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Roberson v. State

Court of Appeals of Mississippi

September 5, 2017

RICKY E. ROBERSON A/K/A RICKY ROBERSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 02/21/2014

         LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: JULIE ANN EPPS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT

          DISTRICT ATTORNEY: BILBO MITCHELL

         EN BANC

          BARNES, J.

         ¶1. Ricky Roberson appeals his convictions of two counts of child exploitation and one count of gratification of lust. Roberson raises ten issues on appeal. We find error as to two of the issues-(1) the introduction of a witness's prior consistent statement, and (2) the introduction of opinion testimony as to the veracity of witness testimony. Further, the State admits that the introduction of testimony that Roberson had fathered the child of a high-school student and that the child was put up for adoption was irrelevant. Although inadmissible, these three categories of evidence had little, if any, prejudicial effect given the weight of the evidence against Roberson. Thus, we find their admission was harmless error. We find no error as to the remaining issues and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On Monday, September 10, 2012, S.E.[1] and her father met with officials at Clarkdale High School to report that an employee there, Roberson, had touched S.E. inappropriately. S.E. attended Clarkdale High School from 2010 through 2012. During this time, Roberson was the girls' softball coach at the school, and S.E. was one of the players on the team. John Compton, the school board's attorney, interviewed several students and a teacher regarding the allegation. The school board concluded no further action was necessary. S.E. then reported the allegations to the Lauderdale County Sheriff's Department.

         ¶3. The sheriff's department's investigation led to an eight-count indictment against Roberson involving three victims. Roberson was convicted of Counts I, II, and VIII. Count I charged child exploitation during December 2010 as to victim L.B. Count II charged child exploitation between February 14, 2011, and April 30, 2011, as to L.B. Count VIII charged gratification of lust between June 2010 and August 31, 2010, as to S.E. Count VII, which charged gratification of lust between 2003 and 2004 as to alleged victim B.L., was nolle prossed prior to trial. A directed verdict was granted as to Count IV, which charged gratification of lust between June 1 and 10, 2012, as to S.E. Roberson was acquitted of the remaining charges.

         ¶4. At trial, S.E. testified that Roberson inappropriately touched her on approximately five occasions during the summer and school year in 2010. S.E. alleged that between June 2010 and August 2010, Roberson asked her multiple times to come to his office, where he touched and rubbed her outer and inner thigh, approximately an inch and a half below her crotch. She further testified that on three occasions in 2012, Roberson French kissed her in his office.

         ¶5. S.E. testified that a week after her eighteenth birthday on July 31, 2012, Roberson told her he had left something for her in her softball bag. She stated he asked her to come to his office to open it. S.E. testified he removed the following items from her bag: lotion, flowers, and various pink items-a hat, a racerback tank top, a water bottle, a cup, a bracelet, a Sharpie marker, and a "squishy toy." She stated that on another occasion he asked her if she had found the items he had left in her car. In her car she found pink flip-flops and pink sunglasses. Several of the items were admitted into evidence at trial. She stated that all the gifts were pink because Roberson knew that was her favorite color.

         ¶6. S.E. also alleged that in the summer of 2012, he invited her to a restaurant, and on more than one occasion he invited her to his hunting camp to "lay out nude" while he was there. She stated that more than once, he told her that her "butt looked good" in the pants she was wearing, and he asked her what color panties she was wearing. She testified that he told her he wanted her to wear pink lacy panties for him. She stated he also told her "that he made that body and he could look at it whenever he wanted to." She stated he would grab, slap, and rub her back side and legs. She testified she was too embarrassed to report his behavior at the time. She stated that she attended Clarkdale High School from ninth grade through the first half of her twelfth-grade year, but she left the school in December 2012 and did not return for the spring semester of her senior year because of Roberson's conduct.

