Malcolm Clifton WEEKS a/k/a Malcolm Clifton Weeks, Sr. a/k/a Malcolm C. Weeks a/k/a Malcolm Weeks, Sr. a/k/a Malcolm Weeks
STATE of Mississippi.
Rehearing Denied Oct. 24, 2013.
Kevin D. Camp, Jackson, attorney for appellant.
Office of the Attorney General by Elliott Flaggs, attorney for appellee.
Before WALLER, C.J., LAMAR and PIERCE, JJ.
¶ 1. Malcolm Weeks Sr. was indicted and tried for sexually abusing his fourteen-year-old daughter. He was convicted of one count of child fondling and two counts of sexual battery. On appeal, Malcolm asserts three assignments of error: 1) that the State was permitted to substantively amend his indictment; 2) that the evidence was insufficient to support the jury's verdicts; and 3) that the jury's verdicts were against the overwhelming weight of the evidence.
FACTS AND PROCEDURAL HISTORY
¶ 2. Malcolm Weeks Sr. and his wife " Sarah" have two children, " Wesley" and " Mary."  Prior to September 19, 2010, the family lived together in Rankin County, Mississippi. On the morning of September 19, 2010, Malcolm went into Mary's room to wake her up for church. When Sarah saw Malcolm leaving Mary's room, she sensed something was wrong and asked him what he was doing in there. Unsatisfied with Malcolm's response to her question, Sarah called Mary to the front porch and asked her about Malcolm's behavior. Initially, Mary denied that Malcolm had been doing anything wrong but eventually confessed that he had been touching her inappropriately. Sarah immediately left the house with Wesley and Mary, stopped by her parents' house briefly, and then took Mary to the Florence police department. At the Florence police department, Mary was interviewed by William Nelson, a deputy with the Rankin County Sheriff's Department. Mary told Officer Nelson that Malcolm had touched her vagina and had performed oral sex on her that morning. She said Malcolm had been touching her inappropriately for
about three months and described other incidents in which Malcolm had touched her vagina with his penis, hands, and mouth. When asked by Officer Nelson where she was abused, Mary said her bedroom. She did not tell Officer Nelson that any incidents had occurred in the family's living room, her parents' bedroom, or Malcolm's truck. However, at trial, Mary testified that incidents also occurred in those three locations. She estimated that Malcolm had touched her on more than twenty separate occasions. Mary said the incidents typically occurred in the morning and that she would shower afterward. Mary had not showered the morning of September 19, 2010, so Officer Nelson picked up a sexual-assault examination kit and escorted Mary and Sarah to the University of Mississippi Medical Center (UMMC) emergency room. At UMMC, Mary was seen by a social worker named Jennifer Cook. Cook heard Mary say Malcolm had touched her vagina with his fingers and his mouth that morning. She also heard Mary describe a separate incident in which Malcolm had made her touch his penis until he ejaculated. Mary told Cook these incidents had been occurring for approximately a month and did not mention any incidents happening in Malcolm's truck or involving a vibrator. Based on her experience, Cook testified that Mary's disclosure was age-appropriate and consistent with a child who had been sexually abused. At UMMC, Mary also was seen by a pediatric nurse named Tierra Brown. Brown took Mary's personal history and collected samples from her for the sexual-assault examination kit. Mary told Brown that Malcolm had touched her vagina that morning with his fingers, penis, and mouth, and that during a prior incident, he had touched her with a vibrator. Mary was later interviewed on September 23, 2010, by Rachel Daniels, a forensic interviewer with the Mississippi Children's Advocacy Center. Mary told Daniels how Malcolm had sexually abused her. Mary did not tell Daniels that any incidents had occurred outside her bedroom, but Daniels testified that it would not surprise her if Mary had disclosed additional incidents and locations of abuse after the interview. Daniels found Mary's disclosure to be consistent with that of a sexually abused child. This interview was observed by the Rankin County investigator assigned to the case, Shelia Tucker. Tucker testified that, during the interview, Mary stated that Malcolm had touched her vagina with his hand, mouth, and penis, and that he had made her touch his penis until he ejaculated. In addition to observing Daniels's interview of Mary, Tucker reviewed Mary's medical reports and confirmed that all of Mary's disclosures to doctors, nurses, and social workers were consistent. Tucker also testified that she had brought the samples from Mary's sexual-assault examination kit and a DNA sample from Malcolm to Scales laboratory for testing. At Scales laboratory, Kathryn Rodgers, a forensic DNA analyst, performed a Y-chromosome test on the vaginal and vulvar swabs taken from Mary as part of her sexual-assault examination kit.  With the Y-chromosome tests, Rodgers obtained a partial profile from both the vaginal and vulvar swabs taken from Mary, confirming to a scientific certainty that there was male DNA inside Mary's vagina. The partial profiles of both swabs were consistent with a male from Malcolm's paternal line. Therefore, neither he nor any of his patrilineal male relatives could be excluded as the contributor of the DNA
found inside and outside of Mary's vagina. The testimony of Rodgers concluded the State's case-in-chief. During the State's case-in-chief, the trial judge discovered that the sexual-battery counts of the indictment tracked the wrong subsection of the sexual-battery statute. The sexual-battery statute has separate sections for victims under the age of fourteen and those between the ages of fourteen and sixteen.  Subsection (c) applies to victims between the ages of fourteen and sixteen and applies if the perpetrator is more than thirty-six months older than the victim. Subsection (d) applies to victims under the age of fourteen and applies if the perpetrator is more than twenty-four months older than the victim. The sexual-battery counts of Malcolm's original indictment recognized that Mary was fourteen at the time of the alleged criminal behavior, but then tracked subsection (d). The sexual battery counts originally read:
Malcolm Clifton Weeks ... a male human being above the age of eighteen (18) years, whose date of birth is October 18, 1970, did willfully, unlawfully, and intentionally engage in sexual penetration ... with [Mary], a female child (14) years of age , whose date of birth is March 25, 1996, by performing cunnilingus on [Mary], at a time when Malcolm Clifton Weeks was more than twenty-four (24) months older than [Mary] ... in violation of Section 97-3-95(1) (d) , Mississippi Code Annotated (1972, as amended)....
The State moved to amend the indictment to track subsection (c). Malcolm objected to the motion, but the trial court allowed the amendment. The sexual-battery counts, as amended, read:
Malcolm Clifton Weeks ... a male human being above the age of eighteen (18) years, whose date of birth is October 18, 1970, did willfully, unlawfully, and intentionally engage in sexual penetration ... with [Mary], a female child (14) years of age, whose date of birth is March 25, 1996, by performing cunnilingus on [Mary], at a time when Malcolm Clifton Weeks was more than thirty-six (36) months older than [Mary] ... in violation of Section 97-3-95(1) (c), Mississippi Code Annotated (1972, as amended)....
¶ 3. The only witness for the defense was Malcolm himself. Malcolm emphasized that he consistently had denied ever touching Mary inappropriately, that he had volunteered to assist the police in their investigation, and that he had refused to plead guilty in exchange for a lesser sentence. This testimony was consistent with that of Tucker, who had acknowledged on cross-examination that Malcolm had called her, ...