IN THE SUPREME COURT OF MISSISSIPPI

NO. 93-KA-01164-SCT

BUFORD KEITH CHRISTMAS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: MARCH 15, 1993

TRIAL JUDGE: HON. JAMES E. THOMAS

COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JAMES G. TUCKER, III

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEWITT ALLRED, III

DISTRICT ATTORNEY: HON. CONO CARANNA

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 6/12/97

MOTION FOR REHEARING FILED: 6/27/97

MANDATE ISSUED: 8/19/97

BEFORE PRATHER, C.J., ROBERTS AND MILLS, JJ.

ROBERTS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. Buford Keith Christmas was indicted at the July Term, 1992, in the Circuit Court of Hancock

County, in Cause No. 7594, under Miss. Code Ann. § 97-5-23, for the crime of fondling. The date of

the crime was listed in the indictment as June of 1989. The case went to trial on January 25, 1993,

before the Honorable Kosta N. Vlahos, but the jury was unable to reach a verdict. Judge Vlahos

entered an order of mistrial on January 26, 1993.

¶2. The case went to trial a second time on March 8, 1993, with the jury returning a verdict of guilty

on March 9, 1993. On March 15, 1993, Honorable James E. Thomas, entered judgment and

sentenced Christmas to a term of six years imprisonment. The post-trial motion for j.n.o.v./new trial

was denied on June 4, 1993.

STATEMENT OF THE FACTS
¶3. In May of 1989, Nicole Christenberry and her mother were at a snowball stand at the foot of

State Street, which was a block away from their house in Bay St. Louis, Mississippi. Nicole noticed

Buford Christmas standing behind them and "playing with his zipper and stuff," and she motioned for

her mother "to turn around and look, and she saw him." When Nicole and her mother got into their

car, Nicole told her mother that the guy they saw had been following her. When they got home they

called the sheriff's office. Prior to this, Nicole had seen Christmas in her neighborhood on fifteen or

twenty occasions.

¶4. In early June of 1989, Nicole walked from her house on First Street to get a snowball at the

snowball stand at the end of the block, but the snowball stand was closed. On her way home,

Christmas grabbed Nicole from behind, dragged her into a house, and began kissing and fondling her

as she resisted. He said he would come after her, her parents, and grandmother if she told anyone

about what had transpired. She kicked and screamed and eventually escaped after about five to seven

minutes of struggling with him. At the time of this incident, Nicole was twelve years old.

¶5. In January of 1992, Nicole Christenberry told her parents and the Bay St. Louis Police for the

first time about the incident that occurred in June of 1989. After watching an episode of a soap opera

depicting a woman who had been raped but did not tell the police, Nicole finally told her parents

about the incident involving Buford Christmas. Nicole's mother testified that after seeing this episode

of the soap opera, Nicole went to dance class before telling of her experience. While at dance class,

the instructor called Nicole's parents to inform them that Nicole was upset. Her father brought Nicole

home, whereupon Nicole told of the incident with Christmas.

¶6. Lee Haden testified that his mother owned the house where Nicole alleged the crime took place.

The house had been subdivided into apartments. Haden lived in one apartment, and Ernest Saucier

lived in the other. Christmas testified that he and Saucier were somehow related. Haden had

previously seen Christmas visiting at Saucier's, waiting on the porch, and riding in and driving

Saucier's yellow convertible.

¶7. Christmas denied having any contact with the child. He acknowledged visiting Saucier several

times, but denied driving Saucier's car. Christmas's mother and grandmother testified that he drove

his father's Cadillac or his grandmother's Pontiac during that period.

¶8. Defense counsel at both trials urged that the defendant was entitled to an acquittal because the

statute of limitations had expired. The motion was overruled both times. The trial court granted

Instruction S-1 over the defendant's objection. Christmas pointed out that the State failed to require

the jury to make a finding that the prosecution was begun within the two year statute of limitations.

¶9. Defense counsel alleges on appeal the prosecutor had a propensity to undermine the import of the

phrase "beyond a reasonable doubt." First, he sought a ruling to prevent the prosecutor from saying

that it simply boiled down to whether the jury believed the defendant or the State's witnesses. The

judge overruled this request.

¶10. Through Instruction D-2 the defense counsel sought to inform the jury "that to be convinced

beyond a reasonable doubt, you must be convinced with utmost certainty." This instruction was

refused.
¶11. Buford Christmas was convicted and sentenced to serve six years imprisonment in the

Mississippi Department of Corrections. Aggrieved, Christmas appeals to this Court raising the

following issues:

I. WHETHER PROSECUTION UNDER AN AMENDMENT TO THE STATUTE OF

LIMITATIONS EXTENDING THE LIMITATION PERIOD IN EFFECT AT THE

TIME OF THE CRIME IS AN EX POST FACTO VIOLATION.

II. WHETHER THE COURT ERRED BY ALLOWING THE PROSECUTION TO

ARGUE THE CASE COULD BE DECIDED BY A LESSENED BURDEN OF PROOF.

