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Portis v. State

Supreme Court of Mississippi

June 14, 2018

RICKEY PORTIS a/k/a RICKY C. PORTIS a/ka RICKY PORTIS
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 04/25/2016

          JONES COUNTY CIRCUIT COURT HON. DAL WILLIAMSON TRIAL JUDGE

          TRIAL COURT ATTORNEYS: KRISTEN E. MARTIN GAY L. POLK-PAYTON JEANNENE PACIFIC DENNIS LEE BISNETTE PATRICK LANCE PACIFIC BRAD RODRICK THOMPSON

          ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES W. DANIEL HINCHCLIFF

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON

          DISTRICT ATTORNEY: ANTHONY J. BUCKLEY

          BEFORE KITCHENS, P.J., KING AND COLEMAN, JJ.

          KING, JUSTICE

         ¶1. Rickey Portis was convicted of two counts of sexual battery based on allegations that he repeatedly abused his then eight- and nine-year-old stepdaughters, Amy and Mary Collins.[1] The trial court sentenced him to two life sentences, to run consecutively. Portis appeals his convictions, arguing that the trial court erred by refusing to grant a continuance, that the trial court erred by failing to allow him to introduce a prior inconsistent statement of a prosecution witness, that the verdict is not supported by sufficient evidence, that the verdict is against the overwhelming weight of the evidence, that cumulative error requires reversal, and that Portis's sentences are disproportionate to the crime. Because the trial court did not commit reversible error, this Court affirms Portis's convictions and sentences.

         FACTS

         ¶2. Amy and Mary lived with their mother, Dee Smith, their younger maternal half- brother, and their stepfather, Rickey Portis. They frequently visited the home of their father, John Collins, and stepmother, Ramona Collins. They were also close to their oldest paternal half-sister, Mandy Clark. In February 2015, one or both of the girls told Ramona that Portis had touched Amy. Ramona informed Mandy. On February 21, 2015, Mandy took Amy, Mary, and their younger half-brother to Dairy Queen. She took Amy and Mary to the restroom and asked them if anyone had been touching them. Mary encouraged Amy to tell Mandy and Amy got upset; Amy and Mary then told Mandy that Portis had been touching Amy inappropriately. Amy had been afraid to tell anyone because she was afraid she would be in trouble. Mandy reported this information to Dee when she returned the girls, and then took the girls to their father's house.

         ¶3. At trial, Mandy testified that Mary told her that Portis also touched her, but on cross- examination, she was confronted with her original statement to police, in which she stated that Mary had told her that Portis did not touch her. Mandy stated that "[i]t's not in [the statement to police], but she told me."[2]

         ¶4. John reported Amy's allegations to Deputy Richard Stockman of the Jones County Sheriff's Department. Deputy Stockman contacted the investigator on call, Sergeant Tonya Madison. Sergeant Madison met with Amy and Mary on February 23, 2015. Amy told Sergeant Madison that Portis had touched her inappropriately. Mary told Sergeant Madison that Portis had not touched her, but that she had witnessed Portis trying to get Amy in his bed. On March 2, 2015, Sergeant Madison took both girls for a forensic interview at Wesley House in Meridian.

         ¶5. Olga Kahle, a mental health therapist with Wesley House who has a Ph.D. in psychology and is a Diplomat Level Child Forensic Interviewer, [3] interviewed Amy and Mary separately on March 2, 2015, according to the Child First Forensic Interviewing Protocol. The protocol requires the interviewer "to be non-biased, objective, and neutral" and prohibits the use of "any leading or suggestive questions." The protocol has four stages: 1) "build a rapport with the child[, ]" 2) "seeking information from the child[, ]" 3) "getting clarification and getting some formal questions in[, ]" and 4) "closure." Both interviews were videotaped.[4] In Amy's interview, she described that Portis placed his penis and fingers in her vagina, anus, and mouth on multiple occasions. She marked the areas on pictures, and she demonstrated the acts with dolls. Mary described some of the events happening to Amy and also demonstrated what occurred with dolls. Kahle concluded that the reports from the girls "are consistent with that of a child who has been sexually abused." She clarified on cross-examination that the interviews were consistent with Amy being sexually abused, and Mary witnessing that abuse. She also stated that just because a child does not disclose abuse does not mean nothing happened; sometimes it simply means that they cannot disclose the abuse for various reasons.

         ¶6. On March 3, 2015, Amy and Mary went to the Child Safe Center at University of Mississippi Medical Center (UMMC) for medical examination. One of the nurse practitioners examined them, and Dr. Scott Benton, the medical director of the Child Safe Center, reviewed the medical findings and reports and testified at Portis's trial. Dr. Benton is an expert in child abuse pediatrics, formerly known as pediatric forensic medicine. He testified that, at the time of trial, he was the only doctor in Mississippi certified in pediatric forensic medicine.

