                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2015-KA-01062-SCT

JESSE FRANK MOUTON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          06/01/2015
TRIAL JUDGE:                               HON. LISA P. DODSON
TRIAL COURT ATTORNEYS:                     NATALIA VIAN PORSCHE
                                           MICHAEL W. CROSBY
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   MICHAEL W. CROSBY
                                           OFFICE OF THE STATE PUBLIC
                                           DEFENDER
                                           BY: BENJAMIN ALLEN SUBER
                                               GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: SCOTT STUART
DISTRICT ATTORNEY:                         JOEL SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 05/18/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       MAXWELL, JUSTICE, FOR THE COURT:

¶1.    Our trial judges have considerable discretion over discovery matters. This discretion

extends to the handling of requests for continuances or mistrials based on alleged discovery

violations. In this case, an expert witness testified that injuries to a child were consistent

with sexual abuse. Her reports, photographs of the injured body area, and expert opinion
were previously disclosed to the defense. Yet, at trial, the defense took issue with the

expert’s testimony about the relevance of the shape of some of the injuries. After

thoughtfully assessing the defendant’s request to exclude the expert’s testimony, the trial

judge denied it. Though she found no discovery violation, the judge recessed trial for the day

so defense counsel could further interview the expert. She also restricted the expert’s

testimony to external injuries but allowed the expert to give an opinion that the child’s

injuries resulted from sexual assault.

¶2.    On appeal, we find no abuse of discretion in the judge’s handling of this issue, nor do

we find she abused her discretion in denying a mistrial. Another alleged error involving the

giving of a Sharplin1 instruction lacks merit. And the defendant’s claims of prosecutorial

misconduct were either waived or unfounded.

¶3.    We affirm.

                        Background Facts and Procedural History

¶4.    In 2012, Jesse Frank Mouton lived with his brother Jody and Jody’s girlfriend

Katelyn, at the Country Living Trailer Park in Woolmarket, Mississippi. Katelyn often

babysat Toni Carpenter’s children—three-year-old N.B. and two-year-old A.B. On June 17,

2012, Toni noticed that N.B. “act[ed] with discomfort” when she strapped him in his car

seat.2 Toni asked N.B. what was wrong. And he said “his butt was hurting.” He told her

Mouton “had been playing with his butt and wiener.” When Toni confronted Mouton, N.B.


       1
           Sharplin v. State, 330 So. 2d 591 (Miss. 1976).
       2
        Mouton, Toni, N.B., and A.B. all spent the night of June 16, 2012, at Jody and
Katelyn’s trailer.

                                              2
pointed to Mouton and again said Mouton had played “with his butt and wiener.”

¶5.    Ocean Springs Hospital performed a sexual-assault examination on the child.3 And

Susan Auge, a Sexual Assault Nurse Examiner, interviewed and examined N.B. Auge found

four injuries to N.B.’s anus—a “rather large” abrasion and three anal tears. Auge concluded

N.B.’s injuries were consistent with sexual abuse. She produced a ten-page forensic report,

along with photographs taken during N.B.’s interview and examination.

¶6.    On April 13, 2015, a Harrison County grand jury indicted Mouton on four counts of

sexually assaulting N.B. Counts one and two charged Mouton with sexual battery.4 Counts

three and four charged him with touching a child for lustful purposes.5

¶7.    Mouton was tried in May 2015. The State presented evidence and testimony from

Toni, Auge, and a Biloxi police investigator, among other witnesses. Auge testified as an

expert witness. She described one of the tears to N.B.’s anus as “V-shaped.” In her opinion,

the child’s anal tears were consistent with sexual assault.

