IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-KA-01062-SCT JESSE FRANK MOUTON

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 06/01/2015 TRIAL JUDGE: HON. LISA P. DODSON TRIAL COURT ATTORNEYS: NATALIA VIAN PORSCHE MICHAEL W . CROSBY COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MICHAEL W . CROSBY OFFICE OF THE STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/18/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.
MAX WELL, JUSTICE, FOR THE COURT: ¶1. Our trial judges have considerable discretion over discovery m atters. This discretion extends to the h a ndling of requests f o r c ontinuances or m istrials based on alleged discovery violations. In this case, an expert witness testif ied t hat injuries to a child w e r e consistent with s e xual abuse. Her r eports, photogr a p h s o f t h e injured body area, and expert opinionwere previously disclosed to the def ense. Yet, at trial, t h e def ense took issue with the expert’s t estim o ny about the relevance of the shape of s om e of th e i n j u r i e s . Af

ter
t h o u g h tf u lly assessing the def

endant’s request to exclude the expert’s testim o ny , the t r i a l judge denied it. Though s he f ound no d iscovery violation, the judge recessed trial f o r the day

so def ense counsel could f

urther interv i e w t h e expert. S he also restricted the expert’s

te s t i m ony to external injuries but allowed the expert to give an opinion that the child’s injuries resulted f

rom sexual assault. ¶2. On appeal, we f

ind n o abuse of discretion in the judge’s handling of this i ssue, nor do

we f ind she abused her discretion in deny ing a m istrial. Another alleged error involving the giving o f a Sharplin 1 instruction l acks m erit. And t he de f e ndant’s claim s o f prosecutorial

m isconduct were either waived or unf ounded. ¶3. W e af

f irm

. B ackground Facts and Procedural History ¶4. In 2012, J e s s e F r a n k M o u t o n l i v e d w ith his b rother Jody and Jody ’s girlf riend Kately n, at the C ountry Living Trailer Park in W oolm arket, Mississipp i

. K a tely n of ten baby sat Toni Carpenter’s children—three-y ear-old N.B. a nd two-y ear-old A .B. On June 17,
201 2 , T o n i n o ticed that N.B. “act[ ed] with discom f o rt” when she strapped him in his car
seat. 2 Toni asked N.B. what was wrong. And he said “his butt was hurting.” H e told her
Mouton “had been play ing with his butt and wiener.” W h en Toni conf r onted Mouton, N.B.

1 S h a rp lin v. S ta te , 3 3 0 S o . 2 d 5 9 1 (M iss. 1 9 7 6 ).

2 M o u to n , T o n i , N .B ., an d A .B

. a ll sp en t t h e n ig h t o f Ju n e 1 6 , 2 0 1 2 , at Jo d y an d K a tely n ’s trailer. 2pointed to Mouton and again said Mouton had play ed “with his butt and wiener.”

¶5. Ocean Springs Hospital perf orm ed a sexual-assault exam i nation on the child. 3 And
Susan Auge, a Sexual Assault Nurse Exam i ner, interviewed and exam ined N .B. Auge f ound
f our injuries to N.B.’s anus—a “rather large” abrasion and three a n al t ears. Auge c oncluded
N.B.’s i njuries were c onsistent with sexual abuse. She produced a ten-page f orensic report, along with photographs taken during N.B.’s interview and exam i nation. ¶6. On April 13, 2015, a Harrison County grand jury indicted Mouton on f our counts of sexually a ssaulting N .B. Counts o ne and two charged M outon with sexual battery

. 4 Counts three and f

our charged him

with touching a child f

or lustf ul purposes. 5 ¶7. Mouton was tried in M a y 2 0 1 5

. The State presented e vidence and t estim ony f rom T o n i, Auge, and a Biloxi p olice investigator, a m ong other witnesses. Auge testif ie d a s a n expert witness. S he described one of the tears to N .B.’s a nus as “V-shaped.” In her opinion, the child’s anal tears were consistent with sexual assault. ¶8. M o u t o n o b

j e c t e d , c l a i mi n g t he State f ailed to disclose Auge’s opinion o n t h e signif icance of the “V-shaped” tear. 6 He argued t his violated Mississippi Unif o rm Rule of

3 T o n i in itially to o k N .B

. to th e B ilo x i R eg io n al M ed ical C en ter. T h at h o sp ital co u ld n o t p e rf o rm th e ex am in atio n , so th e B ilo x i P o lice esco r ted T o n i an d N .B

. to O cean S p rin g s H o sp ital.

