                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2002-KA-00652-SCT

FREDDIE WALKER

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                                  2/8/2002
TRIAL JUDGE:                                       HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:                         HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                           THOMAS M. FORTNER
                                                   PHILLIP BROADHEAD
                                                   CARL D. GORDON
ATTORNEY FOR APPELLEE:                             OFFICE OF ATTORNEY GENERAL
                                                   BY: W. GLENN WATTS
DISTRICT ATTORNEY:                                 ELEANOR JOHNSON PETERSON
NATURE OF THE CASE:                                CRIMINAL - FELONY
DISPOSITION:                                       REVERSED AND REMANDED - 05/27/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        EN BANC.

        WALLER, PRESIDING JUSTICE, FOR THE COURT:


¶1.     Freddie Walker was convicted of statutory rape and sentenced to serve two concurrent life

sentences in the custody of the Mississippi Department of Corrections. The trial court denied Walker’s

request for a new trial or in the alternative judgment notwithstanding the verdict. On appeal, he raises three

issues: (1) that the trial court erred in admitting into evidence a towel containing semen which had not been

scientifically identified as his; (2) that the trial court erred in admitting recordings of his telephone
conversations with the victim; and (3) that the verdict was based on insufficient evidence and was contrary

to the weight of the evidence.

¶2.     Finding that the admission of the towel violated the M.R.E. 403 unfair prejudice standard, we

reverse and remand for a new trial.

                                                FACTS

¶3.     Freddie Walker ran a nightly janitorial services business in Jackson. In January of 1999, he met

“Mother” and they developed a friendship, which was both professional and intimate. “Mother”, a widow

since 1995, cared for her four children in addition to providing nightly cleaning services. Because of his

positive rapport with the children, Walker and “Mother’s” relationship evolved to a point where he was

furnished a key to their home, which he frequented.

¶4.     In mid-April 2000, school officials contacted “Mother” and informed her of rumors circulating that

Walker had sexually assaulted M.M., her thirteen-year-old daughter. When confronted, both Walker and

M.M. denied that such attacks occurred. Nevertheless on April 21, 2000, “Mother” had M.M. examined

by Dr. Harriet Hampton, a specialist in pediatric and adolescent gynecology. The examination proved

inconclusive as to vaginal penatration. Dr. Hampton testified that during this visit she was informed by

M.M. that she had been previously sexually abused by her older brother (“Brother”) who lived in the house

during the period that the offenses, which are the subject of this appeal, were alleged to have occurred.

Believing the rumors untrue, “Mother” and Walker continued their relationship.

¶5.     In August of 2000, “Mother” became concerned about her children’s activities, especially those

of “Brother”, and “bugged” the family telephone line. To her dismay, she incidentally recorded several

sexually suggestive conversations between Walker and M.M. Immediately, “Mother” contacted the

Jackson Police Department and had M.M. examined by a physician. On August 23, 2000, Dr. James


                                                      2
Cloy conducted a pelvic examination and found evidence of vaginal penetration and no intact hymen.

Walker was questioned by the authorities and subsequently arrested.

¶6.     Walker, 45, was prosecuted on two counts of capital rape. However, he allegedly sexually

assaulted M.M. six times from May of 1999 until August 15, 2000. During the trial, several witnesses

testified for the prosecution, including: Mother, M.M., Dr. Cloy, Dr. Hampton, and Detective Kim Harrison

of the JPD child protection unit.

¶7.     The prosecution’s most critical pieces of evidence were the recorded conversations and a towel,

which allegedly had Walker’s semen on it. In the recorded conversations, Walker told M.M. that she was

“sexy” and “appealing” and discussed kissing her. Prior to trial, the trial court denied Walker's motion in

limine to exclude the taped conversations.

¶8.     With regards to the towel, the prosecution received it from “Mother” in August of 2000. It was

alleged that following one the attacks in the family’s living room, Walker used the towel to clean himself.

Seeing this, M.M. went upstairs only to return after Walker had left. M.M. then retrieved an additional

towel from “Mother’s” bedroom, which she wrapped the soiled towel in and held until giving it to “Mother”

in August of 2000. This incident was alleged to have occurred in August of 1999, but was not made part

of the indictment.

¶9.     Prior to trial, Walker filed a motion to suppress the towel. He argued that, without any confirmation

that the semen was his, there was no connection between the towel and him and that its admission would

violate his right to a fair trial. After due consideration, the trial court denied the motion.

¶10.    Walker raises several issues on appeal.

                                               DISCUSSION




                                                       3
        I.       WHETHER THE TRIAL COURT ERRED BY ADMITTING
                 A TOWEL AS EVIDENCE OF AN ALLEGED PRIOR BAD
                 ACT PURSUANT TO M.R.E. 401, 402, 403 AND 404(B).

