                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-KA-00579-SCT

SYLVESTER BRANCH

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          03/07/2006
TRIAL JUDGE:                               HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   VIRGINIA L. WATKINS
                                           WILLIAM R. LABARRE
                                           JAMES ADAM POWERS
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: W. GLENN WATTS
DISTRICT ATTORNEY:                         ROBERT SHULER SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 10/30/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE SMITH, C.J., DICKINSON AND LAMAR, JJ.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    This case is before the Court on appeal from the Circuit Court of the First Judicial

District of Hinds County, where Sylvester Branch was convicted of statutory rape and

gratification of lust. Branch argues that: (1) the trial court erred when it permitted expert

testimony as to the credibility of the victim, claiming it to be irrelevant and inadmissable

hearsay; and (2) it was reversible error to deny Branch’s motion for a directed verdict on the

gratification-of-lust charge, as the complained act was incorporated into the statutory-rape
charge.     Finding no error, this Court affirms the convictions of statutory rape and

gratification of lust.

                                               FACTS

¶2.     C.V.1 alleged that one morning, her father, Branch, entered her room and instructed

her to come to his room. C.V. testified that she went to Branch’s room, and Branch told her

to remove her clothes and get into his bed. C.V. stated that Branch then removed his clothes,

and he proceeded to penetrate her vagina with his finger for five or ten minutes. Following

this act, C.V. stated that Branch penetrated her vagina with his penis for five or ten minutes.

C.V. testified that, after these acts, Branch instructed her to take a shower in his bathroom

and tell no one what had happened. C.V. stated that she told her mother about the incidents

five days after they occurred. C.V. testified that her mother then called the police and took

her to the hospital for an examination.

¶3.     C.V. was referred to the Children’s Advocacy Center (“CAC”) by the Hinds County

Department of Human Services. Bryan Irving, a forensic interviewer with CAC, interviewed

C.V. to determine if C.V. needed a referral for further medical attention and to assess her

credibility as to the abuse allegations. During the interview, C.V. disclosed details of the

abuse and stated that her father, Branch, had raped her.

¶4.     Over objection, Irving testified at trial that C.V. had identified Branch as her rapist.

Irving also testified that throughout the interview: 1) C.V. was consistent in identifying


        1
          The initials C.V. are used to protect the identity of the victim. C.V. was fourteen at the time
of trial, but eleven when the events at issue occurred.

                                                   2
Branch and reporting the events; 2) C.V. was consistent in telling him what she told others;

and 3) C.V.’s demeanor was consistent with the facts she relayed to Irving. C.V. also used

numerous contextual details to describe the fondling and rape. Because of C.V.’s consistent

and detailed account, Irving stated that C.V.’s allegations were credible. Branch’s counsel

objected to Irving’s statements regarding credibility, arguing that the statements invaded the

province of the jury, but the judge overruled the objection.

¶5.    At trial, C.V.’s mother, a law enforcement officer with the sex-crimes protection unit,

and a physician each provided testimony consistent with the testimony of C.V. and Irving.

C.V.’s mother relayed how she had become aware of the abuse and the actions she had taken

to get C.V. medical attention. The officer testified that he had interviewed C.V., her mother,

and the examining physician. The officer found that C.V. consistently had identified her

father as the abuser and consistently had recounted the details of the abuse. The physician

performed a sexual-assault examination, and testified that his “findings were suggestive of

vaginal penetration.”

                               PROCEDURAL HISTORY

¶6.    Branch was indicted on charges of statutory rape and gratification of lust, and he was

convicted on both counts on March 7, 2006.          Branch was sentenced to thirty years

imprisonment, with ten years suspended and five years of post-release supervision for

statutory rape. For gratification of lust, Branch was sentenced to fifteen years, with five

years suspended, to be served concurrently with the statutory-rape sentence. Branch appeals

the two convictions and corresponding sentences, arguing that the trial court committed

                                              3
reversible error when it allowed Irving to testify and when it failed to grant the defendant’s

directed verdict.

                                            ANALYSIS

       I.      WHETHER THE TRIAL COURT ERRED IN PERMITTING
               IRVING TO TESTIFY AS TO THE CREDIBILITY OF THE
               CHILD VICTIM.