4 See Miss. Code Ann. § 97-3-95(1)(d) (Rev. 2014).

5 S ee M iss. C o d e A n n . § 9 7 -5 -2 3 (1 ) (R ev . 2 0 1 4 ).

6 D u rin g arg u m en t o n th e o b j ectio n , th e co u rt ex am in ed an d f o u n d th at S tate’s E x h ib its 1 , 3 , a n d 4 w ere p h o t o g rap h s, p ro v id ed d u rin g d i sco v ery , th at clearly sh o w ed N

. B .’s an u s an d th e “V s h ap ed ” tear. A s th e j u d g e p u t it, “I’v e alread y r u led o n th e v . It’s in th e p h o to g r ap h s, it’s th ere.” 3Circuit and County Court P ra c t i c e 9 .04. But the trial j udge disagreed. She f ound no discovery violation and held the S tate had m et i ts discovery obligations. Thus, she denied
Mouton’s m otion f

or a m istrial. ¶9. The j udge did, h owever, grant a brief continuance and recessed court f or the day to give Mouton a n additional opportunity to question A uge abou t her expected testim ony . W h en trial resum ed the next day , the judge perm itted Auge to testif y . But the judge lim ited her testim ony

to only the external injuries she had observed while exam ining N.B. ¶10. The State a lso called Toni as a witness. Inconsistencies arose c oncerning her initial

s t a t e m ent to police and t rial testim ony . She originally told police Mouton’s ex-wi f e , Shannon McGrew, had inf orm ed her of

other sexual-assault allegations involving Mouton and one of his children. But at trial, Toni claim ed no knowledge of prior a l legations against
Mouton. She testif

ied she m ade these statem ents to the police while she was “distraught and
very f l ustered.” Mouton c alled S hannon i n response. S he testi f i e d t h a t t he Mississippi Departm ent of Hum an Services h ad cleared M outon in the prior s exual-assault investigation. During cross-exam ination, the State asked S h a n n o n if Mouton had visitation with their children and whether t hat visitation was supervised. Shannon answered a f f i rm atively to both questions. Shannon was the def ense’s sole trial witness. ¶11. Af ter nearly f

our hours of deliberation, the j u r y s e n t a note to the judge. The note explained the jurors were unable to reach a unanim ous d ecision and needed guidance. Af ter hearing f rom both sides, the judge decided to read a Sharplin i n s t r u c tion to the jury , i n s t r u cting them to continue to deliberate. See Sharplin , 330 So. 2d at 5 96. Forty -on e

4m inutes l ater the jury r eturned its verdict—f inding Mouton g uilty on on e count of sexual battery and not guilty

of the rem aining three counts. ¶12. Mouton f

iled a post-trial m o tion, seeking a new trial or judgm ent notwithstanding the verdict. I n it, h e claim e d three specif ic errors—(1) the State viola t e d d i s c o very rules by
f ailing to disclose Auge’s expert opinion on the shape of N.B.’s injuries; (2) the trial court
gave an i m

proper Sharplin instructi o n ; a n d ( 3 ) the State com m itted prosecutorial m isconduct during Toni’s and Shannon’s testim ony . The trial judge denied Mout o n ’s m otion. On appeal, Mouton raises the sam e three claim e d errors.
Discussion
I. Discovery Violation ¶13. From the beginning of trial, Mouton m ade a h ost of inconsistent discovery -violation claim s. But he only

advances one on appeal—that the S tate introduced undisclosed expert testim o ny about the signif

icance of the shape of

N.B.’s anal tears. ¶14. Mouton does not claim that Auge w as not qualif ied to give an opinio n t h a t N.B.’s injuries were consisten t w i t h s e x u al abuse. Nor does h e claim t he S tate f ailed t o provide discovery and photographs depicting t h e c h ild’s a n al tears. Rather, what Mouton coins a discovery violation is that Auge did not write the word s “ V

- s h a p e d tear” in the disclosed

m aterials. So, as he sees it, Auge could not testif y that one o f the depicted tears to the child’s

anus was V- s h a ped, and that N.B.’s injuries were consistent with sexual abuse. For this

reason, Mouton insists, the judge erred b y f inding no discovery violation, im properly allowing Auge to continue testif y ing, and not granting his m otion f o r a m istrial.

5A. Standard of Review

¶15. The decision to adm it or exclude evidence is lef t to t he trial court’s discretion. Wade
v. State , 583 So. 2d 965, 967 (Miss. 1991) (citations om itted). And we review evidentiary decisions f

o r abuse of d iscreti o n . Taylor v. State , 954 So. 2d 9 44, 947 ( Miss. 2007) (citations om itted). This abuse-of -discretion standard also extends to alleged violations of
Mi s s i s sippi Unif

orm Rule of Circuit and County Court Practice 9.04 and to a trial court’s denial o f m otions f

or c o n t i n u a n c e or m istrial. See Payton v. State , 8 97 So. 2d 921, 942 (Miss. 2 003) (decisions on Rule 9.04 and m otions f or continuance are within t he trial court’s discretion); see also Hurst v. State , 195 So. 3d 736, 744 (Miss. 2016) (decisions on m otions
f or m istrial are within the trial court’s discretion). ¶16. Under Rule 9.04(I), if the State at t e m p t s t o i n t r o d u c e p r eviously undisclosed evidence, the d ef ense m ay object and be af f orded an opportunity to exam ine the evidence o r interview the witness. URCCC 9.04(I). If , af t er exam ination o r interview, the def ense claim s unf

air surprise or p rejudice, the j udge m ay eith e r e x c l u de t he evidence or g rant a continuance or

m istrial. Id

. ¶17. Mouton’s counsel adm itted he had received Auge’s ten-page fo r e n s i c r e p o r t

