IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-KA-01150-SCT

WILLIAM VAUGHAN, JR. a/k/a WILLIAM EARL VAUGHAN, JR.

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/23/97

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: STONE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: OLEN LLOYD ANDERSON

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: PAT S. FLYNN

DISTRICT ATTORNEY: CONO CARANNA

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 05/13/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 6/3/99

EN BANC.

McRAE, JUSTICE, FOR THE COURT:

¶1. William Vaughan, Jr., was indicted for the sexual battery and lustful touching of Amber Tanner. The jury

initially deadlocked, but it eventually convicted William on the sexual battery charge and acquitted him of the

lustful touching charge. William appeals arguing, among other things, that the character evidence of Natalie

Mann should have been admitted under Mississippi Rule of Evidence 608 to show that Amber Tanner

maintained a capacity for untruthfulness. Such testimony may have discredited the victim's testimony and

thereby led the jury to a different result in this case of conflicting testimony. Hence, we reverse and remand

for a new trial on the sexual battery charge.

STATEMENT OF THE CASE

¶2. On December 11, 1996, the Stone County Grand Jury indicted William ("Billy") E. Vaughan, Jr., on

multiple counts: (1) sexual battery pursuant to then applicable Miss. Code Ann. § 97-3-95(c) (1994) for a

November 1995 incident, and (2) touching of a child for lustful purposes pursuant to then applicable Miss.

Code Ann. § 97-5-23 (1994 & Supp. 1998) for a May 17, 1996 incident. On June 17, 1997, Vaughan

filed a Motion in Limine to exclude the intended testimony of prosecution witness Dr. Jane Cook. Trial was

held June 23-25, 1997, before Circuit Court Judge Kosta N. Vlahos in the Stone County Circuit Court. At

one point during its deliberations, the jury informed the judge that it was hung, with a numerical count of 9-
2

(1) and 1 abstention. After a Sharplin instruction, the jury returned a verdict of guilty on the sexual battery

charge while finding Vaughan not guilty on the touching of a child for lustful purposes charge. See Sharplin

v. State, 330 So. 2d 591, 596 (Miss. 1976). That same day, the judge entered a final judgment and an

order deferring sentencing in order to receive a pre-sentencing investigation. On July 2, 1997, Vaughan

submitted a Motion for Judgment of Acquittal Notwithstanding the Verdict and/or a New Trial. Vaughan

submitted another motion on August 19, 1997, in which, if his Motion for JNOV and/or New Trial was

denied, he sought bond to be free from custody pending appeal. On September 22, 1997, the circuit court

held a sentencing hearing and ordered Vaughan to serve ten (10) years, three (3) of which were suspended.

Further, the circuit court judge granted bail, which was set at $25,000.00, pending appeal. On September

23, 1997, Vaughan filed his notice of appeal regarding the sexual battery conviction. Vaughan poses the

following issues on appeal:

I. WHETHER THE STATE MET THE BURDEN OF PROOF NECESSARY TO

CONSTITUTE GUILT BEYOND A REASONABLE DOUBT AS TO THE ELEMENTS

REQUIRED FOR A CONVICTION PURSUANT TO MISS. CODE ANN. § 97-3-95(1)(c).

II. WHETHER THE COURT ERRED IN ITS RULING THAT THE TESTIMONY OF

DEFENDANT'S WITNESS REGARDING THE CHARACTER OF THE VICTIM WAS

NOT ADMISSIBLE.

III. WHETHER THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A

MISTRIAL AFTER THE JURY ANNOUNCED IT WAS DEAD-LOCKED AND COULD

NOT REACH A VERDICT.

STATEMENT OF THE FACTS

¶3. This is a case of he said-she said. The testimony is conflicting between the parties and, in some cases,

individual testimony is not consistent throughout the entire examination. At issue in the trial were two

evenings-one in November 1995 and the other May 17, 1996-in which Amber Tanner, the alleged victim,

spent the night at the house of her friend, Courtney Vaughan. However, William was acquitted as to the

alleged happenings of May 17, 1996, so that May incident is given a more cursory factual presentation that

it would otherwise receive.

¶4. Amber Tanner, eleven years old during the two incidents, was a friend of Courtney Vaughan. Amber

stayed over at Courtney's house several times prior to November 1995. The last time Amber stayed over

at the Vaughans' house was May 17, 1996. In November 1995, Courtney invited Amber to spend Friday

evening with her at her house. That evening, Amber and Courtney slept in the same twin bed. Amber was

wearing a pajama suit consisting of blue shorts and a blue shirt. Amber testified that:

We were laying in the bed and he [William] came in the and then I felt his finger go into me and then

he touched my breast and my butt, and then he put the covers -- he put the covers on me and then

went out, and I remember it was 4:52 when he left.

Amber testified that William went under her clothes and placed his finger in her "private part," i.e., her

vagina. Amber testified she awakened and opened her eyes to see William after she felt him touch her.

¶5. William denied the incident:
Q. . . . She alleges that you went in there, in her bedroom, three or four o'clock in the morning,

something like that, and put your finger in her vagina?

