Ross v. State

• Citation: 288 So.3d 317
• Decision Date: 30 January 2020
• Docket Number: NO. 2019-KA-00029-SCT,2019-KA-00029-SCT
• Parties: James ROSS v. STATE of Mississippi
• Court: Mississippi Supreme Court

288 So.3d 317

James ROSS

v.STATE of Mississippi

NO. 2019-KA-00029-SCT

Supreme Court of Mississippi.

January 30, 2020

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON, Jackson

BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. A Warren County jury convicted James Ross of three counts of sexual battery against two victims under the age of fourteen in violation of Mississippi Code Section 97-3-95(1)(d) (Rev. 2014) and one count of statutory rape in violation of Mississippi Code Section 97-3-65(1)(b) (Supp. 2019). After the verdict, the Warren County Circuit Court sentenced Ross to serve three concurrent thirty-year terms in the custody of the Mississippi Department of Corrections for the sexual-battery convictions and to a consecutive term of thirty years for the statutory-rape conviction with five years suspended.

¶2. Ross now appeals his convictions and sentences. He alleges two errors. First, he argues that the State failed to prove that the crimes occurred within a reasonable time frame of the dates alleged in the indictment. Second, Ross argues that his trial was rendered unfair because the jury was informed that his codefendant, Canary Johnson, pled guilty to child neglect mid-trial. Ross alternatively argues that his trial counsel was constitutionally ineffective for requesting that the jury be informed of Johnson's guilty plea. We find no error, and we affirm.

FACTS AND PROCEDURAL HISTORY

¶3. Canary Johnson and her boyfriend, James Ross, lived together in Vicksburg for several years leading up to the first week of January 2018. Johnson's two daughters, A.R. and B.R.,¹ also lived with Johnson and Ross. A.R. was born June 23, 2011, and B.R. was born March 4, 2010. Ross was born October 29, 1970. Although Ross was not the biological father of A.R. or B.R., both children referred to Ross as their "daddy."

¶4. On December 29, 2017, Canary Johnson called her longtime friend Tamisha Stowers and explained that A.R. and B.R. had disclosed to Johnson that Ross was making A.R. and B.R. perform oral sex on him while Johnson was away from the house. Stowers testified that A.R. and B.R. then disclosed the abuse to Stowers on January 4, 2018. That same day, Stowers contacted the Warren County Sheriff's Department and spoke with Investigator Stacy Rollison. Stowers reported to Rollison that A.R. and B.R. had disclosed to her that Ross was making them perform oral sex on him. Investigator Rollison and other members of the Warren County Sheriff's Department immediately responded to the residence to investigate the allegations. Rollison testified that she spoke with A.R. and B.R. at their house that day and asked if anyone in the home was hurting them. Rollison testified that both A.R. and B.R. "immediately said that their daddy makes them suck his d***." Rollison arranged for the children to undergo forensic interviews at the Children's Advocacy Center in McComb, Mississippi.

¶5. On January 5, 2018, A.R. and B.R. underwent separate forensic interviews. Both forensic interviews of A.R. and B.R. were characterized as disclosures of sexual abuse.

¶6. On August 1, 2018, Ross and Johnson were co-indicted on four counts—three counts of sexual battery in violation of Mississippi Code Section 97-3-95(1)(d) (Rev. 2014) and one count of statutory rape in violation of Mississippi Code Section 97-3-65(1)(b) (Supp. 2019).² Johnson was indicted on two additional counts of child neglect in violation of Mississippi Code Section 97-5-39(1)(e) (Rev. 2014). A joint trial against Ross and Johnson commenced in November 2018.

¶7. Before trial, the State entered a nolle prosequi regarding the sexual-battery and statutory-rape counts against Johnson. As a result, Johnson was only on trial for two counts of child neglect, as alleged in counts five and six of the indictment.

¶8. At trial, B.R. testified that Ross "made me suck his private" and that Ross "put his private in my private." B.R. explained that "[i]f I didn't want to do it, he would punch me in my stomach." B.R. testified that the sexual abuse began when she was seven and that it occurred "every day." Similarly, A.R. testified that Ross "made me suck his private." A.R. explained that B.R. was present when this happened and that B.R. would have to do it too. A.R. testified that this abuse happened "[a] lot." In addition to their testimonies, video recordings of B.R.'s and A.R.'s forensic interviews were admitted into evidence and shown to the jury.

