Bryant Carter v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-00691-COA
BRYANT CARTER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
2/5/2007
HON. MICHAEL M. TAYLOR
PIKE COUNTY CIRCUIT COURT
GEORGE T. HOLMES
LESLIE S. LEE
NELSON S. ESTESS
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
DEE BATES
CRIMINAL - FELONY
CONVICTED OF SEXUAL BATTERY OF A
CHILD UNDER THE AGE OF FOURTEEN AND
SENTENCED TO LIFE IN PRISON
AFFIRMED – 7/22/2008
BEFORE LEE, P.J., IRVING AND ROBERTS, JJ.
IRVING, J., FOR THE COURT:
¶1.
Bryant Carter was convicted by a Pike County jury of sexual battery of a child under the age
of fourteen and was sentenced to life in prison by the Pike County Circuit Court. Aggrieved, he
appeals and asserts that the court erred (1) in allowing the expert witness testimonies of Keith
Stovall and Dr. Catherine Dixon, (2) in allowing multiple witnesses to testify under the tender years
exception to the hearsay rule, (3) in allowing the prosecutor to coach the prosecutrix, (4) in
prejudicing the defense with several of its evidentiary rulings, and (5) in sentencing Carter to a
constitutionally disproportionate sentence.
¶2.
Finding no error, we affirm.
FACTS
¶3.
During a separation from her husband, Susan Smith1 became romantically involved with
Carter. In February 2004, Carter moved in with Susan and her children, Sally and Jonathan. Sally
was seven years old when Carter moved in. When Carter initially moved in, he and the Smith family
lived in an apartment. Sometime around March 2004, Carter and the Smiths moved into a run-down
pink trailer, and then into a nicer trailer in July or August 2004. In January 2005, Carter and Susan
stopped seeing each other. According to Susan, she forced Carter out of the trailer, while Carter
maintained that it was his decision to leave.
¶4.
Susan testified that she noticed Sally acting oddly after Carter left the home. Sometime in
late March or early April 2005, Susan asked Sally what was wrong, and Sally told Susan that Carter
had touched her inappropriately. Susan became very distraught. She initially called the police, who
told her that she needed to take Sally for a rape kit and examination. This upset Susan, who did not
believe that Sally needed to have a rape kit. Susan then called her mother for advice as to what to
do. Susan did not give any contact information to the police, nor did she take Sally to be examined.
¶5.
On April 14, 2005, the Mississippi Department of Human Services (DHS) received an
anonymous call informing them that Sally might have been abused. On April 15, 2005, around 8:30
a.m., Kim Weathers, a DHS social worker, went to Sally’s school and spoke with her in private.
During the brief interview, Sally informed Weathers that Carter had touched her several times,
1
The names of the victim and her family members have been changed to protect the victim’s
identity.
2
including at least one time when he penetrated her vagina with his fingers.2 Thereafter, Weathers
placed a note on Susan’s door, asking her to contact DHS. When Susan received the note, she
contacted DHS, and DHS made an appointment for Sally with the Children’s Advocacy Center
(CAC).
¶6.
On April 18, 2005, Sally met with Stovall, a forensic interviewer with the CAC. The
interview was videotaped and shown to the jury at trial. Although she was not particularly talkative,
Sally indicated during the interview that Carter had touched her inappropriately multiple times. She
indicated that the inappropriate touching had happened in a reclining chair. Sally told Stovall that
Carter had penetrated her vagina with his fingers at least once, and that it had hurt. Sally specifically
told Stovall about abuse that occurred while her family lived with Carter in the pink trailer. When
asked where her mother was during the abuse, Sally indicated that she was either in her room or
cooking nearby. Sally explained that Carter would use a blanket or other object to conceal his
actions. Sally explained that she knew she was seven years old at the time of the assault because
she had turned eight while they lived in the pink trailer.
¶7.
After her interview with Stovall, Susan took Sally to be examined by a nurse practitioner.
However, the attempted examination was very distressing to Sally, and Susan left with Sally before
the nurse had a chance to fully examine Sally. Susan testified that she then took Sally back to the
CAC, where someone recommended that Susan take Sally to her general practitioner. Sometime
thereafter, Susan made an appointment for Sally with their general practitioner, where a nurse did
a cursory examination of Sally. The nurse recommended that Susan make an appointment for Sally
with a gynecologist so that a complete examination could be done. On May 10, 2005, Sally was put
under general anaesthesia for a full examination by Dr. Leigh Cher Gray, a gynecologist. Dr. Gray
2
Sally consistently had trouble identifying genitalia by name. For clarity’s sake, we have
identified the body parts that Sally pointed to in her interviews.
3
found that Sally’s hymenal ring was stretched significantly and that such stretching was consistent
with digital penetration.
¶8.
Law enforcement was contacted at some point, and Officer Davis Haygood of the Pike
County Sheriff’s Department investigated the case. As part of his investigation, Officer Haygood
spoke with Carter twice. Both times, Carter maintained that he had never molested Sally. Carter
indicated that the only time he had done anything out of the ordinary was when he had put medicine
on Sally for some sort of vaginal infection. Sally confirmed that she had had medicine for such an
infection, but the evidence was clear that Sally was capable of applying the medication herself and
that Carter was never allowed to do so.
¶9.
Multiple individuals testified on behalf of the State at trial. Sally and Susan both testified,
as did Weathers and Stovall. Dr. Dixon, an expert in forensic interviewing and child abuse, testified
as well. Officer Haygood, Dr. Gray, and Karen Touchstone, the nurse who saw Sally at her general
practitioner’s office, all testified. In addition, Thomas Gonsalves, a counselor who saw Sally from
the time that the allegations arose until trial, testified about his therapy sessions with Sally. Sally’s
testimony was roughly the same as what she told Stovall, except that she indicated at trial that Carter
had touched her when he lived with them in the apartment, the pink trailer, and the nicer trailer. The
videotape of Sally’s interview with Stovall was also played for the jury.
¶10.
Carter testified on his behalf, maintaining that he had never inappropriately touched Sally.
Dr. Gary Mooers, an expert in child abuse, testified on Carter’s behalf as well. Dr. Mooers opined
that Sally’s behavior during her interview with Stovall was inconsistent with a child who had been
sexually abused.
¶11.
After hearing all the evidence, the jury found Carter guilty of sexual battery by means of
digital penetration. The court thereafter heard from Sally’s family and Carter’s family before
4
sentencing Carter to life in prison.
¶12.
Additional facts will be related during our analysis and discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Admission of Stovall’s and Dr. Dixon’s Testimonies
¶13.
