                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-KA-00970-SCT

SCOTT OLIVER CALDWELL

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         03/02/2007
TRIAL JUDGE:                              HON. SHARION R. AYCOCK
COURT FROM WHICH APPEALED:                LEE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  PHILLIP BROADHEAD
                                          LESLIE S. LEE
                                          WILLIAM C. BRISTOW
                                          ERIN ELIZABETH PRIDGEN
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JOHN R. HENRY
DISTRICT ATTORNEY:                        JOHN RICHARD YOUNG
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 02/19/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       GRAVES, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Scott Oliver Caldwell was convicted of sexual battery in the Circuit Court of Lee

County, Mississippi, and sentenced to thirty-five years to be served in the custody of the

Mississippi Department of Corrections, with five years suspended and five years post-release

supervision. Thereafter, Caldwell’s post-trial motions were denied and he perfected this

appeal.

                                         FACTS
¶2.    On July 19, 2005, a Lee County grand jury handed down an indictment against Scott

Oliver Caldwell for two counts of sexual battery against his then-seven-year-old

stepdaughter, J.D. During Caldwell’s trial in February 2007, the State presented testimony

from J.D., J.D.’s aunt to whom she first reported the assault, counselors who examined J.D.,

and others. This testimony established that Caldwell had performed acts of fellatio, digital

penetration, and cunnilingus on J.D.; that Caldwell had allowed J.D. to smoke cigarettes with

him; that Caldwell had watched a pornographic movie with J.D.; and that she had eventually

reported to her aunt that Caldwell was “sexing” her.

¶3.    Evidence was also presented that Caldwell’s sons (J.D.’s stepbrothers) had molested

J.D. by “humping” her. The defense theorized that these incidents formed the basis of the

victim’s knowledge of sexual matters, and that her accusations against Caldwell amounted

to an act of revenge for not protecting her from her stepbrothers. Caldwell was not permitted

to question J.D. about the attacks by her stepbrothers, but was allowed to question other

witnesses about the incidents.

¶4.    During the course of the trial, evidence emerged to show indisputably that the

indictment’s second count of sexual battery referred to an incident that had occurred not in

Lee County but in neighboring Itawamba County – and therefore was outside the jurisdiction

of the Lee County Circuit Court. The trial court initially ruled that the jury would be

required to disregard all references to any activity that took place outside Lee County, but

later ruled that evidence regarding such activity would be admissible under Mississippi Rule

of Evidence 404(b), which governs evidence of prior bad acts. The trial court also granted

a directed verdict for Caldwell on this count in the indictment. On February 28, 2007, a Lee


                                             2
County Circuit Court jury convicted Caldwell of the remaining count of sexual battery.

Caldwell was sentenced to serve thirty-five years in the custody of the Mississippi

Department of Corrections, with five years suspended and five years post-release

supervision. Caldwell appeals from that conviction.

                                           ANALYSIS

I. Whether the trial court erred in failing to dismiss both counts of the indictment after
the testimony disclosed that the facts alleged in count II occurred in Itawamba County
rather than in Lee County.

¶5.    Caldwell contends that the Lee County Circuit Court committed reversible error by

allowing evidence of an alleged sexual battery that had occurred in Itawamba County, even

after the trial court realized that it did not have jurisdiction. This Court reverses a trial court’s

admission of evidence only when the trial court abuses its discretion. Cox v. State, 849 So.

2d 1257, 1268 (Miss. 2003). See also Mitchell v. State, 792 So. 2d 192, 217 (Miss. 2001)

(“However, this discretion must be exercised within the confines of the Mississippi Rules of

Evidence. . . . Reversal is proper only where such discretion has been abused and a

substantial right of a party has been affected.”)

¶6.    Mississippi Rule of Evidence 404(b) governs whether evidence of prior bad acts is

admissible. Although evidence of prior bad acts ordinarily is not admissible to show

conformity therewith, “[i]t may, however, be admissible for other purposes such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Miss. R. Evid. 404(b). This list of available uses of evidence showing prior bad

acts is not exclusive. Id. cmt. This Court has repeatedly held that “evidence of prior sexual

acts between the accused and the victim is admissible to show the accused’s lustful,

                                                 3
lascivious disposition toward the particular victim, especially in circumstances where the

victim is under the age of consent.” Walker v. State, 878 So. 2d 913, 915 (Miss. 2004)

(citations omitted). The trial court clearly admitted the evidence regarding the Itawamba

County battery for that limited purpose.

¶7.    The particular problem in the case at bar, though, is the intertwined manner in which

the Rule 404(b) evidence was presented alongside the evidence of substantive guilt. Even

if evidence is admissible under Rule 404(b), it still must pass through the “ultimate filter” of

Mississippi Rule of Evidence 403. Jasper v. State, 759 So. 2d 1136, 1141 (Miss. 1999)

(citations omitted). Rule 403 commands that evidence should be excluded, even if relevant,

“if its probative value is substantially outweighed by the danger of . . . confusion of the

issues . . . .” Miss. R. Evid. 403 (emphasis added). This is a determination on which this

Court grants great deference to the trial judge, and even when the probative value of evidence

is slightly outweighed by Rule 403 concerns, it must be admitted. Brown v. State, 749 So.

