IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-01345-COA CHARLES E. BLAKE A/K/A CHARLES BLAKE A/K/A CHARLES EDWARD BLAKE A/K/A CHARLES ED BLAKE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/21/2017 TRIAL JUDGE: HON. ALBERT B. SMITH III COURT FROM W HICH APPEALED: COAHOMA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES PHILLIP BROADHEAD ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS ABBIE EASON KOONCE DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 12/04/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., GREENLEE AND WESTBROOKS, JJ. IRVING, P.J., FOR THE COURT: ¶1. A jury sitting bef

ore the Coahom a C ounty C ircuit Court f ound Charles Edward Blake guilty of sexual battery of a c hild while in a position of trust or authority

. The circuit court sentenced Blake to thirty y e ars in the custody of the Mississippi Departm ent of Corrections (MDOC). According to B lake, (1) he experienced double j eopardy because h e was c onvicted incident to a second trial that occurred af ter his previous trial ended in a m istrial; (2) his trialcounsel was inef f ective f or a n um ber of reasons; (3) there was insuf f icient e vidence that he

was guilty of the conduct alleged in the indictm ent; and (4) the jury ’s verdict was contrary
to t he overwhelm ing w eight of t he evidence. Finding no error, we af f irm the circuit court’s judgm ent. FACTS AND PROCEDURAL HISTORY ¶2. W h ile walking hom e f rom school during late 2012, f i ve-y ear-old John 1 told his f ather that he did not want t o go hom e b e cause B l ake m i ght b e there. John then described Blake’s
attem pt to perf orm o ral sex on him and other f o rm s of inappropriate touching. J o hn’s parents im m ediately called authorities, and John was e ventually interviewed by Meredith Rawl, the

“ P r o gram Director of Victim Services and Outreach out of Fam ily Crisis Services i n Oxf ord.” J ohn was i nitially apprehensive during Rawl’s “f orensic i nterview,” but h e ultim ately told Rawl that Blake had perf o rm ed oral sex on him and that h e had s at o n Blake’s lap while Blake was undressed. ¶3. Blake was indicted and charged with sexual battery of a child while in a position of “trust and authority .” According to the indictm e nt, Blake “ p lac[ ed] his m outh, lips, and/or tongue” on John’s genitals. Blake pleaded “not guilty ” and went to trial. ¶4. Blake’s f

irst trial began in late January 2016. John’s p arents and Rawl all testif ied and relay ed John’s claim s that Blake had put his m outh on John’s penis. Rawl also testif ied as

an e xpert f

orensic interviewer that John’s behavior and statem ents w ere “consistent with that of a c hild w ho’s been sexually abused.” W h en John testif ied, he described anal penetration.

1 We su b stitu te a p seu d o n y m f o r th e ch ild ’s n am e to p ro t ect h is id en t ity

. 2Blake’s attorney successf ully m oved f

or a m istrial because the prosecution had not disclosed during discovery

that John was expected to describe anal penetration. ¶5. Af ter the prosecution p rovided a s upplem ental discovery response outlining John’s previously undisclosed a nticipated testim ony , Blake went to trial agai n . John’s f ather testif i ed that while Blake was stay ing with his f am ily f or a couple of day s , he f

o und Blake in John’s room , and Blake w as only wearing b oxer shorts. John’s f ather a n d Rawl both testif i ed that John had described what am ounted to Blake’s p erf orm ance o f oral s ex on John. That t estim ony contrasted with J ohn’s subsequent testim ony that Blake had orally penetrated him

. ¶6. During c r o s s - e x a m i n a t i o n , John adm itted that h e d id not tell Rawl that Blake had orally penetrated h im , a nd he explained that he “[ m ] ight’ve f orgot [ to tell Rawl t hat] when [ he] was f ive” that B lake orally penetrated him