As Carter recognizes, the admission of expert testimony is governed by Rule 702 of the
Mississippi Rules of Evidence and case law, specifically Mississippi Transportation Commission
v. McLemore, 863 So. 2d 31 (Miss. 2003). Rule 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the
case.
According to McLemore, “the admission of expert testimony is within the sound discretion of the
trial judge.” McLemore, 863 So. 2d at 34 (¶4) (citing Puckett v. State, 737 So. 2d 322, 342 (¶57)
(Miss. 1999)). “Therefore, the decision of a trial judge will stand ‘unless we conclude that the
discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’” Id. (quoting
Puckett, 737 So. 2d at 342 (¶57)). McLemore adopted the United States Supreme Court’s decisions
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v.
Carmichael, 526 U.S. 137 (1999). McLemore, 863 So. 2d at 35 (¶5).
¶14.
In adopting Daubert and Kumho Tire, the McLemore court noted:
The Court in Daubert adopted a non-exhaustive, illustrative list of reliability factors
for determining the admissibility of expert witness testimony. [Daubert, 509 U.S.]
at 592-94. The focus of this analysis “must be solely on principles and methodology,
not on the conclusions they generate.” Id. at 595. These factors include whether the
theory or technique can be and has been tested; whether it has been subjected to peer
review and publication; whether, in respect to a particular technique, there is a high
known or potential rate of error; whether there are standards controlling the
technique’s operation; and whether the theory or technique enjoys general
acceptance within a relevant scientific community. Id. at 592-94. The applicability
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of these factors depends on the nature of the issue, the expert’s particular expertise,
and the subject of the testimony. Kumho Tire, 526 U.S. at 151. The Daubert Court
emphasized that the reliability inquiry contemplated by Rule 702 “is a flexible one.”
Daubert, 509 U.S. at 594.
McLemore, 863 So. 2d at 36-37 (¶13).
¶15.
Carter argues vigorously that Stovall’s and Dr. Dixon’s testimonies should not have been
admissible because their testimonies cannot be tested and that Daubert specifically lists testability
as a factor. However, as the McLemore court noted, Kumho Tire explained why certain factors
might not be applicable in every case:
It might not be surprising that in a particular case, for example, that a claim made by
a scientific witness has never been the subject of peer review, for the particular
application at issue may not have ever interested any scientist. Nor, on the other
hand, does the presence of Daubert’s general acceptance factor help show that an
expert’s testimony is reliable where the discipline itself lacks reliability, as, for
example, do theories grounded in any so-called generally accepted principles of
astrology or necromancy. Kumho Tire, 526 U.S. at 151. Therefore, the Court
determined that it could “neither rule out, nor rule in, for all cases and for all time the
applicability of the factors mentioned in Daubert” because “too much depends upon
the particular circumstances of the particular case at issue.” Id. at 150. Thus, the
trial court has “considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.” Id. at 152. That is, the
Daubert factors should be considered “where they are reasonable measures of the
reliability of expert testimony.” Id.
McLemore, 863 So. 2d at 37 (¶13).
¶16.
Dr. Dixon admitted that it would be virtually impossible to test the accuracy of forensic
interviewing of children claiming sexual abuse, as such testing would necessarily involve first
sexually abusing a child and then observing the child’s responses to questioning. However, as
Kumho Tire noted, not all the Daubert factors will be applicable in each case. Clearly, the accuracy
of forensic interviewing is largely untestable, and that Daubert factor therefore does not apply when
determining the admissibility of such an expert’s testimony. We note that there is no evidence to
suggest that the testimonies in question from Stovall and Dr. Dixon failed to meet any of the other
6
factors. Further, the procedure followed by Stovall is peer-reviewed, has general acceptance in the
relevant community, and has standards that control the technique’s operation. In fact, Carter’s own
witness, Dr. Mooers, indicated that he had no problems with the procedure followed by the CAC.
¶17.
Furthermore, the testimonies of experts such as Stovall and Dr. Dixon have been admitted
in numerous cases. For example, this Court found no error with a court’s decision to admit Stovall’s
testimony in Lattimer v. State, 952 So. 2d 206, 221 (¶39) (Miss. Ct. App. 2006). We found:
Mr. Stovall had specialized knowledge through his education, training, and his
professional experience in the field of forensic interviewing. Additionally, his
knowledge in the form of his opinion, could have been helpful to the jury in deciding
whether Amy was sexually abused by Lattimer. We also agree with the trial judge
that Mr. Stovall’s opinion was based on sufficient facts and that his testimony was
the product of reliable principles and methods. Further, we can find no indication
that Mr. Stovall failed to reliably apply the principles and methods of forensic
interviewing to the facts of the case. Mr. Stovall was suitably positioned to opine
that characteristics of Amy’s interview are consistent with sexually abused children.
Id. Carter attempts to distinguish Lattimer on the ground that “[i]n Lattimer there was improper
testimony about witness ‘credibility;’ but there was no preserving objection, so the court did not
address it.” However, Stovall did not comment on Sally’s credibility in the present case; he merely
stated that he found her story consistent with that of a sexually abused child. Therefore, the issue
in Lattimer that was not preserved was not an issue at all in this case. Nothing in Lattimer indicates
that this Court did not accept the “general” admissibility of Stovall’s expert opinion.
¶18.
Other cases have also admitted the testimonies of such experts. In Williams v. State, 970 So.
2d 727, 734-35 (¶¶24-27) (Miss. Ct. App. 2007), we found admissible the testimony of a social
worker who testified that the child’s account of her sexual abuse was consistent with that of a child
who had been sexually abused. In Walls v. State, 928 So. 2d 922, 929 (¶20) (Miss. Ct. App. 2006),
we found that Stovall’s testimony was admissible under Rule 702, although we noted that there had
been no objection to his testimony and that the issue in that case was procedurally barred. We also
7
admitted the testimony of a different forensic interviewer in Mooneyham v. State, 915 So. 2d 1102,
1104 (¶¶5-6) (Miss. Ct. App. 2005).
¶19.
Carter further contends that Stovall asked too many leading questions during his interview
of Sally. As an example, he points out “did he move his fingers around?” However, this is an
incomplete rendition of what Stovall asked Sally. Specifically, Stovall asked, “Did it [his finger]
move or stay still or something else?” Testimony indicated that asking questions with multiple
options is part of the technique taught to forensic interviewers. The question equally suggested three
answers: move, stay still, or something else. The Mississippi Supreme Court has defined a leading
question as one that “suggests to the witness the specific answer desired by the examining attorney.”
Tanner v. State, 764 So. 2d 385, 405 (¶58) (Miss. 2000) (quoting Clemons v. State, 732 So. 2d 883,
889 (¶25) (Miss. 1999)). The questions asked by Stovall, by and large, did not suggest specific
answers to Sally. Carter’s contentions to the contrary are without merit.
