E-Filed Document
Mar 21 2016 22:54:45
2015-KA-00781-COA
Pages: 26
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
CARY DOWDEN
APPELLANT
VS.
NO. 2015-KA-00781-COA
STATE OF MISSISSIPPI
APPELLEE
BRIEF FOR THE APPELLEE
APPELLEE DOES NOT REQUEST ORAL ARGUMENT
JIM HOOD, ATTORNEY GENERAL
BY:
LAURA H. TEDDER
SPECIAL ASSISTANT ATTORNEY GENERAL
MISSISSIPPI BAR NO. 9530
OFFICE OF THE ATTORNEY GENERAL
POST OFFICE BOX 220
JACKSON, MS 39205-0220
TELEPHONE: (601) 359-3680
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF THE ISSUES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
i
TABLE OF AUTHORITIES
ii
STATEMENT OF THE ISSUES
I.
The trial court correctly sustained the prosecution’s objection to cross examination
testimony of the victim as it was more prejudicial than probative.
II.
The trial court correctly sustained the prosecution’s objection to the defendant’s
testimony that he had passed a drug test as the testimony was more prejudicial than
probative.
III.
Appellant received constitutionally effective assistance of counsel at trial and cannot
satisfy either prong of Strickland.
IV.
Count I of the indictment correctly states the elements of sexual battery of a child under
the age of 14 when the defendant was more than 24 months older than the victim in
violation of Mississippi Code Annotated § 97-3-95(1)(d) and put the Dowden on notice
of the charge against him; therefore, Count IV of the indictment is not fatally defective.
V.
The trial court correctly denied Dowden’s Motion for a Directed Verdict, his peremptory
instruction and his Motion for a New Trial.
iii
STATEMENT OF THE CASE
On June 2, 2014, a Newton County Grand Jury indicted Cary Dowden on Four (4)
separate counts of sexual battery pursuant to Mississippi Code Annotated § 97-3-95(1)(d) (1972,
as amended), charging that Cary Dowden “did willfully, unlawfully, and feloniously engage in
sexual penetration with Alex1, a child under the age of 14 years, when the said Cary Dowden was
more than twenty-four (24) months older than the said Alex. . . . ” C.P. 3-6. On April 14-16,
2015, Dowden was tried before a jury of his peers in the Newton County Circuit Court, the
Honorable Vernon R. Cotten presiding. Tr. 1. Dowden was convicted on all four counts. C.P.
12-15; Tr. 205-206. At a bifurcated sentencing hearing held on April 16, 2015, the trial court
sentenced Dowden to serve a life sentence in the custody of the Mississippi Department of
Corrections for each of the four counts, to be served day for day without the possibility of parole,
with all four life sentences running consecutively. C.P. 18-19; Tr. 215. The trial court
subsequently denied Dowden’s post trial motions. C.P. 28. Aggrieved, Dowden filed the instant
appeal. C.P. 22.
1
Counsel for the State has substituted the name Alex for the name of the victim in order
to protect his privacy.
1
STATEMENT OF THE FACTS
Erika Bradley lived in her car, and then, after her car was stolen, stayed wherever she
could. Tr. 122-123. Erika was homeless due to her drug use, particularly crystal
methamphetamine. Tr. 123. While she was living on the streets, Erika gave temporary custody
of her six (6) year old son, Alex, to her step-mother, Mary Crosby. Tr. 122. Erika was
introduced to Cary Dowden, age 48, by her drug dealer, Mandel Walker, on October 6, 2013.
Cary allowed Erika to move in with him that same day and provided her with the drugs she
wanted in exchange for sex and house cleaning. Tr. 123. Cary’s house was on Highway 80 in
Newton County, Mississippi.
Since Erika now had a place to live, she asked to have Alex come to visit her there. Erika
and Cary went to get Alex and Erika’s half sister, Anna, and brought them back to Cary’s house
for a weekend visit.
The weekend visit went well, so Anna and Cary went to get Alex a second
time for another weekend visit. On Friday, they went to pick up Alex from Mary Crosby’s
house. That night at Cary’s house, they watched tv, and Alex wanted to take a bath. Erika ran
Alex’s bath water and put him in the bathtub. While Alex was in the bath, Erika went in the
bedroom and “done some dope.” Tr. 125. While Alex was in the bathtub, he began calling for
Cary. Tr. 125.
