Julian Mingo v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2005-KA-01238-SCT

JULIAN MINGO

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 05/26/2005
TRIAL JUDGE: HON. JAMES T. KITCHENS, JR.
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CHARLES E. MILLER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL:
BY: JOHN R. HENRY
DISTRICT ATTORNEY: FORREST ALLGOOD
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/07/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE WALLER, P.J., DIAZ AND CARLSON, JJ.

WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1. A Lowndes County jury convicted Julian Mingo of three counts of fondling a fifteen-

year-old boy. Mingo was sentenced to three ten-year terms of imprisonment, to be served

consecutively, followed by five years of post-release supervision. On appeal, Mingo

challenges various rulings by the trial judge, the sufficiency of the evidence supporting his
conviction, and the length of his sentence.1 Finding each of Mingo’s claims to be without

merit, we affirm the judgment of conviction and the sentence imposed.

FACTS

¶2. Julian Mingo was employed as the band and choral director at a private school in

Lowndes County, Mississippi. The victim, who was fourteen years old at the time the

relevant incidents began, was a student at the school with an interest in the fine arts. The

victim’s parents hired Mingo as a private voice coach in the summer of 2004, believing that

private instruction would help their son get admitted to a school for the performing arts.

¶3. The lessons were conducted in the school’s band hall, often in a small private practice

room. At the victim’s first lesson in early June, Mingo informed the victim that he might use

some “weird techniques” to train the victim. At the second lesson on June 16, 2004, Mingo

led the victim to a small private practice room and reminded him of his “weird techniques.”

Mingo then turned off the lights, stood behind the victim, and began fondling him. He told

the victim not to tell anyone. The victim continued to take lessons from Mingo over the

summer and into the fall. Over the course of the lessons, Mingo repeatedly fondled the

victim.

¶4. The victim finally told a friend about Mingo’s actions on October 19, 2004. The

victim’s friend told another classmate of the victim on October 20. This classmate asked the

victim about the allegations and took him to the school counselor to have the victim explain

what had happened. The counselor called the school headmaster who, in turn, called the

chief of police. The chief of police interviewed the victim, gave him a small tape recorder

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Mingo raises fourteen issues on appeal, which we have consolidated into twelve.

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to put in his pocket, and asked him to confront Mingo in his office. The victim went to

Mingo’s office at the beginning of an afternoon class and asked him why he had fondled the

victim. Mingo apologized repeatedly and said that he would stop. After the victim left

Mingo’s office and went back to the police chief, Mingo left his office and gave a speech to

his students about the importance of forgiveness.

¶5. Later that afternoon, the parent of another student, who had heard about the

allegations against Mingo, went to the school and confronted him. Mingo admitted touching

the student, but said there had been a misunderstanding. At the end of the school day, the

school’s headmaster asked Mingo to leave the school until the matter was resolved.

¶6. The victim gave a more extensive statement to the police on October 20th. Based on

his statement, the Columbus police sought to interview Mingo. They asked the headmaster

to contact Mingo and ask him to come to the police station for questioning. Mingo went to

the police station voluntarily to give a statement in the afternoon on October 20th. Although

he was not placed in custody at that time, he was advised of his Miranda rights and signed

a waiver indicating that he understood those rights. In his statement to police, Mingo

admitted touching the victim. Mingo consented to having his home searched, and, in the

course of their search, the police found an eight millimeter tape of a young male performing

a sexually explicit act.

¶7. After being convicted of three counts of fondling and being sentenced to three ten-

year terms, to run consecutively, Mingo appeals.

DISCUSSION

(1) Legality of Arrest

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¶8. Mingo claims that his arrest was without probable cause since it was based solely on

the testimony of the victim. Determinations of reasonable suspicion and probable cause are

reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed.

2d 911 (1996); Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (Miss. 1999).

However, we will conduct a de novo review of the trial judge’s determination “based on

historical facts reviewed under the substantial evidence and clearly erroneous standards.”

Dies v. State, 926 So. 2d 910, 917 (Miss. 2006) (citing Floyd, 749 So. 2d at 113).

¶9. Mingo significantly misstates the record in implying that he was arrested after the

victim gave a statement to the police. The record reflects that after the police took the

victim’s statement, Mingo was asked to come to the police station to answer questions

concerning the accusations of the victim. He voluntarily agreed to give a statement and was

not arrested until after he had given the statement. The statements of the victim and Mingo’s

own corroboration were more than sufficient to establish probable cause.