¶7.    This Court reviews evidentiary rulings for an abuse of discretion. Foley v. State,

914 So. 2d 677, 682-83 (Miss. 2005).

¶8.    Branch contends that the trial court abused its discretion by allowing Irving to testify

regarding C.V.’s credibility as to the allegations of abuse. Branch argues that Irving was

never offered or qualified as an expert pursuant to Rule 702 of the Mississippi Rules of

Evidence.2     Furthermore, Branch contends that Irving admitted he had no first-hand

knowledge of the events C.V. related to him. Branch argues that such knowledge is a

prerequisite for admission of evidence under Rule 701 of the Mississippi Rules of Evidence.3

Branch also claims that Irving’s testimony usurped the duty of the jury to evaluate C.V.’s

credibility. While the trial court permitted Irving’s testimony under Mississippi Rule of



       2
          Pursuant to Rule 702, an expert may provide testimony if “qualified . . . by knowledge,
skill, experience, training, or education.” Miss. R. Evid. 702. Once qualified, the expert may
provide testimony if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is
the product of reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.” Id.
       3
         Pursuant to Rule 701, a lay witness may provide testimony “limited to those opinions or
inferences which are (a) rationally based on the perception of the witness, (b) helpful to the clear
understanding of the testimony or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” Miss. R. Evid. 701.

                                                   4
Evidence 803(4),4 Branch contends that the primary purpose of the interview was to assess

C.V.’s credibility, not to provide medical treatment or a diagnosis.

¶9.     In the court below, Branch failed to object to Irving’s testimony pursuant to Rule 701

or Rule 702 of the Mississippi Rules of Evidence. Therefore, Branch waived the right to

appeal this issue. Haddox v. State, 636 So. 2d 1229, 1240 (Miss. 1994).

¶10.   The record reflects that the trial court admitted Irving’s testimony, which consisted

of C.V. identifying her sexual assailant as her father, under Mississippi Rule of Evidence

803(4). In Jones v. State, this Court stated “[t]here is a two-part test for admitting hearsay

statements under 803(4).” Jones v. State, 606 So. 2d 1051, 1056 (Miss. 1992). “First, the

declarant’s motive in making the statement must be consistent with the purposes of

promoting treatment; and second, the content of the statement must be such as is reasonably

relied on by a physician in treatment.” Id. The Court further explained that statements

“made by a child abuse victim that the abuser is a member of the immediate household are

reasonably pertinent to treatment, as treatment encompasses treating emotional and

psychological injuries and is relevant to prevention.” Id. at 1056-57 (citation omitted) (ruling

that court erred in allowing doctor’s testimony of the abuser’s identity when the abuser was

not part of the immediate household).

       4
         Pursuant to Rule 803(4), “[s]tatements made for purposes of medical diagnosis or treatment
and describing . . . past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof” are not hearsay. Miss. R. Evid. 803(4). The
statements must be “reasonably pertinent to diagnosis or treatment, regardless of to whom the
statements are made, or when the statements are made, if the court, in its discretion, affirmatively
finds that the proffered statements were made under circumstances substantially indicating their
trustworthiness.” Id. (emphasis added).

                                                 5
¶11.   This Court finds that the trial court did not err in allowing Irving to make statements

regarding Branch’s identity as the abuser. The purpose of Irving’s interview was to ascertain

if C.V. needed further medical attention and to judge whether her claims were credible. C.V.

identified Branch as her abuser during the course of the interview, an interview clearly

undertaken for the purpose of promoting medical treatment. Thus, prong one of the Jones

v. State test is satisfied. Id. at 1056.

¶12.   As for prong two, the Court in Jones ruled that a child abuse victim’s statement,

which identifies an abuser as an immediate household member, is reasonably pertinent to

treatment. Id. at 1056-57. C.V. identified her biological father, who at the time of the abuse

was married to C.V.’s mother and lived in the same household. As such, C.V.’s statement

to Irving is one that a physician would rely upon in providing medical care and therapy

pursuant to prong two. Therefore, Irving’s testimony regarding Branch’s identity as the

abuser was properly admitted under Rule 803(4).

¶13.   Branch also contends that the court improperly allowed Irving to comment on C.V.’s

credibility regarding the allegations of abuse. Branch relies upon Hart v. State to support

his argument that it is disingenuous to suggest that testimony regarding the credibility of a

witness is not a comment on veracity. Hart v. State, 637 So. 2d 1329, 1338 (Miss. 1994).

