COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/13/2013. TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III. TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, GRATIFICATION OF LUST, AND SENTENCED TO FIFTEEN YEARS, AND COUNT II, SEXUAL BATTERY, AND SENTENCED TO THIRTY YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
FOR APPELLANT: KEVIN DALE CAMP, JARED KEITH TOMLINSON.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: MELANIE DOTSON THOMAS.
BEFORE GRIFFIS, P.J., ROBERTS AND CARLTON, JJ. LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.
NATURE OF THE CASE: CRIMINAL - FELONY
[¶1] Jeffery Mitchum appeals his convictions of sexual battery and gratification of lust. He argues that: the evidence was insufficient to support the verdict, the verdict was against the overwhelming weight of the evidence, and the trial court erred when it allowed hearsay statements. We find no error and affirm.
[¶2] In 2011, Mitchum lived with his mother, Tricia Lewis, and his stepfather, Brad Lewis. Tricia's daughter, Alice Jones, also resided with them. She was four years old. Mitchum and Alice were half-siblings. A total of nine people lived in the Lewises' three-bedroom house. Because there were few bedrooms, Mitchum slept on the living-room couch.
[¶3] On August 31, 2011, Alice was taken to the University of Mississippi Medical Center (" UMC" ) pediatric emergency room. Tricia had noticed a rash on Alice's vaginal area that caused redness and pain around her stomach. This was not the first time Alice had experienced these rashes.
[¶4] While at the emergency room, Alice was examined by Dr. Mary Catherine Stone. Dr. Stone testified that Alice was brought to the emergency room because of a sexual-assault complaint. Alice was accompanied by Tricia and Brad. During the examination, Dr. Stone observed redness and swelling in Alice's vaginal area. Additionally, Dr. Stone noticed that Alice's " vaginal opening was a little bit more generous than what you normally expect for a child her age." Alice told Dr. Stone that Mitchum had " tampered with her sexually." Dr. Stone testified that when Alice discussed what had occurred between her and Mitchum, she was very clear and had no hesitation. However, Dr. Stone could not confirm that Alice was sexually assaulted.
[¶5] Tiffany Kay Robinson, an employee of the Department of Human Services, was contacted to speak with Alice and her parents. She met them at the emergency room. Tiffany testified that Tricia told her that she and Alice were going to stay in a hotel room and that Mitchum was going to move out. Tiffany visited the Lewises' home and found that it was safe for Alice to live in.
[¶6] Dr. Scott Benton, the State's expert witness, testified that Alice was referred to him by the UMC pediatric emergency department. Dr. Benton initially spoke with Tricia, who told him that she became concerned about Alice's condition when Alice made complaints about painful urination. While bathing Alice, Tricia had noticed that Alice's vaginal area was swollen. Tricia questioned Alice, and Alice told her that Mitchum touched her vaginal area. Tricia told Dr. Benton that Mitchum had touched Alice with his fingers and something Alice referred to as a " jo-jo," which Alice described as a " stick with hair." Dr. Benton conducted a medical and case history on Alice, along with a physical examination, to determine whether sexual abuse had occurred. He concluded that a sexual assault had occurred.
[¶7] Investigator Shawn Terwilliger interviewed Mitchum on four occasions. Mitchum denied the allegations of sexual abuse. Initially, Mitchum told Investigator Terwilliger that Alice had never slept on the couch with him. He also denied that he had ever masturbated while on the couch. During his third interview, he admitted that Alice had slept with him on the couch, because she got scared. During this same interview, he also admitted that he had masturbated at some point while on the couch. Mitchum acknowledged that he had lied about the masturbation, because he was " embarrassed."
[¶8] Alice testified as a defense witness. On direct examination, she denied that Mitchum had ever sexually abused her or touched her inappropriately. On cross-examination, Alice admitted that she remembered telling the State's attorney that Mitchum had touched her " down below."
[¶9] Mitchum also testified and denied the allegations. He testified that when he was called in for interrogation by the police department, he was asked to give a mouth swab to check for DNA. He complied.
[¶10] In October 2012, Mitchum was convicted of sexual battery, a violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2006), and gratification of lust, a violation of Mississippi Code Annotated section 97-5-23(1) (Rev. 2006). He was sentenced to thirty years for the sexual-battery conviction and fifteen years for the gratification-of-lust conviction, to be served concurrently. He was also required to register as a sex offender upon his release. Mitchum filed a motion for a judgment notwithstanding the verdict, or in the alternative, a new trial. The motion was denied. It is from this judgment that Mitchum now appeals.
I. Sufficiency of the Evidence
[¶11] Mitchum argues that the trial court abused its discretion when it denied his motions for a directed verdict and judgment notwithstanding the verdict. Mitchum asserts that the evidence was insufficient to show beyond a reasonable doubt that ...