Jerry McBride v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01347-COA
JERRY MCBRIDE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
2/20/2008
HON. CHARLES E. WEBSTER
COAHOMA COUNTY CIRCUIT COURT
W. DANIEL HINCHCLIFF
OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
LAURENCE MELLEN
CRIMINAL - FELONY
CONVICTED OF SEXUAL BATTERY AND
SENTENCED TO TWENTY-FIVE YEARS IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED - 5/4/2010
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
A Coahoma County Circuit Court jury found Jerry McBride guilty of sexual battery
of his minor daughter.1 The trial court sentenced McBride to twenty-five years in the custody
of the Mississippi Department of Corrections (MDOC). McBride now appeals his conviction
and sentence, claiming that his right to a speedy trial was violated, and there was insufficient
1
The name of the victim is not identified to protect her identity.
evidence to sustain the verdict. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2.
In May 2006, McBride was indicted for sexual battery of his daughter, who was under
the age of fourteen at the time of the incident, pursuant to Mississippi Code Annotated
section 97-3-95(1)(d) (Rev. 2006). The indictment stated the battery occurred “on or about
or between January 2002, and December 2005" in Coahoma County.
McBride was
subsequently arrested, arraigned, and assigned a court-appointed attorney.
¶3.
McBride did not go to trial until several terms of court had passed. The court docket
indicates that in September 2007, an order setting trial was filed. Representations at the pretrial hearing indicated that this trial setting was for November 2007. Then, the record shows
that in December 2007, an order reset trial for January 2008, but in January 2008 an agreed
order reset trial to February 2008. In December 2007, McBride filed two pro se “Motion[s]
for Directed Verdict of Acquittal,” within days of one another, complaining that he had been
incarcerated for sixteen months in violation of his constitutional rights. Therefore, he asked
that the charges against him be dismissed. Additionally, he noted he never received a copy
of the indictment, never had a preliminary hearing, and never asked for a continuance of his
trial, among other complaints. Also, in January 2008, McBride, dissatisfied with his courtappointed attorney’s performance, filed a motion requesting termination of the services of
his attorney. Pretrial hearings were held on McBride’s motions, which were denied. The
trial judge, considering McBride’s pro se motions together, stated that McBride’s “most
significant complaint” was concerning the delay in his trial. However, the trial judge made
a detailed analysis of the appropriate factors outlined in Barker v. Wingo, 407 U.S. 514
2
(1972) regarding the speedy-trial complaint and found no prejudice.
¶4.
McBride’s trial commenced on February 19, 2008.
The State produced three
witnesses: the victim, a middle-school counselor, and a Department of Human Services
(DHS) specialist. The victim, who was eighteen years old at the time of trial, testified
regarding two sexual incidents with McBride. At the time of the sexual incident, she was
approximately eleven years old and McBride was living with his mother. He drove her and
his seven-year-old son to “a friend’s house,” which was in “the Brick Yard” in Clarksdale,
Mississippi. When they arrived at the house, nobody was home. McBride took his daughter
to the back of the house. He began hugging and touching her. Then, he pulled down her
pants, unzipped his pants, and put his penis in her vagina. She testified she fought and
screamed, but she did not tell anyone about the incident because she was scared.
¶5.
The victim also testified about a second sexual incident with McBride that occurred
when she was approximately fifteen years old. She and McBride went on the back roads
outside of Clarksdale in order to let her drive. McBride’s daughter testified she did not want
to go with him. When they were approximately thirty minutes from Clarksdale, while she
was driving, McBride began fondling her breasts and touching her between her legs, on top
of her clothes. The victim, who lives with her mother, admitted that McBride had been
mostly absent from her life and did not provide her money or material possessions. Also,
there was “bad blood” between her mother and her father, who did not live together. The
victim stated these were the only incidents of sexual abuse by her father.
¶6.
The next witness for the State was a counselor from Oakhurst Middle School in
Clarksdale. She testified that the victim approached her at school. Based on what the victim
3
told her, the counselor alerted DHS, which came to the school and interviewed the victim.
The last witness for the State, a family-protection specialist with DHS, explained she was
employed by DHS to investigate allegations of child abuse.
She testified that she
investigated the allegation and spoke with the victim, as well as the victim’s family members.
The victim had a “forensic interview” with DHS in December 2005.
¶7.
No witnesses testified for the defense. The jury returned a verdict of guilty, and
McBride was sentenced to twenty-five years in the custody of the MDOC. McBride filed a
motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial,
which was denied. The trial court granted McBride’s motion for an out-of-time appeal, and
he now appeals his conviction and sentence.
ANALYSIS
I.
¶8.
Speedy Trial
McBride claims that he was denied his constitutional and statutory rights to a speedy
trial, as he was incarcerated approximately nineteen months before being brought to trial.
McBride argues it was error for the trial court to dismiss his pro se motions to have the
charges dismissed; the dismissal was sought, in part, on his constitutional right to a speedy
trial. However, McBride did not argue before the trial court that his statutory right to a
speedy trial was violated; he raises this issue only on appeal.
¶9.
The standard of review regarding claims of speedy-trial violations is as follows:
Review of a speedy trial claim encompasses the fact question of whether the
trial delay rose from good cause. Under this Court’s standard of review, this
Court will uphold a decision based on substantial, credible evidence. If no
probative evidence supports the trial court's finding of good cause, this Court
will ordinarily reverse. The [S]tate bears the burden of proving good cause for
4
a speedy trial delay, and thus bears the risk of non-persuasion.
DeLoach v. State, 722 So. 2d 512, 516 (¶12) (Miss. 1998) (internal citations omitted).
A.
¶10.
The Constitutional Claim
The Sixth Amendment to the United States Constitution states that “the accused shall
enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. The Fourteenth
Amendment applies the federal constitutional right to the states. Klopfer v. North Carolina,
386 U.S. 213, 222-23 (1967). Also, Article 3, Section 26 of the Mississippi Constitution of
1890 guarantees the criminal defendant a right to “a speedy and public trial.” While there
is no set time that a defendant must be brought to trial, the United States Supreme Court has
set out factors to consider when a challenge is made on the issue of the constitutional right
to a speedy trial in Barker, 407 U.S. at 530. The factors are: (1) the length of the delay; (2)
the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4)
whether the defendant was prejudiced by the delay. Stark v. State, 911 So. 2d 447, 450 (¶7)
(Miss. 2005) (citing Barker, 407 U.S. at 530-32). No mathematical formula exists for
weighing and balancing the Barker factors, and no one factor is dispositive. The totality of
the circumstances must be considered. Jefferson v. State, 818 So. 2d 1099, 1106 (¶11) (Miss.