In Hart, this Court affirmed the trial court’s exclusion of a psychologist’s testimony when

the psychologist stated that it was his opinion that the defendant had acted reasonably. Id.

Specifically, the expert asserted that the defendant “acted justifiably in self-defense.” Id.

This Court held that such testimony invaded the province of the jury because the testimony

                                              6
was an opinion on the ultimate issue and thus a legal conclusion as to the defendant’s state

of mind. Id. at 1338-40.

¶14.   Hart fails to strengthen Branch’s argument. Unlike the expert witness in Hart, Irving

did not assert an ultimate opinion or legal conclusion. Irving testified that he assessed

several variables of credibility, including consistency, details, and demeanor, all of which

indicated C.V.’s report was credible. Irving never stated that C.V. was telling the truth.

Irving merely testified in terms of the criteria that he evaluates in his position as a forensic

interviewer with CAC. The jury was given the opportunity to independently evaluate

Irving’s testimony in conjunction with C.V.’s testimony in order to determine if it believed

C.V.’s version of events. Therefore, Hart fails to support Branch’s contention that Irving’s

testimony was inadmissible.

¶15.   This Court finds Hobgood v. State, 926 So. 2d 847 (Miss. 2006), controls the outcome

on this issue. In Hobgood, this Court upheld the trial court’s decision to allow testimony as

to the credibility of a child-abuse victim. Id. at 854; see also Smith v. State, 925 So. 2d 825,

834-35 (Miss. 2006) (finding that expert testimony was admissible, since it “pertained to the

credibility of the interviews with the girls rather than the girls’ veracity”). In Hobgood, a

psychotherapist was asked at trial if he found the child victim credible. Hobgood, 926 So.

2d at 854. The expert replied “yes” and explained that the victim’s account of the abuse was

always consistent and physical evidence supported the child’s statements. Id.

¶16.   The Court noted that the expert “never stated that the victim was telling the truth.” Id.

The Court found that the “expert explained the consistency of the accounts [the child] made

                                               7
to individuals, at different times, not in the presence of the others, and found them to be

credible.” Id. Furthermore, the Court noted that the jury had the opportunity to evaluate the

expert’s testimony along with five other witnesses. Id. The Court held that allowing the

witness’s testimony was not error “when viewed in the totality of [the] testimony.” Id.

¶17.   As previously noted, Irving never stated C.V. was telling the truth. Similar to the

expert witness in Hobgood, Irving testified that C.V.’s statements were credible because C.V.

consistently had made the same statements with the same level of detail to various adults.

Like Hobgood, the jury was given the opportunity to consider Irving’s testimony in

conjunction with the testimony of various witnesses. Notably, the jury was able to evaluate

C.V.’s demeanor when she testified at trial. For the foregoing reasons, the trial court did not

abuse its discretion in permitting Irving to testify as to C.V.’s credibility. Therefore, this

issue is without merit.

       II.    WHETHER THE COURT ERRED IN DENYING BRANCH’S
              M OTION FOR A DIRECTED VERDICT ON THE
              GRATIFICATION-OF-LUST CHARGE.

¶18.   When this Court reviews a denial of a directed verdict, it applies a de novo standard

of review. Gilmer v. State, 955 So. 2d 829, 833 (Miss. 2007). “In reviewing a denial of a

motion for a directed verdict, if we determine the evidence points in favor of the defendant

on any element of the offense such that a reasonable juror could not have found the defendant

guilty beyond a reasonable doubt, we must reverse the conviction.” Coleman v. State, 947

So. 2d 878, 881 (Miss. 2006).



                                              8
¶19.   The trial court ruled that the State had put forth evidence that the fondling had

occurred at a time separate from the rape, and that the fondling had involved acts different

from the rape. Therefore, the trial court denied Branch’s motion for directed verdict.

¶20.   Branch argues that the trial court erred when it denied his motion for a directed verdict

because the statutory-rape charge encompassed the charge of gratification of lust. Branch

asserts that the fondling was in furtherance of the actual rape rather than a second offense.

Branch supports his argument with Edwards v. State, 737 So. 2d 275, 321 (Miss. 1999).

