Hailey v. State

Decision Date07 December 1988
Docket NumberNo. 57356,57356
Citation537 So.2d 411
PartiesMichael Anthony HAILEY v. STATE of Mississippi.
CourtMississippi Supreme Court

Page 411

537 So.2d 411
Michael Anthony HAILEY
STATE of Mississippi.
No. 57356.
Supreme Court of Mississippi.
Dec. 7, 1988.

Page 412

Paul R. Scott, Wilroy & Scott, Hernando, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by John H. Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

DAN M. LEE, Presiding Justice, for the Court:

This case presents a conviction of child fondling following trial in the Circuit Court of DeSoto County on an indictment charging Michael Anthony Hailey with forcible rape. The fondling charge was submitted to the jury at the close of the evidence as a lesser included offense instruction on the principal charge of forcible rape. The jury failed to find forcible rape of the 13-year-old prosecutrix, but did find Hailey guilty of fondling. Following that verdict the trial court entered judgment and sentenced Hailey to seven years in the custody of the Mississippi Department of Corrections.

Page 413

Because the indictment did not sufficiently inform Hailey that he might face a charge of child fondling, however, his conviction must be reversed.


E.M., the 13-year-old prosecutrix, spent the night of February 9, 1985, at the apartment of her Aunt Georgia, while her mother and other family members, along with the defendant Michael Hailey (who is Georgia's companion and roommate) celebrated someone's birthday.

E.M. expected her mother to return for her that evening, but it got late and around 10:00 p.m. she went to sleep on a couch in a bedroom. Her aunt Georgia slept in another bedroom with her two sons.

Later, during the early morning hours, E.M. said she was awakened by the sound of voices. About that time, Michael Hailey entered. E.M. testified that Hailey grabbed her and tried to turn her over on her back. She held on to the couch, but Hailey succeeded in pulling her to the floor. Hailey pulled off her pants, E.M. testified, and pulled up her blouse and bra, placed a hand over her mouth, and began touching her breasts. He told her if she screamed he would hurt her. Prior to this statement she had not called for help, but during the assault she attempted to kick a closet door to make noise.

E.M. testified that Hailey then penetrated her with his penis. This went on for a few minutes. Afterwards, Georgia walked in and turned on the lights. Georgia and Hailey began arguing and E.M. grabbed her clothes and ran to her uncle's apartment nearby.

Later, another uncle drove E.M. home and her mother took her to a hospital for an examination.

Over objection, E.M.'s mother was allowed to testify to details of the assault that E.M. related to her after she returned home.

Dr. Larry Black examined E.M. that morning about 9:45 a.m. Black testified without objection to the facts surrounding the alleged rape as related to him by E.M. for medical history purposes. E.M.'s hymen was not intact, but he found no evidence of trauma other than an irritated area where the child had a yeast infection at the introitus where the skin meets the internal vaginal tissue. This irritation could have been caused by rubbing or intercourse; however, there was no sperm found in her vagina. A rape pack was prepared in any event.

Larry Turner, a forensic serologist with the Mississippi Crime Laboratory, testified he found traces of semen on E.M.'s jeans, but there was not enough present to complete an analysis. He found no seminal fluid on any other clothes or on any other specimens in the rape pack.

Hailey did not take the stand. Georgia testified for the defense that when she entered the room both Hailey and E.M. stated they did not do anything.

Another aunt of E.M. testified that she spoke with E.M. over the telephone the morning of the incident and the child stated that "Georgia caught Michael in the room with me."

At the close of all the evidence, the trial court heard argument on and then granted an instruction to the jury that it could find Hailey guilty of the lesser included offense of child fondling. The jury returned a verdict of guilty of child fondling. The trial court sentenced Hailey to seven years. The trial court overruled Hailey's motion in the alternative for a new trial or for a judgment notwithstanding the verdict, and this appeal followed in timely fashion.


The dispositive question and the reason this conviction must be reversed is the failure of the indictment to inform Hailey of the charge of fondling a child.

