author: CARLTON, J., ISHEE, J.,

text:
    Devail HUDSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-01298-COA.
    Court of Appeals of Mississippi.
    April 10, 2007.
    Rehearing Denied Nov. 20, 2007.
    Pearson Liddell, Mississippi State, attorney for appellant.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
   CARLTON, J.,

for the Court.

¶ 1. Devail Hudson was convicted by an Oktibbeha County Circuit Court jury for the crime of capital murder. On appeal, he challenges the admissibility of certain evidence. Finding no error, we affirm his conviction and sentence.

FACTS

¶ 2. On the morning of August 20, 2001, Dalton Lee Miller and Juanita Miller, who had been married approximately fifty years, shared breakfast in their home at 226 Reed Road, Starkville, Mississippi. Mr. Miller left his house around 7:40 a.m. to attend to business matters. When he returned home several hours later, his yard was filled with police officers and firefighters as smoke poured from his house. Mr. Miller’s son, Andy, directed him to the area of his front yard where paramedics were working on Mrs. Miller, who had been severely beaten. Mrs. Miller, who was seventy-seven years old, died that afternoon at the Baptist Memorial Hospital in Columbus.

¶ 3. On January 25, 2002, Hudson was indicted by an Oktibbeha County grand jury for capital murder. Specifically, the indictment alleged that Hudson murdered Juanita Miller while engaged in the commission of the crime of robbery, pursuant to Mississippi Code Annotated section 97-3-19. A jury trial was held on September 13-18, 2004.

¶ 4. Dr. Stephen Hayne, the pathologist who performed a forensic postmortem examination of Mrs. Miller, testified as an expert in the field of forensic pathology. Dr. Hayne testified that Mrs. Miller suffered blunt force trauma to her head, shoulder, back, and left leg. He further testified that Mrs. Miller had been struck twelve to fifteen times with moderate to severe force. According to Dr. Hayne, Mrs. Miller’s injuries were consistent with being struck with a clothing iron that was recovered at the Millers’ home. The external examination also revealed bruises and scratches on the palm, fingers, and back of Mrs. Miller’s right hand and left arm. Dr. Hayne explained that such injuries are known as defensive posturing injuries, and that they are caused by the attempt of a conscious individual to ward off blows to the face, neck, and chest. Dr. Hayne concluded that lethal brain swelling was the ultimate cause of Mrs. Miller’s death.

¶ 5. Roger Mann, the fire marshal who investigated the Millers’ home, also testified. According to Mann, there were at least five separate locations where fires began inside the Millers’ home. Mann testified that, given the multiple origins of the fires, one fire could not have induced another. He further testified that there was no apparent electrical or mechanical failure which could have caused the fires. Consequently, Mann concluded that the fires were caused by arson.

¶ 6. Jamie Bush, a forensic scientist with the Mississippi Crime Lab, testified as to the scene of Mrs. Miller’s brutal attack-the sewing room inside the Millers’ home. Considerable amounts of blood were discovered in the room, including on a chair covered with blood splatter, on a pair of eyeglasses on the floor next to a clump of hair, and on a clothing iron smeared with blood. No fingerprints were salvageable from the clothing iron.

¶ 7. Bush also testified that the master bedroom of the house had suffered intensive fire and smoke damage. Filing cabinets in the master bedroom had been rummaged through and most of the drawers in the room had been pulled out and dumped on the floor. Bush testified that they found money on the floor, including a $100 bill lying out in the open, and an envelope containing a $100 bill and four $50 bills. No fingerprints were recovered from the money or from the envelopes.

¶ 8. The jury also heard testimony regarding the work of two tracking dogs that were used in the investigation. On August 20, 2001, the first tracking dog, a Labrador retriever, conducted a free-scent search, as no particular suspect’s sample scent was available. The retriever picked up a scent from the back door of the Millers’ home and followed it to the home of Hudson’s mother. The second tracking dog, a bloodhound, conducted two searches on August 23, 2001. The first search began at Lander’s Trailer Park, where Hudson’s girlfriend, Juanita Quinn, lived. The bloodhound was given Hudson’s scent and released on a long lead. The dog followed the scent to the back door of the Millers’ home. The second search began in another part of the trailer park, but ended in the same location, the back door of the Millers’ home.

¶ 9. Investigator Bill Lott of the Stark-ville Police Department testified that he made a list of suspects which consisted of people living in the vicinity of the Millers’ home who had committed serious crimes. All of the suspects on the list were promptly accounted for, with the exception of Hudson, who had an outstanding warrant for his arrest. Consequently, on the afternoon of August 20, 2001, Hudson was arrested for unrelated charges. Inspector Lott testified that the case came to a standstill after an unfruitful search of the home of Juanita Quinn, Hudson’s girlfriend. According to Inspector Lott, the break in the case came when someone called the police station to speak with detectives about the Miller case. Bentore Riley voluntarily came forward and gave a statement to the police.

¶ 10. Riley testified that on August 20, 2001, at about 9:00 a.m., he saw Hudson standing on the corner of Northside and West Drive with a group of men, including Willie Prater, Derrick Turner, Lemarc Evans, James Pastor, and Destiny Moore. Riley approached the men because one of them, Destiny Moore, was wearing Riley’s tennis shoes. Riley testified that he confronted Moore about the shoes, and that Moore gave back his shoes and retrieved another pair from a nearby house. After Moore returned, Hudson said to the group, “come on, let’s go.” According to Riley, Hudson told the group that they were “fixing to go to that old woman’s house” and to “see what she had inside it.” Riley testified that when Prater asked what would happen if the woman found them in her house, Hudson said, “we are going to kill her.”

¶ 11. Regarding his involvement, Riley testified that he agreed to be the look-out because he was afraid because the men were in a gang. He further testified that he thought that they would kill him or his family. Even though Riley had earlier testified that Moore returned his shoes before they went to the Millers’ house, Riley also testified that he felt compelled to go with the group and to be the watch-out “since one of them had [his] shoes.” According to Riley, when the men entered the Millers’ house through the back door, he attempted to call the police. The next thing Riley saw was Turner running from the house. Riley testified that Hudson and Prater were the last two men to come out of the house, and that Hudson went to the trailer park directly after leaving the Millers’ house.

¶ 12. On September 18, 2004, the jury convicted Hudson of capital murder. Hudson was sentenced to serve a term of life imprisonment without parole in the custody of the Mississippi Department of Corrections. His appeal has been assigned to this Court.

DISCUSSION

1. Prejudicial Evidence

¶ 13. Hudson relies on case law in arguing that the trial court erroneously admitted evidence that indicated Hudson was in a gang. Brooks v. State, 903 So.2d 691 (Miss.2005); Pleasant v. State, 701 So.2d 799 (Miss.1997); Hoops v. State, 681 So.2d 521 (Miss.1996); Goree v. State, 748 So.2d 829 (Miss.Ct.App.1999). He argues that there was no proper foundation for this evidence, and that the trial court did not balance the probative value and prejudicial effect of this evidence pursuant to Mississippi Rule of Evidence 403.

¶ 14. During direct examination, the State asked Riley why he was afraid of the group of men. Hudson promptly objected, and a bench conference was held. Hudson argued that the testimony that Riley was about to give — that the group of men were in a gang — was inflammatory, irrelevant to the real issue of the case, and that any probative value of the testimony was outweighed by its prejudicial effect. Hudson further argued that there was no way of refuting Riley’s testimony, and that to tell the jury that Hudson was in a gang without any proof of gang affiliation would cause irreparable damage. The State cited Pleasant and argued that the gang testimony was relevant as to whether Riley was afraid of the group of men and why he was afraid. After the court overruled Hudson’s objection, the following exchange took place:

[THE STATE]: Why were you airaid of them?
[RILEY]: Because they was in a gang.
[THE STATE]: And what were you afraid was going to happen if you didn’t do what they said? Explain to the ladies and gentlemen of the jury.
[RILEY]: I thought they was going to kill me or kill my family.