. He also adm itted that d uring the interview, he initially ref

used to say that B lake had touched him inappropriately

. But on redirect, he reiterated: “[ Blake] licked m e i n m y ear when I w as . . . I was in the bed. . . . And then he put his private part over on m y butt and then in m y m outh.” ¶7. The State rested af t er J ohn testif

ied. Bla k e ’ s a ttorney m o ved f o r a directed verdict because the indictm ent alleged that Blake had p erf orm ed oral s e x on J ohn, and John testif ied that Blake had o rally penetrated h im

. The p rose c u t i o n r esponded that there was a dispute between John’s testim ony and t he hearsay testim ony presented by Rawl and John’s f ather, and it was up to the jury

to resolve that dispute. The circuit judge denied Blake’s m otion. ¶8. Blake chose to t estif y . He adm i t t e d t h a t h e had spent a couple of day s with John’s

3f

am ily during the m iddle of Septem ber 2012, and he stay ed with them again a round October 2, 2012. But he denied that he was only wearing boxer shorts w h en John’s f ather f ound h im in John’s room . Blake also said that nothing inappropriate happened between h im a nd John. During cross-exam i nation, Blake said h e had a good relationship with John’s f am ily

. He also said that John’s allegations were s om ehow related to the f act that Blake’s b rother “brought all this

- - this stuf

f up telling about I’m a c hild m olester and all this kinda stuf f

. . . .” The def ense rested af

ter Blake testif

i ed. ¶9. Af ter deliberating f

o r a pproxim ately thirty m inutes, which included the t i me t h a t it took to w atch the vid e o o f R a w l ’ s f orensic interview of John, the jury f ound Blake guilty

. Af ter a subsequent sentencing h earing, the circuit court s e n t e n c e d Blake to thirty y ears in MDOC custody . Blake appeals. 2
DISCUSSION I. Double Jeopardy ¶10. Blake claim s that because his f irst trial ended in a m istrial af ter the jury was selected and sworn to try

the case, his second trial resulted in double jeopardy

. ¶11. T h e F i ft

h A m e n d m e n t t o t h e U n i t e d States C onstitution prohibits the governm ent fr o m putting a def

endant in jeopardy twice f or the sam e of

f ense. Arizona v. W

ashington , 434 U.S. 497, 503 (1978). The M i s s i s s i ppi Constitution also provides that “[ n]o person’s lif e or l iberty shall be t wice p laced i n jeopardy f or t he sam e o f

f ense; but t here m

ust be an ac t u a l

2 P h ill i p W

. B ro ad h ead , clin ical p ro f e s so r an d d irecto r o f th e U n iv ersity o f M ississip p i S ch o o l o f L aw C r im in al A p p eals C lin ic, w a s ap p o i n ted as B lak e’s ap p ellate co u n sel. 4acquittal or conviction on the m erits to bar another prosecution.” Miss. Const. art. 3, § 22.

“But the f

ederal constitution a l r i g h t i s broader, attaching even if the f irst trial is not

com pleted.” Montgomery v. State , 253 So. 3d 305, 310 (¶22) ( Miss. 2018) (internal quotati o n ma r k o mitted). The Mississippi Suprem e C ourt h as “recognized that the Fif th Am e n d m e n t protection a gainst double jeopardy attaches in a ny c rim inal p roceeding in Mississippi at the m om ent the trial jury is selected and sworn to try the case.” I

d

. (internal quotation m ark om itted). ¶12. “ [ D ] i s c h a r g i n g t h e j u r y b e f o r e trial is com

plete d oes not alw a y s l e a d t o a double-jeopardy

bar.” Id . at (¶23). Beca u s e o f the variety of circum stances that m ay m ake it necessary to discharge a j ury bef

ore a trial is concluded, and because those circum s t ances do not invariably c r e a t e u n f airness to the accused, a crim inal def endant’s valued right to have the trial concluded by a particular tribunal is som etim es subordinate to t he public interest in af f o rding the p rosecutor one f ull a n d f air opportunity

to present his evidence to an im partial jury

. Id

. a t 3 1 0

- 1 1 ( ¶ 2 3 ). “Yet in v iew of the im portance of the right, and the f act that it is f rustra ted by any m istrial, the prosecutor m ust dem onstrate ‘m anif

e s t necessity ’ f

or any

m istrial d e c l a r e d over the objection of the def endant if he is to a void the double-jeopardy bar.” Id . at 311 (¶23). ¶13. But Blake’s f

irst trial d i d n o t e n d i n a m istrial declared over Blake’s objection. It end e d w i t h a m istrial granted on Blake’s motion

