IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-01893-COA CHAD WILLARD A/K/A CHAD WAYNE WILLARD A/K/A CHAD W. WILLARD APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 07/30/2015 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM W HICH APPEALED: STONE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF SEXUAL BATTERY AND SENTENCED AS A HABITUAL OFFENDER TO THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS W ITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE DISPOSITION: REVERSED AND REMANDED – 05/09/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. IRVING, P.J., FOR THE COURT: ¶1. A jury sitting bef

o re the Stone County Circuit Court f oun d C h a d Wi l l a r d guilty of sexual battery

. On a

ppeal, W illard claim s the circuit court erred when it excluded a portion of h is o nly witness’s testim ony based on a discovery violation. W e a gree. Accordingly , we reverse the circuit court’s judgm ent and rem and the case f o r a new trial.FACTS

¶2. As of Monday , May 14, 2012, Sally 1 h ad b e e n l i v i n g i n a mo b i l e hom e in Stone County , Mississippi, f

or a pproxim ately ten day s. She had f our r oom m ates: D alton a nd Dy lan
W i llard, 2 Chad Knight, and Brandon W arden. 3 They began p l ay ing a drinking gam e that evening, and they continued until they ran through a case of beer s o m etim e around 8:00 p .m . ¶3. A t approxim ately 1:00 a .m ., W illard’s girlf riend, B eth, 4 picked t hem up a n d d r o v e
every one to W i llard’s h o u s e , w h e r e they had m ixed drinks. Sally h ad f our “ big glasses.” During the hour o r two that they were at W illard’s house, B eth got “upset” b ecause sh e “thought [ Sally ] was acting too f lirty with . . . W illard.” Som etim e between 2:00 and 3:00

a.m ., W illard d

rove every one b ut Beth back to t he m obile hom e. 5 Sally , Dalton, and Brandon then drove to Harrison C ounty to buy m ore b eer. They g ot back a t a p proxim a t ely 4:00 a.m . ¶4. According to Sally , W illard f ell asleep i n D y l an’s bed som etim e around 5:00 a.m

. Dalton and W arden also f

ell asleep in dif

f erent beds. B y 7:00 a . m ., every one who w as awake

1 We h av e su b stitu ted a f

ictitio u s n am e f

o r th e v ictim , w h o w as t w en ty -o n e y ears o ld at th e tim e o f

th ese ev en t s.

2 D alto n an d D y lan are Willard ’s tw i n so n s.

3 T h e m o b ile h o m e h ad th r ee b e d ro o m s. S ally ex p lain ed th at o n e b ed ro o m w as o n o n e e n d , an d tw o b ed ro o m s w ere o n th e o th er en d

. O rd in a rily , sh e an d D alto n slep t in o n e b ed ro o m , b u t th ey w ere n o t ro m an tically in v o lv e d

. D y l an slep t in o n e b ed ro o m . K n ig h t slep t o n th e f

lo o r in D y lan ’s ro o m . Ward en slep t in th e th ird b ed ro o m . 4 B eth h ad m arried Willard b y th e tim e h e w en t to trial.

5 A t trial, S ally c o u ld n o t rem em b er w h eth er ev ery o n e lef

t Willard ’s h o u se b ecau se B e th w as u p set. S ally also testif ied th at sh e w as n o t aw are th a t B e th w as u p set “u n til [ sh e] g o t b ack to th e t railer an d [ B e th ] c[ a] m e o u t th ere to th e trailer an d ev e r y b o d y to ld [ h er] to h id e.” It i s u n clear w h eth er S ally m ean t th a t B eth w en t to th e m o b ile h o m e d u rin g th e early m o rn i n g h o u rs o f M a y

1 5 , 2 0 1 2

. 2h a d s t o p p ed d rinking. Sally and Dy lan woke up W arden and t old him t o m ove to “a litt l e

m attress on the f

loor in the living room .” Sally and Dy lan 6 were both intoxicated when they went to bed. ¶5. Sally l a t e r t e stif

ied that bef

ore they f ell a sleep, W illard cam e i nto the room and got into bed with them s om etim e around 8:00 a.m . Dy lan was between Sally and W illard. W hen
W i llard t old D y lan to t ell S ally t o take of f her clothes, she “kind o f just laughed it of f ” because she “just thoug h t h e w a s being a drunk pervert,” and went to sleep while wearing her dress. ¶6. W h en Sally

woke up what she perceived as approxim ately an hour later, Dy lan was
gone, her underwear had b een rem oved, Wi l l a r d w a s on top of her, and they were having
i n t e r c o urse. She told W illard to stop, b ut she did not s cream or y ell. She did not know i f
W i llard com

plied when she t old him to stop b ecause she “blacked o ut at that p oint.” During direct exam ination, she s a id she did not phy sically try to stop h im

