Levi L. JENKINS a/k/a Levi Jenkins a/k/a Levi Leverne Jenkins
STATE of Mississippi.
Rehearing Denied Feb. 20, 2014.
Michael W. Crosby, Gulfport, attorney for appellant.
Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
¶ 1. Levi Jenkins was indicted and tried in the Circuit Court of Pearl River County on two counts of sexual battery and one count of statutory rape against his then-five-year-old niece. He was convicted only of fondling, a lesser-included offense of the second count of sexual battery. Jenkins timely appealed, raising various issues. Finding his arguments to be without merit, we affirm the judgment of conviction of the Circuit Court of Pearl River County.
¶ 2. In the summer of 2007, V.R. and her mother were living in V.R.'s grandfather's home along with various cousins and uncles, including V.R.'s uncle, Levi Jenkins. V.R. was then five years old. Jenkins, who turned nineteen on July 5, 2007, babysat V.R. that summer while her mother was at work.
¶ 3. At trial, V.R. testified that, on various occasions, Jenkins would take her to a shed in the back yard, claiming to have a birthday present for her. Once inside, Jenkins would stand V.R. up or place her
on top of the washing machine, unzip his pants, pull down her pants and underwear, touch her " private parts" with both his hands and his " thing," and force V.R. to touch his " thing" with her mouth. V.R. stated that she would resist and that Jenkins's penis would only touch the side of her vagina, and that his penis did not enter her mouth. V.R. testified that she saw " white stuff" come out of Jenkins's " thing," and that he would use a towel from the dirty clothes to clean it up. Further, V.R. testified that Jenkins made her look at " nasty magazines" and " drink something only adults drink," and that he told her he would " whoop her" if she told anyone about what he had done.
¶ 4. According to V.R., this abuse happened multiple times between June and July of 2007, before her grandfather died and before August of 2007. However, she said one specific incident happened on July 16, 2007, which she testified she remembered because she wrote it in her diary. V.R. eventually told her stepmother, Melanie Lynn Frierson, about the sexual abuse because the " guilt was eating [her] alive." Frierson then notified the police.
¶ 5. Along with Frierson, who testified that V.R. had told her that she almost got raped by Jenkins and that Jenkins made her " suck his thing" in the shed, V.R. also described the alleged abuse to the following witnesses during August of 2007: Christian Clark, a forensic interviewer employed by the Child Advocacy Center in Gulfport, Mississippi; Kim Gutherz, a registered nurse who examined V.R. at the Care Clinic; and Rhonda Poche, a deputy for the Pearl River Sheriff's Department. Each of these witnesses testified to similar accounts that V.R. had given to them. Clark found that V.R.'s behavior was consistent with a child who had been sexually abused, as V.R. was not only able to describe sexual acts, but also was able to describe her experience of those acts. Poche testified that, during the police investigation, V.R. seemed embarrassed and kept her head down while she talked. Gutherz, however, testified that a physical examination did not reveal any bleeding or scarring, and that she could not physically conclude whether or not V.R. had been sexually abused.
¶ 6. The jury returned a verdict finding Jenkins guilty of the lesser-included-offense of fondling in Count II, but not guilty as to sexual battery in Count I and statutory rape in Count III. Jenkins was sentenced to serve a term of fifteen years in prison, ordered to pay a $1,000 fine and to register as a sex offender for the rest of his life, and he was prohibited from having any contact with V.R. or her family. After the trial court denied Jenkins's Motion for Judgment Notwithstanding the Verdict or in the Alternative a New Trial, Jenkins timely appealed. He now argues that a discovery violation occurred when V.R. testified to having a diary that was not disclosed during discovery. Further, he claims the indictment was fatally flawed because it did not specify the dates of the alleged abuse and because V.R.'s testimony varied the dates of the alleged abuse. Finally, he argues that there was insufficient evidence to support both the lesser-included-offense instruction on fondling as well as the conviction of fondling, and that the verdict was against the overwhelming weight of the evidence.
I. Whether the trial court erred in ruling that no discovery violation had occurred.
¶ 7. Jenkins first argues that the trial court erred by ruling that no discovery violation had occurred, after V.R. had made reference during her direct examination to a diary which was not disclosed in
discovery. Jenkins now contends that the court should have compelled the State to produce the diary and that he is entitled to a new trial under this Court's decision in Box v. State, 437 So.2d 19 (Miss.1983). He argues the diary may have contained exculpatory evidence, and that a recess from the proceedings should have been granted to allow his counsel to review the diary.
¶ 8. To establish that the abuse occurred during the period alleged in the indictment, the State asked V.R. the following questions:
Q. Did any of these things happen close to your birthday?
A. Yes, ma'am.
Q. Okay. Before August of that year?
A. (Witness nods in the affirmative). Between June and July. It was— I think the last time it happened it was July 16th.
Q. Why do you remember that day so specifically?
A. Because I wrote it in my diary a long time ago.
Jenkins's counsel immediately approached the bench and argued that a discovery violation had occurred because the prosecution had not disclosed a diary during discovery. The prosecution stated it did not have such a diary and contended that it could not " possibly predict every single thing a witness is going to say on the stand." Jenkins's counsel argued he had been " blasted with something that's not in discovery ... that may have exculpatory evidence," and asked to reserve a motion to " see what was said about the diary[,][a]nd then I may have a motion or something may lead to possible mistrial or something." The trial judge granted this request but also accepted the State's explanation that it did not have any knowledge of a diary. The trial judge instructed the State to move on to other questions, and no further testimony regarding the diary was given.
¶ 9. The following day, Jenkins renewed his motion and requested an opportunity to interview V.R. about the diary or to examine the diary itself. The trial judge allowed a continuing objection, but explained why he overruled Jenkins's motion:
I believe the utterance from the alleged victim reflected that she knew the date of the last incident because of her diary. And I ruled at that time that just for clarification that since the State did not offer any diary, did not know of any diary, it may or may not exist, or ask the witness about any diary that she may have kept, that I overruled your motion.
The trial judge reiterated that the diary was not being offered into evidence, and further stated that " the Box factors are not in play, because you're not even alleging that the State knew about any existence of any diary ... but we do agree that it was not intentional failure to provide something during discovery that does exist." The ...