A. No, sir. No, sir. I wouldn't never do that to a child. As God as my witness I would never do that

to a child. There ain't no way. I have got two girls of my own, a grandbaby, a grand-girl of my own, a

grandson of my own, and there is no way that I would ever do anything to harm a child. No, sir. I did

not.

Q. Why you reckon that she says that?

A. I don't know. Unless she's mad at me. I don't know. I don't know -- it totally surprised me. It took

me by surprise.

William had no explanation for Amber's accusation. Further, William usually went to bed early and

awakened early, even on weekends, due to his work week sleep pattern. He testified:

Q. At nights. What's your normal pattern in terms of getting up and out of the bed during the nights?

A. Once I go to bed I stay in bed until it's time to get up. During the week I have to get up at three

o'clock. On weekends I try to stay in bed until at least six, seven o'clock to try to catch up on some

of my rest. I wish I was like some people that could sleep to noon.

¶6. During the alleged incident, Courtney was asleep, though Courtney is a light sleeper and sleep-walker.

Brenda Vaughan, Courtney's mother, said she checked on Courtney that night, as she always did.

Nonetheless, both Amber and Courtney testified that Brenda did not enter the room during the evening,

while Courtney testified that William also did not enter the room. Brenda is a light sleeper and testified that

William is a loud snorer. Amber testified she lay in bed the next morning because she did not want to face

William. According to Amber, at approximately 8:00 a.m., she informed Courtney that Courtney's father

violated her, then Amber left with her mother at 9:30 a.m. Amber said that when she told Courtney what

William did, Courtney "just kind of looked at the floor and didn't say anything." Amber did not inform an

adult of the incident. Amber testified she was even scared to tell her mother.

¶7. Courtney, on the other hand testified that, Amber's mother picked her up in the afternoon. Brenda

Vaughan testified that the children were joking and laughing as normal. Courtney said she was standing on a

stool in the closet attempting to attain some Thanksgiving items and Amber tickled her such that she was

about to fall. Courtney testified she pushed on Amber to keep from falling, and Amber slapped her. William

witnessed the turn of events and told Amber to apologize, which she did. Courtney testified she knew

Amber was angry because Amber exhibited her habitual behavior of ignoring a person when she gets angry

at that person. Brenda testified that Amber pouted after being made to apologize. Amber testified she did

not slap Courtney. Courtney further testified that Amber did not tell her of being touched by her father until

after the slapping incident. Subsequent to Amber's departure, Brenda and William had a conversation,

regarding which William testified:

Q. So what did you do after this conversation with Brenda that afternoon later after Amber had left?

A. I couldn't believe it. I couldn't believe it.

Q. Couldn't believe what?
A. I got mad. I got mad. I couldn't believe that she had said that about me knowing that there ain't no

way, no way on God's green earth, no way. And told Brenda I said, "No. I don't want her to come

back. No. Courteney can go over there if she wants to but she's not coming back here not while I'm

here." I said, "If she's coming here I'm leaving." I said, "I'm going somewheres and I'll be gone and

you let me know when they leave and I will be back."

William further testified:

Q. Now in November of 1995, you're telling this jury that Amber Tanner roundhoused your daughter

and you were aware of Amber Tanner accusing you of putting your finger in her vagina and you didn't

even call her parents?

A. That's right.

Q. You didn't think a conversation should have been had?

A. Yes. It should have.

Q. But that conversation never did take place?

A. No, it didn't.

It is evident the Vaughans knew and kept it quiet that Amber had accused him of touching her, but he, while

uneasy about doing so, still let her return to the Vaughan home in May of 1996.

¶8. Amber retained her friendship with Courtney, but, due to fear of William, did not spend the night at the

Vaughans' home again until May, 1996. Amber testified she chose to go back to the Vaughans' home

because she did not want to say she was afraid of William; further, she did not think he would violate her

again. Courtney testified she had Amber over again because she "felt sorry for her because she didn't have

anything to do in the country." That Friday evening, Amber and the Vaughans went to Flint Creek where

Courtney's paternal grandparents were camping. Courtney testified that while at the park, the girls swam,

but, after eating, Amber wanted to swim again and William said no. Amber rejected William's answer by

hanging on him and saying, "'Oh, I love you. Please let us go swimming, . . .'" Indeed, William testified:

Amber kept grabbing me around the neck, she kept grabbing me here and just, "Please, Mr. Billy, let

us go swimming. Please let us go swimming. Oh, I love you so much. Please just let us go swimming.

Let us go swimming." I said, "Please. No you can't." I said, "Amber, don't be doing that." I said,

"There's people all over here." I said, "Everybody is around here." I said, "Y'all are not going

swimming." About that time Courteney stepped in between us. And we walked on down a little bit

further and started back, and when we started back the further we walked the further back Amber

got. I kept telling her, "Amber, it's getting dark, honey. Come on up here." It was light, you know, and

people was out and everything but I said, "Get up here so we can all be together."