¶ 15. Due to this questioning, the defense also raised the issue of gang affiliation while conducting a cross-examination of Riley. The following exchange took place between defense counsel and Riley during that cross-examination:

[DEFENSE COUNSEL]: Were you in a gang?
[RILEY]: No, sir.
[DEFENSE COUNSEL]: How do you know they were in a gang?
[RILEY]: Destiny Moore was saying they was.
[DEFENSE COUNSEL]: Oh, okay. So you conclude they were in a gang because one person said they were in a gang?
[RILEY]: Yes, sir.
[DEFENSE COUNSEL]: That’s the only proof you got that they were in a gang; isn’t that correct?
[RILEY]: Yes, sir.

¶ 16. Hudson argues that the trial court erred in overruling his objection to Riley’s testimony that Hudson was in a gang. Hudson argues that the State’s reason for introducing the gang testimony was insufficient for purposes of Rule 404. He argues that admissibility of gang affiliation requires that the evidence be related to the motive of the crime. Hudson further argues that the gang testimony was admitted without laying a proper foundation and that the court failed to conduct an explicit or implicit analysis under Rule 403.

¶ 17. An appellate court does not conduct a de novo review on the admissibility of evidence under Rule 403. Jones v. State, 904 So.2d 149, 152(¶7) (Miss.2001). Trial courts have the discretion to determine whether potentially prejudicial evidence possesses sufficient probative value. Id. This determination on admissibility is highly discretionary because Rule 403 “does not mandate exclusion but rather provides that the evidence may be excluded.” Id. Our review is confined to “simply determine whether the trial court abused its discretion in weighing the factors and in admitting or excluding the evidence.” Id.; see also Jackson v. State, 784 So.2d 180, 183(¶ 9) (Miss.2001). A Rule 403 analysis “asks only that a judge rely on his/her own sound judgment.” Jones v. State, 920 So.2d 465, 476-77(¶ 33) (Miss.2006) (citing Jenkins v. State, 507 So.2d 89, 93 (Miss.1987)).

¶ 18. Rule 404(b) states in part that evidence of “other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Rule 403 provides that evidence “may be excluded if its probative value is substantially .outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” We now turn to the cases upon which Hudson relies.

¶ 19. In Hoops, the supreme court considered the admissibility of evidence of a defendant’s gang affiliation. The court concluded that evidence of gang affiliation can be admissible to show motive under Rule 404(b). if it also passes a Rule 403 balancing test. Hoops, 681 So.2d at 530. The court held that the trial judge, in Hoops, implicitly determined that the danger of unfair prejudice did not substantially outweigh the probative value of the evidence, even though the trial judge failed to use “magic words.” Id. at 531. This conclusion was reached because the trial judge heard argument from both parties on the matter prior to ruling that the evidence was admissible. Id.

¶ 20. In Pleasant, the court restated that evidence of gang affiliation is admissible for the purposes stated in Rule 404(b) provided that it pass through a Rule 403 analysis. Pleasant v. State, 701 So.2d 799, 804(¶ 21) (citing Hoops, 681 So.2d at 530-31). The evidence at issue in Pleasant consisted of testimony from a co-defendant who had entered a guilty plea midway through the trial. Id. at 804(¶ 17). Pleasant’s co-defendant testified about Pleasant’s membership in a gang, and “tear drop” tattoos under Pleasant’s eye. Id. at (¶ 20). That evidence was held to be within the purpose of Rule 404(b). Pleasant’s conviction and sentence were affirmed. Id.

¶21. ■ In Goree, the State introduced evidence to prove Goree’s membership in a gang. Goree, 748 So.2d at 838(¶ 38). The evidence presented included testimony from a friend of Goree who was also a witness to the assault for which Goree was charged. Id. at 831(¶ 5). A detective testified that Goree’s tattoos were an indication of membership in a particular gang. Id. at 834(¶ 6). In rebuttal to Goree’s defense witnesses who testified Goree was not involved in a gang, a second detective testified that Goree’s tattoos indicated he was an enforcer in a particular gang. Id. at 835(¶ 9). This Court, in Goree, relied on Hoops, which stated that evidence of gang affiliation may.be admissible to show motive under Rule 404(b) when passing through a Rule 403 balancing test. Goree, 748 So.2d at 836 (¶¶ 13-14) (citing Hoops, 681 So.2d at 530-31).

¶22. In a case similar to Goree, the Mississippi Supreme Court, in Brooks, held that it was reversible error to admit evidence of a defendant’s tattoo of a grim reaper armed with a pitchfork, and rap lyrics discussing murder. Brooks, 903 So.2d at 699-700 (¶¶ 29-35). The victim there had been repeatedly stabbed in the neck with a fork. Id. at 693(¶ 3). The jury was told that the gang in which-Brooks affiliated used the symbol of a six-pointed star and a pitchfork as its signs. Id. at 699(¶30). The lyrics which were presumed to be written by Brooks did not mention gangs, and did not discuss murder by use of a fork, but with a gun1. Id. at 700(¶ 34). The trial judge did not make any attempt to weigh the probative value and prejudicial harm of such evidence. Id. at (¶ 35).

¶ 23. This Court has distinguished Go-ree as a case dealing with “whether evidence of a defendant’s gang- affiliation, such as gang-related tattoos, was admissible to prove his preparation, plan, intent, or motive in an aggravated assault case.” Strohm v. State, 845 So.2d 691, 698(¶ 22) (Miss.Ct.App.2003) (citing Goree, 748 So.2d at 830-34 (¶¶ 5-6)). In Strohm, there was “no mention of Strohm’s gang affiliation in relation to his crime....” Strohm, 845 So.2d at 698(¶ 22). Strohm’s tattoos were used for the purpose of physical identification, not to connect him with the crime. Id. We held that such use of this possibly prejudicial evidence was not error. Id. Based upon the similarity of the evidence in Goree and Brooks, our reasoning in Strohm is applicable to both of those cases.

¶ 24. The supreme court has stated that evidence of “other crimes or bad acts is also admissible in order to tell the complete story so as not to confuse the jury.” Palmer v. State, 939 So.2d 792, 795(¶ 9) (Miss.2006). In Palmer, the court reiterated that “the State has a ‘legitimate interest in telling a rational and coherent story of what happened.’ ” Id. (quoting Brown v. State, 483 So.2d 328, 330 (Miss.1986)). Though such evidence may be revealing or suggestive of other crimes, it may be admitted “where substantially necessary to present to the jury ‘the complete story of the crime.’ ” Id. (quoting Simmons v. State, 813 So.2d 710, 716 (Miss.2002)). The evidence must still pass through a Rule 403 analysis. Palmer, 939 So.2d at 795(¶ 10).

¶ 25. In the present case, the trial judge allowed the statement from Riley into evidence after hearing arguments from the parties on the admissibility of the statement. Although the trial judge did not state on the record that the testimony would be more probative than prejudicial, both parties were given the opportunity to argue their position. This implicit Rule 403 balancing test was sufficient. Hoops, 681 So.2d at 531.

¶ 26. One of the reasons the State expressed for eliciting the statement from Riley is because the jury would be left to speculate about why Riley was afraid of Hudson and the group of men with Hudson. The statement explains why Riley acted as a lookout during the crime but later notified police about the crime. Riley’s inconsistent actions, without explanation, could leave the jury without a complete understanding of why Riley participated as a lookout. The State did not attempt in any way to connect Hudson’s possible gang affiliation with the murder that occurred. The testimony elicited by the State was not an attempt to produce evidence of Hudson’s possible gang affiliation or to connect any such affiliation with the crime. The trial judge was afforded broad discretion in determining whether to allow Riley’s statement into evidence. The discretion entrusted to the trial judge was not abused by allowing Riley to say why he was afraid of the group of men, including Hudson.

2. Admissibility of Dog Tracking Evidence

¶ 27. Hudson argues that dog tracking evidence is generally too unreliable to be admissible and that one-hundred years of Mississippi case law should not be followed. He also argues that even if dog tracking evidence is admissible in general, the Labrador retriever in this case was too unreliable under current standards of admission.

