IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-00116-COA JOHN EDWARD YOUNG, JR. A/K/A JOHN EDWARD YOUNG A/K/A JOHN YOUNG APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/28/2014 TRIAL JUDGE: HON. FORREST A. JOHNSON JR. COURT FROM W HICH APPEALED: ADAMS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DAMON RAMON STEVENSON ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND DISTRICT ATTORNEY: RONNIE LEE HARPER NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF SEXUAL BATTERY AND SENTENCED TO TW ENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 06/28/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. J o hn Edward Young Jr. ( Young) was c onvicted of sexual b a t t e r y o f h i s u n c l e ’ s eleven-y ear-old stepdaughter, K.M. 1 On appeal, Young argues that the t rial judge erred by declining to excuse a p rospective juror f or cause, by a llowing t est i mo n y t h a t Young had stated that he h a d prior “ f elonies, ” by precluding Young’s uncle f rom testif y ing regarding

1 In th e in terest o f

p riv acy , th e v ictim ’s n am e h as b een su b stitu ted w ith in itials.unspecif

i ed past behavior of K.M., and by giving a n erroneous jury inst r u c t i on. For the

reasons e x plained b e low, these issues are all procedurally barred and/or without me rit. Young also alle g e s t h at his trial counsel was inef f e ctive; however, we do not address this claim because it is not capable of determ inatio n o n t h e present r ecord. Accordingly , we af f irm Young’s conviction and sentence.
FACTS ¶2. On July 28, 2 012, Young was stay ing at the hom e of his uncle, Glenn Young (Glenn), and Glenn’s wif

e, Kelly Young (Kelly ). S om etim e af t er m idnight, Young, who was then thirty -six y ears old, entered the room of Kelly ’s eleven-y ear-old daughter, K.M. K.M. lef t her room brief

ly , a nd when s he returned, Young was wearing only his boxers. Young threw
K.M. onto her bed, l ay on top of h er, and put his hand o ver her m outh. Young pulled down
K.M.’s pants and inserted his penis into her vagina. K.M. testif ied that Young was wearing

a c o ndom , which he m

ust h ave put on while she was out of the room . K.M. tried to scream , but Young k ept his hand over her m outh. Wh e n Young eventually stopped, K.M. tried to leave, but Young stopped her and then penetrated her a nally

. Young s t o p p e d a g a i n, and
K.M. was f

inally able t o leave the room . She w ent to the living room and cried, and Young f ollowed her there and told her he was “sorry .” ¶3. K.M. then ran to Kelly ’s and Glenn’s bedroom cry ing and scream ing that “[ Young] touched her.” Young ran i nto the room behind her and s aid, “ [ K .M.], t ell the truth. Tell the truth. I got f

elonies.” Kelly

and Glenn then rushed K.M. to the hospital. ¶4. At the h ospital, K.M. a n d K e l l y w e re both “ c ry ing and v ery distraught.” A nurse

2exam ined K.M., observed that she had suf f e red a r ecent vaginal tear, and c ollected a rape kit, which was sent t o the State Crim e Lab. There was blood on K .M.’s underwear and pajam as, her rectal swab and underwear tested positive f or blood and sem inal f

luid, and her vaginal swab tested positive f

or b l o o d

. A n a l y sts at the State Crim e Lab a t tem p ted to com

pare the

sem inal f luid to a known s am

ple of Young’s DNA, but f orensic biologist Alexandria Bradley testif i ed that the results of the t e s t w e r e “inconclusive” because the f luid had been m ixed with K.M.’s blood. ¶5. Young, accom

panied b y h i s s t e p f

a t h e r , t u r n e d h i m self i n to the Adam s County Sherif f ’s Departm ent in the early hours of the m orning. Captain Robert Brown interviewed Young af ter advising him o f his rights. Young adm itted that he penetrated K.M. vaginally

