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KENNETH RAY ELMORE v. STATE OF MISSISSIPPI

JULY 15, 1987

KENNETH RAY ELMORE
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, PJ., DAN LEE AND SULLIVAN, JJ.

DAN LEE, JUSTICE, FOR THE COURT:

Kenneth Ray Elmore appeals his conviction of sexual battery of V. E., his 13-year-old stepdaughter. A jury found him guilty after trial in the Circuit Court of Amite County and he was sentenced to 15 years in the custody of the Mississippi Department of Corrections.

Elmore assigns three errors in the trial below; however, we address only one, for we find that this conviction must be reversed because of the improper admission into evidence of other sexual crimes remote in time and with third parties.

 FACTS

 V. E. testified that she and her sister, S.E., were home in the family trailer on the afternoon of August 6, 1983, in the living room watching television with their stepfather, Kenneth Ray Elmore. V. E. was sitting in a loveseat when Elmore picked her up and started carrying her down the hall toward a bedroom. (R. 44-45) Upon arrival, he laid V. E. on the bed, removed her pants, penetrated V. E.'s vagina and finished the sex act. V. E. said she struggled to free herself, but Elmore was not deterred. She was 13 years old at the time of the alleged assault.

 V. E.'s sister, S.E., basically corroborated V. E.'s account, though she did not witness the alleged sex act because she was watching the door.

 The incident did not come to light until February 11, 1984, when V. E. wrote a letter telling of the assault to her uncle, her mother's brother, which S.E. delivered. Her uncle waited a couple of days before he told the children's mother. The mother and uncle then got the children out of school February 13, 1984, and questioned them about the incident. During questioning, V. E. and S.E. divulged several other alleged incidents of sexual misconduct by Elmore.

 Her mother told V. E. to write out what she remembered about this and other alleged incidents. The note V. E. wrote appears in the record as an exhibit for identification and gives dates and corresponding descriptions and reasons why V. E. remembered the dates and incidents.

 V. E.'s testimony at trial did not closely coincide

 with what she had written about the incident. Her testimony more closely followed her written description of another alleged incident on a different date. She stated on redirect that she initially confused some of the dates when she wrote the note, but she was no longer confused.

 The jury saw only that part of V. E.'s note describing events on August 6, 1983, the date of the charged offense. Most of the other alleged incidents described on the note occurred subsequent to the charged offense. The trial court ruled these inadmissible.

 However, V. E. and her sister S.E. were allowed to testify over objection to several alleged acts of sexual misconduct occurring prior to August 6, 1983. This testimony will be discussed in greater detail. Infra.

 The prosecution introduced testimony from a Dr. Edsel Stewart, a gynecologist who examined V. E. on February 14, 1984, which revealed that she was not a virgin.

 Dr. Stewart also testified that it was possible some object inserted into the vagina could give the same indication. There was evidence introduced by the defense that V. E. might have inserted some object, or had intercourse with someone other than Elmore.

 Elmore's principal defense was alibi. He testified in his own behalf and emphatically denied that he had ever sexually molested either of his stepdaughters. V. E.'s testimony set the time of the assault at about 3:00 p.m. on August 6, 1983. However, Elmore testified that on the date of the charged offense, he left his home at 4:00 a.m. and traveled to Bay St. Louis, Mississippi, to ...


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