                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2011-KA-01267-SCT

LEVI L. JENKINS a/k/a LEVI JENKINS a/k/a LEVI
LEVERNE JENKINS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                           04/14/2011
TRIAL JUDGE:                                HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED:                  PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     MICHAEL W. CROSBY
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                          HALDON J. KITTRELL
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 10/31/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Levi Jenkins was indicted and tried in the Circuit Court of Pearl River County on two

counts of sexual battery and one count of statutory rape against his then-five-year-old niece.

He was convicted only of fondling, a lesser-included offense of the second count of sexual

battery. Jenkins timely appealed, raising various issues. Finding his arguments to be without

merit, we affirm the judgment of conviction of the Circuit Court of Pearl River County.
                                             FACTS

¶2.    In the summer of 2007, V.R. and her mother were living in V.R.’s grandfather’s home

along with various cousins and uncles, including V.R.’s uncle, Levi Jenkins. V.R. was then

five years old.1 Jenkins, who turned nineteen on July 5, 2007, babysat V.R. that summer

while her mother was at work.

¶3.    At trial, V.R. testified that, on various occasions, Jenkins would take her to a shed in

the back yard, claiming to have a birthday present for her. Once inside, Jenkins would stand

V.R. up or place her on top of the washing machine, unzip his pants, pull down her pants and

underwear, touch her “private parts” with both his hands and his “thing,” and force V.R. to

touch his “thing” with her mouth. V.R. stated that she would resist and that Jenkins’s penis

would only touch the side of her vagina, and that his penis did not enter her mouth. V.R.

testified that she saw “white stuff” come out of Jenkins’s “thing,” and that he would use a

towel from the dirty clothes to clean it up. Further, V.R. testified that Jenkins made her look

at “nasty magazines” and “drink something only adults drink,” and that he told her he would

“whoop her” if she told anyone about what he had done.

¶4.    According to V.R., this abuse happened multiple times between June and July of

2007, before her grandfather died and before August of 2007. However, she said one specific

incident happened on July 16, 2007, which she testified she remembered because she wrote

it in her diary. V.R. eventually told her stepmother, Melanie Lynn Frierson, about the sexual

abuse because the “guilt was eating [her] alive.” Fierson then notified the police.




       1
           V.R. was nine years old at the time of the trial.

                                                2
¶5.    Along with Frierson, who testified that V.R. had told her that she almost got raped by

Jenkins and that Jenkins made her “suck his thing” in the shed, V.R. also described the

alleged abuse to the following witnesses during August of 2007: Christian Clark, a forensic

interviewer employed by the Child Advocacy Center in Gulfport, Mississippi; Kim Gutherz,

a registered nurse who examined V.R. at the Care Clinic; and Rhonda Poche, a deputy for

the Pearl River Sheriff’s Department. Each of these witnesses testified to similar accounts

that V.R. had given to them. Clark found that V.R.’s behavior was consistent with a child

who had been sexually abused, as V.R. was not only able to describe sexual acts, but also

was able to describe her experience of those acts. Poche testified that, during the police

investigation, V.R. seemed embarrassed and kept her head down while she talked. Gutherz,

however, testified that a physical examination did not reveal any bleeding or scarring, and

that she could not physically conclude whether or not V.R. had been sexually abused.

¶6.    The jury returned a verdict finding Jenkins guilty of the lesser-included-offense of

fondling in Count II, but not guilty as to sexual battery in Count I and statutory rape in Count

III. Jenkins was sentenced to serve a term of fifteen years in prison, ordered to pay a $1,000

fine and to register as a sex offender for the rest of his life, and he was prohibited from

having any contact with V.R. or her family. After the trial court denied Jenkins’s Motion for

Judgment Notwithstanding the Verdict or in the Alternative a New Trial, Jenkins timely

appealed. He now argues that a discovery violation occurred when V.R. testified to having

a diary that was not disclosed during discovery. Further, he claims the indictment was fatally

flawed because it did not specify the dates of the alleged abuse and because V.R.’s testimony

varied the dates of the alleged abuse. Finally, he argues that there was insufficient evidence


                                               3
to support both the lesser-included-offense instruction on fondling as well as the conviction

of fondling, and that the verdict was against the overwhelming weight of the evidence.

