Hawkins v. State, 2010–KA–00136–COA.

• Decision Date: 12 June 2012
• Docket Number: No. 2010–KA–00136–COA.,2010–KA–00136–COA.
• Citation: 90 So.3d 116
• Parties: David HAWKINS, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

90 So.3d 116

David HAWKINS, Appellant

v.STATE of Mississippi, Appellee.

No. 2010–KA–00136–COA.

Court of Appeals of Mississippi.

Jan. 31, 2012.

Rehearing Denied June 12, 2012.

W. Daniel Hinchcliff and Leslie S. Lee, Jackson, attorneys for appellant.

Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.

Before IRVING, P.J., BARNES and ROBERTS, JJ.

BARNES, J., for the Court:

¶ 1. David Hawkins was convicted in the Circuit Court of Leflore County of sexual battery and four counts of touching a child for lustful purposes. He was sentenced to five terms of imprisonment, totaling twenty-eight years, all to be served consecutively without the benefit of parole in the custody of the Mississippi Department of Corrections (MDOC). Hawkins appeals, and as we find no reversible error, we affirm his convictions and sentences.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Tywone Thomas was a liturgical dance coach at the Good Hope Missionary Baptist Church in Greenwood, Mississippi. On March 25, 2007, she informed the Greenwood Police Department that a fourteen-year-old pupil, Jane,¹ had confided to her that Hawkins, Jane's stepfather, had been sexually abusing her. Thomas noticed that Jane had become withdrawn, complained of pain, and “walked like she was sore between the legs.” Jane's maternal grandmother took her to the Greenwood Police Department to give a statement. Later, a medical examination revealed that Jane's hymen was not intact, which the doctor attributed to penetration. Jane was also suffering from vaginitis, an inflammation of the vagina that can be caused by trauma or infection.

¶ 3. Jane testified that in September 2005, after Hurricane Rita struck the Gulf Coast, her family left their home in Texas. Initially, they shared a single room as guests at the home of Hawkins's brother, located on Leflore Avenue in Greenwood. Jane testified that Hawkins began touching her at this time. Hawkins touched her “below the waist” and inside or on her underwear three or four times while they lived on Leflore Avenue. The family then moved into a home on Linden Avenue, also located in Greenwood. There the abuse became more frequent, with Hawkins touching Jane approximately “every other day.” He touched her breasts and put his fingers inside her vagina. On two occasions, Hawkins attempted to rape Jane, but both times he was unsuccessful. Jane began sleeping on the floor under her bed to avoid Hawkins.

¶ 4. The theory of Hawkins's defense was that Jane had falsely accused him because she resented his strict discipline. Hawkins also contended that Jane's grandmother had a financial motive to get custody, as Jane received a monthly social-security benefit because Jane's father had been killed in action in the Iraq War. Hawkins testified in his own defense, denying he had ever touched Jane. Jane's mother also gave testimony to support Hawkins, though she did make several damaging admissions. On one occasion, Jane's mother discovered Jane and Hawkins sitting close together on the couch in a position that “didn't look right.” Jane was lying or sitting across Hawkins's lap, though she appeared to be sleeping. Jane's mother also admitted Hawkins had approached her about putting Jane on birth-control medication.

¶ 5. Hawkins was convicted of four counts of touching a child for lustful purposes and one count of sexual battery and subsequently sentenced. Hawkins appeals from that judgment. Finding no error, we affirm.

ANALYSIS

I. Venue; Reopening the State's Case

¶ 6. In his first issue, Hawkins contends the State offered insufficient evidence of venue. Venue is an indispensable element of any criminal prosecution. Smith v. State, 646 So.2d 538, 541 (Miss.1994). None of the State's witnesses specifically stated that Hawkins's crimes occurred in Leflore County, Mississippi, where the trial was held. At the close of the State's case, Hawkins pointed this out in his motion for a directed verdict. The trial court, acting pursuant to Lyle v. State, 987 So.2d 948 (Miss.2008), found the State's omission—assuming for the sake of argument that there was one—resulted from a “mere inadvertence” and permitted the State to reopen its testimony. A recalled witness then specifically identified Leflore County, Mississippi, as the scene of the crimes.

¶ 7. On appeal, Hawkins concedes that in the State's initial case, several witnesses testified that his crimes occurred in “Greenwood, Mississippi,” but none specifically identified it as the Greenwood in Leflore County. Hawkins points out that there is at least one other place in Mississippi called “Greenwood,” an unincorporated, rural community in Itawamba County. Hawkins contends that the State failed to exclude the possibility that the crimes occurred in Itawamba County, but he completely ignores the propriety of the trial court's decision to allow the State to reopen its evidence.

