Robert Burbank, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-01382-COA
ROBERT BURBANK, JR. A/K/A ROBERT ARTHUR BURBANK JR.
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
05/12/2000
HON. KOSTA N. VLAHOS
HANCOCK COUNTY CIRCUIT COURT
JAMES F. THOMPSON
HARRY B. WARD
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
CONO A. CARANNA II
CRIMINAL - FELONY
COUNT II -SEXUAL BATTERY: SENTENCED TO 10
YEARS IN MDOC; COUNT III -TOUCHING OF A CHILD
FOR LUSTFUL PURPOSES: SENTENCED TO 5 YEARS
TO RUN CONSECUTIVELY FOR A TOTAL OF 15
YEARS IN MDOC. 8 YEARS SUSPENDED FOR A
TOTAL OF 7 YEARS TO SERVE IN MDOC
AFFIRMED - 11/13/2001
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
12/4/2001
BEFORE KING, P.J., THOMAS, AND LEE, JJ.
THOMAS, J., FOR THE COURT:
¶1. Robert Burbank, Jr. was found guilty in the Circuit Court of Hancock County of sexual battery and was
sentenced to serve ten years. He was also convicted of touching a child for lustful purposes and was
sentenced to serve five years to run consecutively with the ten year sentence. Eight years of the fifteen year
sentence was suspended. Aggrieved, he asserts the following issues:
I. THE LOWER COURT ERRED IN FAILING TO CONDUCT A THOROUGH
EXAMINATION OF THE CHILD AS A WITNESS AND REFUSING ADMISSION OF
TESTIMONY CONCERNING HER CAPACITY FOR TRUTHFULNESS.
II. THE LOWER COURT ERRED IN ALLOWING THE STATE TO AMEND THE
INDICTMENT DURING TRIAL PREVENTING THE ACCUSED FROM FULLY
PRESENTING A DEFENSE.
III. THE LOWER COURT ERRED IN ALLOWING THE PSYCHOLOGIST TO
TESTIFY CONCERNING HEARSAY STATEMENTS MADE TO HER BY THE CHILD
AND BY ALLOWING HER TO TESTIFY WHETHER IN HER OPINION THE CHILD
HAD BEEN A VICTIM OF SEXUAL ABUSE.
IV. THE LOWER COURT ERRED IN NOT INSTRUCTING THE JURY TO CONSIDER
THE TESTIMONY OF THE PROSECUTRIX WITH CAUTION IN THE ABSENCE OF
CORROBORATING EVIDENCE IN A CASE OF SEXUAL ALLEGATIONS.
Finding no error, we affirm.
FACTS
¶2. On July 16, 1997, workers at the Casino Magic day care facility in Bay St. Louis called authorities
regarding three children they suspected of having been abused. Detectives were dispatched, and upon
arriving found the victim, EB, age six, and her two younger siblings, ages two and ten months. EB told the
detective what had happened, accusing her adoptive father, Robert Burbank, Jr., of touching her
inappropriately and showing her pornographic magazines. The children were taken into protective custody.
Their mother was taken to the family home to get clothing for the children. She gave the detective certain
magazines that Mr. Burbank kept in a desk. Mr. Burbank was contacted, and he gave a statement denying
touching EB, although he admitted showing her magazines in order to teach her about sex.
¶3. Burbank was indicted on September 2, 1997, and was charged with sexual battery, touching for lustful
purposes, and dissemination of sexually oriented material to persons under eighteen. The indictment charged
that the acts occurred on or about June 8,1997. Burbank was tried April 11-12, 2000. Prior to submission
to the jury, the court dismissed the charge of dissemination of sexually oriented materials and allowed the
State to amend the date listed in the indictment to an "uncertain date" in July, 1997.
¶4. At trial, EB testified as to the inappropriate touching and the pornographic magazines. A clinical
psychologist that had examined EB also testified, stating that EB displayed sexual knowledge beyond that
which is normally found in children her age. Burbank testified in his own defense and denied committing any
inappropriate acts. He did admit to showing EB the magazines, however, he said it was because his wife
had asked him to teach EB about sex. Bill Boggess, a friend and former neighbor of Burbank's, testified that
he and his family had stayed with the Burbank family the first weekend in July and that nothing was
mentioned regarding sexual allegations and the family seemed at ease. At the conclusion of the trial, the jury
convicted Burbank of sexual battery and touching a child for lustful purposes and sentenced him to serve
ten years and five years respectively, with the sentences to run consecutively and with eight years
suspended.
ANALYSIS
I. DID THE LOWER COURT ERR IN FAILING TO CONDUCT A THOROUGH
EXAMINATION OF THE CHILD?
¶5. Burbank asserts that the trial court failed to conduct a voir dire of the child and therefore did not make a
thorough determination of the child's competency as a witness. Any analysis challenging the competency of
a witness begins with the assumption that every person is competent to give evidence, subject to certain
exceptions based on considerations of policy unrelated to the capacity of the witness to comprehend and
relate relevant information. Barnett v. State, 757 So. 2d 323, 328 (Miss. Ct. App. 2000). The child was
ten years of age at the time of trial and was testifying to events which occurred when she was six. The child
was not too young to testify. Barnett, 757 So. 2d at 323; Bailey v. State, 729 So. 2d 1255, 1258 (Miss.
1999).
¶6. Although the court did not conduct a preliminary investigation of the child to determine competency, it
was not required to do so. Bailey, 729 So. 2d at 1259. The State did question the child in order to
demonstrate her competency. The determination of competency is made at the discretion of the trial court.