¶10. Even if Mingo had been arrested in response to the victim’s statement, Mingo cites

no authority for the principle that a witness’ testimony is insufficient to establish probable

cause. The State persuasively argues that since the uncorroborated testimony of a victim can

provide the basis for a finding of guilt beyond a reasonable doubt, see Collier v. State, 711

So. 2d 458, 462 (Miss. 1998), it must by definition suffice for the lesser finding of probable

cause.

¶11. This claim is without merit.

(2) Admissibility of Statement

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¶12. Mingo argues that his statement to police before his arrest is inadmissible because he

was not properly given his Miranda warnings. The threshold question in a Miranda rights

analysis is whether the defendant was in custody and being interrogated when the statement

in question was made. Drake v. State, 800 So. 2d 508, 513 (Miss. 2001). A person is “in

custody” if a reasonable person would feel that they were going to jail and not just being

temporarily detained. Godbold v. State, 731 So.2d 1184, 1187 (Miss. 1999). Whether a

reasonable person would feel that she was “in custody” depends on the totality of the

circumstances, and may include factors such as: (a) the place of interrogation; (b) the time

of interrogation; (c) the people present; (d) the amount of force or physical restraint used by

the officers; (e) the length and form of the questions; (f) whether the defendant comes to the

authorities voluntarily; and (g) what the defendant is told about the situation. Hunt v. State,

687 So. 2d 1154, 1160 (Miss. 1996). If a person is determined not to be in custody and is not

being interrogated, the Miranda protections do not attach. Voluntary statements made by

a defendant do not trigger the requirements of Miranda. Drake, 800 So. 2d at 513

¶13. As noted above, Mingo voluntarily went to the police station, was told about the

victim’s accusations, and agreed to give a statement to police. He was not placed under

arrest before questioning, and the officers emphasized that he was free to end his questioning

at any time. Given these circumstances, Mingo was not “in custody” and, therefore, was not

entitled to the Miranda protections. Nevertheless, out of caution the officers did read Mingo

his Miranda warnings, and Mingo signed a waiver indicating that he fully understood those

rights. During a hearing on pretrial motions, Mingo conceded that he had been given his

Miranda warnings and had fully understood his rights. This claim is without merit.

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(3) Rulings on Issuance of Two Subpoenas

¶14. Mingo claims that the trial court erred in denying him access to his personal notes and

documents contained in his desk at the academy and to the records of Cole Refrigeration, a

company that worked at the academy during the summer in 2004. We review a trial court’s

rulings on matters of evidence, relevancy and discovery violations for an abuse of discretion.

Flora v. State, 925 So. 2d 797, 819 (Miss. 2006) (citing Montgomery v. State, 891 So. 2d

179, 181 (Miss. 2004)).

¶15. Regardless of Mingo’s claims to the contrary, the record indicates that the trial judge

was willing to issue a limited subpoena duces tecum for any personal writings of Mingo held

by the school, but denied Mingo access to the victim’s school record. The court issued the

limited subpoena, but it does not appear that the school withheld any of Mingo’s personal

writings. We do not review allegations of error that are unsupported by the record. See, e.g.,

Ferrell v. River City Roofing, Inc., 912 So. 2d 448, 457 (Miss. 2005) (“[T]his Court declines

to review such bare allegations[,] . . . which are not supported by the record on appellate

review.”); Vinson v. Johnson, 493 So. 2d 947, 950 (Miss. 1986) (“this Court will not review

any allegation of error which is unsupported by the record.”). There is no indication that the

trial court abused its discretion in its ruling.

¶16. Mingo claims that Cole Refrigeration’s records would show that he was not alone

with the victim at the band hall on certain dates referenced in the indictment. The trial judge

contacted the president of Cole Refrigeration, who informed him that the company did not

work in the band hall. The trial judge therefore denied the subpoena as irrelevant to the case

and informed defense counsel that, if he wanted to challenge the ruling, he could subpoena

6
the president of the company to testify. There is nothing in the record indicating that Mingo

chose to subpoena Cole’s president. The trial judge did not abuse his discretion in denying

the subpoena. See Johnson v. Fargo, 604 So. 2d 306, 309 (Miss. 1992) (“A trial judge has

the discretion to exclude irrelevant evidence.”).

