IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2013-KA-02126-COA TIMOTHY ALLEN MCCOY A/K/A TIMOTHY MCCOY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/11/2013 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM W HICH APPEALED: NEW TON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES JUSTIN TAYLOR COOK TIMOTHY ALLEN MCCOY (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: MARK SHELDON DUNCAN NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNTS I-IV, SEXUAL BATTERY, AND COUNT V, EXPOSING ANOTHER TO HIV, AND SENTENCED TO THIRTY YEARS FOR COUNT I, TW ENTYFIVE YEARS FOR COUNT II, TEN YEARS FOR COUNT III, TEN YEARS FOR COUNT IV, AND TEN YEARS FOR COUNT V, W I TH THE SENTENCES IN COUNTS I-IV TO RUN CONSECUTIVELY AND THE SENTENCE IN COUNT V TO RUN CONCURRENTLY W ITH THE SENTENCES IN COUNTS I-IV, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND ORDERED TO PAY A $10,000 FINE AND TO REGISTER AS A SEX OFFENDER DISPOSITION: AFFIRMED - 04/19/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:EN BANC.

GREENLEE, J., FOR THE COURT: ¶1. Tim othy McCoy appe a l s h i s c onvictions of f our counts of sexual battery and one

count of exposing another t o hum an-im m unodefi ciency virus (HIV) and sentence of seventy

f ive y ears. McCoy ’ s appellate counsel takes no issue on appeal with McCoy ’s convictions. Rather, counsel a rgues we should rem and this m atter f or resentencing b ecause t he trial judge expressed bias during sentencing. McCoy has f iled a pro se supplem ental brief , a lso arguing the judge wa s b i a s e d and the sentence should be reversed. In addition, McCoy argues his trial counsel was i nef

f e ctive, the e vidence was insuf f icient to s upport the verdict, and the sentence was disproportionate to the crim es charged. W e f ind no error and af

f i rm . FACTS ¶2. McCoy and G.G. 1 m et online throug h a s o c i a l-networking website f or hom osexual

m en. I n 2 012, they decided to m eet in person. M cCoy t estif ied h e was f

orty -one y ears old

at the tim e. G.G. testif

ied he was f

if teen. G.G. gave McCoy t he address to h is f ather’s house in Newton County

near Decatur, Mississippi. McCoy drove to the house at approxim ately
2 a.m . G.G. sneaked out and got in McCoy ’s car. McCoy then d rove G.G. to a secluded spot on a dirt road about two m iles away

. ¶3. G.G. testif

ied that they had discussed m eeting f or sex while c hatting online, but that they did not discuss any

thing in t he car while McCoy was driving. G.G. t estif ied that McCoy parked the car, and he and McCoy perf orm e d oral and a nal sex on each other. McCoy then

1 We h av e su b stitu t ed in itials f o r th e m i n o r

v ictim ’s n am e to p ro tect h i s id en tity

. 2took him

hom e. G.G. testif

ied the encounter lasted less t han an hour and occurred in m idApril 2012, although G.G. could not rem em ber the s pecif

i c d ate. G.G. testif

ied that he had told McCoy he w a s f

i f t e e n i n their online conversations p rior t o the encounter. G.G. also testif i ed that McCoy denied h aving any sexually transm i tted d iseases, and that condom s were
not used or m entioned. G.G. testif ied McCoy told h im h e was thirty -f our, lived in Meridian, Mississippi, and worked at W a lm art. G.G. testif ied McCoy ha d s e n t h im nude pictures of him self prior to their m eeting. At the tim e of the encounter, G.G. lived with his m other and stepf ather and was visiting his f ather f or the weekend in Newton County

