Lionel F. Ladnier v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-KA-01832-SCT
LIONEL F. LADNIER
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 11/1/2002
TRIAL JUDGE: HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JIM DAVIS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY: CONO A. CARANNA, II
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/03/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER AND COBB, P.JJ., AND GRAVES, J.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1. Thirteen-year-old Anne Bates1 accused Lionel F. Ladnier of fondling her while the
two were riding on a three-wheeler. Ladnier was convicted in the Circuit Court of Hancock
County of one count of touching a child under the age of sixteen for lustful purposes in
violation of Miss. Code Ann. § 97-5-23 (Rev. 2000), and sentenced to three years in the
custody of the Mississippi Department of Corrections. Ladnier appeals, contending that the
evidence was insufficient to support the verdict and that the circuit court erred by not
1
A pseudonym for the minor victim.
granting a lesser-included simple assault jury instruction, and by excluding testimony
regarding his sexual morality. We affirm.
FACTS
¶2. One autumn evening, thirteen-year-old Anne Bates was visiting her grandmother,
when Anne and Ladnier, her grandmother's boyfriend, went riding on a three-wheeler. Anne
drove the vehicle and Ladnier sat behind her. According to Anne, as they drove away from
the house, Ladnier allegedly placed his hands inside of her bra and massaged her breast.
When they returned to the house, Anne told her female cousin what had happened but did
not immediately tell any adults of the incident.
¶3. The following day, Anne, Ladnier, Anne's grandmother, and Anne's cousin traveled
to Texas to spend the Thanksgiving holidays. Anne testified that, when they returned,
Ladnier once again allegedly tried to place his hands under her shirt while she was spending
the night with her grandmother. Ladnier was also staying the night at her grandmother's
house. Afterwards, Anne told her grandmother about the three-wheeler incident. Ladnier
was arrested.
¶4. At trial, Anne testified that she was thirteen years old on November 20, 2000, and that
Ladnier put his hands inside of her bra and massaged her nipple while they drove away from
her grandmother's house on the three-wheeler. She stated that she was wearing a bra, tee
shirt, and a pullover fleece top. She also stated that twenty minutes after getting off of the
three-wheeler, she told her cousin that Ladnier had touched her. When asked why she did
not immediately tell an adult about the three-wheeler incident, Anne responded that she was
worried that "everything would go crazy, haywire, just a big mess." She also stated that she
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did not want to ruin the holidays. As to the incident after returning from Texas, she testified
that she was sitting at the computer when Ladnier approached her and asked if she had told
anyone of the three-wheeler incident. When she replied that she had not told anyone, he
attempted to raise her shirt. She testified that when she refused to let him raise her shirt, he
asked her why she would not let him put his hands under her shirt when she had let him do
it earlier. At this point, she began arguing with him, waking her grandmother.
¶5. Anne's cousin testified that fifteen to twenty minutes after Anne rode the three-
wheeler with Ladnier, Anne told her that he placed his hands inside of her bra. The cousin
stated that Anne wanted to tell her grandmother about the incident but was afraid it would
ruin the holidays.
¶6. Anne's grandmother testified that the driveway Anne and Ladnier were riding on was
very bumpy and that Anne liked to drive the three-wheeler at a high rate of speed. She also
testified that she and others were in the yard while Anne and Ladnier were on the three-
wheeler and that she could see them as they drove down the driveway. She stated that Anne
did not seem upset when she got off of the three-wheeler.
¶7. Anne's aunt testified that the driveway Anne and Ladnier were riding on was a rough
dirt road. She also testified that she was in the yard while they were on the three-wheeler,
and that she could see them from where she was standing. She also stated that, after she and
her husband picked Anne up from her grandmother's house that night, Anne said that the
whole thing was an accident. Anne's uncle also testified that Anne told him and her aunt that
the three-wheeler incident was an accident.
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¶8. Ladnier testified that he was fifty-four years old. He rode the three-wheeler with
Anne because he thought the machine was dangerous and he helped her change gears when
she was driving. He denied touching Anne, but he did tell investigators that he "probably
did" place his hand on Anne's bare breast. He finally stated that he might have touched her
because "you're bouncing on that [three]-wheeler, you don't know what's going on." As to
the night Anne accused him of touching her, he testified that he never touched Anne and that
he was trying to poke her because he was always goosing people.