¶9. During trial, Johnson decided to plead guilty to one count of child neglect; the other child-neglect count was nolle prossed as part of Johnson's plea deal. The State informed the trial court of Johnson's decision outside the presence of the jury. In light of Johnson's decision, the trial court suggested that it inform the jury that "the case concerning Canary Johnson has been concluded." The court asked if anything further should be disclosed to the jury, and the State suggested that nothing further be said because the State possibly would call Johnson as a witness. Ross's defense counsel then requested a break to research the situation and to decide whether to move for a mistrial.

¶10. During a later break, Johnson entered a guilty plea, which was accepted by the trial court. The trial court again suggested that the court "simply announce to [the jury] that the case against Canary Johnson is concluded and [the jury] won't be hearing [any more] evidence or argument concerning the charges against her." Ross's defense counsel interjected and requested that the trial court inform the jury that Johnson pled guilty to child neglect "because, otherwise, it's going to be open to them ... and I would never be able to ... mention anything about it." At that same time, Ross's defense counsel expressly forewent moving for a mistrial.

¶11. The jury was brought back to the courtroom, and the trial court announced,

[m]embers of the jury, during the recess the defendant Canary Johnson, pleaded guilty to the charge of child neglect. She will be sentenced on December 7th. So she and her attorney will not be present, and we will not hear [any more] evidence concerning the charges against her.

The trial continued with the testimony of four more witnesses for the State and the recall of one of the State's witnesses. The State rested, and the defense did as well.

¶12. The jury convicted Ross on all four counts, and the trial court sentenced Ross to serve three concurrent thirty-year terms in the custody of the Mississippi Department of Corrections for the sexual-battery convictions and to another consecutive term of thirty years for the statutory-rape conviction with five years suspended. Ross then filed an unsuccessful motion for a new trial or, in the alternative, a judgment notwithstanding the verdict.

¶13. Ross now appeals, arguing that the State failed to prove that the alleged crimes occurred "on or about December 2017," as alleged in the indictment. Additionally, Ross takes issue with the trial court's informing the jury that Johnson had pled guilty to child neglect. Ross argues that this was plain error. Alternatively, Ross argues that his defense counsel was constitutionally ineffective for requesting that the trial court specifically explain to the jury that Johnson had pled guilty to child neglect.

ANALYSIS

I. Whether the State presented sufficient evidence that the crimes occurred within a reasonable time frame of December 2017.

¶14. Ross first argues that the State did not prove that the crimes occurred within a reasonable time frame of December 2017. This argument challenges the sufficiency of the evidence. See McBride v. State , 61 So. 3d 138, 148 (Miss. 2011). We find the testimony and evidence presented at trial sufficient.

¶15. When reviewing the legal sufficiency of the evidence, "this Court views the evidence in the light most favorable to the prosecution, and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Portis v. State , 245 So. 3d 457, 472 (Miss. 2018) (citing McLendon v. State , 945 So. 2d 372, 384 (Miss. 2006) ). The State must be given "the benefit of all favorable inferences that may reasonably be drawn from the evidence." Hughes v. State , 983 So. 2d 270, 276 (Miss. 2008) (citing Wilson v. State , 936 So. 2d 357, 363 (Miss. 2006) ). "The evidence will be deemed sufficient if ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense ....’ " Scott v. State , 220 So. 3d 957, 962 (Miss. 2017) (internal quotation marks omitted) (quoting Hardy v. State , 137 So. 3d 289, 304 (Miss. 2014) ).

¶16. Ross's four-count indictment alleged that the conduct occurred "on or about December 2017." Ross does not argue that the evidence was insufficient to prove that he violated Section 97-3-95(1)(d) and Section 97-3-65(1)(b). Rather, Ross argues that no evidence was presented that these violations occurred during December 2017 or within a reasonable period near December 2017.

¶17. This Court has explained that "an allegation as to the time of the offense is not an essential element of the offense charged in the indictment[.]" Chapman v. State , 250 So. 3d 429, 450 (Miss. 2018) (internal quotation mark omitted) (quoting Daniels v. State , 742 So 2d 1140, 1143 (Miss. 1999), overruled on other grounds by Wilson v. State , 194 So. 3d 855, 867 (Miss. 2016) ). "[W]ithin reasonable limits, proof of any date before the return of the indictment and within the statute of limitations is sufficient." Id. at 451 (internal quotation marks omitted) (quoting Daniels , 742 So. 2d at 1143 ).

¶18. This Court must determine if "the evidence was sufficient to enable a reasonable juror to conclude that the sexual...