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Mouton v. State

Supreme Court of Mississippi, En Banc

May 18, 2017


          DATE OF JUDGMENT: 06/01/2015







         ¶1. 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 assault.

         ¶2. 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[1] instruction lacks merit. And the defendant's claims of prosecutorial misconduct were either waived or unfounded.

         ¶3. We affirm.

         Background Facts and Procedural History

         ¶4. 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.[2] 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."

         ¶5. Ocean Springs Hospital performed a sexual-assault examination on the child.[3] 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.

         ¶6. 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.[4] Counts three and four charged him with touching a child for lustful purposes.[5]

         ¶7. 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.

         ¶8. Mouton objected, claiming the State failed to disclose Auge's opinion on the significance of the "V-shaped" tear.[6] 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.

         ¶9. 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.

         ¶10. 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.

         ¶11. 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.

         ¶12. 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.


         I. Discovery Violation

         ¶13. 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 anal tears.

         ¶14. 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.

         A. Standard of Review

         ¶15. 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 discretion).

         ¶16. 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.

         ¶17. 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 ...

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