                                         DISCUSSION

I.     Whether the trial court erred in ruling that no discovery violation had occurred.

¶7.    Jenkins first argues that the trial court erred by ruling that no discovery violation had

occurred, after V.R. had made reference during her direct examination to a diary which was

not disclosed in discovery. Jenkins now contends that the court should have compelled the

State to produce the diary and that he is entitled to a new trial under this Court’s decision in

Box v. State, 437 So. 2d 19 (Miss. 1983). He argues the diary may have contained

exculpatory evidence, and that a recess from the proceedings should have been granted to

allow his counsel to review the diary.

¶8.    To establish that the abuse occurred during the period alleged in the indictment, the

State asked V.R. the following questions:

       Q.     Did any of these things happen close to your birthday?

       A.     Yes, ma’am.

       Q.     Okay. Before August of that year?

       A.     (Witness nods in the affirmative). Between June and July. It was – I
              think the last time it happened it was July 16th.

       Q.     Why do you remember that day so specifically?

       A.     Because I wrote it in my diary a long time ago.

Jenkins’s counsel immediately approached the bench and argued that a discovery violation

had occurred because the prosecution had not disclosed a diary during discovery. The



                                               4
prosecution stated it did not have such a diary and contended that it could not “possibly

predict every single thing a witness is going to say on the stand.” Jenkins’s counsel argued

he had been “blasted with something that’s not in discovery . . . that may have exculpatory

evidence,” and asked to reserve a motion to “see what was said about the diary[,] [a]nd then

I may have a motion or something may lead to possible mistrial or something.” The trial

judge granted this request but also accepted the State’s explanation that it did not have any

knowledge of a diary. The trial judge instructed the State to move on to other questions, and

no further testimony regarding the diary was given.

¶9.    The following day, Jenkins renewed his motion and requested an opportunity to

interview V.R. about the diary or to examine the diary itself. The trial judge allowed a

continuing objection, but explained why he overruled Jenkins’s motion:

       I believe the utterance from the alleged victim reflected that she knew the date
       of the last incident because of her diary. And I ruled at that time that just for
       clarification that since the State did not offer any diary, did not know of any
       diary, it may or may not exist, or ask the witness about any diary that she may
       have kept, that I overruled your motion.

The trial judge reiterated that the diary was not being offered into evidence, and further stated

that “the Box factors are not in play, because you’re not even alleging that the State knew

about any existence of any diary . . . but we do agree that it was not intentional failure to

provide something during discovery that does exist.” The prosecution stated that it did not

seek to introduce any evidence in regard to the diary.

¶10.   A trial court’s rulings on discovery matters, including whether or not a discovery

violation has occurred, are reviewed for abuse of discretion. Montgomery v. State, 891 So.

2d 179, 182 (Miss. 2004). In Box v. State, we granted reversal where the State knowingly

                                               5
withheld the identity of a key witness from the defendant before trial, and we set forth

guidelines for how a trial judge should proceed after a discovery violation. Box, 437 So. 2d

at 21-26. However, in Mills v. State, we affirmed that no discovery violation occurred where

the State did not disclose, prior to trial, the potential testimony of a witness of whom it had

no knowledge until she came forth during the trial. Mills, 813 So. 2d 688, 692 (Miss. 2002).

Here, the trial judge was faced with a situation analogous to Mills, in that both sides claimed

to be unaware that V.R. had kept a diary.

¶11.   The procedure a trial judge must follow when a discovery violation is alleged at trial

is set forth in Rule 9.04(I) of the Uniform Rules of Circuit and County Court Practice, which

states that:

       If during the course of trial, the prosecution attempts to introduce evidence
       which has not been timely disclosed to the defense as required by these rules,
       and the defense objects to the introduction for that reason, the court shall act
       as follows:

       1. Grant the defense a reasonable opportunity to interview the newly
       discovered witness, to examine the newly produced documents, photographs
       or other evidence; and

       2. If, after such opportunity, the defense claims unfair surprise or undue
       prejudice and seeks a continuance or mistrial, the court shall, in the interest of
       justice and absent unusual circumstances, exclude the evidence or grant a
       continuance for a period of time reasonably necessary for the defense to meet
       the non-disclosed evidence or grant a mistrial.