¶11.    Relying on M.R.E. 404(b), the State argues that the towel was admitted because as evidence to

a similar, prior offense it corroborated the charges in the indictment; showed Walker’s lustful disposition

toward M.M.; and showed the probability that he committed the crime. Further, the State maintains that

the probative value outweighs any prejudicial effect and that therefore there is no M.R.E. 403 violation.

¶12.    "A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence.

Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this

ruling." Jefferson v. State, 818 So.2d 1099, 1104 (Miss. 2002) (quoting Fisher v. State, 690 So.2d

268, 274 (Miss. 1996)). See also Hill v. State, 774 So.2d 441, 444 (Miss. 2000); Crawford v.

State, 754 So.2d 1211 (Miss. 2000); Gilley v. State, 748 So.2d 123, 126 (Miss. 1999); Hughes v.

State, 735 So.2d 238, 269 (Miss. 1999).

¶13.    M.R.E. 404 provides, in part:

                 (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or
        acts is not admissible to prove the character of a person in order to show that he acted in
        conformity therewith. It may, however, be admissible for other purposes such as proof of
        motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
        or accident.

¶14.    The decision of the trial court to admit the towel was based on Crawford v. State, 754 So.2d

1211, 1220 (Miss. 2000); Hicks v. State, 441 So.2d 1359 (Miss. 1983); and Barbetta v. State, 738

So.2d 258 (Miss. Ct. App. 1999), which stand for the general rule that in the prosecution of sexual

offenses, evidence of prior sexual acts between the accused and the victim is admissible to show the

accused’s lustful, lascivious disposition toward the particular victim, especially in circumstances where the



                                                      4
victim is under the age of consent. See Crawford, 754 So.2d at 1220; Hicks, 441 So.2d at 1361;

Barbetta, 738 So.2d at 260.

¶15.     Though M.M. testified regarding how she retrieved the towel, the prosecution’s failure to positively

connect the semen on the towel to Walker renders the towel inadmissible. To simply admit such a towel,

without employing the available scientific means for authentication, fails the unfair prejudice standard set

forth in M.R.E. 403, infringed upon Walker’s right to a fair trial, and served only to bolster the testimony

of the prosecution's witnesses. See generally Crawford, 754 So.2d at 1220 (Rule 403 is an ultimate

filter through which all otherwise admissible evidence must pass). With no direct link to the accused, a

soiled towel would tend to mislead, confuse, and incite prejudice in the jury, especially in a capital rape trial

involving a 13-year-old victim.

¶16.     Furthermore, the towel was not properly authenticated. M.R.E. 901(a) provides:

         (a) General Provision. The requirement of authentication or identification as a
         condition precedent to admissibility is satisfied by evidence sufficient to support a finding
         that the matter in question is what its proponent claims.

“Under M.R.E. 901, authentication and identification are conditions precedent to admissibility. Generally

these serve simply to establish that a matter is what it is claimed to be.” Jones v. State, 798 So.2d 592,

593 (Miss. Ct. App. 2001); See also Robinson v. State, 733 So.2d 333, 335 (Miss. Ct. App.

1998)(“Testimony that a particular material is a controlled substance is of no relevance unless the State also

proves the defendant's connection to that particular substance.”) Without confirming whether the semen

on the towel indeed belonged to Walker, the prosecution submitted the towel as a towel stained with his

semen.

¶17.     Not addressed by either party or the trial court was this Court’s opinion in Winston v. State, 754

So.2d 1154 (Miss. 2000). On certiorari, this Court affirmed in part and reversed and rendered in part a

                                                       5
decision by the Court of Appeals affirming the conviction of capital rape. See also Winston v. State,

726 So.2d 197 (Miss. Ct. App. 1998). Relevant to the instant appeal is that though there was no physical

evidence collected by the rape kit or otherwise linking Winston to the victim, the conviction was affirmed

based on the testimony of the victim, her relatives, the responding policeman and the examining doctor

Winston, 754 So.2d at 1156.1 Like our decision in Winston, we do not suggest today that physical

evidence is needed to uphold a conviction of capital rape. Winston, 754 So.2d at 1156.

¶18.     In Winston, the child testified she stopped by Winston’s home because he was supposed to

provide her lunch. While eating, Winston began fondling her and carried her off to his bedroom, where he

forced her to engage in various sexual acts. At some point, members of the victim's family, including her

mother, came to his home looking for the child. Winston initially claimed that the child was no longer there,

however after the child’s voice was heard from the back of the house, he produced the girl. Because she

was crying and her clothes were disheveled, the mother was suspicious and asked the victim if Winston had

touched her. Though she initially denied it, after being slapped by her mother the victim admitted to her

family members that he had molested her. At this time, the police were called to Winston’s home. As did

the members of the victim's family, the officer later testified that the victim’s pants and shirt were open and

that her breasts were exposed. The officer drove the victim to the hospital where the emergency room

physician administered a rape examination kit. The doctor testified that from the examination he determined

that the victim had engaged in intercourse within the two preceding hours.

