author: WALLER, Presiding Justice,

text:
    Julian MINGO v. STATE of Mississippi.
    No. 2005-KA-01238-SCT.
    Supreme Court of Mississippi.
    Dec. 7, 2006.

      Charles E. Miller, Mccomb, Attorney for Appellant.
    Office of the Attorney General, by John R. Henry, Jackson, Attorney for Appellee.
    Before WALLER, P.J., DIAZ and CARLSON, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. A Lowndes County jury convicted Julian Mingo of three counts of fondling a fifteen-year-old boy. Mingo was sentenced to three ten-year terms of imprisonment, to be served consecutively, followed by five years of post-release supervision. On appeal, Mingo challenges various rulings by the trial judge, the sufficiency of the evidence supporting his conviction, and the length of his sentence. Finding each of Mingo’s claims to be without merit, we affirm the judgment of conviction and the sentence imposed.

FACTS

¶2. Julian Mingo was employed as the band and choral director at a private school in Lowndes County, Mississippi. The victim, who was fourteen years old at the time the relevant incidents began, was a student at the school with an interest in the fine arts. The victim’s parents hired Mingo as a private voice coach in the summer of 2004, believing that private instruction would help their son get admitted to a school for the performing arts.

¶ 3. The lessons were conducted in the school’s band hall, often in a small private practice room. At the victim’s first lesson in early June, Mingo informed the victim that he might use some “weird techniques” to train the victim. At the second lesson on June 16, 2004, Mingo led the victim to a small private practice room and reminded him of his “weird techniques.” Mingo then turned off the lights, stood behind the victim, and began fondling him. He told the victim not to tell anyone. The victim continued to take lessons from Mingo over the summer and into the fall. Over the course of the lessons, Mingo repeatedly fondled the victim.

¶ 4. The victim finally told a friend about Mingo’s actions on October 19, 2004. The victim’s friend told another classmate of the victim on October 20. This classmate asked the victim about the allegations and took him to the school counselor to have the victim explain what had happened. The counselor called the school headmaster who, in turn, called the chief of police. The chief of police interviewed the victim, gave him a small tape recorder to put in his pocket, and asked him to confront Min-go in his office. The victim went to Min-go’s office at the beginning of an afternoon class and asked him why he had fondled the victim. Mingo apologized repeatedly and said that he would stop. After the victim left Mingo’s office and went back to the police chief, Mingo left his office and gave a speech to his students about the importance of forgiveness.

¶ 5. Later that afternoon, the parent of another student, who had heard about the allegations against Mingo, went to the school and confronted him. Mingo admitted touching the student, but said there had been a misunderstanding. At the end of the school day, the school’s headmaster asked Mingo to leave the school until the matter was resolved.

¶ 6. The victim gave a more extensive statement to the police on October 20th. Based on his statement, the Columbus police sought to interview Mingo. They asked the headmaster to contact Mingo and ask him to come to the police station for questioning. Mingo went to the police station voluntarily to give a statement in the afternoon on October 20th. Although he was not placed in custody at that time, he was advised of his Miranda rights and signed a waiver indicating that he understood those rights. In his statement to police, Mingo admitted touching the victim. Mingo consented to having his home searched, and, in the course of their search, the police found an eight millimeter tape of a young male performing a sexually explicit act.

¶ 7. After being convicted of three counts of fondling and being sentenced to three ten-year terms, to run consecutively, Mingo appeals.

DISCUSSION

(1) Legality of Arrest

¶ 8. Mingo claims that his arrest was without probable cause since it was based solely on the testimony of the victim. Determinations of reasonable suspicion and probable cause are reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999). However, we will conduct a de novo review of the trial judge’s determination “based on historical facts reviewed under the substantial evidence and clearly erroneous standards.” Dies v. State, 926 So.2d 910, 917 (Miss.2006) (citing Floyd, 749 So.2d at 113).

¶ 9. Mingo significantly misstates the record in implying that he was arrested after the victim gave a statement to the police. The record reflects that after the police took the victim’s statement, Mingo was asked to come to the police station to answer questions concerning the accusations of the victim. He voluntarily agreed to give a statement and was not arrested until after he had given the statement. The statements of the victim and Mingo’s own corroboration were more than sufficient to establish probable cause.