Courtney, too, says she got between Amber and her father to stop Amber's behavior. Later, the group

returned to the Vaughans' home, then talked, at which time Amber told the Vaughans of her aunt's murder

and her fear to sleep by herself due to fear of being killed herself. Amber admitted to sleeping with her

eighteen year old brother and to being hypnotized by her mother.
¶9. The children again slept together in Courtney's bed, and Amber wore the same bed clothes she was

wearing during the November incident. Amber testified that William came into the room, and, while not

touching under her clothes as he did in the November incident, touched her buttocks and breasts. William

also denied this second accusation by Amber.

¶10. Amber testified once again that Brenda did not come in and fix her covers. According to Amber,

Courtney also slept through this alleged incident. Yet, Courtney testified her father did not enter the room

but that her mother put her and Amber's feet in the bed and covered them. Brenda testified she did pick up

the feet of and cover the girls. Courtney and Brenda further testified that in the morning her father merely

stuck his head in the room to awaken the girls for the day. At breakfast, the children were talking and

behaving normally. Courtney was supposed to go with Amber to Gulfport on Saturday, but chose not to

go. Amber was saddened by or, as William phrased it,"[k]ind of pouted" about Courtney's decision;

Brenda described Amber as "very put-off, very upset." Courtney testified that Amber said nothing about

her father entering the room during the night to touch Amber.

¶11. On Monday, May 20, 1996, Amber informed the elementary school counselor, Jean Breland, of the

incident, but she did not inform Courtney. Amber testified that she did not inform Courtney because she felt

Courtney would not do anything to rectify the problem given that Courtney did nothing regarding the first

incident. Yet, Amber testified she told approximately three people that William touched and molested her.

¶12. Breland called Karen Tanner, Amber's mother. Amber testified she did not tell her mother because she

was scared. Later, still on May 20, Deputy Sheriff Buddy Bell talked with Amber, Karen, and Karen's

father. Four days later, Bell arrested William.

¶13. Karen took Amber to the Department of Human Services, but did not receive much help, so,

approximately May 22, 1996, Amber and Karen went to see a gynecologist, Dr. Gilda Magee. Amber

testified that she did not recall Dr. Magee asking her when the touching occurred. Yet, Dr. Magee testified

that Amber related two fondling incidents-one that occurred May 17, 1996, and another that occurred two

or three months prior, i.e., in February or March 1996, not November of 1995. Dr. Magee's examination

consisted of listening to Amber's heart and lungs, feeling Amber's abdomen, and inspecting Amber's

external genitalia. Dr. Magee testified that Amber weighed 146 pounds, which was obese for Amber's age.

¶14. Dr. Magee testified she discovered that "[s]he [Amber] did have a little, what we call [hymenal]

notching, which is just evidence of a tearing at one -- at approximately seven o'clock position at the vaginal

opening." Dr. Magee testified that hymenal notching is usually caused by trauma, which she testified usually

implies vaginal sex, finger entrance into the vagina, or something tearing the vaginal opening. According to

Dr. Magee, notching is "usually indicative of trauma that is usually considered to be sexually in origin unless

proven otherwise." While Amber was menstruating, Dr. Magee did not ask her how many times she had

her period. Despite the fact that large tampons can cause hymenal notching, Dr. Magee did not ask Amber

if she used such products. Dr. Magee also failed to ask Amber if she had fallen on anything, had been

treated previously by an applicator for a vaginal infection, if she engaged in self-sex, or if she had engaged in

sexual intercourse with anyone. Dr. Magee testified that Amber told her she experienced neither bleeding

nor significant pain, despite the fact that some bleeding or pain is usually experienced. Karen Tanner

testified that Amber had never experienced a vaginal injury, a vaginal infection, or used tampons. Amber

also saw a child psychologist, Dr. Jane Cook, on approximately five or six occasions.

¶15. Dr. T.K. Ellis, who practiced emergency medicine but at the time of trial was doing medical-legal
work, also testified. Dr. Ellis testified that the literature states that trauma may include horseback riding,

bicycling, skiing accidents, gymnastics, and swinging in the yard. Dr. Ellis stated that, while potentially

useless in a digital penetration case such as this, Dr. Magee should have used a rape kit for record and

thorough examination purposes. Dr. Ellis also testified that Dr. Magee's examination of Amber did not meet

the American Medical Association's standard procedure for examining people to determine if they have

been sexually abused. Dr. Ellis testified that Dr. Magee's consideration of hymenal notching was the only

objective finding that Dr. Magee made. Dr. Ellis further testified that it is well documented in the literature

that "there are too many normal women," including children, who have minimal hymenal notching. Dr. Ellis

testified that he has seldom seen bleeding from a sexual assault, but that there would be bleeding and pain if

the hymen, i.e., skin, was torn. Dr. Ellis further testified:

Q. So if a child was having her period or was already started menstruating would that be consistent

with notching?