Cary went in the bathroom and got in the tub with Alex. Cary and Alex got out of the tub
and came in the bedroom where Erika was. Erika left, but came back because Cary and Alex
were calling her. Erika came back and Cary forced her to remain in the room by using torn
sheets to tie her to the bed. Erika resisted to some degree, but was frightened. Tr. 127. Cary and
Alex were both naked. Erika was wearing a bathrobe. Tr. 125-126. Cary told Alex to put his
2
mouth on Erika’s vagina. Alex did this, but did not like it. Tr. 127. Cary then told Alex to put
his penis in Erika’s vagina. Alex did this for approximately 3 to 5 minutes while Cary guided
him through sexual motions. Erika was face up on the bed and Cary was standing to her left side
guiding Alex. Tr. 128. Cary then told Alex to get by Erika’s head and put his penis in her
mouth. Tr. 129. Cary told Erika to perform oral sex on Alex. While Erika was performing oral
sex on Alex, Cary entered Erika vaginally. Tr. 129. This lasted three to five minutes.
Erika then remained tied on the bed when Cary and Alex exchanged intercourse. Tr. 129.
Cary put his penis in Alex’s anus and directed Alex to put his penis in Cary’s anus. When Cary
put his penis in Alex’s anus, Alex said that it hurt. Cary performed oral sex on Alex and had
Alex perform oral sex on him. Erika testified that she saw all of this. She testified that she saw
Cary’s penis go in Alex’s anus and she saw Alex’s penis go in Cary’s anus. She also testified
that she saw Cary put Alex’s penis in his mouth and she saw Cary put his penis in Alex’s mouth.
Tr. 130. Erika testified that she did not know if anyone ejaculated and that no condoms were
used. She did not make any strong effort to stop what was happening because she was frightened
of Cary who was abusive to her and was the source of her drugs. Tr. 130. After it was over,
Erika was untied and she got Alex dressed and put him to bed. Erika told Alex that she loved
him and that she was sorry. Tr. 131.
Three or four months later, the abuse happened again on the weekend after Alex’s seventh
birthday, sometime in early February. Cary and Erika went to get Alex at Mary Crosby’s house.
Anna did not come with him this time. Tr. 131. Erika and Cary both had sex with Alex again, as
well as oral sex. On the second occasion, Alex was shyer and more afraid. He told them that it
hurt. Tr. 132.
3
During the time in which these incidents happened, no one was living in the Cary’s house
other than Cary and Erika. Cary had a job when Erika first moved in, but then lost his job. In
exchange for a place to stay and drugs, Erika was required to keep the house clean and have sex
with Cary. In April of 2014, Erika called Mary Crosby and told her that she and Cary had
engaged in sex with Alex. Erika testified that at Alex’s birthday party in February, Mary Crosby
had told her that since she had a stable home, Alex could come and live with her again. Erika
knew that she would not be able to stop the sexual abuse from happening again, so she got the
courage to go to a neighbor’s house to use the phone to call Mary Crosy. Erika was about to get
custody of Alex and he would have lived in the house with Cary and Erika. Instead of letting that
happen, Erika called Mrs. Crosby. Erika testified that Cary wore a goatee beard and shaved his
genital areas. Tr. 135. Erika testified that she had made a plea bargain in which she would give
truthful testimony in the case against Cary Dowden. Erika pled guilty to one count of statutory
rape and two counts of sexual battery. Erika received a sentence of thirty years to serve without
the possibility of parole in the custody of the Mississippi Department of Corrections. Tr. 120-22.
Alex testified that he was nine years old (at the time of trial) and that he lived in
Harrisville, Mississippi, with his Maw Maw, Mary Crosby, his Paw Paw and his uncle. Tr. 69.
At the time of trial, Alex was in the second grade. Alex testified that he went to visit his mother
at Cary’s house three times.
He testified that Erika and Cary were both there when he visited
and that there were puppies at the house where he visited them. Tr. 72.
Alex testified that the first time he went to spend the night with his mom and Cary, his
Aunt Anna went, too. Tr. 72. Alex testified that he was in the bedroom with Cary and his mom
because Cary told him to. He testified that Cary and his mom weren’t wearing any clothes. Alex
4
testified that they told him to take off his clothes and that Cary told him to get on the bed. Tr. 73.
Alex testified that he was on the end of the bed on his stomach and his mom was at the front of
the bed. Alex testified that Cary put his penis in Alex’s buttocks. He put it in a little bit and it
hurt. Alex told him it hurt and Cary got up. Tr. 75. Alex testified that his mother told Cary to
get off of him and that he put his clothes on and went to the living room. Tr. 76.
