Pitts v. State

• Decision Date: 31 January 2023
• Docket Number: 2021-KA-00740-COA
• Parties: JEFFREY CLYDE PITTS APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Court: Mississippi Court of Appeals

JEFFREY CLYDE PITTS APPELLANT v. STATE OF MISSISSIPPI APPELLEE

No. 2021-KA-00740-COA

Court of Appeals of Mississippi

January 31, 2023

DATE OF JUDGMENT: 02/11/2021.

RANKIN COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JOHN H. EMFINGER.

ATTORNEYS FOR APPELLANT: J. EDWARD RAINER KIMBERLY MARIE PHILLIPS.

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY LAUREN GABRIELLE CANTRELL ALEXANDRA RODU ROSENBLATT.

DISTRICT ATTORNEY: JOHN K. BRAMLETT JR.

EN BANC.

LAWRENCE, J.

¶1. Jeffrey Pitts was indicted for the sexual battery of his daughter A.G.C., who was four years old at the time of the offense. After a trial, Pitts was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC) with twenty years to serve and ten years suspended, and ordered to register as a sex offender. Pitts appeals, raising numerous issues. For the reasons discussed below, we affirm the conviction and sentence.

FACTS

¶2. A.G.C. is the child of K.C. and Jeffrey Pitts.^[1] A.G.C. spent the weekend of May 1-3, 2020 with Pitts. After returning home, A.G.C. told her grandmother T.C. that she "saw daddy's gina" and "daddy's gina is this big" while using her hands to illustrate. T.C. had A.G.C. repeat the information to K.C. and A.G.C. told K.C. that her "daddy put his finger in [her] vagina, in [her] 'gina and in [her] bootie and he made it go really fast." K.C. filed a report online with Child Protection Services (CPS) and with the Richland Police Department. A.G.C. was interviewed by CPS and underwent a forensic interview.

¶3. A Rankin County grand jury indicted Pitts for one count of sexual battery under Mississippi Code Annotated section 97-3-95 occurring between May 1-3, 2020. A jury trial was held February 1-4, 2021.

¶4. The State noticed its intent to elicit hearsay testimony under the tender years exception. MRE 803(25). The trial court held two hearings to determine whether T.C. and K.C. could testify as to A.G.C.'s disclosure to them. The court considered the tender years factors under the Mississippi Rules of Evidence and ultimately found the statements admissible. The court reasoned the child "had no apparent motive to lie," and there was "nothing here about the general character of the declaring that would weigh toward excluding the testimony." The court continued that the mother and grandmother heard the initial statements, the allegations were "made within days after the alleged event," and the statements were made spontaneously to the grandmother. The trial court found "the credibility of both the mother and the grandmother to be substantial that these statements were made to them." The court found that "in considering all these things, almost all of these factors weigh in factor and provides substantial indicia of reliability and I find that these statements should be admissible."

¶5. The State noticed its intent to elicit Rule 404(b) testimony of other bad acts committed by the Defendant. The court held a pre-trial hearing on the issue. The State explained that A.G.C. would testify to other sexual acts Pitts committed in addition to those in the indictment, to show Pitts' "motive, opportunity, intent, preparation, and plan." The State argued the Mississippi Supreme Court "has held that evidence of sexual relations between the Defendant and the victim is admissible to show the lustful, lascivious disposition of the Defendant toward that particular victim." Further, the State explained its intent to have Pitts' other daughter, A.P., testify that he also committed sexual acts toward her. However, this evidence was never introduced at trial. No other instances of sexual acts outside the indictment were mentioned, and A.P. did not testify.

¶6. Pitts sent to the State notice of his intent to call two expert witnesses: Dr. Mark Webb, a psychiatrist, and Dr. Gerald O'Brien, a forensic psychologist. The State filed a motion in limine to exclude both witnesses. First, the State argued for the exclusion of both witnesses for discovery violations because the reports were received by the State "just a few days" before trial. Second, the State argued the experts "do not meet the requirements of M.R.E. 702 and experts are not allowed to opine on the credibility of witnesses."

