IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-01534-COA SPARTACUS ALFORD APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/11/2016 TRIAL JUDGE: HON. KATHY KING JACKSON COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: ANTHONY N. LAW RENCE III NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 02/06/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., FAIR AND GREENLEE, JJ. FAIR, J., FOR THE COURT: ¶1. S p a r t a c u s A l f

o r d w a s convicted of two counts of sexual battery , one count o f

attem pted sexual battery , a nd one count of touching a child f

or lustf ul purposes, f

or which h e r e c eived three lif

e sentences and f

if teen y ears’ im

prisonm ent without the p ossibilit y o f parole, r espectively , a ll to b e served concurrently

. The charges r elate to the s exual abuse of his niece, Abby , 1 who was six y e ars of a g e at the tim e. On appeal, A l f o r d contends the circuit court erred in adm itting the accounts of three other nieces or nephews who testif ied

1 We u se f

ictitio u s n am es to p ro tect th e i d e n t ity o f m i n o rs w h o are v ictim s o f sex u al ab u se.to sexual abuse by Alf ord, including o ne a ccount under the tender-y ears e xception to the rule against hearsay

. A lf

o rd also com

p lains that his rights under the Conf rontation Clause were violated by the p r o s e c u t o r ’s u se of a screen to obstruct his vision of the victim when she testif i ed. W e f ind no abuse of discretion in t h e evidentiary rulings, and the Conf rontation Clause issue has not been preserved f or appeal. W e theref

ore af f irm

. DISCUSSION 1. Other Bad Acts Evidence 2 ¶2. Mississippi Rule of Evidence 404(b) p rovides that “[ e]vidence of crim es, wrongs, or
acts is n ot adm i ssible to prove the character of a person in order t o s how that he acted in conf orm i ty therewith.” However, such evidence m ay “be adm issible f or other purposes such

as proof o f m otive, o pportunity , intent, preparation, plan, knowledge, identity , or absence of

m istake or accident.” I

d. I n Derouen v. S

tate , 994 So. 2d 748, 756 (¶20) (Miss. 2008), the Mississippi Suprem e C ourt held that “ e v i d e n ce of a sexual of f ense, o ther than the one charged, which involves a victim other than the victim of the charged of f ense f or w hich the accused is o n trial” i s n o t per se error “if properly a d m itted under R ule 404(b), f

iltered through R

ule 40 3 , a n d a c com

panied by an appropriately -draf ted l im iting or cautionary instruction to the jury .”

2 A lf o rd ’s b rief f

ram es th is as tw o se p arate issu es: a g en eral ch allen g e to th e ad m issib ility o f th e p rio r b ad acts, an d a sp ecif i c c h allen g e t o c ertain h earsay testim o n y ab o u t th e sam e acts. A s A lf o rd ’s arg u m en ts o n b o th issu es o v e rlap s u b stan tially , w e ad d ress th em to g eth er. 2¶3. In a recent decision, t he Mississippi S uprem e Court h eld t hat such eviden c e s hould

survive the 403 r elevance/prejudice analy sis if it “dem onstrate[ s] that the def endant’s m eans of accom plishing pedophilic sexual activities on past o ccasions bear substantial resem blance

to each o ther and with t he p resent of f ense, which serve[ s] as proof o f m otive and a com m on plan o r s c h e me . ” Boggs v. State , 188 So. 3d 515, 520 (¶13) (Miss. 2016) (citation and internal quotation m arks om itted). Under Rule 403, the circuit court “m ay e x clude relevant evidence i f its probative v a lue is substantially outweighed by a danger of one or m ore of the f ollowing: unf

air p rejudice, conf

using the i ssues, m isleading the jury , undue delay , wasting tim e, or needlessly presenting cum ulative evidence.” ¶4. Here, the prosecution of f ered the accounts o f three other victim s: “Betty ,” “Claire,” and “David.” Each was related to Alf ord in a sim ilar way to t he charged victim – they were Alf ord’s step-niece, great-niece, and nephew, r espec t i vely

. All f our children were prepubescent at the tim e of t he s exual acts, and the acts occurred while Alf ord was living or

s t a y ing in the sam e households as the v ictim s . The witnesses also t estif ied to t h e v a r i o u s

m eans Alf

ord used to discourage them f rom disclosing the abuse. The circuit j udge adm itted the evidence af

ter o bserving that the other acts were “sim ilar enough” b e c a u s e “all three witnesses were very y o u ng in age [ like the victim ,] abused in a sim ilar i ntraf a m ilial context[ ,] and in a sim ilar m anner.” ¶5. The adm ission o f evidence is within the discretion of the trial court and can only be reversed on appeal if that discretion has been abused. Eckman v. Moore , 876 So. 2 d 975, 984

3(¶31) (Miss. 2004).