A [Dr. Ellis]. Literature states yes, and they are doing more studies on these. They've already done a

lot of them. And, you know, they are trying to get to the bottom of what all can cause it. They know

it's some kind of traumatic event. And like I say, they have done studies, one in 1992 or 93 that took

79 girls that hadn't even started their period yet and found like a good percentage of them, like 11

percent or something like that, had minimal hymenal notching.

Dr. Ellis was of the opinion that hymenal notching meant nothing; he had even seen it in normal women who

gave no history of sexual abuse.

¶16. At trial, Amber testified she had a good memory, but she seemed to confuse the two incidents during

cross-examination. Further, Amber did not remember the November episode in which Courtney was

attempting to attain the Thanksgiving decorations and Amber slapped her. Courtney and William testified

that Amber said "[t]hat if she got into a fight it really didn't matter just so she got the last lick." Yet, Amber

denies having such a belief. William testified that he has an honorably discharged Air Force veteran whom,

post-military, worked in civilian positions that required secret security clearances. Evidence of William's

good character and veracity was provided by Noel Mann, Wanda Parsons, and Marion Pettis. Further,

Mann and Parsons were asked if their good opinion of William would change if they were told he sexually

abused an eleven year old girl; they both responded with "no."

DISCUSSION OF THE LAW

I. WHETHER THE STATE MET THE BURDEN OF PROOF NECESSARY TO

CONSTITUTE GUILT BEYOND A REASONABLE DOUBT AS TO THE ELEMENTS

REQUIRED FOR A CONVICTION PURSUANT TO MISS. CODE ANN. § 97-3-95(1)(c).

¶17. Vaughan argues the evidence is not legally sufficient to support the verdict. A conviction for sexual

battery pursuant to Miss. Code Ann. § 97-3-95 (1994) requires (a) sexual penetration, and (b) with a child

under the age of fourteen. See id. Sexual penetration is defined in Miss. Code Ann. § 97-3-97(a) (1994)

as "any penetration of the genital or anal openings of another person's body by any part of a person's body,

. . ." See id. Indeed, "[p]enetration is the very essence of the crime of sexual battery." Johnson v. State,

626 So. 2d 631, 632 (Miss. 1993); see also Thompson v. State, 468 So. 2d 852, 853 (Miss. 1985);

and see West v. State, 437 So. 2d 1212 (Miss. 1983).
¶18. This Court acknowledges "as corroborating evidence the victim's physical and mental condition after

the incident, as well as the fact that she immediately reported the [sex offense]. Also, the totally

uncorroborated testimony of a [ ]victim is sufficient to support a guilty verdict where that testimony is

not discredited or contradicted by other evidence." Christian v. State, 456 So. 2d 729, 734 (Miss. 1984)

(emphasis in original & citations omitted); see also Collier v. State, 711 So. 2d 458, 462 (Miss. 1998). It

is the duty and province of the jury to pass upon the credibility of witnesses. Anderson v. State, 461

So.2d 716, 719-20 (Miss. 1984). In the instant case, Amber reported the alleged November 1995 offense

to her friend Courtney the next day, but she did not report it to authoritative parties until May of 1996-

approximately six months later. Also, it is evident that Amber's testimony is contradicted by that of William,

further one is left to wonder how the case would have turned out if the testimony of Natalie Mann,

proffered as discrediting, had been admitted.

¶19. The proper standard for evaluating a challenge of insufficient evidence to support a conviction is

settled. When, on appeal, one convicted of a criminal offense challenges the legal sufficiency of the

evidence, our authority to interfere with the jury's verdict is quite limited. Carr v. State, 655 So. 2d 824,

837 (Miss. 1995). We must, with respect to each element of the offense, consider all of the evidence--not

just the evidence which supports the case for the prosecution--in the light most favorable to the verdict.

Cooper v. State, 639 So. 2d 1320, 1324 (Miss. 1994); Harveston v. State, 493 So. 2d 365, 370

(Miss. 1986). Credible evidence consistent with the guilt must be accepted as true. Spikes v. State, 302

So. 2d 250, 251 (Miss. 1974). Matters regarding the weight and credibility to be accorded the evidence

are for the jury's resolution. Neal v. State, 451 So. 2d 743, 758 (Miss. 1984).

¶20. A greater quantum of evidence favoring the State is required for the State to withstand a motion for a

new trial, as distinguished from a motion for directed verdict. May, 460 So. 2d 778, 781 (Miss. 1984).

Under our established case law, the trial judge should set aside a jury's verdict and grant a new trial only

when, in the exercise of his sound discretion, that judge is convinced the verdict is contrary to the

substantial weight of the evidence. Id. In determining whether a jury verdict is against the overwhelming

weight of the evidence, this Court must consider all the evidence, not just that supporting the case for the

prosecution, in the light most consistent with the verdict, and give the State all favorable inferences which

may be drawn from that evidence. Jones v. State, 635 So. 2d 884, 887 (Miss. 1994); see also Strong v.

