IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-00781-COA CARY DOWDEN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/16/2015 TRIAL JUDGE: HON. VERNON R. COTTEN COURT FROM W HICH APPEALED: NEW TON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: EDMUND J. PHILLIPS JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: MARK SHELDON DUNCAN NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF FOUR COUNTS OF SEXUAL BATTERY AND SENTENCED TO FOUR CONSECUTIVE TERMS OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS W I THOUT THE POSSIBILITY OF PAROLE OR EARLY RELEASE DISPOSITION: AFFIRMED – 11/08/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND ISHEE, JJ. ISHEE, J., FOR THE COURT: ¶1. A jury sitting b ef

ore t he N ewton County Circuit Court f ound Cary Dowden guilty of f our counts of sexual battery of a child y ounger than f ourteen y ears old. The circuit court sentenced Dowden to f

o ur consecutive lif

e sentences in the custody of the Mi s s i s s ippi Departm ent of Corrections without the possibility o f p arole or early release. Dowden appeals and raises the f

ollowing issues: (1) the circuit court err e d w h e n i t r estricted his cross-exam ination of the victim regarding alleged p rior inappropriate touching by other people; (2)

the circuit court erred w hen it excluded testim ony that Dowden had passed a drug test; (3) he received inef

f ective assistance f

rom his trial counsel; (4) Count I o f the indictm ent was f atally d ef ective; (5) t here was insuf f i cient e v idence f

or the j ury to f

ind him guilty of Count I; and (6) the jury ’s guilty verdict in Count I is contrary to the overwhelm ing weight of the evidence.
FACTS AND PROCEDURAL HISTORY ¶2. As of O ctober 2012 , E l a i n e A d a ms 1 w a s t wenty -three y ears old, hom e less, and struggling with her drug addiction to cry stal m etham phetam ine. She had g iven custody of her six-y ear-old s on, Alex, t o h er s t e pm other, Martha C hastain. Elaine’s d rug dealer introduced her t o D owden, who was f orty -seven y ears old. Dowden allowed Elaine to m ove into his house in Newto n C o u n t y , Mississippi. Elaine later testif i ed that she was to “do whatever h e wanted [ h er] to d o, and [ she] had a p lace to stay and the dope that [ she] wanted.” Dowden disputed that. According to him , he took Elaine i n out of com passion, a n d because he needed her to drive him around. ¶3. Because Elaine had f o und a place to live, Martha decided to allow A lex to visit with Elaine at Dowden’s house f or a weekend during Novem b er 2012. Accom

panied by his seventeen-y ear-old aunt, A m anda Chastain, A lex’s f irst weekend visit with Elaine and Dowden was unrem a rkable, so M a r t h a a l l owed Elaine to have a nother weekend visit with Alex. A m anda also w ent with A lex d u r i n g h i s second weekend visit a t Dowden’s house.

1 T o p ro tect th e v ictim ’s id en tity , w e su b stitu te f ictitio u s n am es f

o r h im an d th e ad u lt f am ily m em b ers asso c iated w ith h im

. 2H o wever, Am a nda did not go with Alex when he v isited with Elaine and D owd e n d u r i n g

February 2013. Because Alex began “acting out r eally , really bad” a f ter that visit, Martha stopped Alex’s weekend visits with Elaine and Dowden. ¶4. Later, Martha was helping Alex get ready to take a shower when he told her that he had a secret, but he r ef

used to elaborate. During March 2013, Alex c onf ided i n Am anda and described sexual a

buse by both Elaine and Dowden. Am anda relay ed Alex’s revelation to Martha. Martha f

i led a report w ith authorities and took Alex to the University of Mississippi Medical Center. Later, Alex underwent at least two f orensic interviews. ¶5. Elaine a n d D o w d en were arrested during A pril 2013. In June 2 014, D owden was indicted a n d charged with f our counts of sexual battery of a child. In Septem ber 2 014, Elaine pleaded guilty to statutory rape and two counts of sexual battery

. The record bef ore us does

not contain Elaine’s sentencin g o r d e r , but she testif ied that she had been sentenced to “[ t]hirty y ears, m a ndatory