¶19.    In Winston, the results from the crime lab tests on the rape kit did not link Winston to the victim.

Winston, 754 So.2d at 1155. Unlike Winston, no rape kit was conducted on M.M. because of the time


        1
         However, this Court noted that the Court of Appeals erroneously stated that Winston was linked
by blood-type matching to the semen sample taken from the victim. Id. at 1156.

                                                      6
lapse between the alleged molestation and the time it was reported. Other than the testing for semen, no

lab tests were conducted on the towel.

¶20.    Detective Kim Harrison, the lead investigator, testified that the Jackson Police Department Crime

Lab received both the towel and samples of blood taken from Walker. Detective Harrison testified that

no blood samples were taken from other individuals. Katina Robins, who specializes in forensic serology

at the JPD crime lab, testified that she secured a sample of the semen present on the towel and placed it

in a freezer pack to be preserved for further serological testing. However, neither witness could provide

a reason why, despite their efforts to obtain and preserve samples from the defendant and the towel, that

no further serological testing was conducted.

¶21.    We are not faced with a situation where the victim was found in the suspect’s house under

suspicious conditions, coupled with his suspicious conduct, and then immediately driven by a police officer

to the hospital where a rape kit was administered. Though the rape kit did no disclose physical evidence

to link Winston to the rape, the physician concluded, based on his examination, that the victim had engaged

in intercourse within the preceding two hours. See id. Here there was no immediate investigation of the

reported incidents.

¶22.    In the instant case, the need for scientific testing is clear. First, there was testimony that at one point

the child claimed to have been sexually assaulted by her older brother. Second, the sexual attacks charged

in the indictments allegedly occurred in June and August 2000. However, the semen on the towel

resulted from a sexual attack in August of 1999.

¶23.    Because the prosecution failed to link the semen on the towel to Walker, we find that the admission

of the towel violated M.R.E. 403 and reverse. In accordance with the suggestions of the prosecution’s

criminologist, further scientific testing is necessary.

                                                          7
        II.     WHETHER THE TRIAL COURT ERRED BY REFUSING TO
                GRANT WALKER’S MOTION IN LIMINE SEEKING TO
                PROHIBIT THE INTRODUCTION OF AUDIOTAPE
                CONVERSATIONS IN VIOLATION OF M.R.E. 401, 402,
                AND 403.

¶24.    Walker claims that during the trial the prosecution played several irrelevant tape recorded

conversations which unfairly influenced the jury and prejudiced the defense. Relying on our decision in

Ragin v. State, 724 So.2d 901 (Miss. 1998), Walker maintains that prosecution failed to satisfy M.R.E.

401's relevancy requirement and that the evidence violated unfair prejudice limitation set forth under M.R.E.

403. The Court disagrees.

¶25.    In Ragin, we affirmed the trial court’s decision to admit audio tapes and transcripts concerning

a drug sale. 724 So. 2d at 903-04. Discussing the two requirements for the admissibility of the audio

tapes, the Court stated:

        We have announced that the prosecution must prove the recordings are relevant pursuant
        to Miss. R. Evid. 401 as well as authentic as required by Miss. R. Evid. 901 before they
        are deemed admissible.

        In Middlebrook v. State, 555 So.2d 1009 (Miss.1990) we held the prosecution is
        required to lay a substantial predicate before a tape recording may be received into
        evidence. First, the recording must pass the relevancy test of Rule 401; i.e., it must have
        a "tendency to make the existence of any fact that is of consequence to the determination
        of the action more probable or less probable than it would be without the evidence." Miss.
        R. Evid. 401.

Id. at 903. As to the second requirement, the Court noted that M.R.E. 901 will be “satisfied if evidence

is introduced which is ‘sufficient’ to support a finding that the matter in question is what its proponent

claims.” Id.




                                                     8
¶26.     Here, the recorded conversations, laden with sexual overtones, are clearly relevant as evidence of

Walker’s disposition towards M.M. This satisfies the M.R.E. 401. As for M.R.E. 901, Walker tacitly

authenticated the conversations himself.

¶27.     When questioned by the authorities, Walker explained through his conversations with M.M. he

sought to raise her self-confidence and by telling her that she was “sexy” and “appealing” he wanted her

to know that others found her attractive. In light of such explanation, the Court finds that the tapes are what

they were purported to be (i.e. conversations between Walker and M.M.) and we reject his challenge to

their authenticity.

