
of the offense of sexual battery as they related to Count I and Count II. At trial, defense
counsel stated as to S-1, “We just object to it generally.” As to S-2, defense counsel stated,
“Again, we would just object to it.” Counsel never articulated the basis of the objection. On
appeal, Keys’s pro se brief argues that the instructions were erroneous because they used the
victim’s initials rather than her full name. He also argues that the instructions were
erroneous because they referred to his indictment, but his indictment was never read to the
jury. There is no requirement that instructions use the victim’s full name rather than initials
4
Keys also argues that “the verdict is contrary to law,” at least as to Count II, because
the State presented evidence of “the totally separate crime” of rape. However, the law does
not require the State to prosecute the defendant for rape when, as in this case, the evidence
supports a charge of rape or sexual battery.
9
or that the indictment be read to the jury. Keys’s challenges to S-1 and S-2 are without merit.
B. Instruction S-3
¶23. Instruction S-3 read:
The court instructs the Jury that in order to sustain a conviction for the crime
of Sexual Battery some penetration must be proven beyond a reasonable doubt.
However, it need not be full penetration. Even the slightest penetration is
sufficient to prove the crime of Sexual Battery.
¶24. At trial, defense counsel objected to S-3 on the ground that “[t]he jury should
understand and know what penetration is without a definition being given.” In contrast, on
appeal, Keys argues that the instruction’s reference to “the slightest penetration” is a
misstatement of the law, vague, and unconstitutional.
¶25. The instruction was a correct and proper statement of the law. The Mississippi
Supreme Court has held that slight penetration is sufficient to constitute sexual battery.
Johnson v. State, 626 So. 2d 631, 633 (Miss. 1993). In addition, this Court has approved this
precise instruction as a “proper statement of the law.” Wilson v. State, 990 So. 2d 798, 802
(¶13) (Miss. Ct. App. 2008) (citing McKnight v. State, 738 So. 2d 312, 318 (¶20) (Miss. Ct.
App. 1999)); accord Galloway v. State, 122 So. 3d 614, 635 (¶¶38-39) (Miss. 2013); see also
Hicks v. State, 441 So. 2d 1359, 1361 (Miss. 1984) (holding that the sexual battery statute’s
proscription of the non-consensual sexual penetration of another is “unambiguous” and
constitutionally valid). This issue is without merit.
C. Instruction S-4
¶26. As noted above, Instruction S-4 stated: “The Court instructs the jury that ‘sexual
penetration’ is any penetration of the genital or anal openings of another person’s body by
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any part of a person’s body.” As discussed above, the instruction’s omission of fellatio was
harmless error because Instruction S-1 clearly instructed the jury on the essential elements
of Count I. Aside from that issue, Keys argues that the instruction’s use of the term “any”
renders the instruction vague or misleading. However, the instruction properly and clearly
states the applicable law. See Miss. Code Ann. § 97-3-97(a); Galloway, 122 So. 3d at 1361(¶¶38-39). Accordingly, Keys’s argument is without merit.
D. Sharplin Instruction
¶27. After the jurors deliberated for some period of time, they sent the trial judge a note
with a question concerning both Count I and Count II: “What happens if we cannot come to
full consensus as to guilty or not guilty[?] We have some concern as to whether the sexual
acts were consensual or not. Right now we have 11 guilty [and] 1 not guilty.” The trial
judge conferred with counsel and, over Keys’s objection, gave a standard “Sharplin
instruction,” as approved by the Mississippi Supreme Court in Sharplin v. State, 330 So. 2d
591, 596 (Miss. 1976).5 See also Bell v. State, 202 So. 3d 1239, 1241 (¶7) (Miss. 2016)
(reaffirming that a Sharplin instruction may be given when the jury is returned for further
deliberations). The jury continued its deliberations and returned a unanimous guilty verdict,
which the jurors confirmed upon being polled.
¶28. A Sharplin instruction is given in lieu of an “Allen charge,” which is used in federal
court and which our Supreme Court has found to be “inappropriate and coercive.” Lafayette
v. State, 90 So. 3d 1215, 1217 (¶8) (Miss. 2012). A trial judge may give a Sharplin
5
Counsel for Keys objected that the instruction was “improper” because the jury had
been unable to reach a decision after “deliberating for a sufficient amount of time.”
11
instruction if the judge receives a note indicating division among the jurors, but the “judge
feels that there is a likelihood that the jury might reach a verdict” if returned for further
deliberations. Bell, 202 So. 3d at 1241 (¶7) (quoting Sharplin, 330 So. 2d at 596). In the
alternative, the judge may simply state to the jurors, “Please continue your deliberations.”
