Jordan v. State


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Docket Number: 2008-KA-01761-COA
Linked Case(s): 2008-KA-01761-COA ; 2008-CT-01761-SCT ; 2008-CT-01761-SCT

Court of Appeals: Opinion Link
Opinion Date: 09-14-2010
Opinion Author: King, C.J.
Holding: Affirmed.

Additional Case Information: Topic: Sexual battery, Gratification of lust & Child neglect - Motion for severance - Amendment to indictment - Tender years exception - M.R.E. 803(25) - Leading questions - Prior consistent statement - Discovery violation - URCCC 9.04 - Pending drug charge - Weight of evidence
Judge(s) Concurring: Lee and Myers, P.JJ., Griffis, Ishee, Roberts, Carlton and Maxwell, JJ.
Concur in Part, Concur in Result 1: Barnes, J., concurs in part and in the result without separate written opinion.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY
Writ of Certiorari: Dismissed
Appealed from Court of Appeals

Trial Court: Date of Trial Judgment: 10-14-2008
Appealed from: Lafayette County Circuit Court
Judge: Andrew K. Howorth
Disposition: TIMOTHY W. JORDAN - CONVICTED OF FOUR COUNTS OF SEXUAL BATTERY AND SENTENCED TO LIFE FOR EACH COUNT, WITH THE LIFE SENTENCES TO RUN CONCURRENTLY; ONE COUNT OF GRATIFICATION OF LUST AND SENTENCED TO TEN YEARS; AND ONE COUNT OF CHILD NEGLECT AND SENTENCED TO TEN YEARS, WITH THE TWO TEN-YEAR SENTENCES TO RUN CONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY TO THE LIFE SENTENCES, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; GLENN E. GROSE - CONVICTED OF THREE COUNTS OF SEXUAL BATTERYAND SENTENCED AS A HABITUAL OFFENDER TO LIFE FOR EACH COUNT; AND ONE COUNT OF CHILD NEGLECT AND SENTENCED AS A HABITUAL OFFENDER TO TEN YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; JOHNNY GROSE - CONVICTED OF TWO COUNTS OF SEXUAL BATTERY AND SENTENCED TO LIFE FOR EACH COUNT, WITH THE LIFE SENTENCES TO RUN CONCURRENTLY; ONE COUNT OF GRATIFICATION OF LUST AND SENTENCED TO TEN YEARS; AND ONE COUNT OF CHILD NEGLECT AND SENTENCED TO TEN YEARS, WITH THE TWO TEN-YEAR SENTENCES TO RUN CONCURRENTLY WITH EACH OTHER BUT CONSECUTIVELY TO THE LIFE SENTENCES, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
District Attorney: Benjamin F. Creekmore
Case Number: LK 06-115

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Timothy W. Jordan, Glenn E. Grose and Johnny Grose




GEORGE T. HOLMES, LESLIE S. LEE, HUNTER NOLAN AIKENS, JOSHUA AARON TURNER, ALAN TODD ALEXANDER



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY  
    Appellee #2:  

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    Topic: Sexual battery, Gratification of lust & Child neglect - Motion for severance - Amendment to indictment - Tender years exception - M.R.E. 803(25) - Leading questions - Prior consistent statement - Discovery violation - URCCC 9.04 - Pending drug charge - Weight of evidence

    Summary of the Facts: Timothy Jordan, Glenn Grose, and Johnny Grose were convicted of sexual battery, gratification of lust, and child neglect. They appeal.