. B ut during crossexam ination, she testif

ied that s he tried to push him away . Although she initially said that
“f our o r f ive m inutes” elapsed f

r om the tim e t hat she woke up and l ater “black[ ed] out,” she later said that “[ i]t wasn’t a long period of tim e.” Ultim ately she said she did n ot k now how long she was awake, but “[ i ]t did f eel like a long tim e.” ¶7. W h en Sally f

inally woke up around 2 :00 p.m . , h er underwear was on the f l oor, but she was still wearing her dress. She put on her underwear bef ore leaving the bedroom . Dy lan

6 A t t rial, S ally testif

ied th at as o f M ay 1 4 , 2 0 1 2 , sh e an d D y lan h ad b een h a v i n g “sex u al r elatio n s,” b u t th ey “w ere j u st h av in g f u n .” D u rin g cro ss-ex am i n atio n , sh e said t h at sh e “w as n o t [ in ] a relatio n sh ip ” w ith D y lan

. 3was still asleep, but Dalton a nd W arden w ere shocked when Sally told them w h at had

happened. She took a s hower, and she did not im m ediately contact authorities because she was scared and “[ k]ind of in shock.” ¶8. There a

r e c o n fl i c t i n g a c c o u

n t s regarding when Sally f irst reported W illard. A ccording

to Sally , s he went to her m other’s house later that day , which would have been May 15, 2012. She also said that “it was like m ay be two h ours bef

ore the p o l ice got t here.” However, Investigator Ray Boggs said that S e r g e a nt Adam Guidry called him about Sally ’s report around 8:00 p.m . on May 16, 2012. In any event, Sergeant Guidry drove Sally to the sherif f ’s departm ent on May 16, 2012, where she m e t with Investigator Boggs, who later described her as “distraught,” “upset,” and “ very em otional.” Sally gave him a written statem ent, and the unwashed dress and underwear that she wore Monday night and Tuesday

m orning. ¶9. The next m orning, Investigator Boggs took Sally ’s clothes to t he Mississippi Crim e Laboratory

. He then w ent t o W illard’s h ouse. At Investigator B oggs’s r equest, W illard m et with him at the sherif

f ’ s departm e nt. In a short written s t atem ent, W i llard adm itted that he slept at the m obile h om e, b u t h e s a i d h e d i d not have sex with Sally

. That evening, Sally underwent a sexual-assault exam ination. ¶10. Investigator Boggs went to the m obile hom e t o contact Dalton, Dy lan, W arden, and Knight. N o one answered the door on May 17, 2 012. Investigator Boggs went back the next day , but no one answered the door then, either. Investigator Boggs later testif ied tha t he “eventually spoke with them , ” but “[ t]hey w ere very uncoopera t i v e . ” Eventually , three people gave short undated statem ents. O nly Dy lan’s was m entioned with a ny specif icity

.

4Overall, Investigator Boggs opined that Dalton, Dy lan, Knight, and W arden sim ply did not
want to be involved i n the case. Investigator B oggs did n ot c ontact Beth, because no one

m entioned her during his investigation. ¶11. At trial, the prosecution called Sally , Investigator B oggs, the n urse practitioner who perf orm ed the sexual-assault ex am ination, and two expert witnesses em ploy ed by the Mis sissippi Crim e Laboratory

. The nurse practitioner who perf orm e d the sexual-assault

e x a mi n a t i on explained that Sally did not have any v aginal traum a, but there was recent bruising on her f

ingers, lower back , l e f

t i n n e r thigh, and lef

t leg. The e x pert witnesses testif i ed t hat sem inal f

luid was on S ally ’s underwear, and DNA testing revealed a prof ile that

was consistent with W i llard’s. In other words, W illard’s sem en was recovered f rom Sally ’s underwear. ¶12. Af ter the prosecution rested its case-in-chief , W i llard called Dy lan. W illard’s lawy er said that Dy lan’s “testim ony w ould be lim ited to m ainly im peach me n t o f