¶ 8. The trial court correctly cited Lyle, as the controlling authority. In Lyle, the Mississippi Supreme Court announced an “easy to apply standard” for criminal cases, stating: “[T]he trial court must be vested with discretion to permit reopening when mere inadvertence or some other compelling circumstance justifies a reopening and no substantial prejudice will occur.” Id. at 951 (¶ 12) (quoting State v. Allen, 205 Conn. 370, 533 A.2d 559, 564 (1987)). This is necessary to protect against potentially placing the defendant in double jeopardy. Id. at 950 (¶ 9).

¶ 9. Lyle is not directly on point, factually. In that case, the State was acting according to the trial judge's instructions when it failed to offer certain evidence in its case-in-chief. The supreme court found that omission was a “mere inadvertence.” Id. at (¶ 7). Lyle admittedly presented a stronger case for reopening the evidence than the case before us today, and we are not aware of any other Mississippi appellate decisions applying Lyle's holding. However, as the supreme court noted, the standard it adopted has been used by courts in other jurisdictions for some time. United States v. Hinderman, 625 F.2d 994 (1980), a decision of the United States Court of Appeals for the Tenth Circuit, applied the same test to facts more in line with our case. In Hinderman, the prosecution had simply neglected to provide sufficient evidence of venue. But because the error was clearly inadvertent and the defense suffered no prejudice as it had not yet presented its case, the district court's decision to reopen the evidence was affirmed. Id. at 996. The Second Circuit, also applying the same standard our supreme court later adopted in Lyle, has elaborated on its application as follows: “Generally, a [trial] court will allow reopening to establish venue, identify the defendant, or attend to other technical matters.” United States v. Leslie, 103 F.3d 1093, 1104 (2d. Cir.1997).

¶ 10. In the present case, the State actually presented significant evidenceof venue before reopening its case. Witnesses repeatedly stated that the crimes had occurred in “Greenwood, Mississippi.” Our supreme court has held that a court may take judicial notice that a city is in a particular county. Bearden v. State, 662 So.2d 620, 625 (Miss.1995). Additionally, in the “Greenwood” in which the crimes occurred, two streets (including Leflore Avenue ), two churches, a school, and the Greenwood Police Department were mentioned by name during the trial. A court can take judicial notice that a landmark such a street, school, or other institution is in a particular city, if this fact is common knowledge in the area where the trial is held. M.R.E. 201(b); see also Thomas v. State, 784 So.2d 247, 250 (¶ 10) (Miss.Ct.App.2000). Witnesses also repeatedly stated that events associated with the crimes and subsequent investigations occurred “here in Greenwood.” The scene of the crimes was not contested at trial, nor was it ever even suggested that the crimes had occurred anywhere other than Leflore County. Considering all of this evidence, the jury could have concluded beyond a reasonable doubt that the crimes occurred in Leflore County, as venue may be proven by circumstantial evidence. Smith v. State, 646 So.2d 538, 541 (Miss.1994).

¶ 11. The State's failure to mention explicitly Leflore County as the scene of the crimes was clearly inadvertent and did not result in insufficient proof of venue. Moreover, Hawkins has cited no prejudice and does not appear to have suffered any. Accordingly, we find no abuse of the trial court's discretion in reopening the evidence. After reviewing the record, we also conclude the State offered sufficient evidence of venue in Leflore County even without the additional testimony. This issue is without merit.

II. Exclusion of Jane's Letter

¶ 12. At the beginning of his case-in-chief, Hawkins offered into evidence a letter Jane had written to her parents. He contended the letter was an admission that she had fabricated the allegations against him. However, the letter was undated and did not mention the allegations of sexual abuse. Instead, in it Jane apologized in general terms for “lies” that “got bigger and bigger.” As part of his proffer of evidence, Hawkins questioned Jane about the letter. Jane denied the letter had anything to do with the allegations against Hawkins. She testified she wrote the letter to apologize to her mother and stepfather for not coming home immediately after school and lying to them about visiting friends they had forbidden her to see. Hawkins did not offer any other evidence as foundation for the admitting the letter.

¶ 13. The trial court excluded the letter for two separate reasons. First, the trial court found it irrelevant because Hawkins had not produced any evidence the letter related to the sexual abuse allegations. Second, the trial court held that the letter would be excluded because it had not been timely produced in discovery. As we find the letter irrelevant, we will not address this alternative basis for the...