¶28. The Mississippi Supreme Court addressed the admissibility of dog tracking evidence where a trainer and his German Shepherd tracked a suspect’s scent to and from the crime scene. Byrom v. State, 863 So.2d 836, 878 (¶ 151) (Miss.2003). During the trial, the trainer testified that he and his police dog were certified through the Mid-South Police Canine Association and that they worked together at least one day a week to maintain the police dog’s training. Id. at 879 (¶ 155). The police dog was trained in narcotics, tracking, and apprehension. Id. The court held that admission of the dog tracking evidence was proper, as the police dog’s qualifications were “beyond reproach, and they were well documented at trial.” Id. at 879 (¶ 156).

¶ 29. In the present case, Officer Tanya Burton of the Choctaw County Sheriffs Department testified that she and the Labrador retriever police dog, Eli, trained together for two years. The 'first year of training was with the Choctaw County Sheriffs Department’s K-9 Unit, and the second year at the Crystal Mountain Ridge Training Center in Hot Springs, Arkansas. Officer Burton also testified that Eli was certified through the National Drug Beat Canine Certifications and went through daily narcotics training after being certified. According to Officer Burton, Eli was trained on locating small articles or human tracking at least once a week, and had never failed in a human tracking search.

¶ 30. Rachel Paulette Wieble, the handler of Hadley Park, the purebred bloodhound who performed two searches, testified that she was a member of Search Dog South, an organization that, for the past ten years, had been assisting law enforcement in searches for missing persons and suspected felons. Wieble also testified that Hadley Park trained forty hours per month in human tracking. Wieble further testified that she and Hadley Park were trained by the North American Search Dog Network.

¶ 31. In sum, we find that the qualifications of the tracking dogs, as well as the handlers, were well documented at trial. Both dogs and their handlers had undergone various training and certification. Moreover, although the majority of Eli’s training was focused on narcotics, he performed human tracking or small article locates at least once a week. Regarding reliability, Officer Burton testified that Eli had never failed in a human tracking search. Consequently, in light of this evidence concerning qualifications and reliability, we find that the court did not err in allowing the dog handler’s testimony into evidence. This issue is without merit.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES AND ROBERTS, JJ., CONCUR. ISHEE, J., DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., AND IRVING, J.

ISHEE, J.,

Dissenting in part:

¶ 33. The majority concludes that Hudson’s conviction for capital murder should be affirmed finding no error with the trial court’s admission of testimony by Riley regarding the gang affiliation of Hudson. Riley was a witness for the State. Hudson argued the court improperly admitted gang evidence because the State did not provide the proper foundation and the trial court failed to conduct an analysis pursuant to Rule 403 of the Mississippi Rules of Evidence. For the reasons discussed below, I conclude that Hudson’s conviction should be reversed and remanded.

¶ 34. During direct examination, the State asked Riley why he was afraid of the group of men. Hudson promptly objected, and a bench conference was held. Hudson argued that the testimony that Riley was about to give, i.e., that the group of men was in a gang, was inflammatory, irrelevant to the real issue of the case, and that any probative value of the testimony was outweighed by its prejudicial effect. Hudson further argued that there was no way of refuting Riley’s testimony, and that to tell the jury that Hudson was in a gang without any proof of gang affiliation would cause irreparable damage. Citing Pleasant v. State, 701 So.2d 799 (Miss.1997), the State argued that the gang testimony was relevant as to whether Riley was afraid of the group of men and why he was afraid. After the court overruled Hudson’s objection, the following exchange took place:

[THE STATE]: Why were you afraid of them?
[RILEY]: Because they was in a gang.
[THE STATE]: And what were you afraid was going to happen if you didn’t do what they said? Explain to the ladies and gentlemen of the jury. .
[RILEY]: I thought they was going to kill me or kill my family.

¶ 35. Hudson argues that the State’s reason for introducing the gang testimony, i.e., that it was relevant to explain why Riley was afraid of Hudson, was insufficient to pass muster under Rule 404 of the Mississippi Rules of Evidence because, in order to be admissible, evidence of gang affiliation must relate to the motive of the crime. Hudson further argues that the gang testimony was admitted without laying a proper foundation and that the court failed to conduct an explicit or implicit analysis under Rule 403 of the Mississippi Rules of Evidence.

¶36. Rule 404(b) of the Mississippi Rules of Evidence provides in relevant part:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Rule 403 of the Mississippi Rules of Evidence provides in part that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

'¶ 37. In Hoops v. State, 681 So.2d 521 (Miss.1996), the court, in an aggravated assault trial, considered the admissibility of evidence of gang involvement. The court held that evidence of gang affiliation can be admissible to show motive under Rule 404(b) if it also passes a Rule 403 balancing test. Id. at 530. Although the trial judge in Hoops “failed to use the ‘magic words’ that he did not find the danger of unfair prejudice to substantially outweigh the probative value of this evidence,” the supreme court held that he “implicitly made that determination.” Id. at 531. The supreme court reasoned that a Rule 403 analysis was implicitly conducted by the trial court because the trial court heard argument from both parties -on the subject before ruling that the evidence was admissible to show motive. Id.

¶ 38. In the case at bar, when the trial judge overruled Hudson’s objection, he did not state explicitly that the probative value of the evidence was not substantially outweighed by the danger of -unfair prejudice. Nonetheless, the trial judge heard arguments from both parties concerning the admissibility of the evidence of gang affiliation. Consequently, I am not persuaded by Hudson’s argument that the court failed to conduct an implicit Rule 403 analysis. My review of this issue does not end here, however.

¶ 39. Hudson also contends that a proper foundation was not laid and that fear was not an appropriate reason for admission of evidence of gang affiliation. In Pleasant v. State, 701 So.2d 799, 799(¶ 2) (Miss.1997), Wayne Pleasant and Jeffrey Robinson were charged with capital murder for the killing of a convenience store clerk during the commission of a robbery. Robinson testified that he and Pleasant were members of a gang called the “Gangsters.” Id. at 802(¶ 10). Robinson further testified that he shot the clerk because he was ordered .to do so, and he feared that if he refused, he would be “violated” or physically attacked. Id. The State also questioned Pleasant about his “tear drop” tattoos under his eyes. Id. at 804(¶ 20). Pleasant argued that the aforementioned evidence was introduced for its prejudicial effect. Id. The supreme court held that the evidence was appropriately admitted as the trial court determined that it fell within the exception of Rule 404(b) to show motive, opportunity, intent, preparation, and plan, and the trial court implicitly determined that the evidence of gang affiliation passed a Rule 403 balancing test. Id. at 804(¶ 21). In the case at bar, however, Riley’s testimony regarding gang affiliation does not show the motive for the crime as did the gang testimony in Pleasant. In Pleasant, the co-defendant asserted that he shot the store clerk because he was a gang member and was following gang order. Riley testified neither that he was in a gang, nor that he was following an order when he went with the men to the Millers’ house.

¶ 40. In Goree v. State, 748 So.2d 829, 838(¶ 38) (Miss.Ct.App.1999), this Court found that the trial court erred in allowing the State to introduce evidence of the defendant’s gang membership in an aggravated assault case. Although we recognized that a defendant’s gang affiliation could be1 relevant in certain circumstances, we further found that it must be supported by adequate corroborating evidence, more than mere speculation, in order to overcome the resulting prejudice. Id. at 838. The reasoning of Goree applies to the case at bar.

¶ 41. Riley’s' bare assertion that he was afraid of the men because they were in a gang was the only evidence of gang affiliation introduced by the State at trial. The State asserts that the probative value of the gang testimony was “to complete the story,” i.e., to explain to the jury why Riley served as the look-out. Nonetheless, as in Goree, the State provided no corroborating evidence to directly link Hudson’s gang membership to the crime committed against Miller. With no such evidence linking the two, any relationship between the crime and Hudson’s gang membership was mere speculation on the part of Riley. Furthermore, on cross-examination Riley stated his only basis for asserting Hudson was in a gang was from what one other person had told him. Based on Goree, speculation is not enough to overcome the prejudice created when a witness alleges that a'defendant is a member of a gang. Consequently, this highly prejudicial testimony had no probative value to show motive. Therefore, I conclude that the trial court erred in admitting the gang testimony and would reverse and remand for a new trial.