. ¶4. M c C o y a d mi t ted that the encounter o ccurred. However, he testif i ed that h e f

i r s t

com m unicated with G.G. online on July 22, 2012, a nd the encounter took place on Saturday , July 28, 2 012, shortly af

ter G .G.’s sixte e n t h b i r t hday on July 12. McCoy t estif ied that he drove to G.G.’s f

ather’s house at 2 a.m . to pick up G.G. McCoy t estif i e d t h a t o n c e they reached t h e s e c luded spot on the dirt road, h e told G.G. he was HIV positive. McCoy testif i ed t hat a lthough he was hesitant at f irst, G.G. agreed to the s exual a cts with the use of

a condom

. McCoy stated he perf o rm ed oral sex on G.G. and then took him hom e . McCoy testif i ed G.G. told h im he w as eighteen. He denied telling G.G. he was thirty

- f our, lived in Meridian, or worked at W alm art. ¶5. G.G.’s m other testif ied t ha t s h e b e c am e concerned about G.G.’s behavior, and, in May 2012, began looking at his phone and phone records. She discovered naked pictures of m en and sexually

explicit text m essages. G.G.’s parents turned over t his inf orm a tion to police.
On Septem

ber 10, 2012, a warrant was issued f or McCoy ’s arrest. Investigator Brian Kelly

3and Deputy Sam m y Steven s w i t h the Newton County Sherif f ’s Departm ent interviewed
M c C o y o n S e p tem

ber 11, 2012. McCoy s igned a w aiver of rights and agreed to give a voluntary statem e nt. B oth Inv e s t i g a tor Kelly and Deputy Stevens t estif ied t hat McCoy adm itted t hat he m et G.G. online, that he drove to G.G.’s f ather’s hom e a t 2 a.m . to pick up G.G., t hat he drove G.G. to a s ecluded spot o n a dirt road, that he and G.G. exchanged oral and anal sex, that he was HIV positive, and that condom s were n ot used. Investigator Kelly testif i ed McCoy

stated he lived in Philadelphia, Mississippi. ¶6. At the conclusion of trial h eld on April 9, 2013, t he jury co n v i cted McCoy of f our
counts of sexual battery ( Counts I -IV) and on e c o u n t o f e x posing G.G. to HIV (Count V).
H e was sentenced to thirty y e ars on Count I, twenty -f i ve y ears on Count II, ten y ears o n Count III, ten y ears on Count IV, and ten y ears on Count V. The sentences in Counts I-IV

were ordered t o run consecutively , and the sentence in C ount V was or d ered to run concurrently with the sentences i n Counts I-IV, f o r a total of seventy -f

ive y ears to serve. He was ordered to pay

a $10,000 f

ine and to register as a sex of f ender. ¶7. McCoy ’s posttrial m otions were denied. He now appeals.
DISCUSSION
I. Alleged Bias in Sentencing ¶8. McCoy a rgues that the trial judge expressed a perso n a l prejudice against McCoy ’s sexual orientation, a nd that t his alleged prejudice resulted i n an unduly harsh sentence. He seeks rem and f

or resentencing bef

ore a dif f erent judge. ¶9. The M ississippi Cod e o f J u d i c i a l C o n duct, Canon 3(B)(5), s tates: “A judge shall

4perf

orm judicial duties without bias or prejudice. A judge shall not, in the perf orm ance of judicial duties, b y w ords or conduct m anif est bias or prejudice, including but not lim ited to bias or prejudice based upon . . . sexual orientation.” A judge is presum ed to be qualif ied and unbiased. Jones v. State , 841 S o. 2d 115, 135 (¶60) ( Miss. 2003). “[ T]his presum ption m ay only be overcom e by evidence w hich produces a reasonable doubt about the validity of the
presum ption.” Id. ¶10. The f

ollow exchange took place during sentencing:
BY THE COURT:

. . . W ell, Tim othy A llen M c C o y , I c o n s i d e r m y s e l f a

nor ma l person, and I don’t understand f u lly what y ou have—y ou y ourself have testif ied i n t ha t y ou are hom osexual, that y ou a re a t t r acted to s om eone f or phy sical activities. I want y ou to tell m e why is i t t h a t y ou as a f orty -one y ear old m an was [ sic] attracted t o a f if teen y ear old boy

f or sexual activity ? BY [ McCOY]: At the tim e, sir, I did not know that he was f if teen. BY THE COURT: How old did y ou think he was? BY [ McCOY]: . . . [ H]e said he was eighteen.
BY THE COURT: All right. That is still a m inor child in m y opinion. BY [ McCOY]: Yes, sir, I understand.
BY THE COURT: W hy is it that y ou was [ sic] attracted to him ? BY [ McCOY]: I can’t answer that, sir.