DISCUSSION
I. WHETHER THE CIRCUIT COURT ERRED IN
DENYING LADNIER'S MOTION FOR A
DIRECTED VERDICT, MOTION FOR A NEW
TRIAL OR FOR JNOV.
¶9. To sustain a conviction under to Miss. Code Ann. § 97-5-23, the State must prove
beyond a reasonable doubt that (1) the defendant was over the age of eighteen; (2) the child
was under the age of 16; and (3) that the defendant touched the child with either his hands
or another part of his body for the purpose of gratifying his lust. The evidence shows that
Ladnier was over the age of eighteen and that Anne was under the age of sixteen on the day
of the three-wheeler incident.
¶10. Ladnier contends that the State did not prove beyond a reasonable doubt that he was
guilty of violating § 97-5-23. He argues that there was no evidence that he touched Anne
for the purpose of indulging his depraved licentious sexual desire and that there was no
testimony which corroborated that the touching was anything more than accidental.
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¶11. A motion for a directed verdict and a motion for a verdict notwithstanding the
judgment "are predicated upon the idea that the evidence simply does not justify a verdict
of guilty beyond a reasonable doubt." Washington v. State, 800 So. 2d 1140, 1144 (Miss.
2001). As this Court has stated,
When on appeal one convicted of a criminal offense challenges
the legal sufficiency of the evidence, our authority to interfere
with the jury's verdict is quite limited. We proceed by
considering all of the evidence -- not just that supporting the
case for the prosecution -- in the light most consistent with the
verdict. We give the prosecution the benefit of all favorable
inferences that may reasonably be drawn from the evidence. If
the facts and inferences so considered point in favor of the
accused with sufficient force that reasonable men could not
have found beyond a reasonable doubt that he was guilty,
reversal and discharge are required. On the other hand, if there
is in the record substantial evidence of such quality and weight
that, having in mind the beyond a reasonable doubt burden of
proof standard, reasonable and fair-minded jurors in the exercise
of impartial judgment might have reached different conclusions,
the verdict of guilty is thus placed beyond our authority to
disturb.
Mangum v. State, 762 So. 2d 337, 341 (Miss. 2000).
¶12. The Court of Appeals has reversed a conviction of gratification of lust when the
defendant pinched a child on the buttocks and kissed a child on the cheek. Bradford v.
State, 736 So. 2d 464 (Miss. Ct. App. 1999). The issue before the court was whether the
State presented sufficient proof to support a finding by the jury that Bradford sought to
gratify his lust through his actions. The court found no case law which stated what was
necessary to give rise to an inference that an undisputed act of touching was for the purpose
of satisfying a defendant's sexual desires, but that there must be some probative evidence as
to the purpose of the touching. The court held that evidence that the touching was for
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purposes of satisfying lustful desires could arise from a description of the circumstances of
the encounter itself:
For example, touching in inappropriate parts of the child's body,
overly demonstrative acts of affection, events occurring when
the child is not fully clothed, or some evidence of sexual arousal
by the defendant during the encounter, might be sufficient to
draw a reasonable inference as to the improper purpose of the
defendant's act.
Id. at 466. There was no evidence of an attempt to rub or grope the child in a sexually
suggestive manner and no evidence in the record that indicated that Bradford's behavior was
the type of behavior that the statute was intended to punish. Id.
¶13. To the contrary, the facts of the present case indicate that Ladnier's behavior was the
type of behavior § 97-5-23 intended to punish. Anne testified that Ladnier massaged her
nipple while on the three-wheeler the entire time they were riding. Ladnier's conduct was
sufficient for the jury to reasonably infer that the touching was for purposes of satisfying his
lustful desires. This argument is without merit.
¶14. Ladnier also argues that the verdict should be reversed because Anne's testimony was
uncorroborated. In Collier v. State, 711 So. 2d 458, 462 (Miss. 1998), Collier was convicted
after a child told her mother that he had fondled her. On appeal, Collier argued that the
child's testimony was uncorroborated and unsubstantiated. Affirming Collier's conviction,
we held as follows:
Our case law clearly holds that the unsupported word of the
victim of a sex crime is sufficient to support a guilty verdict
where that testimony is not discredited or contradicted by other
credible evidence, especially if the conduct of the victim is
consistent with the conduct of one who has been victimized.
