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Stewart v. State

Court of Appeals of Mississippi

February 7, 2017

KENNY STEWART A/K/A KENNY CORDELL STEWART APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 10/16/2014

         WARREN COUNTY CIRCUIT COURT, HON. M. JAMES CHANEY JR.

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN GEORGE T. HOLMES AAFRAM YAPHET SELLERS.

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN JASON L. DAVIS.

          DISTRICT ATTORNEY: RICHARD EARL SMITH JR.

         EN BANC.

          GRIFFIS, P.J.

         ¶1. Kenny Stewart appeals his conviction of sexual battery and molestation. Based on the facts of this case, we find molestation is a lesser-included offense of and merges with sexual battery. Therefore, we affirm in part, and reverse and render in part.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On August 2, 2013, Monica Lewis went to work and left her children at home with Stewart, her boyfriend. Shortly after she arrived at work, Lewis noticed a stain on her clothes and returned home to change. When she got home, Lewis realized her nine-year-old daughter, M.L., was not in her bedroom.[1] As a result, Lewis went to the bedroom she shared with Stewart and saw that the door was closed. When Lewis opened the door and turned on the light, she discovered M.L. in bed with Stewart. Specifically, M.L. was in the bed, on her back, with her hands behind her head. Stewart was in the bed, on his stomach, with his head between M.L.'s legs.

         ¶3. Stewart was indicted on Count I, sexual battery, and Count II, molestation. A jury trial was held during which M.L., Lewis, and an investigator with the Vicksburg Police Department testified. M.L. testified that on the morning in question, she went into her mother's bedroom to look for a remote control. She found the remote and took it back to her bedroom. Later, M.L. returned to her mother's bedroom to help Stewart look for a videogame accessory. Stewart asked M.L. to look on the bed under the pillow for the accessory. When she did not find it, Stewart asked M.L. to lie on her back in the bed and to take off her underwear. M.L. testified she could not see Stewart because he was under the covers, but felt Stewart's tongue on her vagina and also felt his tongue inside of her vagina.

         ¶4. At the close of the State's case-in-chief, Stewart moved for a directed verdict, which the circuit court denied. Stewart then rested. The jury returned a verdict of guilty on both counts. As to Count I, sexual battery, Stewart was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections, with twenty years to serve, five years suspended, followed by five years of post-release supervision. As to Count II, molestation, Stewart was sentenced to seven years in the custody of the Mississippi Department of Corrections, with two years to serve, five years suspended, followed by five years of post-release supervision. The circuit court ordered the sentences to run consecutively, and further ordered Stewart to register as a sex offender upon release.

         ¶5. Stewart filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. On appeal, Stewart argues: (1) the indictment failed to allege sufficient facts to put him on notice of the charges against him and to protect him from double jeopardy, and (2) the circuit court erred in failing to dismiss Count II of the indictment.

         ANALYSIS

         I. Whether the indictment failed to allege sufficient facts to put Stewart on notice of the charges against him and to protect him from double jeopardy.

         ¶6. Stewart asserts the indictment against him was insufficient "because it failed to allege specific facts to fairly inform him of the charges against which he must defend, and it lacked specific facts to enable him to plead double jeopardy in a future prosecution." Stewart raises this issue for the first time on appeal. However, his failure to challenge the sufficiency of the indictment at the circuit-court level does not bar us from considering the issue on appeal. See Williams v. State, 169 So.3d 932, 935 (¶8) (Miss. Ct. App. 2014) ("[I]t is settled that objections to the sufficiency of an indictment may be raised for the first time on appeal.").

         ¶7. The legal sufficiency of an indictment is reviewed de novo. Id. at (¶7). The purpose of an indictment is

to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense and to enable him to effectively assert his constitutional right against double jeopardy in the event of a future prosecution for the same offense.

Moses v. State, 795 So.2d 569, 571 (¶13) (Miss. Ct. App. 2001).

         ¶8. Count I of the indictment is entitled "Sexual Battery Victim Under Age 14" and alleges Stewart:

[O]n or about August 2, 2013, in the County aforesaid, and within the jurisdiction of [the circuit c]ourt did willfully, unlawfully and feloniously engage in sexual penetration with a child[, ] M.L.[, ] who was under the age of 14 years, whose date of birth was September 9, 2003[, ] and who was twenty-four (24) or more months younger than said defendant[, ] whose date of birth was September 16, 1984, in violation of Mississippi [Code Annotated section] 97-3-95(1)(d) [(Rev. 2006)], ...

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