¶20.
Carter also criticizes Stovall’s opinions regarding his accuracy: “Stovall said, he had never
been wrong, but there were occasions when juries did not agree with him. . . . Juries are wrong, not
him.” This is a mischaracterization of Stovall’s testimony. Stovall testified that he did not know
of any cases where he had been wrong, i.e., he had never been shown to be conclusively wrong. As
we have already discussed, forensic interviewing of sexually abused children is a field of expertise
that is largely untestable. Therefore, it makes sense that Stovall does not know of any times when
he has been proven wrong. In fact, when asked whether he had ever been wrong, Stovall replied,
“I’m sure I have.” When asked about juries finding differently than him, the following exchange
occurred:
Q.
So if a jury disagrees with you, that doesn’t necessarily mean you’re wrong.
Is that what you’re telling me?
A.
I think it could mean that there was not enough evidence to prove abuse, or
8
perhaps, for whatever reason, the case that presented [sic] wasn’t as strong
as it needed to be.
Stovall never claimed that he had never been wrong; in fact, he admitted that he probably had been
wrong before. However, he stated that he did not know of any such incidents.
¶21.
Carter argues at length that Stovall and Dr. Dixon unreliably applied their analyses to Sally’s
story.3 Carter complains that Stovall and Dr. Dixon cited both lack of detail and the presence of
detail as an indicator of reliability. An in-depth look at Stovall’s and Dr. Dixon’s testimonies
explains this apparent inconsistency. Stovall testified, in part, during his direct examination as
follows:
Q.
Would you describe what you observed [during Sally’s interview at the
CAC], please.
A.
Well, I found her to be a lot more withdrawn, a lot more soft spoken when discussing
sexual abuse. . . . [E]very time that I would return to talk about sexual abuse, you’d
see her affect or her facial expressions shift. I believe we’re talking about a birthday
party or something approximately 15 to 25 minutes in the interview in the heart of
the interview there, and I come back and I ask her about the touching again, and her
eyes drop down, her vocal volume decreases substantially, and the eye contact
diminished as well.
Q.
How many -- I know you answered that before. About more than 500 [sic]
children you’ve done forensic interviews on?
A.
Uh-huh (Affirmative Response).
Q.
About what percentage of those are for sexual abuse or concerning sexual
abuse?
A.
Majority. We also interview children who are physically abused. In some
cases there was both involved.
3
Carter also points out a statement by Stovall to the effect that he could only evaluate
himself, not Sally. Carter contends that this remark makes Stovall’s testimony inadmissible under
Rule 901 of the Mississippi Rules of Evidence. We note that this was an isolated comment from
Stovall, ultimately intended to explain, again, that it is impossible to test whether a child has actually
been sexually assaulted. Stovall clearly evaluated Sally’s credibility and concluded that her story
was consistent with that of a sexually abused child.
9
Q.
In cases -- your cases involving sexual abuse, in your experience is the
change of demeanor, the lowering of the voice consistent with -- have you
seen that before?
A.
Quite frequently in cases where children -- when we -- when we give a
finding of [sic] consistent with abuse, you’ll see that when children are
talking about playing with friends or when they’re talking about spending
time with family, you’ll see them upbeat, you’ll see them -- that’s kind of
their standard affect. But when they discuss sexual abuse, and when you see
some sort of emotional shift, oftentimes it’s because of the subject matter.
Q.
What are some of the -- I asked you earlier about whether you’re trained to
look for signs of coaching or fabrication or motivation to lie. What are some
of the markers for you to show signs of fabrication?
A.
Well, if there’s not really a [sic] affect shift. Many cases, interviews where
I was interviewing children, and there was some sort of fabrication that was
suspected or coaching suspected, seems kind of flat [sic]. You don’t see that
emotional breakdown at a certain point in time. For instance, if a child’s
talking and all of a sudden they mention an abuse scenario, and you see a
shift in emotion, then that’s significant. In this case the only times that she’s
not answering -- and there’s a couple times where she says, “I don’t know,”
but times when she doesn’t answer, I counted there’s five of those times.
Three of those specifically were when she was asked to identify the genitals,
so she doesn’t identify that. That’s significant. That’s the kind of thing that
I’m looking at.
****
Q.
Based upon your training and your extensive experience with interviewing
sexually-abused children, were [Sally’s] demeanor and attitude consistent or
inconsistent with the content of the information she was providing?
A.
I’d say it’s highly consistent. The reason being is that, as I mentioned before,
when she does not answer, it was specifically around the abuse scenario, and
that’s seen quite frequently.
****
Q.
Mr. Stovall, during your training for your psychology degrees and to become
a forensic interviewer and your training concerning child sexual abuse, have
you learned within that training, have you been taught what sorts of factors
affect memory in these type of situations?
A.
Yes, I have.
10
Q.
And what are those factors?
A.
Well, there’s actually a good body of research that indicates that trauma is a
diminisher to memory. For individuals who go through trauma or have
experienced a traumatic effect, there’s going to be an inability or difficulty
to remember that. If you’ve been in a car wreck, a very violent car wreck,
you can remember that -- there may or may not have been details about that
car wreck that you could remember. But as safety -- as time goes on, you can
find yourself remembering more details. But there is a lot of research
published within the past ten years that has indicated that trauma is, in fact,
a diminisher on memory.
During Stovall’s cross-examination, Carter’s attorney attempted to clarify Stovall’s findings as to
Sally’s reticence:
Q.
Would you agree with me that a child of that age, you would expect that they
would become more silent and have problems talking about sex in general?
A.
Well, she explained that -- she told me that she -- during the touch inquiry or
the anatomy ID she points out the buttocks, she -- so she was not necessarily
discomforted by that. That is a private part. So the anxiety didn’t seem to
be there as it was with the genitals. Yes. And I would say that children are
nervous when talking about sex, but I’ve talked to lots of kids who haven’t
been abused, and many of those kids, there’s not that shift. So it’s not that
she couldn’t name those, but it’s the -- if you -- here again, I talked about the
number of “I don’t know’s” and no answers. The majority -- I think a total
of 15 questions that she responded [sic] were either “I don’t know” or no
answers, and all but two of those were in the bulk of the interview section
specifically about abuse. So that tells me that talking about -- just being in
the room, being nervous, that didn’t affect her earlier.
Stovall’s testimony on redirect also addressed Sally’s reticence:
Q.
Mr. Stovall, was it at all unusual for [Sally] not to say “he touched me” and
then immediately provide every detail you could possibly hope for?
