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Williams v. State

Court of Appeals of Mississippi

January 10, 2017

THALMUS WILLIAMS A/K/A THUMBSTACK APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 09/09/2015

         COAHOMA COUNTY CIRCUIT COURT HON. ALBERT B. SMITH III JUDGE

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF GEORGE T. HOLMES

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE JASON L. DAVIS

          DISTRICT ATTORNEY: BRENDA FAY MITCHELL

         EN BANC.

          GREENLEE, J.

         ¶1. Thalmus Williams was convicted of fondling (Count II), attempted sexual battery by an authority figure (Count III), and sexual battery by an authority figure (Count IV).[1] He was sentenced as a habitual offender to fifteen years for Count II, thirty years for Count III, and thirty years for Count IV. The thirty year sentences for Counts III and IV were to be served concurrent to each other but consecutively to the fifteen year sentence for Count II. He does not appeal the conviction or fifteen-year sentence for fondling. On appeal, Williams argues that the evidence was insufficient to support the conviction for attempted sexual battery by anal penetration (Count III). He also argues that the indictment on Count IV was impermissibly changed by the jury instructions to charge a separate crime, requiring reversal of the conviction on that count. We agree-and the State essentially concedes-that the evidence was insufficient to support the conviction for attempted sexual battery under Count III. However we find that the discrepancy between Count IV and the jury instructions did not impermissibly amend the indictment and did not prejudice the defense. We therefore reverse and render on Count III, and affirm on Count IV.

         FACTS AND PROCEEDINGS BELOW

         ¶2. The victim, V.W., [2] is Williams's biological daughter and was ten years old at the time of the sexual contact. The incident occurred at the home of Williams's mother, Shirley Austin, where V.W. frequently visited. V.W. told her sister, K.W., about the inappropriate contact, who told their mother, who reported it to the police. The investigating officer arranged for a forensic interview at Family Crisis Services in Oxford, Mississippi, which was conducted by Meredith Rawl. V.W. did not receive a medical examination.

         ¶3. Prior to trial, the court conducted a "tender-years exception" hearing. See M.R.E. 803(25). The court found that V.W. had no reason to lie and understood lying was bad, that her statements were spontaneous, that she exhibited maturity, and that there was no evidence of improper or suggestive techniques being employed in her statement. As a result, the court permitted the hearsay testimony of V.W.'s sister and mother about what V.W. had told them. The forensic interviewer, Rawl, was also permitted to testify concerning V.W.'s statements to her. Rawl was accepted as an expert.

         ¶4. V.W.'s sister, K.W., testified that V.W. told her on the phone: "She told me that her father had tried to rape her, and she said that he showed her his privacy and tongue-kissed her." Rawl, the forensic interviewer, testified that, during the forensic interview, V.M. stated that her father showed her his penis and asked her to touch it, which she refused. Rawl further testified that

[V.W.] reported that her father kissed her - put his tongue in her mouth, and that her father put his hands on her vaginal area . . . . She reported that her father asked to lick her vaginal area and started trying to pull her pants down. She disclosed that he did lick her vaginal area. She reported that his hand rubbed on her vaginal area and inside her vagina - which she reported, "hurt."
She stated that her vagina hurt and [her] father started rubbing on her buttocks.
She said that, that felt moist.

         ¶5. Rawl's expert opinion was that her findings were consistent with the conclusion that the child had been sexually abused. She stated:

Based on the fact that she stated that her father showed her his penis. That his penis touched her buttocks. That he showed himself - touching his penis on her. Based on the fact he put his tongue in her mouth, and his tongue touched her vaginal area, as well as her buttocks. Based on that - based on the information that she was able to provide, my findings were consistent with that; that the child had been sexually abused.

         ¶6. The victim, V.W., who was thirteen at the time of the trial, testified that the sexual contact started after her father told her that he was going to braid her hair. She testified that he took her clothes off and that he put his mouth toward her private area. When asked "at any point, did his finger, or tongue, enter your body?" she replied "yes" and confirmed that the contact was "where you would pee out of." She was asked to confirm whether the statements she had made to the forensic interviewer were accurate: "'[I]t was hurting, and so he started rubbing on your [sic] butt'; is that correct? That, 'it was moist'; is that what you told [the forensic interviewer]?" To which V.W. responded "yes."

         ¶7. Williams's defense was that no sexual contact occurred. He testified on his own behalf. His brother testified on his behalf, asserting that he had also been at their mother's house that evening and that he did not see any inappropriate behavior. Williams's ...


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