. ” She also agreed to t estif y against Dowden, whose trial began on April 14, 2015. ¶6. Ale x w a s n i n e y e a r s o l d a t t h a t t i me . Following a com p etency hearing, the prosecution called Alex a s its f irst witness. T he prosecution also called M artha and Elaine. Alex a nd Elaine described disturbing sexual abuse during Alex’s second weekend v isit, 2 and

a subsequent weekend visit i n February 2013. T aken together and stated in t he least graphic

m anner possible, their testim onies ref lected that Dowden t ied Elaine to a bed, and he anally

2 A lth o u g h A m an d a h a d acco m p an ied A lex d u rin g h is seco n d w eek en d v isit w ith E l ain e an d D o w d en , E lain e testif i ed th at th e sex u al a

b u se o ccu rred a f

t er A m an d a h ad g o n e to b ed w ith a m i g rain e h ead ach e. 3and orally pe n e t r a ted Alex. There was also testim ony that A lex c om plied with D owden’s instructions to p erf

orm oral sex on Elaine, and D o w d e n “guided” Alex through vaginal intercourse with her. 3 Further t estim ony ref lected that Elaine and Dowden both perf orm ed oral sex on Alex, and Alex anally penetrated D owden. Alex testif ied that Dowden told h im

not to tell any one what had happened during the weekend v isits, and he obey e d because he did not want Elaine to go to jail. ¶7. Dowden c hose to testif y . H e denied all of t he allegations against him

. According to Dowden, Alex’s t estim o n y had b een coached. He a lso opined that the charges stem m ed f rom Elaine’s bitterness over the f act that he “was due to get a m illion[ -]dollar settlem ent[ ,] and [ he] ha d a l r e a dy kicked [ Elaine] out two t im es f or various reasons . . . .” As previously

m entioned, the jury f

ound D owden guilty of all f our counts of sexual battery , a nd the circuit court sentenced him

to f o ur consecutive lif

e sentences. Dowden appeals.
LAW AND DISCUSSION
I. Alex ’s Cross-Ex am ination ¶8. Dowden claim s that the circuit c o u r t e r r e d w h e n i t p r ohibited him f r omcrossexam ining Alex regarding alleged pri o r i n s tances of inappropriate touching. More specif ically , Dowden sought to cross-exam ine Alex a bout a s tate me n t he had purportedly given during a f

orensic exam ination, indicating som e f orm of t ouching that i nvolved cousins who were approxim ately the sam e age as him

. During Dowden’s cross-exam ination of Alex,

3 A cco rd in g to E lain e , sh e d id n o t p u t f o r th a stro n g ef

f o rt to s to p th e sex u al ab u se, b ecau se sh e w as a f

raid o f D o w d en , sh e h ad b e en h o m eless b ef o re s h e m o v ed in to h is h o u se, an d h e p ro v id e d h er w i th d ru g s. 4the f

ollowing exchange occurred: Q. Your Aunt told [ Martha] that is what y ou said. D o y o u r em em ber going o ver to t he University Hospital, a big ho s p i t a l i n Jackson af ter that?
A. Yes. Q. And then af

ter that, do y ou rem em

ber talking to a l ady in Jackson about what happened?
A. Yes. Q. Okay . Do y ou rem em ber telling that lady

about y our two cousins?
At that tim e, the prosecution objected on the b asis of r elevancy

. O utside the p resence of the jury and Alex, Dowden’s attorney stated: [ O]n May 2 , 2013, [ Alex] w a s i n terviewed at t he Mississippi Children’s Advocacy Center in By

r am , Mississippi[ ,] about these i ncide n c e s . He was carried over there and[ ,] a ccording t o the statem ent, per [ Martha],

. . . she was stating that [ Elaine]

. . . and

. . . Dowden took a shower, hiding f rom the police and som ethi n g h a d h appened. And that he was questioned by t his l ady and gave no statem ent about

- - he talked about other y oung children that were his age, but h e d idn' t m a ke any statem e n t about [ Elaine] or . . . Dowde n being involved, a nd so, Your Honor, it’s a prior inconsistent statem ent, inconsistent with what he’s testif

y ing here and I think it’s relevant. The prosecution responded:
In tha t i n t e r

v iew he alleges that som e cousins of his touched him inappropriately

. Your Honor, that’s t he portion that I object to. [ Counsel f or Dowden] w ants to get into the f act t hat [ Alex did not] im p licate [ Dowden] in that statem ent, that’s f

ine, but he’s not allowed to talk about other allegations towards other people that were m ade a t this tim e . Y our H onor, it’s not relevant t o what we’re hearing. He can bring it up to t a l k a b o u t h o w [ Alex] didn’t rem em

ber, as f ar as [ Dowden] a nd [ Elaine go], then t hat’s f ine, but we object to