¶8.    Mouton objected, claiming the State failed to disclose Auge’s opinion on the

significance of the “V-shaped” tear.6 He argued this violated Mississippi Uniform Rule of


       3
        Toni initially took N.B. to the Biloxi Regional Medical Center. That hospital could
not perform the examination, so the Biloxi Police escorted Toni and N.B. to Ocean Springs
Hospital.
       4
           See Miss. Code Ann. § 97-3-95(1)(d) (Rev. 2014).
       5
           See Miss. Code Ann. § 97-5-23(1) (Rev. 2014).
       6
         During argument on the objection, the court examined and found that State’s
Exhibits 1, 3, and 4 were photographs, provided during discovery, that clearly showed
N.B.’s anus and the “V shaped” tear. As the judge put it, “I’ve already ruled on the v. It’s
in the photographs, it’s there.”

                                              3
Circuit and County Court Practice 9.04. But the trial judge disagreed. She found no

discovery violation and held the State had met its discovery obligations. Thus, she denied

Mouton’s motion for a mistrial.

¶9.    The judge did, however, grant a brief continuance and recessed court for the day to

give Mouton an additional opportunity to question Auge about her expected testimony.

When trial resumed the next day, the judge permitted Auge to testify. But the judge limited

her testimony to only the external injuries she had observed while examining N.B.

¶10.   The State also called Toni as a witness. Inconsistencies arose concerning her initial

statement to police and trial testimony. She originally told police Mouton’s ex-wife,

Shannon McGrew, had informed her of other sexual-assault allegations involving Mouton

and one of his children. But at trial, Toni claimed no knowledge of prior allegations against

Mouton. She testified she made these statements to the police while she was “distraught and

very flustered.” Mouton called Shannon in response. She testified that the Mississippi

Department of Human Services had cleared Mouton in the prior sexual-assault investigation.

During cross-examination, the State asked Shannon if Mouton had visitation with their

children and whether that visitation was supervised. Shannon answered affirmatively to both

questions. Shannon was the defense’s sole trial witness.

¶11.   After nearly four hours of deliberation, the jury sent a note to the judge. The note

explained the jurors were unable to reach a unanimous decision and needed guidance. After

hearing from both sides, the judge decided to read a Sharplin instruction to the jury,

instructing them to continue to deliberate. See Sharplin, 330 So. 2d at 596. Forty-one



                                             4
minutes later the jury returned its verdict—finding Mouton guilty on one count of sexual

battery and not guilty of the remaining three counts.

¶12.   Mouton filed a post-trial motion, seeking a new trial or judgment notwithstanding the

verdict. In it, he claimed three specific errors—(1) the State violated discovery rules by

failing to disclose Auge’s expert opinion on the shape of N.B.’s injuries; (2) the trial court

gave an improper Sharplin instruction; and (3) the State committed prosecutorial misconduct

during Toni’s and Shannon’s testimony. The trial judge denied Mouton’s motion.                On

appeal, Mouton raises the same three claimed errors.

                                          Discussion

       I.      Discovery Violation

¶13.   From the beginning of trial, Mouton made a host of inconsistent discovery-violation

claims. But he only advances one on appeal—that the State introduced undisclosed expert

testimony about the significance of the shape of N.B.’s anal tears.

¶14.   Mouton does not claim that Auge was not qualified to give an opinion that N.B.’s

injuries were consistent with sexual abuse. Nor does he claim the State failed to provide

discovery and photographs depicting the child’s anal tears. Rather, what Mouton coins a

discovery violation is that Auge did not write the words “V-shaped tear” in the disclosed

materials. So, as he sees it, Auge could not testify that one of the depicted tears to the child’s

anus was V-shaped, and that N.B.’s injuries were consistent with sexual abuse. For this

reason, Mouton insists, the judge erred by finding no discovery violation, improperly

allowing Auge to continue testifying, and not granting his motion for a mistrial.