Alex testified that the next time he came to visit he saw Cary put his penis in his mother’s
mouth and that Cary also put his penis in Alex’s mouth. Something came out of Cary’s penis
and Alex spit it out. Alex testified that Cary put his mouth on Alex’s penis. Alex testified that
things like this happened more than one time. He testified that he saw Cary and his mother
naked and that Cary did not have any hair on his genital area. Alex testified that he told his Aunt
Anna after the last time he had been there. Alex testified that Anna told him Maw Maw. His
Maw Maw did not ask him any questions about it. Alex testified that he did not tell anyone about
it at first because he was scared and did not want him Mom to go to jail. Alex testified that Cary
told him not to tell anyone. Tr. 79. Alex testified that he did not want to do the things Cary
made him do. He testified that he had talked to his therapist Ms. Diane and had told her what
happened. Tr. 79.
Mary Crosby testified that Alex was her grandson and that he had lived with her for three
years. Mrs. Crosby got temporary custody of Alex in September of 2012 and then was granted
full custody after Alex was abused. Alex was originally in the custody of his mother, Erika
Bradley, who was twenty three at the time of the abuse. There was no court ordered visitation,
but Erika would ask to see Alex and Mrs. Crosby would allow it sometimes. Tr. 96. After he
came to live with Mrs. Crosby. Alex only stayed Erika when she was with Cary. Alex started
5
going to visit Erika and Cary in September or October and went five or six times in all. Tr. 97.
Mrs. Crosby testified that Alex had come home from a previous weekend with Erika and Cary
and had acted out really badly. Mrs. Crosby thought that Erika and Cary might have told him
that if he acted out, he could move back in with Erika. As a result, Mrs. Crosby stopped the
visitation. Tr. 98.
Mrs. Crosby testified that there were a couple of incidents where Alex was in the
bathroom and he was pulling off his shoes while Mrs. Crosby was getting his shower ready and
Alex would tell her that he and his mother had a secret. Two times he would not tell Mrs.
Crosby, but he finally told her daughter, Anna Bradley, who was seventeen and who had gone
with Alex to visit Erika and Cary on possibly two occasions. Tr. 98. Anna told Mrs. Crosby
about the abuse in early March. Mrs. Crosby reported the abuse. Tr. 98. Mrs. Crosby first talked
to Detective Stevens, but Alex would not say much because he was afraid. Erika later admitted
to Mrs. Crosby what had happened. Tr. 99. Mrs. Crosby then took Alex to the ER at the
University of Mississippi Medical Center. DHS then assigned a caseworker and the court gave
Mrs. Crosby full custody of Alex. Tr. 99. Alex saw a therapist for about a year and also talked
with the forensic interviewers at Wesley house and the Mississippi Children’s Advocacy Center.
Tr. 100.
Cary Dowden testified on his own behalf and alleged that Erika made the accusations
against him because she wanted the million dollars he would get due to a lawsuit he had with
Morgan and Morgan regarding his injury in an accident with an 18-wheeler, as well as due to his
life insurance policy which he alleged was worth $400,000.00. Tr. 152-153.
6
SUMMARY OF THE ARGUMENT
The scope of cross-examination is ordinarily broad; however, it is within the sound
discretion of the trial court to limit cross-examination to relevant matters. Bishop v. State, 771
So. 2d 397, 401 (Miss. Ct. App. 2000) (citing Pace v. State, 473 So.2d 167, 169 (Miss.1985)).
Relevant evidence “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury.” Bishop v. State, 771
So. 2d 397, 401 (Miss. Ct. App. 2000) (citing Smith v. State, 733 So.2d 793, 801 (Miss.1999)).
The trial court correctly sustained the prosecution’s objection to cross examination testimony of
the victim regarding a statement he had made about his peer age cousins and a vague allegation
of touching that was not sexual in nature as it was more prejudicial than probative. Further, the
trial court correctly sustained the prosecution’s objection to the defendant’s testimony that he had
passed a drug test as the testimony was more prejudicial than probative. A drug test that was not
pinpointed to the time of the crime would not be relevant as it did not make the events more or
less likely to occur and the exclusion of the evidence was not prejudicial to Bowden.
Appellant received constitutionally effective assistance of counsel at trial and cannot
satisfy either prong of Strickland. Defense counsel is not required to make frivolous or meritless
objections.