¶17. These claims are without merit.

(4) Batson Rule Violation

¶18. During voir dire, Mingo challenged four of the State’s peremptory strikes against

African-American jurors, claiming that they violated the Batson v. Kentucky rule requiring

the State to provide race-neutral reasons for exercising peremptory strikes. 476 U.S. 79, 106

S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Our standard of review for such claims is well settled:

[The] standard of review for Batson claims . . . accords "great
deference" to a trial judge's factual findings, reversing only
where the finding of the lower court was clearly erroneous or
against the overwhelming weight of the evidence. “Great
deference” has been defined in the Batson context as insulating
from appellate reversal any trial findings which are not “clearly
erroneous.” This deference specifically includes a trial judge's
determination of any racially discriminatory motive underlying
any articulated reasons given.

Baldwin v. State, 784 So. 2d 148, 155 (Miss. 2001) (citations omitted).

¶19. Mingo objects to the striking of four African-American veniremen. The first was

struck because he lived in a high-crime area; the second, because she had written a number

of bad checks and had been referred to the district attorney’s bad check unit; the third,

because she failed to indicate that she had a son on probation when asked by the State; and

the fourth, because she had a written bad checks and had been referred to the district

7
attorney’s bad check unit, and because she had a friend or close relative who was being

prosecuted by the district attorney.

¶20. Each of these reasons has been recognized by this Court as race-neutral. See, e.g.,

Snow v. State, 800 So. 2d 472, 482 (Miss. 2001) (striking a juror because of prior history of

writing bad checks is race-neutral reason); Baldwin v. State, 784 So. 2d 148, 155 (Miss.

2001) (living in a high crime neighborhood constitutes a valid race-neutral reason); Magee

v. State, 720 So. 2d 186, 190 (Miss. 1998) (striking juror because a family member had been

convicted or charged with a crime is a valid race-neutral reason); Lockett v. State, 517 So.2d

1346 (Miss. 1987) (articulating a non-exhaustive list of race-neutral justifications). Nothing

in the record indicates that the State’s use of peremptory strikes against veniremen was

pretextual or discriminatory. Moreover, three African-American veniremen were seated on

the jury.

¶21. This claim is without merit.

(5) Motion to Suppress the Video of the Victim’s Statement to Police

¶22. Mingo claims that the admission of the video of victim’s statement to the police

violated the confrontation clause of Sixth Amendment. After the victim testified, the State

called the interviewing officer to the stand. During his testimony, the State moved to admit

the video of the victim’s statement. The trial court denied the State’s motion, finding that

video did not meet any of the exceptions to the hearsay rule under M.R.E. 802. During cross-

examination, defense counsel implied that the tape had been fabricated. While conducting

redirect examination of the interviewing officer, the State again moved to admit the tape as

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a prior consistent statement under M.R.E. 801(d)(1)(B) in rebuttal to defense counsel’s

inferences. The trial court granted this motion.

¶23. Mingo did not object to the introduction of the video as a violation of the

confrontation clause at the trial level. The constitutional right of confrontation, like other

constitutional rights, is forfeited if it is not asserted at the trial level. Rogers v. State, 928

So. 2d 831, 838 (Miss. 2006); see also Stockstill v. State, 854 So. 2d 1017, 1023 (Miss.

2003); Ellis v. Ellis, 651 So. 2d 1068, 1073 (Miss. 1995). Because Mingo did not claim a

constitutional violation in the trial court, he is procedurally barred from doing so here.

¶24. Even if Mingo had properly preserved the issue for appeal, his claim is without merit.

The victim testified at the trial, and Mingo had the opportunity to extensively cross-examine

him; therefore his right to confront witnesses against him was not violated. Mingo’s reliance

on Offor v. Scott, 72 F.3d 30 (5th Cir. 1995), is misplaced. There, the videotaped statement

was the first piece of evidence offered by the prosecution and was offered as direct evidence

of Offor’s guilt. Id. at 31, 33. The victim did not testify and was not cross-examined. The

case before this Court is clearly distinguishable. The video in this case was not offered as

direct evidence, and the witness testified and was cross-examined. The admission of the

videotape did not violate the confrontation clause.

