IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-KA-01271-COA SERGIO SEBASTIAN GONZ A LEZ A/K/A SEBASTIAN GONZ ALES A/K/A SERGIO S. GONZ ALEZ A/K/A SERGIO SEBASTAIN GONZ ALEZ APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 07/27/2016 TRIAL JUDGE: HON. JAMES SETH ANDREW POUNDS COURT FROM W HICH APPEALED: PONTOTOC COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PATRICK M. RAND ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER DISTRICT ATTORNEY: J. TRENT KELLY NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 11/28/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., FAIR AND WESTBROOKS, JJ. FAIR, J., FOR THE COURT: ¶1. S e r g i o Sebastian Gonzalez was convicted of f elony a ggravated as s a u l t a n d w a s sentenced to serve twenty y ears in the custody of the Mississippi Departm ent of Corrections. Gonzalez appeals, c laim i n g that t he trial court com m itted reversible error by allowing the prosecution to enter a m edical screening f orm i nto evidence. Finding no abuse of discretion or reversible error, we af

f i rm . ¶2. G o n z a l e z a n d Gina R odriguez were m arried in 2010. By 2014, the cou p l e h a d

s e p a rated and were contem plating divorce. On A ugust 9 , 2014, G onzalez went to G i n a ’ shouse in violation of a protective order. Upon entering the hom e, h e s a w A ndres Gonzalez

sitting o n the couch in a sta t e o f u ndress. Gina and Andres began s eeing each other while Gina was still living with Gonzalez. ¶3. Gonzalez testif

ied t hat when he walked i n, A ndres stated, “Here I a m . Do y ou want

som ething f

rom m e? ” Gonzalez i s 5' 3" tall, and weighs 136 pounds , w hile Andres is 5' 8" tall, and weighs approxim ately 185 pounds. G onzalez then w ent to t he kitchen and grabbed

two kitchen knives. A struggle f o llowed, and Andres suf

f ered stab wounds to the right side of his h ead, his s ide, his back, and several lacerations to his arm s. H e a l so s uf f ered a collapsed lung. A s a result, Andres was airlif ted to North Mississippi M edical C enter. Four day s af t e r t h e i n cident, G onzalez voluntarily t urned him self i n to t he authorities and was charged with aggravated assault. ¶4. Gonzalez t estif

ied in his own def

ense. O n c r o s s-exam ination, he claim ed that he attacked Andres i n self

-def ense and had been l ef

t with bitem ark s on his arm s and bruises
f rom the struggle

– t hough he adm itted they had been inf licted af ter he stabbed Andres. The prosecution called as r ebuttal witnesses L y n n Parrish and T y ler R eed, the j ailers who prepared Gonzalez’s boo k i n g p a perwork at the jail. Parrish, whose testim ony was corroborated by Reed, t estif ied that while booking G onzalez i nto jail, she did not observe any bitem a rks or bruising. T he prosecution prese n ted a m edical s creening f orm , which was

u n s i g n e d , undated, a nd the m ajority of it lef t blank. Parrish testif

ied that she had a s k e d Gonzalez the questions c ontained in the f orm , b u t because he answered them all in the

2negative, and b e c a u s e s he did not observe any cuts or bruises o n him , she did not m ark

any thing on the m edical f

orm . DISCUSSION
1. Discovery Violation ¶5. Gonzalez conten d s t h e me d i c al f orm was not produced to def ense counsel during discovery , and theref

ore, s hould not have b een entered into e v i d e nce a t trial. W hen reviewing whether a discovery violation has occurred, it m ust f irst be noted that the decision

to adm it o r exclude e vidence is lef t to the trial court’s discretion. Carpenter v. S tate , 132 So. 3d 1053, 1 055 (¶5) (Miss. 2013). The sam e standard applies t o violations of t he Mississippi Unif orm Rules of Circuit and County Court Pra c t i c e 9.04 1 and to a trial court’s denial of

m otions f or continuance or m istrial. Payton v. State , 8 97 So. 2d 921, 942 ( ¶67) (Miss. 2003); see also Hurst v. State , 195 So. 3d 736, 744 (¶20) (Miss. 2016). ¶6. Rule 9.04 provides that i f the prosecution attem pts to introduce e vidence that has not been disclosed according to the rule and the def ense objects, the court shall:
1. Grant the def

ense a reasonable opportunity to intervie w t h e n e wly discovered witness, to exam ine the n ewly produced docum e nts, photographs or other evidence; and
2. If , af ter such opportunity , the def ense claim s unf

a ir surprise or un d u e prejudice and seeks a continuance o r m istrial, the court shall, in the interest of justice and absent unusual circum stances, exclude the evidence or grant a

1 T h e U R C C C ru les related to crim in al p ro ced u re w ere s u p ersed ed b y t h e M ississip p i R u les o f C rim in al P ro c ed u re . H o w e v e r th e f o rm er ru les a

p p ly h e re b ecau se th ey w ere in ef f ect at th e tim e o f

th e p ro ceed in g s in th is case.