Count I of the indictment correctly states the elements of sexual battery of a child under
the age of 14 when the defendant was more than 24 months older than the victim in violation of
Mississippi Code Annotated § 97-3-95(1)(d) and put the Dowden on notice of the charge against
him; therefore, Count I of the indictment is not fatally defective. In the case at bar, the
indictment charges that Dowden caused the penis Alex’s penis to be inserted into Dowden’s anal
7
opening. By the language of Mississippi Code Annotated §§ 97-3-97 (Rev.2006) and 97-3-1(d),
Dowden was correctly charged with committing the act of penetration “with” a child. Further,
according to Hennington v. State, 702 So.2d 403 (Miss. 1997), fulfillment of the sodomy
penetration requirement is not restricted to acts wherein the accused does the penetrating. In this
case, there was penetration of the victim’s penis into Dowden’s anus when is just as surely
penetration as it is when the accused performs fellatio on the victim. This issue is without merit
and the jury’s verdict and the rulings of the trial court should be affirmed.
The trial court correctly denied Dowden’s Motion for a Directed Verdict, his peremptory
instruction and his Motion for a New Trial. Erika Bradley’s testimony established the elements
of all four allegations of sexual battery. Alex’s testimony also described multiple occasions of
anal and oral sexual battery. Erika and Alex’s testimony was corroborated by Mary Crosby,
Alex’s grandmother and custodial parent, to whom Erika had reported the abuse she and Cary
had committed against Alex. This issue is without merit and the jury’s verdict and the rulings of
the trial court should be affirmed.
8
ARGUMENT
I.
The trial court correctly sustained the prosecution’s objection to cross examination
testimony of the victim as it was more prejudicial than probative.
The admissibility of evidence rests within the discretion of the trial court, and reversal is
appropriate only when a trial court commits an abuse of discretion resulting in prejudice to the
accused. Irby v. State, 893 So.2d 1042, 1047 (Miss.2004) (citing Sturdivant v. State, 745 So.2d
240, 243 (Miss.1999)). Relevance is a threshold requirement of admissibility. M.R.E. 402; Foster
v. State, 508 So.2d 1111, 1117 (Miss.1987). Evidence is relevant if it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence.” M.R.E. 401. Rule 401 is construed broadly in
favor of admitting evidence with even slight probative value. See M.R.E. 401 cmt. However,
even otherwise relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” M.R.E. 403. Under Rule 403, the exclusion of prejudicial evidence is permissive; that
is, if a trial court determines that the prejudicial effect of evidence substantially outweighs its
probative value, it is not obligated to exclude the evidence, but may do so at its discretion. See
Foster, 508 So.2d at 1117.
The admissibility and relevancy of evidence is within the discretion of the trial court and,
absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal.
Reynolds v. State, 784 So.2d 929, 932 (Miss.2001). “As long as the trial court remains within the
confines of the Mississippi Rules of Evidence, its decision to admit or exclude evidence will be
9
accorded a high degree of deference.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990).
Additionally, “the admission or exclusion of evidence must result in prejudice or harm, if a cause
is to be reversed on that account.” Jackson v. State, 594 So.2d 20, 25 (Miss.1992).
The scope of cross-examination is ordinarily broad; however, it is within the sound
discretion of the trial court to limit cross-examination to relevant matters. Bishop v. State, 771
So. 2d 397, 401 (Miss. Ct. App. 2000) (citing Pace v. State, 473 So.2d 167, 169 (Miss.1985)).
Relevant evidence “may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury.” Bishop v. State, 771
So. 2d 397, 401 (Miss. Ct. App. 2000) (citing Smith v. State, 733 So.2d 793, 801 (Miss.1999)).
Bowden argues that the trial court erred in sustaining the prosecution’s objection to
defense counsel’s attempt to question Alex about statements the child made to a forensic
examiner from the Mississippi Children’s Advocacy Center. Bowden’s counsel admits during
argument on the issues that Alex’s statement regarded two of Alex’s cousins who were both six
years old. According to defense counsel the statement was about the two young cousins touching
but that there was no indication that it was sexual touching. Defense counsel further stated that
there was no allegation that Alex made about anyone else having touched him. Alex did not tell
the counselor about the sexual battery committed by Cary Bowden and Erika Bradley. The trial
court held that the relevance of the testimony was outweighed by its prejudicial effect, in
particular, the likelihood that it would confuse the jury and be a waste of time. In particular, the
trial court noted because of Alex’s age, the testimony would be more prejudicial than probative.