A.
Yes. My assessment of her is that she’s in what we’d call a tentative state of
disclosure, meaning that at this point she doesn’t want to talk about it,
doesn’t want to think about it, doesn’t want to go through it. So when you
ask a question, and she gives you a short answer, that’s the clinical theory or
thesis behind that.
At no point in his testimony did Stovall actually testify that he found the presence of details to be
more consistent with the story of a sexually abused child. Stovall did note his suspicion that if Sally
11
had been coached, “whoever would have coached her would have told her what to call the genitals.”
In this limited sense, Stovall suggested that Sally’s lack of details was more consistent with a true
account of sexual abuse.
¶22.
Dr. Dixon testified at length about what the presence or absence of details indicates in
reference to the consistency of a child’s story. During direct examination, Dr. Dixon testified in
part:
Q.
Tell us, if you would, what studies you’re familiar with and what your own
experience has taught you concerning how children disclose sexual abuse.
What’s that -- is it a process? Is it an event?
A.
You know, there’s almost a -- it’s almost a common knowledge among
people who do this work that children disclose abuse as a process. It’s rarely
[sic] that a child raises their hand and says, “Let me tell you everything that
happened to me, and I’m going to start at the beginning and end at the end
and tell you every detail in between.” That’s just extremely unusual. . . .
****
Q.
Dr. Dixon, you mentioned tentative disclosure. What are the types of
disclosure, or stages, I should say?
A.
Well, in the process of disclosure, you know, like I said, a lot of children
don’t ever tell, some children wait a long time to tell, and then when they do
tell there’s a tentativeness about their disclosure. “I think this happened,” or
“I’m sure, but I think I forgot,” or “Maybe it was this way, and maybe not,”
because they’re anxious, they’re afraid. . . .
****
Q.
Dr. Dixon, what is meant by “active disclosure”?
A.
That’s when the child is feeling comfortable enough to tell most or all of
what happened.
Q.
When you reviewed the videotape of [Sally] and when you -- strike that.
When you reviewed her videotape, did your training and experience in child
sexual abuse and development allow you to form an opinion about whether
or not she was in a stage of tentative or active disclosure?
A.
I thought she was somewhere between tentative and active. There were some
12
tentative elements to what she said, but at the same time she answered the
questions asked of her and seemed to be motivated to give clear and correct
answers. She even at times redirected or corrected [Stovall] when he asked
her questions that weren’t exactly how she wanted to portray information.
Dr. Dixon was further asked about details during cross-examination:
Q.
Mr. Stovall indicated that the interview that he conducted with [Sally]
provided detailed information. Do you agree with that?
A.
For her developmental age, yes.
Q.
You believe that was detailed?
A.
She told who did it, where it happened, how it happened, what happened,
how it made her body feel. She drew a picture of the place it happened and
the chair that it happened in and told where her mother was and what he
covered her with. That’s a lot of detail for an eight year old.
Q.
Was she able to tell what she was wearing?
A.
No. And, you know, that was one of those questions that I underlined in my
notes that he asked her. She already told him it happened a lot of times, and
then he said, “What were you wearing?” So as a child she’s sitting there
thinking, “Which time?” You know, so she wasn’t able to say that. Because
children aren’t like adults. They don’t come back and say, “Please clarify
your question for me because I didn’t understand that.” They just say, “I
don’t know,” or “I forgot.” That was a typical response.
****
Q.
If a child is able to remember more details than [Sally] was able to
remember, is that consistent with abuse?
A.
Could be.
Q.
As well as remembering as few as [Sally] remembered?
A.
Yes.
(Emphasis added). Dr. Dixon also discussed the value of details during her pretrial voir dire. At
that time, she explained:
We train interviewers, and I supervise interviewers to have as their understanding,
when they walk into a forensic interview, that something could have happened to this
13
child or nothing could have happened to this child. We collect background
information on the case so that we can inform our questioning, but we also keep, as
a condition of our listening, an objective stance, that nothing could have happened
or something could have happened. As a result of that and as a result of assessment
of all of the factors gleaned from the forensic interview -- the child’s development,
the child’s affect, the child’s vocabulary, the way they phrase their statements, their
eye contact, the contextual details provided in the interview, the child’s knowledge,
or lack thereof, of human sexuality, the child’s ability to describe the alleged
offender’s behavior -- all of those factors are weighed, considered, and then a finding
is generally given as to we don’t think that this child is abused, the interview is
inconclusive, we don’t know, or we think that the child’s disclosure was credible and
that abuse may have occurred.
During cross-examination pretrial voir dire Dr. Dixon testified as follows:
Q.
The last sentence on the first page. “Her description of the touching
contained significant details that a child would not likely have knowledge
[of] or motive to fabricate.”
A.
Right.
****
Q.
You also indicate on the second page of that report, second sentence,
“Developmentally [Sally] is still at the age that she would have had difficulty
fabricating a story about sexual abuse which would contain sufficient
information to sound feasible and accurate to adults.” Again, that statement
was made without having the benefit of her background information; is that
correct?
A.
That’s correct.
Q.
And there you’re talking specifically about this victim and not generally
victims in her position; would you agree with that?
A.
No, I was talking generally about victims of her age. Developmentally they
typically have very limited knowledge of sexual anatomy, sex offender
behavior, et cetera.
****
Q.
Can you tell me what indicators you use as an interviewer to determine
whether you believe a child’s story is consistent with truth [sic]?
A.
There’s some very specific and some very nonspecific indicators of a child’s
credibility and the credibility of their statement. Nonspecific factors would
14
be the child’s affect, the child’s tone of voice, the child’s eye contact, the
child’s -- just their general presentation in the interview. I don’t think that
those factors have been scientifically tested or -- you know, and they fall
more into the art rather than the science of doing forensic interviewing.
Other factors which influence a child’s credibility obviously would be the
number and quantity and quality of contextual details that the child can
provide. If a child -- especially a young child -- can tell us what happened,
where it happened, who did it, how they did it, under what circumstances
they did it, how it felt, what their body felt like, where other people were in
relation to them when this happened, that’s a quantity of contextual detail
that we know, depending on the child’s developmental stage, would be very,
very difficult for a child to either fabricate or carry as a story from another
person. Those are factors that lend to a child’s credibility.
Q.
If a child, as in this case, was interviewed and asked questions and was
unable to provide answers to some questions, would that lend itself as a
factor or indicator that the child was being truthful or not truthful?
A.
It would depend. Sometimes children can’t give details because they don’t
know any. Sometimes children can’t give details because there aren’t any,
or they forgot them. You know, it just depends. And sometimes they’re just
-- you know, it’s because the event didn’t happen.