. KING, C.J., AND IRVING, J., JOIN THIS OPINION.


source: Caselaw Access Project

author: ISHEE, J., GRIFFIS, J.,

license: Public Domain

text:
    James Robert GOODIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KA-00756-COA.
    Court of Appeals of Mississippi.
    May 1, 2007.
    Rehearing Denied Oct. 9, 2007.

      John Carl Helmert, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. James Robert Goodin was convicted of rape and sexual battery in the Circuit Court of Lee County. He was sentenced to serve life imprisonment for rape and thirty years for sexual battery, with both sentences to run concurrently, in the custody of the Mississippi Department of Corrections, and to pay a fine in the amount of $5,000 and court costs. Goodin’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial was denied by the trial court. Aggrieved, Goodin appeals. He asserts the following issues for our review:

I. Whether the trial court erred by not instructing the jury that it must find that the alleged victim resisted a forcible rape with all reasonable force.
II. Whether the evidence presented at trial was legally insufficient to allow a conviction of rape.
III. Whether the trial court erred by allowing a substantive amendment of the indictment to change the charge from rape to sexual battery.
IV. Whether the trial court erred by allowing improper redirect examination of Donna Franks.

Finding no error, we affirm.

FACTS

¶2. On April 16, 2004, Goodin was indicted by a Lee County grand jury for two counts of forcibly raping T.L. Specifically, Count I of the indictment alleged that Goodin did “wilfully, unlawfully and felo-niously against her will, ravish and carnally know T.L., a female human being ... by forcibly inserting his penis inside [her] vagina.” Count II of the indictment alleged that Goodin did “wilfully, unlawfully and feloniously against her will rape, ravish and carnally know T.L., a female human being ... by forcibly inserting his penis inside [her] rectum.” On February 8, 2006, the State filed a motion and appeared before the court on the said motion to strike the words “rape, ravish and” from Count II of the indictment, asserting that the words were mere surplusage. The court overruled the State’s motion, finding that it was not timely.

¶ 3. The jury trial began on February 8, 2006. Officer Donna Franks, a criminal investigator with the Lee County Sheriffs Department, testified that she was assigned to investigate T.L.’s rape. She further testified that she interviewed T.L., who had a learning disability, and that T.L.’s story was always consistent. During cross-examination, Goodin’s defense counsel asked Officer Franks whether a rape kit was performed on T.L. Officer Franks replied that a medical examination was performed, but not a rape kit. On redirect, Officer Franks testified that she presented the results of the exam, which revealed anal and vaginal penetration, to the grand jury, who subsequently returned with the indictment against Goodin.

¶ 4. Chris Hopkins testified that he caught Goodin twice “messing with [T.L.]” Hopkins explained that the first time he caught Goodin, Goodin was in a shed alone with T.L. and Hopkins could not open the door. When Hopkins was finally able to open the door, Goodin was buttoning up his pants and buckling his belt. Hopkins further explained that the second time he caught Goodin, Goodin was in the bedroom of the trailer where they lived “laying in the bed with [T.L.] messing with her.” According to Hopkins, Goodin threatened him and beat him badly to prevent him from telling “the authorities at school.”

¶ 5. V.H., T.L.’s twenty-year-old sister, testified that, when Hopkins told their mother about what happened between Goodin and T.L. in the shed, Goodin took a baseball bat and beat Hopkins with it. V.H. also testified that, at night on five or six occasions, Goodin came into the bedroom that she shared with T.L., and took T.L. back to his bedroom. V.H. further testified that on one occasion, she saw T.L. lying on the bed in her mother and stepfather’s bedroom, right beside Goodin.

¶ 6. T.L., who was twenty-four at the time of the trial, testified that she took special education classes and that she could not read or write. She further testified that Goodin “messed” with her and that he stuck his penis in her mouth, between her legs and inside of her, between her breasts, and inside her “behind.” According to T.L., Goodin did this to her on numerous occasions, always at night, either in Goodin’s bedroom, the kitchen, or the living room. She testified that Goodin had been doing it to her since she was twelve.

¶ 7. Regarding the element of force, T.L. testified that she was unable to get away from Goodin when he was on top of her. T.L. also testified that, when she told Goo-din to stop, he ignored her. According to T.L., Goodin forced her to take her clothes off, although he did not beat her into doing so. T.L. further testified that she never cried out when Goodin “messed” with her because she was scared.

¶ 8. Goodin testified that he never had sex with T.L. or touched her inappropriately. He explained that he never had the opportunity to be sexually involved with T.L. because he was never alone with her, as he worked all day and during the night, his wife and the other children were always there.

¶ 9. After the State finally rested, the court heard objections to jury instructions. The court sua sponte addressed the problem with Count II of the indictment, namely, that Count II charged Goodin with rape, but stated that Goodin inserted his penis inside the rectum, not the vagina, of the victim. The State agreed with the court- that Count II was inconsistent in that the act of rape involves penetration of the vaginal area, while sexual battery required insertion of the penis into any area against the victim’s will. Consequently, the State requested that the word “rape” be removed from Count II so that the indictment would fit the statutory language for sexual battery. Goodin asserted that the indictment was handed down two years before the trial and that the State had had plenty of opportunities to amend the indictment. Although the court agreed with Goodin that it was unfair to “change the name of the game” on the day of the trial, the court was reluctant to let the jury deliberate Count II for rape when the statutory definition of rape did not include what was charged in Count II, i.e., anal penetration. Consequently, the trial court allowed the State to strike the word “rape” from the jury instructions regarding Count II.

¶ 10. On February 9, 2006, the jury found Goodin guilty of Count I and Count II. Goodin was sentenced to serve life for Count I and thirty years for Count II, with both sentences to run concurrently, in the custody of the Mississippi Department of Corrections, and to pay a fine of $5,000 and court costs. Goodin’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial was denied by the trial court.

. ISSUES AND ANALYSIS

I. Whether the trial court erred by not instructing the jury that it must find that the alleged victim resisted a forcible rape with all reasonable force.

¶ 11. “In determining whether error lies in the manner in which the jury was instructed, the various requested instructions are not considered in isolation. Rather, the instructions actually "given must be read as a whole.” Sheffield v. State, 844 So.2d 519, 524(¶ 12) (Miss.Ct.App.2003) (citing Turner v. State, 721 So.2d 642, 648(¶ 21) (Miss.1998)). No reversible error will be found if the instructions fairly announce the law of the case and create no injustice. Id. (citing Coleman v. State, 697 So.2d 777, 782 (Miss.1997)). Although a defendant is entitled to jury instructions which present his theory of the case, “this entitlement is limited to instructions that correctly state the law, are not covered fairly elsewhere in the instructions, and have a foundation in the evidence.” Sproles v. State, 815 So.2d 451, 454(¶ 9) (Miss.Ct.App.2002) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)).

¶ 12. Goodin asserts that the trial court erred in refusing to instruct the jury that, in order to find him guilty of rape, it must find that Goodin had sexual intercourse with T.L. “despite all reasonable available physical resistance on her part to the use of force.” The trial court struck the aforementioned language from requested jury instruction D-8, and granted jury instruction C-8, which provided in relevant part the following:

[I]n order to find the defendant, James Robert Goodin, guilty of the crime of rape, you must find from the evidence-in this case, beyond a reasonable doubt, that:
1) T.L. was a human female;
2) That the defendant had sexual intercourse with T.L. by actual penetration of her private parts, against her will.
' 3) Between the dates of June 1, 2002 and May 31, 2003.

¶ 13. Goodin argues that jury instruction C-8 failed to present the jury with the defense of consent through lack of resistance, and that no other instruction informed the jury of the requisite resistance of T.L. Consequently, Goodin asserts that the trial court committed reversible error because the jury was not required to find that either T.L.’s resistance was overcome by force, or she submitted while under reasonable apprehension of great bodily harm.

¶ 14. The State maintains that the language excised from requested jury instruction D-8 assumed that a lack of any physical resistance by T.L. was tantamount to her consent. We agree. The law is clear in Mississippi that physical resistance is not required for a rape conviction when the victim failed to resist out of reasonable fear of great bodily harm. Madere v. State, 794 So.2d 200, 210-11(¶26) (Miss.2001) (citing McQueen v. State, 423 So.2d 800, 802 (Miss.1982)). Goodin’s requested jury instruction did not give the jury an opportunity to find that T.L. failed to resist because of a reasonable apprehension of great bodily harm. On the contrary, the requested jury instruction required the jury to find that T;L. used “all reasonable available physical resistance on her part to the use of force” in order to find Goodin guilty of rape. Consequently, we find that the trial court did not err in refusing to grant a jury instruction that would have incorrectly stated the law. This issue is without merit.