DISCUSSION OF THE ISSUES

I. WHETHER PROSECUTION UNDER AN AMENDMENT TO THE STATUTE OF

LIMITATIONS EXTENDING THE LIMITATION PERIOD IN EFFECT AT THE

TIME OF THE CRIME IS AN EX POST FACTO VIOLATION.

¶12. The crime was committed in June of 1989. At the time the crime occurred, the applicable statute

of limitations was two years under Miss. Code Ann. § 99-1-5(1), for the crime of fondling(2), Miss.

Code Ann. § 97-5-23. On April 21, 1989, an act was approved by the legislature to take effect on

July 1, 1989, amending Miss. Code Ann. § 99-1-5 to provide a seven-year period of limitations in

which to commence a prosecution for the crime of fondling.(3)

¶13. During the first trial, Christmas raised the statute of limitations as a ground for his motion for

directed verdict. This was denied by Judge Vlahos. At the second trial, Judge Thomas, treating the

motion as a motion to dismiss, concurred in Judge Vlahos's earlier ruling and denied the renewed

motion.

¶14. Christmas argues that his prosecution should have been time barred under the statute of

limitations in effect at the time of the crime. He committed the crime in June of 1989. His prosecution

did not commence until, at the earliest, January of 1992. This was more than the original two year

limitation period.

¶15. Christmas contends that his prosecution under the revised seven year statute of limitations was a

violation of the ex post facto clauses as proscribed in both the state and federal constitutions.(4)

Christmas states there are four types of laws that are considered ex post facto. They are defined as

follows:

1) Every law that makes an action done before the passing of the law, and which was innocent

when done, criminal, and punishes such action.

2) Every law that aggravates a crime, or makes it greater that it was when committed.

3) Every law that changes the punishment, and inflicts a greater punishment than the law

annexed to the crime when committed.

4) Every law that alters the legal rules of evidence, and receives less, or different, testimony,

than the law required at the time of the commission of the offense in order to convict the
offender.

Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).

¶16. He asserts that the fourth type is applicable to this case.

¶17. The State disagrees. As of July 1, 1989, the effective date of the amendment to Miss. Code Ann.

§ 99-1-5, prosecution for the crime, which took place in June of 1989, had not become time barred

by the two-year statute of limitations then in effect. Therefore, according to the State, it could have

prosecuted Christmas at any time within the newly established period.(5)

¶18. Had the lower court applied the statute of limitations in effect at the time the crime was

committed, Christmas contends his prosecution, which began more than two years after the crime,

would have been time barred. The State prosecuted Christmas within the amended statute of

limitations. Christmas complains such retroactive application of a subsequently amended statute of

limitations is a violation of the ex post facto clause. "It is axiomatic that statutes of limitations may

not be made retroactive to the prejudice of a party." Perkins v. State, 487 So. 2d 791, 792 (Miss.

1986).

¶19. Although the prosecution of Buford Christmas was timely under the amended statute of

limitations in Miss. Code Ann. § 99-1-5 (1985), the limitations period did not become effective until

subsequent to the commission of the crime. There are two theories why the prosecution was not a

violation of the ex post facto clauses. Each provide the Court with adequate authority to affirm the

decision by the lower court.

1. Procedural v. Substantive

¶20. Where there is a state constitutional entitlement to some due process right, the State may not

enact legislation to impede that right under ex post facto analysis. Hill v. State, 659 So. 2d 547, 551

(Miss. 1994) citing Johnston v. State, 618 So. 2d 90, 95 (Miss. 1993) (holding ex post facto

prohibitions bar retroactive applications of statutory law unless the changes are "procedural and

ameliorative."). In Conerly v. State, this Court analyzed criminal statutes of limitations and

determined their purpose to be much like the purpose behind the right to a speedy trial, which is to

avoid the bringing of stale criminal charges. Conerly v. State, 607 So. 2d 1153, 1157 (Miss. 1992).

In its analysis, the Court reviewed 22 C.J.S. Criminal Law § 196 at 240-41 (1989), and found the

following:

Protection from prosecution under a statute of limitations is a substantive right. Under some,

but not all, authorities, the limitation so fixed is jurisdictional, and the time within which the

offense is committed is a jurisdictional fact, it being necessary that the indictment or information

be actually filed within the time prescribed. Under such statutes a substantive statute of

limitation question is properly raised at any time.

Conerly, 607 So. 2d at 1157.

¶21. The Court then looked at several state courts that have treated the statute of limitations in a

criminal case as jurisdictional and nonwaivable. Id. (internal citations omitted). This Court

determined the better rule to be that in a criminal case statutes of limitations are not jurisdictional, but
an affirmative defense that may be waived. Id.

¶22. The Court rejected the viewpoint that criminal statutes of limitation are jurisdictional and

nonwaivable. Therefore, the reasonable conclusion is that criminal statutes of limitation do not carry

with them a substantive right in Mississippi. This is inferred from the Court's analysis of Conerly.