Q.
If a child was able to give very specific details, would that mean that they
were abused?
A.
It would lend to the credibility of their statement if they said they had.
Q.
But neither one would be able to rule out abuse. Is that what you’re telling
me?
A.
Correct.
Q.
So whether they give few details or many details, they both may lend itself
[sic] to a finding that is consistent with abuse?
A.
And it depends on how old the child is. A teenager who can give a detailed,
contextually-rich story about child sexual abuse when that teenager has
already been sexually active, has seen sexually-based content on television
and in movies, that child has a basis for knowledge about the act of human
sex, and that they could produce those details should be of no surprise to
anyone. But when you have a prepubescent child with, unless otherwise
proven, limited knowledge about human sexuality, and for them to tell an
account of bodily touching to be able to describe how it felt, where it
happened, who did it, you know, all of those things, it would be fairly
unlikely, in my opinion, for the child to be able to fabricate all of that on their
15
own.
(Emphasis added).
¶23.
As can be seen from an expansive selection of Dr. Dixon’s and Stovall’s testimonies, their
testimonies regarding details did not indicate an unreliable application of the principles of their
expertise to Sally’s statements. Even Carter’s own witness, Dr. Mooers, admitted the following
during cross-examination:
Q.
I had asked you whether or not you had ever interviewed sexually-abused
children who did not give you a lot of detail up front, and I believe that you
answered me that a number of the children you’ve interviewed you’ve seen
more than once after your initial contact, and, yes, you had encountered
children who didn’t give you detail, some of whom gave you detail later; is
that correct? Do you recall that?
A.
I don’t recall that, but I could have said that. That’s true.
Q.
All right. It is true?
A.
Yeah.
Q.
All right. And in some of those cases where you had children who didn’t
give you much detail, you determined that they probably were sexually
abused, didn’t you? Not all, just at least some of them?
A.
Yes.
****
Q.
Would you agree with me that whether or not a child gives detail right up
front, that that doesn’t necessarily indicate -- especially since you’ve found
some have been abused -- that wouldn’t necessarily indicate they have not
been abused, would it? Lack of detail?
A.
Lack of detail would not mean for sure that they have -- that they’re free of
abuse, I would agree.
As can be seen, even Dr. Mooers agreed that lack of detail did not necessarily mean that a child had
or had not been abused.
¶24.
Stovall testified that he was satisfied with the number of details that Sally provided, and he
16
never suggested that a child would be credible only if she provided a large number of details. Dr.
Dixon further expounded upon this aspect of forensic interviewing, explaining that there are
numerous reasons why a child might not be able to provide an interviewer with specific details. Dr.
Dixon specifically found that there was nothing wrong with Sally’s inability to provide details as
to what she was wearing during an assault by Carter. Furthermore, Dr. Dixon explained that older
children who have had exposure to sexuality in the media are more likely to be able to provide
details regarding a sexual assault. Dr. Dixon indicated that Sally was of an age where it would be
difficult for her to provide a substantial number of details. She noted that Sally appeared to be
somewhere between active and tentative disclosure. She found that the number of details that Sally
was able to provide made her story more consistent with that of a sexually abused child. The record
does not indicate that Dr. Dixon or Stovall failed to reliably apply the principles of their expertise
to the present case.
¶25.
The court did not abuse its discretion in allowing Stovall and Dr. Dixon to testify. This
contention of error is without merit.
2. Use of the Tender Years Exception
¶26.
The Mississippi Rules of Evidence provide a tender years exception to the rules prohibiting
hearsay:
A statement made by a child of tender years describing any act of sexual contact
performed with or on the child by another is admissible in evidence if: (a) the court
finds, in a hearing conducted outside the presence of the jury, that the time, content,
and circumstances of the statement provide substantial indicia of reliability; and (b)
the child either (1) testifies at the proceedings; or (2) is unavailable as a witness:
provided, that when the child is unavailable as a witness, such statement may be
admitted only if there is corroborative evidence of the act.
M.R.E. 803(25). Sally testified at trial and was subject to cross-examination, and Carter does not
challenge the reliability of Sally’s statement. Rather, Carter contends that there was a prejudicial
overuse of the tender years exception. At oral argument, Carter recognized that there was no
17
objection to this repetition of Sally’s statement at trial. Therefore, any error would have to be plain
error, meaning that Carter would have to “show that there was error, that the error resulted in a
manifest injustice, and that it affected [his] fundamental rights.” Hicks v. State, 973 So. 2d 211, 217
(¶18) (Miss. 2007) (citing Williams v. State, 794 So. 2d 181, 187 (¶23) (Miss. 2001)).
¶27.
Having reviewed the record, we cannot find that plain error occurred in this case. Besides
Sally, eight individuals testified about her outcry statement. Most of those witnesses discussed
Sally’s statement only as it related to the true purpose of their testimony; for example, Officer
Haygood’s testimony was mostly about his investigation of Sally’s claim and resulting interviews
with Carter. Officer Haygood discussed Sally’s statement only as it related to his involvement with
the case. Similarly, Dr. Gray primarily testified about her medical examination of Sally and
discussed Sally’s allegations against Carter only as it related to her examination of Sally.
¶28.
In the absence of an objection, we cannot find that the court erred in failing to sua sponte
suggest to the State how to present its case and witnesses. We further note that it is not unusual for
multiple witnesses to testify regarding a child’s outcry statement in such cases. See Hobgood v.
State, 926 So. 2d 847, 851-52 (¶11) (Miss. 2006) (victim declared unavailable; six different
witnesses then testified regarding the victim’s accusations); Smith v. State, 925 So. 2d 825, 830-32
(¶¶12-15) (Miss. 2006) (two victims and at least four other individuals testified regarding the
victims’ allegations); Withers v. State, 907 So. 2d 342, 344, 348, 349 (¶¶3, 15-16, 20) (Miss. 2005)
(at least seven different witnesses testified regarding victim’s statements, including the victim).
¶29.
A manifest injustice did not occur as a result of the State’s use of the tender years exception.
This contention of error is without merit.
3. Coaching of the Victim
¶30.
Carter contends that the court erred in allowing the prosecutor to coach Sally during her
testimony. The following exchange occurred when Sally was asked by the prosecutor to identify
18
Carter in court:
Q.
I want to ask you a question. Do you see Bryant Carter in this courtroom
today?
A.
I’m not -- no, sir.
Q.
Okay. I want you to stand up. Okay. Now I want you to look around and
see if you see him.
A.
No, sir.
Q.
Okay. I want you to look over here.
[Objection by Carter’s attorney].
A.
(Shakes head negatively).
Q.