                                                5
                A.    Standard of Review

¶15.   The decision to admit or exclude evidence is left to the trial court’s discretion. Wade

v. State, 583 So. 2d 965, 967 (Miss. 1991) (citations omitted). And we review evidentiary

decisions for abuse of discretion. Taylor v. State, 954 So. 2d 944, 947 (Miss. 2007)

(citations omitted). This abuse-of-discretion standard also extends to alleged violations of

Mississippi Uniform Rule of Circuit and County Court Practice 9.04 and to a trial court’s

denial of motions for continuance or mistrial. See Payton v. State, 897 So. 2d 921, 942

(Miss. 2003) (decisions on Rule 9.04 and motions for continuance are within the trial court’s

discretion); see also Hurst v. State, 195 So. 3d 736, 744 (Miss. 2016) (decisions on motions

for mistrial are within the trial court’s discretion).

¶16.   Under Rule 9.04(I), if the State attempts to introduce previously undisclosed evidence,

the defense may object and be afforded an opportunity to examine the evidence or interview

the witness. URCCC 9.04(I). If, after examination or interview, the defense claims unfair

surprise or prejudice, the judge may either exclude the evidence or grant a continuance or

mistrial. Id.

¶17.   Mouton’s counsel admitted he had received Auge’s ten-page forensic report—a report

that specifically diagrams and pinpoints the three distinct tears to N.B.’s anus. Defense

counsel also acknowledged he had received photographs of the tears. And he admitted

receiving a letter from the State, disclosing that Auge would testify that the child’s injuries

were consistent with sexual assault. Defense counsel also acknowledged he “interviewed

[Auge] on at least one occasion” before trial.



                                                6
¶18.   The record shows the trial judge carefully considered Mouton’s argument, finding no

merit to the bulk of it. While she found no discovery violation, the judge still employed a

“modified Box procedure” by granting Mouton a brief continuance. See Box v. State, 437

So. 2d 19 (Miss. 1983). The judge recessed court for the day and Mouton was allowed

additional time to interview Auge. And ultimately, Auge’s testimony was limited. Because

Auge had not examined N.B. internally, the judge restricted her from testifying about internal

injuries. But, given the State’s discovery and disclosures to Mouton, and the additional time

to question the expert, Auge was allowed to continue her expert testimony.

¶19.   After review, we find no abuse of discretion in the judge’s handling of the claimed

discovery violation. From the State’s discovery—which Mouton admitted receiving—it was

clear Auge would testify that the anal tears depicted in the photographs and forensic reports

were consistent with sexual assault. And the judge was thoughtful in her evidentiary

analysis, crafting an approach that granted Mouton’s request for additional time to question

Auge, and ultimately limiting the expert’s testimony to only external injuries.7 The judge did

not abuse her discretion in denying a mistrial and allowing Auge to give her opinion about



       7
          Even if Auge’s use of the word “V-shaped” violated Rule 9.04, its mention was at
most harmless. We may not reverse based on a judge’s handling of a claimed Rule 9.04
violation “unless it affirmatively appears from the record that the violation caused a
miscarriage of justice.” Ben v. State, 95 So. 3d 1236, 1249 (Miss. 2012) (quoting Payton,
897 So. 2d at 942); see also Hurst v. State, 195 So. 3d 736, 744 (Miss. 2016) (“even in a
total failure to adhere to Rule 9.04 by the trial court, that failure must still prejudice the party
to constitute reversible error”) (citations omitted). Auge’s disclosed opinion was and still
remained that N.B.’s anal injuries were consistent with sexual assault. And there was
testimony from N.B.’s mother and the Biloxi police officer dispatched to investigate N.B.’s
sexual assault, which corroborated N.B.’s statement that Mouton had “been playing with his
butt and wiener.”

                                                 7
the cause of the child’s external injuries.

                II.    Sharplin Instruction

¶20.   Mouton next argues the trial judge’s Sharplin instruction was improper and

prejudicial. Mouton claims that because the jury’s note indicated the numerical split among

jurors—“8 - 3 guilty”—the judge’s Sharplin instruction was designed to influence the jury’s

decision.

¶21.   We have approved using a Sharplin instruction when a jury says it cannot reach a

unanimous verdict. See Powell v. State, 58 So. 3d 55, 57-58 (Miss. 2011); see also Tyler v.

