Arland Omar Morris v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-KA-00323-COA

ARLAND OMAR MORRIS APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/11/2020
TRIAL JUDGE: HON. ROGER T. CLARK
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/01/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.

GREENLEE, J., FOR THE COURT:

¶1. Arland Morris was indicted for one count of sexual battery and two counts of touching

of a child for lustful purposes. After a jury trial, he was convicted of two counts of touching

a child for lustful purposes, and the sexual-battery charge was passed to the files. The trial

court sentenced Morris to five years for each count to be served concurrently in the

Mississippi Department of Corrections. On appeal, Morris claims the trial court erred by

giving jury instruction S-9 and by refusing proposed jury instruction D-XI. Finding no

reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY

¶2. In July 2017, twelve-year-old Jane1 lived with her mother and brother in Gulfport,

Mississippi. Thirty-nine-year-old Morris had been in a relationship with Jane’s mother for

approximately three months. Although he did not live with Jane’s mother, he occasionally

spent the night and babysat Jane and her brother. On July 19, 2017, Morris took Jane into

her mother’s bedroom, removed Jane’s clothes, and then removed his clothes. Jane began

crying because she did not know what was happening. Then Morris touched Jane’s chest and

vagina with his hand. According to Jane, Morris asked her to touch his “private part,” but

she refused. Afterwards, Jane went to her bedroom and locked the door. Initially, Jane did

not tell her mother what had happened because she was afraid that Morris would hurt her.

Jane and her brother testified that on another occasion, Morris tried to kiss Jane while they

were cleaning his car in the garage. It is unclear exactly when the incident occurred.

¶3. While Jane was on a trip with her father, she called her mother and told her what had

happened with Morris. When Jane returned home, they went to the police department.2 Jane

was referred to the Children’s Advocacy Center for a forensic interview. During the

interview on August 10, 2017, Jane stated that Morris had touched her.

¶4. In November 2017, Jane was admitted to Memorial Behavioral Health after she

attempted to commit suicide. Kimberly Morgan, a psychiatric mental health practitioner,

treated Jane from November 16, 2017, until she was discharged on November 22, 2017.

1
We use pseudonyms to protect the minor victim’s identity.
2
Jane testified that the kissing incident occurred before they went to the police.

2
During treatment, Jane stated that she had been molested by her mother’s boyfriend.

Specifically, she stated that “he had touched her privates.” Morgan diagnosed Jane with

“major depressive disorder, sexual abuse of a child, and parent/child conflict.” At trial,

Morgan testified that she believed Jane’s symptoms and behaviors were consistent with a

child that had been sexually abused.

¶5. Morris testified in his defense and suggested that Jane’s allegations were made in

retaliation because Jane’s mother found out that he had a wife and “didn’t take it very well.”

Morris admitted that he had stayed at the house alone with Jane but denied touching her. He

also denied trying to kiss her.

¶6. After considering the evidence presented at trial, the jury convicted Morris of two

counts of touching a child for lustful purposes. Now Morris appeals claiming the court erred

by giving jury instruction S-9 and refusing proposed jury instruction D-XI.

STANDARD OF REVIEW

¶7. The grant or denial of a jury instruction is reviewed for an abuse of discretion.

Victory v. State, 83 So. 3d 370, 373 (¶12) (Miss. 2012). “It is well-established that ‘jury

instructions must be read as a whole to determine if the instructions were proper.’” Pitts v.

State, 291 So. 3d 751, 757 (¶33) (Miss. 2020) (quoting Sharkey v. State, 265 So. 3d 151, 156

(¶19) (Miss. 2019)). “If the instructions fairly announce the law of the case and create no

injustice, no reversible error will be found.” Id. at 755 (¶17) (quoting Victory, 83 So. 3d at

373 (¶12)).

DISCUSSION

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¶8. Morris claims that the trial judge erred by giving jury instruction S-9. Instruction S-9

stated, “The [c]ourt instructs the Jury that the uncorroborated testimony of a sex-crime victim

is sufficient to support a conviction if accepted as true by the finder of fact.” Morris also

claims that the trial judge should have given proposed jury instruction D-XI. Proposed

instruction D-XI stated, “The [c]ourt instructs the Jury that uncorroborated testimony of a

prosecutrix should be examined closely and scrutinized with caution.”