Okay. Do you recognize this man over here? [The prosecutor stood behind
one of Carter’s attorneys].
[Objection by Carter’s attorney].
[COURT]: I’ll overrule. Open to cross-examination.
Q.
Do you recognize this man right here? I want you to look at him real good.
A.
I remember seeing him before going through the courtroom.
Q.
Okay. And do you recognize this man right here? [The prosecutor stood
behind another of Carter’s attorneys].
A.
No, sir.
Q.
Okay. And I want you to look real good at this man right here. Look at him
close. Do you recognize him? [The prosecutor stood behind Carter].
A.
Yes, sir.
Q.
Who is that?
A.
Bryant Carter.
[COURT]: You can sit down.
Q.
You can sit back down. The last man that you looked at that you said --.
19
And I’d ask that the record reflect that the witness has identified the
Defendant.
[COURT]: The record will so reflect.
Q.
The things that you told the jury that he did to you, the things that you said
that were done to you, is that the person who did them?
A.
Yes, sir.
Carter contends that this was “an improper coaching or leading of the witness” and cites to Williams
v. State, 539 So. 2d 1049, 1052-53 (Miss. 1989) as support.
¶31.
In Williams, a prosecutor signaled a law enforcement officer with his hands during the
officer’s testimony. Id. at 1052-53. The prosecutor attempted to explain his actions:
With regard to the motion that I made with my hands, what I made was a motion for
him to go ahead and now give the information that the Court had previously ruled as
inadmissible, that being what he determined, why he determined the probable cause
for the arrest. The Court had previously stated that he could not say what Brenda
Chance had told him. The Defense Attorney then said, “You wanted him back in
jail, why didn’t you arrest him again?” And I told him he could now go ahead and
say that. That was my sole purpose for my telling him that he could go ahead with
that testimony.
Id. at 1052.
¶32.
Williams is easily distinguishable from our present case. In Williams, the prosecutor
candidly admitted that he was attempting to relay information to his witness using his hands. There
is no indication that the prosecutor in this case was attempting to relay information to Sally when
he stood behind individuals at the defendant’s table. Although the prosecutor told Sally to look
closely at Carter, he gave similar instructions to Sally when he stood behind one of Carter’s
attorneys: “I want you to look at him real good.” Sally explained that she had difficulty recognizing
Carter because his hair was styled differently than it had been when she knew him.
¶33.
We note that this is not a case where identity is in dispute. Carter has never suggested that
he is not the Bryant Carter that Sally referred to in her outcry statements. Rather, he argued that he
20
had never improperly touched her. Carter was not denied his right to a fair trial, and this contention
of error is without merit.
4. Evidentiary Rulings
¶34.
Carter contends that the court erred in three specific incidents. Having reviewed the record,
we find no merit to Carter’s contentions. For clarity’s sake, we address each separately below.
a. Limitation of Cross-Examination
¶35.
Carter contends that his cross-examination of Stovall was improperly limited: “[D]efense
counsel was asking [Stovall] about . . . cases where juries had disagreed with him. . . . Defense
counsel asked whether . . . Stovall thought the jury was wrong and the [S]tate objected, on
unspecified grounds, and the trial court sustained, with the comment that the questions called for a
legal conclusion.” The exchange that Carter is referring to occurred as follows:
Q.
Has a jury ever disagreed with you?
A.
Yes.
Q.
Do you believe the jury was wrong?
A.
That was their findings [sic] and --
Q.
Well, it’s a simple question. You just stated that you didn’t believe you had
ever been wrong, and a jury disagreed with you, so --
[PROSECUTOR]:
Your Honor, I object.
[COURT]:
I’ll sustain. It’s a simple question, and it’s also a question
that calls for a legal opinion, so I will sustain.
Q.
So if a jury disagrees with you, that doesn’t necessarily mean you’re wrong.
Is that what you’re telling me?
A.
I think it could mean that there was not enough evidence to prove abuse, or
perhaps, for whatever reason, the case that presented [sic] wasn’t as strong
as it needed to be.
Any harm that Carter suffered as a result of the court’s sustaining of the State’s objection was cured
21
when his attorney rephrased his question and Stovall responded with a full explanation of why he
believed juries had disagreed with him. This specific argument is without merit.
b. Allowing Susan’s Testimony
¶36.
Carter next claims that the court erred in allowing Susan to testify about abuse that she
suffered as a child. Susan testified very briefly about what she had been through in an attempt to
explain why she reacted so poorly when Sally told her about Carter’s assault. Carter contends that
the “real reason” for Susan’s testimony “was to create a sympathetic emotional reaction with the
jury.”
¶37.
We agree that the testimony by Susan was unnecessary and not particularly relevant. We
note that Carter’s attorney objected on the ground of relevance when Susan first disclosed her abuse,
and the court sustained the objection. The court and the attorneys then discussed the statement
outside the presence of the jury, and the court found: “It was nonresponsive. You asked her what
she did, and she just blurted out that -- took us back. I think it may be relevant, but it certainly
wasn’t responsive.” The court then reversed its prior ruling and overruled Carter’s objection to the
statement. After being asked what “kind of stuff” Sally’s situation had brought up for her, Susan
testified: “The fact that this was done to me, and my mama did nothing, and I don’t want [Sally] to
grow up with that feeling.” We question the relevancy of the statement in part because Susan’s
testimony makes no sense. She testified that she did not want Sally to grow up feeling that her
mother had done nothing, but Susan then proceeded to do exactly that. Sally’s abuse was
investigated only after an anonymous call was placed to DHS.
¶38.
Regardless, the evidence in this case is so overwhelming that any error in admitting the
statement was harmless. See Haynes v. State, 934 So. 2d 983, 991 (¶31) (Miss. 2006) (“errors
involving a violation of an accused’s constitutional rights may be deemed harmless beyond a
reasonable doubt where the weight of the evidence against the accused is overwhelming”) (quoting
22
Clark v. State, 891 So. 2d 136, 142 (¶29) (Miss. 2004)).
c. Limitation of Carter’s Testimony
¶39.
Finally, Carter contends that the court erred in limiting his testimony regarding exactly why
he had cut his hair since living with Sally’s family. Carter argues that his testimony was important
to “counter the conclusion that [he] had cut his hair to try to cause misidentification or from some
other bad motive . . . .” The following exchange occurred during Sally’s testimony when she
attempted to explain why she had not been able to recognize Carter initially:
Q.
Okay. Does he look any different now than he did before?
A.
Yes, sir.
Q.
In what way?
A.
His hair.
****
Q.
Is that why you had a hard time recognizing him?
A.
Yes, sir.
Q.
How is his hair different?
