DOUGLAS WALKER A/K/A DOUGLAS L. WALKER A/K/A DOUGLAS LAMAR WALKER APPELLANT
STATE OF MISSISSIPPI APPELLEE
BOLIVAR COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON.
JOHNNIE E. WALLS JR. TRIAL JUDGE.
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
Douglas Walker was convicted of one count of sexual battery
and one count of fondling, both stemming from sexual contact
with the eight-year-old daughter of his girlfriend. On
appeal, Walker contends that his convictions were not
supported by substantial evidence and that his two
convictions should be merged because one is a lesser-included
offense of the other. We find no merit to these contentions,
and so we affirm Walker's convictions.
On September 22, 2012, eight-year-old
"Amy" had spent the day with her adult
stepsister, Leslie Horton. As Horton pulled up to Amy's
home to drop her off, Amy told Horton that she did not want
to leave the car until her mother came home because Walker,
her mother's live-in boyfriend, was there. When Horton
asked why, Amy told her that Walker "puts his private
inside of her and makes her go up and down." Horton then
called Debbie Williams, Amy's aunt, and they met up. Amy
told Williams that Walker "touches [her] and makes [her]
go up and down on him"; she also said that
"sometimes when her mother was not at home [Walker]
would touch her private areas." Williams and Horton then
took Amy to the hospital and contacted the police. Amy was
later examined by Stacey Carter, a nurse practitioner
specializing in pediatric forensic medicine at the University
of Mississippi Medical Center. Carter noted that Amy had
redness on her labia majora, but her examination was
otherwise normal. Amy also disclosed the abuse to Katrina
Kennedy, a forensic examiner, and a video recording of the
interview was entered into evidence at the trial.
Walker contends that his indictments were "woefully
inadequate and failed to satisfy the notice
requirements" of Rule 7.06 of the Uniform Rules of
Circuit and County Court Practice,  which at the time provided
that "[t]he indictment upon which the defendant is to be
tried shall be a plain, concise, and definite written
statement of the essential facts constituting the offense
charges and shall fully notify the defendant of the nature
and cause of the accusation."
Count I of the indictment charged Walker with sexual battery
in violation of Mississippi Code Annotated section 97-3-95(1)
(Rev. 2014) and alleged that Walker "did unlawfully,
wilfully, and feloniously engage in sexual penetration with
[Amy], a female child under the age of fourteen (14) years,
by inserting his penis and/or finger(s) and/or palm into her
genital opening and/or vagina." Count II charged Walker
with fondling, also known as molestation or gratification of
lust, in violation of section 97-5-23(1) (Rev. 2014). It
alleged that Walker "did unlawf[u]lly, wilfully, and
feloniously, for the purpose of gratifying his lust or
indulging his depraved licentious sexual desires, handle,
touch or rub with his hands and/or penis, the vagina or
genital area and/or buttock and/or back and body of [Amy], a
female child under the age of sixteen (16)."
We must first note that Walker failed to object to the form
of the indictment, and this issue is therefore waived on
appeal. Pustay v. State, 221 So.3d 320, 353
(¶109) (Miss. Ct. App. 2016). Nonetheless, we will
address the merits of the issue.
The gist of Walker's complaint seems to be that the
indictments were overly broad in alleging the manner or means
by which he violated the respective statutes; he complains
about the number of "ors" and "and/ors"
when describing what he touched or penetrated, and with what.
But it is a well-established axiom of law that "where an
indictment tracks the language of the statute, the indictment
sufficiently puts the defendant on notice of the charges
against him in order to prepare his defense."
Jenkins v. State, 101 So.3d 161, 165 (¶10)
(Miss. Ct. App. 2012) (quoting Hicks v. State, 40
So.3d 640, 642 (¶9) (Miss. Ct. App. 2010)). Thus, when
an indictment tracks the language of the Mississippi Code, it
complies with Rule 7.06. See Graves v. State, 216
So.3d 1152, 1159 (¶12) (Miss. 2016). The indictment here
tracks the statutory language for each offense, provides the
time range and location ...