. . . . BY THE COURT: Y o u ’ v e d o n e i t b e f o r e ?

. . . T h i s i s n o t y o u r f i r s t experience? BY [ McCOY]: W ith—

5BY THE COURT: Any one?

BY [ McCOY]: No, it’s not m y f i rst experience with any one, no, sir.

. . . . BY THE COURT: All right. All right. You know that that ty pe of activity w a s w r ong, did y o u not?

. . . That a f o rty -one y ear ol d ma n should not have sex with a person, a m ale perso n , who i s either f

if t een or eighteen?

. . . [ Y]ou k new it was wrong to have sex with an eighteen y ear old person or a f if teen y ear old person, did y ou not? BY [ McCOY]: Yes, sir.
BY THE COURT: W hy did y ou do it? BY [ McCOY]: I d on’t [ si c ] k n o w a t t h e t i m e, sir.

. . . A ctually , Your

Honor, I had a I guess drug problem at t h e tim e . I was on Lortab[ ]. BY THE COURT: That’s an excuse not a justif i cation . . . .

. . . . BY THE COURT: I n . . . r e v i e w i n g y o u r a c t ivities, I r e f e r a g a i n t o t h e sentencing statute, a nd m y thoughts regarding sentences [ are] controlled by the f

act t hat y ou have som e education, including som e e ducation in college, a n d t hat y ou as an adult m an, f

orty -one y ears old, with y o u r b ackground, knowing w hat’s involv e d w i t h y o u having sex with a m i nor person, that y ou joined with that y oung f ellow, not k n o w ing him , and taking him in y our car and drivi n g a short distance to a dirt road with a strange person and having anal sex a nd f

ellatio at a t im e when y ou had H IV, knowing w hat y ou w ere doing, knowing th a t t h is was a m i nor child, soliciting h im to a wrongf ul act, an act t hat shocks the conf

erence [ sic] o f p eople of this country , t hat y ou would do that to a m i nor child, causing that child possibly to l ive a l if

e such as y o u. He will h ave this l if e f or the rem ainder of his lif e. Perhaps, he will becom e a

6person as y ou because h e has had now we know, I know, a s exual e xperience which, if y ou want to call it sexual. He has th a t lif

e. Perhaps, he will not have a job, and perhaps he will be ridiculed and [ i t is] not likely he’ll be accepted in the general society as y ou are not a c cepted in generally accepted [ sic]. He w ill live a lif e in secretion [ sic]. ¶11. The S tate concedes that sexual orientation should not be considered an aggravating f actor during sentencing. However, the S t a t e a rgues the judge’s com m ents were not suf f i cient to overcom e the presum p t i o n that he was unbiased and im partial. W e agree. W h ile a trial judge s hould not express bias or render a decision based on s exual o rientation,

we cannot f

ind such to be t he case here. McCoy speculates that the judge’s c o mme nts suggested bias and resulted in a harsher s e n t e n c e . However, “[ m ]ere speculation is not suf f i cient to raise a reasonable doubt as to t he v alidity o f the presum ption t hat the trial judge was qualif

ied and unbiased.” Farmer v. State , 770 So. 2d 953, 958 (¶13) (Miss. 2000). ¶12. During sentencing, the judge’ s f ocus centered around m

ultiple aggravating f

actors. The judge considered G.G.’s age, f if teen, com p ared to McCoy ’s age, f

orty -one. T he judge also considered G.G.’s testim ony that he told McCoy he was f if teen. A serious aggravating f actor was McCoy ’s adm ission to police that he knew he was HIV positive at t he t im e of the

encounter and that no condom s were used. Another serious aggravating f a ctor was McCoy ’s adm ission that he drove in the m iddle of the night to m eet G.G. a t 2 a.m ., waited in his car

on the street outside G.G.’s f ather’s house, and drove G.G. to a secluded spot o n a dirt road where the sexual encounter occurred