¶28.     Whether the evidence presented satisfies Rules 401 and 901 is a matter left to the discretion of the

trial judge. M.R.E. 104(a). See also Ragin, 724 So.2d at 903. Without an abuse of discretion, his

decision will be upheld. Id. (citing Stromas v. State, 618 So.2d 116, 119 (Miss. 1993)). See Butler

v. State, 592 So.2d 983, 984 (Miss. 1991).

¶29.     For these reasons, this issue is without merit.

         III.     WHETHER THE TRIAL COURT ERRED BY DENYING A
                  DIRECTED VERDICT OR IN THE ALTERNATIVE DENIED
                  A MOTION FOR NEW TRIAL AND J.N.O.V. BECAUSE THE
                  EVIDENCE WAS NOT SUFFICIENT TO SUSTAIN A JURY
                  VERDICT.

¶30.     Because issue one is dispositive, we need not address this issue.

                                             CONCLUSION

¶31.     Because the prosecution failed to connect the semen on the towel to Walker, we find that the

towel’s probative value was substantially outweighed by the danger of unfair prejudice. We reverse the

trial court's judgment and remand this case for a new trial consistent with this opinion.

¶32.     REVERSED AND REMANDED.

                                                      9
       SMITH, C.J., CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. EASLEY,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY COBB,
P.J. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN JOINED BY COBB, P.J.,
AND EASLEY, J. DIAZ, J., NOT PARTICIPATING.


        EASLEY, JUSTICE, DISSENTING:

¶33.    In my view, the majority totally ignores the overwhelming evidence in this case. Therefore, I

respectfully dissent.

                                                      I.

¶34.    Walker contends that the trial court erred by admitting into evidence a towel with his alleged semen

on it. He asserts various arguments, such as, (1) the testimony concerning the towel is uncorroborated; (2)

the towel is not linked to him; (3) the trial court failed to make an on the record finding that the testimony

was more probative than prejudicial pursuant to M.R.E. 403; (4) the towel was not admitted into evidence

under a specific exception of 404(b); and (5) the trial court failed to sua sponte instruct the jury of the

limited admissibility of the evidence. After hearing arguments from the defense and prosecution, the trial

court ruled that the towel could be admitted into evidence.

¶35.    "A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of evidence.

Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this

ruling." Jefferson v. State, 818 So.2d 1099, 1104 (Miss. 2002) (quoting Fisher v. State, 690 So.2d

268, 274 (Miss. 1996)).

¶36.    Walker’s argument is without merit. The trial court heard arguments concerning the relevancy of

the towel and whether the admission of the towel was more probative than prejudicial. Included in these

arguments was the assertion that the testimony about the towel was uncorroborated and the towel was not

linked to Walker. Relying on legal arguments and case law analysis, which the trial judge considered, cited

                                                      10
at length and applied to the facts of this case, he determined that the towel was relevant and more probative

than prejudicial. Contrary to Walker’s assertion, the State cited specific reasoning pursuant to M.R.E.

404(b) for the admission of the towel. It is true that the trial court failed to sua sponte instruct the jury on

the limited admissibility of the evidence. However, the trial court did give an instruction on the weight and

credibility of witnesses and evidence. Walker, also, did not request a limiting instruction by the trial court.

The error, if any, is harmless.

¶37.    At a pre-trial suppression hearing a detective and serologist testified about the towel. The towel

came from the girl’s house and allegedly was used by Walker to wipe himself after ejaculation following

an unindicted incident that occurred in August 1999.2 The girl told Detective Harrison about the towel.

While the girl was unable to state the number of incidents, she described a few occasions of vaginal and

penile intercourse. It appeared that there was a series of incidents between Walker and the girl. The

detective believed that the girl kept the towel to show the police and corroborate the alleged sexual

incidents between Walker and her. Detective Harrison went to the girl’s home and collected the towels

from her mother.

¶38.    A crime lab serologist, Katina Robbins, testified that semen of unknown origin was present on the

towel. The lab had a blood sample from Walker. However, there was no test performed to compare the

semen sample to Walker’s blood sample. Therefore, the semen and Walker’s blood sample could not be

connected.

¶39.    The defense argued that the admittance of the towel was irrelevant and more prejudicial than

probative. The prosecution argued as follows:




        2
            Walker had a two-count indictment for statutory rape that occurred in the summer of 2000.

                                                      11
        There is a clear line of authority in the state which allows the admissibility of such evidence
        in sex crimes. The leading case on point is Barbetta versus State. I will cite it at 738 So.2d
        258.

        And according to Mississippi case law, and I am referring directly from the case on page
        259, there is a clear line of cases that authorize the Court and prosecution of sexual
        offenses to allow evidence of other prior sexual crimes of the accused. Accordingly,
        evidence is generally held to be admissible which shows or tends to show
        prior offenses of the same kind committed by the defendant with the
        prosecuting witness.