— a report
t h a t specif

ically d iagram s a nd pinpoints the three distinct tears to N.B.’s anus. Def ens e counsel also acknowledged h e had received photographs of the t ears. And he adm itted receiving a l etter f

rom the State, d isclosing that Auge would testif y that the child’s injuries

were consistent with sexual assault. Def e n se c ounsel also acknowledged he “i n t e r v i ewed [ Auge] on at least one occasion” bef ore trial.

6¶18. The record shows the trial j udge caref ully considered M outon’s a r gum ent, f inding no

me r i t to t he bulk o f it. W hile she f ound no discovery violation, the judge still em plo y e d a “m odif ied Box procedure” by

granting Mouton a brief

continuance. See Box v. State , 437
So. 2 d 19 (Miss. 1983). T he judge recessed court f or t h e d a y a n d M o u ton was allowed additional tim e to interview A uge. And ultim ately , Auge’s testim ony was lim ited. Because Auge had not exam i ned N.B. internally , the judge restricted her f rom testif y ing about internal injuries. But, given the State’s discovery and disclosures to Mouton, and t he additional t im e to question the expert, Auge was allowed to continue her expert testim ony . ¶19. Af ter review, we f

ind no abuse o f d i s c r e t ion in the judge’s handling of the claim ed discovery violation. From the S tate’s discovery —which Mouton adm itted receiving—it was clear Auge would testif

y that the anal tears d epicted in the photographs and f orensic reports

were consistent w ith s exual a ssault. A n d the judge was thoughtf ul i n her evidentiary analy sis, c raf

ting an approach that granted Mouton’s request f or additional t im e to question Auge, and ultim ately lim iting t he e xpert’s testim ony to only external injuries. 7 The judge did

not abuse her discretion in deny ing a m istrial and allowing Auge to give her opinion about

7 Even if Auge’s use of the word “V-shaped” violated R ule 9.04, its m ention was at m ost harm less. W e m a y not reverse based on a judge’s h a ndling of a claim e d Rule 9.04 violation “unless i t af

f i rm ativel y a p p e a rs f

rom the r ecord that the violation caused a m iscarriage of

justice.” Ben v. State , 95 So. 3d 1236, 1249 (Miss. 2012) (quoting Payton , 897 S o . 2 d at 9 4 2); see also Hurst v. State , 195 So. 3d 736, 744 (Miss. 2 016) (“even in a total f ailure to adhere to Rule 9.04 by the trial court, that f ailure m u st still p rejudice the party t o c onstitute reversible error”) (citations om itted). Auge’s disclosed opinion w as and st i l l rem ained that N.B.’s anal i njuries were c o nsistent with sexual a ssault. A n d t h e r e w as testim o n y f

ro m N .B .’s m o th er an d th e B ilo x i p o lice o f f icer d isp atch ed to in v e stig ate N .B .’s sex u al assau lt, w h ich co rro b o rated N .B .’s statem en t th at M o u t o n h ad “b een p lay in g w ith h is b u tt an d w ien er.” 7the cause of the child’s external injuries.
II. Sharplin Instruction ¶20. Mouton next argues the trial judge’s S h a r p l i n i n s t r u c t i o n w a s i mp r o p e r a n d prejudicial. Mouton claim s that because the jury ’s note indicated the num erical split am ong jurors—“8 - 3 guilty ”—the judge’s Sharplin instruction was designed t o i nf luence the jury ’s decision. ¶21. W e have a

pproved using a Sharplin ins t r u c t i o n w h e n a jury say s it cannot reach a unanim ous v erdict. See Powell v . State , 58 So. 3d 55, 57-58 (Miss. 2011); s ee also Tyler v. State , 19 So. 3d 6 6 3, 6 67-68 (Miss. 2009). But given “the possibility of coercion,” t his Court takes note of a trial judge’s “conduct and com m ents af ter he receives the [

jury ’s] d ivision[ .]” Sharplin , 330 So. 2d at 596. It is reversible e rror f o r a t r ial judge to attem

pt “to f orce a verdict by suggestive or c oercive m easures.” Lafayette v. State , 90 So. 3d 1215, 1219 (Miss. 2012) (quoting I

som v. State , 481 So. 2d 820, 8 22 ( Miss. 1985 ) )

