Thomas, P.j., Coleman, And Hinkebein, JJ.
The opinion of the court was delivered by: Coleman, J., For The Court
DATE OF JUDGMENT: 06/07/96
TRIAL JUDGE: HON. KENNETH LEVENE THOMAS
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: LAWRENCE Y. MELLEN
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: TOUCHING A CHILD: SENTENCED TO SERVE A TERM OF 8 YEARS IN THE MDOC; MDOC PROVIDE DEFENDANT WITH PSYCHIATRIC & PSYCHOLOGICAL EVALUATION & SUCH TREATMENT AS INDICATED TO BE NEEDED BY SAID EVALUATION; SENTENCE CONSECUTIVE ANY PREVIOUS
¶1. A grand jury in the Second Judicial District of Bolivar County indicted the appellant, Robert Givens, for the crime of touching a child for lustful purposes as defined by Section 97-5-23(1) of the Mississippi Code. *fn1 A jury in the circuit court of that same district and county returned a verdict of "Guilty as charged" against Givens, and the trial court sentenced him to serve a term of eight years in an institution under the supervision and control of the Mississippi Department of Corrections (MDOC). The trial court also directed MDOC to provide Givens with psychiatric and psychological evaluations and treatment as needed pursuant to such evaluations. The trial court denied Givens's motions for a directed verdict, a peremptory instruction, and acquittal JNOV or, in the alternative, a new trial.
¶2. In his appeal from the trial court's judgment and sentence, Givens presents for our review and resolution the following three issues, which we quote verbatim from his brief: (1) The trial court committed error in granting the prosecution's amendment or change to the indictment as to the date of the offense from on or about August 16, 1993 to on or about August 10, 1991 through August 14, 1991 was a change of substance and not of form as contemplated by Rule 7.09, URCCC. (2) The trial court committed error in allowing the prosecution to introduce other crimes, wrongs, or acts of the defendant in the prosecution's case-in-chief in violation of Rules 404(b) and 403, M.R.E.; and the prosecution's introduction of defendant's other crimes, wrongs, or acts of the defendant did not fit into the exception of "absence of mistake or accident" as contemplated by Rule 404(b), supra. Further, there was not a limiting instruction given by the trial court concerning the Rule 404(b) evidence which was reversible error. 3. The trial court committed error in denying appellant's motion for directed verdict because the prosecution failed to prove its case against the appellant, and the verdict was against the overwhelming weight of the evidence, and the verdict evidences bias and prejudice against the appellant, and was based solely upon suspicion and speculation. We resolve these issues adversely to Givens and affirm the judgment and sentence of the trial court.
¶3. We recite the facts which are consistent with the jury's verdict that Givens was guilty of sexual battery; however, the nature of the crime requires that we change the names of the victim and her mother. Around ten o'clock on the night of January 10, 1996, Mary, Givens's stepdaughter, entered the bedroom of her mother. Mary was crying and upset. The first thing Mary said to her mother was, "Mama, please don't be mad at me." Then, Mary told her mother that Givens, her stepfather, had been coming up to her room at night, and that's why she had been sleeping in her brother's room. Mary then told her mother that the first time it happened was when their family was living with Mary's mother's parents. Mary also remembered that when Givens touched her the first time, her mother had gone on a trip. Mary's mother had left on August 10, 1991, and returned on August 14, 1991. Thus, more than four years passed from the date that Givens first touched Mary until January 8, 1996, when Mary reported the incident to her mother.
¶4. Her mother took Mary to the Cleveland Police Department, where William Quinton, an investigator with the department, arranged for Tracy Ann Mohdzain, a licensed social worker who was employed by the Department of Human Services as an investigator of child abuse and child neglect, to interview Mary. After Mohdzain's interview, Quinton then interviewed Mary in her mother's presence. Givens was arrested the next day, and pursuant to his being questioned by Quinton, Givens signed a statement which Quinton had typed.
¶5. The incident for which Givens was indicted occurred as follows: Mary, dressed in a tee-shirt and underpants, had fallen asleep in her stepfather and mother's bed. When Givens came home later that night after work, he went to bed in the same bed. Mary was awakened by Givens's sticking his hand down in her underpants and "feeling on [her] bottom." Mary then got out of the bed and went into the bedroom in which her brother and she usually slept. Mary's brother was asleep when she entered their bedroom, but she did not awaken him. Mary's birthday was October 23, 1984; thus, she was six years old in August 1991 when this incident occurred. Givens was thirty seven years old in August 1991.
¶6. In its indictment of Givens, the grand jury charged that the crime occurred "on or about the 16th day of August, 1993." During the course of discovery, Givens filed a motion for definite time and place of offense, to which the State responded that "the time of the incident alleged in the indictment was . . . August 10-15, 1991" because "Mary said this happened when her mom went out of town and Mary had gone to the airport in Greenville to see her off." The State also filed a motion to amend indictment "to change the date of offense from `August 16, 1993' to `on or about or between August 10th -- 14th, 1991.'"