However, this Court specifically addressed this question in an earlier case as the district court noted

in Morningstar v. General Motors, Corp., 847 F. Supp. 489 (S.D. Miss. 1994), aff'd, 36 F.3d 89

(5th Cir. 1994):

Mississippi follows the traditional rule that a statute of limitation is deemed "procedural" rather

than "substantive." Williams v. Taylor Machinery, Inc., 529 So. 2d 606, 609 (Miss. 1988).

However, a well-established exception exists where a particular state's limitations period is

considered to be part of its substantive law because the limitations period is "built in" or "in the

same enactment" as the statute which creates the right of action. See e.g., Siroonian v.

Textron, Inc., 844 F.2d 289, 292 (5th Cir. 1988) (holding that in a wrongful death action

brought in Mississippi court pursuant to diversity jurisdiction and applying Kentucky

substantive law, Kentucky's statute of limitations is considered substantive and thus governed

the case).

Id. at 491.

¶23. The statute that creates the right of action against a defendant for "touching or handling a child

for lustful purposes" is Miss. Code § 97-5-23. The statute that enumerates the limitations period

within which the action must be brought is Miss. Code § 99-1-5.(6) These are two separate acts. This

statute of limitation was procedural. It did not fit within the exception espoused by the Fifth Circuit

as discussed in Morningstar, because the limitations period was not "built in" or "in the same

enactment" as the statute which creates the right of action." Id. Thus, in keeping with Johnston,

there is no ex post facto prohibition or bar to this retroactive application of statutory limitations

period where the change is merely procedural. Johnston, 618 So. 2d at 95.

2. Excluded From Ex Post Facto Doctrine

¶24. The United States Supreme Court has interpreted Article I, § 9, of the United States

Constitution to forbid the enactment of

any statute which punishes as a crime an act previously committed, which was innocent when

done; which makes more burdensome the punishment for a crime, after its commission, or

which deprives one charged with crime of any defense available according to law at the time the

act was committed. . ..

Puckett v. Abels, 684 So. 2d 671, 673 (Miss. 1996) (citing Beazell v. Ohio, 269 U.S. 167 (1925)).

¶25. The Supreme Court, keeping with its original understanding, held the Ex Post Facto Clause

"was aimed at laws that 'retroactively alter the definition of crimes or increase the punishment for

criminal acts .'" California Dept. of Corrections v. Morales, 115 S. Ct. 1597, 1601 (1995) (quoting

Collins v. Youngblood, 497 U.S. 37 (1990)).

¶26. The extension of the limitations period in no way altered the definition of the crime with which
Christmas was charged. The jury found Christmas had committed acts which were against the law at

the time of their commission. The new limitations period had no effect on the punishment imposed

for the crime. Lastly, because Christmas could not raise the expiration of the statute of limitations at

the time he committed the crime as a defense or excuse to his crime, he cannot be deprived of that

defense by the extension of the limitations period.

¶27. "'[A]n ex post facto law is one which, in its operation, makes that criminal which was not so at

the time the action was performed; or which increases the punishment, or, in short, which, in relation

to the offence or its consequences, alters the situation of a party to his disadvantage.'" Collins,

497 U. S. at 48; quoting Kring v. Missouri, 107 U.S. 221 (1883) (emphasis added).

¶28. However, in Collins the Court determined that this did not keep with the original meaning of the

Ex Post Facto Clause.

The holding in Kring can only be justified if the Ex Post Facto Clause is thought to include not

merely the Calder categories, but any change which "alters the situation of a party to his

disadvantage." We think such a reading of the Clause departs from the meaning of the Clause as

it was understood at the time of the adoption of the Constitution, and is not supported by later

cases. We accordingly overrule Kring.

Collins, 497 U.S. at 50.

¶29. In Puckett, this Court adopted the new rationale of the United States Supreme Court where it

quoted from the Morales decision stating "the Clause is aimed at laws that retroactively alter the

definition of the crimes or increase the punishment of criminal acts." Puckett, 684 So. 2d at 673 (

quoting Morales, 115 S. Ct. at 1601).

¶30. The Fifth Circuit has answered this specific question in United States v. Brechtel, 997 F.2d

1108, 1112-13 (5th Cir. 1991). In that case bank officers were convicted of improper participation in

bank transactions. They were prosecuted under an amended statute of limitations that applied to

offenses committed before the original limitations period had not expired. Brechtel asserted that his

prosecution under the amended statute of limitations was violative of the Ex Post Facto Clause of

Article I, § 9, cl. 3 of the United States Constitution. Id.

¶31. The Fifth Circuit answered the question of whether this violated the Ex Post Facto Clause in the

negative.

This argument misperceives the law. Recent Supreme Court teachings reject the proposition

that retroactive legislation violates the ex post facto clause merely because it adversely affects

the position of criminal defendants. Rather, that clause prohibits only enactment of statutes

which: (1) punish as a crime an act previously committed which was innocent when done; (2)

make more burdensome the punishment for a crime, after its commission; or (3) deprive one

charged with a crime of any defense available according to law at the time when the act was

committed. Only statutes withdrawing defenses related to the definition of the crime, or to the

matters which a defendant might plead as justification or excuse fall within the latter group.