¶ 10. Even if Mingo had been arrested in response to the victim’s statement, Min-go cites no authority for the principle that a witness’ testimony is insufficient to establish probable cause. The State persuasively argues that since the uncorroborated testimony of a victim can provide the basis for a finding of guilt beyond a reasonable doubt, see Collier v. State, 711 So.2d 458, 462 (Miss.1998), it must by definition suffice for the lesser finding of probable cause.

¶ 11. This claim is without merit.

(2) Admissibility of Statement

¶ 12. Mingo argues that his statement to police before his arrest is inadmissible because he was not properly given his Miranda warnings. The threshold question in a Miranda rights analysis is whether the defendant was in custody and being interrogated when the statement in question was made. Drake v. State, 800 So.2d 508, 513 (Miss.2001). A person is “in custody” if a reasonable person would feel that they were going to jail and not just being temporarily detained. Godbold v. State, 731 So.2d 1184, 1187 (Miss.1999). Whether a reasonable person would feel that she was “in custody” depends on the totality of the circumstances, and may include factors such as: (a) the place of interrogation; (b) the time of interrogation; (c) the people present; (d) the amount of force or physical restraint used by the officers; (e) the length and form of the questions; (f) whether the defendant comes to the authorities voluntarily; and (g) what the defendant is told about the situation. Hunt v. State, 687 So.2d 1154, 1160 (Miss.1996). If a person is determined not to be in custody and is not being interrogated, the Miranda protections do not attach. Voluntary statements made by a defendant do not trigger the requirements of Miranda. Drake, 800 So.2d at 513

¶ 13. As noted above, Mingo voluntarily went to the police station, was told about the victim’s accusations, and agreed to give a statement to police. He was not placed under arrest before questioning, and the officers emphasized that he was free to end his questioning at any time. Given these circumstances, Mingo was not “in custody” and, therefore, was not entitled to the Miranda protections. Nevertheless, out of caution the officers did read Mingo his Miranda warnings, and Mingo signed a waiver indicating that he fully understood those rights. During a hearing on pretrial motions, Mingo conceded that he had been given his Miranda warnings and had fully understood his rights. This claim is without merit.

(3) Rulings on Issuance of Two Subpoenas

¶ 14. Mingo claims that the trial court erred in denying him access to his personal notes and documents contained in his desk at the academy and to the records of Cole Refrigeration, a company that worked at the academy during the summer in 2004. We review a trial court’s rulings on matters of evidence, relevancy and discovery violations for an abuse of discretion. Flora v. State, 925 So.2d 797, 819 (Miss.2006) (citing Montgomery v. State, 891 So.2d 179, 181 (Miss.2004)).

¶ 15. Regardless of Mingo’s claims to the contrary, the record indicates that the trial judge was willing to issue a limited subpoena duces tecum for any personal writings of Mingo held by the school, but denied Mingo access to the victim’s school record. The court issued the limited subpoena, but it does not appear that the school withheld any of Mingo’s personal writings. We do not review allegations of error that are unsupported by the record. See, e.g., Ferrell v. River City Roofing, Inc., 912 So.2d 448, 457 (Miss.2005) (“[T]his Court declines to review such bare allegations^] ... which are not supported by the record on appellate review.”); Vinson v. Johnson, 493 So.2d 947, 950 (Miss.1986) (“this Court will not review any allegation of error which is unsupported by the record.”). There is no indication that the trial court abused its discretion in its ruling.

¶ 16. Mingo claims that Cole Refrigeration’s records would show that he was not alone with the victim at the band hall on certain dates referenced in the indictment. The trial judge contacted the president of Cole Refrigeration, who informed him that the company did not work in the band hall. The trial judge therefore denied the subpoena as irrelevant to the case and informed defense counsel that, if he wanted to challenge the ruling, he could subpoena the president of the company to testify. There is nothing in the record indicating that Mingo chose to subpoena Cole’s president. The trial judge did not abuse his discretion in denying the subpoena. See Johnson v. Fargo, 604 So.2d 306, 309 (Miss.1992) (“A trial judge has the discretion to exclude irrelevant evidence.”).

¶ 17. These claims are without merit.