The victim's physical and mental condition after the incident, as
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well as the fact that the incident was immediately reported is
recognized as corroborating evidence.
Id. (citing Christian v. State, 456 So. 2d 729, 734 (Miss. 1984)); Inman v. State, 515 So. 2d
1150, 1152 (Miss. 1987). In Collier, the child's mental state following the touching was
consistent with one who had been fondled. There was testimony that when she returned
from Collier's house, she had a "wild look" and immediately reported the incident to her
mother.
¶15. In the present case, although Ladnier denied touching Anne and witnesses testified
that they could see Anne and Ladnier on the three-wheeler, the jury heard testimony that at
the time of the touching, Anne and Ladnier were traveling away from the house and could
reasonably infer that even though people were in the yard, they would not be able to see
whether Ladnier placed his hands on Anne's breast. Anne and her cousin both testified that
Anne told the cousin twenty minutes after getting off the three-wheeler that Ladnier placed
his hands inside her bra while on the three-wheeler and that Anne did not immediately tell
anyone else of the incident because she thought the holidays would be ruined.
¶16. Although there were inconsistencies between Anne's testimony and that of other
witnesses, issues of witness credibility and the weight to be accorded a witness's testimony
are matters to be resolved by the trier of fact, in this case, the jury:
Our case law is axiomatic on the proposition that the jury is
arbiter of the credibility of testimony. "It is, of course, within
the province of the jury to determine the credibility of
witnesses. . . ." "The conflict between the testimony of the
appellant and the prosecutrix was properly resolved by the
jury." "We are asked to reverse this case on the grounds that
there are inconsistencies and contradictions in her testimony. If
this be true, it would still be a question for the jury." In the
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instant case, any inconsistencies found in C.H.'s testimony go
[sic] the weight and credibility of her testimony, clearly a jury
question. In addition, C.H.'s testimony was not at all
inconsistent on the issue at the heart of this matter--Collier's
fondling of her.
Collier, 711 So. 2d at 462-63 (emphasis added) (citations omitted).
¶17. Based on this evidence, we find that the circuit court did not err in denying Ladnier's
motions for directed verdict and for judgment notwithstanding the verdict.
¶18. Ladnier also contends that the circuit court erred by not granting his motion for a new
trial. He contends that if we finds the evidence against him legally insufficient to support
the verdict it should also find that the verdict is contrary to the overwhelming weight of the
evidence. As to the weight of the evidence, we will order a new trial "[o]nly where the
verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand
would sanction an unconscionable injustice." Mangum v. State, 762 So. 2d at 342 (quoting
Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)). Based on the evidence, we cannot say
that the jury's verdict was an unconscionable injustice. This argument is without merit.
II. WHETHER THE CIRCUIT COURT ERRED BY
NOT GRANTING A LESSER-INCLUDED
OFFENSE INSTRUCTION.
¶19. Ladnier asserts that it was error for the circuit court to refuse his proffered instruction
on the lesser-included offense of simple assault, and that, though he admitted that he might
have touched Anne's breast, it was not done to satisfy any licentious sexual desire. The State
argues that there is no evidence to warrant a lesser-included offense jury instruction.
¶20. Mississippi's law is well settled as to appellate review of a circuit court's grant or
denial of jury instructions:
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Jury instructions are to be read together and taken as a
whole with no one instruction taken out of context. A defendant
is entitled to have jury instructions given which present his
theory of the case; however, this entitlement is limited in that
the court may refuse an instruction which incorrectly states the
law, is covered fairly elsewhere in the instructions, or is without
foundation in the evidence.
Heidel v. State, 587 So. 2d 835, 842 (Miss. 1991) (citations omitted).
¶21. To be entitled to a lesser-included offense instruction, Ladnier must point to evidence
in the record from which a jury could reasonably find him not guilty of the crime with which
he was charged and at the same time find him guilty of the lesser included offense.
Tolliver v. State, 600 So. 2d 186, 192 (Miss. 1992).
¶22. A person is guilty of simple assault if he attempts to cause or purposely, knowingly
or recklessly causes bodily injury to another; or negligently causes bodily injury to another
with a deadly weapon or other means likely to produce death or serious bodily harm; or
attempts by physical menace to put another in fear of imminent serious bodily harm. Miss.