Plainly, extension of the limitations period neither criminalizes previously innocent conduct, nor

enhances punishment for an existing crime.
Brechtel, 997 F.2d at 1113.

¶32. This Court in Merritt v. State, 517 So. 2d 517, 521 (Miss. 1987), expressed its concerns of

retroactive application of laws. Justice Robertson wrote:

[W]e have said all too often there is a built in presumption of retroactivity in our judicial

lawmaking efforts. Hall v. Hilburn, 466 So. 2d 856, 876 (Miss. 1985). We worry most about

that presumption in cases where a party may in good faith have relied upon a preexisting state

of the law. It goes without saying that we have no obligation to honor the claim of a murderer

that he planned and executed the killing of his child in reliance upon the then rule that his wife

would not be competent as a witness against him.

Id.

¶33. Christmas cannot come before this Court and argue in good faith that he, in deciding to fondle

the victim, relied upon the two-year statute of limitations in effect in June of 1989 as an excuse or

justification for his criminal actions. Because we are bound to follow the rule in Merritt, this Court

has no obligation to honor the claims of Christmas.

¶34. Buford Christmas was not prosecuted under a new law that made his acts of June 1989 criminal.

They were criminal at the time of their commission. Also, Christmas was not subjected to a longer

punishment by the prosecution under the lengthier limitations period than he would have been had he

been prosecuted under the original statute of limitations. Therefore, we conclude the prosecution of

Buford Christmas did not violate the Ex Post Facto Clause. His argument is without merit, and the

decision by the trial judge to allow the prosecution to take place under the amended statute of

limitations is affirmed.

¶35. Christmas asserts that the prosecution was required to show an offense within the period of

limitations. "The prosecution also has the burden of proving that the offense was committed after the

passage of the statute or ordinance providing for its punishment, and that it was committed within the

statutory period of limitations, and if this is not done a conviction will be reversed." Hatton v. State,

46 So. 708, 709 (Miss. 1908). Christmas then cites Strong v. State, 23 So. 2d 750, 751 (Miss. 1945),

for the proposition: where evidence is in dispute as to whether the prosecution was begun timely, that

factual dispute must be decided by the jury as part of its general verdict.

¶36. Christmas misinterprets the holdings of the two cases. In Strong there was a dispute as to when

the actual crime took place. The prosecution contended the crime took place during December, 1942,

which would have been within the limitations period. The defendants argued the acts occurred in July

of 1942, which was outside of the limitations period. We are of the opinion that Strong stands for the

proposition that where there is dispute as to when a criminal act occurs, the prosecution must prove

it took place within the limitations period.

¶37. In the case sub judice, there is no dispute that the criminal act took place in June of 1989. It was

not a question for the jury to decide as to when the crime occurred. Whether a criminal act that,

without question, occurred in June of 1989 was prosecutable under the applicable limitations period

was a question of law for the judge to determine. The judge made this determination by stating:
The two year [sic] was extended to five years before the two year [sic] had expired, two-year

statute of limitation had expired, and I think that still puts him in the situation of being able to

be prosecuted by the State based on the authority that has been submitted to me.

This Court holds that the application of the extended limitations period was a question for law for the

judge to determine. He correctly ruled that the prosecution could go forward, and his decision is

affirmed.

II. WHETHER THE COURT ERRED BY ALLOWING THE PROSECUTION TO

ARGUE THE CASE COULD BE DECIDED BY A LESSENED BURDEN OF PROOF.

¶38. During the first trial the State argued, in effect, that this was a simple case for the jury to decide,

turning on whether the jury believed the witnesses for the State or the witnesses for the defense. At

the second trial before arguments began, Christmas made a motion in limine for the court to exclude

a similar type argument from the State. Christmas contended that such an argument tends to demean

the State's burden of proof and persuade the jury that the standard is something less than beyond a

reasonable doubt.

¶39. The trial court overruled the defendant's motion in limine. During closing argument the State

made the following statements.

Gentlemen, this is not really a complicated case. What this case comes down to is if you believe

what this defendant said when he took the witness stand, then the State has failed to prove its

case and you should turn him loose. But on the other hand, if you believe what Nicole

Christenberry and Diane Christenberry and Lee Haden have said from that witness stand, then

the State has proved its case and your obligation is to find him guilty.

Christmas contends that the above argument by the State urged a verdict upon a degree of persuasion

as low as a mere preponderance of the evidence. He concedes that the term "reasonable doubt" did

appear in some instructions, but asserts the prosecutor was able to demean it with the above

argument. Although the statements by the State would have been prohibited as jury instructions, they

were permissible in closing argument.

Assuming, but not deciding, its use was tantamount to an attempt to define the term

"reasonable doubt," we have held. . .that distinctions between reasonable doubt, all possible

doubt, beyond a shadow of a doubt, and the like, while, not properly the subject of jury

instructions, are permissible during trial counsel's closing argument.