State, 600 So. 2d 199, 204 (Miss. 1992). Only where the verdict is so contrary to the overwhelming

weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court

disturb it on appeal. Pleasant v. State, 701 So. 2d 799, 802 (Miss. 1997); see also Eakes v. State, 665

So. 2d 852, 871-72 (Miss. 1995). Any less stringent rule would denigrate the jury's constitutional power

and responsibility in our criminal justice system. May, 460 So. 2d at 781-82.

¶21. In other words, Vaughan's sufficiency of the evidence argument is a question of pure law and is

directed to the trial court's denial of his motion for a directed verdict, while his argument that the verdict was

against the overwhelming weight of the evidence is directed to the trial court's denial of his motion for a new

trial and addresses the sound discretion of the trial court. Collier, 711 So. 2d at 461.

¶22. In the instant case, the evidence is sufficient. The facts and inferences do not so point in favor of

Vaughan that a reasonable person could not have found Vaughan guilty beyond a reasonable doubt. The

testimony is conflicting, but it has not been absolutely discredited or contradicted. Further, the jury is tasked

to pull truth from the conflicting morass. Amber testified to Vaughan's guilt and she had medical support that

her hymen was torn, which may have been caused by the digital penetration of which Vaughan was
accused. Given such facts, the standard is simply too high for the defense to overcome.

II. WHETHER THE COURT ERRED IN ITS RULING THAT THE TESTIMONY OF

DEFENDANT'S WITNESS REGARDING THE CHARACTER OF THE VICTIM WAS

NOT ADMISSIBLE.

¶23. Vaughan argues at length in both his Appellant's Brief and Reply Brief that the trial court erred by

ruling inadmissible the testimony of a character witness who would have testified that the victim had the

character and reputation of being untruthful.

¶24. This Court has stated that "[t]he relevancy and admissibility of evidence are largely within the

discretion of the trial court and reversal may be had only where that discretion has been abused." Hentz v.

State, 542 So. 2d 914, 917 (Miss. 1989). The judge's discretion must be exercised within the bounds of

the Mississippi Rules of Evidence. Johnston v. State, 567 So. 2d 237, 238 (Miss. 1990). This Court

must determine whether the trial judge employed the proper legal standard in its fact-findings governing

evidence admissibility; if the trial court acted improperly, this Court applies a substantially broader standard

of review. Baine v. State, 606 So. 2d 1076, 1078 (Miss. 1992). This Court deems reversal appropriate

when the trial court has abused its discretion such that the accused is prejudiced. Parker v. State, 606 So.

2d 1132, 1137-38 (Miss. 1992).

¶25. Related to a discussion of admissibility of character attacks is Mississippi Rule of Evidence 607: "[t]he

credibility of a witness may be attacked by any party, including the party calling him." See id. Also, pertinent

to such a discussion is Miss. R. Evid. 608(a):

(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked

or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the

evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful

character is admissible only after the character of the witness for truthfulness has been attacked by

opinion or reputation evidence or otherwise.

See id.

¶26. The use of character evidence to challenge the credibility of the victim is not a novel concept in

Mississippi. In Skaggs v. State, 676 So. 2d 897 (Miss. 1996), this Court contemplated the trial court's

exclusion of a defense witness who would have challenged the credibility of the accuser, an alleged rape

victim.Id. at 902-03. Exclusion of the testimony was not harmless error; therefore, reversal was warranted.

Id. at 903-04. In Cooper v. State, 628 So. 2d 1371 (Miss. 1993), this Court considered the language of

Rule 608. Id. The Court quoted pertinent language from 3 Weinstein's Evidence § 608(01), pp. 608-10-11

(1993), which states:

The theory underlying the use of evidence of character or conduct for impeachment purposes is that a

person who possesses certain inadequate character traits-as evidence in a variety of ways including

that he has acted in a particular way-is more prone than a person whose character, in these respects,

is good, to testify untruthfully. It follows from this hypothesis that evidence of his bad character, or

conduct is relevant to prove that he is lying. . . .

. . . [C]redibility is often the crucial issue in a case, and character evidence, despite its flaws, "may still

serve a purpose in calling to the jury's attention what might be an otherwise unknown deficiency of the
witness and thus give the jury a more adequate basis for judging his testimony.

Section 608(04), pp. 608-24-25 of Weinstein's treatise also states the effect of Rule 608 as follows:

Attack on Character: Proof by Opinion

Rule 608 departs from previous practice in authorizing proof by opinion whenever proof could be

made by reputation, a change endorsed by many commentators who agreed with Wigmore that the

exclusion of opinion evidence was "historically unsound" and "unfortunate."

. . . . Witnesses may now be asked directly to state their opinion of the principal witness's

character for truthfulness and they may answer for example, "I think X is a liar." The rule

imposes no prerequisites conditioned upon long acquaintance or recent information about

the witness; cross-examination can be expected to expose defects of lack of familiarity and

to reveal reliance on isolated or irrelevant instances of misconduct or the existence of

feelings of personal hostility towards the principal witness. (Emphasis added.)

Id. at 1374. This Court reversed the case and stated that "[t]he trial court erred in ruling that an opinion as

to truth and veracity is not admissible." Id. at 1374 & 1376.

