                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2012-KA-00988-SCT

MALCOLM CLIFTON WEEKS a/k/a MALCOLM
CLIFTON WEEKS, SR. a/k/a MALCOLM C.
WEEKS a/k/a MALCOLM WEEKS, SR. a/k/a
MALCOLM WEEKS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                           04/20/2012
TRIAL JUDGE:                                HON. WILLIAM E. CHAPMAN, III
COURT FROM WHICH APPEALED:                  RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     KEVIN D. CAMP
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: ELLIOTT FLAGGS
DISTRICT ATTORNEY:                          MICHAEL GUEST
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 08/22/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    Malcolm Weeks Sr. was indicted and tried for sexually abusing his fourteen-year-old

daughter. He was convicted of one count of child fondling and two counts of sexual battery.1

On appeal, Malcolm asserts three assignments of error: 1) that the State was permitted to

substantively amend his indictment; 2) that the evidence was insufficient to support the jury’s


       1
           Weeks was indicted for two counts of child fondling and two counts of sexual
battery.
verdicts; and 3) that the jury’s verdicts were against the overwhelming weight of the

evidence.

                      FACTS AND PROCEDURAL HISTORY

¶2.    Malcolm Weeks Sr. and his wife “Sarah” have two children, “Wesley” and “Mary.” 2

Prior to September 19, 2010, the family lived together in Rankin County, Mississippi. On

the morning of September 19, 2010, Malcolm went into Mary’s room to wake her up for

church. When Sarah saw Malcolm leaving Mary’s room, she sensed something was wrong

and asked him what he was doing in there. Unsatisfied with Malcolm’s response to her

question,3 Sarah called Mary to the front porch and asked her about Malcolm’s behavior.

Initially, Mary denied that Malcolm had been doing anything wrong but eventually confessed

that he had been touching her inappropriately. Sarah immediately left the house with Wesley

and Mary, stopped by her parents’ house briefly, and then took Mary to the Florence police

department. At the Florence police department, Mary was interviewed by William Nelson,

a deputy with the Rankin County Sheriff’s Department. Mary told Officer Nelson that

Malcolm had touched her vagina and had performed oral sex on her that morning. She said

Malcolm had been touching her inappropriately for about three months and described other

incidents in which Malcolm had touched her vagina with his penis, hands, and mouth. When

asked by Officer Nelson where she was abused, Mary said her bedroom. She did not tell



       2
        Fictitious names have been used for the minor victim and her family members to
protect the identity of the victim. Members of the Weeks family will be referred to by first
names to avoid confusion.
       3
      The parties dispute how Malcolm responded. Malcolm claims he told Sarah that “he
was waking [Mary] up for church,” while Sarah claims he said “nothing.”

                                             2
Officer Nelson that any incidents had occurred in the family’s living room, her parents’

bedroom, or Malcolm’s truck. However, at trial, Mary testified that incidents also occurred

in those three locations. She estimated that Malcolm had touched her on more than twenty

separate occasions. Mary said the incidents typically occurred in the morning and that she

would shower afterward. Mary had not showered the morning of September 19, 2010, so

Officer Nelson picked up a sexual-assault examination kit and escorted Mary and Sarah to

the University of Mississippi Medical Center (UMMC) emergency room. At UMMC, Mary

was seen by a social worker named Jennifer Cook. Cook heard Mary say Malcolm had

touched her vagina with his fingers and his mouth that morning. She also heard Mary

describe a separate incident in which Malcolm had made her touch his penis until he

ejaculated. Mary told Cook these incidents had been occurring for approximately a month

and did not mention any incidents happening in Malcolm’s truck or involving a vibrator.

Based on her experience, Cook testified that Mary’s disclosure was age-appropriate and

consistent with a child who had been sexually abused. At UMMC, Mary also was seen by

a pediatric nurse named Tierra Brown. Brown took Mary’s personal history and collected

samples from her for the sexual-assault examination kit. Mary told Brown that Malcolm had

touched her vagina that morning with his fingers, penis, and mouth, and that during a prior

incident, he had touched her with a vibrator. Mary was later interviewed on September 23,

2010, by Rachel Daniels, a forensic interviewer with the Mississippi Children’s Advocacy

Center. Mary told Daniels how Malcolm had sexually abused her. Mary did not tell Daniels

that any incidents had occurred outside her bedroom, but Daniels testified that it would not

surprise her if Mary had disclosed additional incidents and locations of abuse after the