II. Whether the evidence presented at trial was legally insufficient to allow a conviction of rape.

¶ 15. When inquiring whether sufficient evidence exists to support a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). This Court must reverse and render if the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.” Id. (citing Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, where substantial evidence of such quality and weight exists to support the verdict, and where reasonable and fair-minded jurors may have found the defendant guilty, we must affirm the judgment of the trial court. McClendon v. State, 852 So.2d 43, 47(¶ 11) (Miss.Ct.App.2002) (citing Baker v. State, 802 So.2d 77, 81(¶13) (Miss.2001)).

¶ 16. Goodin asserts that no rational jury could have found him guilty of rape because the State did not present any evidence that force was used against T.L. Goodin further asserts that T.L. could not have feared great bodily harm because she did not scream when she was being attacked by Goodin. We disagree.

¶ 17. T.L. testified that Goodin was between her legs and inside of her, and that he did this to her on numerous occasions at night. T.L. also testified that she was unable to get away from Goodin when he was on top of her. Moreover, T.L. specifically testified that she would tell Goodin to stop, but that he ignored her. Although T.L. testified that Goodin did not beat her during the attacks, she did testify that Goodin forced her to take her clothes off. T.L. also explained that she did not scream because she was scared.

¶ 18. In addition to T.L.’s testimony, both V.H. and Hopkins testified that Goo-din “messed with” T.L. Specifically, Hopkins testified that he caught Goodin “messing with [T.L.]” on two separate occasions. On the first occasion, Goodin was in a shed alone with T.L. and Hopkins could not open the door. When Hopkins was finally able to open the door, Goodin was buttoning up his pants and buckling his belt. On the second occasion, Hopkins saw Goodin lying in the bed with T.L. and “messing with [her].” V.H. testified that Goodin came into their bedroom at night, on five or six occasions, and took T.L. back to his bedroom. V.H. also testified that on one occasion, she saw T.L. lying in their mother’s bed beside Goodin.

¶ 19. Based on the aforementioned testimony, we find that substantial evidence supports the verdict, such that reasonable and fair-minded jurors may have found Goodin guilty of rape. Therefore, this issue is without merit.

III. Whether the trial court erred by allowing a substantive amendment of the indictment to change the charge from rape to sexual battery.

¶ 20. Rule 7.09 of the Uniform Rules of Circuit and County Court provides that “[a]ll indictments may be amended as to form but not as to the substance of the offense charged.” Amendments of substance to an indictment must be made by a grand jury. Spann v. State, 771 So.2d 883, 898(¶ 44) (Miss.2000) (citing Miller v. State, 740 So.2d 858, 862(¶13) (Miss.1999)). Rule 7.09 further provides that an “[ajmendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” In other words, an indictment may be amended if the amendment “does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case.” Griffin v. State, 584 So.2d 1274, 1275 (Miss.1991) (citing Wilson v. State, 574 So.2d 1824, 1333 (Miss.1990)). If the defense to the original indictment is equally applicable to the amended indictment, then the amendment to the indictment is permissible, as it is one of form, not substance. Frazier v. State, 907 So.2d 985, 994(¶ 31) (Miss.Ct.App.2005) (citing Adams v. State, 772 So.2d 1010, 1021(¶ 52) (Miss.2000)).

¶ 21. Goodin asserts that the amendment to the indictment in this case did not constitute the removal of surplus language because he lost the defense of lack of force when charged with the crime of sexual battery as opposed to rape. Mississippi Code Annotated section 97-3-95 provides in relevant part that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... another person without his or her consent.” On the other hand, Mississippi Code Annotated section 97-3-65(4)(a) provides in relevant part that “[e]very person who shall have forcible sexual intercourse with any person ... shall be imprisoned for life.”

¶22. Although rape requires “forcible sexual intercourse,” and sexual battery requires sexual penetration without consent, the indictment specifically put Goodin on notice that he was charged with “forcibly inserting his penis inside [T.L.’s] rectum.” Goodin’s defense to this charge was not that it happened and was consensual, but that it did not happen. He testified that he never had sexual relations with T.L. and that he never touched her inappropriately. Therefore, we find that his defense to the original indictment was equally applicable to amended indictment. Consequently, we further find that the amendment to the indictment was permissible, as it was one of form rather than substance. This issue is without merit.

IV. Whether the trial court erred by allowing improper redirect examination of Donna Franks.

¶ 23. Goodin asserts that the trial court erred in overruling his objection to the State’s redirect examination of Officer Franks. Goodin maintains that when the State asked Officer Franks who performed T.L.’s medical exam on redirect, it exceeded the scope of Goodin’s cross-examination of the same witness. Goodin further asserts that prejudice from the improper redirect is clear because, had the State not asked Officer Franks about the medical exam, Officer Franks would not have been able to volunteer the results of the exam, i.e., that the exam showed anal and vaginal penetration.

¶24. The line of questioning explored by Goodin during cross-examination was as follows:

[Defense counsel]: Okay. Was there ever any rape kit done?
[Officer Franks]: There wasn’t a rape kit. There was a medical exam—
[Defense counsel]: Okay.
[Officer Franks]: — done.
[Defense counsel]: All right. But there was no rape kit done, correct?
[Officer Franks]: No, sir, there wasn’t.

On redirect, the State conducted the following examination of Officer Franks:

[The State]: Officer Franks?
[Officer Franks]: Yes.
[The State]: You were asked about a medical exam.
[Defense Counsel]: Your Honor, I did not ask about any medical exam, Your Honor. I asked if there was any rape kit conducted.
THE COURT: The objection will be overruled.
[The State]: You stated there was a medical exam done?
[Officer Franks]: Yes, it was.
[The State]: Who did the medical exam?
[Officer Franks]: Dr. Linda Chidester.
[The State]: And do you know where Dr. Chidester is now?
[Officer Franks]: She has moved to Jamaica, but there was anal and vaginal penetration.
[Defense counsel]: Your Honor, I object.
THE COURT: Don’t tell what the examination was, now.
[Officer Franks]: Yes, sir.
[The State]: Did you have the results of that exam during your investigation?
[Officer Franks]: Yes.
[The State]: And what did you do after you had all the evidence of this case? What did you do next with the case?
[Officer Franks]: I presented it to the grand jury.
[The State]: And what did the grand jury do?
[Officer Franks]: They came back with an indictment.

¶ 25. This Court will not reverse the decision of a trial court regarding evidentiary matters unless the discretion of the trial court “so abused as to be prejudicial to a party.” Farris v. State, 906 So.2d 113, 119-20(¶ 20) (Miss.Ct.App.2004) (citing Beech v. Leaf River Forest Prods., 691 So.2d 446, 448 (Miss.1997)). “[T]rial courts have broad discretion in allowing or disallowing redirect examination of witnesses and when the defense attorney inquires into a subject on cross-examination of the State’s witness, the prosecutor on redirect is unquestionably entitled to elaborate on the matter.” Manning v. State, 835 So.2d 94, 99-100(¶ 15) (Miss.Ct.App.2002) (citing Greer v. State, 755 So.2d 511, 516(¶ 14) (Miss.Ct.App.1999)). Consequently, we will not disturb a trial court’s ruling on matters pertaining to redirect examination unless there has been a clear abuse of discretion. Farris, 906 So.2d at 119-20(¶ 20) (citing Lloyd v. State, 755 So.2d 12, 14(¶ 9) (Miss.Ct.App.1999)).