A.
He shaved it kind of around.
During his direct examination, Carter testified about his appearance as follows:
Q.
Since the last time that you saw either [Susan] or [Sally], what, if anything,
about your appearance has changed?
A.
I’ve taken off my mustache and goatee that I had worn for several years, and
I’m dressed in a suit. I normally don’t dress in suits.
Q.
Okay. And what was the purpose in taking off your goatee?
A.
Prospective job interview. It was recommended that I shave it. I’d be more
likely to --
[PROSECUTOR]:
I object to relevance.
23
[COURT]:
¶40.
I’ll sustain.
We note that the prosecutor objected only when Carter started to explain the benefit that he
believed he would obtain from shaving his hair. Carter initially testified uninterrupted about why
he shaved his hair: a prospective job interview. A lengthy explanation of why he shaved his hair
for a job interview was unnecessary and irrelevant. Therefore, the court did not err in sustaining the
objection. Furthermore, we disagree with Carter’s statement that it was necessary for him to rebut
the conclusion that he had intentionally changed his appearance to create a misidentification. We
believe that the prosecutor’s exchange with Sally, immediately after Sally had displayed significant
difficulty in identifying Carter, did not lead to a conclusion that Carter had wrongfully changed his
appearance.
¶41.
Even if the court erred in sustaining the objection, any error was harmless due to the
overwhelming weight of the evidence against Carter.
5. Proportionality of the Sentence
¶42.
Carter contends that his sentence is constitutionally disproportionate to the crime he
committed. As support, he cites numerous cases where sexual batterers of children received more
lenient sentences than his.
¶43.
The statute under which Carter was convicted allows for a minimum sentence of twenty
years and a maximum of life. Miss. Code Ann. § 97-3-101(3) (Rev. 2006). Unlike most crimes that
carry a potential sentence of life, section 97-3-101(3) does not require that a jury make the
determination as to whether the defendant will receive life in prison or some lesser sentence. After
hearing from Sally’s family and Carter’s family, the court sentenced Carter, a first-time offender,
to life in prison.
¶44.
We find that, under current Mississippi law, Carter’s sentence is constitutional. Our cases
are legion that stand for the proposition that sentences within the statutory guidelines are proper.
24
Tate v. State, 912 So. 2d 919, 933 (¶48) (Miss. 2005); Johnson v. State, 904 So. 2d 162, 170-71
(¶25) (Miss. 2005); Burchfield v. State, 892 So. 2d 191, 202 (¶45) (Miss. 2004); Felder v. State, 876
So. 2d 372, 373-74 (¶¶7-8) (Miss. 2004); Nichols v. State, 826 So. 2d 1288, 1290-91 (¶¶10-14)
(Miss. 2002); Wade v. State, 802 So. 2d 1023, 1030-31 (¶¶35-40) (Miss. 2001); Bell v. State, 797
So. 2d 945, 950-51 (¶27) (Miss. 2001); Cox v. State, 793 So. 2d 591, 599 (¶38) (Miss. 2001).
¶45.
Notwithstanding the fact that sentences within the statutory guidelines are generally upheld
on appeal, if a sentence is “‘grossly disproportionate’ to the crime committed, the sentence is subject
to attack on the grounds that it violates the Eighth Amendment prohibition of cruel and unusual
punishment.” Tate, 912 So. 2d at 933 (¶49) (citing Hoops v. State, 681 So. 2d 521, 537-38 (Miss.
1996)). Because Carter was sentenced to life in prison without the possibility of parole, “an
extended proportionality analysis” is required. Id. (citing Barnwell v. State, 567 So. 2d 215, 221
(Miss. 1990)).
¶46.
Mississippi utilizes the three-factor analysis set out by the United States Supreme Court in
Solem v. Helm, 463 U.S. 277, 291-92 (1983) when determining a sentence’s proportionality. The
three factors are: (1) the seriousness of the offense and “the harshness of the penalty,” (2) the
sentences imposed on other defendants in the same jurisdiction, even for other unrelated offenses,
and (3) the sentences imposed on other defendants convicted of the same crime in other
jurisdictions. Tate, 912 So. 2d at 932 (¶46) (citing Solem, 463 U.S. at 291-92).
¶47.
Carter does not dispute that sexual battery of a child less than ten years old is a serious
offense that, understandably, warrants harsh penalty. Carter instead focuses on a comparison of the
sentences imposed on defendants in Mississippi and other jurisdictions. Regarding the second
factor, Carter addresses sentences imposed in Mississippi generally, rather than those imposed by
the Pike County Circuit Court. Some of our case law suggests that a proper analysis focuses on the
25
specific jurisdiction, here the Pike County Circuit Court, in which a defendant was sentenced. See
Jones v. State, 885 So. 2d 83, 88 (¶14) (Miss. Ct. App. 2004).
¶48.
Significantly, none of Carter’s arguments regarding other sentences were presented to the
trial court. Rather, every case and statistic was brought up for the first time on appeal. In Edwards
v. State, 800 So. 2d 454, 468 (¶44) (Miss. 2001), the Mississippi Supreme Court noted that a
defendant must bring his statistical information regarding proportionality to the trial court’s attention
in order to preserve the issue for appeal. In so holding, the court noted that “the appellant has the
responsibility to present a trial record sufficient to undergird his assignments of error.” Id. (citing
Hennington v. State, 702 So. 2d 403, 410 (¶29) (Miss. 1997)). Therefore, Carter has failed to
properly preserve this issue for our review.
¶49.
Even had Carter presented the trial court with the information he has presented to this Court,
we would still find no merit to this issue. As illustration, we briefly address each of the cases cited
by Carter as comparison. As Carter correctly points out, the defendant in Dawkins v. State, 919 So.
2d 92, 94 (¶1) (Miss. Ct. App. 2005) received a sentence of twenty years, with ten years suspended,
for the capital rape of his ten-year-old daughter. What Carter fails to mention is that Dawkins
received his sentence pursuant to a guilty plea. As such, the case does not provide a useful
comparison. The same is true of Caldwell v. State, 953 So. 2d 266, 267 (¶3) (Miss. Ct. App. 2007),
which Carter also uses as a comparison. Carter also cites Hodgin v. State, 964 So. 2d 492 (Miss.
2007) and claims that the defendant in that case was sentenced to twenty years. However, Hodgin
was found guilty of two crimes: fondling and sexual battery and was sentenced to twenty years for
each, with the sentences to run consecutively. Id. at 494 (¶1). Therefore, Hodgin was effectively
sentenced to a total term of forty years. Penny v. State, 960 So. 2d 533, 536 (¶1) (Miss. Ct. App.
