Burrows v. StateBurrows v. State
- Reporters:
- ,
- Before:
- Graves, Smith, Easley, Waller, Diaz, Carlson, Dickinson, Randolph, Lamar
GRAVES, Justice, for the Court.
¶ 1. Horace Paul Burrows (Burrows) was indicted by the Grand Jury of Harrison County in August 2004, for the crimes of Count I — sexual battery and Count II — possession of a controlled substance. A jury trial was held in relation to Count I — sexual battery of the indictment. A unanimous jury found Burrows guilty of Count I — sexual battery. He was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections. Burrows plead guilty to Count II — possession of a controlled substance and was sentenced to serve three years to run concurrently with his sentence in Count I — sexual battery, fоr a total of thirty years in the custody of the Mississippi Department of Corrections.
FACTS
¶ 2. Around February 2004, Burrows contacted Mary,1 the mother of his daughter Jane. Mary and Jane resided in Columbus, Mississippi. Burrows requested that Mary bring Jane to the Gulf Coast, where he was currеntly residing, so that he could take her to the Biloxi Mardi Gras Parades. Mary agreed, and so Jane spent the night with Burrows and his romantic partner and her son. At the time of the incident Jane was seven years old.
¶ 3. After the festival was over, Jane returned to her home. Everything seemed normal; Jane got up and went to school the next day. However, that evening, while taking a bath, Jane refused to sit down in the bathtub. When her mother asked why she refused to sit down, Jane told Mary that her “butts hurt and that her father (Burrows) had touched her `butts with his thing.‘” Upset and disturbed, Mary contacted law enforcement and took Jane to the hospital for an examination.
¶ 5. During the interview, Jane also described and drew pictures of a vibrator and a penis. The two drawings were admitted into evidence. Jackson prepared a search warrant to corroborate the items that were described by Jane. While executing the search warrant for Burrows‘s residencе, Jackson testified that the police recovered from the night stand next to Burrows‘s bed, a vibrator and a battery-operated control box that matched the description given by the victim.
¶ 6. During the hospital exаmination, Jane tested positive for chlamydia, a sexually transmitted disease. Burrows also tested positive for chlamydia. Dr. Kergosien, a witness for the state, testified that chlamydia is normally transmitted by a sexual orgаn instead of a finger or an object.
¶ 7. At trial, Jane testified that Burrows touched her “butts” with his “daddy spot.” She also testified that Burrows touched her “tee-tee spot” with his hand and a vibrator. According to Jane, Burrows was holding the vibrаtor in his hand when it touched her “tee-tee spot.” On cross examination, when asked whether Burrows had ever put his finger on her “tee-tee spot,” she stated the following:
A. I think.
Q. You think he did or he did not?
A. I think he did.
Q. He didn‘t stick his finger inside, did he?
A. (Shrugs shoulders.)
Q. Is that I don‘t know?
A. (Nods head affirmatively.)
The Court: You have to answer
A. Yes.
¶ 8. At the end of the State‘s case in chief, Burrows, through his attorney, argued a Motion For a Directed Verdict. The trial court denied the motion. The defense called no witnesses, so the case proceeded to the jury. After hearing the evidence prеsented, the jury found Burrows guilty of sexual battery. Burrows subsequently filed a Motion for Judgment of Acquittal Notwithstanding the Verdict or in the Alternative Motion for a New Trial. The motion was overruled and this appeal ensued. Burrows raises thе following assignments of error on appeal: (1) Whether the trial court erred in overruling Appellant‘s Motion for a Directed Verdict and subsequent Motion for Judgment of Acquittal Notwithstanding the Verdict or in the Alternative Motion for a New Trial because the indictment did not conform to the evidence, and (2) Whether the trial court erred in admitting into evidence the alleged sexual devices that were used to commit sexual battеry against the victim.
DISCUSSION
I. Whether the Trial Court Erred in Overruling Appellant‘s Motion for a Directed Verdict and Subsequent Motion for Judgment of Acquittal Notwithstanding the Verdict or in the Alternative Motion for a New Trial Because the Indictment did not Conform to the Evidence.
