Eakes v. State
| Decision Date | 26 October 1995 |
| Docket Number | 92-KA-00638-SCT,Nos. 92-KA-00294-SC,s. 92-KA-00294-SC |
| Citation | 665 So.2d 852 |
| Parties | Ricky G. EAKES a/k/a Rickey Gene Eakes v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Marvin E. Wiggins, Jr., DeKalb, for appellant.
Michael C. Moore, Attorney General, Pat S. Flynn, Ass't Attorney General, Jackson, for appellee.
Before PRATHER, P.J., and BANKS and SMITH, JJ.
I. STATEMENT OF THE CASE
This criminal appeal arises from Ricky G. Eakes' conviction, in the Circuit Court of Kemper County, of two counts of sexual battery and one count of attempted sexual battery 1.
For the first count of sexual battery, Eakes was sentenced to twenty years, charged with a fine of $10,000.00, and court costs of $165.00. The sentence imposed for the second count of sexual battery was twenty years in Mississippi Department of Corrections (MDOC), to run consecutively to count I. A third twenty-year sentence, to run concurrently with counts I and II, were imposed for the attempted sexual battery conviction. Eakes was also ordered to receive sex abuse counseling from the Department of Corrections. Eakes' motion for Judgment Notwithstanding the Verdict (JNOV) or for new trial was overruled. Eakes subsequently appealed to this Court, requesting review of the following issues: 2
A. Whether the trial court erred by failing to dismiss the indictment;
B. Whether the trial court erred in allowing a multi-count indictment;
C. Whether the State violated Rule 4.06;
D. Whether the trial court erred in refusing to grant Appellant a one-week continuance;
E. Whether the trial court erred in denying Appellant's discovery motion;
F. Whether the trial court erred in denying individual and/or sequestered voir dire;
G. Whether the trial court erred by admitting hearsay testimony;
H. Whether the trial court erred by admitting evidence of prior bad acts, of Appellant's character, and by admitting irrelevant, prejudicial, and inflammatory testimony;
I. Whether the trial court erred in allowing the testimony of three children;
J. Whether the trial court erred by allowing the State to lead the child witnesses;
K. Whether the trial court erred by excluding relevant evidence offered by Appellant;
L. Whether the trial court erred by granting instructions S-1, S-3, and S-4 and by denying instructions D-10 and D-8;
M. Whether the trial court erred in denying Appellant's motion for JNOV or for new trial;
N. Whether the verdict is against the overwhelming weight of the evidence O. Whether Appellant suffered ineffective assistance of counsel;
P. Whether the trial court erred in the determination of Appellant's sentence;
Q. Whether the trial court erred in its determination of the attorney fee approved for Appellant's trial counsel;
R. Whether, despite the lack of objections at trial, the record reflects plain error regarding admission of hearsay, admission of prior bad acts, and admission of prejudicial and irrelevant testimony; and
S. Whether Appellant was denied a fair trial by the accumulation of errors.
II. STATEMENT OF THE FACTS
Lewis Myers had three children: a son, Shawn, aged twelve, and two daughters, April, aged nine, and June, aged seven at the time of trial. 3 On May 11, 1991, the three children spent the night at the home of Ricky Eakes, who was a friend of their father, Lewis Myers. The testimony introduced at trial established that during that night, Ricky Eakes came into their bedroom, sat on the bed and put his hand inside April's panties. When she told him to stop, he did. Later that night, Eakes came back and got into the bed with April and June. He placed his hands on April's breasts, between her legs, and inserted his penis into her rectum. April in her own terms described anal and digital penetration, attempted anal penetration and attempted cunnilingus by Eakes.
April eventually told Shawn of this activity, who in turn told their stepmother, Marianne. 4 Lewis and Marianne took April for a medical examination. A physical exam revealed that April had no tears, bruising, or lacerations in her vagina or rectum, no loss of sphincter tone in the rectum 5, and her hymen was intact. However, the child tested positive for chlamydia in her vagina, gonorrhea of the anus, and for gonorrhea and chlamydia in her mouth. Both gonorrhea and chlamydia are transmitted either by ejaculation or by vaginal discharge. Following treatment with antibiotics, repeat testing by the health department two weeks later showed April to be free of gonorrhea and chlamydia. April again tested negative for any sexually transmitted diseases in February 1992.
