Before Sullivan, P.j., McRAE And Smith, JJ.
The opinion of the court was delivered by: Smith, Justice, For The Court:
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT: 01/19/96
TRIAL JUDGE: HON. ROBERT H. WALKER
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY: CONO CARRANA
NATURE OF THE CASE: CRIMINAL - FELONY
David Charles Huffman was indicted by the Grand Jury of the Second Judicial District, Harrison County, Mississippi, for the crime of Sexual Battery pursuant to Miss. Code Ann. § 97-3-95(c) after Huffman's three (3) year old stepdaughter reported to her aunt that Huffman had "kisssed her tee-tee." Huffman pled not guilty to the charge and was tried by a jury of his peers on January 17, 1996. The jury returned a guilty verdict on January 19, 1996, and Circuit Judge Robert Walker sentenced Huffman to eight years in the custody of the Mississippi Department of Corrections.
Huffman, by and through his attorney, Keith Pisarich, appeals his conviction and sentence, raising the following issues:
I. WHETHER THE TRIAL COURT ERRED IN OVERRULING HUFFMAN'S FIRST MOTION IN LIMINE.
II. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE ALLEGED VICTIM, A MINOR CHILD, WAS COMPETENT TO TESTIFY.
III. WHETHER THE TRIAL COURT ERRED IN DENYING HUFFMAN'S PEREMPTORY INSTRUCTION AND NOT GRANTING HIS MOTION FOR A DIRECTED VERDICT, OR THAT THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUSTAIN A VERDICT OF GUILT AGAINST THE DEFENDANT FOR THE CRIME OF SEXUAL BATTERY.
David Charles Huffman (hereinafter Huffman) and Terry Peters Huffman (hereinafter Terry) were married on April 16, 1994. Terry had a child, named E.P. , prior to her marriage to Huffman. In September of 1994, Huffman, Terry, and E.P. resided at 635 Water Street, Biloxi, Mississippi. There was one long and narrow bedroom in this residence, with Erika's bed at one end and Terry and Huffman's bed at the other end of the room.
Terry testified that sometime around the first week of September 1994, Erika, who was three (3) years old, asked if she could sleep in the bed with Huffman and both Terry and Huffman agreed. Terry slept in E.P.'s bed and E.P. slept in Terry's bed with Huffman. Terry woke up around 4:30 a.m. to a rhythmic squeaking sound. When Terry awoke, she was facing the wall away from Huffman's bed. Upon hearing the squeaking noise, Terry turned over in the bed facing Huffman's bed and the noise stopped. The following morning when Terry awoke, Huffman had left for work. Terry did not notice anything unusual about Erika's appearance or clothing. Upon Huffman's return from work that evening, Terry asked him if he had been masturbating that morning while E.P. was in the bed with him. Huffman admitted masturbating while E.P. was in his bed, but said he did not see anything wrong with it because E.P. was asleep. From that point on, Terry would not allow Huffman to be alone with E.P. and left E.P. with her aunt, Judy Breckenridge, while she was working. Judy Breckenridge testified that on September 17, 1994, E.P.told her that Huffman had kissed her on the tee-tee. However, E.P. began asking her aunt around September 14, 1994, when she was going to have to go to jail.
E.P. testified that her daddy, David Huffman, had kissed her on the tee-tee and that he told her if she told anyone, both she and he would go to jail. However, on cross examination, E.P. further indicated that she told her aunt of this incident the next day.
Huffman denies that he admitted to his wife, Terry, that he masturbated while E.P. was sleeping in the bed with him. Huffman also denies any sexual battery against E.P. and further alleges that he could not have perpetrated this crime because he had left the residence prior to the date it was estimated to have occurred. Specifically, Huffman maintains that the incident must have occurred on September 16, 1994 because E.P. indicated that she told her Aunt Judy the next day after it occurred and Judy testified that E.PP. reported the incident to her on September 17, 1994. Huffman maintains that he moved from the residence he shared with Terry and E.P. and moved into the Legers' residence, either the last week of ...