2d 204, 210 (Miss. Ct. App. 1999). However, it is axiomatic that when the probative value

of evidence, notwithstanding its relevance, not only is substantially outweighed by the danger

of issue confusion but does in fact result in issue confusion, Rule 403 is violated. Gaines v.

K-Mart Corp., 860 So. 2d 1214, 1219 (Miss. 2003) (“. . . Rule 403 prohibits the use of any

evidence that substantially confuses the issues.”).

¶8.    In the instant case, evidence of both counts in the indictment was presented side by

side, leaving no opportunity for a reasonable jury to distinguish between evidence presented

for substantive guilt and evidence presented to show lustful disposition. For example, during

the State’s direct examination of Dr. Margaret Koranek, a child therapist who examined the

                                               4
victim, evidence of battery was presented despite Dr. Koranek’s admission that she did not

know whether the battery took place in Lee County or Itawamba County. Even the trial

judge became confused by the State’s intertwined evidence. Under Rule 404(b), evidence

of prior bad acts must be clearly distinguished from evidence of substantive guilt so as to

make clear the limited purpose for which it is offered. The trial erred by failing to make that

distinction.

¶9.    However, when Rule 404(b) evidence is presented and the trial court fails to

distinguish it from evidence of substantive guilt, harmless error will not warrant reversal.

Baldwin v. State, 732 So. 2d 236, 245 (Miss. 1999). See also Carter v. State, 722 So. 2d

1258, 1262 (Miss. 1998). In the instant case, whatever error the trial court committed in

failing to distinguish the Rule 404(b) evidence clearly was harmless. Erroneously admitted

evidence is harmless when “the same result would have been reached had [error] not

existed.” Tate v. Smith, 912 So. 2d 919, 926 (Miss. 2005) (quoting Burnside v. State, 882

So. 2d 212, 216 (Miss. 2004)). The State produced overwhelming evidence of Caldwell’s

guilt that went undiscredited. Whatever evidence was admitted by Rule 404(b) was merely

superfluous, notwithstanding the trial court’s failure to properly distinguish its limited

purpose.

¶10.   Because the trial court’s failure to distinguish the evidence of prior bad acts under

Rule 404(b) was harmless error, the trial court’s refusal to grant Caldwell’s request for a

mistrial on the entire indictment was not error. We find that this issue is without merit.

II. Whether the trial court erred in excluding testimony about prior sexual abuse of the
child under Mississippi Rule of Evidence 412 and in admitting evidence under
Mississippi Rule of Evidence 803(25), the “tender-years” doctrine.

                                              5
¶11.   Caldwell alleges that the trial court erred when it denied him, pursuant to Rule 412,

the opportunity to call the victim’s stepbrothers to discuss their attacks against the victim.

As with this appeal’s first issue, this is a question regarding the trial court’s decision on the

admissibility of evidence. The decision is reviewed for abuse of discretion. Cox v. State, 849

So. 2d 1257, 1268 (Miss. 2003).

¶12.   Generally, in prosecutions of sexual offenses, reputation or opinion evidence

regarding a victim’s past sexual behavior is irrelevant and inadmissible. Miss. R. Evid.

412(a). However, Rule 412(b) permits evidence of “[p]ast sexual behavior with persons

other than the accused, offered by the accused upon the issue of whether the accused was or

was not, with respect to the alleged victim, the source of . . . injury . . . .” Miss. R. Evid.

412(b)(2)(A).1

¶13.   Caldwell contends that the trial court erred by not permitting him to procure the

testimony of his stepsons who molested the victim. Caldwell hoped to show that their

batteries, and not any acts on his part, gave the then-seven-year-old victim her unusually

detailed knowledge of sexual matters. This argument hinges on whether the victim’s

premature knowledge of sexual matters is an “injury” for purposes of Rule 412.

¶14.   However, this Court has not held that a child’s knowledge of sexual matters is an

“injury.” The closest that the Court has come to such a holding came in a 1996 case in which




       1
        This use of past sexual behavior is subject to a fifteen-day notice requirement.
Miss. R. Evid. 412(c)(1). Caldwell concedes that he did not comply with that
requirement. However, the State never raised a timeliness objection at trial, and this
Court has held that such a failure waives the notice deficiency. Herrington v. State, 690
So. 2d 1132, 1137 (Miss. 1997).

                                               6
the justices rejected Rule 412 evidence of the cause of a sex-crime victim’s emotional

trauma, not because emotional trauma did not qualify as an “injury,” but because the

evidence offered by the defense to address that trauma was not reliable. Peterson v. State,

671 So. 2d 647, 658-59 (Miss. 1996) (superseded on other grounds by statute as discussed

in Caston v. State, 949 So. 2d 852, 856 (Miss. Ct. App. 2007)).