By indictment dated August 29, 1985, it was alleged that Hailey

D]id unlawfully, wilfully and feloniously forcibly ravish, rape and carnally know [E.M.], a female of the age of twelve (12) years or upward, against the will and without the consent of [E.M.], in direct violation of Section 97-3-65(2), Mississippi

Page 414

Code of 1972 Annotated, as amended....

At the time of the alleged offense, Miss.Code Ann. Sec. 97-3-65(2) provided:

(2) Every person who shall forcibly ravish any female of the age of twelve (12) years or upward, or who shall have been convicted of having carnal knowledge of any female above the age of twelve (12) years without her consent, by administering to her any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine. 1

As can be seen from the statute, the elements of rape are:

1) carnal knowledge

2) without consent and by force

3) of a female child age 12 years or upward.

The indictment tracks the statute and no doubt clearly informed Hailey of the charge; however, Hailey was convicted of child fondling. The statutory provision for child fondling implicated is Miss.Code ann. Sec. 97-5-23 (Supp.1987), which provides:

Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of fourteen (14) years, with or without the child's consent, shall be guilty of a high crime and, upon conviction thereof, shall be fined in a sum not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or be imprisoned in the State Penitentiary not less than one (1) year nor more than ten (10) years, or be punished by both such fine and imprisonment, at the discretion of the court.

Thus, the elements of child fondling are:

1) a handling or touching or rubbing

2) of a child under the age of 14 years

3) by a person above the age of 18 years

4) for purposes of gratifying lust or indulging licentious sexual desires.

Mississippi law provides that a jury may convict a defendant of a lesser included offense on trial of any indictment. Miss.Code Ann. Sec. 99-19-5 (1972) provides:

Findings of jury. On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose. [emphasis added

A literal reading of this statute appears to authorize a jury to convict a defendant of an "inferior offense, or other offense." Indeed, there is loose language in some of our cases that under this section the state may obtain a conviction of an "inferior" offense. See Callahan v. State, 419 So.2d 165, 177 (Miss.1982). However, this Court has interpreted this section to apply only to inferior offenses "necessarily included within the more serious offense." Sanders v. State, 479 So.2d 1097, 1105 (Miss.1985); Gillum v. State, 468 So.2d 856, 861 (Miss.1985); Cannaday v. State, 455 So.2d 713, 725 (Miss.1984); Biles v. State, 338 So.2d 1004 (Miss.1976); Gray v. State, 220 Miss. 220, 70 So.2d 524 (1954); Boggan v. State, 176 Miss. 655, 170 So. 282 (1936); Brown v. State, 103 Miss. 664, 60 So. 727 (1913); Bedell v. State, 50 Miss. 492 (1874). Stated differently, this Court holds this section only to authorize convictions

Page 415

of inferior constituent offenses unless there be an additional count in the indictment. See Callahan v. State, 419 So.2d 165, 176 (Miss.1982).

In Sanders v. State, supra, this Court outlined the prerequisites for granting instructions for necessarily included offenses.

While the authority to convict a lesser included offense began as a weapon of the prosecution, it has become a defense tool as well. Whether applied for the benefit of the state or defense, in order to authorize such instruction the more serious offense must include all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the lesser included offense. Also, there must be some evidence to support the lesser included offense. See: Lee v. State, 469 So.2d 1225 (Miss.1985); Ruffin v. State, 444 So.2d 839 (Miss.1984); Lambert v. State, 462 So.2d 308 (Miss.1984); Colburn v. State, 431 So.2d 1111 (Miss.1983); and Presley v. State, 321 So.2d 309 (Miss.1975).

479 So.2d at 1108.

The state argues that this Court held child fondling was indeed a lesser-included offense of statutory rape in McBrayer v. State, 467 So.2d 647 (Miss.1985). In McBrayer the defendant was a 46-year-old man who had intercourse with a 13-year-old female. McBrayer was not indicted for statutory rape, but instead he was indicted for and convicted of child fondling. He could not have been guilty of statutory rape, the proof showed, because...

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