(4) Batson Rule Violation

¶ 18. During voir dire, Mingo challenged four of the State’s peremptory strikes against African-American jurors, claiming that they violated the Batson v. Kentucky rule requiring the State to provide race-neutral reasons for exercising peremptory strikes. 476 U.S. 79,106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Our standard of review for such claims is well settled:

[The] standard of review for Batson claims ... accords “great deference” to a trial judge’s factual findings, reversing only where the finding of the lower court was clearly erroneous or against the overwhelming weight of the evidence. “Great deference” has been defined in the Batson context as insulating from appellate reversal any trial findings which are not “clearly erroneous.” This deference specifically includes a trial judge’s determination of any racially discriminatory motive underlying any articulated reasons given.

Baldwin v. State, 784 So.2d 148, 155 (Miss.2001) (citations omitted).

¶ 19. Mingo objects to the striking of four African-American veniremen. The first was struck because he lived in a high-crime area; the second, because she had written a number of bad checks and had been referred to the district attorney’s bad check unit; the third, because she failed to indicate that she had a son on probation when asked by the State; and the fourth, because she had a written bad checks and had been referred to the district attorney’s bad check unit, and because she had a friend or close relative who was being prosecuted by the district attorney.

¶ 20. Each of these reasons has been recognized by this Court as race-neutral. See, e.g., Snow v. State, 800 So.2d 472, 482 (Miss.2001) (striking a juror because of prior history of writing bad checks is race-neutral reason); Baldwin v. State, 784 So.2d 148, 155 (Miss.2001) (living in a high crime neighborhood constitutes a valid race-neutral reason); Magee v. State, 720 So.2d 186, 190 (Miss.1998) (striking juror because a family member had been convicted or charged with a crime is a valid race-neutral reason); Lockett v. State, 517 So.2d 1346 (Miss.1987) (articulating a non-exhaustive list of race-neutral justifications). Nothing in the record indicates that the State’s use of peremptory strikes against veniremen was pretextual or discriminatory. Moreover, three African-American veniremen were seated on the jury.

¶ 21. This claim is without merit.

(5) Motion to Suppress the Video of the Victim’s Statement to Police

¶ 22. Mingo claims that the admission of the video of victim’s statement to the police violated the confrontation clause of Sixth Amendment. After the victim testified, the State called the interviewing officer to the stand. During his testimony, the State moved to admit the video of the victim’s statement. The trial court denied the State’s motion, finding that video did not meet any of the exceptions to the hearsay rule under M.R.E. 802. During cross-examination, defense counsel implied that the tape had been fabricated. While conducting redirect examination of the interviewing officer, the State again moved to admit the tape as a prior consistent statement under M.R.E. 801(d)(1)(B) in rebuttal to defense counsel’s inferences. The trial court granted this motion.

¶ 23. Mingo did not object to the introduction of the video as a violation of the confrontation clause at the trial level. The constitutional right of confrontation, like other constitutional rights, is forfeited if it is not asserted at the trial level. Rogers v. State, 928 So.2d 831, 838 (Miss.2006); see also Stockstill v. State, 854 So.2d 1017, 1023 (Miss.2003); Ellis v. Ellis, 651 So.2d 1068, 1073 (Miss.1995). Because Mingo did not claim a constitutional violation in the trial court, he is procedurally barred from doing so here.

¶ 24. Even if Mingo had properly preserved the issue for appeal, his claim is without merit. The victim testified at the trial, and Mingo had the opportunity to extensively cross-examine him; therefore his right to confront witnesses against him was not violated. Mingo’s reliance on Offor v. Scott, 72 F.3d 30 (5th Cir.1995), is misplaced. There, the videotaped statement was the first piece of evidence offered by the prosecution and was offered as direct evidence of Offor’s guilt. Id. at 31, 33. The victim did not testify and was not cross-examined. The case before this Court is clearly distinguishable. The video in this case was not offered as direct evidence, and the witness testified and was cross-examined. The admission of the videotape did not violate the confrontation clause.

¶ 25. This claim is without merit.

(6) Exclusion of Proposed Expert Witness

¶ 26. The day before the trial began, Mingo provided the prosecution with the name of a proposed expert witness on voice training and a lay witness who was to testify to Mingo’s whereabouts on one of the dates referenced in the indictment. The State moved to have the expert excluded. The trial judge granted the motion to exclude the expert witness, but admitted the testimony of the lay witness.

¶ 27. The standard of review regarding admission or exclusion of evidence is abuse of discretion. Parks, 884 So.2d at 742. We will not reverse the trial court’s evidentiary ruling unless the error adversely affects a substantial right of a party. Id. It is appropriate to exclude a witness’s testimony where the failure to present the witness in a timely manner is willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence. Beckwith v. State, 707 So.2d 547, 575 (Miss.1997).