         ¶7. Roberson was interviewed by Detective David Rosenbaum on September 25, 2012. He also gave a written statement on that day. In his interview, Roberson initially denied S.E.'s allegations. However, later in the interview, he admitted he and S.E. hugged and kissed on several occasions, once kissing on the lips. But he denied any lustful intent and regretted any action S.E. might have mistaken as inappropriate. In his written statement, he wrote: "[T]he allegations made by [S.E.] are totally false. She conspired against me[, ] even asking girls to lie[.] She admitted she was mad at me because of things I said[.]"

         ¶8. The other victim, L.B., attended Clarkdale High School and was on the softball team from eighth grade through her graduation in May 2012. She testified that in December 2010, she went to the school to deliver money to Roberson for a team dinner. She stated she spoke with Roberson about the relationship she was in at the time; Roberson discussed his relationship with his wife, saying there was no passion left, and he told her his cancer had returned. She stated he told her that if she ever needed a real man, she knew where to go. She stated he also told her there was a benefit to being with an older man, that he could not get her pregnant.

         ¶9. L.B. testified that Roberson knew she liked to fish and hunt, and he offered to take her to his hunting camp, so he could lie down with her in front of a fire and please her. She stated he told her about his sexual fantasies, such as wearing blindfolds and costumes and role playing. She testified he would contact her by phone and text and, during school, he would text her and ask her to come to his room at break. She testified she tried to avoid going to his room. L.B. stated that in January or February 2011, Roberson asked her to drive him to his vehicle. She stated she agreed, and the two of them first went to a Mexican restaurant together. She testified that while she was driving, he told her to stop, and when she turned to ask why, he tried to kiss her on the lips.

         ¶10. L.B. also testified that Roberson gave her various gifts. She stated that he gave her chocolates on Valentine's Day in 2011. And although she could not recall the time frame, she testified he left gifts in her batting bag, car, and locker, and he gave her lotion, which he stated he wanted to rub on her legs. She stated he told her he liked her legs and would pay for breast implants if he could play with them whenever he wanted. She further stated he told her he bought her a vibrator, but she could only have it if she went to the hunting camp with him and let him use it on her.

         ¶11. L.B. testified she recognized that Roberson was interested in S.E. from watching their interactions. L.B. stated she told Roberson to leave S.E. alone because S.E. would get him in trouble. L.B. testified that Roberson called her on September 19, 2012, and thanked her for her support. She testified she did not understand his comment at the time.

         ¶12. In his written statement, Roberson admitted he talked to L.B. about "a lot of things sexually, " which he knew was inappropriate. He denied that he wanted to have sex with her. He admitted a kiss did occur, but stated that L.B. mistakenly thought he was trying to kiss her on the lips. Roberson admitted it was a foolish mistake and stated he respected L.B. and had "no recollection of any touching in a lustful" manner. But he admitted: "I was lured by the idea of an attractive young lady talking about intimate things. I yielded to temptation. I regret my actions . . . . [L.B.] made some mistakes also. Because I'm the adult I must answer for it. . . . I deeply regret my mistakes."

         ¶13. Evidence of two prior alleged victims was presented to the jury. The first, A.M., did not testify at trial. However, evidence of her past sexual relationship with Roberson and subsequent pregnancy and adoption of the child were introduced at trial through A.M.'s statement to Detective Rosenbaum and Roberson's oral and written statement. A.M. told Detective Rosenbaum that she and Roberson had a consensual sexual relationship from 1984-85, while A.M. was a student at Clarkdale High School. A.M. was fifteen or sixteen at the time. In his written statement, Roberson admitted to having sex in the mid-1980s with A.M. while she was babysitting Roberson's child. Roberson wrote, "She never accused or told me I was the father of her child[, ] although in her statement she claims I am." In his interview with Detective Rosenbaum, Roberson stated A.M. was the aggressor in the relationship, even threatening him if he did not cooperate and have sex with her. Detective Rosenbaum reported that when asked about the pregnancy, Roberson stated that "he accepts this and should have reported it when it happened, " but that he was "young, foolish[, ] and scared." Roberson also told Detective Rosenbaum "that he has lived with this mistake for ma[n]y years."

