Baine v. State

• Decision Date: 10 June 1992
• Docket Number: No. 89-KA-1179,89-KA-1179
• Citation: Baine v. State, 604 So.2d 258 (Miss. 1992)
• Parties: John E. BAINE a/k/a "Red" Baine v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 258

604 So.2d 258

John E. BAINE a/k/a "Red" Baine v. STATE of Mississippi.

No. 89-KA-1179.

Supreme Court of Mississippi.

June 10, 1992.

Thomas H. Pearson, Cheryl Ann Webster, Clarksdale, for appellant.

Michael C. Moore, Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and McRAE, JJ.

McRAE, Justice, for the Court:

This is an appeal from the Circuit Court for the Second Judicial District of Panola County on a change of venue from Coahoma County. John E. Baine, a/k/a "Red" Baine, was indicted under Miss.Code Ann. Sec. 97-5-23 for sexually molesting three children who attended his wife's day care center. The charges were severed, and Baine was convicted in separate trials of touching two of the victims for lustful purposes. The instant case came to trial on June 27, 1989. The jury found Baine guilty, and the lower court sentenced him to eight (8) years in custody of the Mississippi Department of Corrections, said sentence to be served concurrently with the sentences imposed in Cause No. 7350, Counts I and II, Coahoma County Circuit Court, and Case No. 7351, Count III, Coahoma County Circuit Court, and Case No. 4088 on the docket of the Circuit Court, Second Judicial District, Panola County. On appeal, Baine assigns the following as error:

I. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PROCEED TO TRIAL ON A VOID INDICTMENT.

II. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER EVIDENCE OF OTHER CRIMES AGAINST THE APPELLANT THEREBY VIOLATING THE APPELLANT'S RIGHTS TO A FAIR AND IMPARTIAL TRIAL GUARANTEED UNDER THE FEDERAL AND STATE CONSTITUTIONS.

III. THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER TESTIMONY FROM WITNESSES IN VIOLATION OF MRE 615 AND THUS VIOLATED THE APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL GUARANTEED UNDER THE FEDERAL AND STATE CONSTITUTIONS.

IV. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO PROCEED TO TRIAL IN VIOLATION OF THE 270 DAY RULE.

We affirm.

FACTS

Appellant Baine and his wife operated a day care center in Clarksdale, Mississippi known as the Baine Day Care Center. In the Spring of 1986, seven-year-old L.E. ¹ began to attend the center. L.E. testified that in the months following June of 1986, Baine would often place his hands under her clothing and touch her breast and vaginal areas. L.E. stopped attending the center in February of 1988. Two other children who attended the day care center testified as eye witnesses to corroborate L.E.'s account. Baine categorically denied the accusations.

LAW

I. WHETHER BAINE WAS IMPROPERLY CONVICTED UPON A VOID INDICTMENT?

Baine argues that since his indictment originally included acts committed outside the statutory limitations period, the charge was invalid. Prior to a 1990 amendment, Miss.Code Ann. Sec. 99-1-5 required that child sexual molestation charges be prosecuted within two years. Baine's indictment was issued on June 21, 1988 and charged the following:

COUNT III.

That JOHN E. Baine, a/k/a "Red" Baine ... between April 1, 1986, and January 30, 1988 ... did unlawfully, wilfully and feloniously, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, did handle, touch or rub with his hands the breast area and the private parts of [L.E.], a female child under the age of fourteen (14) years, and he, the said JOHN E. BAINE, was over the age of eighteen (18) years.

Approximately 3 months of the time span indicated in the indictment, the period from April 1, 1986 to June 21, 1986, falls outside the statute of limitations. Recognizing the infirmity, the state moved on March 13, 1989, to amend the indictment "by deleting and omitting the words and figures 'April 1, 1986' and adding in its place instead 'June 22, 1986.' " The court granted leave to amend.

Baine maintains that the trial court erred in allowing the amendment. Under the terms of the original indictment, he contends, the alleged crime was fully performed on April 1, 1986. Subsequent alleged molestations occurring between April 1988 and January of the following year were merely "successive" acts. According to his argument, therefore, the crime charged under the original indictment fell entirely outside the limitations period; the amendment, in effect, converted an indictment charging an non-prosecutable offense into a one subject to prosecution.