. “Generally , crim i nal def endants who request the m istrial are barred f rom subsequently asser t i n g double jeopardy violations.” Roberson v. State , 856 So. 2d 532, 534 (¶9) (Miss. Ct. App. 2003) (citing Jenkins v. State , 759 So. 2d 1229 , 1 2 3 4 ( ¶17) (Miss. 2000)). “In such circum stances, there is no double

5jeopardy d ef ect in a new trial unless the governm e ntal co n d u c t i n q u estion is intended to ‘goad’ the def

endant into asking f

or a m istrial.” Id

. ( internal quotation m arks o m itted). Said dif f erently , Blake m

ust show that the prosecution purposef ully com m itted a n error to f orce him to m ove f

or a m istrial. J

enkins , 759 So. 2d at 1234 (¶17). Blake has not satisf ied that burden. ¶14. According to Blake, “ the conscious decision of the prosecutor to n ot interview [ John]

was . . . a ‘purposef

ul attem pt’ that directly resulted in the def ense m otion f

or a m istrial” and “the State created this s et of circum stances through its planned inaction

. . . .” W e disagree. The prosecutor explained that it was his policy n ever to interview a child witness in such a

case. I t w o u l d b e unreasonable and illogical to conclude that the prosecutor’s policy was

som ehow intended to provoke def ense counsel’s m o tion f

or a m istrial in the event that John did n ot testif

y c onsistently with t he statem ents he gave d uring Rawl’ s f

orensic interview. There was nothing t o suggest that the prosecutor knew t hat J o h n w o u l d d escribe anal penetration during Blake’s f i rst trial. T h e r e i s nothing to support a conclusion that the prosecutor did n ot interview John prior to Blake’s f irst trial in o rder to goad Blake’s m otion f or a m istrial when John gave u nanticipated testim o ny . Accordingly , “there [ was] n o double jeopardy def ect in [ Blake’s] new trial . . . .” Roberson , 856 So. 2d at 534 (¶9). II. Assistance of

Counsel ¶15. Blake claim s that his trial counsel was inef f ective: by f ailing to ( a ) f

i le a m otion to d ism iss the case o n grounds of Double Jeopardy bef

ore the s econd trial, (b) m ove, agree to, or not oppose at least six continuances, ( c)

. . . im

peach the key w itness f

or the p rosecution on his prior inconsistent statem ents, (d)

. . . challenge t he State’s MRE 803(25) hearsay

6testim ony in the second trial, (e)

. . . ask f or a n instruction to the jury on prior inconsistent statem ents, (f )

. . . s ubm i t any j ury instructions f or t he trial court’s considerati o n, (g)

. . . provide the jury with the prom ised testim ony f rom an expert witness to testif

y that there was no evidence of anal p enetration, and (h)

. . . get a d ef

inite r uling on an objection to the prosecuting a t torney i n c losing argum ent. Blake f urther argues t hat “ this string of errors and om issions by def e nse counsel” results in

cum ulatively reversible inef

f ective assistance of

counsel. ¶16. “Ordinarily , i nef

f e ctive-assistance-of

-counsel claim s are m ore appropriately brought during post-conviction proceedings.” Jones v. State , 252 So. 3d 574, 589 (¶60) (Miss. 2018). “A claim of inef

f ective assistance of counsel m ay b e raised on direct appeal ‘if s uch issues

are based on f

acts f u lly apparent f

rom the record.’” I

d

. (quoting M.R.A.P. 22(b)). W e f ind
t h a t t h i s issue m

ust be dism issed without p rejudice. Blake m ay apply f or the Su p r e me Court’s l eave to raise his inef f ective-assistance claim s t hrough a m otion f or post-conviction relief

