Jones v. State

164 So.3d 1009

Tommie Lee JONES a/k/a Ninnoe, Appellant

v.STATE of Mississippi, Appellee.

No. 2012–KA–00374–COA.

Court of Appeals of Mississippi.

Aug. 6, 2013.

Rehearing Denied Nov. 26, 2013.

Certiorari Dismissed Aug. 14, 2014.

George T. Holmes, Jackson, Brian K. Herrington, Mollie M. McMillin, attorneys for appellant.

Office of the Attorney General by Laura H. Tedder, attorney for appellee.

EN BANC.

Opinion

JAMES, J., for the Court:

¶ 1. A jury in the Yazoo County Circuit Court convicted Tommie Lee Jones of sexual battery of a child under the age of fourteen years. On appeal, Jones assigns the following errors: (1) the jury was improperly given instruction S–1, which failed to include an essential element of sexual battery—that Jones was twenty-four months or more older than the child, (2) the trial court erred in giving jury instruction 3, which constructively amended the indictment and allowed the jury to convict Jones based on a broader definition of sexual battery than the crime alleged in the indictment, and (3) the verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. One night in early 2009, on some date between March 16 and April 17, eight-year-old Sarah¹ had just stepped out of the shower at her grandmother's house in Yazoo City, Mississippi. Before Sarah could put on her clothes, her eighteen-year-old cousin, Ann, entered the bathroom and instructed Sarah to go into Ann's bedroom. Sarah complied, and went into Ann's room without clothing. Shortly after, Ann and her boyfriend, Tommie Lee Jones, entered Ann's room. Ann told Sarah to lie back on the bed. Sarah complied. At that point, according to Sarah, Jones walked over to the bed and began performing oral sex on her. Sarah tried to push Jones off of her, but was unsuccessful. Sarah testified that Jones continued to perform oral sex on her for a “pretty long time.” Once Jones finally released her, Sarah went into her own bedroom and closed the door.

¶ 3. On a later date, at some time prior to April 17, 2009, Sarah was sitting on the living-room couch and watching television at her grandmother's house. Ann walked into the living room and told Sarah to get off of the couch. Jones then walked into the living room, lay on the couch, and pulled down his pants. At that point, according to Sarah, Jones made her perform oral sex on him.

¶ 4. On April 17, 2009, Sarah was taken by her mother, Lynn, to St. Dominic Hospital in Jackson, Mississippi, to be examined by an emergency-room physician. Sarah had been experiencing pain and burning sensations in her genital area. Dr. James Aron examined Sarah and found that she had contracted trichomonas, which is a sexually transmitted disease. Dr. Aron treated Sarah with Flagyl, an antibacterial medication used to treat vaginal infections. Finding it unusual that an eight-year-old girl had trichomonas, Dr. Aron contacted the Mississippi Department of Human Services (DHS) to report the matter. DHS then notified the Yazoo City Police Department.

¶ 5. On April 18, 2009, Detective Larry Davis interviewed Sarah at the Yazoo City police station. During the interview, Sarah told Detective Davis about the incidents with Jones. After interviewing Sarah and Lynn, Detective Davis contacted the Family Resource Center in Tupelo, Mississippi, to schedule a child forensic examination for Sarah. On May 4, 2009, Sarah was examined by forensic interviewer Nakima Agnew. During the interview, Sarah told Agnew that Jones “licked [her] private area” and made her “suck his thing.” Sarah also demonstrated the acts using anatomical dolls. According to Agnew, Sarah's description of the events was consistent throughout the entire interview.

¶ 6. On December 2, 2009, Jones was indicted by a grand jury in the Yazoo County Circuit Court for sexual battery of a child under the age of fourteen years. Following a trial on November 28–29, 2011, Jones was convicted and sentenced to serve thirty years in the custody of the Mississippi Department of Corrections, with five years suspended and five years of supervised probation. On December 15, 2011, Jones filed a motion for a new trial, which was denied. Feeling aggrieved, Jones now appeals.

DISCUSSION

I. Whether the trial court erred in giving jury instruction S–1, which did not include the element of sexual battery that Jones was twenty-four or more months older than the child.

¶ 7. Jones was indicted for sexual battery under Mississippi Code Annotated section 97–3–95(1)(d) (Rev.2006), which provides that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child under ... fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child. ” (Emphasis added). Regarding the proof required for the jury to find Jones guilty of sexual battery, the court gave instruction S–1, which reads:

TOMMIE LEE JONES has been charged in the [i]ndictment with the offense of [s]exual [b]attery.