. . . any a llegations that [ Alex] m ade about his cousins and any thing that they did. Upon f urther di s c u s s i o n , the circuit c ourt held t hat Dowden w as prohibited f rom cross5exam ining Alex regarding alleged prior incidents i nvolving im proper s exual touching with people other than Elaine and Dowden. ¶9. Dowden c laim s the circuit court com m itted r eversible e rror. According to Dowden, Martha took Alex to speak w ith a counselor, but Alex did not im plicate Dowden. Instead, Alex said t hat his cousins had touched him inappropriately

. Dowden claim s that Martha then took A lex to talk t o a deputy , but A lex still did not im plicate Dowden, so M artha took Alex

to speak with y et another counselor. Citing Rule 401 of the Mississippi Rules of Evidence,
D o w d e n argues that Alex’s p rior statem ents were relevant and they h ad probative value

. Thus, Dowden concludes that Alex’s prior statem ents were adm issible. Dowden f urther
argues that Alex’s prior statem ents we r e “ n o t p r ohibited under [ Mississippi Rule of Evidence] 412, because it w as not his history of s exual behavior that is of concern[ ,] but his truthf ulness.” ¶10. “The a dm i ssibility of e videnc e r e s t s w i t h i n t h e d iscretion of the trial court, and reversal i s appropriate only w hen a trial court c om m its an abuse of discretion re s u l t i n g i n prejudice to the a ccused.” Irby v. State , 893 So. 2d 1042, 1047 (¶20) (Miss. 2004) (internal citation o m itted). “Irrelevant evidence is not adm issible.” M .R.E. 402. “Evidence is relevant if

. . . it has any t e n d ency to m ake a f a ct m ore or less probable than it would be without the evidence.” M .R.E. 401(a). Furtherm ore, the f act m u st be “ of consequence in determ ining the case.” M.R.E. 401(b). But a trial “court m ay exclude relevant evidence if its probative value is substantially outweighed by a d anger o f

. . . u nf air prejudice, conf

using the issues, m isleading the jury , undue delay , wa s t e of t im e, or needlessly presenting

6cum

ulative evidence.” M.R.E. 403. ¶11. Although Dowden sought to introduce evidence that Alex t old a f orensic interviewer that cousin s a p p r o x i m a tely the s am e age h ad t ouched him i n s om e f orm , there was no evidence t hat Alex described s e xual touching. Alex was six y e ars old w h e n h e d e s cribed

sex ual abuse by E laine and Dowden. Presum ably , he would have been six y ears old or
y ounger wh en whatever touching occurred between him and his cousins. That evidence would n ot have m ade it m ore or less probable that Dowden was guilty of t he charges he f aced. It was within the c ircuit court’s discretion to f i n d t h a t the prejudicial e f f e ct of the testim o ny at issue outweighed its probative value. “As long as the trial court rem ains within the conf ines of t he M ississippi Rules of Evidence, its decision to adm it or exclude evidence will be a ccorded a high degree of de f e r e n c e . ” Towner v. State , 837 So. 2 d 2 21, 226 (¶13) (Miss. Ct. App. 2003). W e f ind no m erit to this issue.
II. Testim ony that Dow den Passed a Drug Test ¶12. Next, D owden claim s the circuit court erred whe n i t s u s t a i n e d t h e prosecution’s objection to his t estim ony that he had p assed a drug test. Earlier, E laine had testif ied that he habitually used drugs. During his di r ect exam i nation, Dowden stated that he “passed the drug test af

t er t hey run over m e with the M[ ack] truck.” T he c ircuit court sustained the prosecution’s unspecif

i ed objection. ¶13. As discussed above, R ule 4 01 provides that r elevant evidence tends t o m ake a f act of
consequence m ore or less probable. T hat Dowden passed a d rug test som etim e prior to the

events at issue did not m ake it m o r e o r l e s s p robable that he was guilty o f the charges he