       3. The court shall not be required to grant either a continuance or mistrial for
       such a discovery violation if the prosecution withdraws its efforts to introduce
       such evidence.

URCCC 9.04(I) (emphasis added). The threshold determination under Rule 9.04(I), then, is

whether the prosecution attempts to introduce evidence which it was required to timely



                                               6
disclose under Rule 9.04.2 The trial judge found that “the State did not offer any diary, did

not know of any diary, it may or may not exist, or ask the witness about any diary that she

may have kept.” If the State did not attempt to introduce a diary, the existence of which it

was totally unaware and which it could not have disclosed previously, the trial judge was

not required under Rule 9.04(I) to allow Jenkins to interview V.R. regarding the diary or to

order the diary’s production. See Coleman v. State, 915 So. 2d 468, 475 (Miss. Ct. App.

2005) (holding that Rule 9.04(I) “only applies when there has been a discovery violation, and

the trial court in the case sub judice found that no discovery violation had occurred”).

¶12.   We do note our decision in Russell v. State, 789 So. 2d 779 (Miss. 2001). There, a

witness testified to facts tending to disprove the defendant’s insanity defense which the State

learned of the morning of trial but did not disclose to the defendant beforehand. Id. at 784-85.

The trial judge denied the defendant’s request to interview the witness about the undisclosed

testimony because he found that no discovery violation had occurred and that, as such, the

procedures set forth in Box and Rule 9.04(I) were not triggered. Id. at 786. We stated that

there is “no requirement . . . that the trial court find a discovery violation before allowing the

defendant to interview the witness and proceed through the steps outlined” in Box and its


       2
         Rule 9.04(A) requires the prosecution to disclose any relevant, physical evidence
and exculpatory material “the existence of which is known or by the exercise of due
diligence may become known to the prosecution.” URCCC 9.04(A). While Jenkins’s counsel
speculated at trial that some investigator may have known of the diary even if the prosecutor
did not, there is no evidence that the existence of a diary was known to the State or could
have been known by the exercise of due diligence. Further, without having to risk eliciting
damaging testimony regarding the diary’s contents, Jenkins still could have questioned V.R.
during cross-examination about whether she had ever discussed a diary with the prosecution
or an investigator before trial, but chose not to.


                                                7
progeny, and urged trial courts “to follow the dictates of common sense on a case-by-case

basis when faced with such a situation.” Id. Because the State admitted on appeal that it had

committed a discovery violation, we held that:

       Where, as here, the defendant is surprised with new evidence and where, as
       here, that evidence was known to the prosecution, though only for a short
       time, and where, as here, that evidence is detrimental to a central theory of
       defense, the defendant is entitled, at the very least, to an interview with the
       witness. The consumption of “10, 15, or 30 minutes for the attorney to
       investigate the case” is a small price to pay to insure that the rule of law is
       followed.

Id. (emphasis added).

¶13.   This case differs from Russell, in which a discovery violation undoubtedly occurred.

Here, the State denied having any knowledge of the diary before V.R.’s testimony and did

not attempt to introduce the diary. At the very least, Russell affords a trial judge discretion

in determining whether to allow an investigatory interview or inspection of newly disclosed

evidence where no discovery violation has occurred. We are in no better position than the

trial judge to determine whether the State knew of the existence of a diary. We cannot say

he abused his discretion in denying Jenkins an opportunity to interview V.R. or inspect the

diary where neither side was aware of the diary prior to V.R.’s testimony and where the

existence of the diary itself was in doubt. This issue is without merit.

II.    Whether the indictment was fatally flawed due to the range of dates given in
       Count II.

¶14.   Jenkins further argues that Count II of the indictment was fatally flawed because the

dates of the offense included in the indictment differed from the dates V.R. testified to at

trial. Count II of the indictment alleged that the abuse occurred “between the dates of July



                                              8
1, 2007 and August 5, 2007,” whereas V.R. testified that it occurred “[b]etween June and

July. . . . I think the last time it happened it was July 16th.” One of seven items required for

a legally sufficient indictment is the date on which the alleged crime occurred, but “[f]ailure

to state the correct date shall not render the indictment insufficient.” URCCC 7.06; Havard

v. State, 928 So. 2d 771, 801 (Miss. 2006). We also have held that “a specific date in a child

sexual abuse case is not required so long as the defendant is ‘fully and fairly advised of the

charge against him.’” Eakes v. State, 665 So. 2d 852, 860 (Miss. 1995) (quoting Morris v.