Heidelberg v. State, 584 So. 2d 393, 396 (Miss. 1991).

¶40. Christmas then complains that Instruction D-2(7) was improperly refused. That instruction was

taken from In Re Winship, 397 U.S. 358, 364 (1970), where the Supreme Court wrote, "It is also

important in our free society that every individual going about his ordinary affairs have confidence

that his government cannot adjudge him guilty of a criminal offense without convincing a proper fact

finder of his guilt with utmost certainty." Christmas asserts the Supreme Court viewed "reasonable

doubt" as meaning "with utmost certainty." According to Christmas, Instruction D-2 was the correct

statement of law.
¶41. This Court does not review jury instructions in isolation; rather, they are read as a whole to

determine if the jury was properly instructed. Peoples Bank and Trust Co. v. Cermack, 658 So. 2d

1352, 1356 (Miss. 1995). "[A]n instructional error will not warrant reversal if the jury was fully and

fairly instructed by other instructions. Collins v. State, 594 So. 2d 29, 35 (Miss. 1992); Laney v.

State, 486 So. 2d 1242, 1246 (Miss. 1986). This Court assumes that juries follow the instructions

given to them by the trial court." Id.; Payne v. State, 462 So. 2d 902, 904 (Miss. 1984).

¶42. The trial judge gave the appropriate instructions to the jury regarding reasonable doubt. In fact,

the trial court withdrew one of its instructions and substituted the defendant's in its place. The trial

judge reasoned that his C-13(8), which was a presumption instruction element, that he usually gives

did not go as far as D-1(9) that was given. The jury was further instructed as to "reasonable doubt" by

S-1(10). By looking at the total instructions given, this Court finds the instructions given by the court

were permissible. As stated earlier, jury instructions are not viewed in isolation, but as a whole.

Peoples Bank and Trust Co., 658 So. 2d at 1356. Also, this Court is to assume that juries follow

instructions which are given to them by the trial court. Collins, 594 So. 2d at 35.

¶43. Christmas argues the trial judge committed reversible error during voir dire by commenting on

reasonable doubt.

THE COURT:

. . .In every state and under federal law, in order for a conviction to be had, the prosecutor in

this state, the D.A., must prove to the jury beyond a reasonable doubt that the defendant did, in

fact, commit the crime. That's the burden of proof every prosecutor in every county of this state

and in every state and in the federal government. That's the burden they always have in every

criminal case.

Their duty is to prove beyond a reasonable doubt that the person is guilty. The person charged

does not have the duty of affirmatively coming forward to prove himself or herself not guilty.

They may present testimony and evidence to disprove the State's case, but it's not their duty to

come forward first to show that they are not guilty. It's the State's duty to come forward first to

prove that they are guilty.

Now, obviously, from what I've just said there to those of you who have sat on civil cases, it

was quite a different matter in civil lawsuits. Because in a civil lawsuit, one side is seeking from

the other only money. And in those type cases, civil cases where somebody is suing somebody,

the burden is much different and quite lower. In that case all they have to do is prove by what's

called a preponderance of the evidence that the allegations made against the other party are

true, fifty plus one so to speak.

The standard, of course, as I've just said--noted to you is much higher in a criminal case. Now, I

didn't say anything else beyond a reasonable doubt either, okay? There's only so far they have to

go. They don't have to go to the end of the universe, because everybody and everything is to be

reasonable here--are supposed to be reasonable here.

¶44. Christmas claims such oral instructions have been denounced by this Court. This Court has said

an instruction defining reasonable doubt is not proper. Gray v. State, 351 So. 2d 1342, 1348 (Miss.
1977). Also, Christmas asserts that this Court has spoken directly to judges addressing reasonable

doubt by saying, "such matters should be limited to the remarks of counsel, not embodied in

instructions emanating from the court." Gillum v. State, 468 So. 2d 856, 863 (Miss. 1985).

¶45. Christmas is procedurally barred from asserting this argument on appeal. Christmas did not

make a contemporaneous objection at the time the court made the comments during voir dire.

Therefore, he should not be able to raise this as an assignment of error for the first time on appeal. It

is elementary that, for preservation of error for review, there must be contemporaneous objections.

King v. State, 615 So. 2d 1202, 1205 (Miss. 1993); Smith v. State, 530 So.2d 155, 161-62

(Miss.1988).

¶46. Alternatively, even if a contemporaneous objection had been made, Christmas does not show

unto this Court how he has been prejudiced by the remarks of the trial judge in voir dire. In Gillum,

this Court "[c]onsidered in the context of the numerous instructions given touching the State's

burden, and we concluded. . .substantial prejudice did not result to appellant from it." Id. Because the

comments were made during voir dire, we find that any prejudice to Christmas was minimal and/or

cured upon the instructions being given to the jury before deliberations. Therefore, this assignment of

error lacks merit, and the decision by the lower court is affirmed.