2002) (citing Barker, 407 U.S. at 530).
¶11.
The following time line of events is pertinent to the Barker analysis:
May 30, 2006:
McBride’s indictment
August 4, 2006:
McBride served with capias, arrested
August 10, 2006:
McBride arraigned
August 10, 2006:
McBride appointed an attorney
5
September 21, 2007:
Docket entry (read in conjunction with hearing
transcript) reflects trial setting for November 2007
December 21, 2007:
Order setting trial for January 22, 2008
December 26, 31, 2007
McBride files two pro se “Motion[s] for Directed Verdict
of Acquittal” requesting dismissal of his case, for reasons
including violation of his right to a speedy trial
January 7, 2008:
Agreed order resetting trial for February 19, 2008
February 19, 2008:
McBride’s trial
For constitutional speedy-trial claims, both the United States Supreme Court and the
Mississippi Supreme Court have clearly held that the starting point for the calculation of the
time begins with the defendant’s formal indictment or information or arrest. United States
v. Marion, 404 U.S. 307, 320 (1971); Stark v. State, 911 So. 2d 447, 450 (¶7) (Miss. 2005)
(citing Smith v. State, 550 So. 2d 406, 408) (Miss. 1989)); Price v. State, 898 So. 2d 641, 647
n.1 (Miss. 2005) (citing Doggett v. United States, 505 U.S. 647, 655 (1992)). Thus, the
precise point at which the right attaches is when the individual has been accused. Stark, 911
So. 2d at 450 (¶7) (citing Hersick v. State, 904 So. 2d 116, 121 (¶5) (Miss. 2004)); Beavers
v. State, 498 So. 2d 788, 790 (Miss. 1986) (overruled on other grounds) (citing Perry v. State,
419 So. 2d 194, 198 (Miss. 1982)). The Beavers court explained that “[o]ne’s right to a
speedy trial as a matter of common sense has reference to that point in time when the
prosecution may begin to crank up the machinery of the criminal justice process.” Beavers,
498 So. 2d at 790. Beavers continues that the point of beginning is “the time of arrest or
indictment, whichever comes first.” Id. at 790 n.2 (quoting United States v. Gonzalez, 671
F.2d 441, 444 (11th Cir. 1982); United States v. Walters, 591 F.2d 1195, 1200 (5th Cir.
6
1979)); see also Price v. State, 898 So. 2d 641, 647 n.1 (Miss. 2005) (commencement of
speedy-trial period “begins when a person is ‘accused,’ which can be arrest, indictment, or
any formal charge, whichever is first to occur”). Therefore, McBride’s constitutional right
to a speedy trial attached when he was indicted on May 30, 2006.2
1.
¶12.
Length of the Delay
Any delay over eight months is considered presumptively prejudicial, thereby
triggering a full Barker analysis. Stark, 911 So. 2d at 450 (¶7) (citing Smith v. State, 550 So.
2d 406, 408 (Miss. 1989)). Here, as stated earlier, McBride’s trial was held approximately
seventeen months from the date of his indictment; thus, the delay is presumptively
prejudicial, and a Barker balancing test is required.
2.
¶13.
Reason for the Delay
The second factor considers the reason for the delay. Stark, 911 So. 2d at 450 (¶7)
(citing Barker, 407 U.S. at 530-32). Once the delay is found presumptively prejudicial, “the
burden of proof shifts to the State to show cause for the delay.” Id. at (¶11) (citing Price v.
State, 898 So. 2d 641, 647 (¶10) (Miss. 2005)). However, not all reasons for a delay in trial
2
We note that in the trial judge’s order determining that McBride’s delay was
presumptively prejudicial, he made the determination from the point of McBride’s arrest.
Here, the indictment pre-dates the arrest; so the right to a speedy trial attached at the point
of the indictment. We acknowledge that there is some Mississippi case law that merely
states the constitutional right to a speedy trial attaches at the point of “arrest,” (see, e.g.,
Murray v. State, 967 So. 2d 1222, 1230 (¶23) (Miss. 2007) (citing Atterberry v. State, 667
So. 2d 622, 626 (Miss. 1995)) which is accurate most of the time, as pre-arrest indictments
are much less prevalent in state court than in federal court. See Beavers, 498 So. 2d at 790 .
However, because this authority has only been citing only a portion of the relevant precedent
(that the right attaches at the earlier of indictment, information, or arrest), it has lead to some
confusion, such as in the case at bar.
7
are cause for dismissal of the charge on the speedy-trial grounds. Different reasons for the
delay are given different weights. Birkley v. State, 750 So. 2d 1245, 1250 (¶16) (Miss. 1999)
(citing Barker, 407 U.S. at 531). For example, if the State deliberately attempts to delay the
trial in order to hamper the defense, it should be weighed against the State. Neutral reasons
for delay such “as negligence or overcrowded dockets” are weighed less heavily against the
State, but will be considered. Bonds v. State, 938 So. 2d 352, 357 (¶11) (Miss. Ct. App.
2006) (citing Barker, 407 U.S. at 531). Additionally, a missing witness is a valid reason
justifying appropriate delay. Birkley, 750 So. 2d at 1250 (¶16) (citing Barker, 407 U.S. at
531).
¶14.
In the instant case, the trial court, after a detailed analysis, court term by court term,
found the delay attributed to several reasons, none of which could be weighed heavily against
the State, and we agree. Reasons given were the timing of McBride’s arrest during the court
term, the timing of the mini-terms, administrative oversight or mere negligence, docket
overcrowding, and the availability of a key witness for the State.3
¶15.
The trial court found that the next term of court, after McBride was indicted, began
in July 2006; however, McBride was not taken into custody until August 4, 2006, which was
midway through the court term. Therefore, his case was not placed on the trial calendar for
3
The dissent criticizes the majority for finding an overcrowded docket was the sole
reason for the circuit court’s delay and instead contends the reason for the delay was
McBride was “lost in the system”; thus, his constitutional right to a speedy trial was violated,
and he should be released. The dissent cites to Yarber v. State, 573 So. 2d 727, 729 (Miss.
1990) for support of this contention, claiming the defendant in this case was discharged
because his trial was carried over to the trial court’s next term of court without any
explanation for the delay. However, Yarber is distinguishable from the instant case, because
we have a detailed explanation of the delays by the State and the trial court.
