Garlington v. State
| Decision Date | 19 July 2022 |
| Docket Number | 2020-KA-00392-COA |
| Citation | 349 So.3d 782 |
| Parties | Jeremy GARLINGTON, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: JOHN G. HOLADAY, Flowood
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, Jackson
BEFORE CARLTON, P.J., McDONALD AND EMFINGER, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Jeremy Garlington was convicted by a Hinds County Circuit Court jury on one count of sexual battery against his girlfriend's young daughter, Jane.1 The trial court sentenced Garlington to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) and ordered him to register as a sex offender. Garlington appeals, asserting ten assignments of error, restated as follows:
Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2. On July 22, 2014, a Hinds County grand jury indicted Garlington on one count of sexual battery under Miss. Code Ann. § 97-3-95(1)(d) (Rev. 2006), charging that "on and about the 29th day of May, 2014, [Garlington] did willfully, unlawfully[,] and feloniously engage in sexual penetration, as defined by Miss. Code Ann. § 97-3-97, with [Jane], an eight year old female child ... by penetrating [Jane's] body with his ... penis." In May 2017, the State moved to amend the indictment to widen the time frame in the original indictment from "on and about the 29th day of May 2014" to "on, about[,] and between the 1st day of May 2013 and the 29th day of May 2014." This motion was subsequently granted by the trial court prior to trial in August 2019. Further details pertaining to this ruling and other pretrial proceedings relating to the issues Garlington asserts on appeal will be discussed in context, below. Following his August 2019 trial, the jury found Garlington guilty of sexual battery and the trial court sentenced him as set forth above.
¶3. In its case in chief, the State presented the testimonies of Jane's mother, Joan; Jane's pediatrician, Dr. Dana Grant; Regan Doleac, a nurse practitioner at the Children's Justice Center at University of Mississippi Medical Center; Jane; and Detective Jane Henderson, who was an investigator on the case and who observed over closed-circuit television Jane's forensic interview with Gail Foster, a forensic interviewer with the Child Advocacy Center. The video of that forensic interview was also played for the jury.
¶4. Jane's mother testified that in Spring of 2014 she took Jane to her pediatrician, Dr. Grant, for treatment for vaginal discharge, chafing, and burning when she was urinating. Jane was eight years old at the time. Jane was first treated for a urinary tract infection
, but her symptoms did not go away. As a result, about a week later, Joan brought Jane to see Dr. Grant again. Dr. Grant testified that Jane also complained of a vaginal discharge with blood at this visit, and she treated Jane for a yeast infection but, again, the typical treatment did not resolve Jane's symptoms. This prompted Dr. Grant to perform a sexually transmitted disease (STD) test. The results of that test showed that Jane had been infected with gonorrhea. Because Jane tested positive for an STD, Dr. Grant contacted law enforcement officials, as is required, and also contacted the Children's Justice Center at University of Mississippi Medical Center.
¶5. Dr. Grant talked with Regan Doleac, a nurse practitioner at the Children's Justice Center, who advised Dr. Grant that she should perform a gonorrhea
culture as a confirmatory measure and that she should also test Jane for HIV and syphilis, test her urine for additional STDs, and treat the active infection with Rocephin.
¶6. The day after Dr. Grant shared Jane's test results with her mother, Joan brought Jane in for the additional testing. Dr. Grant testified that she conducted a genital swab on Jane but, as she noted in Jane's medical chart, she was not confident the sample would be sufficient. She explained that, due to the uncomfortable nature of the swabbing process, Jane was not cooperative, and it was difficult to obtain a swab.
¶7. After she obtained the swab, Dr. Grant treated Jane with Rocephin
. She sent the genital swab to Lab Corps for testing. However, the result that was returned was for a genital culture—not a gonorrhea culture. Thus, the second test did not confirm or disprove the original positive gonorrhea result. The genital culture test that was actually done was not designed to test for gonorrhea.
¶8. Nurse Doleac testified that Jane was referred to the Children's Justice Center at University of Mississippi Medical Center by both Dr. Grant and by the Department of Human Services and/or law enforcement, where she was treated as a victim of sexual assault. Nurse Doleac performed a forensic exam on Jane. After listening to an audiotape of her interview with Nurse Doleac, Jane acknowledged at trial that in response to Nurse Doleac's questions whether anyone had touched her "in your middle part" or touched "her behind"3 she told Nurse Doleac "No."
¶9. Nurse Doleac testified that in her forensic examination she found that Jane had a "narrowed hymen," which is a note of concern suggesting a history of sexual abuse. She explained that a narrowed hymen could result from non-abusive trauma, such as a bike accident, a balance beam accident, or something that would have caused trauma directly between Jane's legs, but when asked whether Jane had any history of injury to her genital area, she said she had none.
¶10. Nurse Doleac referred Jane to counseling and also recommended that she be interviewed by a forensic interviewer as soon as possible. Nurse Doleac also advised that every person who lived with Jane was required to be tested. She explained that this was part of their protocol, that "when we have a child, particularly a prepuberty child with an infection like gonorrhea
that they couldn't have," they "test everybody that lives in the house with them." Nurse Doleac said that "the reason that we do that is to begin the process of trying to figure out where [the infection] came from and try and figure out who the child is safe to be with, so we did do that that day [with respect to Jane]." Samples were collected from Joan, her six-year-old son, and her live-in boyfriend, Garlington—Joan tested negative for gonorrhea, but Garlington tested positive.
¶11. Nurse Doleac testified that gonorrhea
is transmitted through intimate contact with an infectious secretion or an infected fluid. She clarified: She explained that when she says that "[t]he presence of gonorrhea in anyone is definitive for an intimate contact with an infectious secretion or an infected fluid," this "means that there's no other way [Jane] got it except intimate contact with an infected secretion."
¶12. Once they (Jane, Joan, and Garlington) returned home from the Children's Justice Center, and before receiving the test results from the samples given by Joan and Garlington, Joan asked Jane whether there was anything she wanted to tell her. Joan testified that Garlington was standing outside the door when she asked, and Jane did not want to talk. But when Garlington went outside to smoke a cigarette, Jane called her mother into the bathroom and said she had something to tell her. Joan closed the door and Jane started crying. She did not go into detail, but Jane told her mother "Jeremy did this to me."
¶13. Garlington was standing by the bathroom door when Joan walked out, as if he had been listening. She asked Garlington what he did, and he said he didn't do anything and that "it didn't happen like that." Joan had her phone in her hand and was trying to call the police. She testified that Garlington tried to snatch the phone away from her and when she tried to find out Garlington ran out of the house. That was the last time Joan saw Garlington.
¶14. In accordance with Nurse Doleac's recommendation, Jane was interviewed by Gail Foster, a forensic interviewer at the Child Advocacy Center. A videotape of that interview was played for the jury.4 Jane was eight years old at the time, and in that interview, Jane told Foster that Garlington "started to put his wrong part in her" after he had picked her up and put her on her...
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