Lead Opinion
for the Court:
¶ 1. A jury in the Yazoo County Circuit Court convicted Tommie Lee Jones of sexual battery of a child under the age of fourteen years. On appeal, Jones assigns the following errors: (1) the jury was improperly given instruction S-l, which failed to include an essential element of sexual battery — that Jones was twenty-four months or more older than the child, (2) the trial court erred in giving jury instruction 3, which constructively amended the indictment and allowed the jury to convict Jones based on a broader definition of sexual battery than the crime alleged in the indictment, and (3) the verdict is against the overwhelming weight of the evidence. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
112. One night in early 2009, on some date between March 16 and April 17, eight-year-old Sarah
¶ 3. On a later date, at some time prior to April 17, 2009, Sarah was sitting on the living-room couch and watching television at her grandmother’s house. Ann walked into the living room and told Sarah to get off of the couch. Jones then walked into the living room, lay on the couch, and pulled down his pants. At that point, according to Sarah, Jones made her perform oral sex on him.
¶ 4. On April 17, 2009, Sarah was taken by her mother, Lynn, to St. Dominic Hospital in Jackson, Mississippi, to be examined by an emergency-room physician. Sarah had been experiencing pain and burning sensations in her genital area. Dr. James Aron examined Sarah and found that she had contracted trichomo-nas, which is a sexually transmitted disease. Dr. Aron treated Sarah with Flagyl, an antibacterial medication used to treat vaginal infections. Finding it unusual that an eight-year-old girl had trichomonas, Dr. Aron contacted the Mississippi Department of Human Services (DHS) to report the matter. DHS then notified the Yazoo City Police Department.
¶ 5. On April 18, 2009, Detective Larry Davis interviewed Sarah at the Yazoo City
¶ 6. On December 2, 2009, Jones was indicted by a grand jury in the Yazoo County Circuit Court for sexual battery of a child under the age of fourteen years. Following a trial on November 28-29, 2011, Jones was convicted and sentenced to serve thirty years in the custody of the Mississippi Department of Corrections, with five years suspended and five years of supervised probation. On December 15, 2011, Jones filed a motion for a new trial, which was denied. Feeling aggrieved, Jones now appeals.
DISCUSSION
I.Whether the trial court erred in giving jury instruction S-l, which did not include the element of sexual battery that Jones was twenty-four or more months older than the child.
¶ 7. Jones was indicted for sexual battery under Mississippi Code Annotated section 97 — 3—95(l)(d) (Rev.2006), which provides that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child under ... fourteen (14) years of age, if the person is twenty-four (24-) or more months older than the child.” (Emphasis added). Regarding the proof required for the jury to find Jones guilty of sexual battery, the court gave instruction S-l, which reads:
TOMMIE LEE JONES has been charged in the [i]ndictment with the offense of [s]exual [bjattery.
If you find from the evidence in this [c]ause beyond a reasonable doubt that:
1. TOMMIE LEE JONES, on or about April 18, 2009, in Yazoo County, Mississippi;
2. did[] engage in sexual penetration with [Sarah], a child, who was at least eight (8) years of age, but under sixteen (16) years;
3. by placing his mouth and tongue in the vagina of [Sarah];
4. and by placing his penis in the mouth of [Sarah];
then you shall find the Defendant, TOMMIE LEE JONES, guilty of [s]exual [b]attery as charged in the [i]ndictment.
Jones argues that because the element of Jones being twenty-four or more months older than Sarah was missing from the instruction, the jury had no way of determining whether the State had met its burden of proof. We disagree.
¶ 8. We must begin by noting that Jones is raising this argument for the first time on appeal, and therefore, the argument is procedurally barred. Loden v. State,
¶ 9. Despite the procedural bar, we find that Jones’s argument lacks merit. In order to withstand the procedural bar and be permitted to raise such an error for the first time on appeal, Jones must show that the error “was so prejudicial on its face that we are obligated to note it as plain error.” Brown,
Tommie Lee Jones has been charged in Yazoo County, Mississippi ... with the offense of sexual battery.
If you find from the evidence in this case beyond a reasonable doubt that:
1.Tommie Lee Jones, on or about April 18, 2009[,] in Yazoo County, Mississippi;
2. Engaged in sexual penetration by cunnilingus or fellatio;
3. With [Sarah], a child under the age of 14[,] and the defendant is 24 or more months older than the child;
then you shall find the defendant guilty as charged.
If the prosecution has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find Tommie Lee Jones not guilty.