8
that term. This delay cannot be attributed to the State.
¶16.
The next term of court available for McBride was a non-regular mini-term held in
November 2006. However, the mini-term addressed those cases which had been scheduled
but were untried from the July 2006 term. The trial court found that because McBride’s case
was not set for the July 2006 term, it was not placed on the November 2006 mini-term.
¶17.
January 2007 was the next regular term of court. The trial court found that “through
no deliberate efforts on the part of the State,” McBride’s case “was simply left off” the trial
calendar for the January 2007 term of court because of the “crunch of cases being set for
trial” during this term. The trial court found this failure regrettable, but it attributed the delay
“to mere negligence or oversight.” The trial court found McBride’s case was not put on the
July 2007 term of court for the same reason.
¶18.
The next term of court was a mini-term in November 2007, and McBride’s case was
then set for trial, pursuant to an order dated September 2007 (as indicated by docket entry
and representations at the pre-trial hearing). However, because of an overcrowded docket,
the case was not heard. Additionally, the State’s witness, who conducted the forensic
interview with the victim, was no longer employed by DHS; thus, the State had to find
another expert witness. McBride’s case was then set for trial in the January 2008 term on
January 22, 2008. However, by agreement of both counsel for the prosecution and defense,
and because the State’s alternate expert witness on child abuse was not available on this date
due to maternity leave, the case was reset for the same term on February 19, 2008.
Additionally, in a hearing on February 14, 2008, McBride requested a continuance in order
to have potential new counsel become familiar with his case.
9
¶19.
The reason of an overcrowded docket can only be weighed slightly against the State.
Therefore, we cannot find that the trial court abused its discretion in finding that there was
no evidence that the State deliberately delayed McBride’s trial. Thus, this factor should not
be weighed heavily against the State.
3.
¶20.
Assertion of the Right
The third Barker factor is whether the defendant asserted his right to a speedy trial.
Stark, 911 So. 2d at 450 (¶7) (citing Barker, 407 U.S. at 530-32). While a defendant has no
duty to bring himself to trial, he will gain “more points” under this factor if he has asserted
his right to a speedy trial. Brengettcy v. State, 794 So. 2d 987, 994 (¶17) (Miss. 2001)
(quoting Jaco v. State, 574 So. 2d 625, 632 (Miss. 1990)). “[F]ailure to assert the right will
make it difficult for a defendant to prove that he was denied a speedy trial.” Barker, 407
U.S. at 532. “However, a demand for a speedy trial is distinct from a demand for dismissal
due to violation of the right to a speedy trial.” Brengettcy, 794 So. 2d at 994 (¶17) (citing
Perry v. State, 637 So. 2d 871, 875 (Miss. 1994)). A motion for dismissal seeks discharge,
not trial. Perry, 637 So. 2d at 875 (citing Adams v. State, 583 So. 2d 165, 170 (Miss. 1991)).
¶21.
Here, McBride filed two pro se motions to dismiss his charges due, in part, to a
violation of his constitutional right to a speedy trial. The record does not reflect that
McBride ever filed a motion demanding a speedy trial. We also note that these motions were
the first time McBride or his trial counsel had complained about the delay in his trial.
Further, McBride filed these motions in December 2007, after the order of December 21,
2007, which set trial for one month later on January 22, 2008. Accordingly, with these
motions, McBride was not trying to have his case heard but, rather, have it dismissed. We
10
conclude the trial court correctly found this factor did not weigh in favor of McBride.
4.
¶22.
Prejudice
The fourth Barker factor is prejudice to the defendant. Stark, 911 So. 2d at 450 (¶7)
(citing Barker, 407 U.S. at 530-32). The United States Supreme Court has held that
prejudice to the defendant be assessed according to the following interests: “(1) to prevent
oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused, and (3)
to limit the possibility that the defense will be impaired. The last interest is the most
important and, if violated, is the most prejudicial to the defendant.” Id. at 452-53 (¶28)
(citing Barker, 407 U.S. at 532).
¶23.
When asked by the court about prejudice, McBride only claimed that matters would
be “fresher” in his mind if he had been tried earlier. We agree with the trial court that this
is not a significant prejudice, and more importantly, we find no evidence that McBride’s
defense was impaired by the delay in trial. The dissent chastises defense counsel for not
speaking up on McBride’s behalf when asked about possible prejudice he suffered, but we
do not have the same impression of the proceedings. Counsel attempted to explain to his
client what the judge was asking. Further, there is nothing in the transcript to show that
counsel would have brought up anything different than McBride in response to the judge’s
questions. Furthermore, surely the judge was well aware that pretrial incarceration, anxiety,
and concern are a form of prejudice. We also note that although McBride is now represented
by different counsel on appeal, no further evidence of possible prejudice to McBride was
identified in the appellate brief.
¶24.
The court’s final obligation under Barker is to weigh the factors on a case-by-case
11
basis. Birkley, 750 So. 2d at 1253 (¶30) (citing Kinzey v. State, 498 So. 2d 814, 816 (Miss.
1986)). Taking the four factors and the totality of the circumstances into consideration, while
there was a delay in McBride’s trial, there is no evidence the State deliberately created the
delay, nor did McBride object in any way to the delay until the case was set for trial a month
later. When McBride did object, he requested the charges be dropped; he did not request that
the case be heard sooner. Lastly and most importantly, there was no prejudice to McBride’s
defense due to the delay. The trial court carefully and thoroughly examined the evidence
relevant to the Barker analysis. While the delay was regrettable, we conclude the trial court
was correct in finding McBride’s constitutional right to a speedy trial was not violated.
B.
¶25.
Statutory Right
The right to a speedy trial is also guaranteed by Mississippi Code Annotated section
99-17-1 (Rev. 2007), which states: “Unless good cause be shown, and a continuance duly
granted by the court, all offenses for which indictments are presented to the court shall be
tried no later than two hundred seventy (270) days after the accused has been arraigned.”
McBride is correct that the trial court did not make mention of his statutory right to a speedy
trial in his written order; however, McBride did not raise the issue of violation of his
statutory right to a speedy trial in his motion for dismissal. Even so, we shall consider the
merits of this issue because the statutory 270-day requirement was addressed by the
prosecution and defense at the hearing on the motions.
¶26.
McBride was arraigned on August 10, 2006. McBride’s trial was not until February
19, 2008, well past the 270-day requirement, and no continuances were filed or granted.