¶21.   In Edwards, the defendant was charged with two counts of capital murder while

engaged in the commission of an armed robbery, and he was charged with one count of

armed robbery. Id. at 284. On appeal, this Court reversed the armed-robbery conviction,

since the “armed robbery was the underlying felony in the capital murder charges.” Id. The

Court held it was double jeopardy to convict the defendant of capital murder with armed

robbery as the underlying offense as well as armed robbery. Id.

¶22.   In order to determine whether statutory rape encompasses gratification of lust, the

Court must examine the law regarding double jeopardy and the language of the statutes at

issue in this case. The Court has stated the following regarding double jeopardy:

              Double Jeopardy consists of three separate constitutional protections.
       White v. State, 702 So. 2d 107 (Miss. 1997). “It protects against a second
       prosecution for the same offense after acquittal. It protects against a second
       prosecution for the same offense after conviction. And it protects against
       multiple punishments for the same offense.” Id. “The applicable rule is that,
       where the same act or transaction constitutes a violation of two distinct
       statutory provisions, the test to be applied to determine whether there are two
       offenses or only one is whether each provision requires proof of an additional


                                               9
       fact which the other does not.” Blockburger v. United States, 284 U.S. 299,
       304, 76 L. Ed. 306, 52 S. Ct. 180 (1932).

Jordan v. State, 936 So. 2d 368, 374 (Miss. Ct. App. 2005).

¶23.   In Jordan, the defendant forced the victim to perform oral sex. Id. at 370. The

defendant then sodomized the victim. Id. Lastly, the defendant forced the victim to have

intercourse with him. Id. The defendant was charged with two counts of sexual battery for

the acts of oral sex and sodomy and one count of rape for the forced intercourse. Id. at 374.

The defendant claimed that the sexual battery and rape charges were duplicitous, giving rise

to a double-jeopardy violation. Id.

¶24.   In analyzing the defendant’s claims, the Court looked at the definition of “sexual

intercourse” and found that oral sex and sodomy could never qualify as “‘a joining of the

sexual organs of a male and female human being in which the penis of the male is inserted

into the vagina of the female.’” Id. Furthermore, the Court noted that sodomy and oral sex

were two different acts constituting sexual battery. Id. The Court held that there was no

merit to the defendant’s claim of double jeopardy because the three charges plainly alleged

three distinctly separate acts. Id.

¶25.   Keeping in mind the law of double jeopardy, this Court considers those statutes

relevant to gratification of lust and statutory rape, namely, Section 97-5-23 and Section 97-3-

65 (Rev. 2006) of the Mississippi Code Annotated. Section 97-5-23 contains the following

applicable provision:

       Any person above the age of eighteen (18) years, who, for the purpose of
       gratifying his or her lust, or indulging his or her depraved licentious sexual

                                              10
       desires, shall handle, touch or rub with hands or any part of his or her body or
       any member thereof, any child under the age of sixteen (16) years, with or
       without the child’s consent . . . shall be guilty of a felony[.]

Miss. Code Ann. § 97-5-23(1) (Rev. 2006).

¶26.   Section 97-3-65 provides in relevant part:

       (1) The crime of statutory rape is committed when:
       ....
       (b) A person of any age has sexual intercourse with a child who:
       (i) Is under the age of fourteen (14) years;
       (ii) Is twenty-four (24) or more months younger than the person; and
       (iii) Is not the person's spouse.
       ....
        (5) In all cases where the victim is under the age of sixteen (16) years, it shall
       not be necessary to prove penetration where it is shown the genitals, anus or
       perineum of the child have been lacerated or torn in an attempt to have sexual
       intercourse with the child.
       (6) For purposes of this section “sexual intercourse” shall mean a joining of the
       sexual organs of a male and female human being in which the penis is inserted
       into the vagina of the female.


Miss. Code Ann. § 97-3-65(1)(b), (5), (6) (Rev. 2006).

