Hennington v. State, 95-KA-01113-SCT
| Decision Date | 20 November 1997 |
| Docket Number | No. 95-KA-01113-SCT,95-KA-01113-SCT |
| Citation | 702 So.2d 403 |
| Parties | Matthew HENNINGTON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
William F. Ferguson, Raymond, for appellant.
Michael C. Moore, Attorney General, Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.
En Banc.
STATEMENT OF THE CASE
¶1 This case comes before this Court as a criminal appeal from the Circuit Court of Copiah County, Mississippi. Matthew Hennington was indicted by the Grand Jury of Copiah County on May 4, 1995, charging that he did wilfully, unlawfully, and feloniously engage in sexual penetration of A.R. 1 . Hennington was tried and convicted of sexual battery and sentenced to serve a term of thirty years in the custody of the Mississippi Department of Corrections and to receive psychological help while in custody.
¶2 Aggrieved by his conviction and subsequent sentence, Hennington appeals to this Court raising the following issues:
I. WHETHER A DIRECTED VERDICT OF "NOT GUILTY" SHOULD HAVE BEEN GRANTED.
II. WHETHER THE STATEMENTS OF MATTHEW HENNINGTON SHOULD HAVE BEEN ADMITTED INTO EVIDENCE.
III. WHETHER THE LOWER COURT ERRED BY FINDING THE CHILD VICTIM UNAVAILABLE AS A WITNESS.
IV. WHETHER CERTAIN WITNESSES FOR THE STATE GAVE INADMISSIBLE HEARSAY TESTIMONY.
¶3 After reviewing the record and this Court's prior case law, we hold that the lower court did not err. Therefore, Hennington's conviction of sexual battery and sentence to thirty years in the custody of the Mississippi Department of Corrections is affirmed.
¶4 Hennington was convicted of the sexual battery of A.R., a ten-year old male, on February 26, 1995. M.H., the victim's mother, testified that she became concerned about A.R. when he failed to complete his schoolwork. Upon talking to A.R. about this, he stated that he was being abused by Hennington. The child stated to his mother that two days earlier Hennington had taken him into the woods behind the child's house, had performed oral sex on A.R., masturbated A.R., and had made A.R. masturbate him.
¶5 M.H. called and made an appointment for an interview with Mr. Billy Mangold, a social worker for the Mississippi Department of Human Services. Mangold testified that A.R. told him that Hennington placed his hands on A.R.'s penis and moved them up and down. Mangold also stated that A.R. was made to place his hands on Hennington's penis and move it up and down "until white stuff came out." Mangold took several pictures of A.R.'s penis to accurately document the physical injuries sustained as a result of the sexual battery.
¶6 Mangold contacted Hennington and requested that he come by Mangold's office to talk about the allegations. Hennington came voluntarily and was interviewed by Mangold. Mangold informed Hennington that if the allegations were substantiated any information disclosed by Hennington to Mangold would be turned over to law enforcement authorities. Hennington then admitted to Mangold that he had engaged in oral sex with A.R., had masturbated A.R., and had A.R. masturbate him. Further, Hennington stated to Mangold that he was very sorry for the incident and he intended to turn himself in to the sheriff's department the next day.
¶7 M.H. was instructed by Mangold to take A.R. to see a doctor. She took A.R. to see Dr. Ken Whittington, a family medical practitioner with the Copiah Medical Associates, at the Crystal Springs Clinic. Dr. Whittington testified that A.R. was brought to him for a physical examination to detect any signs of sexual abuse. Dr. Whittington stated that he asked A.R. what had happened to him. A.R. explained to the doctor, as he had done to M.H. and Mangold, what Hennington had done to him. Dr. Whittington conducted a physical examination of A.R. and observed abrasions on his penis that had scabbing. The doctor stated that the abrasions were in an arc like formation consistent with the distribution of teeth marks.
¶8 Prior to testimony by M.H., Mangold, or Whittington, A.R. was called before the court to determine his availability as a witness. A.R., with his attorney present, was interviewed by the judge in chambers outside the presence of the attorneys for the State and the Defense. The judge requested A.R. to testify, and he stated that he did not want to testify. A.R. stated that he did not want to go into court. The judge ordered A.R. to testify and asked if there was anything he could do to make him testify before the court. A.R. simply refused to testify.