                                             3
interview. Daniels found Mary’s disclosure to be consistent with that of a sexually abused

child. This interview was observed by the Rankin County investigator assigned to the case,

Shelia Tucker. Tucker testified that, during the interview, Mary stated that Malcolm had

touched her vagina with his hand, mouth, and penis, and that he had made her touch his penis

until he ejaculated. In addition to observing Daniels’s interview of Mary, Tucker reviewed

Mary’s medical reports and confirmed that all of Mary’s disclosures to doctors, nurses, and

social workers were consistent. Tucker also testified that she had brought the samples from

Mary’s sexual-assault examination kit and a DNA sample from Malcolm to Scales laboratory

for testing. At Scales laboratory, Kathryn Rodgers, a forensic DNA analyst, performed a Y-

chromosome test on the vaginal and vulvar swabs taken from Mary as part of her sexual-

assault examination kit.4 With the Y-chromosome tests, Rodgers obtained a partial profile

from both the vaginal and vulvar swabs taken from Mary, confirming to a scientific certainty

that there was male DNA inside Mary’s vagina. The partial profiles of both swabs were

consistent with a male from Malcolm’s paternal line. Therefore, neither he nor any of his

patrilineal male relatives could be excluded as the contributor of the DNA found inside and

outside of Mary’s vagina. The testimony of Rodgers concluded the State’s case-in-chief.

During the State’s case-in-chief, the trial judge discovered that the sexual-battery counts of

the indictment tracked the wrong subsection of the sexual-battery statute. The sexual-battery

statute has separate sections for victims under the age of fourteen and those between the ages




       4
       A Y-chromosome test is often used when a sample is likely to have a large amount
of female DNA and only a minimal amount of male DNA. This test cannot pinpoint an
individual but it can pinpoint a paternal line.

                                              4
of fourteen and sixteen.5 Subsection (c) applies to victims between the ages of fourteen and

sixteen and applies if the perpetrator is more than thirty-six months older than the victim.6

Subsection (d) applies to victims under the age of fourteen and applies if the perpetrator is

more than twenty-four months older than the victim.7           The sexual-battery counts of

Malcolm’s original indictment recognized that Mary was fourteen at the time of the alleged

criminal behavior, but then tracked subsection (d). The sexual battery counts originally read:

        Malcolm Clifton Weeks . . . a male human being above the age of eighteen
        (18) years, whose date of birth is October 18, 1970, did willfully, unlawfully,
        and intentionally engage in sexual penetration . . . with [Mary], a female child
        (14) years of age, whose date of birth is March 25, 1996, by performing
        cunnilingus on [Mary], at a time when Malcolm Clifton Weeks was more than
        twenty-four (24) months older than [Mary] . . . in violation of Section 97-3-
        95(1)(d), Mississippi Code Annotated (1972, as amended) . . . .

(Emphasis added.)

The State moved to amend the indictment to track subsection (c). Malcolm objected to the

motion, but the trial court allowed the amendment. The sexual-battery counts, as amended,

read:

        Malcolm Clifton Weeks . . . a male human being above the age of eighteen
        (18) years, whose date of birth is October 18, 1970, did willfully, unlawfully,
        and intentionally engage in sexual penetration . . . with [Mary], a female child
        (14) years of age, whose date of birth is March 25, 1996, by performing
        cunnilingus on [Mary], at a time when Malcolm Clifton Weeks was more than
        thirty-six (36) months older than [Mary] . . . in violation of Section 97-3-
        95(1)(c), Mississippi Code Annotated (1972, as amended) . . . .

(Emphasis added.)


        5
            Miss. Code Ann. § 97-3-95(1) (Rev. 2006).
        6
            Miss. Code Ann. § 97-3-95(1)(c) (Rev. 2006).
        7
            Miss. Code Ann. § 97-3-95(1)(d) (Rev. 2006).

                                               5
¶3.    The only witness for the defense was Malcolm himself. Malcolm emphasized that he

consistently had denied ever touching Mary inappropriately, that he had volunteered to assist

the police in their investigation, and that he had refused to plead guilty in exchange for a

lesser sentence. This testimony was consistent with that of Tucker, who had acknowledged

on cross-examination that Malcolm had called her, that he had volunteered to come to the

police department, and that he repeatedly had denied the allegations.