         ¶14. K.T. testified that in 1983, while she was a student at Clarkdale High School, Roberson flirted with her and locked her in his classroom during lunch and break every day. She alleged they would kiss, touch, hug, and rub each other, and this went on from the time K.T. was fifteen until she was seventeen. She testified that one weekend, Roberson planned to go on a hunting trip with the school principal, and he told K.T. that he was going to come back early so the two of them could meet at his house. She did not go. K.T. testified the contact stopped when he told her to meet him for sex or "get out, " and she left. K.T. testified that at the time, she was Roberson's teaching assistant, and Roberson refused to give her the school credit she earned for working for him. She told her mother and the principal about Roberson's behavior, and the principal referred them to the school superintendent. The school's investigation did not result in any charges or discipline against Roberson. The matter was not reported to police. Roberson now denies K.T.'s claims, alleging that she and her mother made false accusations against him because he rejected their advances.

         ¶15. As part of his defense at trial, Roberson presented evidence that S.E. was out to get him because of a pregame speech he made just two days prior to her allegations. This evidence was presented through the testimonies of Roberson's daughter, Robbie Cooper, who worked as a teacher and counselor at Clarkdale High School, and two students. They testified that on Saturday, September 8, 2012, Roberson gave a speech, in which he made comments about a student who had recently been killed in an automobile accident. According to the witnesses, Roberson implied that the student's lifestyle may have led to his death and commented that some lifestyle choices have such consequences. According to the witnesses, S.E. took this as a personal attack on her lifestyle. Cooper and the two students testified S.E. was upset after the speech. One of the students testified that on Monday morning following the speech, S.E. told a group of softball players that she was going to "get" Roberson and that they "needed to have her back." The other student testified that S.E. told her that she "wasn't going to play good" at the upcoming softball games. S.E. admitted that she met with some of the other softball players on the morning of September 10 and told them they needed to have her back. But she denied stating she was going to "get" Roberson. S.E. testified her statement meant she was going to tell the truth about Roberson's inappropriate behavior, and she needed their support.

         ¶16. Roberson also put on evidence from Dr. John Clay that he suffered from tongue cancer and would have had difficultly performing some of the accused acts. Dr. Clay testified that Roberson developed tongue cancer in 2007, and it returned in December 2010. In January 2011, Roberson had a neck dissection and his lymph nodes removed. Dr. Clay described the side effects of the chemotherapy and radiation, such as hair loss and the inability to eat. Dr. Clay testified that Roberson's surgical scar would have been visibly noticeable. Roberson was hospitalized in March 2011 for septicemia, dehydration, and malnutrition. Dr. Clay was concerned that Roberson would not survive. However, Dr. Clay testified that he could not say it was physically impossible for Roberson to have committed the crimes charged.

         ¶17. After the jury returned its guilty verdict, Roberson was sentenced to ten years each on Counts I and II, with the sentences to run concurrently. On Count VIII, he was sentenced to fifteen years, with thirteen years suspended and five years' probation, with this sentence to run consecutively to the sentences in Counts I and II. He was ordered to register as a sex offender and pay a $50, 000 fine, with $45, 000 suspended, and to pay $1, 000 to the Mississippi Children's Trust Fund. Roberson's posttrial motions for a judgment notwithstanding the verdict and new trial were denied.

         ¶18. Roberson appeals, raising ten issues: (1) the trial court erred in allowing the State to constructively amend the indictment; (2) the trial court erred in not requiring the State to prove that Roberson acted with specific intent to violate the law; (3) evidence of prior bad acts was erroneously admitted; (4) the trial court erred in admitting hearsay and opinion testimony and prior consistent statements of witnesses to bolster witnesses' credibility; (5) the prosecution misused the bad-act evidence to argue propensity and improperly vouched for the credibility of its witnesses; (6) the trial court erred in denying Roberson's request to sever the indictment; (7) the trial judge made comments that skewed the evidence in favor of the State; (8) the trial court erred in denying Roberson's request for discovery of notes taken during the school board's investigation; (9) the evidence was insufficient to support Roberson's gratification-of-lust conviction on Count VIII, or, alternatively, it was so weak and contradictory that a new trial should be granted; and (10) cumulative error.

