Alexander v. State, 1999-KA-00487-COA.

• Citation: 811 So.2d 272
• Decision Date: 09 January 2001
• Docket Number: No. 1999-KA-00487-COA.,1999-KA-00487-COA.
• Parties: Ronald Earl ALEXANDER, Appellant, v. STATE of Mississippi, Appellee.
• Court: Court of Appeals of Mississippi

811 So.2d 272

Ronald Earl ALEXANDER, Appellant, v. STATE of Mississippi, Appellee.

No. 1999-KA-00487-COA.

Court of Appeals of Mississippi.

January 9, 2001.

William C. Trotter, III, Kellie Williamson Koenig, Greenville, MS, Attorneys for Appellant.

Office of the Attorney General, by Scott Stuart, Attorney for Appellee.

Before McMILLIN, C.J., BRIDGES, and MYERS, JJ.

BRIDGES, J., for the Court:

¶ 1. Ronald Earl Alexander was indicted by a grand jury in Sunflower County, Mississippi on two counts of sexual battery, one count of attempted sexual battery and one count of attempted capital rape, all committed on a six year old girl, who, because she is a minor child, will hereinafter be referred to as "S.A." Following the indictment, a trial by jury was held in the Circuit Court of Sunflower County, Honorable W. Ashley Hines presiding. On February 9, 1999, the jury returned a verdict of guilty on all four counts. Alexander was subsequently sentenced to twenty years on Count I of sexual battery; twenty years on Count II of sexual battery, to be served concurrently with the sentence on Count I; ten years on Count III of attempted sexual battery, to run consecutively with the sentence on Count I; ten years on Count IV of attempted capital rape, to run consecutively with the sentences on Counts I and III; and court costs.

¶ 2. At the conclusion of the State's case-in-chief, Alexander made a motion for a directed verdict stating that the State had not put on enough evidence to achieve a conviction. This motion was denied by Judge Hines. Following the trial, Alexander filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, motion for a new trial. This motion was denied by Judge Hines as well. Alexander then filed a timely notice of appeal containing three issues for our review:

I. Whether the trial court erred in denying Alexander's motions for directed verdict, JNOV and new trial and refusing to overturn the jury verdict of guilty because such verdict was contrary to the law and against the overwhelming weight of the evidence?

II. Whether the trial court erred in denying Alexander's request that the State charge and try Alexander on only one charge pursuant to the "same transaction rule?"

III. Whether the trial court erred in denying Alexander's motion for a mistrial because evidence of other crimes was presented in front of the jury after a motion in limine was granted to disallow such evidence?

FACTS

¶ 3. The events leading to this matter took place on or about September 13, 1996, when Alexander was babysitting the victim, S.A., and her younger brother while their mother and a friend were apparently out for the evening. Alexander was the boyfriend of S.A.'s mother at the time of this incident. Seven weeks later, on November 2, 1996, S.A. told her grandmother, Evelyn, that she wanted to come live with her and then she told her grandmother the events that took place on what was determined to have been September 13, 1996, the night Alexander babysat S.A. and her brother.

¶ 4. S.A. told Evelyn that Alexander had "messed" with her. More specifically, in her own terms, S.A. revealed that Alexander had "tried to stick his thing in her behind" and that he "stuck his thing in her" and "squirted white stuff all over her stomach." S.A. went on to say that Alexander made her put her mouth on his "thing" and then he did the same to her. According to S.A.'s account of the events, Alexander attempted to penetrate S.A.'s anus and vagina and then forced her to perform oral sex on him, where he thereafter ejaculated on her before performing oral sex on her. S.A. also revealed that Alexander placed his tongue around and inside her anus before preparing to attempt anal intercourse with her.

¶ 5. Immediately after hearing S.A.'s description of these happenings, Evelyn took S.A. to the family doctor, Dr. Edgar Donahoe, where S.A. again recounted these same events, after which he attempted to perform a short examination of S.A. Evelyn then took S.A. to the Indianola Police Department to file a complaint against Alexander, where S.A. once more repeated the details of this incident to Detective Brad McCoy.

