Jeffrey Allen Richardson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-00767-COA
JEFFREY ALLEN RICHARDSON
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
5/2/2007
HON. ROBERT P. CHAMBERLIN
DESOTO COUNTY CIRCUIT COURT
DAVID L. WALKER
OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
JOHN W. CHAMPION
CRIMINAL - FELONY
CONVICTION OF FONDLING AND
SENTENCE OF FIVE YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND TEN
YEARS POST-RELEASE SUPERVISION
AFFIRMED - 4/22/2008
BEFORE MYERS, P.J., GRIFFIS AND ROBERTS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Jeffrey Allen Richardson appeals his conviction of fondling and his sentence of five years
in the custody of the Mississippi Department of Corrections and ten years post-release supervision.
Richardson asks whether the trial court erred in granting the State’s motion to close the courtroom
to the public during the testimony of the victim, S.W.,1 an eleven-year-old child. Richardson also
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This case involves a minor. Therefore, in order to protect her identity, we use initials
for her name and her mother’s name. S.W. is the minor, and T.M. is the mother.
asks whether the trial court erred in denying his motion for a new trial or, in the alternative, his
motion for judgment notwithstanding the verdict.
FACTS AND PROCEDURAL HISTORY
¶2.
On August 18, 2006, S.W., a ten-year-old child, was awoken early in the morning to a
strange popping noise in her bedroom. S.W. testified that she lay awake in her bed for the next few
minutes, the popping noise stopped, and then she felt something touching her or poking her in her
panties, or her “personal area.” S.W. flew up, turned around, and saw someone run out of her room
into the nearby bathroom. Then she heard the same person exit the bathroom, sit in the computer
chair, and turn on the computer. S.W. testified that she then went in her mother’s bedroom and told
her what had occurred. S.W.’s mother, T.M., confirmed this in her subsequent testimony before the
trial court. S.W. testified that Richardson then left for work a few minutes later, entering her
mother’s bedroom to say goodbye. T.M. testified that she and her daughter lived with Richardson,
her boyfriend, at the time of the incident. T.M. also testified that the only persons in the home on
August 18, 2006, were herself, S.W., Richardson, and Richardson’s son.
¶3.
Richardson, in his defense, testified that when he awoke on the morning of August 18, 2006,
he was going to the restroom, but he heard S.W. moving around in her bed and wanted to determine
if anything was wrong. Richardson testified that he walked into her room, called her name, then
touched her thigh and buttocks to try and wake her up. Richardson testified that he got no response
from S.W., so he went to the restroom, checked on her again, and then went to play games on the
computer before going to work.
¶4.
Both of S.W.’s parents later notified the police of the allegations against Richardson.
Detective Jeff Logan of the Southaven Police Department began investigating the allegations.
Detective Logan interviewed S.W. on August 22, 2006, regarding the incident. Detective Logan
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also interviewed Richardson and had Richardson write and sign a statement regarding the incident
on August 25, 2006. A second, slightly different statement was later prepared by Detective Logan
and signed by Richardson on that same date. Richardson was later indicted by a grand jury for the
fondling of S.W., on August 18, 2006, in violation of Mississippi Code Annotated section 97-5-23
(Rev. 2006).
¶5.
At the beginning of trial, the State made a motion to clear the courtroom of all nonessential
personnel for the State’s first witness, the eleven-year-old victim, S.W. The State asked that the
courtroom be cleared because of the age of the child and the sexual nature of the charges, fondling.
Richardson argued that, pursuant to the Mississippi constitution of 1890, the trial court was limited
to excluding the public from the courtroom in cases involving rape, which does not include fondling
of a child. The State countered that while the case before the trial court was not a rape case, it was
very similar in nature to a rape case. The State argued that Richardson would not be prejudiced, that
he would still be present when S.W. testified, and that the motion pertained to only one witness,
S.W.
¶6.
The trial court granted the State’s motion, noting on the record there were only four people
who would be excluded from the room during S.W.’s testimony. Richardson alleges this was an
error by the trial court.
¶7.
At the close of the State’s case-in-chief, Richardson moved for a directed verdict of acquittal,
stating that the State had failed to prove beyond a reasonable doubt that Richardson touched the
minor child for the purpose of gratifying his lust or indulging his depraved heart in accordance with
the statute. Richardson subsequently filed a motion for a new trial or, in the alternative, a motion
for judgment notwithstanding the verdict. The trial court denied both motions. Richardson was
convicted of fondling and sentenced to serve five years in the custody of the Mississippi Department
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of Corrections and ten years post-release supervision. It is from this conviction he now appeals.
