Tapper v. State
| Docket Number: | 2009-KA-00544-SCT Linked Case(s): 2009-KA-00544-SCT ; 2009-KA-00544-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 08-26-2010 Opinion Author: Carlson, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Sexual battery & Touching child for lustful purposes - Challenges for cause - Defective indictment - URCCC 7.06 - Double jeopardy Judge(s) Concurring: Waller, C.J., Randolph, Chandler and Pierce, JJ. Concur in Part, Dissent in Part 1: Kitchens, J., Concurs in Part and Dissents in Part With Separate Written Opinion Concur in Part, Dissent in Part Joined By 1: Graves, P.J., Dickinson and Lamar, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-02-2009 Appealed from: Jackson County Circuit Court Judge: Robert P. Krebs Disposition: Count I: Conviction of sexual battery and sentence of life imprisonment in the custody of the Mississippi Department of Corrections. Count II: Conviction of touching of a child for lustful purposes and sentence of fifteen (15) years in the custody of the Mississippi Department of Corrections. Count III: Conviction of sexual battery and sentence of life imprisonment in the custody of the Mississippi Department of Corrections. Count IV: Conviction of touching of a child for lustful purposes and sentence of fifteen (15) years in the custody of the Mississippi Department of Corrections. Count V: Conviction of touching of a child for lustful purposes and sentence of fifteen (15) years in the custody of the Mississippi Department of Corrections. Count VI: Conviction of touching of a child for lustful purposes and sentence of fifteen (15) years in the custody of the Mississippi Department of Corrections. Count VII: Conviction of touching of a child for lustful purposes and sentence of fifteen (15) years in the custody of the Mississippi Department of Corrections. All counts shall run consecutively to each other. District Attorney: Anthony N. Lawrence, III Case Number: 2007-10,762(1) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Randy Lamar Tapper |
OFFICE OF INDIGENT APPEALS: JUSTIN TAYLOR COOK |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY, JR. | ||
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: | Sexual battery & Touching child for lustful purposes - Challenges for cause - Defective indictment - URCCC 7.06 - Double jeopardy |
| Summary of the Facts: | Randy Tapper was convicted on two counts of sexual battery and five counts of touching of a child for lustful purposes. Tapper was sentenced to life imprisonment on each count of sexual battery and to fifteen years on each count of touching of a child for lustful purposes. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Challenges for cause Tapper argues that three jurors should have been struck for cause because they each declared that Tapper should have to prove his innocence in clear contradiction to Tapper’s fundamental right not to testify. A prerequisite to Tapper’s claim on appeal is a showing that he had exhausted all of his peremptory challenges and that the incompetent juror was forced upon him by the trial court’s erroneous ruling. While the record shows that Tapper had exercised all of his twelve peremptory challenges, Tapper is unable to show that any of these three challenged jurors were forced upon him by eventually sitting on the trial jury. Issue 2: Defective indictment Tapper argues that the indictment, as it relates to counts IV, V, VI, and VII, failed adequately to notify him of the nature and cause of the accusation, rendering the indictment defective. Tapper also argues that the failure of the indictment to allege more specific dates denied him the opportunity to present any defense other than denial. The indictment upon which the defendant is to be tried shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. In a child sexual-abuse case, a specific date is not required so long as the defendant is fully and fairly informed of the charges against him. The issue of whether multi-count indictments which allege identical acts of conduct are sufficient to put the defendant on notice as to the essential facts constituting the offense charged and the nature and cause of the accusation as required by URCCC 7.06 has not been addressed. The time frame of the acts committed by Tapper as alleged in Counts IV, V, VI, and VII (“on or between June 1, 2006 and August 17, 2006") was sufficient to apprise Tapper concerning the date-and-time requirement of URCCC 7.06(5). It appears from the record and testimony that the State could not narrow the time frame or provide more specific details than it did. Tapper’s defense was that he did not sexually abuse or inappropriately touch the two victims and that their mother coached them. The cold, hard facts are that, even if these young, immature girls had the ability to describe to the prosecutor in adult terms and in the most graphic detail the acts which they said Tapper committed upon them, Tapper would not have been in any better position to prepare his defense “that he didn’t do it,” and that the false charges against him were a result of the girls’ mother coaching them because the mother feared being reported by Tapper, for all the “inappropriate things going on inside [the mother’s] home.” Considering the facts and circumstances of today’s case, the trial court committed no error in refusing to quash this multi-count indictment, as amended. Issue 3: Double jeopardy Tapper argues that under Mississippi law, touching of a child for lustful purposes is a lesser-included offense of sexual battery with penetration, and therefore, the two offenses merge, making Tapper’s conviction for count two of touching upon one of the victims violative of the Double Jeopardy Clause. Tapper ignores the fact that it is possible to commit an unlawful touching without committing sexual battery. Sexual battery requires penetration, while unlawful touching does not. In today’s case, the sexual-battery counts concern events separate from the unlawful touching counts. There was testimony that Tapper had touched the girl with both his finger and his penis, and evidence was presented showing penetration of the girl. Thus, Tapper’s argument is without merit. |
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