State, 19 So. 3d 663, 667-68 (Miss. 2009). But given “the possibility of coercion,” this Court

takes note of a trial judge’s “conduct and comments after he receives the [jury’s] division[.]”

Sharplin, 330 So. 2d at 596. It is reversible error for a trial judge to attempt “to force a

verdict by suggestive or coercive measures.” Lafayette v. State, 90 So. 3d 1215, 1219 (Miss.

2012) (quoting Isom v. State, 481 So. 2d 820, 822 (Miss. 1985)). The question we ask is

“whether the judge merely afford[ed] the jury additional time to deliberate or [whether] he

attempt[ed] to force a verdict . . . .” Sharplin, 330 So. 2d at 596.

¶22.   Here, the judge’s Sharplin instruction was essentially verbatim from our approved

language, the one exception being the final sentence.8 This last sentence simply stated:

       8
           The instruction approved by this Court states:

               I know that it is possible for honest men and women to have honest
       different opinions about the facts of a case, but, if it is possible to reconcile
       your differences of opinion and decide this case, then you should do so.
               Accordingly, I remind you that the court originally instructed you that
       the verdict of the jury must represent the considered judgment of each juror.
       It is your duty as jurors to consult with one another and to deliberate in view

                                               8
“Please keep this jury instruction with the other jury instructions.” We also notice Mouton

did not acknowledge it was the jury that provided the numerical division. This was done

without instruction or request from the trial judge. And the note did not indicate guilt or

innocence as to the specific counts. See Sharplin, 330 So. 2d at 596 (the mere request and

receipt [by the trial court] of the jury’s numerical division without reference to guilt or

innocence does not coerce the jury and is not error). As such, there is no evidence of

coercion or suggestion by the judge in giving the Sharplin instruction.

       III.   Prosecutorial Misconduct

¶23.   Mouton’s final argument cites several moments at trial he now claims show

prosecutorial misconduct. He points to his own witness’s statements during the State’s cross-

examination, Toni’s differing testimony from an earlier police statement, and the State’s use

of Auge’s expert testimony. Mouton suggests these examples, both individually and

together, warrant a new trial. We disagree.

¶24.   This Court has been clear—“preservation of an issue for appeal requires a

contemporaneous objection at trial.” Roby v. State, 183 So. 3d 857, 870-71 (Miss. 2016)

(quoting Kirk v. State, 160 So. 3d 685, 692 (Miss. 2015)). And Mouton’s attempts to now


       of reaching agreement if you can do so without violence to your individual
       judgment. Each of you must decide the case for yourself, but only after an
       impartial consideration of the evidence with your fellow jurors. In the course
       of your deliberations, do not hesitate to reexamine your own views and change
       your opinion if you are convinced it is erroneous, but do not surrender your
       honest convictions as to the weight or effect of the evidence solely because of
       the opinion of your fellow jurors or for the mere purpose of returning a
       verdict. Please continue your deliberations.

Sharplin, 330 So. 2d at 596.

                                              9
frame several unchallenged issues as “prosecutorial misconduct” does not relieve him from

the requirement to contemporaneously object to preserve prosecutorial misconduct issues for

appeal. See Simmons v. State, 805 So. 2d 452, 489-90 (Miss. 2001).

¶25.   Mouton called Shannon, his ex-wife, to testify as a defense witness. During cross-

examination, the State asked if Mouton had visitation rights with their three children and if

his visitation was supervised. Shannon answered affirmatively to both questions. Mouton

now suggests the State improperly implied his supervised visitation requirement related to

the prior abuse allegations, when it knew the condition was required under Mouton’s court

bond.9 This was probably an area of inquiry the State should have avoided. But Mouton did

not object to the State’s inquiry. Nor did he try to clarify the visitation issue on redirect. So

this argument is waived.

