Barnes v. State

906 So. 2d 16, 2004 WL 2283605
CourtCourt of Appeals of Mississippi
DecidedOctober 12, 2004
Docket2003-KA-00577-COA
StatusPublished
Cited by5 cases

This text of 906 So. 2d 16 (Barnes v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnes v. State, 906 So. 2d 16, 2004 WL 2283605 (Mich. Ct. App. 2004).

Opinion

906 So.2d 16 (2004)

Brooks BARNES, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-00577-COA.

Court of Appeals of Mississippi.

October 12, 2004.
Rehearing Denied March 8, 2005.
Certiorari Denied June 30, 2005.

*18 Michael R. Farrow, Columbus, attorney for appellant.

Office of the Attorney General by John R. Henry, attorney for appellee.

EN BANC.

IRVING, J., for the Court.

¶ 1. Brooks Barnes was tried and convicted, by an Oktibbeha County jury, of fondling his niece. He was sentenced to serve ten years in the custody of the Mississippi Department of Corrections and five years of post-release supervision. Barnes appeals and contends (1) that the indictment failed to properly advise him of the alleged offense, thereby depriving him of a fair opportunity to prepare his defense, (2) that, because of the victim's tender years, she was not competent to testify, (3) that witness Paul Davey should not been allowed to give certain testimony, and (4) that the trial court improperly excluded certain defense jury instructions.

¶ 2. We reject each of Barnes's contentions and affirm his conviction and sentence.

FACTS

¶ 3. At the time of trial, Brandi Love was eight years old.[1] She testified that when she was four years old, her uncle Brooks Barnes showed her pictures of nude people and masturbated in front of her while her family was visiting during the Christmas holidays.[2] Brandi further stated that when she was six years old, Barnes showed her pictures of his nude girlfriend and rubbed his penis against Brandi's stomach while babysitting her during a summer visit to her grandparents' house. Brandi also testified that on another occasion she saw her uncle's penis while he prepared her breakfast because his bathrobe was open. Brandi reported the incidents to her mother in August 2000, and her parents took her to see a counselor.

¶ 4. Child psychologist, Paul Davey, testified that Brandi was six when he first saw her and that she made sexually-graphic statements which were beyond the typical or normal experiences of a six-year-old child. Davey also testified that Brandi identified Barnes as her abuser. He further testified that Brandi informed him that she touched Barnes's "front part" and "clear watery stuff" came out and that Barnes licked her "front butt" and rubbed her down there with his fingers.[3] Davey testified additionally that Brandi told him that, while she was at her grandparents' house, Barnes wiggled his penis on her stomach and rubbed it back and forth. She also told him about the time when Barnes fixed her breakfast while exposed. Finally, Davey testified that Brandi described a nude picture of Barnes's girlfriend that she had seen. Brandi also told Davey that Barnes had shown her pictures of other naked people.

¶ 5. Barnes was arrested after police found several pornographic photos and a nude photo of his girlfriend on his computer's hard drive. Additional facts will be presented during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Indictment

¶ 6. Barnes first argues that the indictment failed to properly advise him of *19 the date of the offense because it alleged that the offense occurred over more than a two-year period. He maintains that as a result, he was deprived of a fair opportunity to prepare his defense.

¶ 7. "An indictment serves to alert the defendant of the charge against him." Ishee v. State, 799 So.2d 70, 76(¶ 18) (Miss. 2001) (citing Westmoreland v. State, 246 So.2d 487, 489 (Miss.1971)).

¶ 8. Barnes cites Moses v. State, 795 So.2d 569 (Miss.Ct.App.2001) in support of his argument. In Moses, the defendant was first charged under an original indictment with fifteen counts of rape, two counts of sexual battery, and five counts of fondling. The original indictment set the alleged crimes as occurring between June 1994 and September 1997. On appeal, this Court reversed and remanded a number of the counts in the indictment due to a lack of specificity in the dates and facts of the alleged incidents. Id. at 571-72 (¶¶ 13-18).

¶ 9. We first note that the State properly recognizes that since Barnes was acquitted of the sexual battery charge, the part of the indictment concerning that count cannot be a basis for error. Thus, we find it unnecessary to discuss that particular count.

¶ 10. The record indicates that the original indictment alleged that the fondling charge occurred between July 8, 1998, and September 1, 2000. At the conclusion of the State's case, the trial judge allowed the State to amend the indictment to narrow the dates to May 1, 2000 through August 1, 2000.

¶ 11. Barnes's reliance on Moses is misplaced. Unlike in Moses, where the defendant was indicted on numerous counts against two victims, Barnes was only indicted on two counts against one victim. Further, the individual counts in the indictment in Moses were unclear and phrased identically, and the time of the alleged offenses, as to Child A, spanned over a period of more than three years, and as to Child B, no time line at all was specified. Moses, 795 So.2d at 570 (¶¶ 4-5).

¶ 12. We find that the indictment adequately informed Barnes that he was charged with fondling. Although the indictment stated that the offense occurred between July 8, 1998 and September 2000, it was amended at the conclusion of the State's case to narrow to a three-month window the period of time in which the offense occurred. Further, Brandi was very specific as to the dates of the offense. She even provided particular reasons or events which caused her to be at Barnes's home on the dates in question. For the forgoing reasons, we find that this issue is without merit.

(2) Competency of the Victim

¶ 13. Barnes's next allegation of error concerns Brandi's competency as a witness to testify against him. Barnes specifically argues that Brandi was not competent to testify as a witness at trial because of factors such as her age, her answers to questions presented to her during the competency hearing, impeachment of her on cross-examination, and her lack of morals and religious upbringing.[4]

¶ 14. The State, however, contends that there is nothing to suggest an abuse of discretion by the trial court in deeming Brandi competent to testify because Brandi *20 demonstrated that she knew the difference between a lie and the truth, understood the importance of an oath to tell the truth, indicated that she remembered most of what had occurred, and knew that she had to indicate what she did not recall in the event that she was asked a question in which she had no recollection.

¶ 15. "Mississippi courts generally allow children of tender years to testify if [they are] competent." Mohr v. State, 584 So.2d 426, 431 (Miss.1991). "It is in the sound discretion of the trial judge to determine the competency of a child witness." Id. "Before allowing the child to testify, the judge should determine `that the child has the ability to perceive and remember events, to understand and answer questions intelligently, and to comprehend and accept the importance of truthfulness.'" Id. (quoting House v. State, 445 So.2d 815, 827 (Miss.1984) (overruled on other grounds)).

¶ 16. The trial court conducted a hearing outside the presence of the jury to determine whether Brandi was competent to testify as a witness.

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Bluebook (online)
906 So. 2d 16, 2004 WL 2283605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-state-missctapp-2004.