¶ 9. A motion for a directed verdict and a subsequent motion for judgment notwithstanding the verdict challenge the
¶ 10. Burrows argues that the State failed to prove digital penetration of the victim‘s vagina as stated within the indictment. The indictment regarding Count I — sexual battery states:
That: Horace Paul Burrows
In the Second Judicial District of Harrison County, Mississippi, on or about February 24, 2004,
being at the time in question twenty-four (24) or more months older than K.D., did wilfully, purposely, unlawfully and feloniously commit Sexual Battеry upon K.D., a child who was at the time in question under fourteen (14) years of age, by engaging in the act of sexual penetration, to wit: by inserting his finger into the vagina of the said K.D., contrary to the form of the statute in such casеs made and provided and against the peace and dignity of The State of Mississippi.
(Emphasis added). To support his assignment of error, he relies on Jane‘s testimony discussed infra. Burrows‘s assignment of error is without merit.
¶ 11. An indictment must inform a criminal defendant of thе nature and cause of the accusations brought against him.
¶ 12. In this case, Burrows was charged with the crime of sexual battery by digital penetration pursuаnt to
¶ 13. Sufficient proof was presented at trial to show that Burrows cоmmitted the offense of sexual battery. Jane testified that Burrows molested her three times. Although Jane‘s testimony regarding whether Burrows penetrated her vagina with his hand is not totally devoid of ambiguity, she does testify that he “touched her butts with his `daddy spot.‘” Investigator Jackson also testified that Jane told him that Burrows “touched the inside of her bottom with his `daddy spot.‘” Additionally, Dr. Kergosien testified that Burrows tested positive for chlamydia, a sexually transmitted disease. Jane also tested positive for chlamydia.
¶ 14. The variance between the language of the indictment, which explicitly stated that Burrows engaged in sexual battery against the victim by inserting his finger into her vagina and the proof presented at trial was not a fatal error. Burrows was provided sufficient notice that he was being charged with the crime of sexual battery. Accordingly, his ability to prepare and present а defense to the charge of sexual battery was not materially affected.
¶ 15. Burrows‘s defense to the charges brought against him was that he did not commit sexual battery against the victim. He argues that Mary was upset and angry at him for recently asking his girlfriend to marry him. He asserts that Mary persuaded Jane to make the sexual allegations against him out of anger. Burrows‘s attorney on closing arguments stated, “there is not a speck of еvidence about that [digital penetration], not a bit. Why? It didn‘t happen.” (Emphasis added). Regardless of whether the indictment charged Burrows with sexual battery by penetration with his finger, an object, or sodomy, his defense would still hаve been the same. Therefore, the variance between the indictment and the proof is immaterial.
II. Whether the Trial Court Erred in Admitting into Evidence the Alleged Sexual Devices that Were Used to Commit Sexual Battery Against the Victim.
¶ 16. Burrows contends that the vibrators that were seized by the police during the execution of the search warrant of his house were not probative of the crime charged, sexual battery by digital pеnetration, and should have been excluded as irrelevant. “[T]ools, weapons, and other physical evidence used or usable in the commission of a crime are admissible into evidence provided that they are relevant and not too remote.” Bryant v. State, 850 So.2d 1130, 1134 (Miss.Ct.App. 2002). “A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence. Unless, the judge abuses this discretion so as to be prejudicial to the accused, [this] Court will not reverse.” Fisher v. State, 690 So.2d 268, 274 (Miss.1996).
¶ 17. The victim in this case testified that Burrows used a vibrator to commit sexual battery against her. The design of the vibrator was such that Burrows‘s fingers had to slightly penetrate the victim during his use of the dеvice. The jury could have reasonably inferred that some degree of penetration occurred during Burrows‘s use of the device. Penetration, however slight, is sufficient to establish the penetration element of sexual battery. Johnson v. State, 626 So.2d 631, 633 (Miss.1993). Because the vibrator was used during the commission of a felony
CONCLUSION
¶ 18. For the foregoing reasons, this Court affirms the judgment of the trial court.
¶ 19. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF POSSESSION OF CONTROLLED SUBSTANCE AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I OF THE SAME CAUSE FOR A TOTAL OF THIRTY (30) YEARS TO SERVE.
SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON, RANDOLPH, AND LAMAR, JJ., CONCUR.