¶25. This claim is without merit.

(6) Exclusion of Proposed Expert Witness

¶26. The day before the trial began, Mingo provided the prosecution with the name of a

proposed expert witness on voice training and a lay witness who was to testify to Mingo’s

whereabouts on one of the dates referenced in the indictment. The State moved to have the

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expert excluded. The trial judge granted the motion to exclude the expert witness, but

admitted the testimony of the lay witness.

¶27. The standard of review regarding admission or exclusion of evidence is abuse of

discretion. Parks, 884 So. 2d at 742. We will not reverse the trial court’s evidentiary ruling

unless the error adversely affects a substantial right of a party. Id. It is appropriate to

exclude a witness’s testimony where the failure to present the witness in a timely manner is

willful and motivated by a desire to obtain a tactical advantage that would minimize the

effectiveness of cross-examination and the ability to adduce rebuttal evidence. Beckwith v.

State, 707 So. 2d 547, 575 (Miss. 1997).

¶28. The trial judge carefully considered Mingo’s proffers and, relying on Beckwith,

found that the belated presentation of Mingo’s expert was motivated by a desire to obtain a

tactical advantage. On the same motion, he accepted the lay witness with the understanding

that the State would have an opportunity to interview her before the trial commenced. The

trial judge did not abuse his discretion.

¶29. This claim is without merit.

(7) Admission of an Eight Millimeter Videotape

¶30. Mingo makes two claims concerning the admission of an eight millimeter videotape

seized from his home that depicted a young male engaged in a sexually explicit act. First,

he claims that the State committed a discovery violation by failing to provide him with a

copy of the tape. Second, Mingo claims that the trial court erred in admitting the tape

because it was evidence of prior bad acts in violation of M.R.E. 404(b). The standard of

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review for the rulings of a trial court of evidence and discovery violations is abuse of

discretion. Flora, 925 So. 2d at 819.

¶31. Mingo is disingenuous in claiming that the State erred by denying him a copy of the

8 millimeter videotape. In the pre-trial hearings on the admissibility of the videotape, the

State specifically inquired whether Mingo possessed a copy of the videotape from a related

and contemporaneous charge, and Mingo confirmed that he did. When the videotape was

admitted during the State’s rebuttal examination, Mingo reversed himself and stated that he

did not possess a copy of it. The State maintained that the videotape was in the possession

of the police, and that they would provide a copy if Mingo requested it. The trial judge

agreed that videotape was available to Mingo. Although there is some dispute whether

Mingo did in fact request a copy of the videotape, the record demonstrates that the trial judge

was within his discretion in finding that Mingo was not impermissibly denied a copy.

¶32. Mingo is similarly mistaken in claiming that the videotape was admitted as evidence

of prior bad acts under M.R.E. 404(b). When the State first moved to introduce the videotape

as a part of its case-in-chief, the trial judge found it inadmissible under M.R.E. 404(b) and

emphasized that the tape could not be used to prove that Mingo had homosexual tendencies

because Mingo had not denied that he did. Cf. Florence v. State, 755 So. 2d 1065, 1071

(Miss. 2000) (finding that sexually explicit homosexual magazines and videotapes were

admissible in a sexual battery case when the defendant had “opened the door” to such

evidence by denying that he was a homosexual). However, the court recognized that the

videotape might be admissible under an exception to M.R.E. 404(b) on the State’s rebuttal.

The trial judge ultimately admitted the videotape as an exception to M.R.E. 404(b) to show

11
intent and absence of mistake because Mingo claimed on direct examination that, if he had

touched the victim inappropriately, he had done so accidentally. Kolb v. State, 542 So. 2d

265, 269 (Miss. 1989) (evidence of particular sexual urges was admissible to rebut a claim

of accident).

¶33. The record shows that the trial judge was acutely aware of the potentially prejudicial

character of the videotape and was careful to admit the tape only to rebut the claim of

accident. He allowed no questioning about the age of the young male in the video, did not

allow the State to mention the related charges against Mingo for possession of the videotape,

and gave a limiting instruction to the jury on the use of the evidence. On balance, the trial

judge acted prudently and within his discretion.

¶34. Because Mingo was not impermissibly denied access to the videotape and because the

videotape was not admitted as evidence of prior bad acts, this claim is without merit.

