Boggs v. State

• Decision Date: 07 April 2016
• Docket Number: No. 2014–KA–00194–SCT.,2014–KA–00194–SCT.
• Citation: 188 So.3d 515
• Parties: Steven Lee BOGGS a/k/a Lee Boggs v. STATE of Mississippi.
• Court: Mississippi Supreme Court

188 So.3d 515

Steven Lee BOGGS a/k/a Lee Boggs

v.STATE of Mississippi.

No. 2014–KA–00194–SCT.

Supreme Court of Mississippi.

April 7, 2016.

Gary Lee Williams, J. Edward Rainer, Brandon, attorneys for appellant.

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

Before WALLER, C.J., KITCHENS and COLEMAN, JJ.

WALLER

, Chief Justice, for the Court:

¶ 1. Steven Lee Boggs appeals his conviction for one count of gratification of lust, arguing that the trial court erred in allowing the State to present improper character evidence. Finding no error, we affirm Boggs's conviction.

FACTS & PROCEDURAL HISTORY

¶ 2. This case arises out of Boggs's interactions with three minor victims, K.E., S.S. and D.N.,¹ between the summer of 2009 and the summer of 2010. K.E. and S.S. were between the ages of ten and eleven during the time of the incidents that led to the indictment in this case, while D.N. was between the ages of eight and nine. Boggs is a cousin of K.E. and D.N. Boggs's wife Becky and S.S.'s mother Amanda Stocks worked together at McLaurin Elementary School during the time in question. Amanda and Becky would work at the school during the summers, and they would take K.E. and S.S. with them. Boggs often would come to school with his wife to do various work projects and look after K.E. and S.S. Boggs also tutored K.E. after school during the time in question, and he took care of K.E. and D.N. while other adults were around on at least one occasion during the time in question.

¶ 3. The indictment in the instant case originally included separate charges concerning Boggs's misconduct toward S.S. and K.E. However, the charge involving S.S. was dismissed on statute-of-limitations grounds prior to trial. Thus, Boggs was tried only for his misconduct toward K.E. in the instant case. Boggs was charged by a separate indictment for an offense involving D.N., but an order nolle prosequi was entered on that indictment in 2011, before the indictment in the instant case was issued. S.S. and D.N. testified for the State in support of Bogg's conviction for his misconduct against K.E.

¶ 4. On July 5, 2012, a Rankin County Sheriff's Department deputy served Boggs with a no-contact order regarding K.E., a minor female cousin of Boggs.² Boggs's wife Becky went to K.E.'s house to talk to K.E.'s parents about the order. K.E. appeared withdrawn and did not want to talk in front of everyone. K.E.'s mother took K.E. out to the back porch of the house and talked to her alone. K.E. then disclosed that Boggs had sexually abused her on several occasions between the summer of 2009 and the summer of 2010. K.E. stated that, during the summer of 2009, Boggs had exposed his penis in front of her and S.S., a minor female unrelated to Boggs, in the library of McLaurin Elementary School. She also alleged that, during her fourth-grade year, between the summer of 2009 and the summer of 2010, Boggs would pick her up from school and tutor her at his house. During these tutoring sessions, Boggs would touch K.E.'s vagina and expose his penis in front of her. On July 6, 2012, the day after K.E. made these allegations, her mother took her to the Rankin County Sheriff's Department to give a statement to the police.

¶ 5. On October 11, 2012, a Rankin County grand jury indicted Boggs with one count of gratification of lust against K.E. and one count of attempted gratification of lust against S.S. As mentioned above, the charge involving S.S. was dismissed on statute-of-limitations grounds. Prior to trial, the State filed a notice of intent to use the testimony of D.N., a cousin of Boggs and K.E., during its case-in-chief as evidence of Boggs's prior bad acts "to prove motive, intent, knowledge and absence of mistake or accident." After holding a hearing and taking the matter under advisement, the trial court ultimately granted the State's request to admit D.N.'s testimony under Mississippi Rule of Evidence 404(b)

.

¶ 6. Boggs's trial commenced on November 4, 2013. Before the parties began their opening statements, the State moved to admit the testimony of S.S. under Rule 404(b)

, as S.S.'s allegations no longer formed a charge in the indictment. The trial court granted the State's motion over Boggs's objection.

¶ 7. At trial, K.E. testified concerning Boggs's misconduct. On cross-examination, she admitted that she had visited Boggs's attorney's office with her mother in the summer of 2010 and had given a statement³ in which she claimed that Boggs had never ever done anything sexually inappropriate with her. K.E. testified that she had lied during this statement because she believed she would be isolated from the rest of her family if she came forward with her allegations. K.E.'s mother confirmed that D.N.'s prior allegations had caused a rift in their family and that she originally had "taken sides" with Boggs before learning of K.E.'s allegations. K.E. also testified that she had not seen D.N. since D.N. had disclosed Boggs's misconduct.