2006), cited by Carter, involves a conviction for fondling rather than sexual battery, and the
26
defendant in that case accordingly received a more lenient sentence.4
¶50.
Ultimately, the defendants in three cases cited by Carter were convicted of the same or a
similar crime but received lesser punishments: Hodgin, 964 So. 2d at 494 (¶1), in which the
defendant received a total sentence of forty years, twenty of which was for sexual battery; Mason
v. State, 971 So. 2d 618, 619 (¶1) (Miss. Ct. App. 2007), in which the defendant received a sentence
of thirty years for sexual battery; and Roles v. State, 952 So. 2d 1043, 1045 (¶1) (Miss. Ct. App.
2007), wherein the defendant received a sentence of twenty years for the crime of statutory rape of
a thirteen-year-old girl. Although Roles did not involve a sexual battery, the statutory rape of a
thirteen-year-old is similar enough to be taken into account in a proportionality analysis.
¶51.
Carter also cites a 2001 bulletin from the United States Department of Justice which states
that the median sentence for sexual crimes against children less than twelve years old is 180 months.
David Finkelhor and Richard Ormrod, Offenders Incarcerated for Crimes Against Juveniles, 10,
Juvenile Justice Bulletin, December 2001. What Carter fails to note is that that figure is for a wide
variety of sex crimes against children, not simply sexual battery. Id. at 6. Other sexual crimes
against children, such as exposure or fondling, generally carry less severe penalties than the sexual
battery of a child. Furthermore, the authors of the article in question indicated that the survey data
they used was of questionable value because it did not take into account all offenders and because
of the way the sentences in the survey were examined. Id. at 6. Therefore, the bulletin provides no
help to Carter.
¶52.
Carter also contends that had he been indicted federally under 18 U.S.C. § 2242 (2006), his
maximum sentence would be twenty years. Section 2242 currently prescribes a maximum penalty
of “any term of years or life.” Prior to 2006, the statute allowed a maximum sentence of only twenty
4
The fondling statute prescribes a minimum sentence of two years and a maximum of fifteen.
Miss. Code Ann. § 97-5-23(1) (Rev. 2006).
27
years. 18 U.S.C. § 2242 (2000). Section 2242 states:
Whoever, in the special maritime and territorial jurisdiction of the United States or
in a Federal prison, or in any prison, institution, or facility in which persons are held
in custody by direction of or pursuant to a contract or agreement with the head of any
Federal department or agency, knowingly–
(1) causes another person to engage in a sexual act by threatening or placing that
other person in fear (other than by threatening or placing that other person in fear
that any person will be subjected to death, serious bodily injury, or kidnapping); or
(2) engages in a sexual act with another person if that other person is-(A) incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in, or communicating
unwillingness to engage in, that sexual act;
or attempts to do so, shall be fined under this title and imprisoned for any term of
years or for life.
18 U.S.C. § 2242 (2006). Although § 2242 would have carried only a twenty-year maximum
sentence if Carter had been prosecuted under the former version of the statute, it is unlikely that §
2242 would have applied to Carter. Rather, Carter’s conduct would have fallen under 18 U.S.C. §
2241(c) (2006), which states:
Whoever crosses a State line with intent to engage in a sexual act with a person who
has not attained the age of 12 years, or in the special maritime and territorial
jurisdiction of the United States or in a Federal prison, or in any prison, institution,
or facility in which persons are held in custody by direction of or pursuant to a
contract or agreement with the head of any Federal department or agency, knowingly
engages in a sexual act with another person who has not attained the age of 12 years
. . . or attempts to do so, shall be fined under this title and imprisoned for not less
than 30 years or for life.
A sexual act is defined, in part, by 18 U.S.C. § 2246(2)(C) (2006), which states: “the term ‘sexual
act’ means . . . the penetration, however slight, of the anal or genital opening of another by a hand
or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person . . . .” Therefore, Carter’s conduct properly falls under § 2241, which
deals with “sexual acts” against children and which, as already discussed, would provide a
maximum sentence of life.5 Carter’s contentions that he could have received only a twenty-year
5
Section 2241 has provided a maximum penalty of life since at least 1986.
28
sentence under federal law are wholly without merit.
¶53.
Carter further contends that under the United States federal sentencing guidelines, he would
have received a sentence between 151 to 188 months.6 However, Carter provides no examples of
actual sentences received in federal court. The Solem factors indicate nothing about the applicability
of possible or potential sentences; rather, the factors require that we look at the actual convictions
of other defendants in a position similar to Carter’s. However, Carter has not provided any actual
examples of defendants sentenced for similar crimes outside of Mississippi.
¶54.
Although there are certainly Mississippi cases where defendants have been sentenced to less
than life for the crime of sexual battery or other similar crimes, there are also numerous cases where
life sentences have been given by our appellate courts for such crimes. Hobgood, 926 So. 2d at 85657 (¶¶33-35); Renfrow v. State, 882 So. 2d 800, 802 (¶2) (Miss. Ct. App. 2004); Gilmore v. State,
872 So. 2d 744, 746 (¶1) (Miss. Ct. App. 2004); Sanderson v. State, 872 So. 2d 735, 736 (¶1) (Miss.
Ct. App. 2004). We note that the crime that Carter has been convicted of did not carry a potential
life sentence until 1999. Therefore, defendants prior to 1999 could not receive a life sentence for
the crime of sexual battery. Furthermore, the fact that other similarly situated defendants received
lighter sentences “does not prove that the sentenc[e] imposed here [is] grossly disproportionate to
the crime committed.” Jones, 885 So. 2d at 88 (¶14) (quoting Womack v. State, 827 So. 2d 55, 59
(¶13) (Miss. Ct. App. 2002)).
6
We note that Carter is incorrect regarding the calculation of his recommended sentence
under the Federal Sentencing Guidelines. The 2007 Federal Sentencing Guidelines provide a base
offense level of thirty-eight for a conviction under § 2241(c). Sentencing Guidelines Manual, §
2A3.1(a)(1). If Sally were considered to be under Carter’s “custody, care, or supervisory control”
at the time, the base offense level would increase to forty. Id. at § 2A3.1(b)(3). Even if no other
aggravating factors were found, the sentencing table in the 2007 guidelines prescribes a sentence
range of 235 to 293 months for a base offense level of thirty-eight and a sentence range of 292 to
365 months for an offense level of forty. According to the table, if just two more points were added
to Carter’s base offense level, the recommended punishment range would include life.
29
¶55.
Having reviewed the Solem factors, we find that Carter’s sentence is not grossly
disproportionate. Accordingly, this contention of error is without merit.
¶56. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF A TERM OF LIFE IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
30
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