        The Court assigns various reasons for the admission of this evidence, such
        as we attempted to show corroboration of the offense charged, to show the
        intimate relation between the parties, the lustful disposition of defendant
        toward the prosecuting witness, and the probability of his having
        committed the offense charged.

        This Court reiterated this same reasoning in Crawford versus State, which is cited at 754
        So.2d 1211, and [in] which it says that in all these cases the Court has held that this type
        of evidence, evidence of other sexual offenses occurring between the defendant and the
        victim, is admissible in this limited situation. And in this situation it is.

        Detective Harrison showed that through her testimony that this was a series of events that
        occurred between the defendant and the victim, that it was not an isolated incident. We
        are going to need this - - she said that she gave this to her, and it was her opinion, to
        corroborate that there had been sexual relations between the two of them.

        Therefore, the evidence is admissible to prove that he had [a] lustful, lascivious disposition
        towards this particular victim, especially in the incident where we have a child under the
        age of consent.

        * *      *    *

        Therefore, the State would argue that the defense request to suppress that evidence should
        be denied. Although he is not charged in an indictment with any other offenses other than
        the two alleged incidents, they are part of a series of ongoing incidents, and
        that is part of the State’s proof in this case as to the motive, plan and
        preparation under 404 (b) which says that this evidence is relevant and is
        not prejudicial to the defendant.

(emphasis added). The trial court made an inquiry into the probative value of the evidence. The trial judge

and prosecution continued the discussion and stated the following:


                                                     12
        The Court:                         All right. Ms. Peterson, the Court does have an inquiry
                                           here. How is this evidence probative against this
                                           defendant when there is no evidence thus far that the
                                           towel is connected with this defendant.

        Ms. Peterson [State]:              Your Honor, in the State’s case we will also be
                                           presenting evidence in which the defendant had stated
                                           that he did not have sexual relations with any person in
                                           this household. This victim is going to testify to several
                                           incidents that occurred between herself and the
                                           defendant. And she brought this in an effort to prove to
                                           someone that sexual relations had occurred.

                                           As to the credibility of that, that would be a question for
                                           the jury to decide as to whether or not her preserving that
                                           was an intent to prove the other sexual incidents. And for
                                           that reason the State is asking that the towel be admitted
                                           for the limited purpose of her saying I preserved this
                                           because this is what happened to me.

¶40.    The trial court took the arguments under advisement and reviewed case law prior to making its

decision. In its analysis, the trial court addressed the arguments that counsel made concerning relevancy,

probative value versus prejudicial effect, and Rule 404(b) exceptions. In addition, the trial court cited a

line of case law and gave a lengthy on-the-record analysis of the cases and their relevance to the issue of

the admissibility of the towel.

¶41.    The trial court specifically cited Barbetta v. State, 738 So.2d 258 (Miss. Ct. App. 1999)

(testimony concerning prior touching of victim’s breasts and inside her shorts was admissible as a lustful

disposition of victim); Crawford v. State, 754 So.2d 1211 (Miss. 2000) (testimony concerning prior

sexual contact with victim for over six months was admitted); and White v. State, 520 So.2d 497 (Miss.

1988). In its decision, the trial court stated in part:

        And finally in discussing this issue, the Court in the Crawford case noted, and having
        referred to a number of Mississippi cases which it considered the same or substantially the
        same issue, the Court held that such evidence is admissible in this limited situation to show

                                                      13
        appellant’s lustful, lascivious disposition toward his particular victim, especially whereas
        here the victim was under the age of consent.

        And the court said finally that most recently this Court has again held that it was not error
        to permit testimony of previous sexual offenses between the appellant and his victim, citing
        Woodruff versus State. It goes on to say there’s nothing in this case to distinguish it from
        any of these previous cases. Therefore, assignment of error is without merit in the
        Crawford case.

        The State in this case, the subject case, is taking the position that it is - - that this prior
        sexual act with the prosecuting witness in this case is relevant to prove the material issue
        of - - other than the defendant’s character, and that the probative value of the evidence
        outweighs the prejudicial effect.

        Based upon the Barbetta decision and the Crawford decision, the Court finds that the
        evidence in this case would be admissible. And therefore, the motion to suppress it will
        be denied.

¶42.    The trial court heard and considered Walker’s argument relating to corroboration of the testimony

and the link between Walker and the towel. At the hearing, Detective Harrison testified that in her opinion,

the girl kept the towel to corroborate her allegations of rape by Walker. Also, the State argued that the

towel aided in proving a series of sexual incidents between Walker and the girl. The trial court ultimately

concluded that the towel was admissible despite Walker’s arguments.

¶43.    The State asserted that the purpose for admitting the towel was to show the lustful, lascivious

disposition of Walker toward the child. The prosecution also argued that towel was to corroborate the

sexual incidents between Walker and the girl and that these were are part of a series of ongoing incidents

which proved motive, plan and preparation under 404 (b).

