Little v. State

744 So. 2d 339, 1999 WL 370048
Court of Appeals of Mississippi·Decided June 8, 1999·No. 98-KA-00516-COA·Published·Cited by 13 cases

Opinion

744 So.2d 339 (1999)

Kenneth R. LITTLE, Appellant,
v.
STATE of Mississippi, Appellee.

No. 98-KA-00516-COA.

Court of Appeals of Mississippi.

June 8, 1999.
Rehearing Denied September 21, 1999.
Certiorari Denied November 24, 1999.

*340 William O. Townsend, Brandon, Attorney for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

BEFORE McMILLIN, C.J., KING, P.J., AND SOUTHWICK, P.J.

McMILLIN, C.J., for the Court:

¶ 1. This case comes before the Court as an appeal from the conviction of Kenneth R. Little of sexual battery. Little, convicted by a jury in the Circuit Court of Rankin County, has appealed raising three issues. We find the issues raised by Little to be without merit for reasons we will proceed to discuss; therefore, we affirm the conviction.

I.

Facts

¶ 2. Little was indicted on two counts of sexual battery against a male child under the age of fourteen years. The offenses were alleged to have occurred sometime between September 1 and September 30, 1990, those being the approximate dates that Little resided in the same home as the child. The wording of the two counts was identical; however, at trial, the prosecution said that one count was intended to cover an act of fellatio committed on the child and the other was intended to cover the charge that Little forced the child to perform fellatio on him.

¶ 3. The proof consisted primarily of the testimony of the alleged victim, who related in simple and graphic language a claim that both such events had occurred. The child's testimony was corroborated by a treating psychologist who was allowed to relate what the child had told her in the course of her treatment of the emotional difficulties believed to flow from Little's activities. The child's sister was also permitted to testify as to certain things related to her by her brother in the immediate *341 aftermath of one of his alleged encounters with Little that were probative of Little's guilt. The range of time in which the events occurred was, because of the victim's inability to identify dates with any certainty, reconstructed from evidence showing the times that Little was in the same home with the child and had the kind of access necessary to accomplish the activities described by the victim.

¶ 4. Little testified in his own defense and denied any such improper activity with the child. At the close of the proof, the trial court permitted the State to combine the two separate counts into one count to be submitted to the jury and instructed the jury that it could convict if it believed that Little had participated in either or both forms of fellatio with the child. The jury returned a verdict of guilty.

¶ 5. Though the offenses were alleged to have occurred in 1990, Little was not indicted until October 5, 1993. According to the clerk's docket, Little waived arraignment on February 11, 1994. His trial began on January 8, 1997, almost three years after he waived arraignment.

II.

The First Issue: The Specific Date of the Alleged Offense

¶ 6. Little moved to compel the State to declare with more certainty than a thirty-day range exactly when the alleged offenses occurred. The trial court denied the motion, finding that, based on the facts of the case and the limited intellectual abilities of the victim, it would have been impossible for the State to prove the exact date of the offense with any more precision than had already been demonstrated. Little now claims that the trial court's denial of his motion was error. Of course, the practical effect of granting the motion, thereby making the exact date of the offense an essential element of the State's proof, would be that the crime could not be proven with the requisite certainty to support a conviction. Granting the motion would be the equivalent of an order of dismissal of the charges.

¶ 7. Section 99-7-5 of the Mississippi Code provides that "stating the time [for an offense] imperfectly" does not render an indictment insufficient "where time is not of the essence of the offense...." Miss.Code Ann. § 99-7-5 (Rev.1994). We have nothing before us that would suggest that time was an essential element of this crime, nor is there any indication that the lack of specificity struck a critical blow to Little's defense, such as might be the case were Little attempting to establish an alibi defense. In Morris v. State, the Mississippi Supreme Court, suggesting some "employment of common sense" was in order, sustained a conviction on three counts of various forms of sexual abuse of a teenage girl by her stepfather even though the only proof as to time was that the events occurred on weekends or nights when the child's mother was not at home over a period from May to March of 1986. Morris v. State, 595 So.2d 840, 841-42 (Miss. 1991). The court said:

In this case, the victim's testimony amply illustrates the fact that the State could not narrow the time frame any more than it did. Defendant was fully and fairly advised of the charge against him. This assignment of error is without merit.

Id. at 842. We find that language to have equal application to the case now before us, and we decline to disturb Little's conviction on this basis.

III.

The Second Issue: Uncertainty as to Count Submitted to Jury

¶ 8. Little claims that the trial court committed reversible error by failing to rule on his motion to sever the two counts and then not informing him as to which count was being submitted to the jury. The trial court, at commencement of the trial, announced that it was reserving a ruling on whether to sever the two counts. *342 The court ultimately took the matter up mid-trial. Rather than grant Little's severance motion, the trial court followed the State's suggestion that the two counts be combined into one charge and the jury be instructed that it could convict if it believed either (a) that Little had performed fellatio on the child or (b) that Little had forced the child to perform similar acts on him. Defense counsel interposed no objection at the time the State proposed this resolution of the matter and the jury was so instructed. Specifically, Instruction Three informed the jury as follows:

The defendant has been charged in an indictment in the case with the crime of sexual battery.
If you find from the evidence in this case, beyond a reasonable doubt, that on or about or between the 01 day of September, 1990 and the 30th day of September, 1990, in Rankin County Mississippi, the defendant, Kenneth R. Little, did:
1. willfully and unlawfully,
2. engage in sexual penetration with [the victim], a male child less than 14 years of age at the time,
3. by inserting his penis into the mouth of [the victim] and or by causing the penis of [the victim] to be inserted into his own mouth, then you shall find the defendant guilty as charged.
If the State has failed to prove any one or more of the above listed elements, beyond a reasonable doubt, then you shall find the defendant not guilty.

¶ 9. In his brief, Little claims that he remains uninformed as to which count he was convic

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Little v. State, 744 So. 2d 339, 1999 WL 370048 (Mich. Ct. App. 1999).

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