        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-KA-00783-COA

JEFFERY MITCHUM A/K/A JEFFREY ODELL                                         APPELLANT
MITCHUM

v.
                                                                              APPELLEE
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                          02/13/2013
TRIAL JUDGE:                               HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:                 RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   KEVIN DALE CAMP
                                           JARED KEITH TOMLINSON
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: MELANIE DOTSON THOMAS
DISTRICT ATTORNEY:                         MICHAEL GUEST
NATURE OF THE CASE:                        CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                   CONVICTED OF COUNT I,
                                           GRATIFICATION OF LUST, AND
                                           SENTENCED TO FIFTEEN YEARS, AND
                                           COUNT II, SEXUAL BATTERY, AND
                                           SENTENCED TO THIRTY YEARS, WITH
                                           THE SENTENCES TO RUN
                                           CONCURRENTLY, ALL IN THE CUSTODY
                                           OF THE MISSISSIPPI DEPARTMENT OF
                                           CORRECTIONS
DISPOSITION:                               AFFIRMED: 09/23/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ROBERTS AND CARLTON, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Jeffery Mitchum appeals his convictions of sexual battery and gratification of lust.

He argues that: the evidence was insufficient to support the verdict, the verdict was against

the overwhelming weight of the evidence, and the trial court erred when it allowed hearsay
statements. We find no error and affirm.

                                           FACTS

¶2.    In 2011, Mitchum lived with his mother, Tricia Lewis, and his stepfather, Brad Lewis.

Tricia’s daughter, Alice Jones,1 also resided with them. She was four years old. Mitchum

and Alice were half-siblings. A total of nine people lived in the Lewises’ three-bedroom

house. Because there were few bedrooms, Mitchum slept on the living-room couch.

¶3.    On August 31, 2011, Alice was taken to the University of Mississippi Medical Center

(“UMC”) pediatric emergency room. Tricia had noticed a rash on Alice’s vaginal area that

caused redness and pain around her stomach. This was not the first time Alice had

experienced these rashes.

¶4.    While at the emergency room, Alice was examined by Dr. Mary Catherine Stone. Dr.

Stone testified that Alice was brought to the emergency room because of a sexual-assault

complaint. Alice was accompanied by Tricia and Brad. During the examination, Dr. Stone

observed redness and swelling in Alice’s vaginal area. Additionally, Dr. Stone noticed that

Alice’s “vaginal opening was a little bit more generous than what you normally expect for

a child her age.” Alice told Dr. Stone that Mitchum had “tampered with her sexually.” Dr.

Stone testified that when Alice discussed what had occurred between her and Mitchum, she

was very clear and had no hesitation. However, Dr. Stone could not confirm that Alice was

sexually assaulted.

¶5.    Tiffany Kay Robinson, an employee of the Department of Human Services, was



       1
         The names of the minor and her family have been changed for confidentiality
purposes.

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contacted to speak with Alice and her parents. She met them at the emergency room.

Tiffany testified that Tricia told her that she and Alice were going to stay in a hotel room and

that Mitchum was going to move out. Tiffany visited the Lewises’ home and found that it

was safe for Alice to live in.

¶6.    Dr. Scott Benton, the State’s expert witness, testified that Alice was referred to him

by the UMC pediatric emergency department. Dr. Benton initially spoke with Tricia, who

told him that she became concerned about Alice’s condition when Alice made complaints

about painful urination. While bathing Alice, Tricia had noticed that Alice’s vaginal area

was swollen. Tricia questioned Alice, and Alice told her that Mitchum touched her vaginal

area. Tricia told Dr. Benton that Mitchum had touched Alice with his fingers and something

Alice referred to as a “jo-jo,” which Alice described as a “stick with hair.” Dr. Benton

conducted a medical and case history on Alice, along with a physical examination, to

determine whether sexual abuse had occurred. He concluded that a sexual assault had

occurred.

¶7.    Investigator Shawn Terwilliger interviewed Mitchum on four occasions. Mitchum

denied the allegations of sexual abuse. Initially, Mitchum told Investigator Terwilliger that

Alice had never slept on the couch with him. He also denied that he had ever masturbated

while on the couch. During his third interview, he admitted that Alice had slept with him on

the couch, because she got scared. During this same interview, he also admitted that he had

masturbated at some point while on the couch. Mitchum acknowledged that he had lied

about the masturbation, because he was “embarrassed.”

¶8.    Alice testified as a defense witness. On direct examination, she denied that Mitchum


                                               3
had ever sexually abused her or touched her inappropriately. On cross-examination, Alice

admitted that she remembered telling the State’s attorney that Mitchum had touched her

“down below.”

¶9.    Mitchum also testified and denied the allegations. He testified that when he was

called in for interrogation by the police department, he was asked to give a mouth swab to

check for DNA. He complied.