CONCLUSION

¶47. The prosecution of Buford Christmas was not ex post facto violative. First, the criminal statutes

of limitation in Mississippi do not carry a substantive right. They are procedural, and this case does

not come within the recognized exception creating a substantive right. The criminal fondling statute,

Miss. Code Ann. § 97-5-23, is separate from the limitations period statute, Miss. Code Ann. § 99-1-

5. Second, the retroactive application of an amended limitations period to a statute of limitations that

has not expired does not come within the current ex post facto doctrine of the United States Supreme

Court or this Court.

¶48. The trial judge did not commit reversible error by making comments during voir dire or allowing

comments to be made during closing argument concerning reasonable doubt. Christmas did not make

a contemporaneous objection when the judge made his comments during voir dire. Therefore, he did

not preserve this issue for appeal. Further, no substantial prejudice to Christmas has been shown to

this Court. Any prejudice to Christmas was cured by giving the appropriate instructions to the jury at

the end of the testimony prior to closing arguments.

¶49. Because the arguments of Christmas lack merit, this Court affirms the decision of the lower

court.

¶50. CONVICTION OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND

SENTENCE OF SIX (6) YEARS IN THE CUSTODY OF THE MISSISSIPPI

DEPARTMENT OF CORRECTIONS AFFIRMED.

PRATHER, P.J., PITTMAN, BANKS, SMITH AND MILLS, JJ., CONCUR. DAN LEE, C.J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J. McRAE,

J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, C.J., AND

SULLIVAN, P.J.
DAN LEE, CHIEF JUSTICE, DISSENTING:

¶51. I dissent. The alleged crime of which Buford Christmas was convicted was committed, if at all,

in June, 1989. The statute of limitations in effect at the time of the alleged crime was two years,

pursuant to Mississippi Code Annotated § 99-1-5 (1972). The legislature on April 21, 1989,

approved an act to take effect on July 1, 1989, to provide for a seven-year period of limitations in

which to commence a prosecution for fondling. Christmas was indicted in July, 1992, for the crime of

fondling, well outside the two-year statute of limitations in effect in June, 1989, when he allegedly

committed the offense.

¶52. Before the statute of limitations for a criminal offense, in the instant case fondling, expires, a

legislature may, at its will, amend the statute of limitations without violating the ex post facto clause,

as the majority has so eloquently and persuasively demonstrated. However, the majority opinion

stops short of addressing the ultimate question in the case sub judice. The issue presented in the

instant case is not whether the legislature had the power to extend the statute of limitations

retroactively, but whether the legislature, in fact, intended to do so. The statute amended by the

legislature in 1989 is silent on the issue of its retroactive application.

¶53. Generally, a statute must be construed to have only a prospective effect, unless the legislature,

by the express terms of the statute, clearly indicates that the statute is to be applied retroactively. See

Hassett v. Welch, 303 U.S. 303 (1938). See also State v. Merolia, 686 P.2d 244 (Nev. 1984).

Additionally, statutes of limitations in the criminal context are to be liberally interpreted in favor of

the accused. Toussie v. United States, 397 U.S. 112 (1970). Following these considerations, the case

of United States v. Richardson, 393 F. Supp. 83 (W.D.Pa. 1974), aff'd., 512 F.2d 105 (3rd Cir.

1975), held that an amendment to a criminal statute of limitations, silent on the issue of its retroactive

application, must be construed as prospective only and cannot apply to an offense committed before

its effective date. Id.

¶54. I agree with the Richardson rationale and would hold that, absent an express legislative intent

to the contrary, an amendment extending the statute of limitations for a criminal offense operates

prospectively only. Consequently, the prosecution of Christmas was outside the two-year statute of

limitations in effect at the time of the alleged incident, and therefore barred. I, therefore, respectfully

dissent.

SULLIVAN, P.J., JOINS THIS OPINION.

McRAE, JUSTICE, DISSENTING:

¶55. The majority's conclusion that the prosecution of Buford Christmas was not a violation of the Ex

Post Facto Clause is flawed. The statute of limitations is a limitation on the power of the sovereign to
act against an individual and must be interpreted in favor of repose. In this context, the statute of

limitations is a substantive right and should not be applied retroactively. Therefore, I respectfully

dissent.

¶56. Initially, as a matter of discerning legislative intent, Miss. Code Ann. § 99-1-5 (1989, as

amended) cannot be said to apply to the case sub judice, because the Legislature did not express an

intent that the definition of fondling was to have retroactive application. In Mississippi, statutes are

generally presumed to operate prospectively unless a contrary legislative intent is shown. State ex rel

Moore v. Molpus, 578 So. 2d 624, 643 (Miss. 1991); Cole v. National Life Ins. Co., 541 So. 2d

1301, 1305 (Miss. 1989); McClendon v. Boyd Constr. Co., 224 Miss. 366, 374, 78 So. 2d 796, 797

(1955). This rule has been specifically applied to amendments to statutes of limitations governing

civil cases. Cole, 541 So. 2d at 1305. Moreover, criminal statutes of limitations are to be construed in

favor of the accused. Toussie v. United States, 397 U.S. 112, 114-15 (1970). Additionally, criminal

limitations statutes are to be liberally interpreted in favor of repose. Id. at 115.