         ¶7. Dr. Benton testified that Amy's physical examination was normal. Dr. Benton testified at length that the majority (eighty to ninety-five percent) of girls who have been previously sexually abused have a normal physical examination. He noted that "particularly the longer you get from when the last incident was[, ] the chance of the body being normal is much higher." He noted that "if it's a person who knows the child, [they] are gentle because they know they're going to get discovered if they cause injury. Even in cases where there is injury[, ] a child can heal and heals very well." He stated that "[i]t's a common myth . . . that you could look at a child and tell if they've been sexually abused. Only in a small number is that true." On cross-examination, he clarified that no injury may exist because

at eight and nine years of age with adequate lubrication you can take an adult male penis and penetrate a child that age. The youngest age that I've seen was about five years of age. Again, it just requires the person to be cooperative and there to be sufficient lubrication and you can stick fairly large things into a child this [age]. They're right to the cusp of puberty, both of them. And that is possible.

         He further noted that if an injury occurs, it is not likely to be one that scars. He noted that the hymen and vagina, if injured, can heal in a week or two, usually without any scar. He clarified that

these are all myths that were mostly perpetrated by men to make you think that you can look at a woman and tell if they've had sex or not. There are certain occasions of assault or sex or consensual sex that can cause injury that leaves a scar, but the majority of the time it doesn't.

         Defense counsel continued asking questions regarding injury and scarring, so he used the example that almost everyone at some point in their lives has bitten the inside of their cheek and caused an injury. He noted that most people would never have a scar from biting their cheek, because the lining of the mouth heals so well, as "[i]t's designed to take the trauma of biting and injury." He stated that the lining of the mouth is the same as the lining in the vagina, and is called mucosal tissue. He used the example that

[i]f I go to you now and look inside your mouth and say I don't see a scar, you've never been injured in your mouth, I would be a bad doctor because you have. Same thing if I look at a little girl's vagina or her hymen and I see normal today, it doesn't mean that a week ago or two weeks ago or a month ago that there wasn't an injury or an ulcer of a disease or something else where I would have said you've been sexually abused.

         After this answer, defense counsel continued to question him regarding injury, and he replied

the point is not what happens when we see it. It's what do we say when we don't see it. If I look in your mouth and I think that it's normal and I don't see any bruising, trauma, bleeding, injury to the soft pallet [sic] penetrating back to the esophagus, these are all things that I can see. If I don't see it[, ] I don't look at you and say, you have never injured your mouth. That's not scientific. I know it not to be true any more than I can look at a little girl[']s anus or vagina or hymen, see that it's normal and say, you've never been penetrated[, ] you've never had sexual contact[, ] because that's not scientifically true or accurate.

         ¶8. The clinic also tested Amy for HIV, syphilis, gonorrhea, and chlamydia, and all of those tests were negative. Mary also tested negative for HIV, syphilis, gonorrhea, and chlamydia. Her physical exam did not reveal any genital injury, but it did reveal white vaginal discharge. The discharge was tested, and a test for trichomoniasis vaginalis was added. The trichomoniasis test was positive. Amy then returned to the Safe Center on March 12, 2015, to be tested for trichomoniasis. That test was also positive. Dr. Benton testified that trichomoniasis vaginalis is a parasite that is sexually transmitted. It is not symptomatic in most people. In his report on Mary, Dr. Benton stated that "[f]inding this infection in a child is definitive of sexual abuse by intimate contact with infected secretions." In Amy's report, Dr. Benton stated that "[f]inding this infection in a child is suggestive of sexual abuse by intimate contact with infected secretions." At trial, Dr. Benton concluded that, to a reasonable degree of medical certainty, the exam of each of the girls was consistent with having been sexually abused.

         ¶9. On cross-examination, defense counsel pushed the issue of the trichomoniasis, asking if a person can contract trichomoniasis in other ways. Dr. Benton noted that with all sexually transmitted diseases (STDs), a person can contract it in three ways: 1) when you pass through the birth canal, a mother can pass the infection to the child; 2) sexual contact; and 3) nosocomial. He explained that trichomoniasis "in particular is not a very viable organism outside of humans infected." He explained the third method of transmission as a theory that if some infected secretions land "on say a toilet seat or other place" and "if you were to go rub your private parts on that infected secretion that had been left usually not more than about 10 minutes previously you might be able to transmit it." He also acknowledged a few studies showing that trichomoniasis can survive in mineral hot springs, but averred that no evidence exists that it has infected anyone through hot springs. He stated that co-bathing in the home is not a source for infection of trichomoniasis. He also noted that the longest that he knew of a birth infection of trichomoniasis to be present without detection was nine months. Upon further cross-examination, Dr. Benton explained "[s]he was way beyond birth. I m[e]an, we have eight and nine year olds here. This is not a birth infection." Regarding nosocomial transmission, or "the toilet seat type of thing, " he noted that

[w]e don't have a way to experimentally say yea or nay. So I need to [be] honest with you that it's out there as a potential mechanism, but it would have to happen quick. I mean, that someone ejaculates and maybe it's on their hand or whatnot and somehow it gets to a place where another person [sic]. I can think of very few situations where that's not sexual in nature and contact.

