On April 19 the Court of Appeals of Mississippi affirmed a 75-year prison sentence for Timothy Allen McCoy, who was convicted of four counts of sexual battery and one count of exposing another to HIV. McCoy did not argue on appeal that he did not engage in the conduct charged against him, but he claimed that the trial judge was biased, resulting in an excessive sentence, and the evidence did not support his conviction. Judge Jim Greenlee wrote for the unanimous appeals court panel of nine judges. McCoy v. State, 2016 WL 1568004, 2016 Miss. App. LEXIS 228.
According to McCoy, the teenage boy, who is identified in the court’s opinion as “G.G.,” contacted him on a social-networking website for gay men. They chatted back and forth on-line before deciding to meet in person. McCoy was 41 at the time and the boy claimed in his trial testimony that he was then fifteen. G.G. gave McCoy the address of his father’s house near Decatur and arranged for McCoy to pick him up at 2 a.m. G.G. “sneaked out” and got into McCoy’s car. McCoy drove them to a secluded spot where they had sex. According to G.G., McCoy said nothing about being HIV positive, said he was 34 years old, and did not use condoms. They had oral and anal sex and were together less than an hour before McCoy drove G.G. back to his father’s house. G.G.’s parents were divorced and he lived with his mother and stepfather. At the time he was just visiting with his father.
G.G. testified that this encounter occurred in mid-April 2012, but he could not remember the exact date. McCoy testified that it took place in late July, shortly after G.G.’s 16th birthday. He also testified that he told G.G. that he was HIV-positive, that G.G. had consented to having sex with a condom, and that when they met G.G. told McCoy that he was 18.
G.G.’s mother testified that she became concerned about G.G.’s behavior and began looking at his phone and phone records on Mother’s Day in May 2012. According to Judge Greenlee’s opinion, “She discovered naked pictures of men and sexually explicit text messages” and turned this information over to the police. A warrant for McCoy’s arrest was issued on September 10, 2012, after he was identified from the phone records, and he was interviewed by police officers the next day. He agreed to give a voluntary statement without speaking to an attorney, probably because he believed he had done nothing wrong. This is almost always a mistake.
The police officers testified that McCoy told them he met G.G. online, drove to G.G.’s father’s home at 2 a.m. to pick him up, drove G.G. to a secluded spot on a dirt road, and that they exchanged oral and anal sex. The police testified that McCoy admitted to the police that he was HIV positive and that he had not used condoms.
The court’s opinion does not say anything about G.G. becoming infected with HIV as a result of this incident. It also says nothing about McCoy’s viral load or treatment history, or whether there was testimony at trial about how HIV is and is not transmitted.
The jury convicted McCoy on all counts. The Judge Marcus D. Gordon sentenced him to a total of 75 years on the battery counts and ten years on the HIV exposure count, to run “concurrently” with the battery sentences, to pay a $10,000 fine, and to register as a sex offender. Given McCoy’s age, this is virtually a life sentence.
McCoy argued that Judge Gordon had expressed a personal prejudice against his sexual orientation resulting in an unduly harsh sentence and asked that the court re-assign the case to a new judge for re-sentencing. The court of appeals included extensive quotations from the transcript of the sentencing hearing that were offered by McCoy as evidence of prejudice.
Judge Gordon said, “Well, Timothy Allen McCoy, I consider myself a normal person, and I don’t understand fully what you have – you yourself have testified that you are homosexual, that you are attracted to someone for physical activities. I want you to tell me why is it that you as a forty-one year old man was [sic] attracted to a fifteen year old boy for sexual activity?” McCoy replied, “At the time, sir, I did not know that he was fifteen.” “How old did you think he was?” asked Gordon. “He said he was eighteen,” responded McCoy. “All right. That is still a minor child in my opinion,” said Gordon. “Yes, sir, I understand,” said McCoy. “Why is it that you was [sic] attracted to him?” “I can’t answer that, sir,” replied McCoy.
Continuing the questioning, Gordon asked, “You’ve done it before? This is not your first experience?” “With…” “Anyone?” “No,” replied McCoy, “it’s not my first experience with anyone, no, sir.” “All right, all right,” said Gordon. “You know that that type of activity was wrong, did you not? That a forty-one year old man should not have sex with a person, a male person, who is either fifteen or eighteen? You knew it was wrong to have sex with an eighteen-year-old person or a fifteen year old person, did you not?” “Yes, sir.” “Why did you do it?” “I don’t know at the time, sir. Actually, Your Honor, I had a – I guess – a drug problem at the time. I was on Lortab.” “That’s an excuse, not a justification,” said Gordon.
Interestingly, the age of consent for sex in Mississippi is 16, which explains why, from a defense strategic point of view, McCoy testified that they had sex after G.G.’s 16th birthday, which would have made it legal solely from an age point of view. And, of course, if Gordon was suggesting that it would be illegal for McCoy to have sex with an 18 year old boy, as he claimed G.G. had represented himself to be, Gordon would be in error. Courts have consistently ruled that because age of consent laws are intended to protect minors from sexual exploitation by adults, a misrepresentation of his or her age by a minor is irrelevant to the guilt or innocence of the defendant. Sex between an adult and a minor will be deemed non-consensual regardless of “actual” consent.