State, 595 So. 2d 840, 842 (Miss. 1991)).

¶15.   In Voyles v. State, the defendant’s indictment for fondling a four-year-old girl stated

that the incident occurred “sometime between February and May of 1999.” Voyles, 822 So.

2d 353, 356 (Miss. Ct. App. 2002). The defendant complained the range of dates deprived

him of the ability to present an alibi or impossibility defense. Id. at 357. The Court of

Appeals pointed out that the four-year-old child was “unable to comprehend days, weeks, and

months as do older children and would be unable to say exactly when the incident

occurred,”and held there was no error where the State could not possibly provide a more

specific date. Id.

¶16.   Count II of the indictment fully notified Jenkins of the charges against him and is

legally sufficient. Even though the dates varied slightly between the indictment and V.R.’s

testimony, the rules clearly state that failure to include the specific date in the indictment is

not enough to render an indictment legally insufficient, and we previously have not required

a specific date in a case of sexual abuse of a child. As in Voyles, a child who was five years

old at the time of the abuse should not be expected to recall the exact dates that abuse

                                               9
occurred. Ultimately, however, V.R. was able to testify that the abuse occurred in July,

within the time frame specified in the indictment, referencing one occurrence of abuse on

July 16. Jenkins’s argument is without merit.

III.   Whether there was sufficient evidence to support a lesser-included-offense
       instruction on fondling and for the trial judge to deny Jenkins’s motions for
       directed verdict and judgment notwithstanding the verdict, and whether the trial
       court erred in denying his motion for a new trial.

¶17.   Jenkins combines these issues into one argument in his brief. He argues that there was

insufficient evidence for the trial judge to grant the State’s lesser-included-offense instruction

on fondling and to deny his motions for directed verdict and judgment notwithstanding the

verdict (JNOV). This argument is based solely on his assertion that the element of lustful

intent in fondling could not be proven by the evidence presented at trial.

       A.      Whether the trial court erred in giving Jury Instruction 13

¶18.   Jenkins argues the trial court erred in giving Jury Instruction 13, a lesser-included-

offense instruction regarding fondling under Count II. A lesser-included-offense instruction

may be given where there is some evidence supporting the lesser-included offense. Gause

v. State, 65 So. 3d 295, 300 (Miss. 2011). Fondling is the handling, touching, or rubbing of

a child under the age of sixteen by someone over the age of eighteen with the hands or any

other body part for the purpose of gratifying his or her lust or indulging his or her depraved

licentious sexual desires. Miss. Code Ann. § 97-5-23(1) (Rev. 2006). Sexual battery under

Section 97-3-95(1)(d) differs from fondling in this case only in that it requires evidence of

sexual penetration and does not require a showing of lustful or licentious intent. Miss. Code

Ann. § 97-3-95 (Rev. 2006). We previously have held that fondling under Section 97-5-23(1)



                                               10
is a lesser-included offense of sexual battery under Section 97-3-95. Friley v. State, 879 So.

2d 1031, 1035 (Miss. 2004).

¶19.   Jenkins’s only argument is that no evidence was presented that he touched V.R. in

order to gratify his lust or indulge his depraved licentious sexual desires. He claims that

lustful purpose was not shown because there was no testimony at trial that he moaned,

touched himself, or moved back and forth during the incidents. In Friley, we held that the

element of lustful intent could be proved by inferences drawn from the circumstances of the

situation. Friley, 879 So. 2d at 1035. We stated that by “the very acts of grabbing [the

victim], touching her genital area, and touching himself, he was gratifying his lust. There is

no other reason why [the defendant] would have performed these acts.” Id. Similarly, in

Goodnite v. State, we held that evidence of attempting to and succeeding in pinching a

child’s private parts was sufficient for a reasonable jury to find the defendant acted with a

lustful purpose. Goodnite, 799 So. 2d 64, 69 (Miss. 2001).