” Sally

. 7 W illard also announced that D y lan would be his only witness. T h e p r o s e c u tor said that W illard’s lawy er had “advised [ him ] as soon as [ W illard’s lawy e r] f ound [ D y l a n ].” Although W illard’s lawy er did not d iscuss h is ef f orts to f i n d D y l a n , h e said that “we n ever f ound out where Dy lan was.” The prosecutor argued that W illard should have been able to f ind Dy lan earlier, and “[ i]t’s not

. . . like they didn’t k now a b o u t [ Dy lan] or k

now where h e was.” The

7 Willard ’s trial b eg an o n Ju ly 2 8 , 2 0 1 5

. T h a t d ay w a s d ev o ted so l ely to selectin g th e j u ry . T h e n e x t m o rn in g , th e circu it co u rt h eard u n related p retrial m o tio n s in lim in e b ef o re statin g th at it w o u ld “reserv e th e m atter o f th e o th er w itn e ss th at w e d i scu ssed in ch am b ers o n M r. D y lan Willard

. . . .” T h at in -ch am b ers d i scu ssio n w as n o t tr a n s c r i b e d , b u t w e d ed u ce th at Willard ’s law y er h ad an n o u n ced h is in ten t to call D y lan as a w itn e ss. 5prosecutor objected, again noted that Dy lan had given a “ v e r y , very short statem ent,” and

said that aside f

rom t hat it would be f

or im p eachm ent purposes, he w as uninf orm ed about what Dy l an’s “potential testim ony [ was] going to be.” ¶13. W h en asked f

o r a prof f er, W i llard’s lawy er said that Dy lan would testif y : That [ Dy lan] and [ W illard] were in bed, a n d [ Sally ] cam e i n and joined them

. That she was still awake when [ Dy lan] lef t and went i n t o a n o t h e r bedroom

. Tha t i n t h e mo rning, she woke up, she acknowledged t hat she had sex with [ W illard and she f

]elt s ham ed. She s tay ed there the rem aining part of the day and the night. And [ she] did not leave until the next day , the 16th. The prosecutor quoted D y l an’s s tatem ent: “W e were drinking at m y house[

. M]y dad went
to sleep f i rst[

. T]hen m e, m y bro, [ Knight], and [ Sally ] s tay ed up drinking. Then I went to sleep a couple hours later. No rape took place a t m y house.” The prosecutor f urther noted that the c ase had been pending since 2013, “[ a]nd not until last night w as the [ S]tate advised that [ Dy lan] was going to testif y about this.” ¶14. In r esponse t o the circuit judge’s questions, W illard’s law y e r conceded that he had received Sally ’s wri t t e n s t a t em ent during discovery , so he had reason to anticipate her testim o ny that W illard got into b ed with S a lly and D y lan. W illard’s lawy er also c onf irm ed that af ter he received S ally ’s s t atem ent, he had tim e to produce w itnesses who could im peach her “prior to last night.” T he circuit judge then announced t hat he was “going to sustain the
State’s m otion in l im i ne as a discovery issue and prevent [ Dy lan] f rom t estif y ing to im peach [ Sally ] with som ething that [ W illard and his lawy e r had] known since discovery . . . .” ¶15. However, the circuit judge said that Dy lan could testif y that Sally was asham ed on the

m orning of the 15th, and that she stay ed at the m obile hom e until she lef t on the 16th. The

6circuit judge also gave the prosecutor tim e to interview Dy l an. A f ter t h e c i r c u it judge clarif i ed his ruling, he c om m ented that “ the way to rem edy a ll of this is to declare a m istrial and wait a m onth and interview him and he is n ot a brand new witness any m ore. W e’re not
g o i n g t o d o that.” 8 Af

ter a ten-m inute recess, W illard a nnounced that he w as not going to testif y . ¶16. During direct exam ination, Dy lan testif ied that he woke up around n oon on the 15th, and Sally w as in the living room with Dalton and Knight. Dy lan said that Sally was asham ed because s he had sex with W i llard, but she “shrugged i t o f f .” Contrary to Sally ’s testim ony , Dy lan said that she spent the rest of the day and night drinking w ith him and their f riends at the m obile hom e , and she did not leave until the f ollowing day

