Washington v. State

• Decision Date: 10 November 1994
• Docket Number: No. 91-KA-00690,91-KA-00690
• Citation: 645 So.2d 915
• Parties: Calvin WASHINGTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 915

645 So.2d 915

Calvin WASHINGTON v. STATE of Mississippi.

No. 91-KA-00690.

Supreme Court of Mississippi.

Nov. 10, 1994.

Clarence A. Whitaker, Vicksburg, Thomas J. Lowe, Jr., Jackson, for appellant.

Michael C. Moore, Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

SMITH, Justice, for the Court:

Calvin Washington prosecutes this appeal from his conviction of sexual battery entered in the Circuit Court of Sharkey County. Washington was sentenced to serve sixteen years in the custody of the Mississippi Department of Corrections.

Washington argues that the verdict of the jury was against the overwhelming weight of the evidence and a product of bias and passion.

Washington also contends that the trial court erred in denying his motion for judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial, because the State failed to prove the prosecuting witness was under fourteen years of age.

There was no direct oral testimony presented to the jury from which a reasonable, hypothetical juror could find that F.M. was under fourteen years of age. The State argues that nevertheless, a jury could successfully make a determination of age from their own ocular perception alone of the "very small stature," youthful witness who testified at trial. The State also claims that this physical appearance of F.M., standing alone, enabled the fact finders to conclude beyond a reasonable doubt that her age was well below the age of fourteen that the State was required to prove in accordance with Miss.Code Ann. Sec. 97-3-95 (Supp.1993).

However, the ultimate problem with the State's argument is the failure of the prosecutor to put on reviewable proof of age, when age is an essential element of the crime. In the case at bar, we are offered only comments by the trial judge of his personal observations of F.M.'s appearance as expressed in the trial transcript. The record also contains comments concerning F.M. expressed by the prosecutor as well as defense counsel. All such comments were out of the jury's presence. In rare cases such as this, when there is a clear absence of oral proof and any supporting documentary proof of age of the victim, when age is an essential element of proof, a record of the physical appearance should have been made by photography or other suitable means to preserve reviewable proof of age for appellate purposes.

The failure of the weight of the evidence and the failure of the State to provide any form of reviewable proof of the age of the victim, when age was an essential element of proof, necessitates that we reverse and remand for a new trial.

FACTS

Calvin Washington, the defendant, and Vanilla McDonald, a single mother of four children, lived together in a rented two-room home in Rolling Fork, Sharkey County, Mississippi. During the late morning hours on August 18, 1990, Vanilla McDonald left the children, including seven (7) year old F.M., in the care of two teenage girls, Angela Phillips and her cousin, Jennifer Phillips. Calvin Washington was also present at the house with Angela, Jennifer, and Vanilla's four children.

Angela, Jennifer and the children were in the back bedroom while Washington was in the front living room. Washington summoned F.M. to the front room and closed the door. According to F.M., once she got inside the room, Washington got on top of her, and "[h]e made me suck his blank."

F.M.'s testimony was corroborated by testimony from both Angela and Jennifer who observed the incident through a peephole in the door. Both girls testified unequivocally they saw F.M. and Washington engaged in fellatio.

According to Angela, she was about to enter the room to see what Washington was doing to F.M. She peeped through a hole in the door and observed F.M. in bed with Washington who was wearing only his undershorts. Specifically, Angela testified: "I was fixing to go in there and see what he was doing to her and I peeked through the hole in the door. And he had her in the bed with him and she was sucking on him." There was no doubt in Angela's mind that F.M. was sucking Washington's penis.

Angela summoned Jennifer to the peephole where Jennifer looked and observed the same thing. Jennifer then left the house and located Vanilla McDonald. McDonald entered the room with a stick and hit Washington over the head. She testified she moved out of the house that day but later moved back in because she was the one paying the rent. McDonald also testified that Washington had recently told her if she did not drop the charges he would kill both her and the kids.

The defendant testified in his own behalf and denied he had done anything to F.M. Washington claimed that Vanilla McDonald concocted the story and told F.M. what to say. He denied he ever threatened to kill Vanilla McDonald and the children.