¶26.   Shifting to Toni’s testimony, Mouton argues the State improperly “condon[ed] the

change” in her testimony “without warning to the defense.” He insists the State knew Toni’s

trial testimony—that she was unaware of prior abuse allegations—conflicted with her initial

police statement. But the judge allowed the defense to exhaustively impeach her with her

prior statement, which was admitted into evidence. And while Mouton claims he was barred

from introducing rebuttal testimony, the witnesses he previously chose to disclose to the State

were designated to testify only about Mouton’s character. The trial judge noted this and



       9
         Mouton claims this information was known only to the State and was discovered
during an interview with Shannon that Mouton’s counsel was not allowed to attend. This
is unsupported. Furthermore, nothing in the record suggests Mouton could not have
interviewed his own witness. Nor is it evident Mouton was unaware of the terms of his
release on bond.

                                               10
denied his request. Afterward, Mouton opted not to offer either character witness.

¶27.   Again, Mouton’s counsel made no objection based on prosecutorial misconduct, and

we see no obvious prejudicial error on the State’s part.

¶28.   Since this Court has already addressed Mouton’s claims about Auge’s testimony,

further discussion is unnecessary. To the extent Mouton claims cumulative error, we are not

persuaded. “The cumulative error doctrine stems from the doctrine of harmless error,

codified under Mississippi Rule of Civil Procedure 61.” Ross v. State, 954 So. 2d 968, 1018

(Miss. 2007). But “prejudicial rulings or events that do not even rise to the level of harmless

error will not be aggregated to find reversible error.” Id. On review, the only issue that even

potentially rises to the level of harmless error involves the judge’s ruling on the State’s

supposed Rule 9.04 violation. And one potential harmless error does not amount to

cumulative error. What is more, even if this Court were to conduct a cumulative-error

analysis, we would examine “whether the issue of innocence or guilt is close,” and because

Mouton challenges neither the weight nor the sufficiency of the evidence, we do not find the

issue close. Id. So reversal is not proper.

                                         Conclusion

¶29.   We find no abuse of discretion in the trial court’s decisions involving the State’s

expert testimony. Nor do we find the trial court’s Sharplin instruction improper or

prejudicial. And because Mouton failed to timely object to alleged prosecutorial misconduct,

those issues are not properly preserved for this Court’s review. We therefore affirm

Mouton’s conviction.



                                              11
¶30. CONVICTION OF SEXUAL BATTERY-COUNT I AND SENTENCE OF
TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED. APPELLANT SHALL REGISTER AND RE-
REGISTER AS A SEX OFFENDER. APPELLANT SHALL RECEIVE CREDIT FOR
ANY AND ALL TIME SERVED AS TO THIS CHARGE.

     WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., COLEMAN, BEAM
AND CHAMBERLIN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KING, J. KING, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.

       KITCHENS, JUSTICE, DISSENTING:

¶31.   I fully join the excellent analysis in Justice King’s dissent and agree that Jesse Frank

Mouton is entitled to a new trial because the trial court permitted the State’s expert to provide

opinion testimony which had not been disclosed to defense counsel as required by Rule 9.04

of the Uniform Rules of Circuit and County Court Practice.

¶32.   I write only to observe that this Court has held, in civil cases, that “nurses cannot

testify as to medical causation.” Vaughn v. Miss. Baptist Med. Ctr., 20 So. 3d 645, 652

(Miss. 2009). The Court continued that, “[s]ince medical diagnosis is outside a nurse’s scope

of practice, logically it would follow that a nurse should not be permitted to testify as to

his/her diagnostic impressions or as to the cause of a particular infectious disease or illness.”

Id. “This is in keeping with the majority rule that nursing experts cannot opine as to medical

causation and are unable to establish the necessary element of proximate cause.” Id.

