BEFORE DAN LEE, PRESIDING JUSTICE, SULLIVAN AND ANDERSON, JJ.
This case presents a conviction of child fondling following trial in the Circuit Court of DeSoto County on an indictment charging Michael Anthony Hailey with forcible rape. The fondling charge was submitted to the jury at the close of the evidence as a lesser included offense instruction on the principal charge of forcible rape. The jury failed to find forcible rape of the 13-year-old prosecutrix, but did find Hailey guilty of fondling. Following that verdict the trial court entered judgment and sentenced Hailey to seven years in the custody of the Mississippi Department of Corrections.
Because the indictment did not sufficiently inform Hailey that he might face a charge of child fondling, however, his conviction must be reversed.
E. M., the 13-year-old prosecutrix, spent the night of February 9, 1985, at the apartment of her Aunt Georgia, while her mother and other family members, along with the defendant Michael
Hailey (who is Georgia's companion and roommate), celebrated someone's birthday.
E. M. expected her mother to return for her that evening, but it got late and around 10:00 p.m. she went to sleep on a couch in a bedroom. Her aunt Georgia slept in another bedroom with her two sons.
Later, during the early morning hours, E. M. said she was awakened by the sound of voices. About that time, Michael Hailey entered. E. M. testified that Hailey grabbed her and tried to turn her over on her back. She held on to the couch, but Hailey succeeded in pulling her to the floor. Hailey pulled off her pants, E. M. testified, and pulled up her blouse and bra, placed a hand over her mouth, and began touching her breasts. He told her if she screamed he would hurt her. Prior to this statement she had not called for help, but during the assault she attempted to kick a closet door to make noise.
E. M. testified that Hailey then penetrated her with his penis. This went on for a few minutes. Afterwards, Georgia walked in and turned on the lights. Georgia and Hailey began arguing and E. M. grabbed her clothes and ran to her uncle's apartment nearby.
Later, another uncle drove E. M. home and her mother took her to a hospital for an examination.
Over objection, E. M.'s mother was allowed to testify to details of the assault that E. M. related to her after she returned home.
Dr. Larry Black examined E. M. that morning about 9:45 a.m. Black testified without objection to the facts surrounding the alleged rape as related to him by E. M. for medical history purposes. E. M.'s hymen was not intact, but he found no evidence of trauma other than an irritated area where the child had a yeast infection at the introitus where the skin meets the internal vaginal tissue. This irritation could have been caused by rubbing or intercourse; however, there was no sperm found in her vagina. A rape pack was prepared in any event.
Larry Turner, a forensic serologist with the Mississippi Crime Laboratory, testified he found traces of semen on E. M.'s jeans, but there was not enough present to complete an analysis. He found no seminal fluid on any other clothes or on any other specimens in the rape pack.
Hailey did not take the stand. Georgia testified for the defense that when she entered the room both Hailey and E. M.
stated they did not do anything.
Another aunt of E. M. testified that she spoke with E. M. over the telephone the morning of the incident and the child stated that "Georgia caught Michael in the room with me."
At the close of all the evidence, the trial court heard argument on and then granted an instruction to the jury that it could find Hailey guilty of the lesser included offense of child fondling. The jury returned a verdict of guilty of child fondling. The trial court sentenced Hailey to seven years. The trial court overruled Hailey's motion in the alternative for a new trial or for a judgment notwithstanding the verdict, and this appeal followed in timely fashion.
The dispositive question and the reason this conviction must be reversed is the failure of the indictment to inform Hailey ...