DISCUSSION

Washington contends the State failed to prove that F.M., a seven (7) year old second grader, was under fourteen (14) years of age. While conceding there was no direct oral testimony concerning the age of the youthful victim, the State argues that because F.M. testified during trial, the jury could sufficiently determine, from an inspection of the prosecuting witness alone, whether she was under fourteen years of age. The State also points to the fact that since Vanilla McDonald left her children with "teenage" babysitters, the jury could reasonably infer that teenage babysitters would have been unnecessary had F.M. been over fourteen (14) years of age. According to the State, no reasonable, hypothetical juror could have mistaken a small seven (7) year old second grader for a child fourteen (14) years of age or older.

Miss.Code Ann. Sec. 97-3-95, which defines the offense of sexual battery, states, inter alia, that "[a] person is guilty of sexual battery if he or she engages in sexual penetration with: ... (c) A child under the age of fourteen (14) years." (emphasis added).

Miss.Code Ann. Sec. 97-3-97 defines sexual penetration:

(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. [emphasis supplied]

Penetration is the very essence of the crime of sexual battery. Thompson v. State, 468 So.2d 852, 853 (Miss.1985); West v. State, 437 So.2d 1212, 1213 (Miss.1983). See also, Johnson v. State, 626 So.2d 631 (Miss.1993).

The indictment in this case alleged, inter alia, that Washington engaged in sexual penetration with F.M., "a female child the age of 7 years by penetrating her mouth with his penis (fellatio)." Although none of the State's substantive instructions required the jury to find that the victim was under fourteen (14) years of age, jury instruction D-10 required the jury to find beyond a reasonable doubt "that F.M. was under the age of fourteen (14) years...."

At the close of all the evidence, and upon the court's approval of D-10, defense counsel stated: "[L]et me make another objection, correct me if I am wrong, but I don't believe the State ever proved how old the child was." The court overruled the objection with the following observations:

BY THE COURT: I am going to overrule that objection, uh, I am not sure that it was out in front of the jury, her age. I cannot recall all the testimony, and I brought it out, but the Jury was absent when I brought it out when I was qualifying her. I don't know if I brought her age out, but I asked her if she was in the second grade. The Court feels that due to the child's very small stature and such, the jury can observe her and make their own determination of her age. I maybe [sic] wrong, but they can't take judicial notice but with common knowledge of the child's small stature as being under the age of fourteen, of tender years. I am overruling it at this time.

Washington filed a motion for a new trial or, in the alternative, for judgment of acquittal notwithstanding the verdict. Ground II of his post-trial motion alleged that "[t]he Court erred in failing to grant Defendant's Motion For Directed Verdict because the State did not prove all the elements of the crime charged[,] in particular the age of the alleged victim." This motion was subsequently overruled.

"It is hornbook criminal law that before a conviction may stand the State must prove each element of the offense." Neal v. State, 451 So.2d 743, 757 (Miss.1984). Due Process requires that the State prove each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560, 576-77 (1979). See also Carlson v. State, 597 So.2d 657, 659 (Miss.1992). "[T]here must be in the record evidence sufficient to establish each element of the crime." Fisher v. State, 481 So.2d 203, 211 (Miss.1985), and the cases cited therein.

In a prosecution for sexual battery, the age of the victim is an essential element of the offense that must be alleged and proved. In Burchfield v. State, 277 So.2d 623, 625 (Miss.1973), a prosecution for violating the statute proscribing the crime of "peeping", we held that "the fact that the accused is a 'male person' is an essential or substantive element of the crime which must be charged on the face of the indictment and proved at the trial." We relied, in part, upon our holding in Love v. State, 211 Miss. 606, 52 So.2d 470 (1951), where an indictment for indecent assault on a female child under thirteen (13) years of age failed to charge that Love was "a male person above the age of eighteen years." We held that "the fact that defendant is a male person above the age of eighteen years is a sine qua non of the crime" and that therefore the indictment was fatally defective for failure to contain a charge of that necessary element." However, we need not concern ourselves with the...