BRIEF OF THE APPELLANT

E-Filed Document Apr 6 2016 16:21:36 2014-KA-01520-COA Pages: 15 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI KENNY STEWART APPELLANT V. NO. 2014-KA-01520-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Mollie M. McMillin, MS Bar No. 102708 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Email: mmcmi@ospd.ms.gov Counsel for Kenny Stewart

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI KENNY STEWART APPELLANT V. NO. 2014-KA-01520-COA STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Kenny Stewart, Appellant 3. Honorable Richard Smith, District Attorney 4. Honorable M. James Chaney, Jr., Circuit Court Judge This the6th day of April 2016. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel i

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...................................... i TABLE OF CONTENTS....................................................... ii TABLE OF AUTHORITIES.................................................... iii STATEMENT OF THE ISSUES.................................................. 1 STATEMENT OF THE CASE................................................... 1 STATEMENT OF THE FACTS.................................................. 2 SUMMARY OF THE ARGUMENT.............................................. 3 ARGUMENT................................................................. 3 I. THE TRIAL COURT ERRED IN FAILING TO DISMISS COUNT II OF THE INDICTMENT. THERE IS NO EVIDENCE TO SUPPORT A SEPARATE ACT OF MOLESTATION, THUS COUNT II MERGES WITH THE SEXUAL BATTERY CHARGED IN COUNT I..................... 3 II. THE INDICTMENT FAILS TO ALLEGE SUFFICIENT FACTS IN COUNT I OR COUNT II IN ORDER TO PUT STEWART ON NOTICE AND TO PROTECT HIM FROM DOUBLE JEOPARDY................. 6 CONCLUSION............................................................... 9 CERTIFICATE OF SERVICE.................................................. 10 ii

TABLE OF AUTHORITIES STATE CASES State v. Berryhill, 703 So. 2d 250 (Miss. 1997)...................................... 6 Boyd v. State, 977 So. 2d 329 (Miss. 2008)......................................... 4 Clemons v. State, 482 So. 2d 1102 (Miss.1985)...................................... 5 Culp v. State, 933 So.2d 264 (Miss. 2005).......................................... 8 Friley v. State, 879 So. 2d 1031 (Miss. 2004)..................................... 4, 5 Gilmer v. State, 955 So. 2d 829 (Miss. 2007)....................................... 6 Goff v. State, 14 So. 3d 625 (Miss. 2009)........................................... 6 Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).............. 6 Hughery v. State, 915 So. 2d 457 (Miss. Ct. App. 2005)............................... 5 Jenkins v. State, 101 So. 3d 161 (Miss. Ct. App. 2012).............................. 5, 8 Milano v. State, 790 So. 2d 179 (Miss. 2001)....................................... 6 Moses v. State, 795 So. 2d 569 (Miss. Ct. App. 2001)................................. 8 Rowland v. State, 98 So. 3d 1032 (Miss. 2012)...................................... 8 Tapper v. State, 47 So. 3d 95 (Miss. 2010)....................................... 5, 8 Woods v. State, 30 So. 3d 362 (Miss. Ct. App. 2009)............................... 5, 8 STATUTES Miss. Const. art. 3, 26 (1890)................................................... 6 U.S. Const. amend. V.......................................................... 4 U.S. Const. amend. VI......................................................... 6 iii

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI KENNY STEWART APPELLANT V. NO. 2014-KA-01520-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES I. The trial court erred in failing to dismiss Count II of the indictment. There is no evidence to support a separate act of molestation, thus Count II merges with the sexual battery charged in Count I. II. The indictment fails to allege the essential elements of Count I or Count II in order to put Stewart on notice and to protect him from double jeopardy. STATEMENT OF THE CASE This case proceeds from the Circuit Court of Warren County, Mississippi, and a judgment of conviction for one count of sexual battery and one count of molestation entered against Kenny Cordell Stewart following a jury trial held on September 22 and 23, 2014, the Honorable M. James Chaney, Jr., Circuit Judge, presiding. (C.P. 19-20, R.E. 4-5). Stewart was represented at trial by Aafram Y. Sellers, Esq. The trial court sentenced Stewart to serve twenty-five (25) years for sexual battery, with five (5) years suspended followed by five (5) years post release supervision. Stewart was also sentenced to seven (7) years, with five (5) suspended, followed by five (5) years postrelease supervision for the molestation conviction, all in the custody of the Mississippi Department of Corrections. (C.P. 24, R.E. 9). The trial court denied Stewart s motion for judgment notwithstanding the verdict or new trial. (C.P. 26; R.E. 10). Stewart now appeals to this Honorable 1