However, McBride did not file his motions to dismiss, which were partially based on a
12
constitutional speedy trial violation, until December 26 and 31, 2007, well past the 270-day
requirement. Additionally, as stated earlier, McBride only raised his constitutional right to
a speedy trial, not his statutory right, in his motions to dismiss.
¶27.
This Court and the supreme court have held that if a defendant fails to raise this issue
within 270 days of his arraignment, he “effectively acquiesced to the delay.” Malone v.
State, 829 So. 2d 1253, 1257 (¶11) (Miss. Ct. App. 2002); see also Walton v. State, 678 So.
2d 645, 649-50 (Miss. 1996). We also agree with the State that Guice v. State, 952 So. 2d
129 (Miss. 2007) is analogous to the case currently before us. In Guice, the supreme court
held the defendant waived his statutory right to a speedy trial within 270 days of arraignment
because he did not complain about not being tried until 463 days after arraignment. Id. at
141-42 (¶¶26, 29). Phelan Guice complained by way of a pro se motion to dismiss for failure
to provide a speedy trial. Id. at 141 (¶26). The Guice court concluded that “a defendant does
have some responsibility in asserting the right to a speedy trial.” Id. (citing Taylor v. State,
672 So. 2d 1246, 1261 (Miss. 1996)). Here, McBride did not raise his statutory right to a
speedy trial specifically. When he raised his constitutional right to a speedy trial, it was well
past the 270-day requirement of the statute. Accordingly, this issue is without merit.
II.
¶28.
Sufficiency of the Evidence
McBride raises a specific point regarding the sufficiency of the evidence: he claims
the State did not prove the element of the victim’s age within the time frame of the
indictment and subsequent jury instructions. The indictment stated that McBride sexually
penetrated the victim, who was under the age of fourteen, “on or about or between January
2002, and December 2005.” McBride argues that the only evidence introduced at trial was
13
that the victim was eleven years old during the time of the sexual battery, and since she was
born on November 11, 1989, the incident could not have occurred on a date after January
2002, as the indictment and jury instructions state.
¶29.
Although not mentioned by McBride, this issue relates to the trial court’s denial of his
motion for a directed verdict or his motion for a JNOV. Both a motion for directed verdict
and a motion for JNOV challenge the sufficiency of the evidence presented to the jury. Bush
v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). “[T]he critical inquiry is whether the
evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and
that he did so under such circumstances that every element of the offense existed.’” Id.
(quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). If the facts and inferences “point
in favor of the defendant on any element of the offense with sufficient force that reasonable
men could not have found beyond a reasonable doubt that the defendant was guilty,” this
Court must reverse and render. Id. (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss.
1985)). However, if the evidence is such that, “‘having in mind the beyond a reasonable
doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial
judgment might reach different conclusions on every element of the offense,’ the evidence
Id.
will be deemed to have been sufficient.”
All credible evidence supporting the
defendant’s guilt will be accepted as true, and the evidence will be considered in the light
most favorable to the State. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993).
¶30.
McBride was charged with sexual battery under section 97-3-95(1)(d), which states,
in pertinent part, 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
14
twenty-four (24) or more months older than the child.” The instruction to the jury regarding
these elements states that the jury must “find from the evidence in this case beyond a
reasonable doubt that . . . McBride, on or about or between January 2002 and December
2005, in Coahoma County, Mississippi, did unlawfully, willfully and feloniously, engage in
sexual penetration by inserting his penis into the vagina of [the victim],” that she was a
female child, under the age of fourteen years of age, and that McBride was her father, “then
you shall find the Defendant guilty of Sexual Battery.” (Emphasis added.)
¶31.
We note testimony was presented at trial showing the crime of sexual battery occurred
during the first incident when McBride took the victim to his friend’s house, not during the
second incident when he and the victim went for a drive. The victim testified during direct
examination that she was “around eleven” at the time of the first incident. During crossexamination, she admitted that she told the DHS forensic interviewer she was around thirteen
or fourteen years old the time of the first incident, but she was mistaken. On redirect, the
victim stated that she could have been twelve years old when the crime occurred.
¶32.
McBride is factually correct that the victim was actually twelve years old in January
2002, the time of the sexual battery. Regardless, there was sufficient evidence presented to
the jury that the victim was under the age of fourteen during the first incident, which is the
requirement of the statute.
She admitted that her age of eleven or twelve was an
approximation, which is completely reasonable under the circumstances. Further, there was
no testimony presented at trial that she was over the age of fourteen at the time of the first
incident.
¶33.
The time frame in the indictment and jury instructions of the sexual battery was an
15
approximation, which is proper. In Baker v. State, 930 So. 2d 399, 404-05 (¶¶8-10) (Miss.
Ct. App. 2005), this Court found the broad time span of an indictment for sexual battery of
one-and-one-half to two-and-one-half years was not improper as the time frame provided by
the indictment was not a necessary element of the offense. Here, as long as sufficient
evidence at trial proved the victim was under the age of fourteen during the first incident, the
time frame of the incident is not relevant because it is not an element of the crime.
¶34.
The dissent would have this Court discharge McBride from the custody of the MDOC
because no reasonable juror could conclude that McBride had sexually penetrated his
daughter “between” January 2002 and December 2005. However, we note the indictment
does not state “between” January 2002 and December 2005, as the dissent contends, but “on
or about or between” January 2002 and December 2005, and there is no need for the date in
the indictment to be more specific. The only time an exact date would be necessary is if the
date were jurisdictional. However, here the exact date of the crime is not jurisdictional, since
the evidence of when the sexual battery occurred was not near the date of the victim’s
fourteenth birthday, November 11, 2003.
¶35.
The dissent also claims McBride needs to be released because there is inconsistent
testimony about the victim’s age during the sexual battery which contributes to insufficient
evidence for a conviction. However, we find no error in this regard. It is not uncommon in
cases dealing with the sexual crimes against a child-victim that the time of the crime is less
specific in the indictment. Because of the very nature of the crime, it is secret and not
discovered, if at all, until years later. Further, the trauma of sexual crimes, especially against
a child, makes it very difficult for the victim to identify an exact date of the crime.
16
Additionally, we note that the defense in this case made no objection to the indictment as
written and never filed a motion to quash or amend the indictment. While the testimony of
the victim as to her age during the incident’s time frame is vague, we maintain that, viewing
the evidence in the light most favorable to the State, there is sufficient evidence for a
reasonable juror to find that the victim was sexually battered well before her fourteenth
birthday and within the parameters of the indictment’s stated dates of “on or about or
between” January 2002 and December 2005.