Id. Whether to give a Sharplin instruction is committed to the discretion of the trial judge,
Banks v. State, 394 So. 2d 875, 878 (Miss. 1981), and the trial judge did not abuse his
discretion in this case by giving an instruction that precisely tracked the instruction approved
in Sharplin. Keys’s argument is without merit.6
III. Prosecutor’s Comments
¶29. Keys claims that the prosecutor’s use of words such as “rape” and “victim” was
“inflammatory and prejudicial.” Keys did not object to any of the allegedly prejudicial
statements at trial, so these arguments are procedurally barred on appeal. Walker v. State,
913 So. 2d 198, 238 (¶148) (Miss. 2005). Moreover, a prosecutor is permitted to comment
on “facts introduced in evidence, deductions and conclusions that may be reasonably drawn
therefrom, and application of law to facts.” Byrom v. State, 863 So. 2d 836, 873 (¶125)
(Miss. 2003). The prosecutor’s comments were based on AKT’s testimony and were not
6
Keys makes related assertions that the trial judge erred by not declaring a mistrial
and by giving Instruction C-2. These issues are also without merit. Keys did not move for
a mistrial at trial, so the issue is waived. In any event, the trial judge did not abuse his
discretion by returning the jury for further deliberations rather than declaring a mistrial. See,
e.g., Moore v. State, 204 So. 3d 339, 341-43 (¶¶7-9) (Miss. Ct. App. 2016). Instruction C-2
is the standard instruction on the requirement of a unanimous verdict, which largely tracks
the second paragraph of the standard Sharplin instruction. Keys did not object to the
instruction, so the issue is procedurally barred. Moreover, the instruction was entirely proper
and consistent with Mississippi Supreme Court precedent. See, e.g., Banks, 394 So. 2d at
878.
12
inflammatory or unfairly prejudicial. Also, as discussed above, the jury was properly
instructed on the State’s obligation to prove the elements of sexual battery beyond a
reasonable doubt. Accordingly, this argument is without merit.
¶30. Finally, Keys contends that the State unfairly commented on his decision not to testify
at trial. Keys specifically points to four allegedly improper comments during the course of
the State’s closing argument:
• We know how the DNA got there. This defendant, without her consent,
put his penis in her vagina. There has been no testimony to refute that.
• [AKT] puts herself on this witness stand to be cross-examined by the
defense, and she . . . points at this defendant, and said this is the
defendant that did this to me. And there’s been nothing to refute that.
• [T]hey have an opportunity to call witnesses to support their theory.
There has not been one person to take this witness stand to tell you
Deanthony Haralson is from the father’s side.[7] Not one. The
evidence is that he is not. There is nothing to refute it. That’s what I
mean, you look at the credible evidence. And what does it support? It
all points to one person and one person alone.
• And there’s been no credible evidence to dispute [AKT’s testimony].
All the defense has tried to do is throw out as much stuff as possible to
attack every witness without putting on any credible evidence to
support it, not one.
¶31. Keys failed to object to any of these comments at trial, so we review his claim only
“under the doctrine of plain error.” Mitchell v. State, 21 So. 3d 633, 642 (¶31) (Miss. Ct.
App. 2008). “As applied to closing arguments, plain error may only be found when the
substance of the statement is out of bounds for closing arguments.” Id. (quoting Boyd v.
7
Recall that forensic analysis could not exclude Keys or his patrilineal relatives as
potential contributors of the male DNA found on AKT’s vulvar and vaginal swabs.
13
State, 977 So. 2d 329, 337 (¶34) (Miss. 2008)) (quotation marks omitted). However,
regardless of our standard of review, we find no error in the State’s closing argument. The
Mississippi Supreme “Court has repeatedly held that attorneys on both sides are allowed wide
latitude in their closing arguments and that there is an obvious difference between a comment
on the defendant’s failure to testify and a comment on the defendant’s failure to put on a
credible defense.” Wright v. State, 958 So. 2d 158, 164 (¶14) (Miss. 2007) (emphasis added)
(citing Underwood v. State, 919 So. 2d 931, 939-40 (¶23) (Miss. 2005); Howell v. State, 860
So. 2d 704, 751-52 (¶169) (Miss. 2003)); accord Dora v. State, 986 So. 2d 917, 921-24 (¶¶8-
14) (Miss. 2008). While the former is not permitted, the latter is permissible. As in the
above-cited cases, the prosecutor’s comments during closing argument in this case were
directed toward Keys’s general failure to put on a credible defense, not his decision not to
testify. Accordingly, the prosecutor’s comments did not violate Keys’s constitutional rights.8
CONCLUSION
¶32. The State presented sufficient evidence to convict Keys of two counts of sexual
battery, and the jury’s verdict was not against the overwhelming weight of the evidence. In
addition, the jury was fairly instructed on the applicable law, and Keys was not unfairly
prejudiced by the prosecutor’s comments or closing argument. Accordingly, Keys’s
convictions and sentences are affirmed.
¶33. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, OF CONVICTION OF TWO COUNTS OF SEXUAL
8
Keys’s pro se brief also argues that he is entitled to reversal based on “cumulative
error.” As we have found only one harmless error in the wording of Instruction S-4, Keys’s
cumulative error argument fails as well.
14
BATTERY, AND CONSECUTIVE SENTENCES OF FIFTEEN YEARS AND
THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AND TO REGISTER AS A SEX OFFENDER, IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.
15