Court for relief. STATEMENT OF THE FACTS Kenny Stewart was indicted in a two-count indictment for sexual battery and molestation of M.L., who was nine years old at the time of the incident. 1 On August 2, 2013, M.L. s mother, Monica, left for work, leaving her three daughters at home with her boyfriend, Kenny Stewart. (Tr. 123). When she got to work, Monica realized that she had spilled something on her clothes, so she asked to go home and change. (Tr. 124). When she got home, Monica realized that M.L. was not in her room with her sisters. (Tr. 125). Monica went to the room she shared with Stewart and saw that the door was closed. (Tr. 125). She opened the door and turned on the bedroom light. When she did, she saw Stewart and M.L. in the bed. M.L. was on her back with her hands behind her head; Stewart was under the covers, with his head between M.L. s legs. (Tr. 125-26). Monica yelled at M.L. to leave the room. (Tr. 127). According to Monica, M.L. was wearing a long tee shirt and did not have her underwear on when she got out of the bed. (Tr. 126, 129, 131). M.L. testified that she went into her mom and Stewart s room that morning looking for a remote for a TV. (Tr. 106). She found the remote and took it back to her room. (Tr. 106). Later, she went back in and Stewart was looking for a joystick for a video game. He asked her to help him find it. (Tr. 107). Stewart then asked M.L. to lay on her back in the bed and to take off her underwear. (Tr. 108-09). M.L. testified that she felt Stewart s tongue inside her vagina. (Tr. 110). No DNA evidence was found when M.L. was examined. (Tr. 151). 1 Because of the nature of this case and the age of the victim, undersigned counsel has substituted the child s initials for her name throughout this brief. 2

SUMMARY OF THE ARGUMENT Stewart was tried and convicted of two separate crimes sexual battery and molesting. At the close of the State s case, defense counsel moved for a directed verdict, which the trial court denied. On Count II, the molesting charge, the State argued to the trial court that the same facts and actions justified that charge as the charge in Count I, sexual battery. Because molesting/gratification of lust is a lesser included offense of sexual battery, and because there was no testimony that Stewart committed any other act of touching, the molesting charge merges with the sexual battery charge. Therefore, Stewart respectfully requests this Court reverse his conviction and sentence in Count II and dismiss the indictment on that Count as it violates principles of double jeopardy. Second, the indictment is defective. Neither Count I nor Count II of the indictment alleges the specific nature of the molesting or the sexual battery in order to put Stewart on notice of the charges so that he could prepare a defense. Further, the indictment does not provide protection from double jeopardy. Because sexual battery and molesting can occur in numerous ways, and because each instance and type of molesting or sexual battery is a separate crime, merely alleging that Stewart committed sexual battery and molesting without describing what acts constituted the crimes alleged violated his rights to due process. Therefore, Stewart respectfully requests this Court reverse his convictions and sentences and dismiss the indictment against him. ARGUMENT I. The trial court erred in failing to dismiss Count II of the indictment. There is no evidence to support a separate act of molestation, thus Count II merges with the sexual battery charged in Count I. Stewart s convictions for sexual battery and molestation stemming not just from the same incident, but from the same specific acts, violates his rights under the Double Jeopardy Clause of the United States Constitution. See U.S. Const. amend. V. This Court applies a de novo standard of 3