. T h e judge questioned McCoy regarding his prior crim inal activity , which included f our mi s d e m eanor charges or convictions in Georgia

7between 1 990 and 2001, i ncluding enticing a child. McCoy was allowed to speak o n his own

behalf , and he stated he w as s o r r y f o r h i s a c tions. T he judge asked who initiated his and G.G.’s contact online, and McCoy stated G.G. did. ¶13. Our suprem e court has c o n s i s t e n t l y held that “[ s ]o long as the sentence im posed is within the statutory lim its, sentencing is generally a m atter of trial c o u r t d i s c retion. [ The appellate court] w ill not review the sentence[ ] if it is within the lim its prescribed by statute.”
J o n es v. State , 669 So. 2d 1 383, 1393 (Miss. 1995) (citations om itted). McCoy f aced a potential 130-y ear sentence. See Miss. Code Ann. § 97-3-101(2)(b) (Rev. 2 014) (m axim um thirty -y ear sentence f

or s exual b a t t e r y ); Miss. C ode Ann. § 97-27-14(3) (Rev. 2014) (m axim um ten-y ear sentence f

or e xposing another person to HIV). McCoy ’ s seventy -fivey ear sentence was l ess than the statutory m a xim u m . For this reason, coupled with the f act tha t M c C o y h a s not proven the judge was biased or that t he alleged bias a f f ected his sentence, this issue is without m erit.
II. Ineffective Assistance of Counsel ¶14. To prove inef

f ective assistance of counsel, “the def e n dant m ust show that counsel’s perf orm ance w as def

i cient” and “ that the def

icient perf

orm ance prejudiced the def ense.” Strickland v. W

a shington , 466 U.S. 668, 686 (1984). “[ T]here is a s trong presum ption that counsel’s conduct f

alls within the wide range of reasonable prof e ssional assistance.” Id. at 689. Even if counsel’s conduct is d e e med t o be “prof e ssionally u nreasonable,” t he jury ’s verdict m ust stand “if

the error had no ef

f ect on the judgem e nt.” Id. at 691. ¶15. This Court “generally d eclines to address claim s of inef f ective assistance o f

counsel

8on direct appeal, unless the issues are ‘based on f acts f ully apparent f

rom the record.’” Shinn

v. State , 1 7 9 S o . 3 d 1 0 0 6 , 1 009 (¶12) (Miss. 2015) (quoting M .R.A.P. 2 2(b)). “This is because during direct appeals , [ our review] is l im ited to the trial court record in its review of the c l aim , and there m a y be instances i n which insuf f icient evidence exists within the record to address the claim adequately

. ” Id.
A. Failure to Call Alib i Witnesses, Make Certain Objections, and Ask Certain Questions ¶16. McCoy a r g u e s h i s c o u n s el was inef f ective because he f

ailed to call alleged alibi witnesses, f

ailed to m ake objections to various testim ony , and f ailed to ask certain questions

o n cross-exam i nation. McCoy ’s allegations that h is attorney was inef f ective u nder t h i s assignm ent of error “are based on f acts n ot f ully apparent f

rom the record.” Sandlin v. State , 156 So. 3 d 813, 819 (¶20) (Mi s s . 2 0 1 3 ). Because the trial record alone does not support these claim s of inef

f ective assistance of counsel, we decline to a ddress t hem

. However, we
p r e s e r v e M cCoy ’s “right to argue the issue through a petition f or post-conviction relief

.” Shinn , 179 So. 3d at 1009 (¶12). This argum ent is dism issed without prejudice.

