COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 04/11/2013. TRIAL JUDGE: HON. JOHN HUEY EMFINGER.
FOR APPELLANT: JOHN R. McNEAL, JR.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: MELANIE DOTSON THOMAS.
BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Joe Cook was convicted in the Rankin County Circuit Court for two counts of sexual battery on his girlfriend's daughter and for one count of directing or causing a felony to be committed by the girlfriend's son. The evidence established that, with his penis and fingers, Cook penetrated the vagina of ten-year-old S.J. and forced her brother, nine-year-old H.L., to have sexual relations with his sister. Cook was sentenced as an habitual offender to a life sentence for each of the two sexual battery counts and to twenty years for the single count of causing a felony to be committed by a minor. The three sentences were made to run concurrently. Cook claims on appeal that the children's statements to a Sexual Assault Nurse Examiner (SANE) constituted inadmissible hearsay, that the children's statements to their great-grandmother and to a forensic interviewer constituted inadmissible hearsay, and that the trial court erred by sentencing him as an habitual offender. Finding that Cook's assignments of error are without merit, we affirm his convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2. Joe Cook was indicted on August 28, 2012, for two counts (Counts I and II) of sexual battery in violation of Mississippi Code Section 97-3-95(1)(d) (Rev. 2014) and for one count (Count III) of directing or causing a felony to be committed by a person under the age of seventeen years in violation of Mississippi Code Section 97-1-6 (Rev. 2014). Prior to trial, on March 19, 2013, the State moved to amend Cook's indictment to charge him as an habitual offender pursuant to Mississippi Code Section 99-19-81 (Rev. 2007), over the objection of Cook's attorney. The trial court granted the State's motion and amended Cook's indictment on March 26, 2013, thirteen days before the commencement of trial on April 8, 2013.
¶3. At the time of the alleged crimes, S.J. lived with her mother, her brother, H.L., and Joe Cook, her mother's boyfriend, in Rankin County, Mississippi. S.J. testified that, on March 3, 2012, Cook, along with S.J. and H.L., drove the children's mother to work. After going to Cook's sister's house, Cook, S.J., and H.L. returned home to the trailer they shared with the children's mother. According to S.J., Cook " asked us if we wanted to have some fun," but we " didn't know what it meant." In the living room of the trailer,
Cook produced his cellular phone and proceeded to show " sex videos" to S.J. and H.L., which depicted people " [h]aving sex." S.J. testified that she, H.L., and Cook then went into the back bedroom shared by Cook and the children's mother. Cook " showed us sex toys," including one " bullet," a black, " round metal piece with a wire to it." Cook also showed the children images of sex toys on his cellular phone. According to S.J., Cook explained that the sex toys were used " [t]o make you feel good." S.J. testified that Cook then removed his trousers, placed a condom on his penis, and " put his private part way in me." Additionally, S.J. testified that Cook touched her with his finger " [o]n the outside and part way in" and told her that she " had a pretty private." According to S.J., Cook " wanted my brother and me to have sex," so H.L. got on top of S.J. and H.L.'s private touched S.J.'s private. S.J. testified that Cook threatened to poison S.J. and H.L. and then made them take a bath and put on different clothes before they went to pick up the children's mother from work.
¶4. H.L. told a similar story at trial: he stated that Cook showed H.L. and S.J. videos which depicted " nasty stuff" involving people with no clothes on. According to H.L., Cook and S.J. went into the bedroom " and talked." H.L. then went into the bedroom and observed Cook placing " his thing inside my sister." H.L. " thought I was going to throw up" and went to the bathroom. When H.L. returned to the bedroom, Cook " told me to do some things to my sister that I didn't want to do." H.L. responded in the negative when asked whether he had touched his private to S.J.'s private, but stated that he did touch S.J. " where her nasty thing is." H.L. testified that Cook threatened that if he or S.J. told anyone, Cook " would kill us."
¶5. S.J. testified that she told her mother the day after Cook allegedly had abused her; H.L. testified that he told his mother " [r]ight after Joe Cook went to sleep" because of Cook's threats. Cook continued to live in the mother's residence " for a while." The mother testified that her children had told her of the alleged abuse, that they were " nervous and scared," and that she had confronted Cook. Cook responded that " he had caught the children having sexual acts with each other" and that he " took care of it." According to the mother, Cook stated that " he wanted an open family," that " he wanted us to talk with the kids about sex so they would know more." Specifically, Cook stated that he wanted S.J. and H.L. to observe Cook and their mother having sexual relations " just to know about the birds-and-the-bees . . . ." While she " didn't agree" with Cook's proposal " at all," she remained with Cook for " financial reasons" because she was " seven months pregnant about to go on maternity leave." The mother testified that Cook did not keep the children alone after the alleged abuse.
¶6. The great-grandmother of S.J. and H.L. and grandmother of their mother testified that S.J. and H.L. visited her house on a daily basis and that the mother's trailer is situated " across from my driveway" in Rankin County. The great-grandmother testified that one afternoon, S.J. requested that she (whom S.J. referred to as " Granny" ) come into the bathroom. S.J. proceeded to ask Granny whether a stain in her pants was blood, whereupon Granny responded that " if you notice any more, we'll take care of it . . . ." According to Granny, a few days later, S.J. again called her into the bathroom, that S.J. was " very upset," and that S.J. told Granny " that Joe had raped her." The great-grandmother testified that she promised S.J. not to tell anyone and, after about two or three days, " told my daughter [the
mother's mother] something had happened that needed to be addressed." This woman--the grandmother of S.J. and H.L.--testified that, after her conversation with Granny, she walked next door to the trailer of the children's mother to discuss the situation and that " [w]e agreed to go to the police department and file a report." The mother and the grandmother reported Cook's conduct with the children to the local police on April 23, 2012.