Barnett, 757 So. 2d at 329 (citing Bowen v. State, 607 So. 2d 1159, 1160 (Miss. 1992)). Without a
demonstration of an abuse of that discretion, there is no basis for this Court to overturn that ruling.
¶7. Secondly, Burbank asserts that he was not able to impeach the child with evidence that she had made a
false claim against a fellow student. Burbank did not attempt to impeach the child's credibility during crossexamination. At the conclusion of the child's testimony, Burbank sought to make a proffer on this evidence.
The trial court ruled that Burbank would be required to lay a predicate under Rule 412 of the Mississippi
Rules of Evidence for the evidence to be admitted. Burbank never attempted to do so, nor attempted to
impeach the witness under any other rule of evidence. The child was not called back to the stand and
Burbank chose not to proceed. The trial court is not to be held in error if the issue was never presented to
it. Jones v. State, 606 So. 2d 1051, 1058 (Miss. 1992).
II. DID THE LOWER COURT ERR IN ALLOWING THE STATE TO AMEND THE
INDICTMENT?
¶8. Burbank asserts that the amendment of the indictment from June 8 to the month of July 1997 on the
second day of trial prevented him from presenting a possible alibi defense. Amendments may be made to
the date of an alleged crime by the trial court provided that they do not prejudice the defense. Crawford v.
State, 754 So. 2d 1211, 1219 (Miss. 2000). The indictment is not required to state the correct date as
long as it does not invalidate the indictment, and the time element does not have to be specific as long as it is
within reasonable limits. Morris v. State, 595 So. 2d 840, 842 (Miss. 1991).
¶9. Burbank's principal defense was that he did not commit the acts charged against him at any time. This
defense, therefore, was not compromised by amending the date from June 8 to the month of July. Burbank
did not have an alibi defense for the original indictment date and has not demonstrated either at trial or
afterward that he could have presented additional evidence if the date had been known. After the
amendment, Boggess testified regarding the first weekend in July in an attempt to show that nothing had
happened by that date. Burbank himself did not testify as to an alibi. He has failed to show that he had other
witnesses to present and did not request a continuance or recess upon the motion to amend the date.
Absent a showing of prejudice, this issue is without merit.
III. DID THE LOWER COURT ERR IN ALLOWING THE PSYCHOLOGIST TO
TESTIFY CONCERNING HEARSAY STATEMENTS MADE TO HER BY THE CHILD
AND BY ALLOWING HER TO TESTIFY WHETHER IN HER OPINION THE CHILD
HAD BEEN A VICTIM OF SEXUAL ABUSE?
¶10. Burbank asserts that the testimony given by Dr. Cutrer, a psychologist, was prejudicial and therefore
improper. Dr. Cutrer testified as to her professional training and experience as a clinical psychologist and
her prior experience as an expert witness. The trial court accepted Dr. Cutrer as an expert as was within its
discretion. Crawford v. State, 754 So. 2d 1211, 1215 (Miss. 2000). Dr. Cutrer then testified without
objection about the psychological assessment she had made of the child, and what the child had told her
during that assessment. This testimony was admissible under M.R.E. 803(4) and was properly admitted.
Baine v. State, 604 So. 2d 249, 254 (Miss. 1992).
¶11. Dr. Cutrer also testified as to her opinion of whether the assessment was consistent with a sex abuse
victim. This is quite different than testifying that the child was a victim of sexual abuse. The psychologist
examined the entire interview with the child and testified that the overall result was consistent with a child
that had been sexually abused. This conclusion is proper and within the scope of expert testimony.
Crawford, 754 So. 2d at 1215; Hall v. State, 611 So. 2d 915, 919-920 (Miss. 1992). Dr. Cutrer was
never asked if in her opinion the child was truthful and never offered her opinion on that subject. Her
conclusion was based on her findings and does not constitute error.
IV. DID THE LOWER COURT ERR IN NOT INSTRUCTING THE JURY TO
CONSIDER THE TESTIMONY OF THE PROSECUTRIX WITH CAUTION IN THE
ABSENCE OF CORROBORATING EVIDENCE?
¶12. Burbank asserts that the lower court should have instructed the jury that the testimony of the child
victim should be viewed with caution in the absence of corroborating evidence. This, he feels, will make
juries aware of the considerations to be given to the testimony of a child. The jury is the judge of credibility
of witnesses. It is improper for a trial court to comment upon the weight or credibility of witnesses or
evidence. Miss. Code Ann. Section 99-17-35(Rev. 1994). A child should be examined in order to "show
that the child has a comprehension of past events and a moral appreciation of truthfulness." Bandy v. State,
495 So. 2d 486, 493 (Miss. 1986).
¶13. A child is not presumed to be dishonest and should be viewed as truthful as any other witness. Id. It is
not improper to reject an instruction telling the jury to receive with caution the testimony of a child of tender
years. Ivy v. State, 522 So. 2d 740, 743 (Miss. 1998). "If the jury is to be instructed at all with respect to
the testimony of the child, it should be told to view the testimony in the light of the child's age and
understanding, not his veracity." Bandy, 495 So. 2d at 493. The jury instruction was properly rejected.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY OF
CONVICTION OF COUNT II SEXUAL BATTERY AND SENTENCE OF TEN YEARS AND
COUNT III TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF FIVE
YEARS WITH SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH EIGHT YEARS SUSPENDED
AND FIVE YEARS POST-RELEASE SUPERVISION IS AFFIRMED. COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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