¶15.   Still, Caldwell did not seek to introduce this testimony because it showed the source

of emotional trauma or psychological injury, but rather the victim’s knowledge of sexual

matters. This Court has not addressed the question of whether such testimony is admissible

to show the victim’s knowledge of sexual matters, and ultimately, it need not reach that

determination in this case. Although the trial court denied Caldwell his preferred avenue for

producing evidence of his sons’ attacks, he was allowed to produce this evidence through

other means. The Sixth Amendment’s guarantee of a fair trial does not permit the Court to

construe Rule 412 so strictly as to deprive Caldwell of “a meaningful opportunity to present

a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed.

2d 413 (1984). But in the instant case, the trial court permitted Caldwell to produce evidence

of his sons’ assaults upon the victim through cross-examination of several other witnesses.

¶16.   The trial court’s decision not to allow Caldwell to call the victim’s stepbrothers did

not deprive the defendant of an ample opportunity to present his theory of the case.

Therefore, we find that this assignment of error is without merit.

¶17.   Caldwell also asserts that the trial court deprived him of his Sixth Amendment right

to confront his accuser by permitting the State to produce evidence of the victim’s other




                                              7
attacks through the hearsay testimony of a rebuttal witness, rather than by requiring the State

to recall the victim to the witness stand.2

¶18.   Among Mississippi’s numerous exceptions to the hearsay rule is Rule 803(25),

commonly known as the “tender-years exception.” This rule allows hearsay testimony

regarding a child’s statement regarding sexual contact by another if “the court finds . . . that

the time, content, and circumstances of the statement provide substantial indicia of reliability;

and . . . the child . . . testifies at the proceedings . . . .” Miss. R. Evid. 803(25)(a)-(b)(1).

¶19.   It is beyond dispute that the trial court held a preliminary hearing on the permissibility

of this hearsay evidence, but Caldwell contends that J.D. did not, for purposes of Rule

803(25), “testif[y] at the proceedings.” Miss. R. Evid. 803(25)(b)(1). Because the Rule

803(25) testimony was produced long after J.D. had left the stand, Caldwell argues that he

was deprived of an opportunity to cross-examine J.D. on the substance of the rebuttal

witness’ hearsay testimony.

¶20.   Caldwell had every opportunity to recall J.D. to the stand as a rebuttal witness – a fact

admitted in his brief to this Court. Caldwell contends that his hands were tied because

recalling J.D. would have made his attorneys – and, ultimately, him – look like a bully in

front of the jury. The question of whether to put J.D. back on the stand was a matter of

strategy, and an appellate court will not reverse for matters within the ambit of trial strategy.




       2
        Caldwell failed to object at trial to the Rule 803(25) evidence, but this Court has
held that a failure to timely object to such testimony does not waive the Sixth
Amendment right to confront witnesses. Hobgood v. State, 926 So. 2d 847, 852 (Miss.
2006).

                                                 8
See Spicer v. State, 973 So. 2d 184, 203 (Miss. 2007) (quoting Powell v. State, 806 So. 2d

1069, 1077 (Miss. 2001)).

¶21.   Because Caldwell could have recalled the victim after the admission of the Rule

803(25) testimony but chose not to do so, the admission of this hearsay evidence did not

violate his Sixth Amendment right to confront his accuser. We find that this assertion is also

without merit.

III. Whether the trial court erred in denying Caldwell’s motion for a new trial because
the verdict was contrary to the overwhelming weight of the evidence.

¶22.   Finally, Caldwell asserts that the trial judge erred by declining to grant his motion for

a new trial because the jury reached its verdict against the great weight of the evidence.

Denial of such a motion is reviewed for an abuse of discretion. Dudley v. State, 719 So. 2d

180, 182 (Miss. 1998). “In determining whether a jury verdict is against the overwhelming

weight of the evidence, this Court must accept as true the evidence which supports the

verdict and will reverse only when convinced that the circuit court has abused its discretion

in failing to grant a new trial.” Id. (quoting Herring v. State, 691 So. 2d 948, 957 (Miss.

1997)). “Only in those cases where the verdict is so contrary to the overwhelming weight

of the evidence that to allow it to stand would sanction an unconscionable injustice will this

Court disturb it on appeal.” Id. (quoting Pleasant v. State, 701 So. 2d 799, 802 (Miss.

1997)).

¶23.   The evidence presented in this case fully proves the elements of sexual battery. J.D.’s

testimony regarding the incidents of sexual battery was never discredited, and all other

witness testimony was consistent with J.D.’s account. Matters regarding the credibility and



                                               9
weight to be accorded the evidence are to be resolved by the jury. Meshell v. State, 506 So.

2d 989, 992 (Miss. 1987). The fact that the jury did not believe Caldwell’s theory of the case

does not render the verdict untenable.

¶24.   The jury’s verdict was not against the overwhelming weight of the evidence, and the

trial court did not err when it denied Caldwell’s motion for a new trial. Therefore, we find

that this issue is without merit.

                                      CONCLUSION

¶25.   For the reasons stated herein, we affirm Caldwell’s judgment of conviction and

sentence.

¶26. CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY-FIVE
(35) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITH FIVE (5) YEARS SUSPENDED AND POST-RELEASE
SUPERVISION FOR A PERIOD OF FIVE (5) YEARS, WITH CONDITIONS,
AFFIRMED.

    WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.




                                             10