. ¶17. The jury ultim ately f o u nd W illard guilty of s e x u a l battery

. Following a bif urcated proceeding, the circuit court f o u n d that W illard qualif ied f or enhanced sentencing as a habitual o f

f ender as set f

orth i n Mississippi Code Annotated section 99-19-81 (Rev. 2015). Consequently , the c ircuit court s entenced W illard to t hirty y e a rs in t he c u stody of the Mississippi D epartm ent of Corrections without eligibility f or parole or early release. W illard appeals.
DISCUSSION ¶18. W i llard’s appellate counsel a r g u e s t hat t he circuit court erred when it (1) excluded
p o r t i o n s of Dy lan’s testim ony ; (2) granted two of the p rosecution’s proposed ju r y

8 “G iv en t h at th e trial j u d g e actu ally co n sid ered w h eth er t o d elay th e trial, th e S tate’s f ailu re to m ak e su ch a req u est is m o o t.” P elletier v
. S ta te , 2 0 7 S o . 3 d 1 2 6 3 , 1 2 7 0 (¶3 2 ) (M iss. C t. A p p . 2 0 1 6 ), cert. g ra n ted , 2 0 4 S o . S o . 3 d 2 9 1 , cert. d i sm issed , 2 0 1 4

- C T -0 0 8 6 9

- S C T (Jan . 1 9 , 2 0 1 7 ). 7instructions; and ( 3) denied W illard’s m otion f or a new t rial. W illard also f iled a pro se supplem ental brief

. W i thin it, W i llard argues t hat his trial counsel was inef f ective because he p revented W illard f

rom m oving f

or a speedy trial; entertained o r i nitiated plea discussions despite W illard’s insistence that he would not plead guilty ; f ailed to ensure that the transcript included voir dire; 9 f

ailed to prevent som eone who knew Investiga t o r B o g g s f r om serving on the jury ; and “f

a iled in his duties to introduce” witnesses.
I. Dylan’s Excluded Testimony ¶19. W i llard claim s t hat the c i r c u i t c o u r t e rred when it lim ited D y lan’s testim ony . “In reviewing rulings of a trial court r egarding m atters o f evidence, relevancy [ ,] and discovery violations, the standard of review is abuse of discretion.” Myers v. State , 145 So. 3d 1143,
1147 (¶10) (Miss. 2014). Our revie w i n v o l v e s determ ining “(1) whether such a violation occurred and, if so, (2) whether the exclusion of this evidence w as an a ppropriate rem edy .” Id . at 1148 (¶10). ¶20. A s d i s c u s s e d above, the circuit court granted t he S tate’s “m otion in li mi n e a s a discovery issue” and h e ld that D y lan would not be allowed to testif y that Sally got into bed with h im and Wi l l a r d , a nd she stay ed in the bed with W illard af t er he lef t. W i llard has a constitutional right to call witnesses in his f avor. See U.S. Const. am e nd. VI; Miss. Const.

art. 3, § 26. But his right to do so is balanced against h is obligation to disclose the witnesses he intended to call a t trial, including those who “by the exercise of due diligence m ay [ have] becom e known[ ] to the def e ndant or def

endant’s counsel.” URCCC 9.04(C).

9 T h e reco r d w as su p p lem e n ted w i th th e v o i r d ire tran scrip t. 8¶21. However, “exclusion of evidence is a radical sanction t hat ought be reserved f or cases in which the def

endant participates signif icantly in som e deliberate, cy nical schem e to gain

a substantial tactical advantage.” Myers , 145 So. 3d at 1149 (¶15). It is not enough to show that evidence was r ecently discovered. Id