¶57. The language used in the pertinent act, found at Laws of 1989, Ch. 567, p.759, does not give

any indication suggesting that the Legislature intended the statute of limitations to apply to cases

occurring before its effective date. In light of the above considerations, this Court should find that an

amendment to a criminal statute of limitations, silent on the question of its retroactive application,

must be construed as prospective. As a matter of statutory construction, and having no need to reach

the constitutional issue, Miss. Code Ann. § 99-1-5, as it existed in 1989, amending the statute of

limitations for prosecutions of touching or handling of a child for lustful purposes as described in

Miss. Code Ann. § 97-5-23, is prospective, and thus extends the time for the commencement of

prosecution only where the offense is committed after the effective date of the amendment.

¶58. Alternatively, as matter of constitutional interpretation, a statute of limitations in a criminal case

is a substantive right. The theory that statutes of limitations do not affect a defendant's substantive

right is irrational. Because any statute of limitations limits the circumstances under which guilt can be

found and guarantees the accuracy and integrity of the adjudicatory process in criminal procedure,

the statute operates as a substantive right for purposes of ex post facto analysis. As the majority in

Conerly v. State succinctly described the reasoning of those courts that treat statutes of limitations in

criminal cases as jurisdictional and nonwaivable, "the statute of limitations is a limitation upon the

power of the sovereign to act against the accused and is to be interpreted in favor of repose in which

case the State, after a period of time, is cut off from its right or cause of action." Conerly v. State,

607 So. 2d 1153, 1157 (Miss. 1992).(11) The states of Florida, California, and Alabama all have held

that the statute of limitations is a substantive right in the criminal context. See, e.g., Brown v. State,

674 So.2d 738, 741 (Fla. Dist. Ct. App. 1995); People v. Sweet, 254 Cal. Rptr. 567, 571 (Cal. Ct.

App.1989); Hall v. State, 497 So.2d 1145, 1148 (Ala. Crim. App. 1986). Further still, this Court has

treated a civil statute of limitations as a vested right. Cole, 541 So. 2d at 1307. Accordingly, this

Court should treat the statute of limitations in a criminal prosecution as a substantive right.

¶59. Since the extension in the statutory period constitutes a change in a substantive right, this Court

cannot say that ex post facto analysis should not apply.

Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment,

but the lack of fair notice and governmental restraint when the Legislature increases punishment
beyond what was prescribed when the crime was consummated. Thus, even if a statute merely

alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both

retrospective and more onerous than the law in effect on the date of the offense.

Weaver v. Graham, 450 U.S. 24, 30-31 (1981); Puckett v. Abels, 684 So. 2d 671, 674 (Miss. 1996).

The Mississippi Constitution demands that ex post facto laws shall not be passed. Mississippi Const.

Art. 3, § 16. Even though in Puckett, this Court agreed with the United States Supreme Court that

the Ex Post Facto Clause is aimed at laws that retroactively alter the definition of the crimes or

increase the punishment for criminal acts, we also agreed that the purpose of our Ex Post Facto

Clause is to assure that legislative acts give fair warning of their effect and permit individuals to rely

on their meaning until explicitly changed and to restrict governmental power by restraining arbitrary

and potentially vindictive legislation. Puckett, 684 So. 2d at 673.

¶60. While in the criminal context, the United States Supreme Court determined that changes in

statutes of limitations do not violate the federal Ex Post Facto Clause, even if those changes may

work to the disadvantage of a defendant, this Court is well within its power to allow greater

protection under our state constitutional prohibition against ex post facto laws. McCrory v. State,

342 So. 2d 897, 900 (Miss. 1977). Where there is a state constitutional entitlement to some due

process right, the State may not enact legislation to impede that right under ex post facto analysis.

Hill v. State, 659 So. 2d 547, 551 (Miss. 1994) (on petition for rehearing). A defendant is entitled to

be prosecuted under the statute in existence at the time of the commission of the crime, for to permit

otherwise would unconstitutionally deny that defendant due process. Moore v. State, 461 So. 2d 768,

770 (Miss. 1984); Mississippi Const., Art. 3, § 14. Ex post facto prohibitions bar retroactive

applications of statutory law that affect substantive rights, and in this case a substantive right was

affected--the defendant's right to rely on the statute of limitations. Therefore, the statute in this case

fails under ex post facto analysis as well.

¶61. In conclusion, the enlargement of the statute of limitations in this case should only have applied

to those crimes occurring on or after the date of the enactment of the statute. I agree with those

courts treating the statute of limitations as a substantive right in the criminal context. Because the

majority follows a different path, I respectfully dissent.

LEE, C.J., AND SULLIVAN, P.J., JOIN THIS OPINION.