. T h e q u e s t ion we ask is “whether the judge m erely af f o r d[ ed] the jury

additional tim e to deliberate or [ whether] he

attem pt[ ed] to f

orce a verdict . . . .” Sharplin , 330 So. 2d at 596. ¶22. Here, the judge’s Sharplin instruction w a s e ssentially verbatim f rom our approved language, the one exception being the f i nal s entence. 8 T h i s last sentence sim ply stated:

8 T h e in stru ctio n ap p r o v ed b y th is C o u rt states:
I k n o w t h a t it is p o ssib le f o r h o n e s t m en an d w o m e n to h av e h o n e st d if f eren t o p in io n s ab o u t th e f acts o f a case, b u t , i f it is p o ssib le to reco n cile y o u r d if f e ren ces o f

o p i n io n an d d e cid e th is case, th en y o u sh o u ld d o so . A cco rd in g ly , I rem in d y o u th at th e co u rt o rig in ally in stru cted y o u th at th e v erd ict o f th e j u ry m

u st rep resen t th e co n sid ered j u d g m en t o f each j u ro r. It is y o u r d u t y as j u r o rs to co n su lt w ith o n e an o th er a n d to d elib erate in v iew 8“Please keep t h is jury instruction with the other jury instructions.” W e also n otice Mouton

did not a cknowledge it was the jury that provided the num e rical d i vision. T his was done without instruction or r equest f rom the trial judge. And the note d id not indicate guilt or innocence as to t he specific counts. See S h arplin , 330 So. 2d at 596 (the m ere request and receipt [ by the trial c ourt] of the jury ’s num erical d i v i s i o n w ithout ref erence t o guilt or innocence does not c oerce the jury and is not error). As su c h , t here is no evidence of coercion or suggestion by the judge in giving the Sharplin instruction.
III. Prosecutorial Misconduct ¶23. M o u t o n ’ s f

i n a l a r g u me nt cites several m om ents at trial he now cl a i ms s h o w prosecutorial m isconduct. He p o i n t s t o his own witness’s statem ents during the State’s crossexam ination, Toni’s d if

f ering testim ony f

rom an earlier police statem ent, and the S tate’s use of Auge’s expert t e s t i mo ny . Mouton suggests t hese exam ples, both individually and together, warrant a new trial. W e disagree. ¶24. This Court has been clear—“pre s e r v a t i o n o f a n i s s u e f o r a p p e a l r e q u i r e s a
contem poraneous objection at trial.” Roby v. S t a t e , 1 83 S o. 3d 857, 870-71 (Miss. 2016) (quoting Kirk v. State , 160 S o. 3 d 685, 692 (Miss. 2015)). And Mouton’s attem pts to now

o f reach i n g ag reem en t i f y o u c an d o so w ith o u t v io l en ce to y o u r in d iv id u al j u d g me n t. E ach o f y o u m u st d ecid e th e case f

o r y o u rself

, b u t o n ly af

ter an im p artial co n sid eratio n o f th e ev id en ce w ith y o u r f e llo w j u r o rs. In th e c o u rse o f y o u r d e lib eratio n s, d o n o t h esitate to reex am in e y o u r o w n v iew s an d ch an g e y o u r o p in io n i f y o u are co n v in ced it is e rro n eo u s, b u t d o n o t su rren d er y o u r h o n est co n v ictio n s a s to th e w eig h t o r ef f ect o f th e ev id en ce so lely b ecau se o f th e o p in io n o f y o u r f

ello w j u ro rs o r f

o r th e m ere p u rp o se o f retu rn in g a v erd ict. P lease co n tin u e y o u r d elib e r atio n s. S h a rp lin , 3 3 0 S o . 2 d at 5 9 6

. 9f

ram e several unchallenged i ssues as “prosecutorial m isconduct” does not relieve him f rom the r equirem ent to contem p oraneously o bject to preserve p rosecutorial m isconduct issues f or appeal. See Sim m o ns v. State , 805 So. 2d 452, 489-90 (Miss. 2001). ¶25. M o u t o n c alled S hannon, his ex-wif e, to testif y as a def e nse witness. D uring cr o s s exam ination, the State a sked if M outon had visitation rights with their three children and if his visitation was supervised. Shannon answered af f irm atively t o both questions. Mouton

now suggests t he State im properly im

plied his s upervised visitation requirem ent related to the prior abuse allegations, when it knew the condition was required under Mouton’s court bond. 9 This was probably a n area of inquiry the State should have avoided. But Mouton did

not object to the State’s i nquiry

. N or did he try to clarif y the visitation i ssue o n redirect. So this argum ent is waived. ¶26. Shif

ting to Toni’s testim ony , Mouton ar g u e s t h e State im properly “condon[ ed] the change” i n her testim o ny “without warning to the def ense.” He insists the State knew Toni’s trial testim ony