This ruling was an on the record balance of probative value versus prejudice.
Bowden argues that because Mary Crosby took Alex to a different counselor later, that
10
she may have had the motive and opportunity to influence Alex’s memory. However, there is no
basis in the evidence for this argument because Crosby testified that she did not talk to Alex
about the allegations after Anna and Erika told her about the events. She testified that she was
afraid to talk with him about. Therefore, the testimony indicates that in an abundance of caution
Crosby intentionally avoided the subject with Alex in order not to influence his statements to
investigators.
The trial court was within its sound discretion to exclude Alex’s statements to a counselor
about his two six year old cousins. It is unclear from the record whether Alex’s statement would
have even been that the cousins touched him. It appears only that the statement included the
names of the two young cousins and some touching and that there was no indication the touching
was sexual. The testimony lacks relevance due to the peer age of the two cousins, the lack of any
indication that the touching was sexual and the age of the victim. Bowden in contrast is an adult
and the touching he is charged with was undeniably sexual. Alex’s testimony regarding his six
year old cousins would have done nothing but confuse and mislead the jury.
Further the sexual history of a victim is not admissible evidence. Rule 412 provides that
past sexual behavior of an alleged victim of a sexual offense is not admissible unless it is (1)
evidence of past sexual behavior with others to show that someone else was the source of semen,
pregnancy, disease, or injury; (2) past sexual behavior with the defendant to show consent; or (3)
false allegations of past sexual offenses made by the victim. Ladd v. State, 969 So. 2d 141, 146
(Miss. Ct. App. 2007). While defense counsel asserted in argument before the court that there
was no indication that the touching was sexual, the effect of the testimony was certainly to
suggest to the jury that the victim had made a prior allegation of a sexual touching. Therefore,
11
the trial court correctly excluded the evidence the jury’s verdict and the rulings of the trial court
should be affirmed.
II.
The trial court correctly sustained the prosecution’s objection to the defendant’s
testimony that he had passed a drug test as the testimony was more prejudicial than
probative.
The admissibility and relevancy of evidence is within the discretion of the trial court and,
absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal.
Reynolds v. State, 784 So.2d 929, 932 (Miss.2001). “As long as the trial court remains within the
confines of the Mississippi Rules of Evidence, its decision to admit or exclude evidence will be
accorded a high degree of deference.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990).
Additionally, “the admission or exclusion of evidence must result in prejudice or harm, if a cause
is to be reversed on that account.” Jackson v. State, 594 So.2d 20, 25 (Miss.1992).
Any drug test that Dowden might have taken to prepare for trial would have been useless
and clearly irrelevant to show his sobriety at the time of the sexual battery of Alex. There is
nothing in the record to show that a drug test could be pinpointed to the date of incident. If
Dowden did test negative for drugs afterward, it was not relevant to the time of the incident.
The trial judge did not abuse his considerable discretion in excluding this evidence which did not
relate temporally to the crime and which would have required the testimony of an expert witness.
Relevant evidence is defined as evidence which has “any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Miss. R. Evid. 401. Whether Bowden had a
negative drug test did not make any fact of consequence to the determination of the action, more
or less probable. The trial court did not abuse its discretion by excluding Bowden’s testimony
12
that he had passed a drug test. This issue is without merit and the jury’s verdict and the rulings
of the trial court should be affirmed.
III.
Appellant received constitutionally effective assistance of counsel at trial and cannot
satisfy either prong of Strickland.
Because appellate courts are limited to the trial record on direct appeal, issues of
ineffective assistance of counsel are more appropriately brought in a motion for post-conviction
relief. Parker v. State, 30 So.3d 1222, 1232 (Miss.2010). However, reviewing courts may address
the claims on direct appeal if the issues are based on facts fully apparent from the record. Id. If
the record is not sufficient to address the claims on direct appeal, the reviewing court should
dismiss the claims without prejudice, preserving the defendant's right to raise the claims later in a
properly filed motion for post-conviction relief. Id.
To establish an ineffective assistance of counsel claim, a party must show (1) a deficiency
of counsel's performance that is (2) sufficient to constitute prejudice to his defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Walker v. State, 703
So.2d 266, 268 (Miss.1997). The Mississippi Supreme Court has adopted the Strickland standard
of determining ineffective assistance of counsel. Stringer v. State, 454 So.2d 468, 476-77
(Miss.1984). See McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The burden is on the
defendant to demonstrate the Strickland factors to support an ineffective assistance of counsel
claim. McQuarter, 574 So.2d at 687. Under Strickland, the totality of circumstances of each case
must be considered. McQuarter, 574 So.2d at 687.