B. Failure to Make Argum ent in Motio n f o r Directed Verdict ¶17. McCoy n ext argues his counsel f ailed to argue in his m otion f or a directed verdict that the Sta t e d i d not p rove the crim es occurred o n April 13, 2012. McCoy a r gues he was innocent of the sexual-battery c h arges because the encounter occurred in J uly 2012, af ter G.G

. turned sixteen. See Miss. Code Ann. § 97-3-95(1)(c) (Rev. 2014) (Sexual battery is

com m itted w hen a person “engages i n sexual penetration with

. . . [ a] child at least f ourteen

9(14) but under sixteen (16) y ears o f age, if the person is thirty -six (36) or m o re m onths older

than the child[ .]”). ¶18. This issue c an b e determ ined on t he record bef ore u s. In m oving f

or a directed verdict at the close of

the State’s case-in-chief

, McCoy ’s counsel stated: The State has t he o bligation of proving that with C ounts One through Four, the sexual encounter occurred between [ McCoy ] and [ G.G.] at a p o i n t in tim e when [ G.G] was u nder the age of sixt e e n . They have f ailed to dem onstrate that this occurred on the precise date and tim e that they ’r e c l a im ing it happened, and that’s a crucial elem ent of their case[ .] ¶19. McCoy ’s assertion t hat counsel did not m ake this particular argum ent is contradicted by the record. This argum ent is without m erit.
III. Sufficiency of the Evidence ¶20. W h en review i n g t h e s u f f i c i e n c y of the evidence, we m ust consider “whether the evidence s hows bey ond a reasonable doubt that [ the] accused c om m itted the act charged, and that h e did so under such circum stances that every elem ent of the of f ense existed[ .]” Bush

v. State , 895 So. 2 d 836, 843 ( ¶16) (Miss. 2005). The conviction m ust b e r e versed and rendered if “the f

a cts and i nf

erences . . . point i n f

avor of the d ef

endant on any elem ent of the of f ense with suf

f icient f orce tha t r e a s o n able [

jurors] could not have f

ound bey ond a reasonable doubt that t he def endant was guilty [ .]” However, if “reasonable f air-m inded [ jurors] in the e xercise o f im p artial judgm ent mi g h t reach dif f e rent conclusions on every

e l e me n t of the of

f ense, the evidence will be deem ed to have been suf f icient.” I d

. T h e evidence is viewed in the light m ost f avorable to the State. Id. ¶21. To prove McCoy com m itted sexual b atte r y , t h e S t a t e w a s r e q u r i ed to show that

1 0McCoy

“engage[ d ] in sexual penetration with .

. . [ a ] child at least f ourteen (14) b ut under sixteen (16) y ears of age, if the person is t h i r t y - s i x ( 3 6 ) o r m o re m onths older than the child[ .]” Miss. Code Ann. § 9 7-3-95(1)(c). T o p rove he was guilty of exposing a nother to HIV, the State h ad to p rove tha t M cCoy “knowingly e xpose[ d ] another p erson to [ HIV].” Miss. Code Ann. § 97-27-14(1) (Rev. 2014). “Prior knowledge and willing consent to the exposure is a def

ense” to the charge of

exposing another to HIV. I d. ¶22. M c C o y a r g u e s t h e S t ate f ailed t o prove the elem ents o f s exual batte r y b e c a u s e conf licting evidence was presented as to t he d ate of the sexual encounter. He asserts the evidence showed the f

irst contact oc c u rred on July 2 2, 2012, and the sexual encounter occurred on July 28, 2012, a f ter G.G. turned sixteen, r ather t han April 13, 2012, as charged in the indictm ent. McCoy argues his convictions on C ounts I-IV should n ot be b a s e d o n G.G.’s testim ony alone as to when the encounter occurred. However, G.G. was not the only

one w ho testif

i e d t h a t t h e encounter occurred in m id-April, w hile h e was f if teen. G.G.’s

m other testif

ied tha t s he becam e suspicious and b egan r eviewing G .G.’s phone records on “Mother’s Day

of 2012,” which was in May , and discovered com m unication with McCoy

. Investigator Kelly t estif

ied that based on his i n t e r v i e w of G .G., conversations with G.G.’s parents, and phone records, h e determ ined the date of the m eeting was “on or about” April 13, 2012. W hile Invest i g a t o r K elly adm i tted h e could not pinpoint the specif ic date, he determ ined the conduct o ccurred during the w eekend of April 13-15, 2 012; thus, his report
states “on or about” April 1 3. W hile McCoy testif ied t hat the encounter o ccurred on July 28, 2012, on cross-exam ination, when McCoy was asked i f he was sure the encounter occurred

