COLE v. STATE (2025)

¶1. James Cole was convicted of one count of attempted statutory rape of his thirteen-year-old stepdaughter. He appeals. Because no reversible error occurred, this Court affirms his conviction.

FACTS AND PROCEDURAL HISTORY 1

¶2. In the early morning hours of April 13, 2020, Cole's wife, Joan, walked into her daughter Anna's room and witnessed Cole in the bed with her while Anna was nude except for her bra. Joan called 911. Anna was taken to the hospital and examined. On April 14, 2020, Joan took Anna to the Children's Advocacy Center (CAC) where Anna was interviewed. Cole was indicted in a seven-count indictment based on allegations of various criminal acts against Anna. Prior to trial, five of the counts were dropped by the State, and at trial, one count (molestation) was alive at the start of trial but was not presented to the jury; thus, only the single count of attempted statutory rape was presented to the jury.

¶3. Prior to trial, the trial court held a tender years hearing regarding the audio/video recording of Anna's CAC interview. The State made a detailed case supporting its introduction of the DVD of the interview as evidence, and the entirety of the defense's response was “We object, Your Honor.” The trial court found that the tender years hearsay exception was satisfied and that the State could play the DVD for the jury.

¶4. Trial was held in November 2023. The State first called Bobby Rufus, the director of operations for Vicksburg 911. The State introduced into evidence the 911 computer-aided dispatch (CAD) printout of Joan's 911 call on April 13, 2020. The defense objected. It argued that the report was hearsay, that the report gave a conclusion of sexual assault, and that Rufus did not generate the report. The State argued that the report was a business record and an excited utterance. The trial court overruled the objections and allowed the CAD report into evidence. The CAD report showed that the 911 call from Joan was received at 1:19 a.m. on April 13, 2020. The report detailed when various law enforcement responded, including that the first officer arrived at the scene at 1:40 a.m., and the report stated that Anna was taken to the hospital. The report also stated that Joan reported that Cole was “out of the clothes.” Rufus testified that the information in the report is entered by the dispatcher as the call is ongoing, and that no audio existed of this 911 call because the server that contained all of the Warren County 911 audio had crashed and all audio recordings up to the date of crash had been lost.

¶5. On cross-examination, Rufus admitted that he had no personal knowledge of the contents of the CAD report. The defense also pointed out that the copy of the CAD report produced to it in discovery listed the date as April 13, 1920, while the CAD report introduced at trial listed the date as April 13, 2020. Rufus testified that he did not know how the difference came about, and that it undermined confidence in the document. He testified on redirect that the computer generates all dates and times and that humans do not have the ability to change the date.

¶6. Sargent Glentrice Johnson, then a patrol officer, was the first police officer on the scene, and she met Joan and Anna at a stop sign near their house. She stated that her report indicated that she responded at 1:19 a.m. She reported that Joan stated that Cole was in her daughter's bedroom and on top of her. Joan stated that when she opened the door and turned on the light, Cole was pulling up his shorts. Sargent Johnson then escorted Joan and Anna to River Region Hospital. At the hospital, she spoke to Anna, who related that Cole came into her bedroom, woke her up, removed her underwear and pushed himself in her; then, her mother walked in the room. Anna stated that this was not the first time Cole had done this to her. River Region was not equipped to do the proper exam, so Anna was taken by ambulance to University of Mississippi Medical Center (UMMC). On cross-examination, the defense questioned Sargent Johnson about the discrepancy in the time of her arrival in her report (1:19 a.m.) and the CAD report (1:40 a.m.).

¶7. Anna testified next. She stated that she was in her room when Cole came in, removed her underwear, and tried to force himself into her vagina. She testified that her lights were off, her door was cracked, and she called Cole into her room. She wanted to show him something on her phone. She stated that after her mother found them, Cole took their phones, but at some point, Joan called the police, and the two of them left the house. Anna testified that she had previously told her grandmother that Cole had “messed with” her before, and her grandmother told Joan, but Joan did not believe her.

¶8. On cross-examination, Anna admitted that she had been suspended from school and that her cell phone had been taken away for an incident with her cell phone. She further testified that she had called Cole into her room that night to show him what she wanted for her July birthday. She also agreed that she was texting frequently before Cole came into her room and that she stopped texting when he came into her room around 12:54 a.m.