Mississippi “recognizes a strong but rebuttable presumption that counsel's conduct falls
within a broad range of reasonable professional assistance.” Id. To overcome this presumption,
13
“[t]he defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694, 104 S.Ct. 2052. In addition to the presumption that counsel's conduct is reasonably
professional, there is a presumption that counsel's decisions are strategic in nature, rather than
negligent. See Handley v. State, 574 So.2d 671, 684 (Miss.1990); Leatherwood v. State, 473
So.2d 964, 968-69 (Miss.1985).
Bowden alleges that he should have had access to a psychiatrist to conduct an examintion
and assist in the evaluation, preparation of the defense of insanity. There is nothing in the record
or in the Appellant’s brief that indicates insanity or the inability to stand trial. The description of
Tourette’s syndrome provided by the Appellant describes motor and vocal tics but does not assert
any mental, psychological or psychiatric dysfunction that would prevent Bowden from
understanding the nature and quality of his acts in committing sexual battery against Alex.
Neither does it show that Bowden was incapable of assisting his counsel in preparation for trial.
Bowden was present at trial and testified. He clearly heard and understood the testimony of the
witnesses against him. There is nothing in the record to show that his counsel was deficient in
failing to request a psychiatric examination or any indication that Bowden was prejudiced by not
having a psychiatrist to assist with his defense.
Bowden further alleges that his trial counsel was ineffective for failing to object to
testimony by Mary Crosby that Alex would not speak to Detective Stevens because he was
afraid. M.R.E. 602 provides that “[a] witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge of the matter.”
14
Mary Crosby was Alex’s custodial parent. It is reasonable to believe that a custodial parent
would have personal knowledge of the feelings of the child in her care. There is nothing in the
record to indicate the Mary Crosby did not have personal knowledge of Alex’s state of mind
when he spoke to Detective Stevens. Further, Alex had previously testified that he was afraid to
tell about the sexual battery by Cary Dowden and Erika Crosby because he did not want his
mother to go to jail. Tr. 79. There is nothing in the record to suggest that Alex did not talk to
Detective Stevens about the events because of any fear of Cary Dowden.
Finally, Dowden asserts that he received ineffective assistance of counsel because his
counsel did not object to Erika Crosby’s testimony about the sexual battery of Alex because she
included acts that were not charged. Dowden alleges that these are “uncharged bad acts” which
were inadmissible pursuant to MRE 404 (b). Mississippi law allows proof of another crime or
act when it is so interrelated to the charged crime that it constitutes either a single transaction or
occurrence or a closely related series of transactions or occurrences. Duplantis v. State, 644 So.2d
1235, 1246 (Miss.1994). Proof of another crime or act is also admissible where necessary to
identify the defendant, to prove motive, or to prove state of mind. Id. Moreover, “[e]vidence of
other bad acts is admissible in order to tell a complete story to avoid confusion among jurors.”
Simmons v. State, 805 So.2d 452, 481 (Miss.2001).
None of these alleged shortcomings or omissions prejudiced Bowden’s defense. Bowden
cannot demonstrate that a different result would have occurred had his counsel made the motions
and objections he asserts should have been made. “The benchmark for judging any claim of
ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
15
result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A
defendant must demonstrate that his counsel's performance was deficient and that the deficiency
prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. “Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence resulted from a breakdown in
the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477
(Miss.1984) (citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the
inquiry must be whether counsel's assistance was reasonable considering all the circumstances.
Id.
All of Dowden’s alleged instances of ineffective assistance of counsel are without merit.
Defense counsel is not required to make useless or frivolous motions or objections. The failure
to raise meritless objections is not ineffective lawyering. Brown v. State, 798 So.2d 481, 493
(Miss. 2001) (citing Clark v. Collins, 19 F.3d 959, 966 (5th Cir.1994). Further, none of the
alleged deficiencies resulted in any prejudice to Bowden’s defense. In the alternative, the State
asserts that the record is not sufficient to determine the merits of Dowden’s claims of ineffective
assistance of counsel and the claims should be dismissed without prejudice, reserving the
possibility that the claims might be brought later in a post conviction action.
IV.
Count I of the indictment correctly states the elements of sexual battery of a child
under the age of 14 when the defendant was more than 24 months older than the
victim in violation of Mississippi Code Annotated § 97-3-95(1)(d) and put the
Dowden on notice of the charge against him; therefore, Count I of the indictment is
not fatally defective.