. In a w ritten statem ent, Y oung c laim ed that he f ell asleep in K.M.’s b ed and awoke to f ind her

on top of him and having sex w ith him

. Young claim ed that when he f irst a woke he thought he was d ream i ng and t hat he m ade K.M. s t o p a s s o o n as he realized what she w as doing. Young a lso claim ed that a condom that he kept in his wallet was “m issing” and t hat he had “no idea where it [ was].” ¶6. Young was arrested and i ndicted f or sexual battery

. His f

irst trial ended in a hung j ury and a mi s t rial. At his second trial, he testif ied a nd continued to m aintain that he awoke to f ind K.M. on top of h im

. Y oung c laim e d that he did not know whether he penetrated K.M.
He s aid that he t old Captain Brown the sam e t hing d uring his interview. He testif ied that he adm itted to penetration o n l y because Captain B rown was adam ant that p enetration had occurred. Young claim ed that when he awoke, K.M. had begged him not to tell her m other

3what she had done.

¶7. T h e j u r y c o n v i c t e d Young of sexual battery , and the court sentenced him to th e statutory m i nim

um of twenty y e ars’ im

prisonm ent. See M iss. Code Ann. §§ 9 7-3-95(1)(d)
& 9 7-3-101(3) ( Rev. 2006). Young subsequently f iled a m o tion f

or a new trial o r j udgm ent notwithstanding the verdict, which was denied, and a notice of appeal.
DISCUSSION ¶8. On appeal, Young argues that t he trial court erred by : (1) r ef using to excuse f

or cause

a prospective juror whose daughter was sexually assaulted; (2) allowing Kelly to testif y that Young s a i d h e h ad p rior f elony convictions; (3) ref using to a llow Glenn to testif y about
K.M.’s past behavior or alleged dishonesty ; and (4) giving an instruction on the elem ents of the of f ense t hat d id n o t require the jury to b e unanim ous. He also claim s that his t rial counsel

was inef f ective in f a iling to prof

f er Glenn’s testim ony concerning K.M.’s p ast behavior. W e address these issue in turn below, f ind no reversible error, and af f irm

. I. Juror Challenge ¶9. During voir dire, a prospective juror disclosed that her daughter had b e e n sexually assaulted; however, s he stated that she could be f air and im partial if chosen to s erve on the jury

. Young subsequently challenged the prospective juror f o r cause. The court d enied the challenge because the prospective juror had stated clearly that she could be f

air. ¶10. Our Suprem e C ourt has held that “ [ b]ef ore a claim r elated to a denial of a challenge f or cause m ay be vali d , ( 1 ) t h e d ef endant m ust have exhausted all of his perem ptory challenges and (2) an incom petent juror m

u st be f orced by t he trial court’s e r roneous ruling

4to s it on the jury .” Burgess v. S tate , 178 S o . 3 d 1 266, 1276 (¶28) ( Miss. 2015) (em phasis added) ( citing Christmas v. State , 10 So. 3d 413, 423 (¶47) (Miss. 2009)). I n this case, the record does not disclose whether Young exhausted hi s p e r e m ptory challenges, but m ore im p ortant, the record is clear that the challenged juror did not sit on the jury

. Accordingly , Young’s argum e nt is without m erit. See , e.g. , Johnson v. S tate , 68 S o. 3d 1239, 1246-47 (¶¶24-25) (Miss. 2011); Townes v. State , 93 So. 3d 895, 897 (¶9) (Miss. Ct. App. 2012).
II. Young’s Statem e nt Regarding Prior Felony Convictions ¶11. The court partially d enied Young’s pretrial m otion in l im ine to exclude any m ention of his prior convictions. The court r u l e d t hat Kelly could testif y as to Young’s statem ents in the i m m ediate af

term ath of t he crim e. Theref ore, Kelly was p erm i tted to testif y t h a t Young b l u r t e d o u t , “[ K.M.], t ell the truth. Tell the truth. I g ot f elonies.” The S tate also

m entioned this anticipated t e s tim ony in its opening a rgum ent, but the j ury was not told
any thing else a

bout Young’s p rior crim es. Nonetheless, Young a r g u e s t hat the disclosure that he h ad “f