1 1on July 28, 2012, he responded, “I m ight not be sure, but I’m alm ost positive t hat that’s the

date it happened.” ¶23. Further, conf

licting evidence was presented as to wheth e r M c Coy told G

. G. he had
HIV. McCoy

testif ied he told G.G. he had HIV, and G.G. consented to the sexual activity with condom s. G.G. denied that M c C o y inf orm ed h im of t his, o r that condom s were used

or m entioned. Also, Investigator Kelly and Deputy Stevens testif

ied that McCoy

adm itted condom s were not used. ¶24. “Conf

l icting testim ony does not evince overwhelm ing evidence[ .]” A mbrose v. State , 133 S o. 3d 786, 7 93 (¶23) ( Miss. 2013). “[ W ]here the verd ict t urns o n the credibility of conf licting testim o ny and the c redibility of t he witnesses, it is the jury ’s d uty to resolve the conf lict.” Id. Viewing the evidence in the light m ost f avorable to the State, we f ind that a reasonable jury could have f ound McCoy g uilty bey ond r easonable doubt. This issue is without m erit.
IV. Disproportionate Sentence ¶25. McCoy a r g u e s t h e s e n tence is d isproportionate to the crim es charged. To prove a
sentence is disproportionate, the def enda n t m u st f i rst s how the sentence “leads to an inf erence o f ‘gross d isproportionality

. ’” Nichols v. State , 826 So. 2 d 1288, 1290 ( ¶12) (Miss. 2002) (citing Hoops v. State , 681 So. 2d 521, 538 ( Miss. 1996)). If this f irst f actor is shown, then we will look to “(i) the gravity of the of f e nse and the h arshness of the penalty ; (ii) the

sentence im

posed on o ther crim inals in the sam e j urisdiction; and (iii) the sentences im posed f or com m i ssion of the sam e c rim e in o ther jurisdictions.” Brown v. State , 130 So. 3d 1074,

1 21 0 80 (¶18) (Miss. 2 013) (quoting Solem v. H elm , 463 U.S. 277, 286 (1983)). “Generall y ,

s e n t e n c e s t h at do not exceed the m axim um punishm ent allowed by s tatute will not be considered grossly

disproportionate and will not be disturbed on appeal[ .]” Id. ¶26. McCoy ’s seventy -f ive-y ear sentence was less than t he m axim um allowed by

statute, and McCoy has c ited no cases where a com parable crim e r esulted in a lesser sentence. This issue is without m erit. ¶27. T H E J U D G M E N T O F THE NEWTON COUNTY C IRCUIT C O U R T O F C O N V I C TION OF COUNTS I-IV, SEX UAL BATTERY, AND COUNT V, EX POSING ANOTHER T O H I V , AND SENTENCE OF THIRTY YEARS FOR COUNT I, TWENTY-FIVE YEARS FOR COUNT II, TEN YEARS FOR COUNT III, TEN YEARS FOR COUNT IV, AND TEN YEARS FOR COUNT V, WITH THE SENTENC E S I N C O U N T S I
- I V T O R U N C O N S E C U T I V ELY AND THE SENTENCE IN COUNT V TO RUN CONCURRENTLY W ITH THE SENTENCES I N COUNTS I-IV, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND T O P A Y A F INE OF $ 10,000 AND R EGISTER AS A SEX OFFENDER, IS A FFIRMED. ALL COSTS OF THIS A PPEAL ARE ASSESSED TO NEWTON COUNTY. LEE, C .J., IRVING AND GRI F F I S , P . J J . , B A R N E S , I S H E E , C A R L T O N , F A I R, JAMES AND WILSON, JJ., CONCUR.

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