¶7. Before the trial court called the case for trial in the courtroom, the State presented its motion to amend the indictment, which Givens opposed because "a three-year gap is more unreasonable and . . . is a substantive change of time as to when these offenses occurred." Givens's counsel argued that the amendment was "more than just a matter of form." The State responded that the amendment was "allowable under Rule 7.09 of the Uniform Rules of County and Circuit Court Practice, and this does not result in any prejudice to the defendant." The trial Judge asked Givens's counsel how Givens would "be prejudiced in terms of putting forth a defense by" the proposed amendment to August 11 -- 14, 1991, to which counsel replied, "[W]e prepared our defense on the week of or a few weeks before and after August, 1993 date." There are indications in the record that Mary's mother had also attended an out-of-state conference in August 1993.
¶8. The trial court asked Givens's counsel to confer with Givens about whether a continuance would help his defense, and, if a continuance would help his client's defense, how much time would Givens need. Givens and his counsel retired from the trial court's presence to discuss the trial court's inquiries. When they returned before the trial court, Givens's counsel announced that they would "proceed today," but that they did "not give up [their] objection or waive . . . [their] objections to the amendment of the indictment." The trial court granted the State's motion to amend the indictment and signed an order amending indictment.
¶9. Next, the State moved the Court to conduct an "803 hearing" regarding testimony about other acts which occurred after the incident in August 1991. Included in these other acts were an incident near the end of the 1995 school year when Mary was at home sick. Mary's mother was away at work, and Mary's brother was at school. Mary was in her mother's bed watching television when Givens sat beside her on the bed, put his arm around her, and began rubbing and feeling on Mary's back with his hand under her clothing. There were other incidents in which Givens came to Mary's bedroom where she was sleeping and raised the covers to look at her lying in bed. To support its motion, the State called Tracy Ann Mohdzain, Investigator Quinton, and Mary's mother, all of whom established that Mary had told them about one or more of these incidents. After the State rested on its motion, the State argued that these other incidents were needed "to tell the complete story" about the lapse of more than four years between the date of the crime and the date that Mary told her mother about it. The State further argued that these other incidents negated Givens's anticipated claim that his feeling Mary's buttocks was a mistake because when he did that, he had been dreaming of his wife.
¶10. After the trial Judge conducted a hearing pursuant to Mississippi Rule of Evidence 803(25) to determine whether Mary's statements to Mohdzain, Investigator Quinton, and her mother were reliable, he reviewed all twelve factors suggested in the portion of the comment to Rule 803 which pertain to the "tender years exception," and held that Mary's statements to those three witnesses were sufficiently reliable to be admitted through their testimony. Furthermore, the State proposed to introduce evidence of the incidents involving Mary subsequent to the one for which Givens was indicted for two reasons. First, the State proposed to offer these incidents to explain why Mary had waited more than four years to tell her mother what Givens had done. Second, the State anticipated that Givens might admit that he had felt of Mary's buttock but explain that he did so only while he was dreaming of his absent wife. Thus, the State reasoned that although the other incidents occurred subsequently to August 1991, they were necessary to rebut Givens's testimony that he had touched Mary by mistake. The trial court conducted a hearing to determine whether Mississippi Rule of Evidence 403 would permit the State to introduce evidence of these incidents. After the trial court heard the State's and Givens's arguments on whether the probative value of these incidents was outweighed by "the danger of unfair prejudice, confusion of the issues, or misleading the jury," it ruled as follows: Here, I think we are primarily concerned with whether or not the probative value is substantially outweighed by the danger of unfair prejudice. It is a small possibility of confusion of the issues and misleading the jury. This is a close call. The Court does feel that without this explanation as to the gap in time and without this explanation of absence of mistake or accident, the jury would not have the whole story, and the Court finds that the probative value does, therefore, substantially outweigh the danger of unfair prejudice, confusion of the issues, etc. So the Court will allow that testimony.
¶11. Following jury selection and opening statements by each party, the State called its first witness, Tracy Mohdzain. Ms. Mohdzain described her job as a social worker, and she began to speak of the conversation that she had with Mary at the police station. However, pursuant to an objection by Givens's counsel regarding the order in which the witnesses were presented, Mohdzain vacated the witness stand so that Mary could testify.
¶12. Mary communicated the first incident of her stepfather's fondling her in August of 1991. She also testified that on about eight occasions since that incident, Givens had entered her bedroom during the night and lifted the bedcovers and sometimes touched her. She said that Givens had also felt her naked bottom once when she was sick at home just before Christmas in 1995. Mary approximated the date of the first incident, recalling that she had gone to take her mother to the Greenville Airport. Finally, she testified concerning her statement to Officer Quinton at the police department.
¶13. Tracy Mohdzain again took the witness stand and described Mary's demeanor while they discussed Givens's actions that night at the police department. She noted that Mary told her that Givens had touched her again some time during the 1995 school year.
¶14. The State then called Officer Bill Quinton of the Cleveland Police Department to testify. Officer Quinton established venue for the alleged crime and recounted the investigation which led to the arrest of Robert Givens. He explained that Givens declined the opportunity to give a taped statement, but he read and signed the statement that Quinton typed. Quinton read the following portion of Givens's statement for the jury: I was in our bed, Beth and mine, and when [Mary] was lying down beside me, and I got hot and sweaty, and I touched her on her bottom with my hand inside her panties, and I thought about what I was doing, and I removed my hand. She got up and went into the other room and I thought about what I had done, and I was ashamed. I knew it was wrong at the time and I regretted doing this act and I have ...