¶33.   Conversely, this Court attempted to craft a distinction in order to permit sexual assault

nurse examiners (SANEs) to testify that sexual assault injuries are consistent with trauma:

“Thomas, a sexual-assault nurse examiner, did not testify as to what caused [the victim’s]

injuries; her testimony was only that those injuries were consistent with blunt, penetrating


                                               12
trauma.” Young v. State, 106 So. 3d 775, 783 (Miss. 2012) (emphasis in original). There, the

Court found that “the supervising physician, in this case Dr. Claudette Shepard, made a final

determination as to ultimate causation, medical diagnosis, and treatment.” Id. at 781.

Seemingly to the contrary, the Court then reasoned that to require physician supervision

would be too restrictive: “[t]o restrict SANEs from testifying as to sexual assault would set

a dangerous precedent, forcing supervising physicians to devote more of their valuable time

to trial work, and making it more difficult for rape victims to achieve justice, while failing

to provide any useful protections to sexual-assault defendants.” Id. at 784.

¶34.   I concurred in part and dissented in part in Young, quoting my Vaughn dissent in

support of the majority’s holding that the trial court had not erred by allowing the sexual

assault nurse examiner’s testimony:

       [T]he issue of whether a particular nurse, by virtue of his or her knowledge,
       skill, experience, training or education, possesses such ability is better
       determined by a case-by-case inquiry than by a broad, “one-size-fits-all”
       judicial pontification to the effect that no nurse in the world will ever be
       allowed to testify as to medical causation in any Mississippi court case. As is
       true of any other profession, the education, experience and understanding of
       nurses span a broad spectrum. We should not enunciate a hard and fast rule
       that permanently forecloses the possibility of any nurse’s being qualified to
       give expert testimony on medical causation in any and all cases that may arise
       in the future.

Young, 106 So. 3d at 790 (Kitchens, J., concurring in part and dissenting in part) (quoting

Vaughn, 20 So. 3d at 657 (Kitchens, J., dissenting)).

¶35.   In the present case, Nurse Auge opined, as an expert, that the shape and location of

the victim’s injuries indicated that those injuries were caused, not by a hard stool exiting the

anus, but rather by something entering the anus: “[t]he tears are indicative of something large

                                              13
penetrating the anal sphincter.”

¶36.   I maintain that qualified nurses—irrespective of whether they are qualified in civil or

criminal cases—should be allowed to testify to causation. If this Court forbids a qualified

nurse to testify to causation in a civil case in which mere money is at stake, why should a

sexual assault nurse examiner be permitted to testify to causation in a criminal case in which

the defendant’s liberty is at stake and in which the State is obligated to prove each element

of the crime beyond a reasonable doubt? The only apparent explanations for such arbitrary,

contradictory rules are, first, the interest of civil defendants in preventing potentially harmful

causation testimony from an otherwise-qualified nurse and, second, the expediency to the

State of utilizing the testimony of a qualified sexual assault nurse examiner in obtaining a

conviction. Such interest-driven distinction is not legitimate and renders the notion that the

Mississippi Rules of Evidence are applied the same in civil and criminal trial a mere myth.

       KING, J., JOINS THIS OPINION.

       KING, JUSTICE, DISSENTING:

¶37.   Because I believe that the State essentially conducted a trial by ambush by failing to

disclose Auge’s testimony about the shape and location of the tears, I respectfully dissent

with the majority’s finding on that issue.

¶38.   Pursuant to Uniform Rule of Circuit and County Court Practice 9.04, “[t]he

prosecution must disclose to each defendant or to defendant’s attorney . . . any reports,

statements, or opinions of experts, written, recorded or otherwise preserved, made in

connection with the particular case and the substance of any oral statement made by any such



                                               14
expert . . . .” URCCC 9.04(A)(4).10 The purpose of Rule 9.04 is to “avoid unfair surprise to

either the state or defendant at trial.” Ramos v. State, 710 So. 2d 380, 386 (Miss. 1998).

“[W]e have held that the duty to make discovery extends to unwritten statements and reports

as well.” West v. State, 553 So. 2d 8, 17 (Miss. 1989). Therefore, pursuant to Rule 9.04, the

prosecution must disclose any expert opinions and the substance of the opinion of any oral

statement made by any such expert. I believe that the prosecution’s failure to disclose that

its expert would testify about the v-shape of the tear, that the tear was an anterior tear, and

that the tear had been partially internal was highly prejudicial to the defense.