¶9 The judge found A.R. unavailable under Miss. R. Evid. 804(a)(2). However, the Defense objected and claimed that the only way A.R. could be found unavailable to testify was under Miss. R. Evid. 804(a)(6), because this was a case dealing with a child. The court agreed with the State's argument that if the witness is found unavailable by Miss. R. Evid. 804(a)(2), there was no need for a separate finding on Miss. R. Evid. 804(a)(6).
¶10 At the close of the State's case-in-chief, the defense moved for a Directed Verdict which was denied. The Defense rested without presenting any evidence. After hearing closing arguments from both sides, the jury began deliberations. The jury found Hennington guilty of sexual battery. An Allocution Hearing was had, and character witnesses for Hennington testified and asked for the court to be lenient.
¶11 Hennington had been previously convicted in Hinds County for the crime of gratification of lust. He was on probation for that crime when he committed the sexual battery against A.R. The lower court was aware of this prior conviction in Hinds County and the lenient sentence where he was ordered to go to therapy while on probation. The judge sentenced Hennington to a period of thirty years in the Mississippi Department of Corrections.
¶12 The indictment charging Hennington stated that he "did wilfully, unlawfully, and feloniously engage in sexual penetration of A.R., a male person under the age of fourteen years, by then and there wilfully, unlawfully and feloniously putting his mouth and hands on the penis of the said A.R. contrary to and in violation of Section 97-3-95 of the Mississippi Code of 1972, and against the peace and dignity of the State of Mississippi." (emphasis added). Hennington claims that the indictment charged him with penetration "of " a child, instead of penetration "with " a child. (emphasis added). Therefore, he argues that the State did not meet its burden of proof that A.R. was penetrated by the act of fellatio. Hennington concedes that Miss.Code Ann. § 97-3-97 defines sexual penetration as including fellatio and that this Court has held that an act of fellatio performed by the accused is an act proscribed by the statute.
¶13 The two statutes that are controlling in this case are Miss.Code Ann. § 97-3-95 and § 97-3-97.
§ 97-3-95. Sexual battery.
(1) A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person; or
(c) A child under the age of fourteen (14) years.
(2) A person is guilty of sexual battery if he or she engages in sexual penetration with a child of fourteen (14) but less than eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child's teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.
§ 97-3-97 Sexual battery; definitions.
For purposes of sections 97-3-95 through 97-3-103 the following words shall have the meaning ascribed herein unless the context otherwise requires:
(a) "Sexual penetration" includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body.
Miss.Code Ann. §§ 97-3-95, -97(a) (1994) (emphasis added).
¶14 Hennington attempts to confuse the Court by engaging in an exercise of semantics by claiming the language in the indictment was penetration "of" rather than penetration "with" the victim. An indictment that tracks the language of the statute is generally sufficient to inform the accused of the charge against him. Cantrell v. State, 507 So.2d 325, 329 (Miss.1987). However, in order to be sufficient, the indictment must contain the essential elements of the crime with which the accused is charged. Peterson v. State, 671 So.2d 647, 653 (Miss.1996).
¶15 In Love v. State, 211 Miss. 606, 52 So.2d 470 (Miss.1951), the Court promulgated the requirements for the sufficiency of the indictment. The Court reiterated those requirements in Peterson:
[i]t is fundamental ... that an indictment, to be effective as such, must set forth the constituent elements of a criminal offense; if the facts alleged do not constitute such an offense within the terms and meaning of the law or laws on which the accusation is based, or if the facts alleged may all be true and yet constitute no offense, the indictment is insufficient.... Every material fact and essential element of the offense--every essential element of the offense--must be alleged with precision and certainty, or, as has been stated, every fact which is an element in a prima facie case of guilt must be stated in the indictment.
Peterson, 671 So.2d at 653 (quoting Love, 211 Miss. at 611, 52 So.2d at 472).
¶16 "Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them." URCCC 7.06. There are safeguards provided to the accused. Due Process requires the State to prove each element of the offense charged in the indictment beyond a reasonable...
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