¶4.    The jury found Malcolm guilty of two counts of sexual battery and one count of child

fondling. Weeks received a thirty-year sentence for each of the sexual-battery convictions

and a fifteen-year sentence for the child-fondling conviction. The second thirty-year

sentence and the fifteen-year sentence run concurrently with each other but consecutively to

the first thirty-year sentence. Following the trial court’s denial of his motion for judgment

notwithstanding the verdict or, in the alternative, a new trial, Malcolm timely filed this

appeal.

                            LAW AND ANALYSIS

¶5.   Three issues are presented on appeal: 1) whether the trial court allowed the State to

substantively amend Malcolm’s indictment; 2) whether there was sufficient evidence to

support the jury’s verdicts;8 and 3) whether the verdicts were against the overwhelming

weight of the evidence.



       8
        Malcolm does not specifically attack the legal sufficiency of the State’s evidence.
Instead, he makes arguments against both the sufficiency and the weight of the evidence
under one heading reading “The lower court erred in denying the Defendant’s Motion for
JNOV, and in failing to grant a new trial where the jury returned a verdict against the
overwhelming weight of the evidence.” To avoid confusion, these issues are addressed
separately.

                                             6
A. Amendment of Indictment

¶6.    Malcolm was indicted for two counts of sexual battery under Mississippi Code Section

97-3-95(1) which reads:9

       A person is guilty of sexual battery if he or she engages in sexual penetration
       with:
       (a) Another person without his or her consent;
       (b) A mentally defective, mentally incapacitated or physically helpless person;
       (c) A child at least fourteen (14) but under sixteen (16) years of age, if the
       person is thirty-six (36) or more months older than the child; or
       (d) 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.10

The counts initially tracked subsection (d), despite the fact that the indictment explicitly stated

Mary was fourteen years old at the time of the alleged criminal behavior. At trial, the State

was permitted to amend the indictment to change subsection (d) to subsection (c) and twenty-

four (24) months to thirty-six (36) months. Malcolm contends that the amendments were

improper because they were of substance, as opposed to form.

¶7.     The question of whether an indictment is legally sufficient is a question of law and

must be reviewed de novo.11 It is well-established that “courts may amend indictments only




        9
       Malcolm also was indicted for two counts of child fondling under Mississippi Code
Section 97-5-23, Count I and Count III in the indictment. These counts were not amended.
Malcolm challenges the validity of his Count III conviction based on the sufficiency and the
weight of the evidence. Those arguments are addressed infra. Malcolm was not convicted
of Count I; therefore it is not at issue in this appeal.
        10
             Miss. Code Ann. § 97-3-95(1) (Rev. 2006).
        11
             Patton v. State, 109 So. 3d 66, 80 (Miss. 2012).

                                                7
to correct defects of form; however, defects of substance must be corrected by the grand

jury.12

          [A] change in the indictment is permissible if it does not alter facts which are
          the essence of the offense on the face of the indictment as it originally stood or
          materially alter a defense to the indictment as it originally stood so as to
          prejudice the defendant’s case.13

“The test for whether an amendment to the indictment will prejudice the defense is whether

the defense as it originally stood will be equally available after the amendment is made.” 14

¶8.       The amendments to Malcolm’s indictment are akin to those that were at issue in Smith

v. State.15 Like Malcolm, Smith was indicted under Mississippi Code Section 97-3-95(1) for

sexual battery.16 Smith was indicted for three counts of sexual battery, and each count stated

that “at the time of the said offense, . . . the victim was under the age of 16 years, having a

date of birth of November 11, 1992.” 17 At trial, the State moved to amend the indictment to

have each count state that, at the time of the alleged crime, the victim was “under the age of

14 years, having a date of birth of November 11, 1992” in order “to bring the indictment in

conformity with the statutory language defining sexual battery.” 18 The trial court denied the

State’s motion because the proposed amendment would have increased Smith’s potential


          12
               Id. (internal quotations omitted).
          13
               Id. (quoting Montgomery v. State, 891 So. 2d 179, 186 (Miss. 2004)).
          14
               Patton, 109 So. 3d at 81 (internal quotations omitted).
          15
               Smith v. State, 989 So. 2d 973 (Miss. Ct. App. 2008).
          16
               Id. at 975.
          17
               Id. at 976.
          18
               Id. at 977.