elonies” violated Mississippi Rules of Evidence 403 and 404(b). W e review the trial court’s ruling f

or a buse of discretion only

. See, e.g. , Beal v. State , 134 So. 3d 383, 387 (¶17) (Miss. Ct. App. 2014). ¶12. Rule 404(b) provides: Evidence o f other crim e s, w r o n g s, or acts is not adm i ssible to prove the character of a person in order to show that he acted in conf o rm ity therewit h. It m ay , however, be adm issible f or other purposes such as proof of mo t i v e, opportunity , intent, preparation, plan, knowled g e , i dentity , or absence of m istake or accident.
M.R.E. 4 04(b). If the evidence is adm issible f or a perm issible purpose, the court m ust also

5consider whether its “probative value is substantially ou t w e i g h e d by the danger of unf air prejudice.” M.R.E. 403. ¶13. The trial judge concluded t hat the testim ony was relevant to the circum stances of “the disclosure of the allege d c r i me im m ediately af ter it allegedly happened.” T he judge also concluded that the probative value of the evidence was not s ubstantially outweighed by the danger of unf

a ir prejudice. The trial judge did not abuse h i s discretion. W h ile Young claim ed that he was o nly adm onishing K.M. to “tell t he truth,” his statem ent could also be interpreted as an attem

pt to keep h e r f

rom disclosing a c rim i nal act. So interpreted, the
statem ent is adm issible to show knowledge or “consciousness of guilt.” See Beal , 134 So. 3d at 387 (¶18) (holding that evidence o f other crim es m ay be adm itted under Rule 404(b)
to show consciousness of guilt). I n a d d i t i o n , our Suprem e Court has held that “[ w]here substantially necessary to p r esent to the jury the com plete story of the crim e, evidence or testim o ny m ay be given even though it m ay reveal or s uggest other crim es.” Palmer v. State , 939 S o. 2d 792, 795 (¶9) (Miss. 2006) (internal quotation m arks om itted). Here, had the trial judge censored Young’s own ref erence to his prior “ f

e lonies,” the jury w ould have heard an incom plete and distorted version of his adm onition to “tell the truth.” ¶14. Accordingly , w e are satisf ied that the e v i d e n c e w a s a d mi s s i ble f or a perm issible
purpose under Rule 404(b). Indeed, since the specif ic nature of Y oung’s prior crim es was
not disclosed to the j ury , it i s dif f i cult to see how this testim ony could have been used f or the im p erm issible purpose of showing that he “acted in conf orm ity therewith.” M.R.E. 404(b).
In a ddition, the trial judge did not abuse his discretion in f i nding t hat the probative value of

6the testim ony w a s n o t substantially o utweighed by t he danger of u nf air prejudice. The testim o ny was relevant and probative, and a ny p r e j u d i c e was lim i ted by the lim ited nature of the testim ony

and the State’s lim ited use of it. Accordingly , this issue is without m erit.
III. Glenn’s Testim ony ¶15. A t t rial, G lenn testif ied that he was no longer angry with Young. Glenn explained,
“I t hought about the situation, w h a t h a p p e ned. T hen I looked at [ Young], this and that. I know tim es where [ K .M.] h as done stuf f .” Y oung’s attorney then a s ked, “Like w hat? ” The
State objected on relevance groun d s , a n d t h e trial judge ruled that he would “sustain [ the objection] at this point” and directed Young’s attorney to “[ a]sk a nother question.” Young’s attorney subsequently asked Glenn, “ [ H ]ave y ou ever k nown [ K.M.] to be dishonest with
y ou? ” The State again objected o n r e l e v a n ce grounds, and the trial judge s ustained the objection. A short be n c h c o n f e r e nce ensued out of the hearing of the court reporter, af ter which the judge reiterated t hat the objection w as sustained. Young’s a t torney d id not m ake a prof f er on the record af

ter either objection was sustained. ¶16. Young now a rgues that the trial judge a bused his discretion by sustaining the State’s objections and preventing G lenn f rom testif y i ng about “stuf