¶9. Joan testified that she woke up alone in her and Cole's bed at 12:14 a.m. She testified that she was certain of the time because she looked at her clock. She went to the bathroom and then walked through the house. She noticed that Anna's bedroom door was cracked and that the room was dark. She opened the door and turned on the light and saw Anna on the bed with only her bra on and Cole standing up from the bed. She did not remember what Cole was wearing. Cole told her that he was not doing anything and that Anna had called him into the room. Joan asked Anna if Cole had been messing with her and Anna answered in the affirmative. Joan told Anna to put her clothes on, but Cole took her phone when Joan indicated that she was going to call the police. Joan went to a neighbor's house to get help, but no one responded. She went back home and got the phones back from Cole, who told her that they should talk because Joan did not want to have to move in with her mother. She then called the police, and Joan and Anna went down the road to a stop sign to wait for the police to arrive. Joan testified that since this incident, Anna has attended counseling three times a week. She also testified that she had previously received a report from her mother that Cole had messed with Anna, but that she did not believe it because Cole denied it.

¶10. On cross-examination, counsel questioned Joan extensively about her previous statements to police and to other people in which she stated that Cole had his clothes on when she walked into Anna's bedroom. Counsel also questioned Joan about her certainty that this occurred at 12:14 a.m., including pointing out that Anna was texting nearly nonstop until 12:54 a.m. and that the police arrived at 1:19 a.m.

¶11. The CAC interviewer, Charlene Barnette, testified, and the recording of Anna's CAC interview was played for the jury. Prior to her testimony, the defense objected to the interview being admitted into evidence solely because, according to the defense, Anna denied that the molestation charge (which was still viable at this point in the trial) had occurred during her testimony. The State countered that it believed she did not disclose molestation in the video, but that it was immaterial to the video's admissibility even if she had disclosed molestation. The trial court took the issue under advisement, to be addressed if the issue arose while the video was played. The issue did not arise.

¶12. On the video of the April 14, 2020 interview, Anna disclosed that Cole had come into her bedroom, taken off her underwear, and tried to put his “wiener” into her. Barnette testified that Anna's responses were not age appropriate because they did not use slang and were not quick, thus were not typical of a thirteen-year-old. On redirect, she clarified that she believed Anna had partial intellectual developmental delays. Barnette further testified that Anna provided sensory details and peripheral, specific details during her disclosure, and that she demonstrated episodic memory. She concluded that Anna's disclosures were consistent with a sexually abused child.

¶13. On cross-examination, Barnette admitted that she was not aware that Anna asked Cole to enter her room, and that she was not aware that Anna was texting up until the time Cole entered her room. During the interview, Anna told Barnette that when Cole entered her room, she was trying to go to sleep.

¶14. Evidence was collected from Anna's bed, including the sheets. The crime lab did not find any DNA on that evidence.

¶15. Molly Sullivan, the sexual assault nurse examiner who examined Anna in May 2020, testified that Anna's exam was normal. She testified that the vagina heals quickly from injury without scarring, and also that many types of abuse cause no injury at all. She noted that the alleged abuse occurred about a month before her exam, thus, “if she had any injury it would have long healed before I saw her.” She further stated that she did not assess for DNA because it had been too long since the contact; she additionally pointed out that if no sperm was transferred in an attempted sexual act, then DNA would be highly unlikely to have been transmitted. On cross-examination, Sullivan testified that she knew that a sexual assault kit had been collected the night of the assault and that it was negative for DNA.

¶16. The investigator on the case, Officer John Nguyen, testified that when the incident occurred, Anna was thirteen years old, Cole was fifty-one years old, and the two of them were not married. On cross-examination, the defense asked Officer Nguyen about his interviewing Cole. Officer Nguyen testified that during that interview, Cole denied abusing Anna. Cole also offered to provide DNA and to take a polygraph test, and he stated that none of his DNA would be in the bed. Cole further told Officer Nguyen that he went into the room because he saw a cell phone light and Anna had problems in the past with her cell phone. On redirect, Officer Nguyen testified that Cole admitted lying on the bed with Anna. He further testified that Cole stated that if his DNA was found on Anna, it was because “his wife grabbed his DNA and put [it] inside [Anna] herself.” According to Officer Nguyen, Cole then said that was a joke.

¶17. Both sides rested, and only the attempted statutory rape charge was submitted to the jury because the State agreed that it had not put forth sufficient evidence of molestation. The jury found Cole guilty of attempted statutory rape. The trial court sentenced Cole to fifty years in prison, with thirty years to serve.