Baine cites Hatton v. State, 92 Miss. 651, 46 So. 708 (1908), a case wherein a defendant had been charged with the seduction of a female under the age of eighteen and of previously chaste character. The seduction occurred on June 15, 1905, and repeated acts of intercourse occurred between then and December, 1906. The defendant was indicted on September 7, 1907. This Court reversed the defendant's conviction, holding that the two-year statute of limitations barred the state from prosecuting the crime. The Court reasoned that

while it is true that after the original seduction there were successive acts of coition up to December 1906, still each successive act was not a separate offense of seduction. In Norton v. State, 72 Miss. , on page 136, 16 South. , on page 267 [1894] ... the court, through Whitfield, J., now Chief Justice, announces what we regard as the only sensible rule in these words: "She who is, at the time of the alleged seduction, already unchaste, may be still further debauched, but not seduced." This is the true rule. Rapes may be perpetrated in multiples, but there can never be but one seduction ... by the same man of the same woman.

Hatton, 92 Miss. at 653, 46 So. 708.

Hatton obviously does not support Baine's argument. Unlike seduction, child sexual abuse is not a crime which occurs once and for all. More akin to rape, acts of child molestation "may be perpetrated in multiples." To accept Baine's reasoning would mean that a person could furtively molest a child for two years and then continue to do so with impunity, having no fear of legal sanction. Clearly, the indictment charged a continuous course of criminal conduct and not merely a series of successive acts stemming from an original crime. See Shelton v. State, 445 So.2d 844, 848 (Miss.1984) (child abuse occurring over long period of time is "an ongoing continuing and purposeful course of criminal conduct") (quoting Aldridge v. State, 398 So.2d 1308, 1312 (Miss.1981).

Baine also argues that the amendment was one of substance and not mere form. This Court has often held that trial court have no authority to grant substantive amendments to indictments. See, e.g., Monk v. State, 532 So.2d 592 (Miss.1988); State v. Allen, 505 So.2d 1024 (Miss.1987); Harden v. State, 465 So.2d 321 (Miss.1985). Unless time is an essential element or factor in the crime, however, an amendment to change the date on which the offense occurred is one of form only. According to Wilson v. State, 515 So.2d 1181 (Miss.1987):

An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment or on an impossible day, or on a day that never happened.

Id., 515 So.2d at 1182; see also Norman v. State, 385 So.2d 1298 (Miss.1980) (state allowed to amend to show proper month crime committed); Archer v. State, 214 Miss. 742, 59 So.2d 339 (1952) (state allowed to amend indictment to show year offense was committed).

In addition, Rule 2.05(5) of the Uniform Criminal Rules of Circuit Court Practice expressly state that "[f]ailure to state the correct date shall not render the indictment insufficient."

Baine's indictment was not void, and the trial court did not err in allowing the state to amend it.

II. WHETHER THE TRIAL COURT DEPRIVED THE APPELLANT OF HIS RIGHT TO A FAIR AND IMPARTIAL TRIAL BY ALLOWING THE JURY TO CONSIDER EVIDENCE OF OTHER CRIMES?

At Baine's trial, the jury heard testimony from L.E., the victim. The prosecution instructed the child prior to her testimony to tell only what happened to her, not what happened to other children. Nevertheless, the victim made several references to what Baine did to "us." She also stated that Baine would "feel down our pants and up under our shirts" and that "we just usually said to stop; that it hurts." Later, while questioning the mother of another child who attended the day care center, the prosecution asked: "Did you ever observe anything maybe unusual with reference to your child or [L.E.]?" The defense objected, and the trial court sustained the objection.

The defense thrice approached the bench to move for a mistrial upon the victim's use of plural pronouns. The court denied the motions and refused to admonish the jury on grounds that an admonition would simply call the jury's attention to the matter.

"The general rule in Mississippi is that in criminal trials, with certain exceptions, proof of other criminal conduct by the accused is inadmissible." Darby v. State, 538 So.2d 1168, 1173 (Miss.1989). MRE Rule 404(b) outlines the exceptions:

Evidence of other crimes, wrongs, or acts is ... admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The Court in Darby also noted that "[p]roof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction." Expounding on the same theme, the Court in McFee v. State, 511 So.2d 130, 136 (Miss.1987) stated that

evidence of a defendant's other crimes is admissible, where it is integrally related in time, place, and fact to that for which he stands trial, thereby permitting the State to tell a rational and coherent story of what happened to the victim.

The Court in McFee based its holding on Neal v. State, 451 So.2d 743 (Miss.), cert. denied, 469 U.S....