— that she was u naware o f p rior abuse allegations—conf licted with her initial
p o l i ce statem ent. But the judge allowed the def ense to exhaustively im

peach her w i t h h e r prior s tatem ent, which w as adm i tted into e vidence. A nd while M outon c laim s h e was barred
f rom introducing rebuttal testim ony , the witnesses h e previously c hose t o discl o s e t o the State

were designated to testif

y only about Mouton’s c h a r a c t e r. The trial judge noted this and

9 M o u to n claim s th is in f

o r m atio n w as k n o w n o n l y to t h e S t a t e a n d w as d isco v ered d u rin g an in terv iew w ith S h an n o n th at M o u to n ’s co u n sel w as n o t allo w ed to atten d . T h is is u n su p p o r

ted

. F u r th e rm o re, n o th in g in th e reco rd su g g ests M o u to n c o u ld n o t h av e in terv iew ed h i s o w n w itn ess. N o r is it ev id en t M o u to n w a s u n aw are o f t h e t e r ms o f h is release o n b o n d

. 1 0denied his request. Af t erward, Mouton opted not to of f er either character witness. ¶27. Again, Mouton’s counsel m ade no objection based on prosecutorial m isconduct, and we see no obvious prejudicial error on the State’s part. ¶28. Since t his Court h a s already addressed Mout o n ’ s c l a i ms about Auge’s testim ony , f urther discussion is u nnecessary . To the extent Mouton claim s cum u lative error, we are not persuaded. “The cum

ulative e rror d o c t r i ne stem s f rom the d octrine of harm less error, codif i ed under Mississippi Rule of Civil Procedure 61.” Ross v. State , 954 So. 2d 968, 1018 (Miss. 2007). But “prejudicial rulings or events that do n ot e ven r ise to the level o f harm less

error will not be aggregated to f i nd reversible error.” Id

. On review, t he only i ssue that even potentially r ises to the level of harm less e rror involves t h e j u dge’s ruling o n the State’s supposed Rule 9.04 violation. And one potential harm less error does not am ount to

cum ulative error. W hat is m ore, even if this Court were to conduct a cum ulat i v e-error analy sis, we would e xam ine “whether the issue of i nnocence or g uilt is close,” and because
Mouton challenges neither the weight nor the suf f iciency of the evidence, we do not f ind the issue close. Id . So reversal is not proper.
Conclusion ¶29. W e f

i n d n o a b u s e of discretion in the t rial court’s decisions involving the State’s expert t estim ony . Nor do w e f i n d t he t rial court’s Sharplin instruction im proper or prejudicial. And because Mouton f ailed to t im ely o b

ject t o alleged prosecutorial m isconduct, those issues are not properly preserved f or t h i s C o u r t ’ s r eview. W e theref ore af f irm Mouton’s conviction.

1 1¶30. CONVI C T I O N O F S E XU A L B A T T E RY-COUNT I AND SENTENCE OF

TWENTY (20) YEARS IN THE CUSTODY OF THE M ISSISSIPPI DEPARTMENT OF C ORRECTIONS, AFFIRMED. APPELLANT S HALL REGISTER AND RER E G I S T E R A S A S E X OFFENDER. APPELLANT SHALL RECEIV E C R E D I T F O R ANY AND ALL TIME SERVED AS TO THIS CHARGE. WALLER, C.J., DICKINSON AND RANDOLPH, P .JJ., COLEMAN, B E A M A N D C H A M BERLIN, JJ., CONCUR. KITCHENS, J., DISSENTS W I T H S E P A R A T E WRITTEN OPINION JOINED B Y K I N G , J. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J. KITCHENS, JUSTICE, DISSENTING: ¶31. I f ully join the excellent analy sis in Justice King’s dissent and agree that Jesse Frank
Mouton is entitled to a n ew trial because the trial court perm itted the State’s expert to provide opinion testim ony which had not been disclosed to def ense counsel as required by Rule 9.04 of the Unif orm Rules of Circuit and County

Court Practice. ¶32. I w r ite only to observe that this Court has held, in civil cases, that “ n u r s e s c a n n o t testif y as to m edical causation.” V aughn v . M iss. Baptist M

ed . C t r . , 2 0 So. 3d 645, 652 (Miss. 2009). The Court c ontinued that, “[ s ]ince m edical diagnosis is outside a nurse’s scope of practice, logically it w ould f ollow that a nurse shoul d n o t b e p e r m itted to testif y as to his/her diagnostic im

pressions or as to the cause of a particular inf e ctious disease or illness.”
Id. “This is in k e eping with the m ajority rule that nursing e xperts cannot opine a s to m edical causation and are unable to establish the necessary elem ent of

proxim ate cause.” Id. ¶33. Conversely , t his Court a ttem pted to craf

t a distinction i n order to perm it sexual assault

nurse exam iners (SANEs) to testif y that sexual assault injuries are consistent with traum a: “Thom as, a sexual-assault nurse exam i ner, did not testif y as to what caused [ t h e v i c t i m ’s] injuries; h e r testim ony was only that those injuries were consistent with blunt, p enetrating

