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Williams v. State

Court of Appeals of Mississippi

August 22, 2017


          DATE OF JUDGMENT: 04/20/2016





          ISHEE, J.

         ¶1. In June 2013, Clyde Williams was indicted in Pearl River County, Mississippi, where he was charged with one count of sexual battery and two counts of attempted sexual battery of his stepdaughter, S.M.[1] Williams proceeded to trial in the Pearl River County Circuit Court in March 2016. The jury acquitted Williams for one count of attempted sexual battery, but found him guilty of the lesser-included offense of fondling on the remaining two counts.[2]Williams moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied. Williams was then sentenced to serve fifteen years for each count of fondling, with the sentences to run concurrently, and without eligibility for parole or probation; his sentence was to be served entirely within the custody of the Mississippi Department of Corrections (MDOC). He now appeals. Finding no error, we affirm.


         ¶2. S.M. is the stepdaughter of Williams, and was twenty years old at the time of trial. S.M. testified that Camelle, S.M.'s mother, and Williams first met when S.M. was approximately thirteen years old. S.M. stated that Camelle and Williams dated for four or five years before marrying. S.M. testified that, initially, her relationship with Williams was positive, and that he was a good stepfather; she detailed many outdoor activities they participated in together. S.M., however, stated that Williams remained "drunk a lot, " and that he and Camelle often fought, including over sex.

         ¶3. S.M. described the sleeping arrangements in her home. She stated that Williams would sleep with her in her bed almost nightly, while Camelle and S.M.'s stepsister slept in Camelle's room. It was through these sleeping arrangements that S.M. alleged the sexual abuse by Williams began. S.M. stated that she was fourteen years old when Williams first rubbed her breasts and buttocks. S.M. further testified that when she was fifteen, Williams's abuse progressed, wherein he began "putting his hands under [S.M.'s] shirt and in [her] shorts, " as well as groping her breasts and rubbing her buttocks and vagina. S.M. also testified that Williams began to digitally penetrate her. At one point, S.M. testified that when she was in her room, Williams undressed her, had her lie on her stomach, and rubbed his penis on her vagina until he ejaculated. S.M. stated that these incidents took place in her bedroom, in Williams's truck, in a tree stand, and at their leased hunting camp.

         ¶4. S.M. also testified that on July 2, 2012, while camping on land that was part of their hunting lease, Williams sexually abused her.[3] She stated that Williams was drunk and the two began to argue. S.M. went to the tent to lie down, but Williams came in shortly after and was "mad and . . . drunk." S.M. testified that Williams then took her clothes off and penetrated her digitally, and with his penis. She stated that she began crying out of resistance, and that Williams covered her mouth in an attempt to muffle her cries so that others nearby would not hear her. S.M. said Williams then got dressed, covered her up, and left the tent.

         ¶5. Additionally, S.M. gave testimony regarding an incident that took place in her bedroom on July 28, 2012. S.M. stated that she returned home and found Williams and his friend, Otis Fairley, in the yard. She testified that Williams was highly intoxicated. When S.M. began to walk toward the house, she stated that Williams commented to Fairley that he was going to "tap that tonight, " alluding to intercourse with S.M.; Fairley testified that he never heard the comment. According to S.M., Williams came in her room later that evening and attempted to place a plastic bag over her head; she ripped the bag, and eventually, Camelle came in the room and told Williams to leave S.M. alone. Even later that night, Williams allegedly returned to S.M.'s bedroom and tried to "mess with" her. S.M. ultimately stated that Williams digitally penetrated her vagina, and attempted to penetrate her with his penis. S.M., however, testified that she began to scream, that she told Williams to leave her alone, and that Williams promptly went to sleep afterwards.[4]

         ¶6. The following morning, July 29, 2012, S.M. conveyed to Camelle the allegations of Williams's abuse. Camelle was initially very angry, and questioned Williams regarding the alleged abuse; Williams denied any wrongdoing. S.M. then went to stay at her grandfather Herber Ladner's home, where she has resided in large part ever since. Upon informing Ladner of the abuse, he alerted the authorities.[5]

         ¶7. Williams was arrested following the allegations. He was indicted by a grand jury on one count of sexual battery and two counts of attempted sexual battery. Williams proceeded to trial, where he was ultimately convicted of two counts of the lesser-included offense of fondling. Following trial, Williams filed a motion for a JNOV or, in the alternative, a new trial. The circuit court denied Williams's motion, and sentenced him to a total term of fifteen years in the custody of MDOC. He timely appealed.


         ¶8. On appeal, Williams assigns as error the following: (1) fondling is not a lesser- included offense of sexual battery; (2) the circuit court erred in denying his motion for a mistrial; (3) the State committed prosecutorial misconduct; (4) the circuit court improperly limited his cross-examination of S.M.; and (5) certain expert testimony violated his constitutional right to confront witnesses against him. We disagree. Therefore, we affirm.

         I. Fondling as a Lesser-Included Offense of Sexual Battery

         ¶9. Williams asserts that the circuit court erred in granting the lesser-included instruction on fondling, as he argues that it is not a lesser-included offense of sexual battery. "Jury instructions are reviewed under an abuse-of-discretion standard." Burgess v. State, 178 So.3d 1266, 1272 (¶14) (Miss. 2015). "A lesser-included-offense instruction may be given where there is some evidence supporting the lesser-included offense." Jenkins v. State, 131 So.3d 544, 550 (¶18) (Miss. 2013).