CONCLUSION
¶36.
The trial court did not err in dismissing McBride’s motion to dismiss the charges.
Further, there was no violation of McBride’s constitutional or statutory rights to a speedy
trial. Finally, the trial court did not err in denying McBride’s motion for a directed verdict
or his motion for a JNOV as there was sufficient evidence to convict him of sexual battery.
Accordingly, we affirm the trial court’s judgment.
¶37. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY-FIVE
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO COAHOMA COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING AND MAXWELL, JJ.,
CONCUR. ROBERTS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY GRIFFIS AND ISHEE, JJ.
ROBERTS, J., DISSENTING:
¶38.
The majority finds no error with the circuit court’s determination regarding Jerry
McBride’s right to a speedy trial. Additionally, the majority finds that the evidence against
McBride was sufficient to sustain the jury’s guilty verdict. With utmost respect for the
17
majority, although I find the charges against McBride to be morally reprehensible, I am
compelled to dissent.
I.
¶39.
Speedy Trial
The majority finds no error in the circuit court’s decision that neither McBride’s
constitutional right nor his statutory right to a speedy trial were violated. In so doing, the
majority holds that although the delay is presumptively prejudicial, the circuit court’s
“overcrowded docket” should not be weighed heavily against the State. Additionally, the
majority concludes that the circuit court correctly found that the “assertion-of-right” factor
did not weigh in McBride’s favor. Finally, the majority concludes that the circuit court did
not err when it found that McBride’s defense did not suffer due to the delay and McBride,
therefore, did not experience prejudice due to the “regrettable” seventeen-month delay in
bringing him to trial.
¶40.
The majority notes that the seventeen-month delay in bringing McBride to trial is
presumptively prejudicial and, thus, requires an examination of the four-factor balancing test
set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972). The majority then agrees with the
circuit court’s conclusion that the delay in bringing McBride to trial should not be “weighted
heavily against the State.” The circuit court held that McBride was not tried timely because
of the following reasons: (1) the timing of McBride’s arrest relative to the timing of the July
2006 term of court; (2) the November 2006 “mini-term” only addressed cases which had
been scheduled and not tried during the July 2006 term; (3) “mere negligence” involved with
losing McBride in the system during the January 2007 term of court; (4) additional “mere
negligence” in failing to realize that McBride was incarcerated in the county jail while
18
awaiting trial during the July 2007 term of court; and (5) an overcrowded docket during the
November 2007 term of court combined with a missing expert witness for the prosecution.4
The majority then holds that the overcrowded docket can only be weighed slightly against
the State.
¶41.
Respectfully, the majority’s conclusion is flawed because the circuit court’s
“overcrowded docket” was never a reason for any delay. What is more, the majority states
that McBride’s case was set for trial pursuant to an order dated September 2007. On April
10, 2009, this Court entered an order granting the State’s motion to supplement the record.
In the order, this Court specifically requested that the supplementation include the order
setting the docket on September 21, 2007. The supplement to the record contains two
documents: (1) an order dated December 12, 2007, setting a number of cases, including
McBride’s, for trial on January 22, 2008, and (2) an order resetting McBride’s trial for
February 19, 2008. Although the clerk’s docket entries contain a stamped notation indicating
that an order setting McBride’s case was filed on September 21, 2007, this Court has seen
no such order – not even when we specifically requested it. The State has failed to produce
that order. To find that one was actually filed on that date when there is no actual order in
the record before us is tantamount to assuming facts that simply are not in the evidence.
¶42.
In Yarber v. State, 573 So. 2d 727, 729 (Miss. 1990), the Mississippi Supreme Court
reversed a conviction and discharged Clinton Yarber based on the supreme court’s finding
4
The administrative errors in this case serve as a perfect example of why Rule 8.01
of the Uniform Rules of Circuit and County Court was modified effective July 1, 2008, to
include a provision requiring that the trial court shall enter an order setting a date for trial
“[a]t or within sixty (60) days of arraignment (or waiver thereof).”
19
that Yarber’s rights to a speedy trial had been violated. In Yarber, the State argued that there
was good cause for a delay of between 294 and 301 days because the trial court’s docket was
congested. Id. The only continuances that appeared in the record in Yarber were notations
in the trial court’s minute book indicating that “[a]ll cases not otherwise disposed of are
hereby ordered continued to the next regular term of court.” Id. at 728.
¶43.
The facts in this case are more egregious than the facts in Yarber. In Yarber, a
defendant’s case was carried over to a trial court’s next term of court without any explanation
for the delay. Id. The supreme court found it unnecessary to include a “detailed discussion
of the constitutional speedy[-]trial claim,” but it held that “applying the balancing test
announced in [Barker] it appears that [the constitutional right to a speedy trial] was also
violated.” Id. at 729. McBride’s trial was not delayed due to an overcrowded docket for the
sixteen months that preceded the January 2008 term of court. Instead, the circuit court
characterized McBride as being “lost in the shuffle.” The prosecution stated that its “best
guess” was that the delay in bringing McBride to trial was “an administrative snafu.” The
prosecution also noted that “there is simply no documentation in the record as to why or why
not.”
¶44.
There can be no justifiable excuse for such gross negligence. I cannot agree that the
delay in this case should be weighed the same as if the delay was attributable to an
overcrowded docket. An overcrowded docket is not necessarily attributable to governmental
negligence.
I would hold that this Court cannot sanction the gross negligence that
accompanies losing someone in the system for seventeen consecutive months by applying
the same weight that accompanies a delay in bringing someone to trial due to an overcrowded
20
docket. I would also hold that the circuit court applied an erroneous legal standard when it
applied the weight associated to a crowded trial docket to facts that clearly indicate that the
most significant portion of the delays were because McBride was lost in the system. From
the date of arraignment on August 10, 2006, until some sixteen months later in December
2007 there is no order or entry in the record indicating that McBride’s case was ever set on
the docket for trial. McBride sat incarcerated the entire time. The first order setting his case
for trial was filed on December 21, 2007, when the circuit court entered one generic order
setting all cases for trial during the January/February 2008 term of court. McBride’s was set
initially on January 22, 2008.
¶45.