¶ 8. Boggs testified in his own defense and denied any wrongdoing. At the conclusion of trial, the jury found Boggs guilty as charged, and the trial court sentenced him to serve fifteen years in the custody of the Mississippi Department of Corrections. On appeal, Boggs argues that the trial court erred in allowing D.N. and S.S. to testify regarding Boggs's prior acts of sexual misconduct against them. Alternatively, he argues that the trial court failed to give the jury a proper limiting instruction on evidence admitted under Rule 404(b)

. Finally, he claims that the trial court erred in finding that the testimony of S.S.'s mother Amanda Stocks and Brandi Ray, a forensic interviewer, concerning the minor victims' allegations of abuse was admissible under the "tender years" exception to hearsay in Mississippi Rule of Evidence 803(25)

.

STANDARD OF REVIEW

¶ 9. This Court reviews the admission of evidence under the abuse-of-discretion standard. Smith v. State, 136 So.3d 424, 431 (Miss.2014)

(citing Young v. Guild, 7 So.3d 251, 262 (Miss.2009) ). "Evidentiary rulings are affirmed unless they affect a substantial right of the complaining party." Sewell v. State, 721 So.2d 129, 138 (Miss.1998) (citing Ivy v. State, 641 So.2d 15, 18 (Miss.1994) ). This Court also reviews issues concerning jury instructions for an abuse of discretion. Victory v. State, 83 So.3d 370, 373 (Miss.2012).

DISCUSSION

I. Whether the trial court erred in allowing D.N. and S.S. to testify about other allegations of Boggs's sexual misconduct.

¶ 10. At trial, the State sought to offer evidence of other allegations of Boggs's sexual misconduct involving other minors through the testimony of D.N. and S.S. D.N. alleged that Boggs had touched her vagina while they were at a family member's pool during the summer of 2010.⁴ K.E. was present when this incident occurred. S.S. alleged that Boggs had exposed his penis in front of her and K.E. in the McLaurin Elementary School library in the summer of 2009. S.S. also claimed that Boggs had asked her to lift her shirt while they were riding in Boggs's truck on one occasion during the same summer. D.N. and S.S. were around the same age when these incidents happened, and they both stated that Boggs warned them not to tell anyone about his conduct. The State argued that the testimony of D.N. and S.S. would be offered as proof of motive, common plan or scheme, and absence of mistake under Rule 404(b)

. Boggs objected to the admission of this testimony, claiming that the testimony of S.S. and D.N. did not fit within any of the above-permitted uses. He also argued that the probative value of this testimony was substantially outweighed by the danger of confusing or misleading the jury with extraneous allegations outside the charge in the indictment. After considering the parties' arguments, the trial court, citing Gore v. State, 37 So.3d 1178, 1186 (Miss.2010), found the testimony of D.N. and S.S. to be admissible under Rule 404. The trial court also found under Rule 403 that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. On appeal, Boggs argues that the trial court erred in allowing S.S. and D.N. to testify concerning instances of sexual misconduct that were not alleged in the indictment.

¶ 11. Rule 404

generally prohibits the admission of evidence of a person's character for the purpose of proving that he or she acted in conformity with that character on a particular occasion. Miss. R. Evid. 404(a). Evidence of "other crimes, wrongs or acts" is inadmissible as character evidence, but it may be admitted for other purposes, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Miss. R. Evid. 404(b). The purposes listed in Rule 404(b) are not exhaustive; they simply are examples of noncharacter purposes for which evidence of other crimes, wrongs, or acts may be admitted. Green v. State, 89 So.3d 543, 549 n. 12 (Miss.2012).

¶ 12. Prior to 2008, evidence of a defendant's sexual misconduct involving other minor victims was considered to be so prejudicial as to be per se inadmissible, even if such evidence was offered for a permissible noncharacter purpose under Rule 404(b)

. See, e.g., Mitchell v. State, 539 So.2d 1366, 1372 (Miss.1989), overruled by Derouen v. State, 994 So.2d 748 (Miss.2008). However, in Derouen, this Court explicitly overruled Mitchell and its progeny, holding that evidence of other sexual misconduct, "if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury, should not be considered per se error." Derouen, 994 So.2d at 756.

¶ 13. Since Derouen was decided, this Court has had several occasions to clarify its analysis of the application of Rule 404(b)

in sex-crime cases involving minor victims. For example, in Gore, the case relied upon by the trial court here, the defendant was charged with...