¶27. The State, acknowledging Cooper, "recognizes that this testimony would be admissible under

Mississippi Rules of Evidence [608(a)](2), which provides that the credibility of a witness may be attacked

or supported by evidence in the form of opinion or reputation." However, the State argues that there is no

basis for determining error in the exclusion of the character witness's testimony because it contends no

proffer was made.

¶28. "[I]t follows that counsel has the right, when an objection to the testimony of a witness is sustained, to

show in the record by appropriate means the nature and content of the proposed testimony." Hitt v. State,

217 Miss. 61, 67, 63 So.2d 665, 667 (1953). The standard for effecting a proffer is a rather low threshold,

as evidenced in Pennington v. State, 437 So. 2d 37, 39 (Miss. 1983):

Although the lower court here did not permit appellant's counsel to make a record and no real proffer

was made by dictating into the record what the appellant desired to show by the testimony and by the

evidence, appellant's counsel did state that the purpose of the evidence was to show what a simple

process it is to remove a latent fingerprint from a cigar box. That officially indicates to this Court what

was the purpose of the evidence.

See id.

¶29. At issue is the discussion revolving around a motion in limine moved by the State to preclude the

character testimony of Natalie Mann as to the character of Amber Tanner:(3)

BY MR. LEVI [Counsel for Vaughan]: We'll call a character witness Natalie Mann.

BY THE COURT: Jury go to the jury room.

(THE JURY WAS EXCUSED FROM THE COURTROOM AT 4:18 P.M. WHERE THE

FOLLOWING TRANSPIRED IN THEIR ABSENCE:)
BY THE COURT: Do you want to make a Motion In Limine or what?

BY MR. BOURGEOIS [Assistant District Attorney]: Yes, sir. I move in limine.

BY THE COURT: Go ahead and put it in the record. We talked about it at the bench but the record

needs to know what it is.

. . . .

BY THE COURT: . . . Then you also indicated, Mr. Levi, that you wanted to call, I forget the young

lady's first name, Mann.

BY MR. LEVI: Yes. Natalie Mann.

BY THE COURT: And you said that you were going to offer her as a character witness concerning

the --

BY MR. LEVI: The victim.

BY THE COURT: The truthfulness of the victim.

BY MR. LEVI: Yes, sir.

BY THE COURT: And the State is going to object, and I asked you to give me a rule and you gave

me Rule 4.04 and 4.05, is that correct?

BY MR. LEVI: Yes, sir. In conjunction with Rule 6.08 and 6.08, Your Honor.

BY MR. BOURGEOIS: Yes, sir. The State's position is that -- that the character of Amber Tanner is

not at issue, Judge, and we'd object to that testimony coming forth from the witness stand.

BY THE COURT: Anything further on that?

BY MR. LEVI: Your Honor, I think the rule is clear it says that --

BY THE COURT: Which rule are your talking about?

BY MR. LEVI: Well 4.04, Your Honor. It says, "Evidence of a person's character or a trait of his

character is not admissible for purposes providing that he acted in conformity therewith on a particular

occasion except," and then we go to (2), it says, "character of victim. Evidence of a pertinent trait and

character of the victim of a crime offered by the accused, by the prosecution, to rebut the same

evident or evidence of a character's peacefulness of the victim offered by the prosecution to rebut

evidence that the victim was the first aggressor." You have to read that, Your Honor, in conjunction

with Rule 6.08 which says, "The credibility of a witness may be or supported by evidence in the form

of opinion or [reputation] but subject to these limitations. The evidence may refer to character

truthfulness or untruthfulness. And evidence of truthful character is admissible only by the character

witness for truthfulness has been attacked by opinion or [reputation]."

We have a person who will testify basically to these facts, Your Honor. That she knows the

child, she's her contemporary, known her for several years, ask her what her [reputation] is
in the community for truthfulness and honesty and she will answer them. That it is a bad

[reputation] for truthfulness or words similar to that.

BY THE COURT: What's the last rule that you read?

BY MR. LEVI: Sir?

BY THE COURT: What was the last rule that you read from?

MR. LEVI: 6.08.

BY THE COURT: Unless the [reputation] for truthfulness is at issue brought by the person who has

offered that witness as testimony --

BY MR. LEVI: He offered -

BY THE COURT: Don't interrupt me. That's one little pet thing that I have. It's the position of the

Court that that has not been done, and the issue, opinion of truthfulness, is not at issue in this case as

to the prosecutrix Ms. Tanner.

BY MR. LEVI: In light of Your Honor's ruling we would move to strike her entire testimony because

I assume when she was sworn and put under oath that her truth and veracity was being vouched for

by her prosecution. So, therefore, in accordance also with Rule 6.07 that says who may be

impeached, it says, "The credibility of the witness may be attacked by any party including the party

calling her." And we present -- we state, Your Honor, that we're entitled to attack her credibility by

offering opinion testimony as to her honesty and truthfulness.

BY THE COURT: That will be noted and the objection of the State will be sustained at this time.