If you find from the evidence in this [c]ause beyond a reasonable doubt that:

1. TOMMIE LEE JONES, on or about April 18, 2009, in Yazoo County, Mississippi;

2. did[ ] engage in sexual penetration with [Sarah], a child, who was at least eight (8) years of age, but under sixteen (16) years;

3. by placing his mouth and tongue in the vagina of [Sarah];

4. and by placing his penis in the mouth of [Sarah];

then you shall find the Defendant, TOMMIE LEE JONES, guilty of [s]exual [b]attery as charged in the [i]ndictment.

Jones argues that because the element of Jones being twenty-four or more months older than Sarah was missing from the instruction, the jury had no way of determining whether the State had met its burden of proof. We disagree.

¶ 8. We must begin by noting that Jones is raising this argument for the first time on appeal, and therefore, the argument is procedurally barred. Loden v. State, 971 So.2d 548, 570 (¶ 52) (Miss.2007) (citing Thorson v. State, 895 So.2d 85, 104 (¶ 43) (Miss.2004) ). During trial, Jones made no objection to jury instruction S–1 on the ground that it lacked the requisite age elements for sexual battery. Rather, Jones contested the language in the instruction regarding the definition of penetration. In his motion for a new trial, Jones made no allegation that the State had failed to prove the elements of sexual battery, nor did he raise any factual defense as to his age or Sarah's age at any time during the proceedings. “Failure to offer a timely objection to an instruction at trial constitutes a waiver of the issue on appeal.” Roberson v. State, 838 So.2d 298, 305 (¶ 27) (Miss.Ct.App.2002) (citing Brown v. State, 764 So.2d 463, 469 (¶¶ 20–21) (Miss.Ct.App.2000) ). Thus, this issue is barred from our review.

¶ 9. Despite the procedural bar, we find that Jones's argument lacks merit. In order to withstand the procedural bar and be permitted to raise such an error for the first time on appeal, Jones must show that the error “was so prejudicial on its face that we are obligated to note it as plain error.” Brown, 764 So.2d at 469 (¶ 21) (citing Shelton v. State, 445 So.2d 844, 846 (Miss.1984) ). The State argues that had Jones timely objected during trial, the error would have easily been detected, and the element of Jones's age missing from instruction S–1 would have been added. We agree. Further, we cannot say that the trial court's giving of instruction S–1 was prejudicial or that it amounted to plain error, because the element of Jones being twenty-four or more months older than Sarah was listed in the indictment. Therefore, Jones was given sufficient notice and had a “reasonable opportunity to prepare and present a defense” to this element. Burrows v. State, 961 So.2d 701, 705 (¶ 11) (Miss.2007). As previously discussed, Jones did not do so. Further, the record shows that Jones voluntarily withdrew his jury instruction D–9 in favor of the State's jury instruction S–1, and now Jones complains of his error on appeal. Instruction D–9 reads as follows:

Tommie Lee Jones has been charged in Yazoo County, Mississippi ... with the offense of sexual battery.

If you find from the evidence in this case beyond a reasonable doubt that:

1. Tommie Lee Jones, on or about April 18, 2009[,] in Yazoo County, Mississippi;

2. Engaged in sexual penetration by cunnilingus or fellatio;

3. With [Sarah], a child under the age of 14[,] and the defendant is 24 or more months older than the child;

then you shall find the defendant guilty as charged.

If the prosecution has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find Tommie Lee Jones not guilty.

¶ 10. Also, here, it is undisputed that Sarah was eight years of age at the time of the offense. The jury was presented with documentary evidence, as well as corroborating testimony from Detective Davis, that Jones's date of birth is November 28, 1981, which means that Jones was thirty years of age at the time of trial. Hence, Jones was twenty-eight years of age at the time of the offense. Any fair-minded juror could have easily deduced that Jones, being twenty-eight years of age, was twenty-four or more months older than Sarah at the time the crime was committed. The proof showed that Sarah was eight years old and under the age of fourteen, and that Jones was twenty-four or more months older than her at the time the crime was committed. Miss.Code Ann § 97–3–95(1)(d).

¶ 11. In light of a decision recently handed down by the Mississippi Supreme Court covering a similar issue, we are compelled to distinguish that case from the present one. In Bolton v. State, 113 So.3d 542, 544 (¶ 4) (Miss.2013), the court found a jury instruction that lacked an essential element of burglary of a dwelling to be fatally defective. Specifically, the jury in that case was improperly instructed to find the defendant guilty if it found that he broke and entered a dwelling with the intent to commit any crime, as opposed to a specific crime as required by stat...