¶20.   Ample evidence supported the lesser-included offense of fondling, and the intent

element of fondling can be inferred from Jenkins’s actions. V.R. testified that Jenkins

removed her pants and underwear, touched her “private part” with both his fingers and penis,

and forced her to touch his penis with her mouth, and that “white stuff” would come out of

his penis. The very fact that Jenkins did these things supports a reasonable inference that he

was gratifying his lust, and no reasonable juror possibly could have found otherwise.

Sufficient evidence supported the lesser-included offense of fondling, and the trial court did

not err in granting Jury Instruction 13.




                                             11
       B.     Whether the trial court erred in denying Jenkins’s motions for directed
              verdict and judgment notwithstanding the verdict.

¶21.   Jenkins further argues the trial court erred in failing to grant his motions for a directed

verdict and judgment not withstanding the verdict. Again, his only argument is that the State

did not provide any evidence to satisfy the lustful or licentious intent element of fondling.

Both motions for a directed verdict and judgment notwithstanding the verdict “challenge the

legal sufficiency of the evidence.” McClain v. State, 625 So. 2d 774, 778 (Miss. 1993).

When reviewing the denial of these motions, we must accept as true the credible evidence

consistent with the verdict, draw all reasonable inferences from the evidence in favor of the

prosecution, and respect the jury’s judgment regarding the weight and credibility of the

evidence. Id. If “reasonable fair-minded men in the exercise of impartial judgment” could

have concluded that the defendant was guilty beyond a reasonable doubt, the evidence is

sufficient. Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (quoting Edwards v. State, 469

So. 2d 68, 70 (Miss. 1985)).

¶22.   V.R.’s testimony at trial, which we need not repeat again, was sufficient to establish

the elements of fondling beyond a reasonable doubt. “[T]he unsupported word of the victim

of a sex crime is sufficient to support a guilty verdict where the 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.” Cross v. State,

759 So. 2d 354, 356 (Miss. 1999). V.R.’s therapist testified that V.R.’s conduct was

consistent with one who is the victim of a sex crime. Moreover, V.R. also gave consistent

statements to her stepmother, a deputy sheriff, and a nurse, who each testified to her



                                               12
description of the abuse at trial. Viewing all this evidence in the light most favorable to the

State, reasonable minds could have found Jenkins guilty beyond a reasonable doubt. The trial

court did not err in denying these motions.

       C.     Whether the trial court erred in denying Jenkins’s motion for a new
              trial.

¶23.   Lastly, Jenkins argues that the trial court erred in denying his motion for a new trial.

In reviewing the denial of a motion for a new trial, the evidence must be viewed in the light

most favorable to the verdict, and a new trial should be granted only in those “exceptional

cases in which the evidence preponderates heavily against the verdict” and is “so contrary

to the overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Bush, 895 So. 2d at 844 (quoting Amiker v. Drugs for Less, Inc.,

796 So. 2d 942, 947 (Miss. 2000)).

¶24.   Several witnesses, including V.R. herself, testified to the elements of the crime as

stated above, while Jenkins called no witnesses of his own and points to no evidence in the

record which preponderates heavily against the verdict. Jenkins’s brief includes no argument

as to why the verdict was against the overwhelming weight of the evidence, relying only on

his argument that the evidence was insufficient to support the verdict. We have “repeatedly

held that where the appellant provides no meaningful argument in support of an assignment

of error raised, the issue is waived on appeal.” Duncan v. State, 939 So. 2d 772, 784 (Miss.

2006). Regardless, when viewed in the light most favorable to the verdict, the evidence was

such that allowing the verdict to stand would not sanction an unconscionable justice. The

trial court did not err in denying Jenkins’s motion for a new trial.



                                              13
                                      CONCLUSION

¶25.     Finding each of Jenkins’s assignments of error to be without merit, we affirm the

judgment of conviction of the Circuit Court of Pearl River County.

¶26. COUNT II: CONVICTION OF LESSER INCLUDED OFFENSE OF
FONDLING AND SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS,
AFFIRMED.