¶44.    This Court held in Webster v. State, 817 So.2d 515, 520 (Miss. 2002), that “[u]sually, evidence

of another crime is not admissible. However, this Court has held that evidence of a prior crime or act may

be admitted to show identity, knowledge, intent, or motive.” (citations omitted). See also M.R.E. 404(b).

In Crawford, this Court held that:

                                                     14
        Determining whether to admit evidence under Rule 404(b) requires a two part analysis.
        The evidence offered must (1) be relevant to prove a material issue other than the
        defendant's character; and (2) the probative value of the evidence must outweigh the
        prejudicial effect." Puckett, 737 So.2d at 365. Rule 403 is an ultimate filter through which
        all otherwise admissible evidence must pass. Jenkins v. State, 507 So.2d 89, 93
        (Miss.1987). The trial judge correctly admitted testimony of prior sexual acts, which took
        place over several months prior to Crawford's actually engaging in sexual intercourse with
        the victim. It was not error to permit testimony of previous sexual offenses between
        Crawford and the victim, his stepdaughter. White v. State, 520 So.2d at 499 (citing
        Woodruff v. State, 518 So.2d 669 (Miss.1988)).

                                               *    *     * *

        [T]his Court held that such evidence is admissible in this limited situation to show
        appellant's lustful, lascivious disposition toward his particular victim, especially where, as
        here, the victim was under the age of consent. Most recently, this Court has again held that
        it was not error to permit testimony of previous sexual offenses between appellant and his
        victim. Woodruff v. State, 518 So.2d 669 (Miss.1988). There is nothing in this case to
        distinguish it from any of these previous cases. Therefore, this assignment of error is
        without merit. White v. State, 520 So.2d at 499-500.

        The trial judge was correct in admitting the testimony under Rule 404(b) regarding prior
        sexual contact with Crawford.

Crawford, 754 So.2d at 1220-21. In reaching the decision that the towel was admissible pursuant to

M.R.E. 404(b), the trial court necessarily considered its relevancy and whether it passed the balancing test

pursuant to M.R.E. 403. The trial court specifically cited Crawford and its two-part test. I find that the

evidence is clearly admissible to prove the lustful intent of Walker, as well as, his and motive and

knowledge.

¶45.    The majority relies heavily upon Winston v. State, 754 So.2d 1154 (Miss. 2000), a capital rape

case. Despite the majority's effort to distinguish Winston from the facts here, however, I believe the cases

to be similar. First, whatever way the facts of each case may be explained, the juries, as the triers of fact,

weighed the credibility of the witnesses and heard the testimony of the victims, family members, doctors,

and police investigators and convicted both Walker and Wilson. It is true that the victim here had no rape

                                                     15
kit performed nor were any police called immediately following the alleged incidents of rape, however,

neither or these two facts are essential to a rape conviction. Indeed, the victim in Winston had a rape kit

performed but it provided no evidence. The majority states that physical evidence is not needed for a

capital rape conviction. However, the majority then suggests or harps on the fact that because a rape kit

was not performed and because the police were not immediately contacted and investigating the case is

therefore lacking evidence to support a conviction. These actions are not necessary for a rape conviction,

albeit, having this type of evidence in every rape case may increase the likelihood of rape convictions.

¶46.    Further, here the towel was offered to show the lustful, lascivious disposition of Walker toward the

child, to corroborate the sexual incidents between Walker and the girl and that these were are part of a

series of ongoing incidents which proved motive, plan and preparation under M.R.E. 404 (b). This and

other facts as discussed here and in the next issue were enough to support a rape conviction.

¶47.     Here, the victim also saw a physician and had a medical exam. In addition, the girl testified that

Walker had a key to her home, thus providing access to the girl. The mother testified that Walker stayed

at the house many times when she was not present. The mother had taped telephone conversations

between Walker and the girl in which he stated the girl was “sexy and appealing” and that he loved her.

The jury also heard the conflicting testimony that the girl first stated that her brother raped her. Later, the

girl denied having sex with her brother and stated that Walker threatened to hurt her and her family if she

told anyone about having sex. Despite this conflict in the testimony, the jury found Walker guilty of rape.

¶48.    The fact that the victim here did not immediately run out and have a rape kit performed and call the

police as in Winston, is not persuasive. This is especially so when the performance of the rape kit did not

even produce any substantive results in Winston. The two cases seem to boil down to testimony and

witness credibility, and in both cases the juries convicted each defendant. Although perhaps helpful for

                                                      16
the successful prosecution of a case, a rape victim does not have to immediately run and have a rape kit

test, call the police and see a doctor in order to sustain a conviction of rape against an aggressor.

Therefore, I find the majority’s reliance upon Winston unpersuasive as well.