¶10.   In October 2012, Mitchum was convicted of sexual battery, a violation of Mississippi

Code Annotated section 97-3-95(1)(d) (Rev. 2006), and gratification of lust, a violation of

Mississippi Code Annotated section 97-5-23(1) (Rev. 2006). He was sentenced to thirty

years for the sexual-battery conviction and fifteen years for the gratification-of-lust

conviction, to be served concurrently. He was also required to register as a sex offender upon

his release. Mitchum filed a motion for a judgment notwithstanding the verdict, or in the

alternative, a new trial. The motion was denied. It is from this judgment that Mitchum now

appeals.

                                        ANALYSIS

       I.     Sufficiency of the Evidence

¶11.   Mitchum argues that the trial court abused its discretion when it denied his motions

for a directed verdict and judgment notwithstanding the verdict. Mitchum asserts that the

evidence was insufficient to show beyond a reasonable doubt that he committed sexual

battery and gratification of lust.

¶12.   In Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005), the Mississippi Supreme

Court held:


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       In considering whether the evidence is sufficient to sustain a conviction in the
       face of a motion for [a] directed verdict or for [a] judgment notwithstanding
       the verdict, the critical inquiry is whether the evidence shows “beyond a
       reasonable doubt that the accused committed the act charged, and that he did
       so under such circumstances that every element of the offense existed; and
       where the evidence fails to meet this test it is insufficient to support a
       conviction.”

(Quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). Motions for a directed verdict

and a judgment notwithstanding the verdict challenge the legal sufficiency of the evidence.

McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). The court will not reverse unless

reasonable and fair-minded jurors could only find the accused not guilty. Ferguson v. State,

137 So. 3d 240, 243 (¶6) (Miss. 2014).

¶13.   Mitchum was convicted of violating both section 97-3-95(1)(d) and section 97-5-

23(1). Under section 97-3-95(1)(d), “[a] person is guilty of sexual battery if he or she

engages in sexual penetration with . . . [a] child under the age of fourteen (14) years of age,

if the person is twenty-four (24) or more months older than the child.” Under section 97-5-

23(1), a person is guilty of fondling a child if he or she is eighteen years or older, and, “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, any child under the age of sixteen years, with or without the child's consent.”

¶14.   Mitchum asserts that under both statutes, there was no credible evidence submitted

that established the necessary elements beyond a reasonable doubt.            To support this

argument, Mitchum contends that a review of the record reveals that the bulk of the evidence

submitted by the State to support the indictment consisted of supposed statements made by

Alice but communicated to others via Tricia. Additionally, Mitchum asserts that parts of


                                               5
these statements were never uttered by Alice to the doctors or investigators, and when

questioned at trial, Alice denied the claims. Further, Alice told Tricia previously that she

made up the entire thing. Mitchum also asserts that there is no physical evidence to prove

that the acts occurred.

¶15.   This Court, in Williams v. State, 879 So. 2d 1126, 1128 (¶5) (Miss. Ct. App. 2004),

held “the absence of physical evidence does not negate a conviction where there is

testimonial evidence.” (Quoting Graham v. State, 812 So. 2d 1150, 1153 (¶9) (Miss. Ct.

App. 2002)). Williams argued that aside from the victim’s testimony, there was no direct

physical evidence that linked him to the crime. Id. However, this Court found that there was

enough evidence to support his guilty verdict. Id. at (¶6).

¶16.   On direct examination, Alice testified:

       Q.     Has anybody ever touched you –

       A.     No.

       Q.     – where it hurts? Okay. Has [Mitchum] ever touched your down
              below?

       A.     No.

       Q.     Have you ever seen [Mitchum]’s down below?

       A.     No.

       Q.     Did Jeffrey ever put a stick in your mouth?

       A.     No.

On cross-examination. Alice testified:

       Q.     . . . And do you remember you telling me that he touched you once?



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A.     (Witness nods head affirmatively.)

Q.     You remember that? And you told me that when you told him to stop,
       he stopped? Do you remember telling me that?

A.     (Witness nods head affirmatively.)

Q.     And do you remember me telling you about - - you told me that he
       touched you with a stick?

A.     (Witness shakes head negatively.)

Q.     You don’t remember telling me that Friday?

A.     (Witness shakes head negatively.)

Q.     Do you remember telling me something came out of the stick?

A.     No.

Q.     Remember when we talked Friday, okay?

A.     (Witness nods head affirmatively.)

Q.     All right. You sat in the little chair across from my desk and told me
       something came out of the stick. Do you remember what that was?

A.     (Witness shakes head negatively.)

Q.     I’m going to ask that you look at me when I’m talking. That way you
       can hear my questions better if you’re looking at me, okay? All right.
       [Alice], everybody here just wants you to tell the truth. I know you’d
       rather be at school today . . . .

....

Q.     And you do remember telling me that [Mitchum] touched you down
       below?

A.     (Witness nods head affirmatively.)

....



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¶17.   Alice was four years old, and Mitchum was twenty-two years old. Alice

acknowledged multiple times that Mitchum touched her. Although she was hesitant on direct

examination to state that Mitchum touched her, on cross-examination Alice admitted that she

had told the prosecutor of the sexual assault. Based on Alice’s testimony and her earlier

statements to her mother and the physicians, along with the physical examinations by the

physicians, we find that there was sufficient evidence to support the guilty verdict.