¶ 28. The trial judge carefully considered Mingo’s proffers and, relying on Beckwith, found that the belated presentation of Mingo’s expert was motivated by a desire to obtain a tactical advantage. On the same motion, he accepted the lay witness with the understanding that the State would have an opportunity to interview her before the trial commenced. The trial judge did not abuse his discretion.

¶ 29. This claim is without merit.

(7) Admission of an Eight Millimeter Videotape

¶ 30. Mingo makes two claims concerning the admission of an eight millimeter videotape seized from his home that depicted a young male engaged in a sexually explicit act. First, he claims that the State committed a discovery violation by failing to provide him with a copy of the tape. Second, Mingo claims that the trial court erred in admitting the tape because it was evidence of prior bad acts in violation of M.R.E. 404(b). The standard of review for the rulings of a trial court of evidence and discovery violations is abuse of discretion. Flora, 925 So.2d at 819.

¶ 31. Mingo is disingenuous in claiming that the State erred by denying him a copy of the 8 millimeter videotape. In the pre-trial hearings on the admissibility of the videotape, the State specifically inquired whether Mingo possessed a copy of the videotape from a related and contemporaneous charge, and Mingo confirmed that he did. When the videotape was admitted during the State’s rebuttal examination, Mingo reversed himself and stated that he did not possess a copy of it. The State maintained that the videotape was in the possession of the police, and that they would provide a copy if Mingo requested it. The trial judge agreed that videotape was available to Mingo. Although there is some dispute whether Mingo did in fact request a copy of the videotape, the record demonstrates that the trial judge was within his discretion in finding that Mingo was not impermissibly denied a copy.

¶ 82. Mingo is similarly mistaken in claiming that the videotape was admitted as evidence of prior bad acts under M.R.E. 404(b). When the State first moved to introduce the videotape as a part of its case-in-chief, the trial judge found it inadmissible under M.R.E. 404(b) and emphasized that the tape could not be used to prove that Mingo had homosexual tendencies because Mingo had not denied that he did. Cf Florence v. State, 755 So.2d 1065, 1071 (Miss.2000) (finding that sexually explicit homosexual magazines and videotapes were admissible in a sexual battery case when the defendant had “opened the door” to such evidence by denying that he was a homosexual). However, the court recognized that the videotape might be admissible under an exception to M.R.E. 404(b) on the State’s rebuttal. The trial judge ultimately admitted the videotape as an exception to M.R.E. 404(b) to show intent and absence of mistake because Mingo claimed on direct examination that, if he had touched the victim inappropriately, he had done so accidentally. Kolb v. State, 542 So.2d 265, 269 (Miss.1989) (evidence of particular sexual urges was admissible to rebut a claim of accident).

¶ 33. The record shows that the trial judge was acutely aware of the potentially prejudicial character of the videotape and was careful to admit the tape only to rebut the claim of accident. He allowed no questioning about the age of the young male in the video, did not allow the State to mention the related charges against Mingo for possession of the videotape, and gave a limiting instruction to the jury on the use of the evidence. On balance, the trial judge acted prudently and within his discretion.

¶ 34. Because Mingo was not impermis-sibly denied access to the videotape and because the videotape was not admitted as evidence of prior bad acts, this claim is without merit.

(8) Admission of Testimony of Rebuttal Witnesses

¶ 35. Mingo contends that the admission of the rebuttal testimony of two witnesses was erroneous because their names had not been disclosed during discovery.

¶ 36. Tabitha Pate, an operations officer at the National Bank of Commerce, testified that her bank cashed a check dated June 16, 2004, from the victim’s father to Mingo on June 18, 2004. Her testimony was introduced to rebut Mingo’s claim that he had not given the victim a lesson on June 16, one of the dates in the indictment.

¶ 37. Sara Richert, a licensed practicing nurse, testified to the location of the diaphragm on the human body. Her testimony was introduced to rebut Mingo’s claim about the location of the diaphragm.