         ¶19. On March 31, 2016, this Court ordered supplemental briefing on issue eight, subsection A, which argued that the trial court erred in quashing Roberson's motion for a subpoena duces tecum to the Lauderdale County School District. In the subpoena, Roberson sought the school-board attorney's interview notes taken during the investigation of this matter, as he believed the notes might contain exculpatory material to which he was entitled. See Brady v. Maryland, 373 U.S. 83 (1963). After review of the supplemental briefs, we entered an order on June 28, 2016, finding the trial court erred in quashing the subpoena without first conducting an in camera review of the interview notes. The order remanded the matter to the trial court to conduct an in camera review and hold a hearing on whether any discoverable, exculpatory material was withheld, and, if so, whether Roberson was entitled to a new trial. On October 18, 2016, the trial court entered an order finding that the interview notes contained no exculpatory material and that Roberson was not entitled to a new trial. The parties have submitted additional supplemental briefs. Roberson argues the notes were exculpatory and their suppression resulted in the denial of a fair trial. We will discuss this issue with issue eight raised above.

         DISCUSSION

         I. Indictment

         ¶20. Roberson argues that the jury instructions omitted the specific facts charged in the indictment and that this, in effect, constructively amended the indictment.

         ¶21. Each count of the indictment set out the statutory basis for the charges and contained the dates and relevant factual basis for each charge. As to Count I, child exploitation, the indictment charged that in December 2010, Roberson enticed L.B. "to meet with him for the purpose of engaging in sexually explicit conduct by telling her that he had needs that needed to be fulfilled, that there were benefits to having sex with an older man, and that he could not get her pregnant." Count II charged that between February 14, 2011, and April 30, 2011, Roberson enticed L.B "to meet with him for the purpose of engaging in sexually explicit conduct by buying her chocolate candy, perfume and lotions that he wanted to rub on her body."

         ¶22. However, the jury instructions for these counts do not include these specific facts. Rather, they provide dates and track the language of the charged statute. The dates are consistent with those charged in the indictment. Instruction S-1A, the jury instruction for Count I, follows the child-exploitation statute, Mississippi Code Annotated section 97-5-33(6) (Rev. 2014), and states that if the jury finds beyond a reasonable doubt that:

1. On or about and during December, 2010, in Lauderdale County, Mississippi,
2. The Defendant, Ricky E. Roberson, did willfully, unlawfully and knowingly entice, induce, persuade, seduce, solicit, coerce and/or order [L.B.],
3. a child under the age of eighteen (18) years,
4. to meet with him for the purpose of engaging in sexually explicit conduct,
then it is your sworn duty to find [Roberson] guilty of exploitation of a child in Count I.

         The instruction for Count II, S-2A, is identical, with the exception of the dates of the offense, which for Count II were between February 14, 2011, and April 30, 2011.

         ¶23. As to gratification of lust in Count VIII, the indictment charged that during or between June and August 2010, Roberson gratified his lust "by rubbing the inside of [S.E.'s] thigh[.]" Instruction S-8A follows the language of Mississippi Code Annotated section 97-5-23(2) (Supp. 2016) and states that if the jury finds beyond a reasonable doubt that:

1. On or about and between June 1, 2010, and August 31, 2010, in Lauderdale County, Mississippi,
2. the Defendant, Ricky E. Roberson, did willfully, unlawfully and knowingly rub, touch or handle [S.E.] with his hand or other body parts
3. for the purpose of gratifying his lust or indulging his depraved licentious sexual desires
4. at a time when the defendant was over the age of eighteen (18) years and [S.E.] was under the age of eighteen (18) years and not his spouse, and
5. Ricky E. Roberson then occupied a position of trust or authority over said child,
then it is your duty to find [Roberson] guilty of lustful touching of a child in Count VIII.