         ¶10. Williams was indicted for sexual battery under Mississippi Code Annotated section 97-3-95(2) (Rev. 2006), which states:

A person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child's . . . stepparent[.]

(Emphasis added).[6] "Sexual penetration" is defined by statute to include "any penetration of the genital or anal openings of another person's body by any part of a person's body[.]" Miss. Code Ann. § 97-3-97(a) (Rev. 2006). Fondling, on the other hand, is defined under section 97-5-23(2) as follows:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child younger than himself or herself and under the age of eighteen (18) years who is not such person's spouse, with or without the child's consent, when the person occupies a position of trust or authority over the child shall be guilty . . . . A person in a position of trust or authority over a child includes . . . a child's . . . stepparent[.]

(Emphasis added).

         ¶11. In Friley v. State, 879 So.2d 1031 (Miss. 2004), the Mississippi Supreme Court was tasked with determining whether fondling was a lesser-included offense of sexual battery. There, Friley was indicted for sexual battery, but ultimately convicted of fondling. Id. at 1032 (¶1). Friley cornered the victim, touched her genital area, and then began touching himself. Id. at (¶2). The court held that, under the particular facts of that case, fondling was a lesser-included offense of sexual battery. Id. at 1035 (¶17). In reaching its conclusion, the supreme court analyzed when one offense may be considered a lesser-included offense of another, employing the test from Sanders v. State, 479 So.2d 1097, 1108 (Miss. 1985), which states:

Whether applied for the benefit of the [S]tate or defense, in order to authorize such instruction the more serious offense must include all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the lesser-included offense. Also, there must be some evidence to support the lesser-included offense.

Friley, 879 So.2d at 1034 (¶13).

         ¶12. Utilizing this test, the Friley court then highlighted the elements that each offense shared, noting, however, that fondling required the added intent element of "for the purpose of gratifying his . . . lust, or indulging his . . . depraved licentious sexual desires[.]" Id. at 1034-35 (¶14). Going further, the court stated that "a plain reading of the statutes shows that sexual battery (penetration) includes [fondling] (touching). It is impossible to penetrate without touching." Id. at 1035 (¶15). Most importantly, however, the court found that Friley's specific intent to gratify his lust-though not an element of sexual battery-was the only reasonable inference that could be drawn from his actions. Id. at (¶16). In a case of first impression, the Friley court made clear that "intent can be inferred from a defendant's actions, " and that "[fondling] may be a lesser-included offense to some types of sexual battery." Id. at 1034-35 (¶¶12, 16-17) (citing Moody v. State, 841 So.2d 1067, 1092-93 (Miss. 2003)).

         ¶13. Then, in Jenkins, a case decided less than four years ago, our supreme court reaffirmed the principles set forth in Friley. Jenkins, 131 So.3d at 550 (¶¶18-19). There, the Jenkins court again held that "fondling . . . is a lesser-included offense of sexual battery, " and that specific, lustful intent can be inferred "from the circumstances of the situation." Id. (citing Friley, 879 So.2d at 1035 (¶17)). More recently, however, this Court found likewise in Ringer v. State, 203 So.3d 794, 798-99 (¶¶16-17) (Miss. Ct. App. 2016). Ringer required us to determine whether there was sufficient evidence to uphold the defendant's sexual-battery charge. Ringer, 203 So.3d at 795-96 (¶2). Finding there was not, we reversed Ringer's conviction of sexual battery, and rendered a conviction on the lesser-included offense of fondling. Id. at 799 (¶18).

         ¶14. Thus, as this Court recently held in Ringer, we so find today-that "[fondling] can be a lesser-included offense of sexual battery when the penetration is alleged to have been done with a body part of the defendant and where a lustful purpose can be inferred from the circumstances of the touching." Id. at 798 (¶16) (citing Friley, 879 So.2d at 1034-35 (¶¶13-17)). The record reveals ample evidence supporting the lesser-included offense of fondling, which allowed the jury in this case to reasonably infer Williams's actions were for the purpose of gratifying his lust or his depraved, licentious sexual desires. Thus, in light of the law as it exists today, and the evidence presented at trial, we find that the circuit court did not err in granting the lesser-included fondling instruction. This issue is without merit.

         II. Denial of Motion for Mistrial

         ¶15. Williams next alleges that the circuit court erred in denying his motion for a mistrial after the State asked an improper question of Camelle during cross-examination. "Whether to grant a motion for a mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion." Ford v. State, 205 So.3d 1172, 1179 (¶29) (Miss. Ct. App. 2016). "The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's case." Rayner v. State, 186 So.3d 881, 893 (¶49) (Miss. Ct. App. 2015).

         ¶16. During the State's cross-examination of Camelle, the State asked Camelle whether it was true that Williams had previously been accused of improperly touching another child. Camelle stated that it was untrue, and that it had never happened. Following this question and answer, Williams objected and moved for a mistrial, which the circuit court ultimately denied. Beforehand, however, the circuit-court judge conducted a bench conference with the parties to discuss the subject of the motion. The State contended that Williams had "opened the door" after Camelle and Cindy Tanguis-the mother of the child that was the subject of the State's inappropriate question-had stated that they trusted Williams and had never heard of any similar prior incidents. Nonetheless, the question was found to be inappropriate.

         ¶17. As a result, the circuit court issued a limiting instruction to ...

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