                                                    8
sentence from thirty years to life imprisonment, a result the trial court deemed prejudicial to

Smith.19       On appeal, Smith argued that the indictment was fatally flawed because its

“inclusion of the language ‘under the age of 16 years’ and the victim’s date of birth tracks the

language of two separate subsections of the sexual-battery statute,” namely subsections (c)

and (d) which also are at issue here.20 The Court of Appeals held the indictment was

sufficient, despite tracking the language of both subsections and listing the wrong age for the

victim, because the indictment included the birthdays of both Smith and the victim and the

date of the alleged crime.21 Therefore, a “simple math” calculation would have notified Smith

that he was being charged with sexually battering a nine-year-old girl when he was twenty-

five years old and, as such, he should have anticipated being prosecuted under subsection

(d).22

¶9.      As in Smith, Malcolm’s indictment included the birth dates of Mary and Malcolm and

the dates of the alleged criminal behavior. It also specifically stated that Mary was fourteen

at the time of the alleged crimes. Malcolm argues his case is distinguishable from Smith

because Smith’s indictment did not name a specific subsection of Mississippi Code Section

97-3-95(1), whereas his indictment named the wrong subsection.              While this factual

distinction is correct, it does not necessitate a different result. An indictment is sufficient


         19
              Id. at 977. Notably, the same prejudice does not accompany the amendment at issue
 here. By changing Weeks’s indictment to charge him under subsection (c) as opposed to
 subsection (d), the State reduced his potential maximum sentence.
         20
              Id. at 978.
         21
              Id. at 979.
         22
              Id.

                                                 9
despite citing the wrong statutory subsection so long as it contains a “clear and concise

statement of the elements of the crime charged.” 23 It was clear from the face of Malcolm’s

original indictment that he was charged with sexually battering his fourteen-year-old daughter

when he was thirty-nine years old.       As such, Malcolm should have anticipated being

prosecuted under subsection (c).

¶10.   The amendments also did not alter Malcolm’s defense.24 Malcolm never claimed he

was innocent based on Mary’s age. Rather, he consistently maintained that he never

inappropriately touched Mary. Malcolm’s original indictment was sufficient, and the State’s

amendments corrected only defects of form. This issue is without merit.

B. Sufficiency of the Evidence

¶11.   Malcolm claims that the State failed to present sufficient evidence to support any of

his three convictions, and that the trial court erred in denying his motion for judgment

nothwithstanding the verdict (JNOV). When reviewing the denial of a motion for JNOV, the

evidence is viewed in the light most favorable to the verdict.25 A reversal is appropriate “only

where, with respect to one or more of the elements of the offense charged, the evidence so




        23
        See Evans v. State, 916 So. 2d 550, 552 (Miss. Ct. App. 2005) (citing White v. State,
153 So. 387, 388 (Miss. 1934)).
        24
         See Givens v. State, 730 So. 2d 81 (Miss. Ct. App. 1998) (amendment changing the
date of the alleged crime held to be one of form because the date change did not change the
crime charged and did not prejudice Givens’s defense, which was not time-specific).
        25
             Patton, 109 So. 3d at 82.

                                              10
considered is such that reasonable and fair-minded jurors could only find the accused not

guilty.” 26

¶12.    To convict Malcolm of child - fondling, the State had to prove that Malcolm, “for the

purpose of gratifying his . . . lust, or indulging his . . . depraved licentious sexual desires, . .

. handle[d], touch[ed] or rub[bed] [Mary] with hands or any part of his . . . body or any

member thereof” when he was more than eighteen years old and Mary was less than sixteen

years old.27 And, to convict Malcolm of sexual battery, the State had to prove Malcolm was

at least thirty-six months older than Mary and that he sexually penetrated her when she was

between the ages of fourteen and sixteen.28 The parties do not dispute that Mary was fourteen

and Malcolm was thirty-nine at the time of the alleged crimes. The question is simply

whether there was sufficient evidence: 1) that Malcolm fondled Mary on September 19, 2010,

and 2) that Malcolm sexually penetrated Mary between June 16, 2010, and September 18,

2010, and on September 19, 2010. In the sexual-battery context,

        Sexual penetration includes 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.29

¶13.    Mary testified that Malcolm had touched her vagina and had performed oral sex on her

the morning of September 19, 2010. She also testified that Malcolm had touched her vagina


         26
         Id. (quoting McClain v. State, 625 So. 2d 774, 778 (Miss. 1993) (internal quotations
 omitted)).
         27
              Miss. Code Ann. § 97-5-23(1) (Rev. 2006).
         28
              Miss. Code Ann. § 97-3-95(c) (Rev. 2006).
         29
              Miss. Code Ann. § 97-3-97(a) (Rev. 2006) (internal quotations omitted).

