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Brown v. State

Court of Appeals of Mississippi

April 25, 2017

JIMMY T. BROWN A/K/A JIMMY BROWN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/07/2015

         COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM SR. TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: JEANINE M. CARAFELLO ROSS R. BARNETT JR.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD.

          BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.

          ISHEE, J.

         ¶1. In November 2013, Jimmy T. Brown was indicted for one count of fondling his granddaughter when she was under the age of eighteen, in violation of Mississippi Code Annotated section 97-5-23(2) (Rev. 2014), and one count of fondling his granddaughter when she was under the age of sixteen, in violation of section 97-5-23(1). Brown proceeded to trial in the DeSoto County Circuit Court, where a jury found him guilty on both counts. On Count I, Brown was sentenced to a ten-year suspended sentence, with ten years of post-release supervision, to run consecutively to the sentence for Count II. On Count II, Brown received a sentence of five years in the custody of the Mississippi Department of Corrections (MDOC). Brown was ordered to pay $1, 000 in restitution to the Mississippi Children's Trust Fund. He now appeals.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. V.B.[1] is the granddaughter of Brown, and was twenty-one years of age at the time of trial. When V.B. was approximately three years old, her parents divorced, resulting in her living with her mother and father separately at different times in her life. She first went to live with her father in DeSoto County, Mississippi, when she was around seven years old. V.B. spent a great deal of time with her grandfather during the time she lived with her father. At trial, V.B. testified that on multiple occasions, when she was between the ages of eight and thirteen, Brown digitally penetrated her when she and Brown were alone at Brown's home. She further testified that sometime around the age of thirteen, she moved to Oklahoma to live with her mother. V.B. moved back to live with her father, however, when she was sixteen years old. At that time, V.B. explained that the sexual abuse resumed, and continued to take place until the last incident occurred when she was nineteen years old.

         ¶3. V.B. testified that when she was either sixteen or seventeen years old, Brown penetrated her with his penis. V.B. also elaborated on other instances regarding what Brown did to her, and where the specific acts took place. While V.B. knew that the abuse took place between the ages of eight and thirteen, and again between the ages of sixteen and nineteen, she could not provide specific dates due to the recurring nature of the sexual acts. It was not until July 2013 that V.B. confided in her brother that she had been sexually abused by Brown. Her brother then informed V.B.'s mother regarding the information, which led V.B. to eventually report the abuse to the DeSoto County Sheriff's Department.

         ¶4. Detective Jerry Owensby of the sheriff's department began an investigation into the matter. During the course of his investigation, Owensby interviewed V.B., V.B.'s mother, and other family members. At trial, V.B.'s mother corroborated V.B.'s testimony regarding the timeline of abusive events. Her mother also explained that she worked with authorities to help further corroborate V.B.'s allegations. In doing so, V.B.'s mother placed a phone call to Brown in the presence of Owensby, and the phone call was recorded. The phone call was played in the presence of the jury, and included Brown confirming that he had made inappropriate contact with V.B. at his home while Brown's wife was at work. Though Brown initially denied having sexual intercourse with V.B., he eventually admitted that he had done so to V.B.'s mother.

         ¶5. Following the phone call, Brown was taken into custody by Owensby and interrogated at the sheriff's department. Brown was properly read his Miranda[2] rights, acknowledged that he understood those rights, and waived them. Brown offered to tell Owensby whatever he needed to avoid arrest, but Owensby repeatedly told Brown to tell him the truth. Ultimately, Brown stated that V.B. had pulled her pants down, that she revealed her private parts to him, and that he touched those parts of V.B. Brown claimed V.B. was approximately seventeen or eighteen years of age at that time, and that he informed his wife afterwards. Brown additionally admitted to touching V.B.'s vagina at least four or five times total, all while being in a position of trust and authority over her. Brown, however, denied ever having sex with V.B. to Owensby.

         ¶6. Brown proceeded to trial, and was convicted by a jury on two counts of gratification of lust. Brown filed posttrial motions for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied Brown's motions. Brown now appeals. Finding no error, we affirm.

         DISCUSSION

         ¶7. On appeal, Brown asserts that the indictment failed to adequately notify him of the nature and cause of the accusations, rendering it defective; that the State failed to prove the essential elements of the crimes charged; that the circuit court erred in denying his motion to suppress; and that he received ineffective assistance of counsel. We disagree.

         I. The indictment provided Brown with sufficient notice of the charges against him.

         ¶8. Brown asserts that his indictment was defective, as it did not contain specific dates, and thus, did not sufficiently notify him of the charges against him. "The question of whether an indictment is defective is an issue of law and therefore deserves a relatively broad standard of review, or de novo review, by [an appellate c]ourt." Tapper v. State, 47 So.3d 95, 100 (ΒΆ17) (Miss. 2010). Under Uniform Circuit and County Court Rule 7.06, "[t]he indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." Expanding on Rule 7.06, the Mississippi Supreme Court has held that an indictment must contain: (1) the essential elements of the offense charged; (2) sufficient facts to fairly inform the defendant of the charge against which he must defend; and (3) ...


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