¶6. Alf

ord contends that the allegations r egarding t h e other victim s were not sim ilar to the charged of

f enses. He f

ocuses on the specif

ic sexua l a c t s A l f

o r d was alleged to have

com m itted with each child: Betty testif ied that A lf

ord m ade her perf

orm oral sex on him ; Claire said Alf

o rd touched her genitals w h i l e t o uching h im self ; and David testif

ied that Alf ord m a de him touch Alf

ord’s penis. Alf

ord was tried f

or anal a n d vaginal penetration of Abby with his penis, at t e mp t i n g t o cause her t o perf orm oral sex on him , and f or causing Abby to t ouch his p enis w ith her h ands. Alf ord also points out that David was m ale, while Abby and the other victim s were f em a le. ¶7. Certainly , i t would provide a stronger case f or a dm ission if the victim s were all of the

s a me sex or the def

endant had em

ploy ed an identical progression of sexual acts w i t h e a c h victim

. But the standard f

or adm ission is sim

ply a “substantial resem

b l a n c e ” ; “ o v e r

w h e l m i n g sim ilarities” bolster the case f or adm ission but are n ot required. See Green v
. State , 89 So. 3d 543, 549-51 (¶17) ( Miss. 2012). Gore v. State , 37 So. 3d 1 178 ( Miss. 2010), i s instructive

as a closer case where the f acts still perm itted the t rial court to adm it t he evidence. Gore was tried f o r gra t i fi c a

t ion o f lust f

or touching his granddaughter, a twenty -one-m onth-old toddler, with a v ibrator. The trial court adm itted the accounts of the def endant’s son and daughter, who testif

ied that Gore had required them to visit a nudist colony

and to rem ain undressed in the hom e when they were children, and that h e had struck the daughter when s he resisted. The daughter f

urther testif

ied that

– when she was age twelve – Gore had t ouched her

4genitals, d igitally penetrated her, and s hown her c hild pornography

. S e e id. at 1184-85 (¶¶15-16). Despite the m any dif f erences between these incidents w ith Gore’s children and the charges concerning the granddaughter, our suprem e court f ound t hat, with regard to the sexual assault of the daughter, Gore’s “m eans o f a c com plishing these a c t ivities on past occasions bear s ubstantial resem blance to each other and with the present of f ense.” Id. at 1187 (¶20). T he evidence relatin g t o t h e f o r c e d nudity of both children w as likewise adm issible. Id. T h e case f or adm ission of the o t h e r incidents in the present case is f ar stronger than it was in Gore

. ¶8. Alf

ord also asserts t hat the prob a t i v e v a l u e o f B e t t y ’ s testim ony was “m inim al” because the incident occurred m ore than twenty y e ars bef ore the instant of

f enses. This is an argum ent that h as o f

ten been m ade in sim i lar c ases and has b een consistently and “overwhelm ingly ” r ejected by Mississippi courts. See Fountain v. S tate , 8 5 So. 3 d 913, 920- 21 (¶22) (Miss

. C t

. A p p . 2 012); see also Y oung v. State , 106 So. 3d 775, 7 80 (¶18) (Miss. 2012) ; Gore , 37 So. 3d a t 1 1 87 (¶20); Har r i s v. State , 165 S o. 3d 473, 4 76 (¶8) (Miss. Ct. App. 2015); W

estbrook v. State , 109 So. 3d 609, 614-15 (¶¶17-18) (Miss. Ct. App. 2013). ¶9. Alf

ord next contends that the circuit court was r equired to u ndertake a n e xpress, onthe-record weighing of the probative value and p rejudicial ef f ects of t he evidence, which the circuit court did not do in this case. He cites Archer v. State , 118 So. 3d 612, 6 25-26 (¶57) (Miss. C t. App. 2012), f

or the proposition that the circuit c o urt “should” m ake such f indings.
W h ile we agree with Archer on t hat point, and we reaf f irm its recom m endation t h a t trial

5courts m ake such f indings explicitly

and on the record, Archer went on to observe that: [ E ] v e n i n 404(b) cases, “our review depends on the evidence a nd not t h e judge, and while a judge’s on-the-record analy s is is recom m ended a s it s erves to f ortif y the judge’s position f

or purposes of r eview, the lack of such a naly sis is h arm less unless we deem the evidence to be patently prejudicial.” [ Jones v. State , 920 So. 2d 465, 476 (¶34) (Miss. 2 016)]. “It is inherent that nearly all evidence is p r ejudicial to a party in o ne way or another. The i nqu i r y a s it regards a d m i s s i b ility is w hether that prejudice is u nf air.” Abrams v. Marlin Firearms Co. , 838 So. 2d 975, 981 (¶22) (Miss. 2003). Archer , 118 So. 3d at 625-26 (¶57). ¶10. Finally , Alf

ord c ites t o Flowers v
. State, 773 So. 2d 309 (Miss. 2 002), a death penalty

case where t he suprem e c ourt f ound error in the adm ission of excessive evidence of other bad

acts. Flowers w as b eing tried f or a single m

u rder, but the prosecution i ntroduced extensive evidence relating to three other m urders com m itted at nearly the sam e tim e . The evidence

was of f ered f or the (valid) noncharacter purpose of the necessity to tell t he whole story of the

c h a r g e d o f

f ense, but t he suprem e court f ound that the p rosecution had g one too f ar b y of f ering cum ulative and of

ten gruesom e evidence relating to the other victim s. See id. at 325 (¶52). This f

o cus on the o ther victim s was not “necessary ” to tell the whole s t o r y of the charged of

f e nse, and it was so unf

airly prejudicial t o the def endant that it f

ailed the Rule 403 balancing test. I

d. at 321-22 (¶¶35-36). ¶11. Flowers is inapposite because the noncharacter purposes at issue in the instant case