Code Ann. § 97-3-7. A person is guilty of fondling a child if he is over the age of eighteen,
the child was under the age of sixteen, and if the defendant touched the child with either his
hands or another part of his body for the purpose of gratifying his lust. Id. § 97-5-23.
¶23. In Goodnite v. State, 799 So. 2d 64 (Miss. 2001), Goodnite was convicted for
touching a child for lustful purposes and sexual battery. He performed fellatio on an eight-
year-old and pinched a six-year-old's vagina. On appeal, Goodnite asserted that it was error
for the circuit court to refuse a lesser-included jury instruction of simple assault as to his
pinching the six-year-old.
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¶24. Discussing the State's argument that there was no evidence to warrant a lesser-
included instruction and that simple assault is not a lesser-included offense of § 97-5-23(1),
we noted that fondling involves an offensive touching which denotes sexual gratification
which, while emotionally uncomfortable, does not necessarily cause bodily injury. Id. at 68.
We found that there was no evidence to warrant finding Goodnite guilty of simple assault
which involved an attempt to cause bodily injury and concluded "that a reasonable jury
viewing the evidence favorable to Goodnite could not harbor a doubt that the pinch was for
anything other than a lustful purpose." Id. at 69.
¶25. Here, there was no evidence to support a jury instruction on simple assault. There is
nothing that indicates Ladnier attempted to cause bodily harm. Thus, the circuit court did
not err in refusing to offer a simple assault jury instruction.
III. WHETHER THE CIRCUIT COURT ERRED IN
REFUSING TO ALLOW OPINION TESTIMONY
REGARDING LADNIER'S SEXUAL MORALITY.
¶26. At trial, Ladnier's ex-wife, Linda Jenkins, testified that she was married to Ladnier
for twenty years, had been divorced from him for nine years, and that, in her opinion, he had
a reputation of being truthful. The jury was excused and Ladnier proffered Jenkins's
testimony as to his reputation for sexual morality and her opinion of his sexual morality.
When asked her opinion about his sexual morality, she stated that in her opinion he would
not harm a young person. When asked if she ever had an opportunity for anyone to say
anything about his sexual morality, she replied that she had not. She then stated that she and
Ladnier were chaperones for their children's high school activities and that she believed that
he would never harm a young person.
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¶27. The circuit court excluded the proffered testimony, finding that it was inadmissible
character evidence, that Jenkins gave only her personal opinion as to Ladnier's sexual
morality, and she offered nothing as to his general reputation for sexual morality in the
community. "The standard of review regarding admission [or exclusion] of evidence is
abuse of discretion. Where error involves the admission or exclusion of evidence, this Court
'will not reverse unless the error adversely affects a substantial right of a party.'" Whitten v.
Cox, 799 So. 2d 1, 13 (Miss. 2000) (citing Floyd v. City of Crystal Springs, 749 So. 2d 110,
113 (Miss. 1999)).
¶28. An accused has an absolute right to put on character evidence as to a pertinent trait.
1 Wigmore, Evidence, § 56 (3d ed. 1940). Indeed, M.R.E. 404 allows a criminal defendant
to put on evidence of his good character.2 Whether a proposed testimony is pertinent and
therefore open to exploration via character evidence depends on the nature of the case.
3 Crim. Prac. Manual § 56:3. The nature of the trait in question determines the time period
about which the witness would testify, e.g., the time of trial for veracity, the time of the
alleged incident for honesty or peacefulness. Id.
¶29. Mrs. Jenkins's testimony regarding Ladnier's reputation for sexual morality was
properly excluded because the testimony was based on incidents which had occurred
2
Rule 404 provides in pertinent part as follows:
(a) Character Evidence Generally. Evidence of a person's character or a trait of his
character is not admissible for the purpose of proving that he acted in conformity
therewith on a particular occasion, except:
(1) Character of Accused. Evidence of a pertinent trait of his character offered
by an accused, or by the prosecution to rebut the same; . . .
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approximately nine years prior to the date of the incident. As pointed out above, testimony
based on facts which occurred at "the time of the alleged incident" would be admissible, but
facts which occurred nine years prior are too remote to be relevant.
CONCLUSION
¶30. Finding no merit in Ladnier's assignments of error, we affirm Ladnier's conviction for
touching a child for lustful purposes and sentence of three years in the custody of the
Mississippi Department of Corrections.
¶31. CONVICTION OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND
SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AFFIRMED.
SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
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