                                                11
several times between the end of June 2010 and September 18, 2010, with his hands, mouth,

penis, and a vibrator. Such behavior constitutes sexual penetration under Section 97-3-97(a)

and fondling under Section 97-5-23.30 Mary’s story was corroborated by testimony from

several witnesses who heard Mary recount her allegations of abuse during the investigative

process. DNA evidence also established the presence of male DNA inside and outside Mary’s

vagina and could not eliminate Malcolm as a potential source of the DNA. We find sufficient

evidence supported Malcolm’s sexual-battery and child-fondling convictions. As such, the

trial court did not err in denying Malcolm’s motion for JNOV.

C. The Weight of the Evidence

¶14.   Finally, Malcolm argues that the jury’s verdict is against the overwhelming weight of

the evidence and faults the trial court for denying his motion for a new trial. A “motion for

a new trial is addressed to the discretion of the trial court, and such motion should be

considered with caution. ‘[T]he power to grant a new trial should be invoked only in

exceptional cases in which the evidence preponderates heavily against the verdict.’” 31 This

Court must “weigh the evidence in the light most favorable to the verdict” and must therefore

look at the evidence in the light most favorable to the State’s theory of the case.32 This Court



        30
         See Brady v. State, 722 So. 2d 151 (Miss. Ct. App. 1998) (evidence that defendant
kissed nine-year-old victim’s vagina was sufficient to establish that defendant had performed
cunnilingus on the victim for the purpose of proving sexual penetration); Golden v. State,
984 So. 2d 1026 (Miss. Ct. App. 2008) (seven-year-old victim’s testimony that defendant
licked her vagina three or four times was sufficient to support fondling conviction under
Mississippi Code Section 97-5-23).
        31
             Weatherspoon v. State, 56 So. 3d 559, 564 (Miss. 2011).
        32
             Id. at 564 (citations omitted).

                                               12
“will disturb the verdict only ‘when it is so contrary to the overwhelming weight of the

evidence that to allow it to stand would sanction an unconscionable injustice.’” 33 For the

reasons expressed in the sufficiency-of-the-evidence analysis, this Court will not sanction an

unconscionable injustice to allow Malcolm’s convictions to stand. The overwhelming weight

of the evidence supported the jury’s verdicts, and the trial court did not err in denying

Malcolm’s motion for a new trial.

                                  CONCLUSION

¶15.   Malcolm Weeks Sr. was indicted and tried for sexually abusing his fourteen-year-old

daughter. Malcolm was convicted of one count of child - fondling and two counts of sexual

battery. Malcolm’s indictment was sufficient, even though the sexual-battery counts initially

tracked the wrong subsection of the sexual-battery statute. The indictment provided Malcolm

with notice of the charges against him, because it specifically alleged that he abused his

fourteen-year-old daughter and included his birthday, his daughter’s birthday, and the dates

of the alleged crimes. The trial court appropriately granted the State’s motion to amend the

indictment to reflect the appropriate subsection of the sexual-battery statute, as the

amendment was one of form. The trial court also appropriately denied Malcolm’s motion for

judgment notwithstanding the verdict, or in the alternative a new trial, because the jury’s

verdicts were sufficiently supported by the evidence and were not against the overwhelming

weight of the evidence. The judgment of the Rankin County Circuit Court is affirmed.




        33
        Ben v. State, 95 So. 3d 1236, 1253 (Miss. 2012) (citing Bush v. State, 895 So. 2d
836, 844 (Miss. 2005)).

                                             13
¶16. COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF
THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF GRATIFICATION
OF LUST AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV:
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. THE LAST FIFTEEN (15) YEARS IN COUNT IV ARE STAYED AND
THAT PORTION OF THE SENTENCE IS SUSPENDED AND THE APPELLANT
SHALL BE RELEASED AND PLACED ON FIVE (5) YEARS SUPERVISED
PROBATION AND IS REQUIRED TO REGISTER AS A SEX OFFENDER.
SENTENCES IMPOSED IN COUNTS III AND IV SHALL RUN CONCURRENTLY
WITH EACH OTHER BUT CONSECUTIVELY TO SENTENCE IN COUNT II,
WITH CONDITIONS.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.




                               14