– m otive and com m on schem e or plan – are dif f erent. Moreover, while our suprem e court f ound in F lowers that t he evidenc e o f o t h er killings, a s presented and under the particular f acts of that case, was unnecessary t o the pros e c u t i o n , t he suprem e court has repeatedly
6em

phasized the necessity

of evidence of

other, sim ilar sex crim es against children: [ S]ex crim es against children are f urtive, secr e t events usually lacking evidence other than the conf licting t estim o ny of the def endant and the victim

. The only viable p roof of m otive, intent, plan, knowledge, identity [ ,] or absence of m istake or accident m ay be the patte r n of abuse suf f ered by others at the hands of the def endant. Gore , 37 S o. 3d at 1185 ( ¶18) (quoting Derouen , 994 So. 2d at 754-55 (¶17)). Furtherm ore, in this case – unlike in Flowers – the very occurrence of the prior incidents was disputed, and the victim s were o f t e n d e r y e a rs a nd had dif f i culty relating the incidents. Thus we cannot f ind the introduction of

hearsay evidence relating to the other incidents “unnecessary .” ¶12. Considering the authorities we have discussed, we cannot f ind that the circuit court

a b u s ed its discretion i n adm itting the evidence r elating to t he incidents with the othe r children. 2. Confrontation Clause ¶13. Finally , Alf

ord contends that his rights under the Sixth Am endm ent’s Conf rontation Clause w ere violated by

the presence of a “screen” i n the courtroom , w hich h e alleges was used by the prosecutor to obstruct his view of t he victim during her testim ony . ¶14. This issue has sim

ply not been preserved f

or appeal. The trial transcript ref lects that, im m ediately prior to the victim ’s testim ony , the prosecutor a dvised the trial judge of his

concern t hat the victim would not take the stand willingly , and he proposed several options

to seat the child in the witness stand and f acilitate her testim ony – but none of them involved preventing Alf

ord f r om seeing t he child when she testif ied. Af t er the prosecutor presented

7h i s p r o p o s e d o p t i o n s , A lf ord r equested a m istrial without elaboration or argum ent; the m otion

was denied by the trial court a s prem ature. The child was later seated in the witness stand with the jury out, and the prosecutor stated on t he rec o r d t h a t he was going to position him self in such a way a s to b lock the victim ’s v i e w o f s o me of the courtroom

. The judge then o bserved that a screen – apparentl y a l r e a d y present in the c ourtroom – would do the

sam e thing. It is unclear f rom t he record whether the screen was m oved or whether it was already in position p r ior to t he victim ’s testim o n y , n o r w a s i t o bserved at that tim e that it interf ered with A l f

o r d ’s view of the victim

. W h en he began his cross-exam ination of the victim , Alf

ord’s attorney

requested that the screen be m oved so he, the attorney , could see her f ace during the exam ination. W hen t h i s r equest was m ade, i t was granted. The only suggestion that t he s creen ever blocked A lf ord’s view c am e at the beginning of t he testim ony of the next witness, when the trial judge sua s p onte ordered that t he screen be m oved again and observed that Alf

ord had a right to see the witness as she testif ied. ¶15. Thus, it is apparent that the record i s unclear as to what Alf o rd could see during the victim ’s testim ony because Alf ord m ade no contem

poraneous com

plaint. “It is the appellant’s d u t y t o make sure a claim ed e r ror is p roperly preserved o n r ecord.” Ballenger v. State , 667 So. 2d 1242, 1252 (Miss. 1995). Failure to m ake an adequate record bars the issue f r om consideration on a

ppeal. Id. Moreover, Alf

o rd’s m otion f

or a m istrial, m ade prior

to any suggestion that his view would be im peded, was not a contem

poraneous objection and did not preserve the issue f or appeal. Id. at 1251. This issue has been waived.

8¶16. Finally , Alf o rd r equests, in a c u r s o ry f ashion without citation to authority , that we consider these com

p laints u nder a plain error standard of review or that we f ind his def

ense counsel constitutionally inef f ective f or f ailing to o bject to the p r o s e c u t or’s a c tions. The record i s not adequate to consider either c ontention, and the f ailure to adequately b rief these contentions on appeal renders them abandoned. See, e.g., Duncan v. State , 939 So. 2d 772, 779 n.3 (Miss. 2006). ¶17. No reversible error has been shown under this issue. ¶18. AFFIRMED. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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