Allen v. State

• Docket Number: 2022-CT-00419-SCT
• Decision Date: 05 June 2025
• Citation: Allen v. State, 2022-CT-00419-SCT (Miss. Jun 05, 2025)
• Parties: JIMMY ALLEN v. STATE OF MISSISSIPPI
• Court: Mississippi Supreme Court

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JIMMY ALLEN v. STATE OF MISSISSIPPI

No. 2022-CT-00419-SCT

Supreme Court of Mississippi, En Banc

June 5, 2025

DATE OF JUDGMENT: 04/18/2022

ON WRIT OF CERTIORARI

YAZOO COUNTY CIRCUIT COURTHON. BARRY W. FORD TRIAL JUDGE:

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BYHUNTER NOLAN AIKENSGEORGE T. HOLMES

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BYALLISON ELIZABETH HORNE

DISTRICT ATTORNEY: AKILLIE MALONE OLIVER

MOTION FOR REHEARING FILED:

MAXWELL, JUSTICE, FOR THE COURT:

¶1.A jury convicted Jimmy Allen of six counts of statutory rape of his then-eleven-year-old daughter.But on appeal, the Court of Appeals reversed.That court threw out Allen's conviction because the jury was not instructed on an element of the offense-that it had to find Allen was twenty-four months or more older than his under-fourteen-year-old daughter.^[1]

¶2.We granted the State's petition for certiorari.And after review, we find the trial judge gave Allen the exact elements instructions he asked for.Under the invited-error doctrine, "[i]t is axiomatic that 'a defendant cannot complain on appeal of alleged errors invited or induced by himself.'"^[2] Thus, Allen cannot flip-flop on appeal and now attack the very instructions he crafted, submitted, and received.Instead, the invited-error doctrine squarely applies.

¶3.For this reason-and because Allen's other appellate claims lack merit-we reverse the decision of the Court of Appeals.We reinstate and affirm the judgment of conviction.

Background Facts & Procedural History

¶4.When Jada^[3] was eight or nine years old, her mother went to prison.Jada then moved in with her father, Jimmy Allen.Allen's wife and her two sons also lived in Allen's two-bedroom apartment.When Jada was eleven years old, her father began raping her when her stepmother and brothers were gone.

¶5.Jada testified that her father raped her on six different occasions over the course of six months.Each time, he positioned her body differently so he could either digitally penetrate her vagina, put his penis in her anus, or perform oral sex.Jada testified her father always wore a condom, which he removed from a gold packet in his top dresser drawer.And he made her cover her face with a pillow because, in her words, "he did not want me to watch him, to see what he was doing."If Jada started crying, Allen threatened to "whoop" her, mentioning the walls to the apartment were thin.Each time he raped Jada, Allen made the young girl bathe in bleach.Allen warned her not to tell anyone, threatening to keep her away from her mother's family.He also bribed her with a phone.

¶6.At first, Jada told no one.But eventually she confided in a friend who had revealed something similar had happened to her.Jada then told her sister and her maternal aunt M.J.

¶7.After learning about the sexual assaults, M.J. immediately sent for Jada and took her to King's Daughters Hospital in Yazoo City.Because Jada bathed in bleach after each sexual assault, the nurses did not perform a rape kit.Jada tested negative for sexually transmitted diseases and bore no physical evidence of abuse.

¶8.Jennifer Creel, an investigator with the Mississippi Department of Child Protection Services(CPS), met Jada at the hospital.Creel called Allen, simply relaying that Jada was at the hospital and that he needed to come.Though Allen told Creel he was on his way, he never showed up.Instead, two days later, he met Creel at her office.Allen had packed Jada's clothes in garbage bags.He told Creel he wanted to relinquish Jada to the state because of what she had done.Allen told Creel that Jada had made up the allegations because he had taken her phone away and would not let her wear fake eyelashes.Based on, as Creel put it, "substantiated allegations" of abuse, Jada was removed from Allen's home and placed in foster care.

¶9.A grand jury indicted Allen on six counts of statutory rape-sexual intercourse with a child under the age of fourteen by someone more than twenty-four months older in violation of Mississippi Code Section 97-3-65(1)(b)(Supp. 2017).

¶10.He was tried in the Circuit Court of Yazoo County.At trial, the State first called Jada, who testified about her father raping her.During her testimony, the judge admitted her birth certificate without objection.Because Allen is Jada's father, the certificate showed not only Jada's birthday but also Allen's.This public record proved Jada was eleven years old and her father, Allen, was thirty-three years old when he raped her.

