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Anderson v. State

Court of Appeals of Mississippi

September 10, 2019


          DATE OF JUDGMENT: 07/06/2015





          CARLTON, P.J.

         ¶1. In June 2015 a George County jury found Billy Carol Anderson guilty of seven counts of touching-of-a-child-for-lustful-purposes under Mississippi Code Annotated section 97-5-23 (Rev. 2006). The trial court sentenced Anderson to serve a term of fifteen years on each count, to be served consecutively in the custody of the Mississippi Department of Corrections (MDOC). The trial court also fined Anderson $500 for each conviction. Anderson appeals.

         ¶2. Anderson's counsel has filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss. 2005). His counsel represents that she diligently searched the record for any arguable issues that could be presented on appeal but found none. Anderson filed a pro se supplemental brief raising seven assignments of error on appeal. Based upon our thorough review of Anderson's supplemental pro se brief and the record, we find no arguable issues for appellate review. We therefore affirm Anderson's convictions and sentences without prejudice to his right to seek post-conviction relief.


         ¶3. In August 2012, when she was fifteen years old, Susan[1] told her mother, Caroline, that her stepfather, Anderson, had been improperly touching her for the last several years.[2]Caroline did not initially contact the police. Caroline testified at trial, however, that after Anderson made inappropriate sexual references about Susan to her, [3] Caroline "put the puzzle pieces together" and contacted the police. At the George County Sheriff's Office Caroline spoke with Detective Jason Pharez. Detective Pharez started an investigation and arranged for Susan to be interviewed by a certified forensic interviewer. He listened in another room while the interview was being conducted. As a result of the interview, Detective Pharez also spoke with several of Anderson's adopted or biological daughters, as well as Susan's mother, Caroline, and one of Anderson's former wives. Anderson was subsequently indicted in July 2013 on seven counts of touching-of-a-child-for-lustful-purposes under section 97-5-23. Collectively, the indictment alleged that between June 1, 2010 and July 31, 2012, Anderson lustfully touched Susan's vagina with his hand at a time when Susan was under the age of sixteen.

         ¶4. Before trial commenced, the State moved to allow testimony under Mississippi Rule of Evidence 404(b) from Ann, Anderson's adopted daughter, and Sally, one of Anderson's biological daughters, [4] to show Anderson's lustful, licentious intent and sexual motive (the Derouen[5] witnesses). The Derouen witnesses would testify that when they were around Susan's age Anderson improperly touched them under similar circumstances as those described by Susan. After hearing testimony of a number of witnesses and argument by counsel, the trial court determined that the testimony was admissible under Rule 404(b) to show licentious motive and intent and that the testimony's probative value outweighed any prejudicial effect under Rule 403. The trial court then held that with the proper limiting instructions, the witnesses would be allowed to testify at trial.

         ¶5. Anderson was tried in June 2015. The State's first witness was the victim, Susan. Susan testified that she moved to George County at the end of May beginning of June in 2010, which was the summer before she started eighth grade. She testified that Anderson started inappropriately touching her before she moved to George County when she was twelve and it continued until she was fifteen or sixteen. Susan said that Anderson would "tickle" and "wrestle" with her and touch her vagina over her clothes. When she was asked to explain what she meant, Susan said that when Anderson was wrestling with her he would try to "touch her with his fingers every time" and that he would try to "shove them up there." Susan testified that this happened "all the time" and that it happened so many times that she could not remember all of them. Susan also testified that at the beginning, when she was twelve, she and Anderson would wrestle and she would start the wrestling. She said that "he started to touch me, and I didn't think anything of it because I was a young kid. I didn't expect to have a stepdad that would touch me." Susan then testified that after Anderson continued "messing with her," she would not start the wrestling anymore, and that Anderson would start it.

         ¶6. Detective Jason Pharez was the State's next witness. He testified about his investigation of this case, as described above. Susan's mother Caroline testified after Detective Pharez and, as also described above, she testified about her role in reporting Susan's abuse allegations. The State's next witness was the forensic interviewer, Ashley Ahern. She testified that it is common for an abuse victim not to remember the exact number of times the victim has been abused, especially when it goes on for a long time. She also testified that the statements Susan made to her in the forensic interview were consistent with a child that had been abused.

         ¶7. Both Derouen witnesses, Sally and Ann, also testified at trial. Before they testified, the trial court read a limiting instruction to the jury with respect to their testimony.[6] Both Sally and Ann testified about incidents when Anderson inappropriately touched them beginning when they were about the same age as Susan. One of Anderson's assignments of error on appeal is the trial court's decision to allow Sally and Ann to testify. To avoid repetition, their testimony is detailed below in our discussion of this issue.

         ¶8. After the State rested the defense moved for a directed verdict, which the trial court denied.