. at (¶16). “[ T]he r ecord m ust contain evidence that th e d ef endant com m itted a d i scovery violation to obtain a tactical a dvantage b ef ore exclusion bec o me s t h e appropriate sanction.” Overton v. State , 195 S o. 3 d 715, 718 (¶10) (Miss. 2016). ¶22. W i llard certainly knew about Dy lan’s involvem ent i n the c a s e . D y l a n gave a very short written statem ent that Investigator B o ggs m em orialized in his notes. The prosecution apparently gave Investigator Boggs’s notes to W illard’s lawy er during discovery , although the record does not specif y when that occurred, and i t is unclear what I nvestigator Boggs’s

notes said. So the probl e m was n ot that W illard’s lawy er had only recently learned about Dy lan’s involvem ent or status as a potential witness – it was that W illard’s lawy er had only recently located Dy lan a nd disclosed his intent t o call Dy lan a s a witness. W illard’s lawy er said that he had not b een a b l e t o f i n d Dy lan. B ey ond t hat, there w as no d iscussion on the record regarding W illard’s lawy er’s ef f orts. ¶23. Dy lan’s subsequent testim ony revealed t hat he had not been in contact with W illard, and there were reasons t hat he m ay have been dif f icult to locate. 10 But the circuit judge could

10 D y lan said th at h e h ad o n ly seen Willard “o f f an d o n th ro u g h o u t [ h is] lif e,” an d h e h ad n o t “b een w ith [ Willard ]

. . . t h is p ast f ew y ears.” A cco r d in g to D y lan , h e ch an g ed h is “p h o n e n u m

b e r so m u ch [ th at Willard co u l d ] b a rely ev en f in d [ h im ] .” D u rin g th e p en d en cy o f Willard ’s trial, D y lan h a d b een arrested an d tem p o rarily d e tain e d o n u n related ch arg es. H e h ad n ev er co n tacted an y o n e ab o u t th e case, b ecau s e h e th o u g h t h is “ p a r t ” w o u ld o n ly in v o l v e testif

y in g in co u rt. 9not have known that a t the tim e he m ade his decision. In any event, the prosecutor said that

W i llard’s lawy er had “advised [ him ] as soon as he f ound” D y lan. S t i l l , that provides no clarity regarding W illard’s ef

f orts to locate Dy lan. ¶24. H o w e v e r , as m entioned above, the Mississippi Suprem e Court has held t h a t “ t h e record m ust contain evidence that the def endant com m i tted a discovery violation to obtain

a t actical advantage bef

ore exclusion becom es the appropriate sanction.” Overton , 195 So. 3d at 718 (¶10). The suprem e court has also “rejected a posture in which [ an appellate court]

assum e[ s] that recently discovered evidence is p art of som e schem e to d e f r a u d j ustice and require the def

e ndant to prove otherwise.” Id

. I n Pelletier , 207 S o. 3d at 1266-67 (¶¶13-16), this C ourt addressed a c laim that a tria l c o u r t h a d i m properly excluded a witness – the d e f e ndant’s stepf

ather and boss – because t he def e ndant did not d isclose the witnes s u n t i l af ter t he State had rested its c ase-in-chief

. W e upheld the trial court’s decision, because the witness was not dif

f icult to locate, the def

endant withheld the w itness’s identity until af ter the State rested its case-in-chief , and the def

endant of f ered “no legitim ate excu s e f or his blatant violation of

the discovery rules.” Id . at 1270 (¶31). ¶25. Here, the prosecution w as equally aware of D y l a n ’ s i n v o l v e me n t i n t h e c a s e. Additionally , W illard’s lawy er disclosed his intent to c all Dy lan bef ore the p r o s e c u

tion called its f irst witness. And W illard’s lawy er explain e d t h at he had only recently been able to
contact Dy lan. Presum ably , W illard should have been able to contact Dy lan earlier, but that is based on the presum

ption that they had a norm a l f ather-son r elationship. The c ircuit court

was n ot aware of the n ature of W illard’s and Dy l an’s r elationship until Dy lan testif ied on the

1 0subject. Based on the evidence that existed at the tim e of the circuit judge’s r u l i ng, it was

an abuse of

discretion to assum e that W illard or his lawy er m ust have been in contact with Dy lan earli e r , o r o t h erwise knew how to c o ntact him