¶ 26. On his cross-examination of Officer Franks, Goodin inquired whether a rape kit had been performed on T.L. Although Goodin did not ask whether a medical exam had been performed, this information was volunteered by Officer Franks in response to Goodin’s line of questioning. Based on these facts, we cannot say that the trial court clearly abused its broad discretion when it allowed the State to redirect regarding information elicited by defense counsel during cross-examination. Therefore, this issue is without merit.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF COUNT I, RAPE, AND COUNT II, SEXUAL BATTERY, AND SENTENCE OF LIFE FOR COUNT I, AND THIRTY YEARS FOR COUNT II, WITH BOTH SENTENCES TO RUN CONCURRENTLY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND A FINE OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

KING, C.J., MYERS, P.J., IRVING, BARNES AND CARLTON, JJ., CONCUR. CHANDLER, J., CONCURS IN PAET. ROBERTS, J., CONCURS IN PART AND DISSENTS IN PART. GRIFFIS, J, CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J., CHANDLER AND ROBERTS, JJ.

GRIFFIS, J.,

Concurring in Part, Dissenting in Part:

¶ 28. I concur as to Issues I, II, and IV. With respect for the majority, I dissent from its decision to affirm on Issue III. I find that Goodin was prejudiced when the State amended Count II of the indictment from rape to sexual battery. ■ Therefore, I would reverse and render Goodin’s conviction as to Count II.

¶ 29. “This Court has often held that trial courts have no authority to grant substantive amendments to indictments.” Davis v. State, 684 So.2d 643, 660 (Miss.1996). “It is hornbook law that a prosecutor has no power to alter the substance of an indictment, either through amendment or variance of the proof at trial without the concurrence of the grand jury.” State v. Berryhill, 703 So.2d 250, 258 (Miss.1997). The test of whether a change to the indictment is one of substance is “whether or not a defense under the indictment of information as it originally stood would be equally available after the amendment is made.” Griffin v. State, 540 So.2d 17, 21 (Miss.1989) (quoting Reed v. State, 506 So.2d 277, 279 (1987)). Therefore, an indictment may only be amended at trial if the amendment is immaterial to the merits of the case and the defense will not be prejudiced by the amendment. Lester v. State, 692 So.2d 755, 774-75 (Miss.1997).

¶ 30. As the supreme court has recently explained:

Thus, taken together, this authority sets forth the following test for analyzing an amendment to an. indictment for the purpose of removing surplusage: (1) the removal of ■ the surplusage must not change the substance of the offense charged; (2) the defendant must be afforded a fair opportunity to present a defense and must not be unfairly surprised; (3) the removal of the surplus-age must not materially alter the essential facts of the offense; and (4) the removal of the surplusage must not alter a defense under the original indictment.

Lee v. State, 944 So.2d 35, 40(¶ 16) (Miss.2006) (emphasis added).

¶ 31. In Rhymes v. State, 638 So.2d 1270 (Miss.1994), it was error to amend an indictment from charging one type of sexual battery to another type of sexual battery. Specifically, Rhymes’s original indictment charged him with sexual battery “of a female under the age of fourteen.” Id. at 1272. The victim was actually 26. Id. After the jury was impaneled, the state moved to amend the indictment to charge sexual battery of a female “over fourteen years.” Id. Because he was entitled to a directed verdict'under the original indictment, the amendment was one of substance and “beyond the power of the circuit court and requires Grand Jury action to correct. It was reversible error for the circuit court to amend the indictment.” Id. at 1276.

¶32. This Court likewise came to the same conclusion where an indictment was amended from charging one type of rape to another type of rape. Moses v. State, 795 So.2d 569, 573(¶19) (Miss.Ct.App.2001). Originally, Counts Seven through Thirteen charged Moses with raping a female under the age of fourteen. Id. at 570(¶ 4). It was later discovered that the complainant was over fourteen at the time. Id. at 571(¶ 10). “The trial court’s solution to this was to permit the State to proceed to try those seven counts on the theory of a forcible rape of a person fourteen years old or older.” Id. at (¶ 11). The Court held this amendment:

was, beyond question, one of substance and not of form. The constituent elements of the two crimes are materially different. In the case of a child under ... fourteen ... consent is not an issue. However, as to the forcible rape of a person fourteen ... or older, ... consent ] ... may be offered as a defense.

Id. at 573(¶ 19). Because it was “self-evident that Moses would have been entitled to a directed verdict of acquittal under the indictment in its original form” the Court reversed and rendered the convictions under these counts. Id.

¶ 33. I believe Rhymes and Moses instruct our decision here. Count II originally charged Goodin with rape. Specifically, Count II originally read:

JAMES ROBERT GOODIN
COUNT II
in said County and State on the [sic] from the 1st day of June, A.D., 2002 through the 31st day of May, 2003, did willfully, unlawfully and feloniously against her will rape, ravish and carnally know [T.L.], a female human being, and at the time of said rape the said JAMES ROBERT GOODIN was eighteen (18) years of age or older by forcibly inserting his penis inside the rectum of [T.L.]; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

The only difference between Counts I and II was that Count I contained the word “vagina” instead of “rectum.” There were no specific statutes cited. The only words that give notice of the charge the state was seeking were “against her will rape, ravish and carnally know” and “said rape.”

¶ 34. After both sides rested, and after the court approved jury instructions, Count II was amended to charge sexual battery. Specifically, the phrase “rape, ravish and” and the word “rape” were deleted from the indictment. Defense counsel objected because the defenses of lack of vaginal penetration and lack of force were no longer available. In fact, the reason the State asked for and the trial court granted the amendment was because these elements could not be proven. It is telling that in opening arguments, both the State and defense counsel told the jury that the defendant was charged with rape only. Further, the State submitted a rape instruction on Count II. After the amendment, the court allowed the State to withdraw its rape instruction and substitute a sexual battery instruction. The defendant’s instructions still read that defendant was charged with rape. After both sides rested, and after the amendment was allowed, the State told the jury that he was charged with rape and sexual battery.

¶ 35. Rape is defined as “forcible sexual intercourse with any person.” Miss.Code Ann. § 97-3-65(4)(a) (Rev.2006). “Sexual intercourse” is limited to penis-vagina penetration. Miss.Code Ann. § 97-3-65(6) (Rev.2006). Sexual battery in this case was “sexual penetration with another person without his or her consent.” Miss. Code Ann. § 97 — 3—95(1)(a) (Rev.2006). “Sexual penetration” is much broader than “sexual intercourse” and includes sodomy. Miss.Code Ann. § 97-3-97(a) (Rev.2006).

¶ 36. Like Rhymes and Moses, the amendment in the instant case was prejudicial, because before the amendment, Goodin was entitled to a directed verdict on Count II. Rhymes, 638 So.2d at 1272; Pittman v. State, 836 So.2d 779, 785(¶21) (Miss.Ct.App.2002) (no evidence of vaginal penetration). This is because there was no sexual intercourse. This is an essential element of rape that is not an element of sexual battery. The issue of sexual intercourse was material to the merits of the State’s case. The amendment changed the entire offense charged. The circuit court was without authority to change the crime charged. Only the Grand Jury would have that authority.

¶ 37. As the majority discusses, another implication was an available defense of lack of force. Force is also an essential element of rape that is not an element of sexual battery. The majority reasons, however, that Goodin’s actual defense below was not lack of force. To the contrary, this was the very defense discussed in Issue II. Furthermore, all that is required is that “a” defense is no longer available. Lee, 944 So.2d at 40(¶ 16). Here, lack of force was one such defense. This argument also does not take into account that Goodin had the best defense of all: he was actually innocent of committing the crime of rape.

¶ 38. Finally, the majority reasons that Goodin knew he was “charged with ‘forcibly inserting his penis inside [T.L.’s] rectum.’ ” I must respectfully disagree. What Goodin knew was that he was “charged with” the crime of rape for committing the above sexual penetration. As the record indicates, the prosecution, the trial court, the defense, and the jury (before the amendment) all knew that the only thing the State sought was a conviction of rape in Count II. If the indictment was not sufficient to put the State and trial court on notice, it certainly is not enough to put the defendant on notice.

¶ 39. Another reason this case requires reversal is that Goodin did not have the opportunity to put on a defense, let alone “prepare” a defense to the crime of sexual battery for which he was ultimately convicted. He could neither cross-examine witnesses nor use compulsory process to that end. Unlike Rhymes and Moses, the amendment did not take place until after the defense rested. If it was nevertheless error for the trial court in Rhymes to grant a continuance to allow the defendant time to prepare a defense to that amended indictment, surely it is error for this trial court to have denied Goodin even that luxury.