(8) Admission of Testimony of Rebuttal Witnesses

¶35. Mingo contends that the admission of the rebuttal testimony of two witnesses was

erroneous because their names had not been disclosed during discovery.

¶36. Tabitha Pate, an operations officer at the National Bank of Commerce, testified that

her bank cashed a check dated June 16, 2004, from the victim’s father to Mingo on June 18,

2004. Her testimony was introduced to rebut Mingo’s claim that he had not given the victim

a lesson on June 16, one of the dates in the indictment.

¶37. Sara Richert, a licensed practicing nurse, testified to the location of the diaphragm

on the human body. Her testimony was introduced to rebut Mingo’s claim about the location

of the diaphragm.

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¶38. The standard of review regarding admission or exclusion of evidence is abuse of

discretion. Parks v. State, 884 So. 2d 738, 742 (Miss. 2004) (citing Ladnier v. State, 878

So. 2d 926 (Miss. 2004)). In addition, the State has no duty to provide the defense with the

names of possible rebuttal witnesses, unless the State has requested notice of an alibi defense.

Smith v. State, 724 So. 2d 280, 320 (Miss. 1998); Deal v. State, 589 So. 2d 1257, 1259

(Miss. 1991). The testimony of the rebuttal witnesses was introduced to rebut specific facts

alleged by Mingo during direct and cross-examination. The trial judge did not abuse his

discretion in admitting the testimony.

(9) Denial of Change of Venue

¶39. Mingo claims that the trial court improperly denied his motion for a change of venue.

Mingo did not move for a change of venue during voir dire; instead, he notified the court of

his motion during his own case-in-chief. He argued that given the alleged bias of the trial

judge, the media coverage of his trial, a defense witness’ concerns for her safety, and an

allegedly uncooperative police department, the trial court should transfer the trial. The court

found that the motion was untimely and denied it.

¶40. The decision to grant the venue change is in the sound discretion of the trial judge.

Gray v. State, 799 So. 2d 53, 62 (Miss. 2001). We will not disturb the ruling of the lower

court where the trial judge did not abuse his discretion in denying the change of venue

motion. Id. It is also well accepted that an application for a change of venue must strictly

conform to the statutory requirements of Miss. Code Ann. § 99-15-35 (Rev. 2000) which

requires that the motion be in writing, and supported by the affidavits of two or more credible

persons. Baldwin v. State, 732 So.2d 236, 241 (Miss. 1999). Change of venue motions have

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been properly denied where they were not supported by affidavits of two or more credible

persons. Gilliard v. State, 428 So. 2d 576, 579 (Miss. 1983), overruled on other grounds,

Willie v. State, 585 So. 2d 660 (Miss. 1991).

¶41. Mingo’s motion is both procedurally barred and substantively without merit. Mingo’s

motion was not in writing, was not supported by the affidavits of two or more credible

persons, and was therefore procedurally barred. In addition, the trial court found that the

allegations of judicial bias were unfounded, that the sheriff’s department had not been

uncooperative, that third-hand evidence of threats against one of Mingo’s witnesses was

inadmissible hearsay, and that the jury had affirmed during voir dire testimony that media

coverage of Mingo’s trial would not affect their impartiality. On review of the record, each

of the trial court’s determinations was supported by ample credible evidence.

¶42. This claim is without merit.

(10) Motion for Recusal

¶43. Late in the trial, during the defense’s case-in-chief, Mingo made a motion for the trial

judge to recuse himself, which was denied. Mingo argues that the denial of the motion was

error because: (a) the trial judge ruled against Mingo on a number of motions, including

denying the motions to suppress and to exclude an untimely witness, and refusing to issue

a subpoena for certain documents, all of which have been discussed above; (b) the judge

strongly censured Mingo’s attorney for attempting to suggest to the jury that the victim was

racist without submitting any evidence to the court on that issue; and (c) the trial judge held

Mingo’s attorney in direct criminal contempt when he refused to continue with the trial.

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¶44. When we review a denial of recusal, we “will look to the whole trial and pass upon

questions on appeal in the light of the completed trial . . . and if we are unable to find that

rulings have been prejudicial to the defendant, we will not reverse.” Brown v. State, 829

So. 2d 93, 99 (Miss. 2002).