1 2traum a .” Y

oung v. State , 106 So. 3d 775, 783 (Miss. 2012) (em phasis in original). There, the
Court f ound that “the supervising p hy sician, in this case Dr. Claudette Shepard, m ade a f inal determ ina t i o n a s to ultim ate causation, m e dical diagnosis, and treatm ent.” I d . at 781.
Seem ingly to the contrary , the C ourt then r easo ned that to r equire phy sician supervision would be too r estrictive: “[ t]o restrict SANEs f rom testif y ing a s to sexual a ssault would set

a dangerous precedent, f

orcing supervising phy sicians t o devote m o re o f their valuable t im e to trial work, and m aking it m ore dif f icult f or rape victim s to achieve justice, while f ailing to provide any

usef ul protections to sexual-assault def e n dants.” Id. at 784. ¶34. I c o n curred in part and dissented in p art in Y oung , quoting m y V

aughn d i s s e n t i n support of the m ajority ’s holding that the trial c ourt had n o t erred b y allowing the sexual assault nurse exam iner’s testim o ny : [ T]he issue of whether a particular nurse, by virtue o f his or her knowledge, skill, experience, training or ed u c ation, possesses such ability is better det e r m ined by a case-by -case inquiry than by a broad, “one-size-f i ts-all” judicial p ontif

i c a t i o n t o the ef

f ect that n o nurse in the world will ever be allowed to testif

y as to m edical causation in any Mississippi court case. As is true o f a ny other p rof

ession, the education , experience and understanding of nurses s p a n a b r oad spectrum

. W e s hould not enunciate a hard and f ast rule th a t p e r ma nently f

orecloses the possibility o f any nurse’s being qualif i ed to give expert testim ony on m edical causation i n any and all cases that m ay arise in the f uture.
Y o ung , 106 So. 3d at 790 (Kitchens, J., concurring in part and dissenting in p art) (quoting
V aughn , 20 So. 3d at 657 (Kitchens, J., dissenting)). ¶35. In the p resent case, Nurse Auge opined, as an expert, that the shape and location of the victim ’s injuries indicated that those injuries w ere caused , not by a hard stool exiting the

anus, but rather by som ething entering the anus: “[ t]he tears are indicative of som ething large

1 3penetrating the anal sphincter.”

¶36. I m aintain t hat qualif ied nurses—irrespective of whether they are qualif ied in civil or

c r i mi nal cases—should b e a llowed to testif y to causation. If this Court f orbids a qual i f

i e d

nurse t o testif

y t o c ausation in a civil case in which m ere m oney is at stake, why should a sexual a s sault nurse e xam iner be perm itted to testif y to c ausation in a crim inal case in which the def e n dant’s liberty is at s take and in which t he State is obligated to p rove each elem ent of the crim e bey ond a reasonable doubt? The o nly apparent explanations f or such arbitrary , contradictory rules are, f

irst, the interest of civil def e ndants in p reventing potentially harm f ul causati o n t e stim ony f

rom an otherwise-qualif

ied n urse and, second, the expediency to the
State o f utilizing t h e testim o ny of a qualif ied sexual assault nurse exam i ner i n obtaining a conviction. Such interest-driven distinction is not legitim ate and renders the notion that the Mississippi Rules o f Evidence are applied the sam e in c ivil and crim inal trial a m ere m y th. KING, J., JOINS THIS OPINION. KING, JUSTICE, DISSENTING: ¶37. Because I b elieve that the State essentially conducted a t rial by am bush by f ailing to disclose Auge’s testim o ny about the s hape a n d l o c a tion of the tears, I respectf u lly dissent with the m ajority ’s f

i nding on that issue. ¶38. Pursuant to Unif

orm Rule of C i r c u i t a n d C o u n t y C o u r t P r a c t i c e 9

. 0 4 , “[ t]he prosecution m

ust disclose to each d e f

e n dant or to d ef

endant’s attorney

. . . any reports,
statem ents, or opinions of experts, written , r ecorded o r otherwise preserved, m ade in connection with the particular case and the s ubstance o f any oral statem e n t m ade by any such