f ” K .M. had “done” and alleged instances of dishonesty

. H owever, “[ w]hen testim ony is n ot allowed at trial, a record of the prof f ered testim ony m

ust be m ade in order to p reserve the point f or appeal.” G reen v. State , 89 So. 3d 543, 554 (¶28) (Miss. 2012) (quoting Metcalf v. State , 629 So. 2d 5 58, 5 67 (Miss. 1993)); see M.R.E. 1 03(a)(2). The burden to m ake the prof f er is o n the o f

f e r i n g p a r t y . Redhead v. Entergy Miss. Inc. , 828 So. 2d 801, 808 ( ¶20) (Miss. C t. App. 2001). W ithout

7a prof

f er this Court cannot “know what testim ony was excluded.” Id. Young f ailed to m ake
any prof f er o f the excluded testim ony , what “stuf f ” K.M. had supposedly “done,” or any alleged instances of dishonesty

. Indeed, Young e f f ectively c oncedes this f

a ilure, as he also
argues on appeal that his trial counsel was constitutionally inef f e ctive f or f a iling to m ake a prof f er. Accordingly , this claim is procedurally

barred and without m erit.
IV. Ineffective Assistance of Counsel ¶17. Young n e xt argues that his trial counsel was constitutionally i nef f ective f or f ailing to
p r o f f e r Glenn’s excluded testim ony . W e decline to address this issue o n direct app e a l because, as this Court and the Suprem e Court have f requently explained, [ i ] t i s unusual f

or this Court to consider a c laim of inef f ective assistance o f c o u n s el when the c laim is m ade on direct appeal because there i s usually insuf f icient e vid e n c e within the record to evaluate the claim

. Because an a p p e l l ate court is lim ited to the trial record on direct appeal, issues o f inef f ecti v e a s sistance of counsel are m ore appropriate i n a m otion f or postconviction relief

. W e m a y address such claim s on direct appeal only if (a) the issues are based on f

acts f ully a ppar e nt f rom the record, or ( b) t he parties stipulate that the record is a dequate, and we determ ine that additional f indings of f act by a trial judge are n ot needed. If the record is n ot suf f icient to address the claim s o n direct a p peal, w e dism iss the claim s w ithout prejudice, preserving t he def

endant’s right to r a i s e t h e claim s later i n a properly f i led m otion f o r post-conviction relief

. Shinn v. State , 174 S o. 3d 961, 965 (¶11) (Miss. Ct. App. 2015) (internal citations, quotation

m arks, em

phasis, and alterations om itted). ¶18. Appropriately , the State does not stipulate that the present record i s a d equate to decide Young’s claim on direct appeal. In order to establish a claim of inef f ective assistance of counsel, Young m

ust show both (1) that “ counsel’s perf orm ance w as def

icient”—i.e., “that counsel m ade errors so serious t hat counsel w as n ot f u nctioning as the ‘ counsel’ guaranteed

8the def

endant b y t he Sixth Am endm ent”— and (2) that he was prejudiced as a result—i.e., “that counsel’s errors were so serious as to deprive the def endant o f a f

air trial, a t rial whose result is reliable.” Strickland v
. W ashington , 466 U .S. 668, 687 ( 1984). Even if we assum ed that the f ailure to prof

f er Glenn’s testim ony was an error of constitutional signif icance, there is no w a y t o d e t e r m ine o n the present record whether Y oung suf f e red any prejudice as a result. Accordingly , we do not address this claim

. If the M ississippi Suprem e Court grants
perm ission, Young m ay r aise the issue in a properly f i led m otion f

or post-conviction relief

. V. Jury Instruction ¶19. In his f

i nal i ssue on appeal, Young argues that the trial court erred by instructing the jury on the elem ents of

the of f ense of sexual battery

as f ollows: [ Young] has been charged in the indictm ent with sexual battery

. I f y ou f ind f rom the evidence in this case bey ond a reasonable doubt that:
1. [ Young], on or about July 29, 2012, in Adam s County , Mississippi,
2. Did willf

ully and unlawf

ully e ngage in sexual penetration with [ K .M.,] a f em ale child under the age of f o urteen (14) y ears, 3. By inserting his penis into her vagina and/or anus,
4. W hen the [ Young] was twenty