         He concluded that "it's my opinion, and the opinion of the American Academy of Pediatrics, the Center[] for Disease Control, that the finding of trich is sexual abuse in almost all cases."

         ¶10. Dr. Benton also explained in detail that many children do not report sexual abuse immediately. He stated that a failure to report occurs for three broad reasons: 1) naivety (assuming what happens is acceptable); 2) external factors, such as threats and bribes; and 3) internal factors, such as guilt, embarrassment, fear, post-traumatic stress disorder, and depression. He also testified that when children do report sexual abuse, they often do not disclose or describe it the same way every time they tell the story.

         ¶11. Based on the positive STD results for Mary, Sergeant Madison spoke with Mary again on March 10, 2015. Mary told Sergeant Madison that Portis did not touch her, but that she would write Sergeant Madison a note and leave it on her desk. The note stated "Dear, Mrs. Tonya Madison Ricky tried to touch me, but I told my step dad no, and he tried to touch in the bathroom when I was using the bathroom. Please do not show no one, Please Sincerely, [Mary Collins]."

         ¶12. On April 6, 2015, a search warrant was issued for Portis's urine. Sergeant Madison took Portis to LabCorp, where his urine was collected. LabCorp tested his urine for trichomoniasis, and the result was positive. Donna Vestal, the manager of molecular microbiology and virology at LabCorp, testified that she reviews the testing of urine specimens. She testified that Portis's test for trichomoniasis was positive.

         ¶13. Tabitha Walls, a mental health counselor treating the girls, testified about their current counseling. She used a method called trauma focus cognitive behavioral therapy (TFCBT). She had been seeing the girls for almost a year, beginning in May 2015, and had seen them each between fifteen and twenty times during that period. The steps of TFCBT are as follows: first, they go through the psychoeducation about sexual abuse, which is generally talking about appropriate versus inappropriate touch, as well as post-traumatic stress disorder; second, they move on to mastering relaxation skills; third, they learn effective expression; fourth, they learn cognitive coping skills; and fifth, they move to the "trauma narrative, " which is when the children begin to tell the story of what occurred. Walls stated that the girls had not told her the story of what occurred yet because they were only at the beginning of the trauma narrative stage and "we have only spent one session on that which is simply what happened before the trauma began, like good things in their life to get them comfortable with telling the story."

         ¶14. Amy and Mary both testified live via closed-circuit television, with one of Portis's attorneys in the room with them, and the other allowed to communicate with her from the courtroom.[5] Both girls testified that Portis had touched them inappropriately, and that no one else had ever touched them inappropriately. Amy testified that Portis penetrated her "private part" with his fingers and his "private part." Mary testified that Ricky put his "privacy" in her "butt."

         ¶15. Portis called Dee, the girls' mother, in his defense, and also testified in his own defense. Dee testified that at first she did not believe the allegations against Portis because she had put her trust in her husband. She also testified that Portis had been married twice before marrying her, and had had stepchildren in those marriages. She stated that she reversed course and believed the allegations when she found out that she and both girls had an STD. She further testified that she knew "for a fact" that the STD they had could be spread only vaginally or anally. She testified that she knew this based on her work in the medical field as a CNA. She also testified that she had "[n]o doubt" that Amy and Mary were sexually abused by Portis.

         ¶16. Portis testified that he did not abuse Amy and Mary. When asked if he knew if anyone would have a reason to accuse him of these crimes if they weren't true, he responded

I mean, at the time when all this was happening, me and my wife and my sister and my mother and her mother was putting it together like their baby daddy wanted to get me out the house for some reason or other. He supposed to be getting a settlement or something like this here and he supposed to be paying child support. He had an accident back in I think 2010, something like that. I guess that settlement was supposed to have been coming along, something like that. And that's what she was saying.

         He further testified that "we all figured that's what he wanted me out of the house for because when they took my kids, they just took our kids and didn't bring them back home at all, so. And that's what happened." Portis's explanation for how the girls contracted an STD was "[w]ell, the doctor was - I don't know nothing about sex - I ain't never had a disease in my life, so I don't know." He further opined that they contracted trichomoniasis from their mother at birth.

         PROCEDURAL ...


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