         ¶9. The defense's first witness was Virginia, Anderson's oldest biological daughter. She testified that Susan was disrespectful to Anderson and that Susan would wear short shorts and a bikini top while riding horseback. Virginia also testified about Sally and Ann, the Derouen witnesses. To avoid repetition her testimony with respect to those witnesses will be addressed below. On cross-examination Virginia testified that she had not lived with Anderson and her stepmother since she was fourteen. She also admitted on cross-examination that before she moved out she and her younger sister Melissa told their stepmother that Anderson sexually abused them. Virginia also testified that this was actually a lie. She testified that she and Melissa made up these accusations and told their stepmother so that she would get mad and leave. Virginia testified that her father, Anderson, never abused her.

         ¶10. Anderson testified on his own behalf. He said that Susan would come up behind him and begin wrestling with him all the time. He testified that he never physically hurt Susan and he denied ever inappropriately touching Susan. He also denied ever having any improper contact with any of his daughters.

         ¶11. The State called rebuttal witness, Janie Grice, another one of Anderson's daughters, who testified that four of her sisters, including Ann and Sally (the Derouen witnesses), all told her they had been abused by Anderson throughout the years.

         ¶12. The State rested, and the defense did not renew its motion for a directed verdict. The trial court instructed the jury, including repeating the limiting instruction the court had given with respect to the Derouen witnesses. The jury returned a verdict finding Anderson guilty on all seven counts of touching-of-a-child-for-lustful-purposes. After conducting a sentencing hearing, the trial court sentenced Anderson to consecutively serve a term of fifteen years on each count and fined Anderson $500.00 for each conviction. Anderson moved for a new trial, and the trial court denied Anderson's motion in October 2015. Anderson did not timely file a notice of appeal, but on February 26, 2018, Anderson was granted permission to serve an out-of-time appeal. Anderson's notice of appeal was filed two days later.


         ¶13. In Lindsey v. State, 939 So.2d 743, 748 (¶18) (Miss. 2005), the Mississippi Supreme Court established a procedure "to govern cases where appellate counsel represents an indigent criminal defendant and does not believe his or her client's case presents any arguable issues on appeal." Thomas v. State, 247 So.3d 1252, 1256 (¶9) (Miss. 2018) (internal quotation mark omitted). In particular, Lindsey requires:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(5), (8);
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Thomas, 246 So.3d at 927 (¶12). Upon review, we find that Anderson's appellate counsel fully complied with Lindsey.

         ¶14. Anderson has filed a pro se supplemental brief. He claims: (1) the trial court erred by admitting prior-bad-acts evidence against him under Rule 404(b); (2) his indictment was defective because each count was identically worded and did not include specific dates of the offenses; (3) there was insufficient evidence to sustain the verdict against him; (4) the trial court erred by not allowing a jury instruction on simple assault; (5) the trial court erred because it did not swear in the jury; (6) the trial court abused its discretion when it did not sua sponte order a mistrial; (7) the trial court abused its discretion in sentencing him. We address these assignments of error below.


         I. Admission of Prior-Bad-Acts Testimony

         ¶15. Anderson asserts that the trial court erred when it admitted testimony from Ann and Sally about Anderson's prior bad acts. Anderson argues that this testimony was unfairly prejudicial because the allegations were remote in time and because Ann lacked credibility. We disagree and reject this assignment of error.

         ¶16. An abuse-of-discretion standard applies "when reviewing a trial court's ruling on the admissibility of evidence." Young v. State, 106 So.3d 775, 777 (¶9) (Miss. 2012). Under Rule 404(b), prior bad acts "may . . . be admissible for . . . purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." M.R.E. 404(b). With respect to sexual offenses, in Derouen v. State the supreme court held that "evidence of a sexual offense, other than the one charged, which involves a victim other than the victim of the charged offense for which the accused is on trial" may be admitted if it satisfies Rule 404(b), is "filtered through Rule 403, [7] and [is] accompanied by an appropriately-drafted limiting or cautionary instruction to the jury." Derouen, 994 So.2d at 756 (¶20). The record reflects that the trial court properly evaluated the prior-bad-acts evidence under Rule 404(b) and, after filtering it through Rule 403, admitted it for permissible, non-character purposes. Id. The record also reflects that the trial court gave an appropriately-drafted limiting instruction with respect to the testimony admitted. Id. As detailed below, we therefore see no error in the way in which the trial court handled the Rule 404(b) evidence in this case.

         ¶17. At the Derouen hearing, the trial court heard testimony from Detective Pharez, the investigating officer, as well as Ann, Anderson's adopted daughter, and Sally, one of Anderson's biological daughters. Ann testified that Anderson started acting inappropriately toward her when she was in third grade. He would ask her to touch herself, referring to "her parts" as "playing with the little man in the boat." As she got older, when she was about twelve, thirteen, or fourteen, he then started "smacking" her breasts and behind and always "played [it] off to be roughhousing or wrestling." Ann further testified that when she was fourteen, Anderson came up behind her and penetrated her vagina with his finger. She testified that he told her that boys were going to start showing an interest in her and that "he felt the need to show [her] what it feels like with and without a rubber." She testified that she told her friend what happened and she believed the authorities were called because that afternoon Anderson was arrested for molesting ...

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