¶18. Cole appeals, arguing: 1) the admission of the recording of Anna's CAC interview violated Cole's confrontation rights, or, alternatively, the tender years hearing did not adequately safeguard Cole's confrontation rights; 2) the court erred by admitting the CAD report into evidence; 3) the State's expert inappropriately commented on the veracity of the complaining witness, as did the district attorney's characterization of the expert's comments; and 4) cumulative error deprived Cole of a fair trial.

ANALYSIS

A. Whether the admission of a recording of the child's interview violated the Confrontation Clause or was error under the evidentiary rules.

¶19. Confrontation Clause issues are reviewed de novo. Goforth v. State, 70 So. 3d 174, 182 (Miss. 2011). “The standard of review for admission of evidence is abuse of discretion.” Debrow v. State, 972 So. 2d 550, 552 (Miss. 2007) (citing Smith v. State, 839 So. 2d 489, 494 (Miss. 2003)). Cole raised only a general objection at trial, stating merely “We object, your honor[,]” to the admission of the recording of the CAC interview. Cole did not raise these specific issues to the trial court; thus the trial court did not have an opportunity to address them. Issues not properly and specifically objected to at trial are typically procedurally barred on appeal; this Court may consider them only for plain error. Johnson v. State, 155 So. 3d 733, 738-39 (Miss. 2014). Plain error is found for obvious error that impacts a fundamental, substantive right. Id. The error must have “resulted in a manifest miscarriage of justice or seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting Burdette v. State, 110 So. 3d 296, 303 (Miss. 2013). Thus, this Court reviews these issues only for plain error.

¶20. Cole argues that the admission of the recording of Anna's CAC interview violated his confrontation rights. Cole argues that Confrontation Clause jurisprudence calls into question the entire tender years exception, citing caselaw that states that cross-examination is the best indicia of reliability. Smith v. Arizona, 602 U.S. 779, 144 S. Ct. 1785, 219 L. Ed. 2d 420 (2024). But Smith is completely inapposite, as it addresses absent witnesses. Id. at 783, 144 S. Ct. 1785. Anna was not an absent witness. Anna testified in person, inside the courtroom, without a screen. Cole was allowed the opportunity to fully confront and cross-examine her. This argument is without merit.

¶21. Cole alternatively argues that under the tender years exception to the hearsay rule “a trial court must state and show in writing how such admission does not interfere with the Defendant's rights.” Mississippi Rule of Evidence 803(25) provides that

A statement by a child of tender years describing any act of sexual contact with or by another is admissible if:

(A) the court—after a hearing outside the jury's presence—determines that the statement's time, content, and circumstances provide substantial indicia of reliability; and

(B) the child either:

(i) testifies; or

(ii) is unavailable as a witness, and other evidence corroborates the act.

MRE 803(25). During the tender years hearing, the State addressed these factors in detail. The child was thirteen and developmentally delayed, the interview was the day after the incident occurred, the statements were made to a trained professional, the child had no reason to lie, and, indeed, the allegations caused several negative impacts to the child's life, and the child would be testifying at trial. The trial court, albeit summarily, found that the factors were met; the argument by the State and the facts cited by the State support such a finding. Cole's arguments on appeal do not support a finding that the trial court committed plain error by admitting the recording of the CAC interview under the tender years exception.

B. Whether the admission of the CAD Report was error.

¶22. “The standard of review for admission of evidence is abuse of discretion.” Debrow, 972 So. 2d at 552 (citing Smith, 839 So. 2d at 494). Cole argues that the CAD report should not have been admitted into evidence as a business record because it does not meet the factor set forth in Mississippi Rule of Evidence 803(6)(E).² Cole did not make this specific objection to trial, but rather raised other objections to the CAD report; the trial court therefore had no opportunity to consider this issue, and this Court reviews the issue only for plain error.