Count I of the indictment states:
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Cary Dowden . . . did willfully, unlawfully and feloniously engage in sexual
penetration with [Alex], at a time when [Alex] was a child under the age of
fourteen (14) years, when the said Cary Dowden was more than twenty-four (24)
months older than the said [Alex], by causing the said Alex to insert his penis into
the anal opening of Cary Dowden, contrary to and inviolation of Section 97-395(1)9d), (Miss Code Ann. (1972) . . . .
C.P. 3.
Mississippi Code Annotated § 97-3-95(1)(d) (1972, as amended) provides:
(1)
A person is guilty of sexual battery if hw or she engages in sexual
penetration with:
(d)
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.
Dowden alleges that Count I of the indictment is fatally defective, contending in his brief:
The allegations of this count describe penetration of Appellant’s body by Zachary
Bradley’s penis but do not describe penetration of Zachary Bradley’s body by
Appellant. Thus the allegations of this count do not comport with or charge a
crime under this statute.
Appellant’s Brief, p. 16.
In Hennington v. State, 702 So.2d 403 (Miss. 1997), the Mississippi Supreme Court
opined:
Hennington misinterprets the statutes and the prior holdings of this Court.
“Penetration is the very essence of the crime of sexual battery.” Id. at 917;
Thompson v. State, 468 So.2d 852, 853 (Miss.1985). This Court held that “proof
of contact, skin to skin, between a person's mouth, lips, or tongue and the genital
opening of a woman's body, whether by kissing, licking, or sucking, is sufficient
proof of ‘sexual penetration’....” Johnson v. State, 626 So.2d 631, 633–34
(Miss.1993). Today, we hold that the same should apply to all persons regardless
of the gender of the victim or the perpetrator.
Sexual penetration was defined by the legislature in Miss.Code Ann. § 97–3–97
(1994) to include fellatio or any penetration of the genitalia by any part of a
person's body. This Court specifically stated that fellatio does involve penetration.
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Miller v. State, 636 So.2d 391, 396 (Miss.1994). The Court went on to say,
“Fulfillment of the sodomy penetration requirement is not restricted to acts
wherein the accused does the penetrating. We hold that an act of fellatio
performed by the accused is an act proscribed by the statute.” Id.
Hennington claims that there was no evidence that any portion of A.R.'s body was
actually penetrated by Hennington. This argument is specious and simply without
merit. The legislature has proscribed the act of fellatio by including it in the
definition of sexual battery. This Court has stated proof of skin to skin contact
between a person's mouth, lips, or tongue and the genitalia of a person's body,
whether by kissing, licking, or sucking, is sufficient proof of “sexual penetration.”
While it is true that the indictment did not use the exact language of the statute,
the essential elements for the crime of sexual battery were contained in the
indictment. There is no question that the evidence proved beyond a reasonable
doubt that Hennington performed fellatio on A.R., a child less than fourteen years
of age. Whether there was penetration “of” or penetration “with” A.R. is not an
essential element of the crime and is not relevant. The proof showed beyond a
reasonable doubt that Hennington penetrated A.R., according to Miss.Code Ann. §
97–3–95 and the prior holdings of this Court, and was guilty of sexual battery.
We find that the lower court did not err by denying Hennington's Motion for a
Directed Verdict.
Miss.Code Ann. § 97-3-97 (Rev.2006) defines sexual penetration as follows: “sexual
penetration” includes “cunnilingus, fellatio, buggery or pederasty, and 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 opening of another person's body.” (Emphasis added).
In the case at bar, the indictment charges that Dowden caused the penis Alex’s penis to be
inserted into Dowden’s anal opening. By the language of Mississippi Code Annotated §§
97-3-97 (Rev.2006) and 97-3-1(d), Dowden was correctly charged with committing the act of
penetration “with” a child. Further, according to Hennington, fulfillment of the sodomy
penetration requirement is not restricted to acts wherein the accused does the penetrating. In this
case, there was penetration of the victim’s penis into Dowden’s anus when is just as surely
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penetration as it is when the accused performs fellatio on the victim.
This issue is without merit and the jury’s verdict and the rulings of the trial court should
be affirmed.
V.
The trial court correctly denied Dowden’s Motion for a Directed Verdict, his
peremptory instruction and his Motion for a New Trial.