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

         KITCHENS, JUSTICE, DISSENTING:

¶27.     The majority rejects Jenkins’s arguments concerning the diary, treating the issue as

a discovery violation. I agree that there can be no discovery violation if a witness testifies

at trial about a matter previously unknown to either party; but the absence of prior knowledge

does not prohibit the trial court from granting appropriate remedies to a disadvantaged party.

The trial court did not consider Jenkins’s arguments that V.R.’s testimony was not a simple

matter of an alleged “discovery violation.” Thus, the wrong legal standard was applied to

these arguments, which denied the defendant any means of assessing and responding to the

evidence against him. Because the majority opinion adopts the same reasoning as the trial

court, I respectfully dissent and would reverse the conviction and remand the case for a new

trial.

¶28.     The majority’s characterization of the defendant’s objection is misleading. Maj. Op.

¶¶ 7-8. The opinion says that Jenkins claimed a discovery violation, yet the record shows

that, while his counsel did initially characterize it that way, this was simply his immediate



                                              14
impression. After V.R. mentioned the diary, Jenkins’s attorney immediately objected and

requested a bench conference. His first argument was based on a perceived discovery

violation, claiming that V.R.’s reference to an entry in her diary was prejudicial because it

corroborated her recollection of a particular date. When the prosecuting attorneys replied

that they did not have or know about a diary, defense counsel did not accuse the prosecuting

attorneys of being dishonest with the court. According to Jenkins’s attorney, his objection

to a discovery violation was simply an initial impression based on “the way the question was

asked.”   He did not contend that he had been “blasted with something that’s not in

discovery,” but only said “that was my initial concern.” Maj. Op. ¶ 8. As discussed below,

defense counsel made many arguments before the trial court, and none of his requests for

relief was premised on the prosecuting attorneys’ prior knowledge.

¶29.   In its analysis, the majority cites Mills v. State, 813 So. 2d 688, 692 (Miss. 2002), a

case involving a State’s witness who did not come forward until the trial was underway.

Maj. Op. at ¶ 10. The opinion correctly recognizes that Jenkins’s case is analogous to Mills

in that neither party was shown to have known that V.R. may have kept a diary related to her

abuse; however, there is no further discussion of the case.

¶30.   In fact, the Mills opinion supports Jenkins’s argument, for this Court held that, when

new facts are revealed during trial, a trial court must consider a party’s request for Box-like

remedies, even when there is no discovery violation. Mills, 813 So. 2d at 692 (citing Box

v. State, 437 So. 2d 19 (Miss. 1983)). See also URCCC 9.04 (adopting the suggested

procedures for alleged discovery violations as set forth in Justice Robertson’s specially

concurring opinion to Box, 437 So. 2d at 22-26).

                                              15
¶31.   In that case, a woman approached one of the prosecutors during trial and said that

Mills had confessed to her that he had committed the crime. Mills, 813 So. 2d at 691. The

woman came forward with this new information during the State’s cross-examination of the

defendant and after the State had presented its case in chief. Id. When Mills denied having

any conversation with the woman about the alleged crime, the prosecutor immediately asked

that the jury be excused. Id. With the jury out, the prosecutors informed the court and the

defense of the new development, and said that they planned to call her as a rebuttal witness

for impeachment purposes. Id. The trial court granted a recess to allow defense counsel to

interview the newly discovered witness. Id. When the court reconvened, the defense

attorney objected to her testimony, arguing that he had not had time to prepare. Id. The

attorney did not offer anything other than this generic statement, and he did not request a

continuance. Id. at 692. The trial court permitted the witness to testify for the State on

rebuttal. Id. at 691.

¶32.   On appeal, Mills argued that the woman’s testimony was improperly admitted because

she had been present in the courtroom during portions of the trial and could have learned

about all of the witnesses’ testimony through her family members who had heard all of the

State’s witnesses. Id. at 692. Mills also argued that he was denied the opportunity to

develop evidence for surrebuttal. Id. (citing Smith v. State, 646 So. 2d 538, 543 (Miss.

1994) (discussing the rule that when the State is allowed to present rebuttal evidence, the

defense must be given the opportunity to reply by surrebuttal)).