¶11.Jada's aunt M.J. also testified, over Allen's objection.So did CPS investigator Creel and Child Advocacy Center forensic interviewer Amber Cope, who had interviewed Jada.Through Creel, the State introduced the CPS investigative report she compiled.And when Cope testified, the State introduced and played the video of the forensic interview.Allen objected to the CPS report, asserting it contained hearsay and "was repetitive and prejudicial."Allen also objected to the video.He argued "we can't cross-examine a video.And she's already given her statement under oath before this court . . . -it is just accumulation, and it's prejudicial."The trial judge overruled these objections.

¶12.After the jury watched the forensic-interview video, the State asked Cope-who testified she had conducted more than five hundred interviews with alleged child sex victims-what stood out about Jada's interview.Cope explained that Jada provided "lots of details"-

She talked about the different positions he would make her get in.Where she would be on her stomach but on her knees with her butt in the air.

She talked about when she would just get on her knees.She discussed when he would make her lay on her back and when he did this, he didn't want to see her face, so he would cover her face with a pillow or a blanket.She discussed him putting a partition.The wrapper was gold.The partition was a condom, I came to know.She discussed having to take baths in bleach.She discussed him with her on the couch making her lay sideways.That position didn't work out.Took him back to his bedroom.She talked about when he first put it in her butt, put his private part in her butt about her holding the back of the bed, her squeezing her booty so he couldn't put it in and he still did and how that hurt.She talked about how when he put it in her private, it stung.She had very, very good details that she gave all throughout the interview.

The State then rested.

¶13.Allen called a doctor and nurse practitioner.Both testified about treating Allen for sexually transmitted diseases, which Jada did not have.The doctor suggested sexual intercourse would have been painful for someone in Allen's condition.But Allen had informed the doctor that he had sex before seeking treatment.Allen also called his mother, his ex-wife, and his son.

¶14.After deliberating, the jury found Allen guilty on all six statutory-rape counts.The judge sentenced him to thirty years' imprisonment.^[4]

¶15.Allen appealed.And his appeal was assigned to the Mississippi Court of Appeals.Though Allen raised five issues, the Court of Appeals addressed only one.The appellate court found the trial court reversibly erred by giving Allen's requested elements instructions, which did not require the jury to find Allen was more than twenty-four months older than Jada.Allen, 2024 WL 934186, at * 2-4.

¶16.The State petitioned for certiorari review, which we granted.

Discussion

I.Elements Instruction

¶17.We begin with Allen's claim that the trial court did not instruct the jury on the crime's essential elements-the claim for which the Court of Appeals found reversible error.Allen, 2024 WL 934186, at * 2-4.

¶18.Both the State and Allen had submitted elements instructions to the trial court.Prior to the jury instruction conference, the trial court gave the State and defense counsel the opportunity to review all the submitted instructions and confer.After conferring, the State announced to the trial court that it was withdrawing its elements instructions-presumably because they mistakenly contained the elements of gratification of lust, not statutory rape.Instead, the State agreed to "accept the defense's[.]"Allen had submitted identical instructions for each statutory rape count, the only difference being the dates of each charged rape.While Allen's instructions required the jury find Allen had intercourse with Jada, a child under the age of fourteen, his instructions omitted the requirement the jury find Allen was more than twenty-four months older than his daughter.

¶19.We recognize that not instructing the jury on every essential element of the crime is error.Harrell v. State, 134 So.3d 266(Miss.2014).But under Mississippi law, it is an error that, if invited by the defendant, can be waived.Thomas, 249 So.3d at 347-48.Here, it was only after the jury found Allen guilty of raping his daughter and the trial court denied his motion for a new trial that Allen first complained on appeal that the instructions he submitted and the State and trial court accepted were constitutionally infirm.After review, we agree with the State that Allen is estopped from asserting this argument because of the invited-error doctrine.

¶20."It is axiomatic that 'a defendant cannot complain on appeal of alleged errors invited or induced by himself.'"Thomas, 249 So.3d at 347(emphasis added)(quotingGalloway, 122 So.3d at 645;O'Connor v. State, 120 So.3d at 397;Singleton, 518 So.2d at 655).This includes instructional errors.Id.Specifically, "a defendant cannot complain of an instruction which he, not the state, requested."Harris v. State, 861 So.2d 1003, 1015(Miss.2003)(citi...