STANDARD OF REVIEW
¶8.
An appellate court will only overturn a trial court’s denial of a post-trial motion if there is
an abuse of discretion. Dilworth v. State, 909 So. 2d 731, 736 (¶17) (Miss. 2005) (citing Howell v.
State, 860 So. 2d 704, 764 (¶212) (Miss. 2003)). A motion for a judgment notwithstanding the
verdict challenges the sufficiency of the evidence while a motion for a new trial challenges the
weight of the evidence. Dilworth, 909 So. 2d at 736-37 (¶¶17-20).
DISCUSSION
I.
¶9.
WHETHER THE TRIAL COURT ERRED IN CLOSING THE
COURTROOM DURING THE TESTIMONY OF THE CHILD
VICTIM.
Richardson contends that the trial court erred in allowing the courtroom to be closed to the
public during the testimony of S.W., the eleven-year-old victim. The State, however, argues that
the trial court did not abuse its discretion in closing the courtroom during the testimony of the
victim.
¶10.
This Court does recognize that generally a defendant has a right to a public trial under Article
3, Section 26 of the Mississippi Constitution of 1890, but it is also cognizant that the same article
grants a trial judge discretion to close the courtroom in certain cases where appropriate. Tillman v.
State, 947 So. 2d 993, 996 (¶10) (Miss. Ct. App. 2006). In fact, in certain cases, “public exclusion
may be appropriate ‘to the extent necessary to avoid [embarrassment] or emotional disturbance to
a witness which might result from that witness giving testimony in a particular case.’” Bailey v.
State, 729 So. 2d 1255, 1261 (¶32) (Miss. 1999) (quoting Lee v. State, 529 So. 2d 181, 183 (Miss.
1988)) (holding that while the case did not involve sexual abuse, it did require a five-year-old child
to relate potentially embarrassing facts on the witness stand regarding physical abuse, such that it
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necessitated closing the trial to the public).
¶11.
The United States Supreme Court, in Waller v. Georgia, 467 U.S. 39, 48 (1984), has
developed a test to help ascertain whether other considerations outweigh a defendant’s right to have
a public trial, stating:
the party seeking to close the hearing must advance an overriding interest that is
likely to be prejudiced, the closure must be no broader than necessary to protect that
interest, the trial court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the closure.
Id. The Waller test was subsequently adopted by the Mississippi Supreme Court in Gannett River
States Publishing Co. v. Hand, 571 So. 2d 941, 945 (Miss. 1990).
¶12.
Richardson argues that the mandates of the Mississippi constitution of 1890 should be
strictly construed, and crimes not expressly listed in the Mississippi constitution cannot serve as the
basis for a trial court’s decision to close the courtroom to the public. Richardson argues that since
the Mississippi constitution does not specifically provide for a courtroom to be closed to the public
for fondling cases, the trial court erred in closing the courtroom for S.W.’s testimony. Richardson
contends that there were no close family connections between Richardson and S.W. Richardson also
points out that there was no evidence presented that S.W. had been to a psychologist for treatment
regarding the incident. Further, Richardson alleges that there was no proof that S.W. would suffer
any emotional disturbance by testifying with the public present. Richardson asserts the trial court
erred because it considered no reasonable alternatives, like allowing those who supported
Richardson to remain in the courtroom, while closing the trial to everyone else. Richardson argues
that it was an abuse of discretion for the trial court to close the trial to the public for S.W.’s
testimony.
¶13.
The State countered that the trial court did not abuse its discretion in closing the courtroom
for S.W.’s testimony, stating that under Tillman, 947 So. 2d at 995 (¶7), the trial court properly
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balanced the rights of Richardson against “other interests essential to the administration of justice.”