    Summary of Opinion Analysis: Issue 1: Motion for severance Tim argues that the trial court erred by denying his motion for severance. Glenn and Johnny did not join in this motion. When determining whether to grant or deny a motion to sever, the trial court considers whether a co-defendant attempts to exonerate himself at the expense of another co-defendant, and whether the weight of the evidence goes more to the guilt of one co-defendant over another. Tim maintains that his defense and that of his co-defendants were diametrically opposed, and all sought to exculpate themselves at the expense of the others. However, a review of the record shows that neither co-defendant implicated another co-defendant in the crime. In fact, Tim testified that he did not think Glenn and Johnny would hurt the victim. Also, the evidence did not go more toward the guilt of any one defendant over the other. Issue 2: Amendment to indictment Initially, each count of the indictment alleged that the event occurred in a particular month. But the State amended each count in the indictment expanding the time to stretch over several months. Tim, Glenn, and Johnny argue that the trial court erred by allowing the State to amend the indictment because it was an improper amendment to the substance of the indictment; changing the dates was prejudicial to their defense; the amendment made all of the counts identical; and the amendment confused the jury. It is well settled that a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case. Time is not an essential element of the crimes of sexual battery, gratification of lust, and child abuse. Therefore, the amendment was one of form; thus, it was allowable. Tim’s, Glenn’s, and Johnny’s defenses were simply that they had not sexually abused the victim. This defense could have been presented no matter what dates were alleged in the indictment. Issue 3: Tender years exception Tim, Glenn, and Johnny argue that the tender-years exception was not properly applied in this case because the victim was not unavailable to testify; her statements were not reliable, including those made during the forensic interview; and the statements were testimonial in nature, violating their right to confrontation. Under M.R.E. 803(25), statements made by a child regarding sexual abuse may be admissible as an exception to the hearsay rule. There is a rebuttable presumption that a child under the age of twelve is of tender years. The victim in this case was three at the time of the assaults. The victim’s therapist opined that further questioning about the events would negatively affect the victim’s mental health. The trial court did not abuse its discretion by determining that the victim’s health and welfare would be greatly affected by testifying and that she was unavailable as a witness. The trial court conducted a thorough examination to determine whether the victim’s statements possessed substantial indicia of reliability. There is substantial evidence to support the trial court’s ruling that, as a whole, the victim’s statements possessed substantial indicia of reliability because the statements were repeated in non-suggestive environments. The victim’s forensic interview was set up by DHS and administered by a non-profit entity; it did not arise based on a police investigation. Also, the statements occurred in the course of therapy. Because the statements were not testimonial in nature, the defendants’ Sixth Amendment rights were not violated. Issue 3: Leading questions The State asked the victim’s mother leading questions in an effort to get her to describe details of events. The trial court was in the best position to determine whether leading questions were necessary to develop the testimony. Because of the mother’s diminished mental capacity, the trial court allowed the State to ask her leading questions. The trial court did not abuse its discretion in this regard. Issue 4: Prior consistent statement Johnny argues that the trial court erred by allowing testimony from the victim’s advocate coordinator as a prior consistent statement. A prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive is admissible if the statement had been made before the alleged fabrication, influence, or motive came into being, but it is inadmissible if made afterwards. Here, the defense attempted to imply that the victim’s mother had changed her story in exchange for her plea deal. The State attempted to rebut the charge with prior consistent statements. The coordinator was allowed to testify about the disclosures the mother made to her while she was preparing the mother for trial. Although the testimony did not qualify as a prior consistent statement since the mother’s statement occurred after the mother had entered her guilty plea and in preparation of trial, the error in admitting the testimony is harmless. There was other substantial proof of the victim’s allegations against the defendants. Issue 5: Discovery violation Tim, Glenn, and Johnny argue that testimony from the mother’s attorney should have been excluded due to a discovery violation, i.e., the State had failed to identify her as a witness pursuant to URCCC 9.04. The trial court allowed the defense an opportunity to question the attorney before she took the stand. The defendants had knowledge of what the attorney would testify to, and they did not claim undue surprise or unfair prejudice or seek a continuance or mistrial after having an opportunity to examine her outside of the presence of the jury. Thus, the defendants waived the discovery-violation issue. Issue 6: Pending drug charge The State made a motion in limine to exclude evidence regarding a witness’s pending drug charge. The trial court sustained the motion. However, the issue is moot because the defense was allowed to question the witness about the pending charge during cross-examination. Issue 7: Weight of evidence The defendants argue that the victim’s statements were inconsistent; her mother was not a credible witness; and there was no direct evidence linking them to the sexual abuse and child neglect. A medical examination of the victim revealed that the child had been sexually abused. In addition, many witnesses testified that the victim identified Tim, Glenn, and Johnny as the persons who had abused her. Witness testimony alone is sufficient to secure a conviction.


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