There cannot be any attack by opinion testimony as to truthfulness of the prosecutrix given the state of

the case as it's presented before the court. In view of the Court's ruling then who would be your next

witness?

(emphasis added). Of further relevance is the discussion which occurred during the hearing on the motion

for new trial:

BY MR. ANDERSON [Counsel for Vaughan]: . . .

. . . .

We also ask that a new trial be granted on the basis that we were not allowed to present a character

witness to impeach the alleged prosecuted witness in this case. I believe the Uniform Circuit Court --

I'm sorry the rules are clear, the Mississippi Rules of Civil Procedure and Evidence that we should

have been allowed to put on character evidence since it was obvious to me that the character of the

alleged prosecuting witness that was involved in this matter put that at issue when she said that Mr.

Vaughan touched her, and we should have been allowed to present testimony according to the rules

of evidence that her character was not good to say the least, and she had a propensity to lie. On these

two basis we request that this court grant Mr. Vaughan a new trial on count one of the indictment,

sexual battery.
BY THE COURT: What proof is evident that there was a compromised verdict?

BY MR. ANDERSON: Well, Your Honor, they came back and said they could not arrive at any

verdict. Of course, this Court I believe at the time did not want to over-question the jury. And for

them to go back in -- for them to deliberate all day and then to go back in for 40 minutes and come

out with one verdict of guilty and one verdict of not guilty, you know, presents evidence to me that

there was a compromise so that, you know, they could arrive at a verdict. We further believe that the

instructions which this Court gave the jury put pressure on them to arrive at a verdict.

BY THE COURT: All right. Mr. Bourgeois.

BY MR. BOURGEOIS: Judge, the State would stand on the record. If I'm not mistaken defense

counsel attempted to put character evidence on before character -- with regard to defendant's

statement before the defendant even took the stand. The State objected to that. He put two character

witnesses on the stand. Just because he didn't put his third one on the State stands on the record,

Judge. That's all.

BY THE COURT: Any response?

BY MR. ANDERSON: We put character witnesses on in behalf of Mr. Vaughan?

BY THE COURT: Which --

MR. ANDERSON: Which we would have been allowed to do. And the one that we attempted to put

on would have been to impeach the credibility of the prosecuting witness. That's one which we were

not allowed to do so, and we believe we have a right pursuant to Rule 7 to do that?

BY MR. BOURGEOIS: Judge, the only right that you have goes to truthfulness. And if I'm not

mistaken they were attempting to go beyond truthfulness. 4.12 specifically precludes that.

BY MR. ANDERSON: What we were going for was her propensity to lie in the community or

falsehoods. I believe that goes towards truthfulness.

BY THE COURT: Did I allow you to go ahead and make a record, a proffer?

BY MR. ANDERSON: Yes, sir. My memory --

BY THE COURT: So the Supreme Court has that?

BY MR. ANDERSON: Yes, sir.

BY THE COURT: All right. I'll deny the motion for a new trial. I'll let the jury verdict stand.

(emphasis added).

¶30. In the instant case, the threshold for this issue is whether a sufficient proffer was effected. Under Rule

103(a)(2) a substantial right of Vaughan has been affected because he reasonably relied on the plain

language of the evidentiary rules to bring a case that the rules reasonably allowed. By excluding Natalie

Mann's testimony, Vaughan was rendered helpless to discredit the testimony of the key prosecution

witness, Amber Tanner, a child whose character is questionable. The second part of the Rule 103(a)(2) test
requires the substance of the evidence be made known to the court. As emphasized above, Vaughan's

counsel placed in the record that Mann would testify that Amber's reputation for truthfulness was "bad."

Such information is enough to provide the substance of the testimony. It was quite clear that Mann would

be called to explain that Amber's character and reputation was that of being untruthful.

¶31. Given that the character testimony was sufficiently proffered, the next consideration is whether or not

the testimony was admissible. As touched upon in the above consideration of whether a proper proffer was

made, the accused was prejudiced by not being allowed to fully bring his case in light of the plain language

of the evidence rules. Such is abuse of discretion. Rule 404 specifies that a character evidence of a pertinent

trait of the victim may be offered by the accused to show that the victim acted in conformity therewith. Id.

In this case, Vaughan simply followed the rule. He offered testimony that would show that Amber Tanner

conformed with her trait for untruthfulness. Vaughan also followed the Rule 405 requirement that reputation

testimony be used to make proof. Id. Further, Vaughan complied with Rule 608(a), which states that the

evidence must refer to truthfulness or untruthfulness and may be admitted only if the witness's character for

truthfulness previously has been attacked by opinion or reputation evidence. Id. In this case, the evidence

referred to truthfulness. Further, Amber's character for truthfulness had already been attacked at the time

Mann's testimony was proffered, because Amber denied having the belief of needing to get in the last lick

while Courtney Vaughan testified that Amber stated to her that getting the last lick was what mattered when

one gets into a fight. Hence, the testimony was admissible.