¶33.   The Court rejected these arguments by applying the principle announced in Box “that

the accused has an interest in knowing reasonably well in advance of trial what the

                                            16
prosecution will try to prove and how it will attempt to make its proof.” Id. (citing Box, 437

So. 2d at 21). The Court summarized the guidelines outlined in Justice Robertson’s specially

concurring opinion (and as adopted in Rule 9.04 of the Uniform Rules of Circuit and County

Court Practice). Id. Applying these guidelines, this Court found that the trial court had

protected the defendant’s interest concerning the new evidence. Id. The Court explicitly

recognized that the State’s lacking prior knowledge was not a bar to relief:

       Unlike Box, this is not a case where the prosecution had knowledge that
       Veronica was a witness before trial began. The trial judge properly determined
       that there was no discovery violation. The prosecution did not withhold the
       new evidence and informed Mills and the trial court as soon as the new
       evidence was discovered. However, the Box guidelines are still appropriately
       considered when a trial court is presented with new evidence at trial.

Id. (emphasis added). The Court held that Mills’s interests were protected because he was

allowed to interview the witness, the trial court did not restrict his cross-examination of the

witness, Mills did not request a continuance, and there was nothing in the record (or

argument before the trial court) indicating that Mills was prejudiced by the testimony or that

he needed more time to develop his defense. Id.

¶34.   Mills’s reasoning follows the rule that the State has a continuing duty to supplement

discovery, and the timing of the prosecution’s knowledge is immaterial.             “That the

prosecution fails to unearth certain evidence until the last minute hardly eviscerates the

prejudice to a defendant caught unaware, nor the necessity for reversal where the circuit

court denies the defense request for a reasonable continuance.” West v. State, 553 So. 2d 8,

16-17 (Miss. 1989) (citing Cole v. State, 525 So. 2d 365 (Miss.1987); Stewart v. State, 512

So. 2d 889, 891-92 (Miss. 1987); Foster v. State, 484 So. 2d 1009, 1011 (Miss. 1986)).



                                              17
¶35.   The distinction in Jenkins’s case is the trial court’s determination that the prosecuting

attorneys did not learn about the diary until their witness testified at Jenkins’s trial.

However, I cannot fathom any logical reason why their lack of advance knowledge would

affect Jenkins’s right to investigate the existence and/or contents of the diary. The legal

authority governing the State’s duty to disclose is guided by the principle that the accused

must have a meaningful opportunity to defend against the charge and that one’s right to

challenge the State’s evidence is inherent to the concept of a fair trial. Applying Mills and

other supporting authority, the trial court erred in refusing Jenkins the means to investigate

V.R.’s claimed written recording concerning the charges for which he was on trial.

¶36.   Furthermore, Jenkins’s attorney correctly informed the court that the law imputes to

prosecuting attorneys the knowledge of other State actors involved in the criminal

investigation. Quoting Justice Robertson’s concurring Box opinion, this Court has held that

the “State” is not limited to the individual prosecuting attorneys, but “is a team consisting of

the attorney, the law enforcement officers of the jurisdiction in which the case is brought, all

other cooperating law enforcement officials—municipal, county, state or federal, the

prosecution witnesses, and any other persons cooperating in the investigation and prosecution

of the case. What is known or available to any one or more is deemed to be known by or

available to the State.” King v. State, 656 So. 2d 1168, 1174 (Miss. 1995) (quoting Box,

437 So. 2d at 25 n.4 (Robertson, J., concurring)). Therefore, the prosecuting attorneys’ lack

of knowledge is not a bar, if other members of the State’s prosecution team had knowledge

of a diary. We do not know the answer, for the trial court refused Jenkins any means of

discovering the answer.

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¶37.   Mills ultimately found no reversible error because the defendant had not requested a

continuance and had not demonstrated that the trial court’s attempts to cure any possible

prejudice were insufficient. By contrast, Jenkins’s attorney thoroughly and astutely argued

his position with support from relevant facts and legal authority. He pointed out that, without

a chance to review the writing, or to discover if it existed, he would not know what relief was

appropriate, noting that the possible remedies could range from a mistrial to a simple limiting

instruction to the jury that they should disregard the statement.