As for the “assertion-of-the-right” prong of the Barker analysis, I do not disagree with
the majority’s conclusion that McBride did not assert his rights to a speedy trial in his pro
se motions.5 To clarify, however, that does not mean that this factor weighs against
McBride. “[A] defendant has no duty to bring himself to trial.” Nations v. State, 481 So. 2d
760, 761 (Miss. 1985) (quoting Barker, 407 U.S. at 527; Turner v. State, 383 So. 2d 489,
491 (Miss. 1980)). “It is the State that bears the burden of bringing the accused to trial in a
speedy fashion.” Atterberry v. State, 667 So. 2d 622, 627 (Miss. 1995) (citations omitted).
While a defendant may have some responsibility to assert his speedy-trial claim, the primary
burden is on the court and prosecutor to assure that they bring the case to trial. Simmons v.
State, 678 So. 2d 683, 687 (Miss. 1996). By failing to assert his speedy-trial rights, McBride
5
In some contexts, we take pro se status into account so that meritorious claims are
not lost simply due to inartful drafting. Gatewood v. State, 909 So. 2d 754, 756 (¶4) (Miss.
Ct. App. 2005).
21
merely lost his opportunity to acquire “points” under this factor. Id.
¶46.
Next, the majority finds that the circuit court correctly held that McBride did not
suffer “significant prejudice” based on the State’s delay in bringing him to trial. The three
traditional forms of prejudice that may result from a denial of the right to a speedy trial are:
(1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and (3)
impairment of a defense. Barker, 407 U.S. at 532; Atterberry, 667 So. 2d at 627. A
defendant is not required to demonstrate prejudice to prove that his right to a speedy trial was
violated. Id. However, “an absence of prejudice weighs against a finding of a violation.”
Id.
¶47.
The majority notes that McBride’s only claim of prejudice was that matters would be
“fresher” in his mind if he had been tried earlier. The transcript of the pretrial hearing on the
motions in which McBride sought a verdict in his favor due to alleged speedy-trial violations
indicates that the circuit court asked McBride whether he wanted to respond to the circuit
court’s questions or whether McBride wanted his court-appointed attorney to respond.
McBride indicated that his court-appointed attorney could address the circuit court’s
questions. Even so, when the circuit court asked how McBride had been prejudiced by the
delay, McBride’s court-appointed attorney did not respond on McBride’s behalf despite
McBride’s repeat assertions that he did not understand the circuit court’s questions.6 The
6
McBride had previously sought to dismiss his court-appointed defense attorney for
his failure to provide McBride with any meaningful assistance. In a January 3, 2008, pro se
motion styled as a “motion to withdraw counsel,” McBride stated that he had written to The
Mississippi Bar in an effort to get his attorney to contact him and inform him of the status
of his case. McBride also claimed that he had filed “complaints” against his court-appointed
attorney in the Coahoma County Circuit Court. Within the same motion, McBride also
22
circuit court is to be commended for attempting to clarify its questions to McBride, but in
discussing possible ways McBride could have experienced prejudice due to the delay in
bringing him to trial, the circuit court only discussed prejudice in the form of an impaired
defense. McBride was not informed by the circuit court or his court-appointed attorney that
oppressive pretrial incarceration or anxiety and concern of the accused were also forms of
prejudice caused by a delay in bringing someone to trial.
¶48.
I would find that the circuit court misapplied the facts of this case when it weighed
the reason for the delay as though the delay was due to the circuit court’s congested docket.
A congested docket is totally irrelevant when the defendant’s case was never set on the
docket. The State bore the burden of persuasion, and the prosecution indicated that a
significant portion of the delay was due to an “administrative snafu.” Regardless of the
euphemism used to describe the reason McBride was in jail for 630 days before he was
finally brought to trial, I would hold that losing a defendant in the system for sixteen months
while he remains in jail is more egregious than mere negligence. The fact that McBride did
not technically assert his right to a speedy trial, despite his pro se motions to have his case
dismissed for the failure to provide him with a speedy trial, does not weigh for or against
McBride. Additionally, I would find that confusion on McBride’s part as well as the fact that
he was not aware of the various types of prejudice caused by a delay in bringing someone
to trial, which includes what is clearly oppressive pretrial incarceration, contributed to his
response when he, rather than his court-appointed attorney, was required to describe the
stated that he had “filed suit” against his court-appointed attorney in the United States
District Court.
23
prejudice he had experienced. Because the majority finds no error, I respectfully dissent.
II.
¶49.
Sufficiency of the Evidence
McBride contends in his brief to this Court that given the victim’s testimony regarding
her age at the time of the sexual battery a jury could not have reached a verdict of guilty
based upon the jury instruction given to them relating the elements of the crime.7 Based
upon Baker v. State, 930 So. 2d 399 (Miss. Ct. App. 2005), the majority comes to the
conclusion that “as long as sufficient evidence at trial proved the victim was under the age
of fourteen during the first incident, the time frame of the incident is not relevant because it
is not an element of the crime.” Reluctantly and with a heavy heart, I cannot agree to affirm
McBride’s conviction.
¶50.
When considering whether the evidence is sufficient to sustain a conviction in the face
of a motion for a directed verdict or for a JNOV, the critical inquiry is whether the evidence
shows “beyond a reasonable doubt that the accused committed the act charged, and that he
did so under such circumstances that every element of the offense existed; and where the
evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895
So. 2d 836, 843 (¶16) (Miss. 2005) (citing Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)).
Hence, the relevant question is “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Dilworth v. State, 909 So. 2d 731, 736 (¶17) (Miss.
2005). The supreme court explained in Dilworth that:
7
In order to protect the identity of the victim, who was a minor child at the time of
the sexual batteries, I will refer to her through the use of the pseudonym “Mary.”
24
Should the facts and inferences considered in a challenge to the sufficiency of
the evidence “point in favor of the defendant on any element of the offense
with sufficient force that reasonable men could not have found beyond a
reasonable doubt that the defendant was guilty,” the proper remedy is for the
appellate court to reverse and render, i.e. reverse and discharge. However, if
a review of the evidence reveals that it is of such quality and weight that,
“having in mind the beyond a reasonable doubt burden of proof standard,
reasonable fair-minded men in the exercise of impartial judgment might reach
different conclusions on every element of the offense,” the evidence will be
deemed to have been sufficient.
Id. (internal citations omitted).
¶51.