¶49.    Walker also argues that the trial court did not sua sponte give a limiting instruction concerning the

admissibility of the evidence. It is true that the trial court did not give a specific instruction concerning the

limited admissibility of the towel. However, the trial court did grant the Court's instruction, C-1, which

addressed the weight and credibility of witnesses. A review of the record shows that Walker did not

request a limiting instruction pertaining to the towel. He did request an instruction, D-7, concerning a

child’s testimony which was refused by the trial court. However, instruction C-1 given by the trial court

provided that the jury was to resolve the issue of witness credibility and any conflicts in testimony.

¶50.    In Webster v. State, 754 So.2d 1232, 1240 (Miss. 2000), this Court applied a harmless error

analysis to M.R.E. 404(b) issues of admissibility of evidence. “[W]e hold that harmless error analysis is

applicable in cases where the trial court does not sua sponte give the required limiting instruction when

M.R.E. 404(b) evidence is admitted.” Id. This Court concluded that the evidence of Webster's guilt was

overwhelming and affirmed on the issue. Id. See also Lofton v. State, 818 So.2d 1229, 1235 (Miss.

Ct. App. 2002). Here, there was overwhelming evidence of Walker’s guilt. Therefore, in the face of the

overwhelming evidence that Walker had sexual relations with this 13-year-old girl, the error, if any, is

harmless. Trial courts should be diligent and continue to give limiting instructions where warranted sua

sponte. By the same token, a failure of providing the instruction may be considered harmless error in some

cases as in the case at hand.

                                                       II.



                                                       17
¶51.    The trial court did not err by denying a directed verdict or in the alternative denying a motion for

new trial and J.N.O.V. since the evidence was sufficient to sustain a jury verdict.
                                  A. Directed verdict/ J. N.O.V.

                                          Standard of Review

¶52.    In Jefferson v. State, 818 So.2d 1099, 1110-11 (Miss. 2002), this Court held that the standard

of review for denials of motions for directed verdict, judgment notwithstanding the verdict and a request

for a peremptory instruction is the same. A directed verdict, judgment notwithstanding a verdict and a

request for peremptory instruction all challenge the legal sufficiency of the evidence presented at trial. Id.

"Since each requires consideration of the evidence before the court when made, this Court properly

reviews the ruling on the last occasion the challenge was made in the trial court. This occurred when the

Circuit Court overruled [the] motion for JNOV." McClain v. State, 625 So.2d 774, 778 (Miss. 1993)

(citing Wetz v. State, 503 So.2d 803, 807-08 (Miss. 1987)). See also Edwards v. State, 800 So.2d

454, 462 (Miss. 2001) (The standard of review for a JNOV and a directed verdict are the same and

implicate the sufficiency of the evidence. All challenge the legal sufficiency of the evidence. The appellate

court properly reviews the ruling on the last occasion the challenge was made in the trial court, when the

Circuit Court overruled the JNOV).

¶53.    Walker challenges the sufficiency of the evidence. He asserts that he denied having sex with the

girl, he was not responsible for the semen on the towel, the semen was not identified as his, and the girl’s

brother had sex with her. Walker relies on Crawford v. State where this Court held that:

        [O]ur case law clearly holds that the unsupported word of the victim of a sex crime is
        sufficient to support a guilty verdict where that testimony is not discredited or contradicted
        by other credible evidence, especially if the conduct of the victim is consistent with the
        conduct of one who has been victimized by a sex crime.



                                                     18
Crawford v. State, 754 So.2d 1222 (citing Collier v. State, 711 So.2d 458, 461 (Miss. 1998)). In

his argument, Walker makes much of the fact that the girl’s testimony is allegedly uncorroborated and her

testimony contradicted itself.

¶54.    The testimony of the girl was not contradictory nor uncorroborated. The mother testified that she

met Walker in 1999. Walker spent time at her house with the children. The mother gave Walker a key

to the home to store cleaning supplies used in their after hours cleaning service. Therefore, Walker had

complete access to the home. The girl also testified that Walker was given a key to the home.

¶55.    The mother suspected that there was an improper relationship between Walker and the girl after

listening to recorded telephone conversations. The mother described Walker speaking to the girl “not in

a fatherly way” after listening to a conversation with the girl. In a few of the conversations, Walker stated

that he loved the girl. He also stated that he found the girl “sexy and appealing.” The mother also

confronted Walker on the telephone about having sex with the girl, which he denied.

¶56.    The girl told her mother of sexual incidents that occurred between herself and Walker and her. At

the time of these incidents, the last of which occurred in August 2000, the girl was at most 13 years old.

A birth certificate confirmed that the girl was born in September 1986. In April 2000, the girl was

examined by Dr. Hampton. The doctor could not confirm vaginal penetration nor rectal penetration.