¶ 38. The standard of review regarding admission or exclusion of evidence is abuse of discretion. Parks v. State, 884 So.2d 738, 742 (Miss.2004) (citing Ladnier v. State, 878 So.2d 926 (Miss. 2004)). In addition, the State has no duty to provide the defense with the names of possible rebuttal witnesses, unless the State has requested notice of an alibi defense. Smith v. State, 724 So.2d 280, 320 (Miss.1998); Deal v. State, 589 So.2d 1257, 1259 (Miss.1991). The testimony of the rebuttal witnesses was introduced to rebut specific facts alleged by Mingo during direct and cross-examination. The trial judge did not abuse his discretion in admitting the testimony.

(9) Denial of Change of Venue

¶ 39. Mingo claims that the trial court improperly denied his motion for a change of venue. Mingo did not move for a change of venue during voir dire; instead, he notified the court of his motion during his own case-in-chief. He argued that given the alleged bias of the trial judge, the media coverage of his trial, a defense witness’ concerns for her safety, and an allegedly uncooperative police department, the trial court should transfer the trial. The court found that the motion was untimely and denied it.

¶ 40. The decision to grant the venue change is in the sound discretion of the trial judge. Gray v. State, 799 So.2d 53, 62 (Miss.2001). We will not disturb the ruling of the lower court where the trial judge did not abuse his discretion in denying the change of venue motion. Id. It is also well accepted that an application for a change of venue must strictly conform to the statutory requirements of Miss.Code Ann. § 99-15-35 (Rev.2000) which requires that the motion be in writing, and supported by the affidavits of two or more credible persons. Baldwin v. State, 732 So.2d 236, 241 (Miss.1999). Change of venue motions have been properly denied where they were not supported by affidavits of two or more credible persons. Gilliard v. State, 428 So.2d 576, 579 (Miss.1983), overruled on other grounds, Willie v. State, 585 So.2d 660 (Miss.1991).

¶ 41. Mingo’s motion is both procedurally barred and substantively without merit. Mingo’s motion was not in writing, was not supported by the affidavits of two or more credible persons, and was therefore procedurally barred. In addition, the trial court found that the allegations of judicial bias were unfounded, that the sheriffs department had not been uncooperative, that third-hand evidence of threats against one of Mingo’s witnesses was inadmissible hearsay, and that the jury had affirmed during voir dire testimony that media coverage of Mingo’s trial would not affect their impartiality. On review of the record, each of the trial court’s determinations was supported by ample credible evidence.

¶ 42. This claim is without merit.

(10) Motion for Recusal

¶ 43. Late in the trial, during the defense’s case-in-chief, Mingo made a motion for the trial judge to recuse himself, which was denied. Mingo argues that the denial of the motion was error because: (a) the trial judge ruled against Mingo on a number of motions, including denying the motions to suppress and to exclude an untimely witness, and refusing to issue a subpoena for certain documents, all of which have been discussed above; (b) the judge strongly censured Mingo’s attorney for attempting to suggest to the jury that the victim was racist without submitting any evidence to the court on that issue; and (c) the trial judge held Mingo’s attorney in direct criminal contempt when he refused to continue with the trial.

¶ 44. When we review a denial of recusal, we “will look to the whole trial and pass upon questions on appeal in the light of the completed trial ... and if we are unable to find that rulings have been prejudicial to the defendant, we will not reverse.” Brown v. State, 829 So.2d 93, 99 (Miss.2002).

(a) Denial of Motions

¶ 45. The trial judge made a number of rulings against Mingo before and during trial. For the purposes of recusal, “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.... Unless the judge abuses this discretion so as to be prejudicial to the accused, the Court will not reverse this ruling.” Farmer v. State, 770 So.2d 953, 958 (Miss.2000).

¶ 46. Mingo cites no authority to show that adverse rulings by a trial judge indicate bias. The record contains no indication that the trial judge was unreceptive or dismissive of Mingo’s arguments. We will not find adverse rulings to demonstrate bias simply because they are adverse. Finally, we have addressed the rulings on these motions on the merits and have found that the trial court was within its discretion to deny Mingo’s motions.

(b) Censure by the Trial Judge

¶ 47. During his cross-examination of the victim, defense counsel asked the victim whether he had gotten angry at a black student at the academy. The State objected, and the trial judge excused the jury from the courtroom to hear the parties’ arguments. Defense counsel conceded that he believed the victim, who is white, had animosity towards Mingo, who is black, because of his race. The trial judge found that Mingo had not subpoenaed the child in question, had not suggested that race was a factor during pretrial discovery, and had not mentioned the issue until he did so in front of the jury. The trial judge further found that the actions of defense counsel violated rules of reciprocal discovery and threatened to report defense counsel to the Mississippi Bar if he attempted to bring up the issue without submitting evidence or adhering to the rules of discovery.

