Goodnite v. State, No. 2000-KA-00768-SCT.

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before BANKS, P.J., WALLER and COBB, JJ.
• Citation: 799 So.2d 64
• Parties: James Justin GOODNITE v. STATE of Mississippi.
• Docket Number: No. 2000-KA-00768-SCT.
• Decision Date: 25 October 2001

799 So.2d 64

James Justin GOODNITE
v.
STATE of Mississippi

No. 2000-KA-00768-SCT.

Supreme Court of Mississippi.

October 25, 2001.

799 So.2d 65

Jim Davis, Attorney for Appellant

Office of the Attorney General by John R. Henry, Jr., Jackson, Attorneys for Appellee.

Before BANKS, P.J., WALLER and COBB, JJ.

BANKS, Presiding Justice, for the Court:

¶ 1. This case is before the Court on appeal from a conviction and sentence for touching a child for lustful purposes and sexual battery. Because the trial court did not abuse its discretion with regard to jury instructions and the evidence is sufficient to support a guilty verdict, we affirm.

I.

¶ 2. In December of 1997, "G.E." lived in a mobile home park with his wife and his two children from a previous marriage, "C.E.", then age eight, and "M.E.", then age six. James Justin Goodnite ("Goodnite") lived next to G.E. with his wife and child. G.E.'s wife began suffering complications with her pregnancy and was hospitalized in Mobile, Alabama. G.E., wanting to visit his wife after work, asked Goodnite to baby-sit the kids at night when he was absent. During this period C.E. stayed with Goodnite twice and M.E. stayed with Goodnite four to five times.

¶ 3. Around January 7, 1998, G.E.'s wife returned from the hospital. A few days later, C.E. attempted to discuss something with G.E., but she was unclear about what she was attempting to tell him. A few days after that incident, C.E.'s friend Savannah Robinson ("Robinson") informed G.E. that C.E. told her that Goodnite touched C.E. and M.E. in inappropriate places. G.E. took M.E. for a drive and questioned him about the situation, M.E. told his father that Goodnite "this and that happened" and that Goodnite "sucked his penis." G.E. testified that as he continued to question M.E., M.E. became very fidgety and nervous and would not talk to him about the incident anymore. When he returned home, G.E. first called his sister and then called the Harrison County Sheriff's Department.

¶ 4. M.E., then eight-years old at the time of the trial, testified that he stayed with Goodnite two or three times while his father was commuting to Mobile. He stated that on the night of the incident Goodnite left the den and went into his bedroom. When Goodnite returned he was wearing "fancy, shiny, green underwear" and he asked C.E. and M.E., "Do you want to see my private parts?" Goodnite then told M.E. that he wanted to show him something and asked him to come into the bedroom with him. When M.E. went into the bedroom, Goodnite told him to pull down his pants and M.E. told him no. Goodnite then forced M.E. to pull down his pants and he performed fellatio on M.E. for a "few minutes." After Goodnite stopped, they went into the other room

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with C.E. Goodnite later told M.E., "If you tell somebody I will like hurt you."

¶ 5. C.E. was in the other room lying on the couch with covers on top of her. M.E. testified that Goodnite wanted C.E. to push the covers aside. He also stated that he saw Goodnite pinch C.E. between her legs.

¶ 6. C.E., ten years old at the time of the trial, testified that on the night of the incident, she, Goodnite, and M.E. were watching movies. She stated that Goodnite went into his bedroom and returned wearing only a pair of green panties. She then testified that Goodnite asked, "Do you want to see my private parts?" After she told him no, she covered her head with the covers, and Goodnite exposed himself. She stated that Goodnite and M.E. went into Goodnite's room for two to three minutes.

¶ 7. C.E. stated that when Goodnite returned he told her that it was her turn to show her private parts and tried to get her from under the covers. Goodnite then pinched her between her legs, as he pinched her she kicked at him and told him to stop. Goodnite told C.E. that she should not tell her father because he would be mad at Goodnite.

¶ 8. A few days after the incident C.E. told her friend about the incident who in turn informed G.E. C.E. then told her father what occurred with Goodnite. Several days later, law enforcement officials went to C.E.'s school and asked her to identify a pair of green ladies underwear. C.E. identified the underwear as the underwear Goodnite wore on the night of the incident.

¶ 9. Investigator Robert Cox ("Cox") investigated the allegations against Goodnite. Cox stated that during the course of his investigation Goodnite's wife gave him a pair of green underwear which she identified as belonging to her. C.E. subsequently identified this underwear as the garment worn by Goodnite. Cox testified that M.E. stated that he was too embarrassed to discuss what happened to him.

¶ 10. Goodnite testified that the pair of underwear belonged to his wife, however, he denied wearing the underwear in front of the children. He also denied performing fellatio on M.E. or fondling C.E. Goodnite stated that he did not "roughhouse" with the children and the only time he had physical contact with the children is when he placed them in the corner.

¶ 11. At the close of the State's case, Goodnite moved for a directed verdict on both counts of the charges. Following closing arguments, the jury returned a verdict of guilty on both counts. Goodnite was sentenced to 17 years on the count of touching a child for lustful purposes and eight years for the count of unlawful touching, with the sentences running consecutively for a total of twenty-five years. Goodnite made a motion for a new trial which was denied by the trial court.

II.

¶ 12. Goodnite asserts that in light of the trial court's determination that the children were competent to testify, it was error for the court to refuse to instruct the jury regarding the children's testimony. He contends that because there was no corroborating evidence of the incident and the other testimony was based on what the children said, an instruction regarding the children's testimony is necessary.

¶ 13. This Court has held that the "unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex

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crime." Collier v. State, 711 So.2d 458, 461 (Miss.1998). Goodnite also recognizes that this Court has been hesitant to instruct the jury to view the testimony of a child of tender years with caution. Robinson v. State, 662 So.2d 1100, 1105 (Miss.1995); Bandy v. State, 495 So.2d 486, 493 (Miss.1986) (overruled on other grounds). Nevertheless, Goodnite suggests that, because determining the...