The State contends that the overriding interest it sought to protect was that of children living in
Mississippi. The State argues that the trial court correctly stated that in light of the tender age of the
child, ten at the time of the incident, and eleven at the time of her testimony, and in light of the fact
that the case was sexual in nature, that closing the courtroom would be appropriate during the child’s
testimony. The State points out that the trial court correctly noted that the testimony was regarding
Richardson, who lived in the home with S.W. and her mother, was of a very sensitive and
embarrassing subject. The State argues the closure was no broader than necessary to protect S.W.
since it was limited to her testimony alone. The State further asserts that the trial court noted only
four people were required to leave the courtroom as a result. The State argues that the trial court did
determine there was no other more reasonable alternative, and the trial court made sufficient findings
to order the courtroom closed.
¶14.
The trial court closed the courtroom to the public only during the testimony of S.W.
Richardson and his counsel remained in the courtroom during that testimony. The trial court noted
that only four people were required to exit the courtroom during this testimony, and the courtroom
was again opened once S.W.’s testimony was complete. Thus, we find that the limitation was no
broader than necessary to protect S.W. during her testimony. Additionally, with regard to whether
the court considered reasonable alternatives, we find that the trial court did all it could to protect the
rights of both S.W. and Richardson. The trial court allowed Richardson to face his accuser during
S.W.’s testimony. Only nonessential personnel were excluded for the duration of S.W.’s testimony.
The trial court noted that the only other alternative would have been to not close the hearing at all.
Finally, the trial court accepted the State’s argument that the child is of a tender age, and the State
of Mississippi has a great interest in protecting children living in this state. The State argued that
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while the case did not involve rape, it did involve a charge of a sexual nature, which could be
embarrassing and exceedingly uncomfortable to discuss, especially for a young child. Additionally,
one can infer that this would be emotionally and mentally upsetting for any child to relate on a
witness stand, in front of the accused. The State pointed out that S.W. was testifying about an
inappropriate and lustful touching that occurred when she was only ten years of age. The trial court
noted that the accused, Richardson, was the live-in boyfriend of S.W.’s mother, and this incident
occurred while S.W. lived in the home that her mother and Richardson shared. Further, the trial
court noted that Richardson was still, in fact, seeing S.W.’s mother at the time of trial, and S.W.
testified about the acrimony she felt toward Richardson. Therefore, in light of this Court’s reading
of the record, we find no error in the trial court’s action in allowing the courtroom to be closed to
the public during S.W.’s testimony. Accordingly, we affirm.
II.
¶15.
WHETHER THE TRIAL COURT ERRED IN DENYING
RICHARDSON’S MOTION FOR A NEW TRIAL OR, IN THE
ALTERNATIVE, MOTION FOR A JUDGMENT
NOTWITHSTANDING THE VERDICT.
Richardson argues that the trial court erred in denying his motion for a new trial or, in the
alternative, motion for a judgment notwithstanding the verdict. Richardson asserts that the State
presented insufficient evidence to meet its burden of proof to convict under Mississippi Code
Annotated section 97-5-23; thus, the trial court erred in denying his motion for judgment
notwithstanding the verdict. Richardson argues, specifically, that the State did not prove beyond
a reasonable doubt lustful intent by Richardson in touching S.W. Richardson argues that he had no
sexual desires toward the child. Richardson further argues that the State did not prove that there was
actual skin on skin contact between Richardson and the child. Richardson also proposes that the
weight of testimony at trial should have been weighed in favor of Richardson, and the court abused
its discretion in denying the motion for a new trial. The State argues on appeal that the trial court’s
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denial of Richardson’s motion for a new trial or, in the alternative, motion for a judgment
notwithstanding the verdict was proper.
¶16.
We address the denial of Richardson’s motion for a new trial and JNOV separately.
A.
¶17.
MOTION FOR NEW TRIAL.
In this case, Richardson argues that the trial court erred in denying his motion for a new trial.
Therefore, we must determine whether the evidence weighs so heavily against the verdict that the
trial court abused its discretion in denying the motion for new trial. Dilworth, 909 So. 2d at 737
(¶20) (citing Howell, 860 So. 2d at 764 (¶212)). In order for an appellate court to overturn the trial
court’s denial, “[t]he verdict must be ‘so contrary to the overwhelming weight of the evidence that
to allow it to stand would sanction an unconscionable injustice.’” Dilworth, 909 So. 2d at 737 (¶21)
(citing Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005)).
¶18.
This Court remembers that “[t]he jury is the sole judge of the credibility of witnesses, and
the jury’s decision based on conflicting evidence will not be set aside where there is substantial and
believable evidence supporting the verdict.” Parks v. State, 950 So. 2d 184, 188 (¶21) (Miss. Ct.