7f

aced. It could have possibly im peached Elaine’s testim ony that he used drugs, but there is

no evidence that the wreck or the drug test o ccurred while Elai n e was living i n D owden’s hom e. It was within the circuit c ourt’s d iscretion t o sustain the prosecution’s o bjection. As such, we f

ind no m erit to this issue.
III. Assistance of Counsel ¶14. In this issue, Dowden claim s he received i nef f ective assistance f

rom his trial counsel because he did not request the appointm ent of “ a neurologist to assist in planning and presentation of the case” because D o w den had been diagnosed with T ourette’s sy ndrom e. Dowden f urther claim s his trial counsel was inef f ective because h e did not o bject to a portion of M artha’s testim ony indicating that Alex was af raid o f him , or Elaine ’ s testim ony regarding “uncharged bad acts.” ¶15. Rule 22(b) of

the Mississippi Rules of Appellate Procedure provides:
Issues which m ay be raised in post-conviction proceedings m ay also be raised on direct appeal if such issues are based on f acts f ully apparent f

r om the record. W here the appellant is represented by counsel w ho did not represent the appellant at trial, t he f ailure to raise such issues on direct appeal shall const i tute a waiver barring consideration of the issues in post-conviction proceedings. And the Mississippi Suprem e Court has held:
It is unusual f

o r [ an appellate c]ourt to c o nsider a c l a i m of inef f ective assistance of counsel when the claim is m ade on direct appeal. This is because we are lim i ted to the trial court record in our r eview of the claim [ ,] and there is usually insuf

f icient evidence within the r ecord to evaluate the claim

. . . . [ W ]here the record cannot support an inef f ective a ssistance of c o unsel claim on direct appeal, t he a

ppropriate conclusion is to deny r elief , prese r v i n g t he def endant’s right to argue the sam e issue through a petition f or post-conviction relief

. [ An appellate c]ourt will rule on the m erits on the r are occasions where (1) the record af

f irm atively shows inef

f ectivenes s of constitutional

8dim ensions, or (2) the p arties s tipulate that the record is adequate to allow the

appellate court to m ake t he f inding without consideration o f t he f indings of f act of the trial judge.
W ilcher v. State , 863 So. 2d 776, 825 (¶171) (Miss. 2003) (internal c itations and quotations

om itted). ¶16. The r e c o r d d o e s n o t a ffi r m a t i v e l y i n d i c a t e that Dowden received i nef f ective assistance of constitutional dim ensions. Nor have the p arties stipulated t hat the record is adequate to allow us to m ake f

i ndings without considering a trial judge’s f indings of f

act. As a result,

w e decline to address this issue. Thus, we dism iss Dowden’s claim s under this headin g without prejudice to his a bility to raise them in postconviction p roceedings, if he chooses to do so.
IV. Count I of the Indictm ent ¶17. Next, Dowden claim s that Count I o f the indictm ent f ailed to charge him with a crim e. Count I of

the indictm ent charged that Dowden: [ D]id willf

u l ly , unlawf

u lly and f eloniously engage in sexual penetration with [ Alex], at a tim e when [ Alex] was a child under the age of f ourteen (14) y ears, w h e n . . . Dowden was m ore than twenty -f o ur (24) m onths older than

. . . [ Alex], by causing

. . . [ Alex] to insert his p enis into the anal o p e n i n g of

. . . Dowden . . . . Essentially , Dowden argues that it is im possible to be g uilty of sexual battery when he was sexually penetrated b y A lex. Dowden notes that Mississippi Code Annotated se c tion 97-3-95(1)(d) (Rev. 2 0 1 4) provides that “[ a] person i s guilty of sexual battery if he or she
engages i n sexual penetration with

. . . [ a] child under the age of f o urteen ( 14) y ears of age, if the person is twenty -f our (24) or m ore m ont h s o l d e r than the child.” According to

9D o w d e n , “ [t ] h e allegations of this c ount describe penetration of Appellant’s b ody b y [ Alex’s]

. . . p e nis but do not describe p e netration of [ Alex’s] body by Appellant. Thus the allegations of this count do not com

p o rt with or charge a crim e under this statute.” ¶18. Dowden’s reasonin g i s mi s p l a c e d