¶9. Morris asserts that instruction S-9 constituted an improper comment on the weight of

the evidence and shifted the burden of proof from the State to the defendant. However, in

Pitts v. State, 291 So. 3d 751 (Miss. 2020), an identical instruction was given at trial. Id. at

757 (¶30). On appeal, Pitts argued that the instruction “was peremptory in nature, constituted

an improper comment on the evidence, was argumentative, and it encouraged circumvention

of the [S]tate’s obligation to prove guilt beyond a reasonable doubt.” Id. at (¶32). Our

supreme court held that the trial court did not abuse its discretion by giving the instruction.

Id. at 759 (¶39). The supreme court noted that the instruction “did not instruct the jury on

how to weigh [the victim’s] testimony.” Id. at 758 (¶36). “Rather, [it] properly allowed the

jury to determine what weight and credibility to give [the] testimony.” Id. The supreme

court noted that the “if accepted as true by the finder of fact” language allowed the jury “to

accept or reject [the] testimony, especially in light of other instructions given.” Id. In

another case, this Court held that an identical instruction “did not comment on the weight of

the evidence or tell the jury how to weigh the credibility of the [victim’s] testimony.” Parks

v. State, 228 So. 3d 853, 871 (¶71) (Miss. Ct. App. 2017). “Instead, [the instruction] simply

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conveyed to the jury that, if they found [the victim’s] testimony true, even if no corroborating

evidence existed, they could find that the testimony supported [the defendant’s] conviction.”

Id.

¶10. Morris also asserts that instruction S-9 was not a fair and complete statement of the

law whereas his proposed instruction D-XI was a proper and complete statement of the law.

However, in Pitts, our supreme court held that an instruction identical to S-9 “reflect[ed] an

accurate statement of the law.” Pitts, 291 So. 3d at 757-58 (¶34).

¶11. Furthermore, in Morgan v. State, 995 So. 2d 812, 816 (¶11) (Miss. Ct. App. 2008),

the appellant claimed that the trial court erred by denying an instruction similar to proposed

instruction D-XI. The instruction in Morgan stated, “The court instructs the jury that the

uncorroborated testimony of a victim should be examined closely and be scrutinized with

caution.” Id. This Court noted that Morgan had not presented “any authority that specifically

mandate[d] such an instruction.” Id. Likewise, Morris has not presented any authority

mandating proposed instruction D-XI.

¶12. Finally, we note that the jury was told not to “single out one instruction alone as

stating the law but . . . consider [the] instructions as a whole.” They were also told that it was

their “exclusive province to determine the facts in [the] case and to consider and weigh the

evidence for that purpose.” And they were instructed of the State’s burden of proof and that

they should not “single out any certain witness or individual point or instruction and ignore

the others.” The instructions, read as a whole, fairly announce the law of the case and create

no injustice. Therefore, the trial court did not abuse its discretion in giving instruction S-9

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and refusing proposed instruction D-XI.

¶13. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., McDONALD, LAWRENCE,
McCARTY AND EMFINGER, JJ., CONCUR. WESTBROOKS, J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J.
SMITH, J., NOT PARTICIPATING.

WESTBROOKS, J., SPECIALLY CONCURRING:

¶14. For the reasons stated in my special concurrence opinion in Bliss v. State, 2019-KA-

01617-COA, 2021 WL 671533, at *6-7 (¶¶28-31) (Miss. Ct. App. Feb. 22, 2021) (motion

for rehearing pending), I write separately to address my concerns of the jury instruction, S-9,

provided in this sexual battery case. Again, although the Mississippi Supreme Court has

approved such instructions in Pitts v. State, 291 So. 3d 751, 757-59 (¶¶30-39) (Miss. 2020),

I must highlight that an instruction such as this is undeniably problematic because it unfairly

highlights a victim’s testimony, potentially confuses or misleads jurors, and is potentially

irrelevant to a jury’s function as a fact finder. As I stated in Bliss, the better practice would

be to prohibit such clearly impermissible comments on the evidence.

McDONALD, J., JOINS THIS OPINION.

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