However, the doctor did confirm a fissure or tear in the rectum. The girl told Dr. Hampton that her brother

had sex with her. The girl later stated that she did not tell the doctor the truth because Walker had

threatened her. Dr. Cloy examined the girl on August 23, 2000. He determined that her hymen was not

intact which indicated that it was possible that there had been sexual activity.

¶57.    Detective Harrison testified to the sexual incidents between Walker and the girl. Detective Harrison

stated that at the time of the incidents Walker was 45 years old, approximately 31 years older than the girl.

                                                     19
She stated that Walker allegedly wiped himself on a towel after an incident in 1999. The girl wrapped the

towel in another towel and the mother later gave the towel to police. Detective Harrison also testified that

Walker had sex with the girl in June 2000 and August 2000.

¶58.      The girl testified to the towel incident in 1999 and the two rapes in June 2000 and August 2000.

During both the rapes, Walker pulled her shorts to the side and put his penis into her vagina. She testified

that she was afraid to tell anyone about the incidents because Walker had threatened to hurt her and her

family.

¶59.      At trial, the girl vehemently denied ever having sex with her brother. She did acknowledge that she

told the doctor that she had sex with her brother, however, she stated that Walker had threatened her. She

told her mother that she and Walker had not had sex when the mother confronted Walker at school.

Again, she stated that she denied the relationship because Walker had threatened her.

¶60.      Clearly, Walker had a key and access to the girl’s home. The girl was born in September 1986

and was only 13 years old at the time of the last incident in August 2000. Walker was 45 years old and

31 years older than the girl. At trial, the girl positively identified Walker as the person who had sexual

intercourse with her. The girl told both the mother and Detective Harrison about all the incidents between

Walker and her. The mother had taped conversations between Walker and the girl in which he stated that

he loved the girl and that she was “sexy and appealing.” Dr. Cloy testified that the girl’s hymen was not

intact which could indicate sexual activity. The girl stated that Walker threatened her. Because of this

threat, the girl denied having sex with Walker to her mother and told the doctor that she had sex with her

brother, not Walker. Thus, the evidence is legally sufficient to support the jury's verdict in this case, and

the trial court did not abuse its discretion in denying the motion for JNOV.

                                         B. New Trial Motion


                                                     20
                                            Standard or Review

¶61.     “A motion for new trial challenges the weight of the evidence. A reversal is warranted only if the

lower court abused its discretion in denying a motion for new trial.” Webster v. State, 817 So.2d 515,

518 (Miss. 2002).

¶62.    In Edwards v. State, 800 So.2d 454, 464-65 (Miss. 2001), this Court held that it has limited

authority to interfere with a jury verdict. The Court considers all the evidence in the light that is most

consistent to the jury verdict. Id. “The prosecution is given ‘the benefit of all favorable inferences that may

reasonably be drawn from the evidence.” Id.

¶63.    Here, the girl identified Walker as the person that had sexual intercourse with her. Walker had a

key and access to the girl’s home. The girl told her mother and the police about the sexual incidents

between Walker and herself. Dr. Cloy determined that the girl’s hymen was not intact which could signify

sexual activity. Walker had threatened the girl if she told anyone about having sex with him. Taped

telephone conversations with Walker and the girl indicated an intimate relationship. Walker told the girl

that he loved her and that she was "sexy and appealing." A birth certificate confirmed that the girl was born

in September 1986, making her 13 years old at the time of the last incident in August, 2000. Walker was

45 years old at the time of the incident.

¶64.    The jury had the option of finding Walker not guilty or guilty on the two counts of statutory rape.

However, the jury found beyond a reasonable doubt that Walker was guilty of both counts of statutory

rape. The trial court did not abuse its discretion in denying Walker's motion for new trial. Reviewing the

evidence in the light that is most consistent to the jury verdict, there is substantial evidence in the record that

reasonable and fair-minded jurors would have found Walker guilty of statutory rape.

¶65.    For these reasons, I dissent and would affirm the judgment of the Hinds County Circuit Court.

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        COBB, P.J., JOINS THIS OPINION IN PART.

        RANDOLPH, JUSTICE , DISSENTING:

¶66.     I respectfully dissent because the majority errs in holding that the towel was inadmissible under

M.R.E. 403. All issues regarding the prosecution’s failure to scientifically link the towel to the defendant

go to the weight of the evidence, not its admissibility. The victim’s testimony, in which she positively

identified the towel that she secured following one of the incidents, was a sufficient basis for the admission

of the towel.

¶67.    Assuming, arguendo, that the towel was improperly admitted, there is sufficient other evidence to

affirm the conviction. Accordingly, any error in admitting the towel was harmless.

¶68.    For these reasons, I would affirm the circuit court’s judgment.

        COBB, P.J., AND EASLEY, J., JOIN THIS OPINION.




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