A motion for directed verdict and judgment notwithstanding the verdict (JNOV), as well
as a request for peremptory instruction, challenge the legal sufficiency of the evidence, since each
requires consideration of the evidence before the court when made.” McClain v. State, 625 So.2d
774, 778 (Miss.1993). Reversal on the issue of legal sufficiency can only occur when evidence of
one or more of the elements of the charged offense is such that “reasonable and fair-minded
jurors could only find the accused not guilty.” Purnell v. State, 878 So.2d 124, 129
(Miss.Ct.App.2004) (citing Hawthorne v. State, 835 So.2d 14, 21 (Miss.2003)). However, where
substantial evidence of such quality and weight exists to support the verdict, and where
reasonable and fair-minded jurors may have found the appellant guilty, the reviewing court must
affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47 (Miss.Ct.App.2002)
(citing Baker v. State, 802 So.2d 77, 81 (Miss.1995)). In determining whether a jury verdict is
against the overwhelming weight of the evidence the 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. Herring v. State, 691 So.2d 948, 957 (Miss.1997)
(citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). The court will not order a new
trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence
that, to allow it to stand, would be to sanction an unconscionable injustice. Benson v. State, 551
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So.2d 188, 193 (Miss.1989) (citing Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)).
“Factual disputes are properly resolved by the jury and do not mandate a new trial.” Benson, 551
So.2d at 193 (citing Temple v. State, 498 So.2d 379, 382 (Miss.1986)).
The testimony at trial was sufficient to prove all four counts of sexual battery of a child.
Alex’s mother, Erika Bradley, clear set out that Bowden engaged in an act of penetration of
Alex’s anus by his penis, an act of penetration of his anus by Alex’s penis, an act of penetration
wherein he put his penis in Alex’s mouth and an act of penetration wherein he put Alex’s penis
in his mouth. Tr. 129-130. Tr. 132. She further testified that Alex was six on the first occasion
of of sexual battery and the he was seven on the second occasion of sexual battery and that Cary
Bowden was forty eight at the time. Tr. 129; Tr. 132.
Alex also testified to that Cary put his penis in Alex’s buttocks and that Cary put his penis
in Alex’s mouth and that Cary put his mouth on Alex’s penis. He testified that these things
happened on more than one occasion. Alex testified that Cary did not have any hair on his
genitals. This was corroborated by Erika’s testimony that Cary shaved his genitals. Alex and
Erika’s testimony was corroborated by Mary Crosby’s testimony. Alex told his Aunt Anna what
had happen and she told Mrs. Crosby. Erika also confessed to Mrs. Crosby when she realized
that if Alex moved in with her she would not be able to the prevent the abuse.
The testimony from all the witnesses was consistent, proving each allegation of all four
counts of sexual battery. The testimony was therefore sufficient to prove all counts and was
overwhelmingly in favor of the guilty verdicts pronounced by the jury. This issue is without
merit and the jury’s verdict and the rulings of the trial court should be affirmed.
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CONCLUSION
The assignments of error presented by the Appellant are without merit and the jury’s
verdict and the rulings of the trial court should be affirmed.
Respectfully submitted,
JIM HOOD, ATTORNEY GENERAL
BY:
s/ Laura H. Tedder
LAURA H. TEDDER, MSB #9530
SPECIAL ASSISTANT ATTORNEY GENERAL
MISSISSIPPI BAR NO. 9530
OFFICE OF THE ATTORNEY GENERAL
POST OFFICE BOX 220
JACKSON, MISSISSIPPI 39205-0220
TELEPHONE: (601) 359-3680
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CERTIFICATE OF SERVICE
I hereby certify that on this day I electronically filed (and mailed by United States Postal
Service) the foregoing pleading or other paper with the Clerk of the Court using the MEC system
which sent notification of such filing to the following:
Honorable Vernon R. Cotton
Circuit Court Judge
205 East Main Street
Carthage, MS 39051
Honorable Mark Duncan
District Attorney, District 8
Post Office Box 603
Philadelphia, MS 39350
Further, I hereby certify that I have mailed by United States Postal Service the document
to the following non-MEC participants:
Edmund J. Phillips, Jr.,, Esq.
Post Office Box 178
Newton, Mississippi 39345
This the 21st day of March, 2016.
s/ Laura H. Tedder
LAURA H. TEDDER
SPECIAL ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
POST OFFICE BOX 220
JACKSON, MISSISSIPPI 39205-0220
TELEPHONE: (601) 359-3680
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