¶39.   First, the prosecution provided to the defense a statement that Auge’s testimony would

include that the injuries sustained were consistent with the history presented. That statement

was vague and gave no indication that Auge would testify as to the V-shape of one of the

tears or of its implications. Auge’s ten-page medical report also did not contain any

references concerning the shape of the anal tears or references to internal injuries or the

implications thereof. Had the defense been informed of Auge’s opinions prior to trial, it

would have had the opportunity to prepare an effective cross-examination and to present its

own evidence in rebuttal.11


       10
         Rule 9.04 formerly was Uniform Rule of Criminal Court Practice Rule 4.06.
       11
         The majority asserts that the trial court had examined and found that the State’s
exhibits had clearly shown “N.B.’s anus and the ‘V-shaped’ tear.” The majority misstates
the trial court. During argument on the objection, the trial court asked Auge which
photographs depicted the v-shaped tears. The trial court said, “With that then clearly
depicted in the photographs so she can clearly testified it wasn’t in the opinion what the
shape of it was. . . .” The trial court went on to say, “I’ve already ruled on the v. It’s in the
photographs, it’s there. You can call it whatever shape you want to. She can call it whatever
shape she wants to. That’s a matter that the jury will decide if a V, a W, an X, whatever it

                                               15
¶40.   The prosecution’s failure to disclose Auge’s testimony and its allowing Auge to testify

repeatedly on the undisclosed opinions caused a miscarriage of justice. Auge testified

extensively about the shape and position of the tears:

       •      I noted four specific injuries. One was a tear at 12 o’clock, again that
              was v-shaped . . .

       •      The tears, the anal tears, there is – the major reason for an anal tear is
              actually a large hard stool that is passed . . . . Usually those – 99 percent
              of those tears are posterior. They go toward the back side. So on the
              anus it would go toward the backside. Ninety-nine percent of all cases
              are of anal tears due to constipation is a posterior tear. You can have an
              anterior tear as well, but again 99 percent are posterior.

       •      [Posterior tears are] [b]ehind in the backside of the anus. That piece of
              tissue receives less vascular circulation. So that part is the one that
              generally tears as posterior.

       •      He had three anal tears. One was at 12 o’clock again based on the
              clock. That was a v-shape tear.

       •      The v-shape tear was wide toward the outer aspect of the anus and went
              in toward the inner aspect of the anus with traction and dilatation,
              which is just the slightness of the anus. I was unable to see the end of
              the tear. So it went inside where the anus was dilated.

       •      As you can see this – if you’re not upclose and looking at it it’s difficult
              to see. But up here is the v-shape tear. It starts here and it goes here,
              and it goes into the anal vault.

       •      The v-shape tear is at 12 o’clock . . . . There is a large tear to the
              posterior area, which again for certain aspects you would expect that.
              An anterior tear is not necessarily something that I would expect.


might look like to them.” The trial court did not state that the photographs clearly depicted
a V-shape, only that the photographs depicted a tear and it was up to the jury to decide
whether it looked like a V-shape to them. In addition, whether the photographs depict a V-
shape is a secondary issue. The primary issue is that Auge was directly asked to disclose all
opinions before trial. Auge clearly failed to disclose, or to even mention, any opinions at all
on the shape of the tear and the implications thereof.

                                               16
       •      This right here with the blue dye it allows us to see injuries a lot clearer.
              And if you look right here this area here, it starts here and it is a v-
              shape tear that goes toward the rectum. Again even with dilatation I
              was unable to see the very end of that tear.

       •      Like – I don’t know – previously I’ve stated that just having a large
              bowel movement with a rectal tear generally in the posterior area adults
              come into the emergency room with that pain.