¶7. During the hearing, both doctors were accepted and admitted as experts in their respective fields of practice. Dr. O'Brien testified that he administered the "Abel and Becker" assessment, which is a self-reporting test used to determine whether Pitts had "unusual thoughts outside the normal range, particularly regarding sexual behavior with children." Dr. O'Brien testified that Pitts denied having any unusual or inappropriate thoughts about children. Dr. O'Brien concluded that Pitts "did not meet the criteria for any significant mental disorder including paraphilic disorder such as sexual focus on children." Dr. O'Brien admitted he has been excluded in courts around the state from offering this type of evidence. After the judge asked, "[Y]ou're not saying that this man didn't molest this child, right?" Dr. O'Brien responded, "I can't speak to that. I can say that in my opinion he's not a person that's likely to do such a thing." Dr. O'Brien testified that the Abel and Becker test, "when used alone," was not widely accepted in the psychological community. The trial court noted that Dr. O'Brien's exclusion in a previous case had been upheld by the Mississippi Court of Appeals.^[2]

¶8. The second expert, Dr. Mark Webb, testified that he used Dr. O'Brien's report to determine that Pitts "did not exhibit the characteristics of someone who was a sexual predator or a pedophile." Dr. Webb stated that the charges against Pitts "appear to be invalid because, within a reasonable degree of psychiatric certainty, Pitts did not possess the qualities or characteristics of someone who would sexually abuse a child." Dr. Webb admitted that he could not determine within a reasonable degree of certainty that Pitts did not commit sexual battery against A.G.C.

¶9. The trial court excluded both experts' testimony. The trial court stated there were clear discovery violations in failure to disclose the reports earlier.^[3] Further, the judge reasoned, "I do not believe that these opinions meet the 702 standard in that they are not the product of reliable principles. The opinions were the products of self reports and an expert cannot render an opinion of the credibility of a witness; yet, that's exactly what these doctors purported to do.... Further, the doctors testified that there is no acceptable profile of a sex offender or a scientifically acceptable uniform diagnosis." Moreover, the judge continued, "those characteristics that are used to diagnose and treat an admitted offender and they're not geared toward determining whether a particular person committed an offense on a particular day." The trial court found that this testimony was not helpful to the jury and that any probative value was substantially outweighed by the danger of unfair prejudice.

¶10. At trial, the State's first witness was Officer Ryan Halbert who testified that on May 9, 2020, he met with K.C. and took a report of Pitts' alleged sexual abuse of A.G.C. The State then called Detective Amanda Brown who testified that she took over the investigation from Officer Halbert and scheduled a forensic interview for A.G.C.

¶11. A.G.C. testified next at trial. Before her testimony, the State requested a screen be placed in front of the victim to protect her from the trauma of having to look at her father while she testified. The court granted the motion and allowed the screen to be erected, but the court also required a computer monitor be arranged so Pitts could see A.G.C. For brevity, the facts of this hearing will be discussed further in the analysis.

¶12. On direct examination, A.G.C. was asked if she remembered her "daddy" touching her anywhere. A.G.C. responded, "[I]n my bootie and my vagina . . .with his finger." She testified this touching happened "a few times." The State asked, "[S]o when you said your daddy put his fingers inside of your vagina and your bootie, is that a different time than when he put Butt Paste on you?" A.G.C. responded by nodding her head affirmatively. A.G.C. testified that no one else had ever put a finger inside her vagina. A.G.C. further testified that no one was telling her what to say.

¶13. The State's next witness was A.G.C.'s grandmother, T.C., who testified that on May 8, 2020, she had the following conversation with A.G.C.:

She said, "I saw daddy's 'gina," which doesn't have a term for penis so she used the word 'gina, meaning vagina. "I saw daddy's 'gina." I remained calm. I didn't ask her any questions. I just, "Oh, okay." But then she said, "Daddy's 'gina this big," using her finger to show me daddy's 'gina this big. Again, I didn't ask any questions. I remained calm. I just said, "Okay." Then she went on with another topic. That was all she said about Jeff at that time.

T.C. testified she had A.G.C. repeat the allegation to her mother, K.C.

¶14. K.C. was the State's final witness. She recalled A.G.C.'s disclosure to her, "and she then proceeded to kind of tell the same story, that she saw daddy's vagina and it was this big. And at this point, she -- she was demonstrating to me and she -- she put her -- her elbow in between her legs and she swung her arm back and forth and she says it was like an elephant trunk." K.C. testified she then made a report with CPS and the Richland Police Department.

¶15. Pitts called his mother J.P. as a witness. J.P. testified that she was in the home with Pitts and A.G.C. during the weekend of May 1-3, 2020. J.P. testified she saw the Butt Paste set out in the bathroom. As to the allegation of sexual...