McBride was indicted on May 30, 2006. His indictment was labeled at the top of the
form, “SEXUAL BATTERY MCA Section 97-3-95.” It alleged that he “on or about or
between January 2002, and December 2005 . . . did unlawfully, wilfully[,] and feloniously
engage in sexual penetration with [the victim], a female child under the age of fourteen (14)
years, by inserting his penis into her vagina, when he, the said Jerry McBride, was her father
. . . .” The State’s first witness was Mary. She testified that she was born on November 11,
1989, and was eighteen years old at the time of trial. She stated that she was “around eleven”
years old the one time McBride sexually battered her, although she was not sure of the exact
date that it had happened. To the best of her recollection, McBride was “in his 40s” at the
time of this incident. Additionally, Mary testified that her brother was outside in a vehicle
when McBride took her inside a house and committed the sexual battery. She testified that
her brother was seven years old at that time, and he was fourteen years old at the time of trial.
Mary testified that the event frightened her, and she fought back, but she did not tell anyone
about it because she was scared and ashamed. She then stated that she was fifteen years old
at the time of the fondling incident. The record reflects that this was an allegation of lustful
25
touching of her exterior clothing, and not sexual battery.
¶52.
During cross-examination, Mary stated that she was in the third or fourth grade at the
time of the sexual battery and in the sixth grade at the time of the fondling. However, she
claimed to have been held back two times during this period, and she estimated that there
were five years between the two incidents. Further, Mary stated that her brother was “about
10" years old at the time of the fondling incident.
¶53.
McBride’s attorney then asked Mary a series of questions relating to her December
5, 2005, interview with Ejeera Slemer Joiner, the child-abuse forensic examiner in Oxford,
Mississippi. Mary testified that the interview occurred two days after the fondling incident.
Additionally, she admitted to telling Joiner that she was thirteen or fourteen years old at the
time of the sexual battery, but she clarified that she was actually “around 11,” stating that she
“wasn’t sure” about her age at the time of the sexual battery when she spoke to Joiner.
¶54.
To further shed doubt on the accuracy of her recollection, during further cross-
examination Mary stated that she was ten or eleven at the time of the sexual battery. Then
on redirect examination the prosecutor attempted to rehabilitate Mary and asked, “You think
you were around 11; is that right?” Mary stated, “Yes, sir.” Then she was asked, “You could
have been 12?” Mary again stated, “Yes, sir.” Inextricably, the State never requested an
amendment to the indictment to correct the time period alleged in the indictment to conform
to the proof.
¶55.
The final two witnesses did not add anything to aid the jury’s consideration of
McBride’s guilt or innocence. Loria Perkins testified next for the State. The essence of her
testimony was that she was a school counselor at Mary’s school at the time of the fondling
26
incident and that in November 2005, Mary told her “something” that caused Perkins to
contact the Mississippi Department of Human Services (DHS).8 The State’s final witness
was Christina Shumpert, a family-protection specialist with the DHS. She stated that she
first came into contact with Mary in November 2005 as a result of an allegation made to the
DHS. Shumpert testified that Joiner conducted a forensic interview in December 2005. At
this point, the State rested its case, and McBride’s attorney moved the trial court for a
directed verdict, which was denied.
subsequently rested its case.
McBride chose not to testify, and the defense
The State’s entire case was presented to the jury in
approximately an hour-and-a-half from 3:04 p.m. until 4:31 p.m. on February 19, 2008.
¶56.
The circuit court then read the jury instructions to the jury. McBride’s defense
attorney did not object to the elements instruction titled instruction C-11. Instruction C-11
states:
The Defendant, JERRY MCBRIDE, has been charged by indictment with the
crime of Sexual Battery.
If you find from the evidence in this case beyond a reasonable doubt
that:
1. the Defendant, JERRY MCBRIDE, on or about or between
January 2002 and December 2005, in Coahoma County,
Mississippi, did unlawfully, willfully[,] and feloniously, engage
in sexual penetration by inserting his penis into the vagina of
[Mary], and
2. that [Mary] was a female child,
8
This information from Mary apparently led to charges against Mary’s maternal
uncle, William Jenkins, for multiple sexual batteries. Discussions in the record by the circuit
court indicate that Jenkins had pled guilty, been convicted, and was in prison when
McBride’s trial occurred.
27
3. under the age of fourteen (14) years of age,
4. when the Defendant, JERRY MCBRIDE, was the father of
[Mary], then you shall find the Defendant guilty of Sexual
Battery[.]
If the State has failed to prove any one or more of these elements
beyond a reasonable doubt, then you shall find the Defendant not guilty.9
(Footnote added). Mississippi Code Annotated section 97-3-95 (Rev. 2006) states that:
(1) A person is guilty of sexual battery if he or she engages in sexual
penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically
helpless person;
(c) A child at least fourteen (14) but under sixteen (16) years of
age, if the person is thirty-six (36) or more months older than the
child; or
(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.
(2) A person is guilty of sexual battery if he or she engages in sexual
penetration with a child under the age of eighteen (18) years if the person is in
a position of trust or authority over the child including without limitation the
child's teacher, counselor, physician, psychiatrist, psychologist, minister,
priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt,
uncle, scout leader or coach.
It is unclear from McBride’s indictment under which subsection the State wished to proceed.
9
The indictment did not include any requirement that McBride be in a position of
trust or authority over Mary. The failure to charge position of trust or authority under
section 97-3-95(2) appears not accidental since the proof indicated otherwise. The evidence
showed that McBride lived in Atlanta, Georgia, apparently was never married to Mary’s
mother, had infrequent contact with Mary, paid no child support, and apparently played no
significant part in Mary’s life other than being her biological father.
28
The age of the victim at the time of the offense is an essential element under sections 97-395(1)(c), 97-3-95(1)(d), and 97-3-95(2). I note that jury instruction C-11 does not conform
to any of the variations of sexual battery listed in section 97-3-95. At best, it is a merging
of sections 97-3-95(1)(d) and 97-3-95(2) that excludes essential elements of both
subsections. Therefore, the jury in McBride’s case could not have made the necessary
findings of fact required by section 97-3-95. Notwithstanding this deficiency, McBride’s
trial counsel did raise the issue of the lack of sufficient evidence at trial and on appeal.
While I am in complete agreement with the majority that Mary’s testimony is sufficient to
sustain a charge of sexual battery against McBride, I am convinced that her testimony is
insufficient to sustain a charge of sexual battery either as charged in McBride’s indictment,
or jury instruction C-11, as written.
¶57.