¶ 6. Evelyn, Dr. Donahoe and Detective McCoy all appeared as witnesses at Alexander's trial. Also appearing as witnesses were Glyn Criswall-Kern, a child therapist specializing in child abuse who began meeting with S.A. regarding this incident in March 1997; Vickie Brocato, a child therapist specializing in child sexual abuse who began treating S.A. in June 1997; Gail Barnett, a family nurse practitioner with Charter Behavioral Systems who had a chance to observe and examine S.A. in September 1997; and Jennifer Pearce, a friend of S.A.'s mother who saw S.A. the morning after these events were determined to have occurred. Kern, Brocato and Barnett were all tendered by the State as expert witnesses in the field of child therapy. In order to prevent further trauma for S.A., the State filed a motion to make S.A. unavailable as a witness for Alexander's trial. The motion was granted by Judge Hines. Because S.A. would not be taking the witness stand on her own behalf in the trial, a hearing was held where the court ruled that it would allow the hearsay evidence of each of these witnesses who testified as to things that S.A. said and did regarding the incident on September 13, 1996. At Alexander's trial, each of these witnesses, for both the State and Alexander, duplicated the testimony they gave at the hearing.

¶ 7. Evelyn and Detective McCoy both testified about S.A.'s account of the events that took place between her and Alexander on September 13, 1996. Evelyn further testified that S.A. told her that she did not tell anyone about the sexual abuse at first because Alexander threatened the lives of her, her mother and her brother if she told. Evelyn also testified that S.A. began living with her from the time she told Evelyn of the incident until the present. There is no indication S.A.'s mother objected in any way to Evelyn's caring for S.A., taking S.A. to be examined after her discovery of these events or taking physical custody of S.A. Dr. Donahoe testified that his examination of S.A. on November 4, 1996, revealed nothing unusual about S.A.'s vagina and he stated that her hymen appeared to be intact. However, Dr. Donahoe also admitted at trial that he did not do a thorough exam on S.A. because she was highly agitated, and therefore he could say nothing to a medical certainty. On the other hand, Barnett testified that in her examination of S.A.'s female organs, she found that S.A. had "no hymenal tissue whatsoever" and that "her vaginal opening was gaping." Kern and Brocato both testified that S.A. exhibited signs of a child who is disturbed by a trauma such as sexual abuse. Pearce, Alexander's witness, testified that she observed S.A. the morning after the alleged incident and thought that S.A. seemed "normal" and was outside playing as if nothing was bothering her.

¶ 8. Police testimony revealed that when Alexander was questioned by the police regarding the events of which S.A. had accused him, he replied that he was not sure if he had done those things or not, but he did not think that he did. Alexander denied that he ever made this or any statement to the police and he claimed that the officers gave him a blank sheet of paper to sign and later "made up" a statement and inserted it in between the initials of Alexander which he had written on the "blank" piece of paper. However, Alexander's first initial appears at the beginning of the first word of the statement and his last initial appears right next to the last word of the statement, indicating that the statement was typed and present on the piece of paper that Alexander was given just before he signed his initials on it.

¶ 9. Alexander adamantly denies that he ever touched S.A., even though his statement revealed that he did not really remember the events of that night. He also claims that all of the testimony given by the medical experts called as State's witnesses should not have been allowed because Evelyn did not have legal custody of S.A. at the time that she took S.A. to each of the doctors and therapists for examination, and therefore she could not have had authority to waive S.A.'s medical privileges on her behalf. Alexander claims that only S.A.'s mother had the authority to consent to S.A.'s medical care; therefore, the testimony by the State's experts should be stricken as improper. Alexander did admit that he was babysitting S.A. on the night of September 13, 1996. Alexander, however, could not explain to S.A.'s mother, upon her return home at 2:30 a.m., why S.A. was in bed with him and why she was not wearing any panties. Alexander claims that he had a few drinks that night and that he must have passed out. He asserted that he did not know how S.A. ended up asleep in bed with him or where her panties were.

¶ 10. Alexander is asking this Court to reverse and render this case on the grounds that the State did not meet its burden in presenting evidence against him that would cause a jury to convict him beyond a reasonable doubt. In the alternative, he requests that if this Court chooses not to reverse and render his case, then we should reverse and remand for a new trial, ordering the trial court to reduce his charges to only one offense. He claims that he should not have received a sentence on all four counts for which he was indicted because they all arose out of the same transaction and each count amounts to exactly the same offense. Thus, he prays that this Court will allow him a new trial where he will only be charged with one offense and where he could only be sentenced for that one offense. Further, Alexander cites error that testimony by Brocato about other instances of sexual abuse on S.A. by Alexander was allowed to be heard by the jury in violation of a court order that all testimony be confined to the specific...