¶ 10. Also, here, it is undisputed that Sarah was eight years of age at the time of the offense. The jury was presented with documentary evidence, as well as corroborating testimony from Detective Davis, that Jones’s date of birth is November 28, 1981, which means that Jones was thirty years of age at the time of trial. Hence, Jones was twenty-eight years of age at the time of the offense. Any fair-minded juror could have easily deduced that Jones, being twenty-eight years of age, was twenty-four or more months older than Sarah at the time the crime was committed. The proof showed that Sarah was eight years old and under the age of fourteen, and that Jones was twenty-four or' more months older than her at the time the crime was committed. Miss.Code Ann § 97-3-95(l)(d).
¶ 11. In light of a decision recently handed down by the Mississippi Supreme Court covering a similar issue, we are compelled to distinguish that case from the present one. In Bolton v. State,
¶ 12. The dissent finds that the absence of Jones’s age from the jury instructions amounted to reversible error. To support this proposition, the dissent relies on Bolton, Rogers v. State,
¶ 13. “[D]efects in specific instructions will not mandate reversal when all of the instructions, taken as a whole, fairly — although not perfectly — announce the applicable primary rules of law.” Boyd v. State,
II. Whether the trial court’s giving of jury instruction 3 constituted error by allowing the jury to convict Jones on a broader definition of sexual battery than the crime alleged in the indictment.
¶ 14. Next, Jones argues that jury instruction 3, while a correct statement of law, was improper because it broadened the proof required of the State to prove sexual battery. The indictment specifically alleges that Jones committed sexual battery by “placing his mouth and tongue into the vagina of [Sarah], and by placing his penis in the mouth of [Sarah].” Jury instruction 3, which was taken directly from Mississippi Code Annotated section 97-3-97(a) (Rev.2006), reads:
Sexual penetration includes cunnilingus, fellatio, any penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.
(Emphasis added). Jones objected to this instruction on the ground that it conflicted with the indictment, as well as instruction
¶ 15. With regard to challenges to jury instructions based on the constructive amendment of an indictment, the Mississippi Supreme Court has held:
A constructive amendment of the indictment occurs when the proof and instructions broaden the grounds upon which the defendant may be found guilty of the offense charged so that the defendant may be convicted without proof of the elements alleged by the grand jury in its indictment.
Bell v. State,
¶ 16. The disputed language in jury instruction 3 did not substantially alter the elements of proof necessary to find Jones guilty of the offense charged. It is clear that the jury convicted Jones of sexual battery based on the elements given in instruction S-l, which required the State to prove that Jones engaged in sexual penetration with Sarah by “placing his mouth and tongue in the vagina of [Sarah]” and by “placing his penis in the mouth of [Sarah].” It is evident that this was the basis of the jury’s verdict. Sarah’s testimony revealed that both of these acts occurred. “Under our sexual battery statutes ... union or contact between a person’s mouth and the genital opening of a woman is the equivalent of ‘sexual penetration.’” Johnson v. State,
¶ 17. Assuming, only for the sake of argument, that the disputed phrase did effectuate a constructive amendment, the amendment was not prejudicial. The test, as laid out by the Mississippi Supreme Court, for determining if an amendment to an indictment is “substantive (and therefore prejudicial) is whether the defense as it originally stood would be equally available after the amendment is made.” Smith v. State,
III. Whether the verdict is against the overwhelming weight of the evidence.
¶ 19. The applicable standard of review in assessing whether a jury verdict is against the overwhelming weight of the evidence is as follows:
This Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.
Griffin v. State,
¶ 20. Jones argues that the evidence presented during trial did not support a conviction for sexual battery as alleged in the indictment. We disagree. As charged in the indictment, the State was required to prove that Jones committed sexual battery by (1) placing his mouth and tongue in the vagina of Sarah, and (2) placing his penis in the mouth of Sarah. The State’s burden was met. Sarah unequivocally testified that both of these acts occurred. She also demonstrated each act through hand gestures while on the witness stand. Both Agnew and Detective Davis offered corroborating testimony that Sarah described the two incidents during interviews.
¶ 21. Accepting all evidence in favor of the verdict as true, we cannot say that allowing the verdict to stand would sanction an unconscionable injustice. Our review of the record shows that there was substantial evidence to support Jones’s conviction of sexual battery as alleged in the indictment. Accordingly, this issue is without merit.
¶ 22. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED, FOLLOWED BY FIVE YEARS OF SUPERVISED PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.