¶ 40. I would reverse and render the conviction of Count II, and affirm the conviction of Count I.

LEE, P.J., and CHANDLER AND ROBERTS, JJ., JOIN THIS SEPARATE OPINION.


author: ROBERTS, J.,

text:
    Ingrid BELLEMERE, Appellant v. GEICO GENERAL INSURANCE COMPANY, Appellee.
    No. 2005-CA-00472-COA.
    Court of Appeals of Mississippi.
    May 15, 2007.
    Rehearing Denied Nov. 27, 2007.

      Robert H. Tyler, Biloxi, attorney for appellant.
    David Bruce Krause, Gulfport, Melanie M. Stewart, Edward C. Taylor, Gulfport, attorneys for appellee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Ingrid Bellemere was injured while traveling from Florida to Texas when the vehicle in which she was a passenger was struck from behind. While insurance coverage was eventually afforded to Bellem-ere, her claims were initially denied by GEICO. Subsequent to exhausting her coverage, Bellemere brought suit against GEICO and Betty Bowen, the tortfeasor. Bellemere alleged negligence against Bowen and requested contractual damages, in the form of an uninsured motorist claim, against GEICO as well as punitive damages. Following a settlement on the claim against Bowen, GEICO and Bellemere went to trial in the Circuit Court of Harrison County on the claims against GEICO. Subsequently, the trial court granted GEI-CO’s motion for directed verdict as to Bel-lemere’s punitive damages claims. The jury found for Bellemere on the remaining claim and awarded her $115,000. However this amount was reduced when the trial court granted GEICO’s post-trial motion to amend the judgment. Aggrieved, Bel-lemere now appeals and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUBMIT TO THE JURY INGRID BELLEMERE’S, APPELLANT, CLAIMS FOR COMMON LAW TORTIOUS BREACH OF CONTRACT AND/OR STATUTORY CLAIMS OF INSURANCE BAD FAITH, UNDER FLORIDA LAW.
II. WHETHER THE TRIAL COURT ERRED IN GRANTING GEICO GENERAL INSURANCE COMPANY’S, APPELLEE, MOTION TO AMEND THE JUDGMENT TO GIVE IT CREDIT FOR $50,000 RECEIVED BY BEL-LEMERE.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY ¶2. In 1993, Teddy Martin applied for and was issued an insurance policy under GEICO which covered a 1987 Cadillac. The policy contained $10,000.00 in personal injury protection coverage (PIP) and $10,000 for medical payments coverage. While the automobile was titled in both Martin’s and Bellemere’s name, the 1993 policy indicated that Martin was the sole owner. On February 12, 1997, Bellemere and Mártin were traveling from Florida to Texas returning from a business trip. While stopped at the intersection of Highway 49 and 90 in Gulfport, Mississippi, Martin, who was driving at the time, and Bellemere, who was a passenger, were injured when Bowen, who was also insured by GEICO, struck the Cadillac from behind. Bellemere incurred some medical expenses for injuries suffered as a result of the accident and made a claim on Martin’s policy for reimbursement and/or payment of her expenses. GEICO initially denied her claim in a letter dated June 6, 1997, explaining that PIP benefits did not extend to passengers who were non-resident relatives. Bellemere contested the decision in a letter dated September 17, 1997, and explained that she was an insured and co-owner of the vehicle. However, GEICO did not change its position and stated in a letter dated October 28, 1997, that it- could not extend PIP benefits. Bellemere sent a second letter in response to GEICO’s second denial and again explained that she was a named insured and co-owner of the vehicle. After reviewing Bellemere’s second letter, Wanda Bell, a PIP examiner for GEICO, forwarded it to GE CIO’s legal department. Michael Gil-liom, a claims attorney with GEICO, reexamined Bellemere’s claims and afforded her full coverage. At trial, Gilliom testified that this was the first time in his experience in which two individuals who were'not relatives and did not live together co-owned a vehicle that was insured by GEICO. Gilliom added that this same fact scenario had riot occurred again since Bel-lemere’s claim arose. He further explained that it was this unusual set of circumstances that delayed the decision to afford coverage.

¶ 3. Bellemere filed her complaint on February 4, 2000, alleging tortious breach of contract, emotional distress and gross negligence and requested contractual damages, in the form of an uninsured motorist claim, as well as punitive damages against GEICO. She also alleged negligence against Bowen. In April 2001, GEICO, on behalf of its insured, Bowen, settled with Bellemere in her suit against Bowen for the policy limits of $50,000.' A trial concerning the remaining claims against GEI-CO began June 1, 2004, and, as the insurance contract between Martin and GEICO stated as such, the parties stipulated that Florida law was controlling. Following the completion of both parties’ case-in-chief, the trial court granted GEICO’s motion for directed verdict on the ground that Bellemere had failed to comply with a Florida statutory provision regarding “first party” bad faith suits. The jury returned a verdict in Bellemere’s favor with regard to the uninsured motorist claim and awarded $115,000. Subsequent to the jury’s verdict, GEICO filed its motion to amend judgment- claiming, in part, that pursuant to Fla. Stat. § 627.727(6)(c), GEICO was entitled to set off Bowen’s $50,000 settlement against the $115,000 judgment. The trial court granted GEI-CO’s motion to amend in regards to the $50,000 set off, and this appeal followed.

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUBMIT TO THE JURY INGRID BELLEM-ERE’S, APPELLANT, CLAIMS FOR COMMON LAW TORTIOUS BREACH OF CONTRACT AND/OR STATUTORY CLAIMS OF INSURANCE BAD FAITH, UNDER FLORIDA LAW.

¶ 4. Bellemere first argues that the lower court erred in granting GEICO’s motion for directed verdict regarding her claim for tortious breach of contract. After vigorous argument from both parties, the lower court granted the motion based on its conclusion that Bellemere had failed to satisfy the requirements of Fla. Stat. § 624.155, to include notice, cure and the proof of bad faith in GEICO’s general business practices. However, Bellemere argued that she did not allege a violation of section 624.155, but an independent tort worthy of punitive damages and not dependent on the provisions of section 624.155.

¶ 5. Our standard of review of a trial court’s grant of a motion for directed verdict is clear.

This Court will consider the evidence in the light most favorable to the non-movant, giving that party ... the benefit of all favorable inferences that may be reasonably drawn from the evidence. We must decide if the facts so considered point so overwhelmingly in favor of the movant that reasonable jurors could not have arrived at a contrary verdict. Thus, if reasonable jurors could not have arrived at a different verdict, the grant of a directed verdict must be affirmed on appeal. On the other hand if there is substantial evidence, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, we cannot affirm the grant of a directed verdict.

Forbes v. GMC, 935 So.2d 869(¶ 3) (Miss.2006) (citing Cousar v. State, 855 So.2d 993(¶ 14) (Miss.2003)).

¶ 6. Section 624.155 allows an insured to bring a suit for bad faith against his insurer for failing to pay his claim provided certain provisions are met. Fla. Stat. § 624.155 (1999). Before the adoption of section 624.155, Florida courts refused to recognize a cause of action by an insured against his insurer alleging the insurer, in bad faith, refused to settle his claim; i.e., a “first party” bad faith cause of action. Opperman v. Nationwide Mut. Fire Ins. Co., 515 So.2d 263, 265-67 (Fla.Dist.Ct.App.1987). While “first party” bad faith claims were not permitted, if an insured could allege an independent tort, such as fraud or intentional infliction of emotional distress, he could proceed against the insurer on those claims and receive punitive damages. Greene v. Well Care HMO, Inc., 778 So.2d 1037, 1042 (Fla.Dist.Ct.App.2001); see also Griffith v. Shamrock Village, Inc., 94 So.2d 854, 858 (Fla.1957) (holding that while punitive damages are normally not recoverable for breach of contract, “where acts constituting a breach of contract also amount to a cause of action in tort there may be recovery of exemplary damages ... however, the breach must be attended by some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort”). GEICO essentially argued during its motion for directed verdict that with the adoption of section 624.155 an insured’s causes of action against his insurer were limited to those allowed by the statute. However, section 624.155(8) explicitly states that, “[t]he civil remedy specified in this section does not preempt any other remedy or cause of action provided for pursuant to any other statute or pursuant to the common law of this state.” Fla. Stat. § 624.155(8). As such, the trial court erred in granting GEICO’s motion for directed verdict as a result of any deficiency on Bellemere’s part in regards to compliance with section 624.155. However, a directed verdict in GEICO’s favor was proper on other grounds.