The judge then headed off on a somewhat rambling diatribe: “In reviewing your activities,” he said, “I refer again to the sentencing statute, and my thoughts regarding sentences are controlled by the fact that you have some education, including some education in college, and that you as an adult man, forty-one years old, with your background, knowing what’s involved with you having sex with a minor person, that you joined with that young fellow, not knowing him, and taking him in your car and driving a short distance to a dirt road with a strange person and having anal sex and fellatio at a time when you had HIV, knowing what you were doing, knowing that this was a minor child, soliciting him to a wrongful act, an act that shocks the conscience of people of this country, that you would do that to a minor child, causing that child possibly to live a life such as you. He will have this life for the remainder of his life. Perhaps, he will become a person as you because he has had now we know, I know, a sexual experience which, if you want to call it sexual… He has that life. Perhaps, he will not have a job, and perhaps he will be ridiculed and not likely he’ll be accepted in the general society as you are not accepted in generally accepted… He will live a life in secretion.”
Opposing McCoy’s appeal of the sentence, the State argued that the judge’s comments were not “sufficient to overcome the presumption that he was unbiased and impartial.” The court of appeals agreed with the State, despite the quoted passages. Judge Greenlee wrote that McCoy’s contention that the judge was biased was based on “mere speculation.” He pointed out that the judge explicitly relied on “multiple aggravating factors,” including G.G.’s actual age, McCoy’s “admission” to the police that he was HIV positive and had not used condoms (which he contradicted in his testimony by saying he had used condoms), the secretive nature of the 2 a.m. meeting, and the “secluded spot on a dirt road” where the admittedly furtive encounter took place. It seems as well that McCoy had a police record, including four misdemeanor charges or convictions in Georgia between 1990 and 2001, one involving “enticing a minor.”
Greenlee pointed to the consistent practice of the appellate courts in Mississippi to uphold sentences imposed by trial courts if they fell within the limits prescribed by the sentencing statute. In this case, he wrote, on four sexual battery counts McCoy was exposed to a potential sentence of up to 130 years, so 75 was well under the statutory maximum and the court concluded that bias had not been shown.
McCoy also argued that his lawyer had not provided effective representation at trial. The appeals court refused to address this claim in the context of an appeal of the sentence rather than an appeal of the conviction, asserting that the trial record did not clearly support the claim and that McCoy could raise it anew in a petition for post-conviction relief. McCoy also faulted his attorney for not getting the case dismissed on the grounds that G.G. was “of age” when the incident occurred, but the court pointed out that his attorney did make this argument for a directed verdict after the prosecution put on its witnesses, pointing out that there was no direct evidence that the incident occurred before G.G. turned 16 and that this was a “crucial element” of the prosecution’s case, so the court of appeals said the attorney could not be faulted for not making an argument he actually made.
McCoy emphasized the same issues to argue that the evidence did not support the verdict. “He asserts the evidence showed the first contact (on-line) occurred on July 22, 2012, and the sexual encounter occurred on July 28, 2012, after G.G. turned sixteen, rather than April 13, 2012, as charged in the indictment,” wrote Judge Greenlee. Thus, McCoy argued, his battery conviction could not be based on G.G.’s testimony, since G.G. was vague about when it occurred.
However, pointed out Greenlee, G.G.’s mother testified that she became suspicious something was up and began reviewing G.G.’s phone records on “Mother’s Day of 2012,” which was in May, and that’s when she discovered the communication with McCoy, contradicting his testimony that the first on-line contact was in July. A police detective also testified in support of an April date for the encounter, although he did not specify a specific date but rather a range of days. When McCoy was cross-examined about the date, he testified, “I might not be sure, but I’m almost positive that that’s the date it happened,” referring to July 28. Thus, there was conflicting testimony, and the court of appeals held that a jury could have resolved the conflict in favor of the prosecution.
There was also conflicting testimony about whether McCoy told G.G. he was HIV positive and whether condoms were used. When there is conflicting testimony, it is up to the jury to resolve it based on credibility, and in this case it was resolved against McCoy. “Viewing the evidence in the light most favorable to the state,” as the court is obliged to do after a conviction, “we find that a reasonable jury could have found McCoy guilty beyond a reasonable doubt.”
Finally, responding to McCoy’s contention that his sentence was disproportionate to the seriousness of the crime, the court quoted a U.S. Supreme Court decision to the effect that sentences “that do not exceed the maximum punishment allowed by statute will not be considered grossly disproportionate and will not be disturbed on appeal.” Greenlee pointed out that McCoy “has cited no cases where a comparable crime resulted in a lesser sentence.”
McCoy was represented on appeal by attorneys from the Office of the State Public Defender, George T. Holmes and Justin Taylor Cook, and is also listed as having participated actively in his own defense. He could attempt to appeal this ruling further to the state Supreme Court, which is not a notably gay-friendly bench. It appears that McCoy may spend the rest of his life in prison for a brief fling with a boy who said he was 18 when they met, during which HIV was not transmitted. McCoy is not claiming that he is innocent, just that the sentence is excessive in light of how things turned out.