216 So. 3d 409
Miss. Ct. App.2017Background
- Defendant Thalmus Williams was tried for multiple offenses involving his then-10‑year‑old daughter: fondling (Count II), attempted sexual battery by anal penetration (Count III), and sexual battery by vaginal penetration (Count IV). He does not appeal Count II.
- Victim and forensic-interviewer testimony described showing of the penis, tongue contact with the vaginal area, manual contact inside the vagina, and rubbing of the buttocks; victim testified the tongue/finger entered where “you would pee out of.” No medical exam was performed.
- Count III of the indictment alleged attempted anal penetration with the penis. Count IV alleged inserting tongue/mouth/hand into the vaginal area but used the phrase “attempt to engage” in its text; the indictment heading listed sexual battery for Count IV.
- The trial court admitted hearsay under the tender‑years exception and allowed forensic‑interviewer testimony as expert opinion that the child’s statements were consistent with sexual abuse.
- Jury instructions treated Count IV as the completed crime (sexual battery) rather than an attempt; no contemporaneous objection was made by defense. Williams was convicted on Counts II–IV and sentenced as a habitual offender (Count II: 15 years; Counts III & IV: concurrent 30 years, the 30-year block to run consecutively to the 15‑year sentence).
- On appeal the State conceded the evidence for attempted anal penetration was tenuous; the Court reviewed sufficiency for Count III and whether the jury instruction alleging completed sexual battery on Count IV impermissibly amended the indictment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Count III (attempted anal penetration) | State: evidence, including interviewer testimony that penis touched buttocks, could support attempt | Williams: evidence ambiguous whether buttocks contact was by penis or hand; no clear anal‑opening penetration attempted | Reversed and rendered: evidence insufficient for attempted anal penetration (Count III) |
| Whether jury instruction converting Count IV to completed sexual battery impermissibly amended indictment | State: heading and text show Count IV charged completed sexual battery; "attempt" language is surplusage | Williams: indictment charged attempt, so instructing on completed crime amended charge, violating notice/grand jury requirement | Affirmed Count IV: language construed as alleging completed penetration; change was not a substantive amendment or prejudicial |
Key Cases Cited
- Bush v. State, 895 So.2d 836 (Miss. 2005) (standard for sufficiency review)
- Ringer v. State, 203 So.3d 794 (Miss. Ct. App. 2016) (anal penetration requires entry of anal opening; touching between buttocks may be insufficient)
- Graham v. State, 185 So.3d 992 (Miss. 2016) (discrepancy between indictment and instructions is permissible if not a substantive amendment prejudicing defendant)
- Eakes v. State, 665 So.2d 852 (Miss. 1995) (substantive indictment amendments must be by grand jury; defines material alteration test)
- Jenkins v. State, 101 So.3d 161 (Miss. Ct. App. 2012) (penetration is the essence of sexual battery)
- Hines v. State, 472 So.2d 386 (Miss. 1985) (indictment headings may inform sufficiency of charge)
- Jamison v. State, 73 So.3d 567 (Miss. Ct. App. 2011) (definition of substantive amendment and prejudice test)
- Spears v. State, 942 So.2d 772 (Miss. 2006) (framework for when indictment alterations are substantive)
- Spearman v. State, 58 So.3d 30 (Miss. Ct. App. 2011) (failure to allege the "failure or prevention" element in attempt indictments does not make the indictment defective)