         ¶24. Roberson argues that due to the general nature of the jury instructions, reversal is warranted because he was deprived of notice of the facts for which he was convicted, and he may have been convicted on facts not charged in the indictment. Roberson objected to the instructions and proposed his own instructions, which tracked the indictment. The trial court overruled the objection and denied the proposed instructions, finding that the instructions only needed to include the legal elements.

         ¶25. The supreme court has explained that an impermissible constructive amendment to an indictment

occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged. A constructive amendment of an indictment is reversible per se. Reversal is automatic because the defendant may have been convicted on a ground not charged in the indictment.

Bishop v. State, 812 So.2d 934, 941 (¶25) (Miss. 2002). "Not all variances between the indictment and instructions constitute a constructive amendment[.]" Bell v. State, 725 So.2d 836, 855 (¶61) (Miss. 1998). As long as the change does not "materially alter facts which are the essence of the offense on the fact of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood in a way that would prejudice the defendant's case, then the amendment is permissible." Miller v. State, 740 So.2d 858, 862 (¶13) (Miss. 1999). "[D]etermining whether the defendant is prejudiced by the amendment depends on whether a defense under the original indictment would be equally available under the amended indictment." Givens v. State, 730 So.2d 81, 87 (¶20) (Miss. Ct. App. 1998). Whether an indictment was improperly amended is a question of law, which we review de novo. Lepine v. State, 10 So.3d 927, 934 (¶11) (Miss. Ct. App. 2009).

         ¶26. Roberson does not argue that the variances between the jury instructions and the indictment modified an essential element of the crimes. Rather, he argues that the jury instructions omitted the factual basis of the crimes. The cases Roberson cites do not support his contention that this was error, as the cited cases hold that the factual basis of the indictment cannot be impermissibly altered, whereas here the concern is that the facts were omitted from the jury instructions. See, e.g., Lester v. State, 692 So.2d 755, 776 (Miss. 1997) (finding the indictment was impermissibly amended during trial to change dates and add multiple battery offenses) (overruled on other grounds by Weatherspoon v. State, 732 So.2d 158 (Miss. 1999)).

         ¶27. Both the indictment and the jury instructions followed the statutory elements of the crimes, and no facts were altered or added. The indictment gave specific notice of the essential facts, as required by Uniform Rule of Circuit and County Court 7.06, [2] and the proof at trial conformed with facts charged in the indictment. The jury instructions did not alter the elements of the crime in any way; nor was Roberson prejudiced or deprived of notice of the charges against him. This issue is without merit.

         II. Specific Intent to Violate the Law

         ¶28. Roberson argues that the trial court failed to require the State to prove he acted with specific intent to violate the law. Roberson argues this would have been cured by proposed jury instruction D-7, which the trial court refused as confusing. Proposed instruction D-7 reads:

The Court instruction [sic] to the jury that the words "knowingly" and "willfully" as these terms have been used from time to time in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say with a bad purpose either to disobey or disregard the law.

         ¶29. "A trial judge may refuse an instruction which incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the instructions." Blackwell v. State, 915 So.2d 453, 456 (¶11) (Miss. Ct. App. 2005). We review the jury instructions as a whole. Id. "If the instructions, read as a whole, fairly announce the law of the case and create no injustice, there is no reversible error." Id.

         ¶30. We first note that neither statute under which Roberson was charged uses the word "willfully." Child exploitation under section 97-5-33(6) requires proof that the accused did "knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with [him] for the purpose of engaging in sexually explicit conduct." Gratification of lust under section 97-5-23(2) does not contain a specific mens rea requirement, such as knowingly or willfully, but requires the accused to have acted "for the purpose of gratifying his . . . lust." Nonetheless, the State chose to include in the indictment charging language that Roberson "willfully, unlawfully, feloniously, intentionally[, ] and knowingly" committed each crime. The jury instructions tracked this language, requiring that for each count, Roberson must have acted "willfully, unlawfully[, ] and knowingly."

