Waltman v. State

734 So. 2d 324, 1999 Miss. App. LEXIS 57, 1999 WL 87088
CourtCourt of Appeals of Mississippi
DecidedFebruary 23, 1999
DocketNos. 97-KA-00118 COA, 95-KA-00707-COA
StatusPublished

This text of 734 So. 2d 324 (Waltman 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
Waltman v. State, 734 So. 2d 324, 1999 Miss. App. LEXIS 57, 1999 WL 87088 (Mich. Ct. App. 1999).

Opinion

KING, J.,

for the Court:

¶ 1. Stacey Lynn Waltman was convicted of sexual battery for which he was sentenced to serve a term of thirty years with five years suspended in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Waltman has appealed and assigned three errors:

[325]*325I. DID THE TRIAL COURT ERR BY NOT ALLOWING MR. WALTMAN TO PROPERLY CROSS-EXAMINE THE VICTIM IN THIS CASE?
II. DID THE TRIAL COURT ERR BY NOT GRANTING DEFENSE INSTRUCTION D-7, WHICH WOULD HAVE ALLOWED THE JURY TO BELIEVE THAT THE VICTIM MAY HAVE CONSENTED TO HAVE SEXUAL RELATIONS WITH MR. WALT-MAN?
III. WAS THE VERDICT OF SEXUAL BATTERY IN THE TRIAL COURT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL?

¶ 2. Finding no error, this Court affirms the circuit court judgment.

FACTS

¶ 3. Ms. Smith1 shared a house with her mother, sister, and her sister’s husband, Stacey Waltman. On June 8, 1991, at approximately 8:00 p.m., Waltman and Ms. Smith’s sister argued. Ms. Smith witnessed the argument and tried to call for police assistance, but Waltman pulled the phone cord from a wall in the house. The police traced the call and called back to ascertain directions to Ms. Smith’s house. Upon the arrival of the police, the dispute was settled.

¶ 4. At approximately 4:00 a.m. the next morning, Ms. Smith awoke to an unusual sound in her kitchen. She got out of bed and walked into the kitchen to find Walt-man standing near the refrigerator. Walt-man approached her and pressed a screwdriver against her breast. He forced her into her bedroom and onto the bed. The two struggled, but Waltman was successful in removing Ms. Smith’s underwear. He then forced her into her mother’s room where he coerced her to engage in oral and vaginal intercourse. After threatening to harm her family if she spoke of this incident, Waltman left the house.

¶ 5. After Waltman’s departure, Ms. Smith showered and waited for her brother to arrive. When he arrived later that morning, she explained that Waltman had sexually assaulted her. At this point, Ms. Smith’s brother and sister took her to the hospital where a rape test kit was completed.

¶ 6. Personnel at the hospital reported the incident. Detective Bob Carew of the Jackson County Sheriffs Department arrived at the hospital to investigate Ms. Smith’s allegations. After taking her statement, he went to her house and retrieved the sheets from her bed and her mother’s bed, her underwear and nightgown, and the screwdriver.

¶ 7. At the request of Detective Carew, Dr. Michael West, a forensic odontologist, took pictures of a bite mark near Ms. Smith’s vaginal area and a mark on her left hand. Ms. Smith alleged that Walt-man inflicted these marks during the sexual battery.

¶ 8. Dr. West took impressions of Walt-man’s teeth and compared them to the bite mark. It was his opinion that Waltman’s teeth caused the bite mark. Dr. West also compared the mark on Ms. Smith’s hand with the screwdriver. He determined that the screwdriver was consistent with the wound pattern found on her hand.

¶ 9. Waltman was subsequently indicted for burglary and sexual battery. He denied all charges, claiming that Ms. Smith had allowed him into her portion of the house and consented to having sexual intercourse. A trial was held and the jury convicted Waltman only of sexual battery. Waltman’s motion for new trial was denied. He now appeals his conviction and sentence.

ISSUES

I. DID THE TRIAL COURT ERR BY NOT ALLOWING MR. WALTMAN [326]*326TO PROPERLY CROSS-EXAMINE THE VICTIM IN THIS CASE?

¶ 10. Waltman contends that the trial court improperly denied him the opportunity to cross-examine Ms. Smith regarding her behavior of dating married men. To support his effort to cross-examine Ms. Smith, Waltman’s attorney made the following proffer of evidence outside the presence of the jury:

Q: When you were talking to your brother-in-law, Stacey Waltman, and you were trying to talk him out of what was going to occur or what you thought was going to occur, what did you tell him?
A: What you mean, what are you talking about — about sex and all that?
Q: Yes. Did you tell him that you did not wish to have sex with him because he was a married man?
A: Something like that. I think I said that.
Q: You didn’t say because he was married to your sister; you said because he was a married man. Right?
A: (pause).
Q: Isn’t that correct?
A: Yes, I think.
Q: And, as a matter of fact, Bobby who you met and had Stacey Waltman take you to was also married, was he not?
A: He was getting — He was divorced. That’s what he told me.
Q: All right. And as a further point of fact, the person that you were living with and now live with was also a married man until he got his divorce. Right?
A: We wasn’t dating.
Q: But wasn’t he married when you were seeing him?
A: I was seeing the whole family.
Q: Okay.

Law

¶ 11. Mississippi Rule of Evidence 412 prescribes that, in a criminal case in which a person is accused of a sexual offense against another person, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual offense is not admissible. However, such evidence is admissible if it is offered by the accused upon the issue of whether the accused was or was not, with réspect to the alleged victim, the source of semen, pregnancy, disease, or injury.

Analysis

¶ 12. Miss. Rule of Evidence 412 provides four exceptions to the general rule that past sexual behavior of an alleged victim is inadmissible; the accused must offer this evidence to prove that he was or was not, with respect to the victim, the source of semen, pregnancy, disease, or injury. A close reading of the previous colloquy reveals that Waltman sought to impeach evidence concerning sexual behavior. Though he argues that his inquiry did not consist of questions regarding past sexual behavior, this Court finds that Ms. Smith’s dating of married men was a subject that ultimately fell within the context of Rule 412. Rule 412 prohibits the use of such testimony in this matter. The trial court properly denied cross-examination in this regard.

II. DID THE TRIAL COURT ERR BY NOT GRANTING DEFENSE INSTRUCTION D-7, WHICH WOULD HAVE ALLOWED THE JURY TO BELIEVE THAT THE VICTIM MAY HAVE CONSENTED TO HAVE SEXUAL RELATIONS WITH MR. WALT-MAN?

¶ 13. Waltman contends that the trial court improperly allowed an amendment to defense instruction D-7. Prior to its amendment, Instruction D-7 read, in pertinent part,:

The Court instructs the jury that if you believe the evidence is that, [Ms. Smith] consented to have sexual relations or may have consented to have sexual relations with the Defendant Stacey L. Waltman, without any physical force or [327]

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Related

Isaac v. State
645 So. 2d 903 (Mississippi Supreme Court, 1994)

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Bluebook (online)
734 So. 2d 324, 1999 Miss. App. LEXIS 57, 1999 WL 87088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waltman-v-state-missctapp-1999.