Lewis Myers reported the incident to Deputy Sheriff Mike McKee, who in turn asked for an investigation by Linda Palmer, a social worker with the Department of Human Services (DHS). Upon investigation, Palmer learned of a similar incident between Eakes and April in December 1990 and in March 1991. Shawn and June corroborated April's testimony of these actions, but not on all of the dates.
About one week after the complaint against Eakes, the Myers' house burned and the Myers family moved in with the three children's grandmother, Mrs. Linda M. Greer and her son, Tom Greer. Shortly thereafter, Palmer learned that Shawn and June were also infected with venereal disease. June told Palmer that Eakes had put his hands around her throat as if to choke her and his finger down her throat. 6
After Eakes was arrested, the Myers children told conflicting stories. April accused her uncle, Tom Greer, of sexually abusing her. However, when testifying before the grand jury, April recanted this accusation against Todd, stating that Eakes suggested this action. Shawn also accused Tom Greer of sexually abusing him, but also recanted his story before the grand jury, asserting that Ricky Eakes, with his mother, denied his presence in the home on the night of December 1990, when the incident was alleged to have occurred. He testified that he was in Arkansas. Further, he denied any sexual actions toward any of the Myers children or any suggestions that they falsely accused their Uncle Tom of misconduct. He asserted a dispute with Lewis Myers over a relationship with another woman.
Eakes had threatened to kill him otherwise. The children had been removed from their father's custody and placed in foster care and remained there until the time of trial.
The sheriff obtained a blood test from Eakes under court order, but Eakes refused additional tests for chlamydia or gonorrhea. The sheriff did not force Eakes to provide the tests despite the fact a warrant had been issued for the same.
An inmate at the jail with Eakes testified that Eakes stated to him that he was not worried because he and his girlfriend had "got checked, and he had took a shot." Two of his girlfriends denied having had venereal diseases.
III. THE LAW
Eakes contends the indictment is defective because it fails to specify the dates and locations that the alleged offenses occurred, fails to specify statute, fails to allege an overt act or frustration of purpose as to the attempt charge, fails to set forth the facts necessary to establish the offenses. As a result of these defects, Eakes claims he was not apprised of the nature of the charges against him, and he may be subject to double jeopardy in the future. Eakes further claims the trial court erred by allowing a substantive mid-trial amendment of the indictment from sexual battery to attempted sexual battery, forcing Eakes to suddenly defend against new elements and issues.
The State counters that a specific date in a child abuse case is not necessary and that the sexual battery statutory language was tracked in the instant indictment. Further, the indictment indeed alleged an overt act, to wit: "placing his penis into her anal cavity." Regarding frustration of purpose, the State claims this was an element of proof for the State at trial rather than an element which was required in the indictment. The State also takes issue with Eakes' double jeopardy argument, claiming that the indictment was sufficiently specific to prevent future charges of sexual battery on the same child within the same dates. The State argues that the amendment of the indictment from sexual battery to attempted sexual battery, in conformity with the evidence presented at trial, was one of form rather than of substance. Regardless of any amendment to the indictment, the State contends Eakes could have been convicted of attempt as a lesser included offense.
The indictment charged Eakes with four counts of sexual battery against April Myers. Following April's trial testimony, which established one completed digital-vaginal penetration, one completed penile-anal penetration, one attempted penile-anal penetration, and two attempts at cunnilingus, the defense moved for a dismissal of counts three and four. The State responded with a motion to amend the indictment by reducing counts three and four to fondling. The trial court declined to allow this substantive amendment of the indictment, granted Eakes' motion to drop count three, and allowed the State to amend the fourth count to attempted sexual battery. Eakes claims this amendment is one of substance rather than of form.
An indictment may only be amended at trial if the amendment is immaterial to the merits of the case and the defense will not be prejudiced by the amendment. Griffin v. State, 584 So.2d 1274, 1276 (Miss.1991). However, amendments as to the substance of the charge must be made by the grand jury. The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment "An attempt to commit a crime is, as a general rule, an indictable offense, which is separate and distinct from the...
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