Notes
. The names of the victim and the victim's relatives have been changed in this opinion to protect their identities.
Concurrence Opinion
specially concurring:
¶ 23. I agree with the majority that the omission of an element from a jury instruction is subject to harmless-error review and that Jones’s conviction should be affirmed. I write separately to further explain why the Mississippi Supreme Court’s recent decision in Bolton v. State,
¶ 24. The United States Supreme Court held in Neder v. United States,
¶ 25. Specifically, in 2002, the Mississippi Supreme Court determined that since its decisions on the issue of omission of a required element had been “grounded, at least in part, on federal interpretation,” it should “revisit” its prior decisions that had found this type of error was “fundamental” and required “automatic reversal.” Kolberg v. State,
¶ 26. While I acknowledge that it is certainly within the supreme court’s discretion to overrule Kolberg and depart from the United State Supreme Court’s harmless-error approach in Neder, unlike the dissent, I do not interpret Bolton as doing so. First, the Mississippi Supreme Court gave no indication it was abandoning prior precedent on this issue. See Bolton,
¶ 27. The specific context of Bolton was based on an intervening decision by the supreme court, Daniels v. State,
¶ 28. Admittedly, Bolton also cites Rogers v. State,
¶ 29. Furthermore, this court applied Neder as recently as 2011 to find the failure to instruct the jury on an essential element of felon in possession of a firearm was harmless error. Johnson v. State,
¶ 30. So without a specific indication from our supreme court that this court should no longer apply harmless-error analysis to any case where an essential element is missing from the jury instructions, I find Bolton and Rogers are limited to their circumstances, which are distinguishable from those here.
¶ 31. Under the circumstances here, this court can confidently say that Jones’s conviction “should not be set aside ... [because] the constitutional error was harmless beyond a reasonable doubt.” Kolberg,
¶ 32. At Joiies’s trial in November 2011, the jury had before it a grown man sitting at the defense table. And it heard evidence that Jones was born in 1981, making him twenty-eight at the time of the crime. So no reasonable juror, properly instructed, could have concluded anything other than Jones was more than twenty-four months older than Sarah when he sexually battered her. Thus, “it is clear beyond a reasonable doubt” that the failure to instruct the jury on the element of age difference between the victim and perpetrator “did not contribute to the verdict.” Kolberg,
¶ 33. The United State Supreme Court has held that the harmless-error “approach reaches an appropriate balance between society’s interest in punishing the guilty and the method by which decisions of guilty are to be made.” Neder,
¶ 34. For these additional reasons, the judgment of conviction should be affirmed and the instructional error deemed harmless.
LEE, C.J., IRVING, P.J., AND BARNES, J., JOIN THIS OPINION.
. Further, applying Bolton in this case would potentially incentivize “sandbagging” by defense counsel, under the guise of protecting a fundamental constitutional right. As the majority pointed out, Jones’s counsel had prepared a jury instruction that included all the necessary elements of the crime. But counsel withdrew this instruction and allowed the State's flawed instruction to be given without objection. To reverse this case would possibly condone or encourage defendants to engage in the sharp practice of remaining silent in cases where they know the State’s or court’s instruction is flawed — hedging their bets that if the jury convicts, they can claim plain error on appeal and automatically get a new trial — even when the error did not in any way contribute to the jury's verdict.
Dissenting Opinion
dissenting:
¶ 35. The majority finds that no reversible error resulted from the fact that the jury was not instructed that it had to find that Jones was twenty-four months older than the victim. I respectfully disagree. Mississippi Code Annotated section 97-3-95(l)(d) (Rev.2006) provides that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.” As the majority states, instruction S-l informed the jury that to convict Jones of sexual battery, it had to find, beyond a reasonable doubt, that:
1. [Jones], on or about April 18, 2009, in Yazoo County, Mississippi;
2. did[] engage in sexual penetration with [Sarah], a child, who was at least eight (8) years of age, but under sixteen years;
3. by placing his mouth and tongue in the vagina of [Sarah];
4. and by placing his penis in the mouth of [Sarah];
then you shall find [Jones] guilty of [s]exual Mattery as charged in the [i]n-dictment.
Instruction S-l did not inform the jury that it must find that Jones was twenty-four months older than Sarah, which is an essential element of the statutorily created offense of sexual battery.
¶ 36. I find that the Mississippi Supreme Court’s recent .decision in Bolton v. State,
GRIFFIS, P.J., ISHEE AND FAIR, JJ., JOIN THIS OPINION.