(a) Denial of Motions

¶45. The trial judge made a number of rulings against Mingo before and during trial. For

the purposes of recusal, “judicial rulings alone almost never constitute a valid basis for a bias

or partiality motion. . . . Unless the judge abuses this discretion so as to be prejudicial to the

accused, the Court will not reverse this ruling.” Farmer v. State, 770 So. 2d 953, 958 (Miss.

2000).

¶46. Mingo cites no authority to show that adverse rulings by a trial judge indicate bias.

The record contains no indication that the trial judge was unreceptive or dismissive of

Mingo’s arguments. We will not find adverse rulings to demonstrate bias simply because

they are adverse. Finally, we have addressed the rulings on these motions on the merits and

have found that the trial court was within its discretion to deny Mingo’s motions.

(b) Censure by the Trial Judge

¶47. During his cross-examination of the victim, defense counsel asked the victim whether

he had gotten angry at a black student at the academy. The State objected, and the trial judge

excused the jury from the courtroom to hear the parties’ arguments. Defense counsel

conceded that he believed the victim, who is white, had animosity towards Mingo, who is

black, because of his race. The trial judge found that Mingo had not subpoenaed the child

in question, had not suggested that race was a factor during pre-trial discovery, and had not

15
mentioned the issue until he did so in front of the jury. The trial judge further found that the

actions of defense counsel violated rules of reciprocal discovery and threatened to report

defense counsel to the Mississippi Bar if he attempted to bring up the issue without

submitting evidence or adhering to the rules of discovery.

¶48. It is prejudicial error for questions on cross-examination to contain insinuations and

intimations of conduct for which there is no basis in fact. Flowers v. State, 842 So. 2d 531,

553 (Miss. 2003) (citing Walker v. State, 740 So. 2d 873, 884 (Miss. 1999)). Such

questioning without evidentiary basis is inflammatory and extremely prejudicial. Walker,

740 So. 2d at 884. No party should be permitted as a deliberate trial tactic to decide in

advance of trial to withhold a part of his case in chief, but instead attempt to suggest such

evidence in cross-examination of the witnesses for the opposing side. Hosford v. State, 525

So. 2d 789, 791 (Miss. 1988).

¶49. Mingo attempted to interject the issue of race into his case without preparing an

evidentiary foundation for doing so. The trial court was correct in holding Mingo to the rules

of discovery. See Cooper Tire & Rubber Co. v. McGill, 890 So. 2d 859, 864 (Miss. 2004)

(courts have the authority to sanction violations of the rules of discovery under both their

inherent authority and Miss R. Civ. P. 37(b)). Mingo cites no authority in support of his

claim that the trial judge’s censure constituted bias. The claim that the trial judge’s censure

constituted impermissible bias is without merit.

(c) Finding of Direct Criminal Contempt

¶50. Our approach to contempt matters is well settled:

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 Generally speaking, contempt matters are committed to
the substantial discretion of the trial court which, by institutional
circumstance and both temporal and visual proximity, is
infinitely more competent to decide the matter than the Supreme
Court. When dealing with contempt matters, we must first
determine whether the alleged contempt is either civil or
criminal in nature. If the contempt is civil, the proper standard
utilized for review is the manifest error rule. If the contempt is
criminal, then we will proceed ab initio and will determine on
the record whether the person in contempt is guilty of contempt
beyond a reasonable doubt. If the primary purpose of the
contempt order is to enforce the rights of private party litigants
or enforce compliance with a court order, then the contempt is
civil. . . . Criminal contempt penalties, on the other hand, are
designed to punish the contemnor for disobedience of a court
order; punishment is for past offenses and does not terminate
upon compliance with the court order.

In re Williamson, 838 So. 2d 226, 237 (Miss. 2002) (citations omitted). Contempt may be

direct, occurring in the presence of the court, or indirect, occurring outside the presence of

the court. Id. at 237. Direct criminal contempt includes words or actions before the court

that tend to embarrass the court or prevent the orderly administration of justice. Jordan v.

State, 216 Miss. 542, 62 So.2d 886, 888 (1953).

¶51. A summary of the events preceding the trial judge’s finding of criminal contempt is

warranted.2 On the morning of May 24, 2004, the court convened out of the presence of the

jury to consider proposed jury instructions. Mingo did not appear for trial as required, and

Mingo’s attorney admitted that he told Mingo not to come to court. The State moved for a

judgment nisi against Mingo, which the trial court granted. Mingo was brought to court later

that morning.