- f our (24) o r mo r e months older than [ K.M.], then y ou should f ind [ Young] guilty as charged. If t he prosecution has f

ailed to prove any

one or m ore of the a

bove e lem ents bey ond a reasonable doubt, then y ou should f ind [ Young] not guilty

. Young argues that the third elem ent’s “and/or” deprived him of his right t o a un a nim ous verdict because som e jurors m ay have c onvicted him of vaginal penetration, w h i l e o thers

m ay h ave convicted him o f a nal penetr ation. T he argum ent is procedurally b arred and

9substantively without m e rit. ¶20. First, Young did not object to the instruction at trial, so he is barred f rom challenging it on appeal. S

ee, e.g. , S m ith v. State , 835 So. 2d 927, 939 (¶34) (Miss. 2002) ( “This Court has held on num erous occasions that an of f ended party ’s f

ailure to object to jury instructions

at trial p rocedurally

bars the issue on appeal.” (quoting J ones v
. State , 776 So. 2d 643, 653 (¶3 5 ) ( M i s s . 2 0 0 0))). Accordingly , we can review his claim only f o r plain error. See Fitzpatrick v. State , 175 So. 3d 515, 522 (¶31) (Miss. 2015)

. ¶21. Second, the i nstruction was not erroneous, m uch l ess plainly erroneous. As the State points out, this Court has held that the particular “m ethod of achieving sexual penetration is
not an elem ent of the of

f ense” of s exual battery

. Chandler v. State , 789 So. 2 d 109, 112 (¶7) (Miss. Ct. App. 2001); see a lso Hines v. State , 4 72 S o. 2d 386, 390 (Miss. 1985) (rejecting the argum ent t hat an ind i c t m e nt f or sexual battery was insuf f i cient because it “f

ail[ ed] to specif y which organ of [ the def e ndant’s] body was said to have penetrated which orif ice of [ the victim ] ”) ; People v. Rodriguez , 914 P.2d 230, 2 58 (Colo. 1996) (holding that “specif ication of the particular m anner in which [ the def endant] com m itted the elem ent of sexual intrusion” is not part of the essential e l e me nt of the of f ense); People v. Ross , 917 N.E.2d 1111, 1121 (Ill. App. C t

. 2 0 0 9 ) ( “ I l linois case law provides that the ty pe of sexual penetration i s n o t a n e l em ent of the of f ense, and its inclusion in the indictm ent is m erely surplusage.

. . . The State need o nly prove that a ty pe of sexual penetration occurred bey ond

a reasonable doubt.” ( citations, quotation m a rks om itted)). “‘Sexual penetration’ includes cunnilingus, f

ellatio, buggery or pederasty , any penetration o f the genital o r a nal openings

1 0of a nother person’s body by any p art of a person’s body , and insertion of a ny object into the

g e n i t al or anal openings of another person’s body .” Miss. Code Ann. § 97-3-97(a ) ( R e v . 2006). T h e j u r y u n anim ously c onvicted Young of sexually penetrating the victim , K.M., which is the essence o f the o f f ense of sexual battery

. See Johnson v. State , 626 So. 2d 631, 632 (Miss. 1993). Accordingly , Young’s challenge to the instruction is without m erit.
CONCLUSION ¶22. Young’s claim s of error by the trial court are all procedurally barred and/or without

m erit, and his inef

f ective assistance claim is not capable of determ ination on direct appeal. Accordingly , his conviction and sentence are af f irm ed. ¶23. THE JUDGMENT OF THE C I R C U I T C O U R T O F ADAMS C OUNTY OF CONVICTION OF SEX UAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPP I D EPARTMENT OF CORRECTIONS IS A F F I R MED. ALL COSTS OF THIS A PPEAL ARE ASSESSED TO ADAMS COUNTY. LEE, C.J., IRV I N G A N D GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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