I note here that I do not find Baker to be determinative of the outcome of this case as
it addressed due-process considerations of an indictment and whether Steven Baker’s
indictment adequately informed him of the charge against him. Baker, 930 So. 2d at 404-07
(¶¶8-15). The issue raised by McBride concerns the sufficiency of the evidence against him
given the charge of sexual battery as alleged in the indictment and jury instruction C-11. To
that end, the State, not the defendant, must shoulder the burden of instructing the jury on the
essential elements of the crime. Pollard v. State, 932 So. 2d 82, 87 (¶11) (Miss. Ct. App.
2006). In this case, the State did, in fact, ensure that an offense-tracking instruction was
presented to the jury in the form of instruction C-11. However, as noted above, instruction
C-11 required the jury to find, beyond a reasonable doubt, that “the Defendant, JERRY
MCBRIDE, on or about or between January 2002, and December 2005” committed the
29
alleged act of sexual battery. As is evident from the language of section 97-3-95, proof of
a specific time frame during which a sexual battery is alleged to have occurred is not
generally required to sustain a conviction. However, as stated above, proof of the victim’s
age during the sexual battery may well be an essential element of the State’s case.
¶58.
The supreme court has held that if an element outside of the charging code section is
added to the instructions presented to the jury, then the State “permissibly saddled
themselves with an additional burden of proof” that it must establish under its “full and
proper burden.” Richmond v. State, 751 So. 2d 1038, 1046 (¶21) (Miss. 1999); see also Lee
v. State, 944 So. 2d 35, 38-9 (¶¶7-13) (Miss. 2006) (discussing the supreme court’s holding
in Richmond). In other words, given the instruction to the jury listing the elements of sexual
battery, the State must have proved beyond a reasonable doubt that the incident occurred
between “January 2002 and December 2005” when Mary was under the age of fourteen. I
contend that the evidence was simply not sufficient to permit the jury to reach the conclusion,
beyond a reasonable doubt, that Mary’s sexual battery occurred during the dates alleged in
McBride’s indictment or jury instruction C-11.
¶59.
Given Mary’s date of birth, the date range in both McBride’s indictment and jury
instruction C-11 alleged that she was between twelve and sixteen years old at the time of the
sexual assault.10 Mary was born on November 11, 1989, and McBride’s trial began on
February 19, 2008. She was eighteen years old at the time of trial. During the forensic
10
The record reflects that the State conceded that the evidence concerning the
fondling incident was not sexual battery and was only presented to the jury to show motive.
Therefore, the date range in the indictment and jury instruction C-11 must refer only to the
sexual battery.
29
interview Mary recalled that she was thirteen or fourteen years old at the time of the sexual
battery. However, she testified under oath at trial that to the best of her recollection, she was
ten or eleven years old at the time. When asked about the disparity between ten and eleven
years old and thirteen and fourteen years old, she stated that she was not confused at the time
of the interview, but she had “just never really [thought] about it.”
¶60.
Additionally, she stated that the fondling incident occurred in 2005 when she was
fifteen years old. This statement also tends to demonstrate that the sexual battery occurred
in 2001. However, Mary testified that she was in third or fourth grade at the time of the
sexual battery and the sixth grade at the time of the fondling incident. She also stated that
she was held back twice during this period. The typical age for a student in the third or
fourth grade is approximately eight to nine years old, which indicates she was younger than
she remembers being at the time of the incident. Furthermore, based upon the grade she was
in at the time of the incidents and the fact that she was held back twice, there would have
been a four-to-five-year difference from the time of the sexual battery to the time of the
fondling incident. Given her testimony that the fondling incident occurred in 2005, this
would mean that the sexual battery occurred in 2000 or 2001. This is yet another disparity
with her previous statements and testimony.
¶61.
She also testified that her brother was seven years old at the time of the sexual assault
and approximately ten years old at the time of the fondling incident. Further, Mary stated
that her brother was fourteen years old at the time of trial. From this testimony, it can be
gleaned that there was only a three-year difference from the time of the sexual battery to the
time of the fondling incident, but a seven-year difference from the time of the sexual battery
25
to the time of trial. This represents another instance of a mix of consistent and inconsistent
testimony as to Mary’s age at the time of the sexual battery. Finally, at the behest of the
State during redirect examination, Mary stated that she thought she was eleven years old but
could have been twelve years old.
¶62.
Based upon Mary’s testimony and statements above, estimates of her age at the time
of the sexual battery range from eight years old to fourteen years old – with no testimony of
any possible age being any more consistent than the next, with the possible exception of
eleven years old. As stated above, it is my considered opinion that the State failed to prove
the self-inflected additional element that the sexual battery occurred between January 2002
and December 2005. It simply cannot be said that the State proved that the sexual battery
occurred in or after January 2002 beyond a reasonable doubt. Where the evidence fails to
show that McBride committed sexual battery “under such circumstances that every element
of the offense existed,” to include the additional timing element which the State took it upon
itself to add to the essential elements of the crime, such evidence “is insufficient to support
a conviction.” No reasonable juror could have concluded that the sexual battery occurred
during or after January 2002.
¶63.
In summary, the indictment and jury instruction C-11 required the jury to conclude
beyond a reasonable doubt that the sexual battery occurred while Mary was younger than
fourteen years old and that it occurred between January 2002 and December 2005. Mary’s
fourteenth birthday occurred on November 11, 2003. She testified that she thought she was
eleven years old when the sexual battery happened, but she could have been twelve years old.
If eleven, mathematically, the battery could not have occurred between January 2002 and
32
December 2005. Mary was eleven from November 11, 2000, to November 10, 2001. She
was twelve from November 11, 2001, to November 10, 2002, and only ten months of that
time fell within the time frame charged in the indictment. Mary’s testimony, the only
evidence presented to the jury on the issue, was that her best judgment was that she was
eleven years old when it happened. However, she “might have” or “could have” been
twelve, ten, or several other possible ages at the time of the sexual battery. “Might have,
could have, possibly occurred,” and other such similar terminology cannot, in my judgment,
ever reach the level of beyond a reasonable doubt. Considering all of the State’s evidence
and favorable inferences as true, no reasonable juror could conclude that McBride sexually
penetrated Mary between January 2002 and December 2005. Therefore, as compelled by
Dilworth, 909 So. 2d at 736 (¶17), I would reverse the judgment of conviction and discharge
McBride.
GRIFFIS AND ISHEE, JJ., JOIN THIS OPINION.
33
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