OF JUDGMENT: 06/01/2015
COUNTY CIRCUIT COURT TRIAL JUDGE: HON. LISA P. DODSON
COURT ATTORNEYS: NATALIA VIAN PORSCHE MICHAEL W. CROSBY
ATTORNEYS FOR APPELLANT: MICHAEL W. CROSBY OFFICE OF THE
STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER GEORGE T.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
DISTRICT ATTORNEY: JOEL SMITH
Our trial judges have considerable discretion over discovery
matters. This discretion extends to the handling of requests
for continuances or mistrials based on alleged discovery
violations. In this case, an expert witness testified that
injuries to a child were consistent with sexual abuse. Her
reports, photographs of the injured body area, and expert
opinion were previously disclosed to the defense. Yet, at
trial, the defense took issue with the expert's testimony
about the relevance of the shape of some of the injuries.
After thoughtfully assessing the defendant's request to
exclude the expert's testimony, the trial judge denied
it. Though she found no discovery violation, the judge
recessed trial for the day so defense counsel could further
interview the expert. She also restricted the expert's
testimony to external injuries but allowed the expert to give
an opinion that the child's injuries resulted from sexual
On appeal, we find no abuse of discretion in the judge's
handling of this issue, nor do we find she abused her
discretion in denying a mistrial. Another alleged error
involving the giving of a Sharplin instruction lacks
merit. And the defendant's claims of prosecutorial
misconduct were either waived or unfounded.
Facts and Procedural History
In 2012, Jesse Frank Mouton lived with his brother Jody and
Jody's girlfriend Katelyn, at the Country Living Trailer
Park in Woolmarket, Mississippi. Katelyn often babysat Toni
Carpenter's children-three-year-old N.B. and two-year-old
A.B. On June 17, 2012, Toni noticed that N.B. "act[ed]
with discomfort" when she strapped him in his car
seat. Toni asked N.B. what was wrong. And he
said "his butt was hurting." He told her Mouton
"had been playing with his butt and wiener." When
Toni confronted Mouton, N.B. pointed to Mouton and again said
Mouton had played "with his butt and wiener."
Ocean Springs Hospital performed a sexual-assault examination
on the child. And Susan Auge, a Sexual Assault Nurse
Examiner, interviewed and examined N.B. Auge found four
injuries to N.B.'s anus-a "rather large"
abrasion and three anal tears. Auge concluded N.B.'s
injuries were consistent with sexual abuse. She produced a
ten-page forensic report, along with photographs taken during
N.B.'s interview and examination.
On April 13, 2015, a Harrison County grand jury indicted
Mouton on four counts of sexually assaulting N.B. Counts one
and two charged Mouton with sexual battery. Counts three and
four charged him with touching a child for lustful
Mouton was tried in May 2015. The State presented evidence
and testimony from Toni, Auge, and a Biloxi police
investigator, among other witnesses. Auge testified as an
expert witness. She described one of the tears to N.B.'s
anus as "V-shaped." In her opinion, the child's
anal tears were consistent with sexual assault.
Mouton objected, claiming the State failed to disclose
Auge's opinion on the significance of the
"V-shaped" tear. He argued this violated Mississippi
Uniform Rule of Circuit and County Court Practice 9.04. But
the trial judge disagreed. She found no discovery violation
and held the State had met its discovery obligations. Thus,
she denied Mouton's motion for a mistrial.
The judge did, however, grant a brief continuance and
recessed court for the day to give Mouton an additional
opportunity to question Auge about her expected testimony.
When trial resumed the next day, the judge permitted Auge to
testify. But the judge limited her testimony to only the
external injuries she had observed while examining N.B.
The State also called Toni as a witness. Inconsistencies
arose concerning her initial statement to police and trial
testimony. She originally told police Mouton's ex-wife,
Shannon McGrew, had informed her of other sexual-assault
allegations involving Mouton and one of his children. But at
trial, Toni claimed no knowledge of prior allegations against
Mouton. She testified she made these statements to the police
while she was "distraught and very flustered."
Mouton called Shannon in response. She testified that the
Mississippi Department of Human Services had cleared Mouton
in the prior sexual-assault investigation. During
cross-examination, the State asked Shannon if Mouton had
visitation with their children and whether that visitation
was supervised. Shannon answered affirmatively to both
questions. Shannon was the defense's sole trial witness.
After nearly four hours of deliberation, the jury sent a note
to the judge. The note explained the jurors were unable to
reach a unanimous decision and needed guidance. After hearing
from both sides, the judge decided to read a
Sharplin instruction to the jury, instructing them
to continue to deliberate. See Sharplin, 330 So.2d
at 596. Forty-one minutes later the jury returned its
verdict-finding Mouton guilty on one count of sexual battery
and not guilty of the remaining three counts.
Mouton filed a post-trial motion, seeking a new trial or
judgment notwithstanding the verdict. In it, he claimed three
specific errors-(1) the State violated discovery rules by
failing to disclose Auge's expert opinion on the shape of
N.B.'s injuries; (2) the trial court gave an improper
Sharplin instruction; and (3) the State committed
prosecutorial misconduct during Toni's and Shannon's
testimony. The trial judge denied Mouton's motion. On
appeal, Mouton raises the same three claimed errors.
From the beginning of trial, Mouton made a host of
inconsistent discovery-violation claims. But he only advances
one on appeal-that the State introduced undisclosed expert
testimony about the significance of the shape of N.B.'s
Mouton does not claim that Auge was not qualified to give an
opinion that N.B.'s injuries were consistent with sexual
abuse. Nor does he claim the State failed to provide
discovery and photographs depicting the child's anal
tears. Rather, what Mouton coins a discovery violation is
that Auge did not write the words "V-shaped tear"
in the disclosed materials. So, as he sees it, Auge could not
testify that one of the depicted tears to the child's
anus was V-shaped, and that N.B.'s injuries were
consistent with sexual abuse. For this reason, Mouton
insists, the judge erred by finding no discovery violation,
improperly allowing Auge to continue testifying, and not
granting his motion for a mistrial.
Standard of Review
The decision to admit or exclude evidence is left to the
trial court's discretion. Wade v. State, 583
So.2d 965, 967 (Miss. 1991) (citations omitted). And we
review evidentiary decisions for abuse of discretion.
Taylor v. State, 954 So.2d 944, 947 (Miss. 2007)
(citations omitted). This abuse-of-discretion standard also
extends to alleged violations of Mississippi Uniform Rule of
Circuit and County Court Practice 9.04 and to a trial
court's denial of motions for continuance or mistrial.
See Payton v. State, 897 So.2d 921, 942 (Miss. 2003)
(decisions on Rule 9.04 and motions for continuance are
within the trial court's discretion); see also Hurst
v. State, 195 So.3d 736, 744 (Miss. 2016) (decisions on
motions for mistrial are within the trial court's
Under Rule 9.04(I), if the State attempts to introduce
previously undisclosed evidence, the defense may object and
be afforded an opportunity to examine the evidence or
interview the witness. URCCC 9.04(I). If, after examination
or interview, the defense claims unfair surprise or
prejudice, the judge may either exclude the evidence or grant
a continuance or mistrial. Id.
Mouton's counsel admitted he had received Auge's
ten-page forensic report-a report that specifically diagrams
and pinpoints the three distinct tears to N.B.'s anus.
Defense counsel also acknowledged he had received photographs
of the tears. And he admitted receiving a letter from the
State, disclosing that Auge would testify that the
child's injuries were consistent with sexual ...