review to claims of double jeopardy. Boyd v. State, 977 So. 2d 329, 334 (Miss. 2008). Among other considerations, the double jeopardy clause protects defendants from receiving multiple punishments for the same offense. Id. The indictment against Stewart charged him with sexual battery of M.L., as well as molesting M.L. (C.P. 2). The indictment does not describe how the acts occurred. After the State rested at trial, the defense moved for a directed verdict on both counts. (Tr. 158). Specifically, on Count II, the defense argued that no evidence of a separate act constituting the molestation was presented to the jury. (Tr. 159). The State responded that the evidence for the sexual battery was the same as the evidence for the molestation: (Tr. 160). Your Honor, again, the victim testified in this case. She testified that his mouth was in between her legs on her vagina. Again, we believe that what the victim testified as to [sic] is enough to satisfy the elements both as to sexual battery and as to molestation. M.L. testified that Stewart had her lie on the bed and take off her underwear. She stated that she felt his tongue in her vagina. (Tr. 108-110). That is the only evidence of sexual abuse presented at the trial. While that action could be considered either sexual battery or molestation, it cannot be the basis for both convictions. In Friley v. State, 879 So. 2d 1031 (Miss. 2004), the supreme court reversed this Court s holding that molestation was not a lesser-included offense of sexual battery and held, as a matter of first impression, that in certain cases, molestation may be a lesser-included offense of sexual battery. Friley, 879 So. 2d at 1035. The supreme court reasoned that Friley was indicted for sexual battery, which requires penetration. He was convicted of molestation, which requires touching. A plain reading of the statutes shows that sexual battery (penetration) includes molestation (touching). It is 4

impossible to penetrate without touching. Id. at 15. Further, the Court in Friley stated that when penetration occurs through touching of a child under age 14, as was the case here, molestation is a lesser-included offense of sexual battery. Id. at 18. The case law following Friley makes clear that molestation will not always be a lesserincluded offense that will merge with a sexual battery charge. In Woods v. State, 30 So. 3d 362 (Miss. Ct. App. 2009), this Court distinguished the facts of Woods from those in Friley. Essentially, this Court noted that because there were separate acts of touching the child, then the acts constituted separate crimes. Id. at 366-67. Therefore, Friley did not apply. In Tapper v. State, 47 So. 3d 95 (Miss. 2010), the supreme court noted that the allegations in the Tapper case concerned separate events of sexual battery and unlawful touching. Id. at 103 ( 30). Thus, the evidence in Tapper supported convictions for separate crimes. See also, Jenkins v. State, 101 So. 3d 161, 168-69 (Miss. Ct. App. 2012). Unlike Woods, Tapper, and Jenkins, the facts in this case do not support separate convictions for sexual battery and molestation. The State admitted as much when responding to the defense motion for directed verdict. There is no evidence of a separate touching, aside from the evidence that Stewart penetrated M.L. s vagina with his tongue. [I]it is well-settled that separate acts, though committed close in point of time to one another, may constitute separate criminal offenses. Hughery v. State, 915 So. 2d 457, 459 (Miss. Ct. App. 2005) (citing Clemons v. State, 482 So. 2d 1102, 1106 (Miss.1985)). However, [t]he State simply may not obtain convictions on separate, independent multiple charges without offering separate and independent proof to sustain each charge. Clemons, 482 So. 2d at 1106. Based on the foregoing, Stewart submits that his right not to be subjected to double jeopardy has been violated, and he urges this Court to reverse his conviction and sentence for molestation and 5

dismiss that count of the indictment. II. The indictment fails to allege sufficient facts in Count I or Count II in order to put Stewart on notice and to protect him from double jeopardy. In all criminal prosecutions, the accused shall enjoy the right... to be informed of the nature and cause of the accusation. U.S. Const. amend. VI; see also Miss. Const. art. 3, 26 (1890) ( In all criminal prosecutions the accused shall have the right... to demand the nature and cause of the accusation. ). The purpose of an indictment is to furnish the defendant with notice and a reasonable description of the charges against him so that he may prepare his defense. Goff v. State, 14 So. 3d 625, 665 (Miss. 2009). An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. Gilmer v. State, 955 So. 2d 829, 836-37 ( 24) (Miss. 2007) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974)). Failure to challenge the sufficiency of the indictment at the trial court level does not bar this Court from considering the issue. In Milano v. State, 790 So. 2d 179 (Miss. 2001), the supreme court noted that [o]bjections to indictments that fail to charge an essential element of the crime to be charged may not be waived, and may be raised for the first time on appeal. Milano, 790 So. 2d at 186 ( 28) (citing State v. Berryhill, 703 So. 2d 250, 254 (Miss. 1997) ( [C]hallenges to the substantive sufficiency of an indictment are not waivable. Thus, they may be first raised at any time, including on appeal. ). The indictment against Stewart was insufficient because it failed to allege specific facts to fairly inform him of the charges against which he must defend, and it lacked specific facts to enable him to plead double jeopardy in a future prosecution. The indictment alleged in Count I that Stewart 6