Therefore, this issue is without merit.

       II.    Weight of the Evidence

¶18.   Mitchum argues that the he should be granted a new trial, because the weight of the

evidence does not support a conviction of sexual battery and gratification of lust.

¶19.   This Court reviews a trial court's denial of a motion for a new trial based on an

abuse-of-discretion standard. Butler v. State, 102 So. 3d 260, 268 (¶23) (Miss. 2012).

Similar to the trial court's standard, this Court has the authority to grant a new trial when the

Court determines, in its discretion, that the verdict “is so contrary to the overwhelming

weight of the evidence that to allow the verdict to stand would sanction an unconscionable

injustice[.]” Id. “If, upon evaluating the evidence in the light most favorable to the verdict,

this Court finds itself in disagreement with the jury's verdict, the proper remedy is to grant

a new trial.” Patterson v. State, 37 So. 3d 702, 704 (¶10) (Miss. Ct. App. 2010).

¶20.   Mitchum contends that the State failed to submit conclusive evidence to support his

conviction.   Mitchum argues that the doctors could not determine through physical

examination whether sexual abuse had occurred. Additionally, Mitchum points to the fact

that Alice denied the allegations later.


                                               8
¶21.   Alice gave details to the physicians and Tricia that described the sexual abuse that

occurred. A physical examination of her vaginal area showed swelling and redness. Further,

while Alice denied the allegations during direct examination, she admitted during cross-

examination that she remembered telling the State attorney that Mitchum had touched her.

Dr. Benton testified that it was his expert opinion that sexual abuse had occurred.

¶22.   When we consider the evidence presented in the light most favorable to the State, we

cannot conclude that the verdict is so contrary to the overwhelming weight of the evidence

that to allow it to stand would sanction an unconscionable injustice. Accordingly, we find

no merit to this issue.

       III.   Hearsay Statements

¶23.   Mitchum argues that the trial court erred when it allowed Dr. Benton to testify

regarding the forensic investigation he conducted on Alice, along with the statements she

made during the interview. Mitchum contends that the statements that Alice made to Dr.

Benton fail to meet the requirements of an exception to the hearsay rule under Mississippi

Rule of Evidence 803(4), “Statements for Purposes of Medical Diagnosis or Treatment.”

Mitchum argues that the statements were not made for the purpose of promoting medical

treatment. Mitchum contends that the treatment phase of Alice’s examination was already

completed before Dr. Benton interviewed her.

¶24.   This Court reviews “the admission or exclusion of evidence under an

abuse-of-discretion standard of review.” Clark v. State, 122 So. 3d 129, 132 (¶10) (Miss. Ct.

App. 2013) (citing Jones v. State, 904 So. 2d 149, 152 (¶7) (Miss. 2005)).

¶25.   Admission of hearsay testimony pursuant to Rule 803(4) is a two-step analysis. First,


                                             9
the declarant’s motive when making the statement must be consistent with the purpose of

promoting treatment; and second, the statement’s content must be such as is reasonably relied

upon by a physician in treatment. Wilson v. State, 96 So. 3d 721, 727 (¶16) (Miss. 2012)

(quoting Branch v. State, 998 So. 2d 411, 414 (¶10) (Miss. 2008)). In Branch, the supreme

court found that both prongs of the two-step analysis had been met. Id. at 415 (¶¶11, 12).

The first was satisfied because the interview with the forensic investigator was crucial to

determine if further medical assistance was needed and to judge whether the victim’s claims

were reliable. Id. at (¶11). The second was met when the victim identified her father as the

abuser. Id. at (¶12); see Jones v. State, 606 So. 2d 1051, 1056-57 (Miss. 1992) (victim's

statement that identified abuser as member of household is reasonably pertinent to treatment).

¶26.   Here, Alice was referred to Dr. Benton by UMC’s pediatric emergency department

for further evaluation, because Dr. Benton was an expert in this type of medical trauma. In

addition to his interview with Alice, Dr. Benton performed a medical and case history and

physical examination of Alice. Dr. Benton noticed that Alice had labial adhesions that could

be associated with sexual trauma. He asked Alice questions to ascertain whether sexual

trauma had occurred. Specifically, he asked her what had happened. Alice gave a detailed

description of the sexual abuse that had occurred between Mitchum and her.

¶27.   In applying the two-step analysis, we find that the first was satisfied because Alice’s

interview with Dr. Benton was crucial to determine if Alice needed further medical

assistance. The second was satisfied due to the fact that Mitchum was her half-brother who

lived in the same household.

¶28.   Accordingly, we find that the trial court was within its discretion to admit this


                                             10
evidence. Therefore, this issue is without merit.

¶29. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, GRATIFICATION OF LUST, AND SENTENCE OF
FIFTEEN YEARS, AND COUNT II, SEXUAL BATTERY, AND SENTENCE OF
THIRTY YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

   LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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