¶23. Rule 803(6)(E) provides that records of regularly conducted activities may be excepted from the hearsay rule if they meet several requirements, including that “the opponent does not show that the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness.” MRE 803(6)(E). Cole argued that lack of trustworthiness was shown for several reasons. First, he argues a technical indication of unreliability exists because the audio recording of the call was unavailable since the server on which it was saved had crashed. Cole claims that this was “[t]he same system that captured the data introduced[.]” But the record simply does not support that assertion—the record indicates that the server that contained the audio had crashed and lost everything on that server. Based on the fact that the printout was not lost, as well as other testimonial assertions, the record indicates that the computer system that generates the report admitted is separate from the server that crashed; thus, the audio recording server crash has no bearing on the reliability of the CAD report or the system that generates it. Second, Cole points to the two different CAD reports that have two different years—one with 1920 and one with 2020. He asserts that this shows “the record can be changed, with no record of how or why the change was made.” It is true that Rufus had no explanation as to how or why the error in date and then the change in date occurred. The trial court asked defense counsel if any other differences existed between the two documents, and counsel responded in the negative—the documents were identical but for the year change. Additionally, Rufus testified that the computer generates all dates and times and that no person has the ability to change the dates and times. Further, 911 did not exist in 1920. It is conceivable that the computer temporarily calibrated the year incorrectly. In any event, the State demonstrated that the document was otherwise reliable and the defense was able to thoroughly cross-examine Rufus on the inconsistency between the two documents. While it is certainly problematic that the computer system changed the date by a century, the document otherwise was demonstrated to be reliable; thus, Cole fails to demonstrate that this issue rises to the level of plain error impacting a fundamental right.

C. Whether the State's expert impermissibly commented on the victim's veracity, and whether the district attorney's characterization of her testimony during closing arguments did the same.

¶24. This Court reviews the admission of expert testimony for abuse of discretion. Bishop v. State, 982 So. 2d 371, 380 (Miss. 2008). “The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created.” Sheppard v. State, 777 So. 2d 659, 661 (Miss. 2000) (citing Ormond v. State, 599 So. 2d 951, 961 (Miss. 1992)). “Attorneys are allowed a wide latitude in arguing their cases to the jury. However, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Id. (citing Hiter v. State, 660 So. 2d 961, 966 (Miss. 1995)). Cole did not object at trial to the particular expert testimony complained of now on appeal, nor to the closing argument language at trial; thus, he waives those arguments, and this Court reviews them only for plain error.

¶25. First, Cole argues that the expert testimony that Anna's disclosures were “consistent with a sexually abused child” was a comment on Anna's veracity, because when “expert” and “consistent” are combined, it is the equivalent of an opinion on truthfulness. Barnette specifically described why Anna's disclosures were consistent with a sexually abused child because of the types of detail Anna provided, based on her expert experience. She further stated that it was not her job to determine whether a child was truthful or not, but she was simply to determine whether the disclosures were consistent with abuse. With regard to experts in the field of therapy and child abuse, this Court has specifically noted that

While it is true that an expert may not offer an opinion as to the veracity of the alleged victim, that is, whether the alleged child sexual abuse victim has been truthful, it is within the scope of permissible testimony for an expert to testify regarding his or her opinion that the alleged victim's characteristics are consistent with a child who has been sexually abused.

Bishop, 982 So. 2d at 381 (citing Smith v. State, 925 So. 2d 825, 835-36 (Miss. 2006)). The expert in this case did exactly what has been approved by this Court and nothing more. This issue is without merit.

¶26. Second, Cole argues that the prosecutor's statement during closing argument that the expert testified that Anna's “disclosures were exactly consistent with a child who had been sexually abused” amounted to the State characterizing the testimony in a way that made it appear that the expert had endorsed Anna's veracity. He argues that “exactly consistent” is a comment on truthfulness. While the term “exactly” added to “consistent” is certainly an exaggeration of the expert's actual testimony, Cole does not adequately explain how that addition equates to a judgment of veracity, nor does he explain how the addition of that one exaggerated word amounts to “unjust prejudice.” Accordingly, Cole has not demonstrated plain error.

D. Cumulative Error

¶27. Cole argues that cumulative error warrants reversal. The cumulative error doctrine stands for the proposition that individual errors that are not reversible alone may combine with other errors to amount to reversible error if “the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Harris v. State, 970 So. 2d 151, 157 (Miss. 2007) (internal quotation mark omitted) (quoting Ross v. State, 954 So. 2d 968, 1018 (Miss. 2007)). Where there are no individual errors, however, there can be no reversible cumulative error. Id. Finding no individual error, no cumulative error consequently exists in this case.

CONCLUSION

¶28. Because the trial court did not commit plain error regarding any issue Cole raises, this Court affirms his conviction.

¶29. AFFIRMED.

FOOTNOTES

2.   He admits for purposes of appeal that the factors set forth in Mississippi Rule of Evidence 803(6)(A) to (D) were met.

KING, PRESIDING JUSTICE, FOR THE COURT:

RANDOLPH, C.J., COLEMAN, P.J., MAXWELL, CHAMBERLIN, ISHEE, GRIFFIS, SULLIVAN AND BRANNING, JJ., CONCUR.