Williams v. State, 2015–KA–01393–COA

• Decision Date: 10 January 2017
• Docket Number: NO. 2015–KA–01393–COA,2015–KA–01393–COA
• Citation: 216 So.3d 409
• Parties: Thalmus WILLIAMS a/k/a Thumbstack, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

216 So.3d 409

Thalmus WILLIAMS a/k/a Thumbstack, Appellant,

v.STATE of Mississippi, Appellee.

NO. 2015–KA–01393–COA

Court of Appeals of Mississippi.

January 10, 2017

Rehearing Denied May 9, 2017

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, JASON L. DAVIS

EN BANC.

GREENLEE, J., FOR THE COURT:

¶1. Thalmus Williams was convicted of fondling (Count II), attempted sexual battery by an authority figure (Count III), and sexual battery by an authority figure (Count IV).¹ He was sentenced as a habitual offender to fifteen years for Count II, thirty years for Count III, and thirty years for Count IV. The thirty year sentences for Counts III and IV were to be served concurrent to each other but consecutively to the fifteen year sentence for Count II. He does not appeal the conviction or fifteen-year sentence for fondling. On appeal, Williams argues that the evidence was insufficient to support the conviction for attempted sexual battery by anal penetration (Count III). He also argues that the indictment on Count IV was impermissibly changed by the jury instructions to charge a separate crime, requiring reversal of the conviction on that count. We agree—and the State essentially concedes—that the evidence was insufficient to support the conviction for attempted sexual battery under Count III. However we find that the discrepancy between Count IV and the jury instructions did not impermissibly amend the indictment and did not prejudice the defense. We therefore reverse and render on Count III, and affirm on Count IV.

FACTS AND PROCEEDINGS BELOW

¶2. The victim, V.W.,² is Williams's biological daughter and was ten years old at the time of the sexual contact. The incident occurred at the home of Williams's mother, Shirley Austin, where V.W. frequently visited. V.W. told her sister, K.W., about the inappropriate contact, who told their mother, who reported it to the police. The investigating officer arranged for a forensic interview at Family Crisis Services in Oxford, Mississippi, which was conducted by Meredith Rawl. V.W. did not receive a medical examination.

¶3. Prior to trial, the court conducted a "tender-years exception" hearing. See M.R.E. 803(25). The court found that V.W. had no reason to lie and understood lying was bad, that her statements were spontaneous, that she exhibited maturity, and that there was no evidence of improper or suggestive techniques being employed in her statement. As a result, the court permitted the hearsay testimony of V.W.'s sister and mother about what V.W. had told them. The forensic interviewer, Rawl, was also permitted to testify concerning V.W.'s statements to her. Rawl was accepted as an expert.

¶4. V.W.'s sister, K.W., testified that V.W. told her on the phone: "She told me that her father had tried to rape her, and she said that he showed her his privacy and tongue-kissed her." Rawl, the forensic interviewer, testified that, during the forensic interview, V.M. stated that her father showed her his penis and asked her to touch it, which she refused. Rawl further testified that

[V.W.] reported that her father kissed her—put his tongue in her mouth, and that her father put his hands on her vaginal area.... She reported that her father asked to lick her vaginal area and started trying to pull her pants down. She disclosed that he did lick her vaginal area. She reported that his hand rubbed on her vaginal area and inside her vagina—which she reported, "hurt."

She stated that her vagina hurt and [her] father started rubbing on her buttocks. She said that, that felt moist.

¶5. Rawl's expert opinion was that her findings were consistent with the conclusion that the child had been sexually abused. She stated:

Based on the fact that she stated that her father showed her his penis. That his penis touched her buttocks. That he showed himself—touching his penis on her. Based on the fact he put his tongue in her mouth, and his tongue touched her vaginal area, as well as her buttocks. Based on that—based on the information that she was able to provide, my findings were consistent with that; that the child had been sexually abused.

¶6. The victim, V.W., who was thirteen at the time of the trial, testified that the sexual contact started after her father told her that he was going to braid her hair. She testified that he took her clothes off and that he put his mouth toward her private area. When asked "at any point, did his finger, or tongue, enter your body?" she replied "yes" and confirmed that the contact was "where you would pee out of." She was asked to confirm whether the statements she had made to the forensic interviewer were accurate: " ‘[I]t was hurting, and so he started rubbing on your [sic] butt’; is that correct? That, ‘it was moist’; is that what you told [the forensic interviewer]?" To which V.W. responded "yes."