1. Laws of 1912, Ch. 261, p. 335. The pertinent portion reads as follows:

Limitations of Prosecutions Generally.

--A person shall not be prosecuted for any offense--murder, manslaughter, arson, burglary,

forgery, counterfeiting, robbery, larceny, rape, embezzlement and obtaining money or property

under false pretenses excepted--unless the prosecution for such offense be commenced within

two years next after the commission thereof; but nothing herein contained shall bar any

prosecution against any person who shall abscond or flee from justice, or shall absent himself

from this State or out of the jurisdiction of the court, or so conduct himself that he cannot be
found by the officers of the law, or that process cannot be served upon him.

2. Touching and handling a child for lustful purposes.

3. Laws of 1989, Ch. 567, p. 759. That section of the Code read as follows:

A person shall not be prosecuted for any offense, with the exception of murder, manslaughter,

arson, burglary, forgery, counterfeiting, robbery, larceny, rape, embezzlement, obtaining money

or property under false pretenses, felonious abuse or battery of a child as described in Section

97-5-39, touching or handling a child for lustful purposes as described in Section 97-5-23 or

exploitation of children as described in Section 97-5-33, unless the prosecution for such offense

be commenced within two (2) years next after the commission thereof, but nothing contained in

this section shall bar any prosecution against any person who shall abscond or flee from justice,

or shall absent himself from this state or out of the jurisdiction of the court, or so conduct

himself that he cannot be found by the officers of the law, or that process cannot be served

upon him.

Any prosecutions for felonious child abuse or battery of a child as described in Section 97-

5-39, touching or handling a child for lustful purposes as described in Section 97-5-23 or

exploitation of children as described in Section 97-5-33, shall be commenced within seven

(7) years next after the commission thereof.

This act shall take effect and be in force from and after July 1, 1989.

(emphasis added).

This act was approved on April 21, 1989. Miss. Code Ann. § 99-1-5 has since been amended,

however those amendments are not applicable to this case.

4. Sec. 16 Miss. Const. (1890); U.S. Const. Art. I, sec. 9, cl. 3, and Art. I, sec. 10, cl. 1.

5. Where a statute extends the period of limitation, the extension applies to offenses not barred at the

time of the passage of the act, so that a prosecution may be commenced at any time within the newly

established period. Such a statute, however, cannot operate to revive offenses that were barred at the

time of its enactment, since that would make the statute ex post facto.

21 Am. Jur. 2d Criminal Law § 224 (1981).

6. The particular statute of limitations applied to this case was approved on April 21, 1989, and went

into effect on July 1, 1989. Laws of 1989, ch. 567, § 1. The defendant was prosecuted under this

statute of limitations, because the original limitations period of two years had not expired at the time

the amendment became effective.

7. The Court instructs the jury that to be convinced beyond a reasonable doubt, you must be

convinced with utmost certainty.

8. The law presumes every person charged with the commission of a crime to be innocent. This

presumption places upon the State of Mississippi the burden of proving the Defendant guilty of every
material element of the crime with which he is charged beyond a reasonable doubt. Before you can

return a verdict of guilty, the State must prove that the Defendant is guilty beyond a reasonable

doubt. The Defendant is not required to prove his innocence.

9. The law presumes every person charged with a crime to be innocent. This presumption places

upon the State the burden of proving beyond a reasonable doubt each and every element of the crime

charged. If you are not convinced from the evidence beyond a reasonable doubt that Buford Keith

Christmas is guilty of each and every element of the crime charged, you cannot return a verdict of

guilt to the charge.

A reasonable doubt may arise from the evidence, lack of evidence, weight of the evidence, or

sufficiency of the evidence, but if it arises it is you [sic] sworn duty to return a verdict of not guilty to

the charge.

10. The Court instructs the Jury that if you find from the evidence in this case beyond a reasonable

doubt that:

1. The Defendant, BUFORD KEITH CHRISTMAS, is a male, above the age of Eighteen (18)

years of age; and

2. Nicole Christenberry, was a child under the age of Fourteen (14) years; and

3. BUFORD KEITH CHRISTMAS did, with his hands or any part of his body or any member

of his body, handle, touch or rub the body of Nicole Christenberry; and

4. The Defendant's purpose in handling, touching and rubbing was to gratify his lust or indulge

his depraved licentious sexual desires; and

That this occurred in Hancock County, Mississippi, on or about June 1989, then you shall find

the Defendant, BUFORD KEITH CHRISTMAS, Guilty of Unlawful Touching of a Child for

Lustful Purposes.

If the State has failed to prove any one or more of these elements beyond a reasonable doubt,

then you shall find the Defendant, BUFORD KEITH CHRISTMAS Not Guilty of Unlawful

Touching of a Child for Lustful Purposes.

11. Unfortunately, the majority in Conerly determined that a better rule would be that in criminal

cases, statutes of limitations are non-jurisdictional. I joined Justice Sullivan's dissent, which regarded

this specific point. Conerly, 607 So. 2d at 1158.