       •      Individually, individually each tear certainly could be caused, other
              than the v-shape tear, by a large stool coming out. Collectively, no, sir.

       •      Again the v-shape tear is just significant of an outside force going in
              toward the anus. So there would have to be a rational reason, and again
              that would come from your history as to why that particular tear was
              there.

       •      [Let me ask you. You’re saying that you got the outside – that you think
              that the v-shape indicates an outside force, right?] Absolutely.

¶41.   Auge was the only expert witness called at trial and her testimony arguably was the

most convincing evidence that the prosecution produced. Thus, her opinion that one of the

tears was in a V-shape and that this particular shape indicated that there had been an outside

force going into the anus, was extremely prejudicial to the defense. Out of the four counts

with which Mouton had been charged, the jury convicted only on Count I - Sexual Battery:

sexual penetration by inserting his finger into the anus of N.B. Auge’s testimony that the V-

shaped tear indicated that something was going into the anus instead of a large stool going

out of the anus directly was correlated with Count I. This, coupled with the jury’s initial

deadlock in convicting Mouton, indicates that Auge’s testimony on the V-shaped tear and

the posterior/anterior location of the tear was extremely prejudicial to the defense and

important to the jury. As this Court has emphasized, “[j]ustice is better served when the

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accused knows ‘reasonably well in advance of trial what the prosecution will try to prove and

how it will attempt to make its proof. . . .’” Densmore v. State, 27 So. 3d 379, 382 (Miss.

2009). Accordingly, I believe that the prosecution’s failure to notify the accused in advance

of trial of the opinions of its expert was reversible error.

¶42.   The clear language of Rule 9.04 states that any expert opinions must be disclosed.

Mere disclosure of the location of anal tears does not fulfill the rule’s requirement to disclose

any expert opinions. In a trial in which the defendant is accused of sexual battery, a blanket

disclosure that Auge would testify that the injuries were consistent with sexual abuse does

not suffice. That in no way put Mouton on notice of Auge’s opinions about the shape of the

anal tears or of her opinion that the particular shape indicated the tear was caused by an

outside force. Mouton had prepared a defense that the tears had been caused by constipation.

Had Auge’s opinion that the specific “V-shape” of the tear indicated it was caused by an

outside force been disclosed, Mouton would have had an opportunity to amend his defense.

¶43.   N.B.’s mother potentially had known of similar accusations against Mouton that, after

an investigation, were found to be without evidence and were dropped. In her own statement

to the police, she asserted that, “[a]fter I picked up my son [N.B.] and daughter [A.B.], [N.B.]

start [sic] to complain about his butt. I asked him has anyone messed with him in his areas

. . . .” N.B. was three years old at that time and Auge admitted that a child that young could

hear someone ask questions about a situation and the child would think that it had happened

to him even though it did not. At the time of trial, N.B. could not remember most of what,

if anything, had happened that night. Thus, the opinion that N.B.’s anal tears could have been



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caused by constipation were it not for the V-shape became vitally important.

¶44.   Moreover, Mouton’s attorney stated that he had interviewed Auge at great length and

that he had asked her to “tell [him] everything that she found and why and the possibilities

associated therewith.” Auge did not disclose her opinions about the shape of any of the tears,

that the tears were anterior as opposed to posterior, or of her opinions on what she believed

the shape and location of the tears indicated. Therefore, despite Mouton’s attorney having

inquired, Auge either withheld or changed her opinions as to the shape, location, and

meaning of the tears. In either scenario, Mouton lacked notice of Auge’s opinions at trial.

Hence, I believe a new trial giving Mouton an opportunity to prepare an effective defense is

the appropriate remedy for the discovery violation.

¶45.   I submit that the prosecution’s failure to disclose Auge’s opinions violated Rule 9.04,

unfairly surprised the defense, and constituted a miscarriage of justice. Accordingly, I dissent

and would reverse the judgment and remand for a new trial.

       KITCHENS, J., JOINS THIS OPINION.




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