¶ 7. Bellemere alleged in her complaint that,

The conduct of Defendant GEICO rises to the level of a tortious breach of contract for which Plaintiff is entitled to punitive or exemplary damages in addition to actual damages suffered as a result of the breach of the insurance contract. Further, said Defendant has willfully and intentionally wronged the Plaintiff and has treated the Plaintiff with such gross and reckless negligence as to justify the imposition of punitive damages....

Bellemere further alleged that, “[a]s a further proximate result of the wrongful conduct of the Defendant GEICO, the Plaintiff has suffered anxiety, worry, mental and emotional distress and other incidental damages_” It seems clear that Bellem-ere, in requesting punitive damages, alleged gross negligence and emotional distress. In fact, in response to the concerns of the lower court in regards to the applicability of the civil remedy statute, Bellem-ere’s counsel stated, “I did not plead a count of bad faith ... our claim is that [GEICO] tortiously, by gross negligence, breached a contract of insurance ... [a]nd I never alleged that [GEICO] didn’t attempt in good faith to settle claims.”

The grounds necessary to allow recovery of punitive damages under Florida’s common law rules are that the conduct of the insurer against the interests of the insured must be so egregious as to constitute an independent tort. T.D.S. v. Shelby Mutual Insurance Co., 760 F.2d 1520 (11th Cir.1985). In general, dishonesty, misrepresentations, and fraudulent conduct must be alleged and established. See Butchikas v. Travelers Indemnity Co., 343 So.2d 816 (Fla.1976); Hartford Accident & Indemnity Co. v. Mathis, 511 So.2d 601 (Fla. 4th DCA), rev. denied, 518 So.2d 1275 (Fla.1987); Allstate Insurance Co. v. Douville, 510 So.2d 1200 (Fla. 2d DCA), rev. denied, 519 So.2d 986 (Fla.1987); Smith v. Standard Guaranty Insurance Co., 435 So.2d 848 (Fla. 2d DCA), rev. denied, 441 So.2d 633 (Fla.1983).

Dunn v. Nat’l Sec. Fire & Casualty Co., 631 So.2d 1103, 1108 (Fla. 5th DCA 1993). The Florida Supreme Court has routinely set the bar for punitive or exemplary damages high, and requires sufficient “evidence of a continued course of dishonestly or conduct of such a gross and flagrant nature showing wantonness and recklessness to the welfare of its insured ...” in order to recover such damages. Hartford Acc. Indem. Co. v. Mathis, 511 So.2d 601, 602 (Fla. 4th DCA 1987). Additionally, an insured’s conduct must “rise to the level of deliberate, overt and dishonest dealings .... ” Smith v. Std. Guar. Ins. Co., 435 So.2d 848, 849 (Fla.Dist.Ct.App.1983), superseded on other grounds by statute, Fla. Stat. § 624.155. Finally, at least one Florida court has held that “even deliberate refusal to pay a legitimate claim will not justify a punitive award.” Indus. Fire & Casualty Ins. Co. v. Romer, 432 So.2d 66, 68 (Fla.Dist.Ct.App.1983), superseded on other grounds by statute, Fla. Stat. § 624.155.

¶ 8. The record shows that GEICO initially denied Bellemere both the medical payment coverage and PIP coverage as a result of her inaccurately perceived status as a non-owner and non-insured. Following the February 12, 1997 accident, Sonja Daugherty, a GEICO telephone adjuster, repeatedly attempted to contact Bellemere in order to determine whether she would be afforded coverage. Daugherty testified that while speaking with Bellemere on April 28, 1997, Bellemere informed her that she was a co-owner of the vehicle. After consulting with her supervisors, Daugherty informed Bellemere that she would not be extended PIP coverage as, pursuant to Florida statutory law, PIP benefits were not available to passengers who are not resident relatives. Daugherty testified that it was her opinion that the medical payments coverage should normally be paid regardless of the passenger’s status; however, she could not recall why medical payments coverage was not immediately extended in Bellemere’s case. At this point, Bellemere’s case was handed over to Wanda Bell, a PIP examiner. She received the September 17, 1997, letter from Bellemere stating that she was an insured and co-owner of the vehicle. Bell discussed the matter with her supervisor and, in response, GEICO sent Bellemere a letter dated October 28, 1997 in which it explained that Florida law precluded PIP coverage for her, given that she was a passenger in a non-owned vehicle, not a named insured, not a resident relative, and the accident did not occur in Florida. After another letter from Bellemere in response to GEICO’s October 28,1997 letter, Bellemere’s claim was forwarded to GEI-CO’s legal department, and after its review of the circumstances surrounding Bellem-ere’s claim, she was afforded full medical payment and PIP coverage.

¶ 9. While Gilliom, GEICO’s claims attorney who made the final decision to afford coverage, admitted that GEICO may have made a mistake in initially denying Bellemere’s claims, there was no testimony or other evidence indicating that GEICO’s actions rose to the level required under Florida law to support punitive damages. Additionally, Gilliom’s testimony explaining that the delay of coverage came as a result of the unique circumstances surrounding the claim, further supports the granting of the directed verdict. As such, after reviewing the record and applicable Florida law, we find that reasonable jurors could not have arrived at a contrary verdict on the issue of punitive damages and affirm the trial court’s grant of GEICO’s motion for directed verdict.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING GEICO GENERAL INSURANCE COMPANY’S, APPELLEE, MOTION TO AMEND THE JUDGMENT TO GIVE IT CREDIT FOR $50,000 RECEIVED BY BELLEMERE.

¶ 10. Bellemere next claims that the trial court erred in allowing GEICO to offset the $50,000 paid on behalf of its insured, Bowen. While Bellemere concedes that under Florida law, an under-insured motorist carrier such as GEICO is entitled to a complete set off of any liability payments made by the under-insured tortfeasor, she argues that GEICO waived this right. Our standard of review regarding the granting of a motion to amend judgment is abuse of discretion. Howell v. State, 860 So.2d 704 (11212) (Miss.2003).

¶ 11. The central issue on review is whether GEICO waived its right to set-off. We find that it did not. Bellemere argues that in a letter dated September 2, 1999, GEICO expressed its intention to waive its right to offset. GEICO’s letter stated, in pertinent part, “I did receive your letter dated August 24, 1999. Please be advised that we are willing to waive our subrogation interest against any Underin-sured Motorist settlement that may be made at a later date.” As stated in the letter, this was a response to Bellemere earlier correspondence. Her August 24, 1999 letter stated, in pertinent part, “[t]he purpose of this letter is to formally request permission to sue and/or settle the claim with Geico, where Bowen is the insured. Please provide me with said permission in writing as soon as possible so that I may proceed as necessary.”

¶ 12. Subrogation is defined as, “[t]he substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies or securities.” Black’s Law Dictionary 1427 (6th ed.1990). As GEICO was not only Bellemere’s insurer, but also Bowen’s, it had the right to step into Bel-lemere’s shoes once a settlement was reached in regards to her claims against Bowen, the tortfeasor, and recoup the amount extended. Reading GEICO’s letter in isolation lends to two interpretations, each adopted by the respective parties in the case sub judies. The first is that GEICO waived its right to a subrogation claim against its insured, Bowen. The second is that GEICO waived its right to a statutorily granted set off of any liability payments made on behalf of the under-insured tortfeasor. Waiver has been defined by the Florida Supreme Court “as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Servs. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). In consideration of Bellemere’s August 24,1999 letter, we cannot say that the trial court abused its discretion in finding that GEICO’s letter in response did not waive its right to set off, but only its right to subrogation concerning Bowen.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ„ CONCUR. IRVING, J., CONCURS IN PART AND DISSENTS IN PART.