App. 2006) (citing Langston v. State, 791 So. 2d 273, 280 (¶14) (Miss. Ct. App. 2001)). The
Mississippi Supreme Court “has not hesitated to invoke its authority to order a new trial and allow
a second jury to pass on the evidence where it considers the first jury’s determination of guilt to be
based on extremely weak or tenuous evidence[,] even where that evidence is sufficient to withstand
a motion for a directed verdict.” Dilworth, 909 So. 2d at 737 (¶22) (quoting Lambert v. State, 462
So. 2d 308, 322 (Miss. 1984) (Lee, J., dissenting)).
¶19.
Here, there was testimony from the victim, S.W., that established Richardson touched or
poked her “private area,” an area that was covered by her panties. Detective Jeff Logan further
testified that Richardson made several incriminating statements during their interview, which
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indicated there was inappropriate touching. These written statements were introduced into evidence.
In Richardson’s two statements, as established by Detective Logan’s testimony, he admitted he
rubbed S.W.’s buttocks and that he rubbed his finger down the crack of her buttocks and that he may
have accidentally touched her vagina. Additionally, the statements revealed that Richardson
acknowledged that he was just trying to see if he could get away with touching S.W. Detective
Logan further testified that these statements were willingly given to him during his investigation into
the allegations. While Richardson’s testimony conflicted with the witnesses for the State, the jury
heard all the evidence and testimony and found Richardson guilty. We do not find this to be a case
where the jury’s verdict goes against the great weight of the evidence. Therefore, we accordingly
affirm the trial court’s denial of the motion for new trial.
B.
¶20.
MOTION FOR JUDGMENT NOTWITHSTANDING THE
VERDICT.
Richardson also argues that he should be granted JNOV because there was insufficient
evidence to convict him of fondling S.W. A motion for judgment notwithstanding the verdict
challenges the sufficiency of the evidence. Dilworth, 909 So. 2d at 736 (¶17) (citing Carr v. State,
208 So. 2d 886, 889 (Miss. 1968)). Therefore, “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.” Bush, 895
So. 2d at 843 (¶16) (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).
¶21.
Richardson was convicted under Mississippi Code Annotated section 97-5-23 (Rev. 2006),
which reads in part:
(1) Any person above the age of eighteen (18) years, who, for the purpose of
gratifying his or her lust, or indulging his or her depraved licentious sexual desires,
shall handle, touch or rub with hands or any part of his or her body or any member
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thereof, any child under the age of sixteen (16) years, with or without the child's
consent . . . .
The State acknowledges that it had the burden to prove that Richardson, being above the age of
eighteen, touched the victim, S.W., a child under the age of sixteen, for the purpose of gratifying his
lust, as recited by Smith v. State, 867 So. 2d 276, 278 (¶13) (Miss. Ct. App. 2004). The State
contends that it presented ample and sufficient evidence to meet its burden, which included:
Richardson was over the age of eighteen, that the victim was under the age of sixteen, that S.W.
testified that Richardson touched her on her “personal spot,” that S.W. testified that her “personal
spot” was covered by underwear, which Richardson touched “in the middle.” The State argues that
it does not matter whether there was actual skin on skin contact between Richardson and S.W.; it
is sufficient if the purpose of the touching was for lustful gratification. Further, the State points to
Richardson’s incriminating statements to police regarding inappropriate touching of S.W. With
regard to Richardson’s argument that his motion for JNOV should have been granted, the State
agues that there was sufficient evidence against Richardson.
¶22.
Viewing all the evidence before us, including the testimony of the victim, her mother,
Detective Logan and the incriminating statements made by Richardson to the police, this Court
cannot find that there was insufficient evidence for the jury to convict Richardson of fondling.
There is sufficient evidence in the record with which a reasonable juror could determine that the
State proved all elements of the State’s case to allow the jury to properly convict Richardson.
¶23. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF
CONVICTION OF FONDLING AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TEN YEARS POSTRELEASE SUPERVISION, FIVE YEARS REPORTING AND FIVE YEARS NONREPORTING, AND A FINE OF $1,000 AND PAYMENT OF $1,000 TO THE MISSISSIPPI
CHILDREN’S TRUST FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO DESOTO COUNTY.
KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
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ROBERTS AND CARLTON, JJ., CONCUR.
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