. The p rosecutor conceded that
W i llard’s lawy er had disclosed Dy lan as soon as possible. Because there was n o evidence that Wi llard’s late disclosure of Dy lan was m otivated by a desire to obtain a tactical advantage at trial, the circuit court erred when it lim ited Dy lan’s testim o ny . ¶26. It is unnecessary to reverse the circuit court’s j udgm ent and rem and the case f or a new trial unless W i llard can d em onstrate that he was prejudiced or harm ed by the exclusion of Dy lan’s testim ony . See Myers , 1 4 5 So. 3d at 1 150 (¶18). In Ross v
. State , 954 So. 2d 968,
1101 (¶68) (Miss. 2007), the Mississippi Suprem e C ourt f ound t hat the credibility o f the only witness to a crim e was “crucial,” so the def endant had b een prejudiced by the exclusion of the witness’s prior inco n s i s t e n t statem ent despite t he f act that the def

endant’s lawy er was allowed to im

peach the witness regarding her prior inconsistent statem ent. ¶27. Sim ilarly , D y l a n ’ s e x c l u d e d t e s t i mo n y t e n d e d to im pact Sally ’s credibility

by suggesting that h er recollection o f the events was f lawed. D y lan’s excluded testim o ny would have c o ntradicted Sally ’s testim ony that W illard g ot into bed with her a nd D y lan. Otherwise, he would have contradicted her testim ony that she f ell asleep when he was s till in the bed, and s he did not w ake up bef o r e she realized that W illard was having sex with her. At best, Dy lan’s excluded testim o ny would have t ended to show that Sally got into bed with him and
W i llard, and she chose to r em ain there af ter Dy lan lef

t. That would n o t t e n d to prove that Sally had consensual sex with W i llard.

1 1¶28. However, as in Ross , Sally ’s credibility was crucial, and D y lan’s excluded testim ony

could have dim inished her credibility

. T here w as also evidence that W illard’s girlf riend was upset because Sally acted “too f lirty ” with W illard. Sally testif ied t hat she d id not scream or
y ell when she realized t h a t Wi l lard w as on top of her. S he also testif ied inconsistently regarding whether she had tried to push W illard away . And although she testif ied that she could not rem em

ber how long she and W illard h ad sex, she also testif ied that it m ight have been f our or f ive m inut e s . F i n a l ly , she t estif ied that s he did not know whether W illard

com plied when she told h im to stop, because s he “blacked out at t hat p oint.” The suprem e
court has held t hat reversible error resulted f rom the exclusion o f a witness whose testim ony “ref lected on the c r edibility of [ a def endant’s] accuser.” Skaggs v. State , 676 So. 2d 897, 903-04 (Miss. 1996). ¶29. Under the t o t a l i t y o f t h e c i r c u m stances, w e are c om pelled to f

ollow Mississippi precedent and f

ind t hat W i llard was prejudiced by the circuit court’s im p roper exclusion of the t e s t i mo n y a t issue. It f o llows that w e m

ust reverse the circuit court’s judgm ent and

rem and the case f

o r a new trial. W e f

ind that all rem aining issues are m o ot. However, one issue bears discussion based on this Court’s recent decision on the subject m a t ter.
II. Jury Instruction S-6 ¶30. According to W illard, the circuit court erred by g ive instruction S-6 over his lawy er’s objection. Instruction S-6 stated th a t “ t h e uncorroborated testim ony of a sexual battery victim alone is suf

f icient to sustain a conviction f or sexual battery where it is consistent with the circum stances.” W illard acknowledges that the substance o f the instruction is a principle

1 2that i s of

t en discussed incident to a n appellate review of the suf f iciency of the evidence. See
Bozeman v. S

tate , 208 S o. 3d 1091, 1093 (¶6) (Miss. Ct. App. 2017). But W illard argues that instructing the jury on that p r inciple operated as an im proper com m e nt on t h e e vidence.
W i llard f u rther claim s that t he instruction “encouraged circum v ention of t he [ S]tate’s obligation to prove guilt bey ond a reasonable doubt” and th a t it gave the jurors the
im p ression that they could f ind him g uilty “even if [ they ] f oun d S a l ly ’s testim ony was not believable.” “Jury

instructions are generally within the discretion of

the t rial court and the settled standard of review is abuse of discretion.” Moody v. State , 202 S o. 3d 1235, 1236-37 (¶7) (Miss. 2016). F u r t h e r mo r e , an a ppellate c ourt m

ust review the jury instructions as a whole, and when they “f airly – a lthough n o t p e r f

ectly – announce the applicable prim ary rules of law” we will not f

ind reversible error. Id . at 1237 (¶7). ¶31. W i llard is correct that “[ t]he judge in any crim inal cause, shall n ot sum u p or com m ent

on the testim ony , o r charge the j ury as to t he weight of evidence; but at the r equest of either party he shall instruct the jury upon the principles of l aw applicable to the c ase.” Miss. Code
Ann. § 99-17-35 (Rev. 2 0 15). However, in Parks v
. State , 2015-KA-01607-COA, 2017 W L 499171, **13-14 (¶¶70-72) (Miss. Ct. App. Feb. 7, 2017) (petition f or c e r t