1 4expert

. . . .” URCCC 9.04(A)(4). 10 The p urpose of Rule 9.04 is t o “ avoid unf air surprise to either the state or def

endant a t t rial.” Ram os v. S tate , 7 10 So. 2d 380, 386 (Miss. 1998). “[ W ]e have held that the duty to m ake discovery extends to unwritten statem e n ts and reports

as w ell.” West v. S

tate , 553 So. 2d 8, 17 (Miss. 1989). Theref ore, pursuant to R

ule 9.04, the prosecution must disclose any e xpert opinions and the substance of the opinion of

any oral

statem e n t ma d e by any such expert. I believe t hat the prosecution’s f ailure to disclose that its expert would testif

y about the v-shape of

the tear, that the tear was an anterior tear, and that the tear had been partially internal was highly

prejudicial to the def

ense. ¶39. F i r s t , t

h e prosecution p rovided to the def ense a statem ent that Auge’s testim ony wo u l d include t hat the injuries sustained were consistent with the history presented. T hat statem ent

w a s vague and g ave no indication that A uge w ould t estif y a s to the V-shape of o n e o f t h e
tears or of its i m

plications. Auge’s te n - p a g e me d i cal report also d id n ot c o ntain any ref eren c e s concerning the shape of the anal t ears or ref erences to internal injuries or the
im p l i c a tions thereof

. Had the def

ense been inf

orm ed of Auge’s opinions prior to trial, it would have had the opportunity to prepare an ef f ective cross-exam i nation and to present its own evidence in rebuttal. 11

10 R u le 9 .0 4 f o rm erly w as U n if

o rm R u le o f C rim in al C o u rt P ractice R u l e 4 .0 6

. 11 T h e m a j o rity asserts t h a t th e trial co u r t h ad ex am in ed an d f

o u n d th at th e S tate’s ex h ib its h ad c learly sh o w n “N .B

. ’s an u s an d t h e ‘V

- sh ap ed ’ tear.” T h e ma j o r ity m isstates th e trial c o u r

t

. D u rin g arg u m en t o n t h e o b j ectio n , th e trial co u rt ask e d A u g e w h ich p h o to g rap h s d ep icted th e v -sh a p ed tears. T h e trial co u rt said , “ W i th t h at th en clearly d ep icted i n th e p h o to g rap h s so sh e can clearly t estif i e d i t w a sn ’t in th e o p in io n w h at th e sh ap e o f it w as. . . .” T h e trial co u rt w en t o n to say , “ I’v e a lread y ru led o n th e v . It’s in th e p h o to g rap h s, it’s th e re. Y o u can call it w h atev er sh ap e y o u w an t t o . S h e can call it w h atev er sh ap e sh e w an ts to . T h at’s a m atter th at th e j u ry w ill d e cid e if a V , a W, an X , w h atev er it 1 5¶40. T h e p r o s e c u t ion’s f ailure to disclose Auge’s testim ony and its allowing Auge to testi fy repeatedly o n t h e undisclosed opinions c aused a m i scarriage of justice. Auge testif ied extensively

about the shape and position of the tears:

• I n oted f

o ur specif ic injuries. One was a tear a t 12 o’clock, again t hat was v-shaped . . .

• The tears, the anal tears, there is – the m ajor r eason f or an anal tear is actually a l arge hard stool that is p assed

. . . . U s ually those

– 99 percent of those t ears are posterior. They go toward the back side. So on the anus it would go toward the backside. Ninety -nine percent of all cases are o f a nal tears due to constipation is a posterior tear. You c a n have an anterior tear as well, but again 99 percent are posterior.

• [ Posterior tears are] [ b]ehind in the backside of the anus. That piece of tissue r eceives l ess vascular ci r c u l ation. S o that part i s the one t hat generally tears as posterior.

• He h a d three a nal tears. One was a t 1 2 o’clock a gain based on the clock. That was a v-shape tear.

• The v-shape tear was wide toward the outer aspect of the anus and went in toward t h e i n n er aspect of t he anus w ith traction a n d dilatation, which is just the s lightness of the anus. I was unable to see the end of the tear. So it went inside where the anus was dilated.

• As y ou can see this – if y ou’re not u pclose and looking at it it’s dif f icult to s ee. But up here is the v-shape tear. It starts here a nd i t goes here, and it goes into the anal vault.

• Th e v - s h a p e t e a r is at 12 o’clock

. . . . There is a l arge tear to the posterior area, which again f or certain aspects y ou would expect that. An anterior tear is not necessarily som ething that I would expect.

m ig h t lo o k lik e to th em .” T h e trial co u rt d id n o t state t h a t t h e p h o t o g r ap h s clearly d ep icted a V -sh ap e, o n ly t h a t th e p h o to g rap h s d ep icted a t ear an d it w as u p to th e j u ry to d ecid e w h eth er it lo o k ed lik e a V

- sh a p e to th em . I n ad d itio n , w h eth e r th e p h o to g rap h s d ep ict a V

sh ap e is a seco n d ary issu e. T h e p rim ary issu e is th at A u g e w as d irectly ask ed to d isclo se all o p in i o n s b ef

o re trial. A u g e c learly f

ailed to d isclo se, o r to ev en m en tio n , an y o p i n io n s at all o n th e s h ap e o f th e tear an d th e im p licatio n s th ereo f

. 1 6• This right h ere w ith the b lue dy e it allows us to s ee injuries a lot clearer. A n d i f y o u l ook right here this area h ere, it s tarts here and i t is a v shape tear that g oes toward the rectum

. Aga i n e v e n with dilatation I was unable to see the very end of that tear.