¶38.   As for possible prejudice, Jenkins gave a convincing argument, despite his being

denied the opportunity to discover anything about the victim’s claim that she knew the

specific date from her diary. Like many indictments involving sex crimes against minors,

the charged crimes were alleged to have occurred between July 1, 2007, and August 5, 2007.

Jenkins’s attorney argued the obvious: establishing an alibi for a specific date would have

been significantly easier than recounting his whereabouts during an entire month. In fact,

the heading to Issue One in Jenkins’s brief reads, “the trial court erred when it failed to

compel the State to produce the alleged victim’s diary after she referred to it for the first time

at trial when stating a date certain for one of the alleged offenses and different time span for

the incident(s).” Notably, the record indicates that an alibi defense was contemplated in a

report from a court-ordered mental evaluation finding Jenkins competent to stand trial.

Concerning his ability to assist in his defense the report states, “[w]hen asked what he needed

to do in order to help his lawyer prepare for his case, he replied, ‘Tell where I was at.’”

¶39.   The majority opinion also accepts the trial court’s finding of no harm because the

State did not intend to seek introduction of the diary into evidence. However, as Jenkins’s


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attorney explained, the diary itself was not the objectionable evidence; instead, it was V.R.’s

testimony that she was able to remember a certain date because she had made a written

recording.3 Under the Mississippi Rules of Evidence, and based on the transcript, the State

would not have been permitted to admit the diary into evidence. See M.R.E. 612 (material

used to refresh witness’s testimony may be placed into evidence by adverse party). See also

M.R.E. 803(5) (if admitted, a recorded recollection “may be read into evidence but may not

itself be received as an exhibit unless offered by an adverse party”). Rule 612 provides,

       If a witness uses a writing, recording or object to refresh his memory for the
       purpose of testifying, either (1) while testifying, or (2) before testifying, if the
       court in its discretion determines it is necessary in the interests of justice, an
       adverse party is entitled to have the writing, recording or object produced at
       the hearing, to inspect it, to cross-examine the witness thereon, and to
       introduce into evidence those portions which relate to the testimony of the
       witness.

Even though the rule refers to the trial judge’s discretion, the trial court did not believe

production was an option.

¶40.   Finally, I respectfully disagree with the majority’s speculating that “without having

to risk eliciting damaging testimony regarding the diary’s contents, Jenkins still could have

questioned V.R. during cross-examination about whether she had ever discussed a diary with

the prosecution or an investigator before trial, but chose not to.” Maj. Op. n.2. The

possibility of eliciting inculpatory evidence cannot be so easily dismissed. Defense counsel

would be remiss in cross-examining a child witness about a diary allegedly written when this




       3
        In closing arguments, the State argued that the abuse had occurred during the time
span listed in the jury instructions (and the indictment), referencing V.R.’s testimony that
she could remember the abuse occurring on a specific date, July 16.

                                               20
particular child was as young as five years old, and “[c]ommon sense suggests that [a child’s]

testimony be viewed with caution,” House v. State, 445 So. 2d 815, 827 (Miss. 1984)

superseded on other grounds by M.R.E 702. He should have been allowed to question the

victim about the diary, outside the presence of the jury. This would have given the defense

an opportunity to develop valuable information concerning V.K.’s claims that she had made

written recordings about her abuse.

¶41.   For similar reasons, the defense attorney was justified in suspecting a discovery

violation regarding the diary. V.R.’s statement that she had written the date in her diary

immediately followed the prosecutor’s question, “[w]hy do you remember that day so

specifically?” It would not have been unreasonable to assume that the attorney expected a

specific answer. The prosecution seemed well-prepared for trial, and the attorneys were

intimately familiar with facts of the case. Jenkins’s attorney could reasonably assume that

the prosecutor would not have asked a question without anticipating the answer. It is a

simple precept of good trial practice that trial counsel should never ask a question to which

he or she does not know the answer.

¶42.   As reflected in the defendant’s arguments at trial and on appeal, the issue is not a

simple matter of discovery. The error raised on appeal goes to the very heart of what it

means to have a fair trial, for this defendant was denied any means to assess testimony which

significantly supported the State’s case against him. Because the defendant was handicapped

in his ability to defend himself, I must respectfully dissent and would reverse the conviction

and remand for a new trial.

       KING, J., JOINS THIS OPINION.

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