3continuance f o r a period of tim e reasonably necessary f or the d ef ense to m eet the non-disclosed evidence or grant a m istrial.
3. T he c ourt shall not be r equired to grant either a continuance or a m istrial f or such a discovery violation if the prosecution withdraws its ef f orts to introduce such evidence. URCCC 9.04(I). ¶7. This Court has held that w hen f aced with a discovery violation, the trial c ourt should
f ollow the procedure set out in B ox v. State : 2 1) Upon def

e nse objection, t he trial court s h o u l d give the def endant a reasonable o pportunity to becom e f am iliar with the undisclosed ev idence by interviewing the witness inspecting the evidence, etc. 2) If , af ter this opportunity f

or f am iliarization, the def

endant b elieves he m ay be prejudiced by lack of opportunity to prepare to m eet the evidence, he m ust request a continuance. Failure to do so constitutes a waiver of the issue. The record dem o nstrates that def ense counsel objected t o the m edical f o rm being received into evidence:
STATE: Your Honor, we w o u l d move at this tim e t hat S tate’s

Exhibit S-16 be received into evidence.
THE COURT: Any

objection?
MR. RAND: Your Honor, I do of f er an objection. That docum ent was not provided during the course of discovery

. Certainly i t ’ s b e en available since t he b ooking date of August 9 , 2014. Theref

ore, we object to it being untim e ly

. THE COURT: State?

2 S ee B o x v. S ta te , 4 3 7 S o . 2 d 1 9 (M iss. 1 9 8 3 )

. 4STATE: Your Ho n o r , this is a r ebuttal witness. Up u ntil now, there’s been no indication he was claim ing injuries.
THE COURT: I c o n c u r . T h e o b j e c t ion will be overruled. I t ’ l l b e received as S-16. It is rebuttal evidence. The record does not, however, ref lect whether the def

ense had a reasonable opportunity to interview Parrish d

uring this e xchange as required by Rule 9.04 or whether d ef ense counsel

was g iven an opportunity to review the blank m edical f orm bef ore t he proceedings resum ed. Regardless, def

ense c ounsel did not claim unf air surprise o r seek a continuance or m istrial. This Court has previously h e l d t hat “it is the responsibility of def ense counsel to request a continuance if unf

airly surprised and, i f r e q u e s ted, the trial court should alm ost certainly grant it.” W

ooten v. State , 811 So. 2d 355, 366 (¶30) (Miss. Ct. App. 2 001). Be c a u s e Gonzalez f

ailed to ask f

or a continuance, this issue has been waived. ¶8. Procedural bar n otwithstanding, any error o f the m edical f orm ’s adm i ssion would be harm less. 3 A ndres and Gina both testif ied that G onzalez attack e d Andres. F urther, both jailers testif

ied that Gonzalez arrived at jail with no injuries.
2. Medical Form as Im proper Rebuttal Evidence ¶9. Gonzalez next claim s that h e was “am bushed” with the m edical f orm on rebuttal. He
argues that the m edical f

orm was i m

proper rebuttal evidence and should have b een presented in the State’s case-in-chief

.

3 S m ith v. S ta te , 1 3 6 S o . 3 d 4 2 4 , 4 3 5 (¶2 6 ) (M iss. 2 0 1 4 ) (citin g Y o u n g v. S ta te , 9 9 S o . 3 d 1 5 9 , 1 6 5 ( ¶2 0 ) (M iss. 2 0 1 2 ) ) ( “ E r r o r s in th e ad m issio n o f e v id en ce are su b j ect to a h arm l ess-erro r an aly sis.”). 5¶10. The “purpose of rebuttal testim ony is t o e x p l a i n , r e p e l , c o u n t e r act or disprove

evidence b y the adverse p arty .” Towner v
. State , 837 So. 2d 221, 226 (¶17) (Miss. Ct. App. 2003) (quoting W

illiams v. State , 539 So. 2d 1049, 1051 (Miss. 1989)). The trial court has discretion to determ ine whether evidence i s pro p e r l y a d mi tted as rebuttal evidence. Id

. (citing W akefield v. Puckett , 584 So. 2d 1266, 1268 (Miss. 1991)). ¶11. Gonzalez never objected to the m edical f orm a s im proper rebuttal evidence, so he is barred f rom raising thi s i s sue on appeal. See Dunaway v. State , 9 19 So. 2d 67, 74 (¶23) (Miss. Ct. App. 2005). Even so, the m edical f orm was proper rebuttal evidence. During his case-in-chief

, Gonzalez testif

i ed t hat Andres g r a b b e d his neck a n d hands and pushed h im toward t he wall. He also stated t hat Andres bit h is hands. This testim ony prom pted the State

to a sk about Gonzalez’s alleged injuries on cross-exam ination. Gonzalez testif ied t h at he suf f e red bruises and a bite m ark on his arm . On rebuttal, the State called the two jailers as witnesses, which led t o the entry of t he m edical f orm . W e f

ind that the State properly used its rebuttal to disprove Gonzalez’s testim ony that he suf f ered i njuries f

rom the altercation. Accordingly , we f

ind no m erit to Gonzalez’s argum ent. 3. Medical Form ’s Adm ission into Evidence ¶12. Finally , Gonzalez claim s that “because the [ m ]edical [ f ]orm was not actually f

illed in

or otherwise com

p leted, it should never have been adm itted into evidence f or the jury to use as substantive proof that [ he] did not sustain any injuries.” ¶13. This issue was never r aised in the t rial c ourt. Our suprem e court has repeatedly held

6that “ an appellant m ust present to us a record suf f icient to show the occurrence of the error he asserts and a lso t hat the m atter was properly presented to t h e t r i a l c ourt and tim ely preserved.” Byrom v. State , 863 So. 2d 836, 853 (¶35) (Miss. 2003) (quoting Acker v. State , 797 S o. 2d 966, 967 (¶18) (Miss. 2001)). Further, G onzalez cites n o legal authority f or his
argum ent. “Failure t o cite r elevant a uthority obvia t es the a

ppellate c ourt’s obligation to review such issues.” I

d

. (quoting Simmons v. State , 805 So. 2d 452, 487 (¶90) (Miss. 2001)). Thus, we need not address Gonzalez’s f inal argum ent. ¶14. AFFIRMED. LEE, C .J., I RVING AND GRIFFIS, P.JJ., B A R N E S , CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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