• Like – I don’t know – previously I’ve st a t e d that just having a large bowel m ovem ent with a rectal tear generally in the posterior area adults com e into the em ergency room with that pain.

• Individually , individually each tear certainly could be caused , o t her than the v-shape tear, by a large stool com ing out. Collectively , no, sir.

• Again t he v-sh a p e tear is just s ignif icant o f an outside f

orce going in toward the anus. So there would have to be a rational reason, and again that would com e f

r o m y o u r h istory as to why that particular tear was there.

• [ Let m e ask y ou. You’re say ing that y ou got the outside – that y ou think that the v-shape indicates an outside f orce, right? ] Absolutely

. ¶41. Auge was t he only expert witness called at trial and her testim ony arguably was the

m ost convincing evidence that the prosecution produced. Thus, her opinion that one of the

tears was in a V-shape and that this particular s hape indicated that there had been an outside
f orce g oing into the anus, w a s e xtrem ely prejudicial to the def ense. Out of the f

our counts with w hich Mouton had been charged, the jury convicted only o n Count I - Sexual Battery : sexual penetration by inserting his f inger into the anus o f N.B. Auge’s testim ony that the Vshaped tear indicated that som ething was going into the anus instead of a large stool going

out of the anus directly w as c orrelated with C ount I

. T h i s , c o u pled with the jury ’s initial deadlock in convicting Mouton, indic ates t hat Auge’s testim ony on the V-shaped tear and the posterior/anterior location of the tear was e x t r e mely prejudicial to the def ense and
im p ortant to the jury

. As t his Court has em phasized, “ [

j ] u s t ice is better served when the

1 7accused knows ‘reasonably well in advance of t rial what the prosecution will try to p rove and

how it w ill a t tem

pt to m ake its proof

. . . .’” D ensm ore v

. State , 27 So. 3 d 379, 382 (Miss. 2009). Accordingly , I believe t hat the prosecution’s f ailure to notif

y the accused in advance of trial of the opinions of

its expert was reversible error. ¶42. The clear language of R ule 9.04 s t a t e s that any expert opinions m ust be disclosed.
Mere disclosure of the location of anal tears does not f ulf i ll the rule’s requirem ent to disclose
any expert opinions. In a trial in w hich the def endant is accused of sexual battery , a blanket disclosure that Auge would testif y that the injuries were consistent with s exual abuse does

not suf f i ce. That in no way put Mouton on notice o f Auge’s opinions about t he shape of the anal te a r s o r o f her opinion that the particular shape indicated t he tear was caused by an outside f orce. Mouton had prepared a def ense that the tears had been caused by constipation. Had Auge’s opinion that the s pecif ic “V-shape” of t he tear indicated it was caused by an outside f o rce been disclosed, Mouton would have had a n opportunity to am end his def ense. ¶43. N.B.’s m other potentially had known of sim ilar accusations a gainst Mouton that, af ter

an investigation, were f

ound to be without e vidence and were dropped. In her own statem ent
to the police, she asserted that, “[ a]f ter I picked up m

y son [ N.B.] and daughter [ A.B.], [ N.B.] start [ sic] to com

plain about his butt. I asked him has a ny one m essed with him i n his areas

. . . .” N.B. was t hree y ears old a t that tim e and Auge adm i tted that a child that y oung could hear som eone ask questions about a situation and the child w ould think that it had happened

to him even though it did n ot. At the tim e o f trial, N

. B. could not rem em ber m ost of what,
if any thing, had h a

ppened that n i ght. Thus, the opinion that N.B.’s anal tears could have been

1 8caused by

constipation were it not f or the V-shape becam e vitally im portant. ¶44. Moreover, Mouton’s attorney stated that he had interviewed A uge at great length and that he had asked her to “tell [ him ] every thing t hat she f

ound and why

and the possibilities associated therewith.” Auge did not disclose her opinions about t he shape of any of the tears, that the tears were anterior as opposed to posterior, or of her opinions on what she believed the shape and location of the tears indicated. T heref ore, despi t e M o u ton’s a ttorney having inquired, Auge either withheld or changed her opinions as to the s hape, location, and

me a n ing of the tears. In either s cenario, Mouton lacked notice o f Auge’s opinions at trial. Hence, I believe a new trial giving Mouton an opportunity to p repare an ef f ective def ense is the appropriate rem edy

f or the discovery

violation. ¶45. I subm it that the prosecution’s f ailure to disclose Auge’s opinions violated Rule 9.04, unf airly surprised the def

ense, and constituted a m iscarriage of justice. A ccordingly , I dissent and would reverse the judgm ent and rem and f or a new trial. KITCHENS, J., JOINS THIS OPINION.

1 9