Jesse Frank Mouton v. State of Mississippi

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

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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.

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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.

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¶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.

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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.