         ¶31. Roberson argues that because the indictment used the word "willfully, " an instruction defining "willfully" was necessary for the jury to understand "that Roberson had to act knowing his acts were illegal." His concern is that "[b]ecause [he] admitted to many of the charged acts, the jury could have found him guilty because his acts were intentional without finding that he intended to violate the law." Roberson cites to Renfrow v. State, 34 So.3d 617, 625 (Miss. Ct. App. 2009), in support of his argument. In Renfrow, the defendant was indicted for possession of child pornography under Mississippi Code Annotated section 97-5-33(5), which contains no mens rea requirement. Renfrow, 34 So.3d at 625 (¶17). However, the indictment charged Renfrow with "willful" possession of child pornography. Id. at 624 (¶15). We held that "[b]y including that language, the State imposed a mens rea requirement, and it was obligated to prove that aspect of the charge beyond a reasonable doubt." Id. at 625 (¶19). We cannot find Renfrow applicable, as the indictment there charged a mens rea element not contained in the statute; whereas here, the charging statutes both contain intent requirements.

         ¶32. We find the trial court was correct in refusing instruction D-7 as confusing. First, we cannot find that Roberson's argument and proposed jury instruction are correct statements of the law. Under the indictment, the State was required to prove that Roberson "willfully" committed the elements of the crimes charged, not that Roberson acted with willful intent to violate the law. See, e.g., Lofton v. State, 818 So.2d 1229, 1236 (¶27) (Miss. Ct. App. 2002) (finding a jury instruction proper where it required the jury to find that the defendant's actions were "for the wilful, unlawful and felonious purpose of then and there gratifying [the defendant's] lust"). The Mississippi Supreme Court has explained, "'[u]nder the common law, proof of criminal intent is a necessary element in the prosecution of every criminal case, (except those offenses which are merely malum prohibitum).' We have stated that intent to commit a crime is not required, but rather the mere intent to commit the act is sufficient where certain acts have been enumerated unlawful by statute." Blue v. State, 716 So.2d 567, 572 (¶18) (Miss. 1998) (quoting Collins v. City of Hazlehurst, 709 So.2d 408, 413 (¶27) (Miss. 1997)). Thus, the language in D-7 defining "knowingly" and "willfully" as requiring "specific intent . . . to disobey or disregard the law" was misleading.

         ¶33. Many courts have discouraged jury instructions attempting to define the intent required to commit a crime as confusing, and instead encouraged the use of elements instructions to set out the mental state required to commit the crime. See Kevin F. O'Malley, Federal Jury Practice and Instructions, Criminal, § 17:03 (6th ed. 2006). For example, in United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999), the United States Court of Appeals for the Fifth Circuit held that the failure to give a jury instruction defining the word "knowingly" was not error when the elements instruction set out the required mental state. Also, the Seventh Circuit Court of Appeals has held that the refusal to give a "specific intent" instruction is not error where the trial judge "adequately instructs [the jury] on the requisite mental state by other means." United States v. Arambasich, 597 F.2d 609, 612-13 (7th Cir. 1979). In so holding, the Seventh Circuit stated: "It is not very helpful to speak of a defendant's 'purpose' to violate the law . . . . Use of the phrase 'purposely intending to violate the law' may be erroneously interpreted by jurors, for example, to require that the defendant know his act violates a criminal statute, which is ordinarily unnecessary[.]" Id.

         ¶34. Neither the criminal statutes at issue nor the indictment required proof that the defendant willfully intended to violate a criminal statute. The trial judge did not abuse his discretion in denying jury instruction D-7. The remaining instructions setting out the elements of the offenses properly instructed the jury on the law. This issue is without merit.

         III. Prior-Bad-Act Testimony

         ¶35. Roberson argues that the trial court erroneously admitted A.M.'s and K.T.'s allegations of prior bad acts from the 1980s. He argues the allegations should have been excluded because they were factually distinct, too remote in time, and more prejudicial than probative.

         A. Prior Sexual Acts with Students

         ¶36. Mississippi Rule of Evidence 404(b)[3] states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, ...

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