¶32. While the testimony has been deemed admissible, the final step is to consider whether Natalie Mann's

testimony should have been admitted to discredit the character of the accuser, Amber Tanner. As explained

above, Vaughan was prejudiced in that he was not allowed to show that his accuser's character was that of

untruthfulness while the case turned upon his accuser's claim that he sexually battered her. While the accuser

did have some medical evidence supporting her case, the gynecologist could have been more careful and

precise in her analysis. Further, the gynecological evidence would have been rendered rather meaningless if

Amber was discredited. If such had occurred, the jury would then have more reason to wonder precisely

how Amber's hymen was notched. The jury might even begin to think that Amber did it herself to counter

anger about not getting her way during the slapping episode at the Vaughans' home. Accordingly, the trial

court abused its discretion.

III. WHETHER THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A

MISTRIAL AFTER THE JURY ANNOUNCED IT WAS DEAD-LOCKED AND COULD

NOT REACH A VERDICT.

¶33. Since this case is being reversed due to such abuse of discretion, we do not reach this third issue

raised by Vaughan.

CONCLUSION

¶34. This is a case of conflicting testimony between the defendant, William Vaughan, and the alleged victim,

Amber Tanner. The case is reversed and remanded under Miss. R. Evid. 608 due to the trial court's abuse

of discretion in excluding Natalie Mann's testimony that would have attacked Amber Tanner's credibility

and, inherently, the veracity of her testimony. Given that the prosecution's case is grounded in Amber's

testimony and that it has been reported that Amber deems it important to get in the last lick, the case may

have turned out differently if Mann's testimony had been allowed. Accordingly, the judgment is reversed,

and this case is remanded for a new trial on the sexual battery charge consistent with this opinion.
¶35. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS

OPINION.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, WALLER AND COBB, JJ.,

CONCUR. SMITH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION

JOINED BY BANKS, MILLS AND WALLER, JJ.

SMITH, JUSTICE, SPECIALLY CONCURRING:

¶36. I agree with the Majority that the trial court abused its discretion in ruling defense witness Natalie

Mann's testimony inadmissible. I write to emphasize Mississippi Rule of Evidence (M.R.E.) 103(a)(2) and

its supporting case authority which justify the Majority's holding. The threshold issue here "is whether a

sufficient proffer was effected." Maj. Op. at 21. In its brief, the State concedes that, but for the lack of a

sufficient proffer, "this testimony (Mann's testimony) would be admissible under Mississippi Rules of

Evidence [608](a)." The State argues instead that the defense did not make a proffer for the record.

¶37. The State relies upon Wilcher v. State, 697 So.2d 1087, 1093 (Miss. 1997), where this Court held

that the defendant was procedurally barred from raising claim that the lower court erred by refusing to rule

in limine on admissibility of certain evidence of "prior bad acts," because the defendant failed to proffer his

testimony. Id. Thus, the State asserts that the defense was required to "put the child on the stand for a

proffer" in order for this Court to be able to assess her testimony.

¶38. The State's argument revolves around M.R.E. 103(a)(2), which states as follows:

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was

made known to the court by offer or was apparent from the context within which questions were

asked.

The Official Comment to the Rule states that "...when a party objects to the exclusion of evidence, he must

make an offer of proof to the court, noting on the record for the benefit of the appellate court what evidence

the trial judge excluded." See King v. State, 374 So.2d 808 (Miss.1979); Brown v. State, 338 So.2d

1008 (Miss.1976).

¶39. Vaughn responds that it was not necessary to call Natalie Mann to the stand and question her outside

the jury's presence, because an aggrieved party may preserve the record by dictating into the record a

statement of the evidence offered but excluded. Vaughn is correct. In Heidel v. State, 587 So.2d 835

(Miss. 1991), we held that before a party may secure appellate reversal on an evidentiary exclusion that

party must have placed in the record the substance of the evidence he would have offered had the court

ruled otherwise. Id. at 844 (citing M.R.E. 103(a)(2)) (emphasis added); see also Murray v. Payne, 437

So.2d 47, 55 (Miss. 1983). Here, a review of the record and transcript reveals that a proper proffer was

made by defense counsel during argument over the objection, because the substance of Mann's proposed

testimony was discussed at length. The Majority outlines this argument in detail. Maj. Op. at 18-21.

Therefore, the substance of Mann's proposed testimony is in the record, and we can assess that testimony.
¶40. Accordingly, I specially concur.

BANKS, MILLS AND WALLER, JJ., JOIN THIS OPINION.

1. The court instructed the jury spokesperson to disclose only the numerical split in the jury, not the number

of votes for conviction and the number of votes for acquittal.

2. The State cites Rule 806(a), but there is no Rule 806(a). Further, the Cooper case to which the State

refers, cites Rule 608(a). The State made a typographical error by citing Rule 806(a) while it meant to cite

Rule 608(a).

3. Vaughan reasonably points out in his Reply Brief that "[i]n the transcript the word 'reputation was

mistakenly transcribed as 'representation' as can be verified by the quotations elicited for [the] Mississippi

Rules of Evidence."