¶27.   This Court previously has noted that “[t]he lustful touching of a child under fourteen

is not necessarily a lesser included offense of statutory rape. Lustful touching is, however,

a lesser related offense.” Richardson v. State, 767 So. 2d 195, 200 (Miss. 2000) (finding

error where trial court refused instruction on “lesser related offense of lustful touching of a

child” and granted instruction only for statutory rape). In discussing the crimes of lustful

touching and statutory rape, the Mississippi Court of Appeals has stated:



                                               11
       The Supreme Court recently examined whether there are lesser-included
       offenses to statutory rape and concluded that there might not be. “The lustful
       touching of a child under fourteen is not necessarily a lesser included offense
       of statutory rape. Lustful touching is, however, a lesser related offense.”
       Richardson v. State, 767 So. 2d 195, 200 (Miss. 2000). The elements of a
       lesser, non-included offense are not all contained in the greater. Therefore,
       such an offense is not automatically charged in an indictment charging the
       greater.


Pittman v. State, 836 So. 2d 779, 786 (Miss. Ct. App. 2002) (emphasis added) (court holding

that it would not enter judgment for lustful touching of a child where evidence was

insufficient to support charge of statutory rape, and lustful touching was not a “clear lesser-

included offense to statutory rape”).

¶28.   As the Court of Appeals aptly has noted, the crime of lustful touching, as set forth in

Section 97-5-23, does not contain all the elements of statutory rape, as set forth in Section

97-3-65(1)(b).    Notably, the crime of statutory rape contains the element “sexual

intercourse,” while the crime of gratification of lust involves handling, touching, or rubbing

any member of a child. Compare Miss. Code Ann. § 97-3-65(1)(b) (Rev. 2006) with Miss.

Code Ann. § 97-5-23(1) (Rev. 2006). Sexual intercourse requires proof of “the joining of

the sexual organs of a male and female human being in which the penis of the male is

inserted into the vagina of the female.”      Miss. Code Ann. § 97-3-65(6) (Rev. 2006)

(emphasis added). While the State does not have to prove penetration in cases where the

victim is under sixteen years of age, the State must prove that the “genitals, anus, or

perineum of the child have been lacerated or torn in an attempt to have sexual intercourse

with the child.” Miss. Code Ann. § 97-5-23(5) (Rev. 2006) (emphasis added). The crime

                                              12
of gratification of lust does not require any proof of sexual intercourse or proof of a

laceration/tearing of the child’s genitalia. As such, statutory rape requires proof of an

additional element not required by gratification of lust. Pursuant to Jordan v. State, there

is no double jeopardy in this case because statutory rape requires proof of an additional fact.5

See Jordan v. State, 936 So. 2d 368 (Miss. Ct. App. 2005). Therefore, the trial court

properly denied Branch’s motion for a directed verdict, as the crime of statutory rape does

not encompass the crime of gratification of lust.

                                         CONCLUSION

¶29.   The trial court did not abuse its discretion in permitting the testimony of Bryan Irving.

Irving never testified as to whether C.V. was telling the truth. Irving stated only that the

allegations were credible based on his professional assessment of various criteria.

Additionally, the trial court did not err in the denial of Branch’s motion for a directed verdict,

as the fondling and the rape were two separate offenses. For these reasons, this Court affirms

the trial court’s judgment.

¶30. COUNT 1: CONVICTION OF STATUTORY RAPE AND SENTENCE OF
THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, WITH TEN (10) YEARS SUSPENDED, LEAVING TWENTY
(20) YEARS TO SERVE AND FIVE (5) YEARS SUPERVISED PROBATION,
AFFIRMED. COUNT II: CONVICTION OF GRATIFICATION OF LUST AND


       5
          This Court does not imply that sexual intercourse or proof of an attempt of sexual
intercourse are the only additional facts that distinguish the crime of statutory rape from lustful
touching. Statutory rape also requires proof that the victim is under fourteen years of age and
twenty-four or more months younger than the abuser. See Miss. Code Ann. § 97-3-65(1)(b) § 97-3-
65(1)(b) (Rev. 2006). Conversely, Section 97-5-23(1) requires proof that the child is under the age
of sixteen and the abuser is above the age of eighteen. Miss. Code. Ann.§ 97-5-23(1) (Rev. 2006)
also requires proof of a specific intent, while Section 97-3-65 does not require any proof of intent.

                                                 13
SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH FIVE (5) YEARS SUSPENDED,
LEAVING TEN (10) YEARS TO SERVE, AFFIRMED. SENTENCE IN COUNT I
SHALL RUN CONCURRENTLY WITH THE SENTENCE IN COUNT II.

     SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON
AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.




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