2
Testimony relative to the contempt ruling covers approximately 63 pages of the
record immediately preceding the trial judge’s finding of direct criminal contempt.

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¶52. After Mingo’s arrival, his attorney asked the judge to consider alleged threats that had

been made against Mingo and his witnesses. Mingo’s attorney alleged that unknown third

persons had told a witness that they had heard the victim and a friend talk about hurting

Mingo, and the same witness had been told that another unknown third person had threatened

to burn down her house. Based on these allegations, Mingo’s attorney moved for a mistrial,

for a change of venue, and for the trial judge to recuse himself because of bias. The trial

judge denied each of the motions, noting that the statements were inadmissible hearsay, and

that he would ask the police to investigate any allegations of witness intimidation. He further

noted that he had gone to great lengths to accommodate Mingo’s attorney, including

directing the county sheriff to serve subpoenas for the defense, and that, consequently, the

charge of his being biased against Mingo was without merit. Mingo’s attorney argued that

he was not prepared to consider proposed jury instructions, and the trial judge called a noon

recess to allow Mingo’s attorney to review them.

¶53. When the court reconvened that afternoon, Mingo’s attorney announced that he was

unwilling to continue representing his client. The State noted that one of Mingo’s witnesses

refused to speak to the State’s investigators, and Mingo’s attorney admitted that he had told

the witness not to speak to the investigator. Mingo’s attorney again alleged that threats had

been made against his witnesses and his client, and that these threats warranted a mistrial.

He again stated his intent to withdraw from the trial. The trial judge found the attorney’s

motion to withdraw was not well taken. Mingo’s attorney again refused to continue his

representation, and the trial judge called a recess and contacted the Mississippi Bar. After

the court reconvened, Mingo’s attorney again alleged that his client and witnesses had been

18
threatened. The trial judge offered to call the Highway Patrol to investigate the allegations.

Mingo’s attorney again requested a mistrial or a continuance and a change of venue in the

alternative. After the trial court refused the motion, the following exchange occurred:

BY THE COURT: Now, I propose to bring the jury out. Do
you have the next witness that you wish to
call?

BY MR. MILLER: No, your Honor, I do not.

Q. So you’re going to rest?

A. No, your Honor, I’m not.

Q. All right. You are telling me then outside of the presence
of the jury that you will not proceed on this case?

A. I cannot help Mr. Mingo at this point, your Honor, and it
is my professional responsibility to announce that to the
court.

Q. Then it is my professional responsibility as the trial judge
and the Circuit Judge in this district and to make sure that
we have the orderly control of cases to have the sheriff’s
deputy stand, and I’m going to find that you are in direct
criminal contempt and you will be taken to jail. I will
recess this matter until nine o’clock tomorrow morning.
If you wish to proceed at that time, I will bring you back
in.

¶54. Defense counsel’s refusal to continue with trial clearly constituted an action tending

to prevent the orderly administration of justice. The trial judge’s decision to hold counsel

in direct criminal contempt, while serious, was within his discretion. Reviewing the record,

we find no bias or impropriety by the trial judge in his rulings.

¶55. This claim is without merit.

(11) Sufficiency of the Evidence

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¶56. Mingo claims that the trial court erred in denying a directed verdict because the

evidence was insufficient to support a conviction. In considering whether the evidence is

sufficient to sustain a conviction in the face of a motion for judgment notwithstanding the

verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that

accused committed the act charged and that he did so under such circumstances that every

element of the offense existed. Bush v. State, 895 So. 2d 836, 843 (Miss. 2005). This

inquiry does not require a court to ask itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Id. If there

is sufficient evidence to support a guilty verdict, the motion for a directed verdict must be

overruled. May v. State, 460 So. 2d 778, 781 (Miss. 1984).

¶57. Mingo falls far short of his burden of showing that the character and weight of the

evidence was such that no reasonable juror could have found Mingo guilty. The State

proffered direct evidence in the form of the victim’s testimony and Mingo’s statement to

police. Despite Mingo’s assertions to the contrary, such evidence is not circumstantial.