¶7. The day after the incident had been reported to the police, a detective was assigned to the case. The detective, according to his department's standard protocol, set up interviews for S.J. and H.L. with a forensic interview specialist with the Child Education Center (CEC) in Madison, Mississippi. The interviewer testified that she interviewed S.J. on May 14, 2012, and that she interviewed H.L. on May 18, 2012. On cross examination, the interviewer stated that her " training qualifies me to follow the protocol to make sure the interview is given consistently so that there can be--it can be shown whether it was a credible or incredible interview." Also during cross examination, she stated that she is " not qualified to say" whether S.J. " was or was not abused," but could only testify that " [i]t was a credible interview."
¶8. While S.J. disclosed to the interviewer that Cook had abused her, H.L. did not. The interviewer explained that H.L. " was extremely nervous and uncomfortable to the point that I asked him if he would be more comfortable with a male interviewer." The first interviewer, a woman, left the room and sent in a male interviewer to whom H.L. disclosed no abuse. On the basis of the interview with the children, the female interviewer recommended that the law enforcement investigation continue, that Mississippi Department of Human Services " ensure a safety plan for a child," that Catholic Charities conduct therapy, that a " child abuse medical exam" be conducted, and that the children have no contact with Cook.
¶9. A family nurse practitioner at the Mississippi Children's Justice Center of the University of Mississippi Medical Center (UMMC) who had been trained as a Sexual Assault Nurse Examiner (SANE) was tendered by the State and accepted by the trial court as an expert pediatric forensic nurse examiner. This witness testified that the Children's Justice Center (CJC) is " a medical entity within UMC" which takes " pediatric patients who are suspected victims of child physical or sexual abuse and neglect." She testified that she first obtains a history both from the patient and from the patient's guardian " or whoever brings them," taking into " account the previous medical record." According to this witness, " I talk to the patient themselves about why they're there." Following that discussion, she conducts a medical examination of the patient, including " a full head-to-toe checkup with forensic photography so it documents everything on the child that day, including anal/genital anatomy." The medical examination includes " lab work while the children are there, depending on what they tell us, to include testing for HIV and syphilis; often testing
for gonorrhea and chlamydia, depending on the allegations."
¶10. She went on to testify that she saw S.J. on May 2, 2012, that S.J. was ten years of age at that time, and that S.J. had been referred to the CJC by the UMMC " pediatric emergency room where she had been seen a couple of weeks prior." She testified that she also saw H.L. on July 24, 2012. According to the nurse practitioner, both S.J. and H.L. disclosed to her that Cook had abused them. The medical examinations of S.J. and H.L. revealed no physical injuries. The witness explained that she would not have expected to find injuries fifty days after the assault was alleged to have occurred. Moreover, she noted there is a " common misconception that penetration causes trauma to the hymen, that the hymen is a membrane, a sheet that has to be broken with the first penetration, and that's not true." Instead, according to her, because " estrogen aids in thickening the hymen and softening the hymen," for a child whose hymen has become estrogenized, signaling the beginning of puberty, trauma may not be evident. She had noted on S.J.'s records that S.J.'s hymen was estrogenized.
¶11. The nurse practitioner asserted that her main purpose in evaluating S.J. and H.L. was to ensure that they were physically healthy. But, while no medical treatment was required for S.J. " because her exam was normal," she opined that " [r]eferrals to psychological counselors is part of what we do." More specifically, she said, " [a]ll of our children who come in with allegations of suspected, even physical abuse but for sure sexual abuse, it's our general protocol to refer them for counseling." She testified that she had diagnosed both S.J. and H.L. with child sexual abuse and recommended counseling. The witness said that she did not observe any psychological problems with S.J. and H.L. related to the alleged abuse at the time of their respective examinations. According to her, with regard to S.J., " [g]iven what she had told me, I felt that she needed further evaluation for potential posttraumatic stress disorder and other things that happen when children have been sexually abused."
¶12. Following the denial of Cook's motion for directed verdict, Cook called three witnesses in his defense. First, he called a physician, who was tendered and accepted as an expert witness in the field of family medicine. The doctor testified that, " considering a 10-year-old child and an adult male," he would expect to find " significant trauma" to the hymen, " where the hymen has actually been torn or ripped and scars had begun to form." He stated that, regardless of the time between the alleged abuse and the medical examination, the impact of the adult male's penile penetration of the vagina of a female child would be evident: the hymen " will not grow back together. Once the hymen is torn the scarring is eviden[t]. Now when I say it will not go back together, you may have some reattachment of the tissue, but it will not be a normal hymen. You'll be able to see where it was torn." This expert further opined that tearing the hymen is also possible without sexual penetration: " there's been many cases of torn hymens from things like simply riding a horse or a fall on a staircase or gymnastics . . . ."
¶13. Cook also called his sister, who testified that, on March 3, 2012, Cook, S.J., and H.L. came by her house and did not leave until about 8:00 p.m. or 8:30 p.m.
Cook's third witness, his sister's husband, also testified that Cook, S.J., and H.L., remained with him and his wife until about 8:30 p.m. on March 3, 2012.
¶14. The State called two rebuttal witnesses. The first, Scott Anthony Benton, an assistant professor of pediatrics at UMMC, chief of the Division of Forensic Medicine at UMMC, and medical director of the Children's Justice Center, was tendered and accepted as an expert in the field of pediatric forensic medicine. He testified that, based on " the histories that I've heard [of S.J.], I would expect that there not  be physical findings in this child," considering that the examination was fifty days after the alleged sexual abuse. He opined that sexual abuse would not necessarily be physically evident in the victim, especially in the context of a male adult penetrating a child, in ...