273 So. 3d 801
Miss. Ct. App.2019Background
- Victim (pseudonym John), then 12, reported in Jan 2015 that his grandfather Wade Blackwell Jr. had touched his penis and buttocks beginning in summer 2013 and continuing thereafter. Forensic interview and affidavits followed.
- Blackwell was indicted on two counts of touching a child for lustful purposes alleging dates between Jan 1, 2014 and Jan 19, 2015; the State moved the day before trial to amend the date range to begin Jan 1, 2013.
- The trial court granted the indictment amendment and denied Blackwell’s motion to exclude testimony from Emmett Close, who testified he had been molested by Blackwell roughly twenty years earlier; a limiting instruction was given.
- Defense theory at trial: John fabricated or misperceived events (defense suggested attention-seeking and Tourette’s-related illusions); Blackwell did not testify.
- Jury convicted Blackwell on both counts; sentences: 15 years and a consecutive 10 years. Blackwell appealed raising five principal claims; majority affirmed, three-judge dissent argued prior-bad-acts testimony and prosecutorial remarks required reversal.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Blackwell) | Held |
|---|---|---|---|
| Amendment of indictment date range | Amendment corrected form and did not prejudice defendant; victim’s forensic interview put defense on notice of earlier start date | Amendment materially altered defense by expanding exposure period and violated grand jury expectation | Affirmed: amendment permissible; defendant had prior notice and no unfair surprise |
| Admission of Close’s prior-abuse testimony (404(b)) | Testimony showed intent, plan, opportunity, absence of mistake, and common modus operandi; probative value outweighed prejudice | Testimony was remote, factually dissimilar, and impermissible propensity evidence under Rules 404(b)/403; judge failed to make adequate on-the-record 403 findings | Affirmed: admission within trial court’s discretion; probative value outweighed prejudicial effect; limiting instruction given |
| Prosecutor’s closing comments (calling defendant a "child molester" and other remarks) | Comments were fair argument tied to evidence and within latitude for closing arguments; not objected to at trial | Comments were inflammatory, prejudicial, and cumulative misconduct warranting reversal | Procedurally barred for lack of contemporaneous objection; alternatively meritless when viewed in context |
| Request for continuance / Box procedure after unexpected testimony about location | State argued testimony was elicited by defense and forensic interview ambiguous; not newly introduced State evidence | Defense claimed surprise when victim testified molestation also occurred in bedroom; sought Box relief/continuance or mistrial | Affirmed: Box procedure not triggered because defense elicited testimony; no entitlement to mistrial or continuance |
| Cumulative error claim | N/A (State position: no reversible errors occurred) | Even if single errors harmless, their cumulative effect denied a fair trial | Affirmed: no individual errors found, so no cumulative error |
Key Cases Cited
- Leonard v. State, 972 So.2d 24 (Miss. Ct. App.) (amendment of indictment limited to correcting form; defendant must not be unfairly surprised)
- Spears v. State, 942 So.2d 772 (Miss.) (limits on amending indictments)
- Jenkins v. State, 131 So.3d 544 (Miss.) (specific date not required in child sexual abuse indictment if defendant fairly advised of charge)
- Shoemaker v. State, 256 So.3d 604 (Miss. Ct. App.) (standard of review for admission of evidence and 404(b)/403 filtering)
- Derouen v. State, 994 So.2d 748 (Miss.) (prior sexual-offense evidence admissible under 404(b) when properly filtered and limited)
- Boggs v. State, 188 So.3d 515 (Miss.) (prior sexual abuse may show plan, motive, or common scheme under 404(b))
- Gore v. State, 37 So.3d 1178 (Miss.) (similarity of means can render prior sexual misconduct admissible)
- White v. State, 228 So.3d 893 (Miss. Ct. App.) (reversal where prior-act evidence was minimally probative and highly prejudicial; importance of on-the-record 403 analysis)
- Case v. State, 187 So.3d 177 (Miss. Ct. App.) (prosecutor’s closing comments reviewed in context; procedural bar for failure to object)
- Alford v. State, 238 So.3d 11 (Miss. Ct. App.) (harmlessness of omission of detailed on-the-record 404(b)/403 analysis under certain circumstances)