Jenkins v. State
| Docket Number: | 2011-KA-01267-SCT Linked Case(s): 2011-TS-01267-SCT ; 2011-KA-01267-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 10-31-2013 Opinion Author: Chandler, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Fondling - Discovery violation - URCCC 9.04(I) - Defective indictment - Sufficiency of evidence Judge(s) Concurring: Waller, C.J., Dickinson and Randolph, P.JJ., Lamar, Pierce and Coleman, JJ. Dissenting Author : Kitchens, J. with separate written opinion Dissent Joined By : King. J. Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-14-2011 Appealed from: PEARL RIVER COUNTY CIRCUIT COURT Judge: Anthony Mozingo Disposition: Convicted Jenkins of fondling, a lesser-included offense of the second count of sexual battery. District Attorney: Haldon Kittrell Case Number: K2009-288P |
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| Party Name: | Attorney Name: | |||
| Appellant: | Levi L. Jenkins a/k/a Levi Jenkins a/k/a Levi Leverne Jenkins |
MICHAEL W. CROSBY |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Fondling - Discovery violation - URCCC 9.04(I) - Defective indictment - Sufficiency of evidence |
| Summary of the Facts: | Levi Jenkins was convicted of fondling and sentenced to fifteen years in prison, ordered to pay a $1,000 fine and to register as a sex offender for the rest of his life. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Discovery violation Jenkins argues that the trial court erred by ruling that no discovery violation had occurred, after the victim made reference during her direct examination to a diary which was not disclosed in discovery. The procedure a trial judge must follow when a discovery violation is alleged at trial is set forth in URCCC 9.04(I). The threshold determination under Rule 9.04(I) is whether the prosecution attempts to introduce evidence which it was required to timely disclose under Rule 9.04. Here, the State denied having any knowledge of the diary before the victim’s testimony and did not attempt to introduce the diary. If the State did not attempt to introduce a diary, the existence of which it was totally unaware and which it could not have disclosed previously, the trial judge was not required under Rule 9.04(I) to allow Jenkins to interview the victim regarding the diary or to order the diary’s production. Issue 2: Defective indictment Jenkins argues that Count II of the indictment was fatally flawed because the dates of the offense included in the indictment differed from the dates the victim testified to at trial. Failure to state the correct date shall not render the indictment insufficient. And, a specific date in a child sexual abuse case is not required so long as the defendant is fully and fairly advised of the charge against him. Count II of the indictment fully notified Jenkins of the charges against him and is legally sufficient. Issue 3: Sufficiency of evidence Jenkins argues that there was insufficient evidence for the trial judge to grant the State’s lesser-included-offense instruction on fondling. Jenkins’s only argument is that no evidence was presented that he touched the victim in order to gratify his lust or indulge his depraved licentious sexual desires. However, ample evidence supported the lesser-included offense of fondling, and the intent element of fondling can be inferred from Jenkins’s actions. The unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where the testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime. Here, the victim’s therapist testified that the victim’s conduct was consistent with one who is the victim of a sex crime. |
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