engaged in sexual penetration with a child M.L. who was under the age of 14 years, whose date of birth was September 9, 2003 and who was twenty-four (24) or more months younger than said defendant whose date of birth was September 16, 1984, in violation of Mississippi Code 1972, Ann. Sec 97-3-95(1)(d).... Count II charged that Stewart, being a person above the age of eighteen (18) years, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, did handle, touch or rub with his hands or other parts of his body or some member thereof M.L., a child under sixteen (16) years of age, in violation of Miss. Code 1972, Ann. Section 97-5-23.... (C.P. 2-3). Neither count of the indictment gives any facts that would put Stewart on notice of the charges he would have to defend; nor does the indictment provide sufficient facts to enable Stewart to later plead double jeopardy. Mississippi Code Annotated section 97-3-95(1)(d) defines sexual battery as sexual penetration with a child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child. Penetration can occur in a number of ways: includ[ing] cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person's body by any part of a person's body, and insertion of any object into the genital or anal openings of another person's body. Miss. Code. Ann. 97-3-97. Mississippi Code Annotated section 97-5-23 defines molesting (or fondling) as follows: (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 thereof, or with any object, any child under the age of sixteen (16) years, with or without the child's consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony.... With both sexual battery and molestation, there are numerous ways that the crime can be accomplished. And, as noted in cases cited in Issue I, each distinct method of accomplishing a 7

sexual battery or fondling could be considered a separate crime. See Tapper, 47 So. 3d at 103; Woods, 30 So. 3d at 366-67; Jenkins, 101 So. 3d at 168-69. Without specificity in the indictment as to what acts Stewart is accused of committing to effect a sexual battery and/or molestation, his indictment is insufficient and should be dismissed. The supreme court has emphasized that it is the charges as indicted not the underlying facts that we consider when addressing a double-jeopardy claim. Rowland v. State, 98 So. 3d 1032, 1039 (Miss. 2012) (citing Culp v. State, 933 So.2d 264, 281 (Miss. 2005)). In Moses v. State, 795 So. 2d 569 (Miss. Ct. App. 2001), this Court reversed Willie Moses convictions for various sex offenses against children because the indictment against him gave insufficient notice of the allegations such that he could not mount a proper defense. Moses, 795 So. 2d at 574. Moses was indicted on twenty-two separate charges, with the separate counts using identical language and date ranges. This Court found the indictment fail[ed] woefully to fulfill the fundamental purpose of an indictment, and cited to the State s failure to narrow the date ranges despite having information available that would have allowed for a more specific indictment. Id at 572. While the Moses case dealt more with the dates alleged in the indictment, the holding applies here, too, as the State had the information about what specific acts led to the charges and simply did not include them in the indictment. Stewart s indictment does not provide sufficient information to inform him of what the State sought to prove at trial, nor did it include sufficient facts to allow him to plead double jeopardy later. Because there are numerous ways to commit both sexual battery and molestation/fondling, the lack of information in the indictment renders it insufficient. Because the indictment failed to allege specific facts that would allow Stewart to later plead double jeopardy, Stewart respectfully contends that the indictment is insufficient, that his convictions 8

should be reversed, and the indictment against him should be dismissed. CONCLUSION Stewart submits that based on the propositions cited and briefed above, together with any plain error noticed by this Court which has not been specifically raised but may appear to the Court on a full review of the record, the judgment of the trial court and Stewart s convictions and sentences should be reversed and the indictment against him should be dismissed. Respectfully submitted, KENNY STEWART, APPELLANT /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 9

CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for Kenny Stewart, do hereby certify that on this day I electronically filed the forgoing BRIEF OF THE APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Jason L. Davis Attorney General Office Post Office Box 220 Jackson, MS 39205-0220 Further, I have this day caused to be mailed via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non- MEC participants: Honorable M. James Chaney, Jr. Circuit Court Judge Post Office Box 351 Vicksburg, MS 39181 Honorable Richard Smith District Attorney, District 9 Post Office Box 648 Vicksburg, MS 39181 Kenny Stewart, MDOC #193812 East Mississippi Correctional Facility 10641 Highway 80 East Meridian, Mississippi 39307 This the 6th day of April 2016. /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel Mollie M. McMillin, MS Bar No. 102708 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER 10

Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Email: mmcmi@ospd.ms.gov 11