. S ection 97-3-95(1)(d) d oes not discuss sexual penetration “of

” the v ictim

. The statute crim inalizes sexual penetration “with” t he victim

. “W hether there was penetration ‘of ’ or penetration ‘ with’ [ the v ictim ] i s not an essential elem ent of the crim e and is not relevant.” Henni n g t o n v. State , 702 So. 2 d 4 03, 408 (¶20) (Miss. 1997). Consequently , there is no m erit to this issue.
V. Sufficiency of the Evidence ¶19. Dowden claim s there was insuf f icient evidence to f

ind him guilty o f Count I, because Alex di d n o t t e s t i f

y that Dowden had com m itted the c r im e charged. Count I charged Dowden with “causing [ Alex] to insert his p enis into” Dowden’s anus. W hen asked whether he “ever put [ h is] penis any where on” Dowden, Alex answered, “No.” Dowden reasons that the circuit court erred when i t denied his m o tion f or a judgm ent notwithstanding the verdict (JNOV) related to Count I. ¶20. In reviewing the suf f iciency of the evidence, “the r elevant question is whether, af ter viewing the evidence in t he l ight m ost f avorable to the p rosecution, any rational trier of f act could h ave f

ound the essential elem ents of t he crim e bey ond a reasonable doubt.” Nolan v. State , 61 S o. 3 d 8 87, 893 (¶24) (Miss. 2011) (quoting Bush v. State , 895 So. 2d 836, 843 (¶16) (Miss. 2005)). Al l credible evidence consistent with the def e ndant’s guilt will be accepted as true, together w ith a ll f avorable inf

erences that m ay be r easonably drawn f rom

1 0the evidence. R obinson v. State , 940 So. 2d 235, 2 40 (¶13) (Miss. 2006) (citing McClain v.

State , 625 So. 2d 774, 778 (Miss. 1993)). ¶21. Alex was six y ears old when he visited Elaine at Dowden’s house. Notwithstanding his testim o ny during direct exam ination that he d id n ot put his penis any where on Dowden, he h ad previously testif

ied that he had o rally penetrated D o w d en. And during crossexam ination, he conf

irm ed t hat he did not rem em ber every t hing that had happened. But Elaine t estif

i ed t hat she was tied to the bed while Alex and Dowden “exchanged intercourse.”
W h en asked to clarif

y , Elaine testif

ied that Dowden “entered [ Alex]’s buttock[ ,] and [ Alex] entered [ Dowden’s] buttocks.” Elaine also re s p o n d e d af f irm atively when the prosecution asked h er w hether she “saw [ Alex]’s penis g o into [ D owden]’s anus.” And it was undisputed that Dowden was signif

i cantly m ore tha n twenty -f our m onths older than Alex. Based on Elaine’s testim ony , t here was suf f icient evidence f

o r the jury to f

i n d bey o nd a r easonable doubt that Dowden was g uilty of s exual battery as c harged i n Count I. This issue is without

m erit.
VI. Weight of the Evidence ¶22. Dowden’s argum ent in t his heading i s i d e n t i c a l t o t h e c l a i m that he raised in the previous issue. T hat i s, D ow d e n c l aim s t he jury ’ s verdict in Count I i s contrary to the overwhelm ing weight o f the evidence, because Alex d id not testif y that he anally penetrated Dowden. An appellate court will only disturb a verdict based on the w eight of the evidence “when [ the verdict] is so contrary to the overwhelm i ng weight of the evidence that to allow it to stand would s anction an unconscionable i njustice.” Bush , 895 So. 2d at 844 (¶18). As

1 1we review this issue, we weigh the evidence in the light m ost f avorable to the verdict. Id

. ¶23. For the reasons disc u s s e d i n t h e p r e v i o u s issue, we do n ot f ind that a llowing the verdict in C ount I to stand would sanction an unconscionable injustice. “Factual disputes are properly resolved by a jury and do not m andate a new trial.” Ealey v. State , 158 So. 3d 283, 293 (¶31) (Miss. 2015). This issue has no m erit. ¶24. T H E J U D G M ENT O F THE NEWTON C OUNTY C I R C U I T C O U R T O F CONVICTION OF FOUR COUNTS OF SEX UAL BATTERY AND SENTENCE OF F O U R C O N S E CUTIVE T ERMS OF L I F E I N T H E C U S T O D Y O F T H E M I S S I S S I P P I DEPARTMENT OF CORRECTIONS, WI T H O U T T H E P O S S I B I L I T Y OF PAROLE OR EARLY RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO NEWTON COUNTY. LEE, C .J. , IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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