. See Miss. Code Ann. § 99-39-7 (Rev. 2015). III. Suf

f iciency of the Evidence ¶17. Next, B l a k e c laim s there w as insuf f icient evidence to f

ind h im guilty of sexual battery

. Blake notes that t he indict me n t c h a rged him with perf o rm ing oral sex on John, but John testif i ed that Blake com m itted the oral penetration. Blake reasons that he should n o t have been f ound guilty

of sexual battery

. ¶18. Our a

ppellate courts have consistently reviewed such challenges under the f ollowing standard: A m otion f

or directed verdict challenges the suf f iciency of the evidence, and the critical inquiry is whether the evidence shows bey ond a r easonable doubt that the accused c om m itted the act charged, and t hat he did so u n d e r s u c h

7circum stances that e v e ry elem ent o f the of f ense existed. I n j udging the suf f iciency of t h e evidence, the trial judge is required to accept as true all evidence th a t i s f

avorable to the State, including reasonable inf e rences t hat m ay be drawn theref

rom , and to disregard evidence f avorable to the def

endant. Jackson v. State , 68 So. 3d 709, 719 (¶32) (Miss. C t. App. 2011) (citations and internal quotation m arks om itted). ¶19. It was t he jury ’s p lace to resolve m atters regarding weight a nd credibility of witness testim o ny . The jury saw the video of J ohn’s f orensic i nterview, and at t hat tim e John said that B lake had put his penis i n John’s m outh. T he jury could have f ound that John’s m em ory

was f resher then than it was f

ive y ears later w hen J o hn w as ten. Even if the j ury f ound that John’s trial testim ony

was m ore credible than his statem ents during the f orensic interview,
t he variance between the conduct alleged in the indictm ent and the p roof at tria l w a s im m aterial. ¶20. The Mississi p p i S u p r e me C o u rt reviewed a very sim ilar set of circum stances in Burrows v. Stat e , 9 6 1 So. 2d 701 (Miss. 2007). In that case, an i ndictm ent alleged that Horace Paul Burrows had com m itted sexual battery of the victim by d igitally p enetrating her, but the evidence showed that Bu r r o ws penetrated the victim with an o bject. Id

. at 705-06 (¶¶12-15). The S uprem e Court f ound that “[ t]he variance b etwee n t h e l anguage of the indictm ent

. . . and the proof presented at trial was n ot a f atal error” because Burrows “was provided suf

f icient notice that h e was being charged with the crim e of sexual battery ” and “his def ense [ that there w as no f

orm of sexual penetration a t all] would s t ill have been the

sam e” regardless of whether he had been charged w ith digital penetration or penetration with an object. Id . at 706 (¶¶14-15).

8¶21. Sim ilarly , Blake’s def ense was that t here was no inappropriate contact between him and John. Consequently , the variance b etween t he indictm ent and the evidence at trial did
not im pac t B l a k e ’ s def

e nse. I n the light m ost f avorable to the prosecution, there was evidence of sexual penetration, John’s age, Blake’s age, and Blake’s status as John’s great uncle. Thus, there was suf f icient evidence to f

ind Blake g uilty of sexual battery of a child while in a position of trust or a uthority

. See M iss. Code Ann. § 97-3-95(2) (Rev. 2014). W e f ind no error based on this issue. IV. W eight of

the Evidence ¶22. Finally , f

or the s am e reasoning as in the previous issue, Blake claim s the jury ’s verdict is contrary to the overwhelm ing weight o f the evidence. In reviewing this issue, “we def er
to the discretion of the trial judge, and we will not order a new trial unless convinced that the verdict is so contrary t o t h e o v e r w h elm ing w eight of the evidence that to allow it to stand would be to sanction a n unconscionable injustice.” Jackson , 68 S o. 3d a t 720 (¶37) (internal quotation m arks o m itted). As we do not f ind that a llowing the verdict to stand would sanction an unconscionable injustice, it f ollows that we f

ind n o m erit to this issue, and the trial court did not err by deny ing Blake’s request f or a new trial. ¶23. AFFIRMED. LEE, C .J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILS O N , GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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