¶7. Williams's defense was that no sexual contact occurred. He testified on his own behalf. His brother testified on his behalf, asserting that he had also been at their mother's house that evening and that he did not see any inappropriate behavior. Williams's mother, Austin, also testified that she did not see anything inappropriate happen.

¶8. The jury heard testimony that V.W. wrote a letter to her father stating: "Daddy I am sorry always have fellings like stuff happen I'm sorry for lying on you I know I know I was wrong for lying for you physical messing with me sorry very sorry." V.W. testified that she wrote it "because my grandma said if I didn't write it my mama and my daddy would go to jail and if I told anybody that I write it she wasn't going to get me nothing for Christmas." After V.W. wrote the letter, Austin took her to a notary to have it signed. The letter was admitted into evidence.

¶9. Austin was indicted on one count of tampering with a witness. That charge was severed prior to trial. The indictment charging Williams and Austin lists in the heading, before the paragraphs enumerating each count, the title and relevant section number of each charge:

ATTEMPT MCA Section 97–1–7

ATTEMPTED FONDLING MCA Section 97–5–23

FONDLING MCA Section 97–5–23

ATTEMPTED SEXUAL BATTERY BY AUTHORITY FIGURE MCA Section 97–3–95(2)

SEXUAL BATTERY BY AUTHORITY FIGURE MCA Section 97–3–95(2)

WITNESS TAMPERING MCA Section 97–9–115 (1)(b)

HABITUAL OFFENDER MCA Section 99–19–1983 [sic] & 99–19–1981[sic]

Count III of the indictment states in relevant part:

That THALMUS WILLIAMS .... did unlawfully, wilfully and feloniously, attempt to engage in sexual penetration with V.W., a female child under the age of eighteen (18) years old, by attempting to penetrate her anal area with his penis....

(Emphasis added).

¶10. Count IV of the indictment states in relevant part:

That Thalmus Williams .... did unlawfully, wilfully and feloniously, attempt to engage in sexual penetration with V.W., a female child under the age of eighteen (18) years, by inserting his tongue, mouth and/or hand into the vaginal area ....

(Emphasis added).

¶11. On Count IV, the jury was instructed on the completed crime of sexual battery. The transcript reflects a discussion at the time the jury instructions were prepared for the court, acknowledging the removal of the attempt language from Count IV.

¶12. Williams appeals his convictions and thirty-year concurrent sentences for attempted sexual battery and sexual battery.³ He does not appeal the conviction or fifteen-year sentence for fondling.

DISCUSSION

I. The evidence was insufficient to sustain a verdict for attempted sexual battery by anal penetration.

¶13. Williams argues that the evidence presented was insufficient to sustain a verdict for attempted penetration of the anal area. The State concedes that the evidence against Williams for this charge is "tenuous" and that his argument on appeal "possibly" has merit. When evaluating the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005).

¶14. Mississippi Code Annotated section 97–3–95(2) (Rev. 2014) provides that "[a] person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority over the child including without limitation the child's ... parent ...." Mississippi Code Annotated section 97–1–7(1) (Rev. 2014) provides that a person who attempts to commit a crime but fails or is prevented "shall, where no other specific provision is made by law for the punishment of the attempt, be punished by imprisonment and fine for a period and for an amount not greater than is prescribed for the actual commission of the offense so attempted."⁴

¶15. Anal penetration means penetration of the anal cavity or anal opening. Ringer v. State , 203 So.3d 794, 797 (¶ 9) (Miss. Ct. App. 2016). In Ringer , this Court recently found insufficient evidence to support the charge of sexual battery by anal penetration where the evidence indicated that the penis was placed between the victim's butt cheeks but was ambiguous as to whether actual penetration of the anal opening occurred. Id. at (¶ 10).

¶16. Here, the evidence indicated that the victim's buttocks were touched. While the forensic interviewer understood the touching to have occurred with Williams's penis, the reported statements of V.W. are ambiguous as to whether the touching occurred with a hand or with a penis. The forensic interviewer, Rawl, testified that V.W. told her that, after Williams touched the inside of her vagina with his hands, which hurt, her "father started rubbing on her buttocks. She said that, that felt moist." That statement is the extent of the evidence presented to support attempted anal penetration. None of...