Goodnite v. State

• Decision Date: 25 October 2001
• Docket Number: No. 2000-KA-00768-SCT.,2000-KA-00768-SCT.
• Citation: 799 So.2d 64
• Parties: James Justin GOODNITE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

799 So.2d 64

James Justin GOODNITE v. STATE of Mississippi.

No. 2000-KA-00768-SCT.

Supreme Court of Mississippi.

October 25, 2001.

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 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 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 competency of a child is such a difficult task, these examinations should occur at a much earlier period of the process instead of at trial.

¶ 14. Specifically, Goodnite argues that the trial court erred in refusing proffered instructions D-9 and D-11 which informed the jury to consider the testimony of a child of tender years with caution and to scrutinize the uncorroborated testimony of a victim. Goodnite urges this Court to create a new precedent allowing and encouraging trial courts to so instruct juries in cases where the uncorroborated testimony of a child is the only evidence against a defendant.¹

¶ 15. Proffered Defense instruction D-9 stated:

The Court instructs the Jury that uncorroborated testimony of a child or children of tender years should be viewed with caution.

and D-11 read:

The Court instructs the Jury that the uncorroborated testimony of a victim should be examined closely and scrutinized with caution.

¶ 16. The State urges that even though C.E. could not corroborate that Goodnite performed fellatio on M.E., C.E. could corroborate that Goodnite took M.E. into the bedroom and they stayed in the bedroom for a few minutes. The State asserts that the instructions regarding corroboration and the witnesses incompetency due to age were not supported by evidence and were properly denied, because each child's testimony tended to corroborate that of the other. Thus the testimony was not "uncorroborated."

¶ 17. We agree. Both children testified that Goodnite entered the room wearing only green underwear. Both children stated that Goodnite asked them whether they would like to see his "private parts." Both children testified that Goodnite pinched C.E. between her legs.

¶ 18. Assuming arguendo, that the testimony is uncorroborated, these instructions would not be warranted.

¶ 19. In Bandy v. State, 495 So.2d at 492, this Court in reviewing an instruction containing the language "with great caution" in a child fondling case observed that:

... the language of the instruction, in telling the jury to view L.H.'s testimony "with great caution," sets out the same standard given to the jury for evaluating the testimony of accomplices and codefendants. The instruction is given in those cases because of the inherent mistrust of those witnesses' veracity. That is not necessarily the case with a child witness. In that case, it is not presumed that the child may be dishonest, but simply that he or she may not have the capacity to understand sufficiently or remember correctly the events to which he or she is testifying. A child's testimony should not be viewed with a jaundiced eye as to whether or not the child is truthful—a child may be presumed to be as truthful as any other witness. If the jury is to be instructed at all with respect to the testimony of a child, it should be told to view the testimony in the light of the child's age and understanding, not his veracity.

Id. This Court reiterated that pronouncement in Jones v. State, 606 So.2d 1051, 1060 (Miss.1992), when holding that instructions that tend to comment on the truthfulness of the child's testimony should be rejected. See also Robinson v. State, 662 So.2d 1100, 1105 (Miss.1995)

; Ivy v. State, 522 So.2d 740, 743 (Miss.1988). This assignment of error is without merit.

III.

¶ 20. Goodnite asserts that it was error for the trial...