. f i l e d Apr. 5, 2017), this Court u

pheld a trial court’s decision to give a practically i dentical instruction. W e held that the instruction in that c ase was not a com m ent on the evidence, and it did not “tell the jury how to weigh the credibility of [ the victim ’s] testi m o n y .” I d

. at * 13 (¶71). W e f urther noted t h at o ther instructions inf orm ed the jurors that they m ust f ind that the def

endant

was guilty bey ond a reasonable doubt. Id

. Other jurisdictions have reached s im ilar results.

1 3See D aniel v
. State , 675 S.E.2d 472, 477 (Ga. Ct. App. 2009) ( f inding n o error because the
i n s truction was a correct statem ent of law, and the trial court gave other instr u c t i o n s regarding the prosecution’s burden o f p r o o f ) ; State v. Clayton , 202 P.2d 922, 925 (W ash. 1949); McBride v. Lavigne , 737 S.E.2d 560, 567 (W .V. 2012). ¶32. However, in Ludy v. State , 784 N.E.2 d 4 5 9 , 4 6 0 ( I n d

. 2003), the I ndiana Suprem e Court reviewed a claim t hat a trial court had im properly given t he f

ollowing instruction: “A conviction m ay b e based solely on the uncorroborated t estim o ny of the alleged victim if such testim o ny establishes e ach elem ent of any crim e charged bey o nd a reasonable doubt.” The Ludy court held:
T h e challenged instruction is problem atic f or at least three reasons. First, i t unf airly f ocuses the jury ’ s attention o n a nd highlights a s ingle witness’s testim ony . S econd, i t presents a concept used i n a ppellate r eview that is irrelevant t o a jury ’s f

unction as f

act-f inder. T hird, by using the technical term “uncorroborated,” the instruction m ay m islead or conf

use the jury

. Id

. at 461. The Ludy court added that “[ t ]o expressly direct a j ury that i t m ay f ind guilt based on the uncorroborated testim ony of a single person is to invite it to violate its obligation to consider all the evidence.” Id

. at 462. The Indiana Suprem e Court also concluded that jurors
“m ay interpret this instruction to m ean that baseless testim ony should be given c redit and that they should ignore inconsistenc i es, accept without question the witness’s testim ony , and
i g n o r e e v i d ence that conf licts with t he witness’s version of events.” Id

. T hree other jurisdictions agree that the instruction at issue is im proper. S ee Gutierrez v. State , 177 So. 3d 226, 233-34 (Fla. 2 015); State v. Stukes , 787 S.E.2d 4 80, 483 (S.C. 2 016); Veteto v. State , 8 S.W

. 3 d 805, 816 (Tex. Ct. App. 2000) (abrogated on other grounds by State v. Crook , 248

1 4S.W

. 3d 172, 177 (Tex. Crim . App. 2008)).

¶33. A s i t c u r r e n t l y s t a n d s , t h i s C o u r t’s decision in P arks is binding precedent i n Mississippi, although the petition f or writ o f certiorari in t hat case is s till pending at this tim e. In the e vent that a sim ilar instruction becom es an issue on rem and, the parties and the circuit

court should be aware of a ny developm en t s i n Parks

. Nevertheless, stare d ecisis and the current state of

the law require that we f i nd no m erit to this issue. ¶34. T H E J U D G M E N T O F T H E S T O N E C O U N T Y C I R C U I T C O U R T I S REVERSED, AND THIS C ASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS O PINION. A L L COSTS OF THIS APPEAL ARE ASSESSED TO STONE COUNTY. LEE, C.J., ISHEE, FAIR, GREENLEE A ND W ESTBROOKS, J J., CONCUR. CARLTON, J., CONCURS IN RESULT O NLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P . J . , B ARNES A ND WILSON, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

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