Garrett v. State, 921 So. 2d 288, 291-92 (Miss. 2006). Mingo also alleges inconsistencies

between the victim’s testimony and that of other witnesses. However, determinations of

witness credibility are matters for a jury to decide. Hughes v. State, 724 So. 2d 893, 896

(Miss. 1998). Though no direct evidence was presented that Mingo touched the victim

specifically to satisfy his lustful desires, this Court has held that such recognition may arise

20
from the circumstances of the encounter itself. Ladnier v. State, 878 So. 2d 926, 930 (Miss.

2004) (citing Bradford v. State, 736 So. 2d 464, 466 (Miss. Ct. App. 1999)).

¶58. Taking all the evidence supporting the verdict as true, together with all reasonable

inferences, it is clear that a reasonable juror could have found Mingo guilty.

¶59. This claim is without merit.

(12) Cruel and Unusual Punishment

¶59. Mingo argues that his three ten-year sentences, to be served consecutively, are

disproportionate to the crime and violate the Eighth Amendment to the United States

Constitution. Mingo was convicted under Miss. Code Ann. § 97-5-23 (2006), and the judge

ordered that the sentences run consecutively under Miss. Code Ann. § 99-19-21 (2006).

¶60. As a general rule, “when sentences are within the limits of the statute, the imposition

of such sentences is within the sound discretion of the trial court and this Court will not

reverse them. . . . Likewise, we have held that providing punishment for crime is a function

of the legislature, and, unless the punishment specified by statute constitutes cruel and

unusual treatment, it will not be disturbed by the judiciary.” Presley v. State, 474 So. 2d 612,

620 (Miss. 1985). We review sentences in light of the factors articulated by the United States

Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983),

only when a threshold comparison of the crime committed to the sentence imposed leads to

an inference of “gross disproportionality.” Nichols v. State, 826 So. 2d 1288, 1290 (Miss.

2002). Generally, sentences that do not exceed the maximum term allowed by statute will

not be considered grossly disproportionate and will not be disturbed on appeal. Fleming v.

State, 604 So. 2d 280, 302-03 (Miss. 1992). Finally, this State recognizes that it is within

21
the trial court’s discretion whether multiple sentences will run concurrently or consecutively

Miss. Code Ann. § 99-19-21(1).3

¶61. The sentences imposed by the trial judge in the present case are within the limits set

by statute, and the decision to have the sentences run consecutively was within the sound

discretion of the judge. Because we find no abuse of discretion in the trial court’s decision,

we will not disturb his ruling on appeal.

¶62. This claim is without merit.

CONCLUSION

¶63. For the reasons set forth above, we affirm the circuit court’s judgment.

¶64. COUNT I: CONVICTION OF FONDLING OF A CHILD FOR LUSTFUL
PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE
IS TO RUN CONSECUTIVELY WITH THE SENTENCES IMPOSED IN COUNTS
II & III FOR A TOTAL OF THIRTY (30) YEARS IN THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS FOLLOWED BY FIVE (5) YEARS OF POST
RELEASE SUPERVISION. COUNT II: CONVICTION OF FONDLING OF A
CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. SAID SENTENCE IS TO RUN CONSECUTIVELY WITH THE
SENTENCES IMPOSED IN COUNTS I & III FOR A TOTAL OF THIRTY (30)
YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOLLOWED
BY FIVE (5) YEARS OF POST RELEASE SUPERVISION. COUNT III:
CONVICTION OF FONDLING OF A CHILD FOR LUSTFUL PURPOSES AND
SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE IS TO RUN
CONSECUTIVELY WITH THE SENTENCES IMPOSED IN COUNTS I & II FOR
A TOTAL OF THIRTY (30) YEARS IN THE MISSISSIPPI DEPARTMENT OF

3
Miss. Code Ann. § 99-19-21(1): “When a person is sentenced to imprisonment on
two (2) or more convictions, the imprisonment on the second, or each subsequent conviction
shall, in the discretion of the court, commence either at the termination of the imprisonment
for the preceding conviction or run concurrently with the preceding conviction.”

22
CORRECTIONS FOLLOWED BY FIVE (5) YEARS OF POST RELEASE
SUPERVISION.

SMITH, C.J., COBB, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART
W ITH O UT SEPA RA TE W R ITT EN O PIN IO N . E A SLEY , J., N OT
PARTICIPATING.

23