¶ 48. It is prejudicial error for questions on cross-examination to contain insinuations and intimations of conduct for which there is no basis in fact. Flowers v. State, 842 So.2d 531, 553 (Miss.2003) (citing Walker v. State, 740 So.2d 873, 884 (Miss.1999)). Such questioning without evidentiary basis is inflammatory and extremely prejudicial. Walker, 740 So.2d at 884. No party should be permitted as a deliberate trial tactic to decide in advance of trial to withhold a part of his case in chief, but instead attempt to suggest such evidence in cross-examination of the witnesses for the opposing side. Hosford v. State, 525 So.2d 789, 791 (Miss.1988).

¶49. Mingo attempted to interject the issue of race into his case without preparing an evidentiary foundation for doing so. The trial court was correct in holding Mingo to the rules of discovery. See Cooper Tire & Rubber Co. v. McGill, 890 So.2d 859, 864 (Miss.2004) (courts have the authority to sanction violations of the rules of discovery under both their inherent authority and Miss R. Civ. P. 37(b)). Mingo cites no authority in support of his claim that the trial judge’s censure constituted bias. The claim that the trial judge’s censure constituted impermissible bias is without merit.

(c)Finding of Direct Criminal Contempt

¶ 50. Our approach to contempt matters is well settled:

Generally speaking, contempt matters are committed to the substantial discretion of the trial court which, by institutional circumstance and both temporal and visual proximity, is infinitely more competent to decide the matter than the Supreme Court. When dealing with contempt matters, we must first determine whether the alleged contempt is either civil or criminal in nature. If the contempt is civil, the proper standard utilized for review is the manifest error rule. If the contempt is criminal, then we will proceed ab initio and will determine on the record whether the person in contempt is guilty of contempt beyond a reasonable doubt. If the primary purpose of the contempt order is to enforce the rights of private party litigants or enforce compliance with a court order, then the contempt is civil.... Criminal contempt penalties, on the other hand, are designed to punish the contemnor for disobedience of a court order; punishment is for past offenses and does not terminate upon compliance with the court order.

In re Williamson, 838 So.2d 226, 237 (Miss.2002) (citations omitted). Contempt may be direct, occurring in the presence of the court, or indirect, occurring outside the presence of the court. Id. at 237. Direct criminal contempt includes words or actions before the court that tend to embarrass the court or prevent the orderly administration of justice. Jordan v. State, 216 Miss. 542, 62 So.2d 886, 888 (1953).

¶ 51. A summary of the events preceding the trial judge’s finding of criminal contempt is warranted. On the morning of May 24, 2004, the court convened out of the presence of the jury to consider proposed jury instructions. Mingo did not appear for trial as required, and Mingo’s attorney admitted that he told Mingo not to come to court. The State moved for a judgment nisi against Mingo, which the trial court granted. Mingo was brought to court later that morning.

¶ 52. After Mingo’s arrival, his attorney asked the judge to consider alleged threats that had been made against Mingo and his witnesses. Mingo’s attorney alleged that unknown third persons had told a witness that they had heard the victim and a friend talk about hurting Mingo, and the same witness had been told that another unknown third person had threatened to burn down her house. Based on these allegations, Mingo’s attorney moved for a mistrial, for a change of venue, and for the trial judge to recuse himself because of bias. The trial judge denied each of the motions, noting that the statements were inadmissible hearsay, and that he would ask the police to investigate any allegations of witness intimidation. He further noted that he had gone to great lengths to accommodate Mingo’s attorney, including directing the county sheriff to serve subpoenas for the defense, and that, consequently, the charge of his being biased against Mingo was without merit. Mingo’s attorney argued that he was not prepared to consider proposed jury instructions, and the trial judge called a noon recess to allow Mingo’s attorney to review them.

¶ 53. When the court reconvened that afternoon, Mingo’s attorney announced that he was unwilling to continue representing his client. The State noted that one of Mingo’s witnesses refused to speak to the State’s investigators, and Mingo’s attorney admitted that he had told the witness not to speak to the investigator. Mingo’s attorney again alleged that threats had been made against his witnesses and his client, and that these threats warranted a mistrial. He again stated his intent to withdraw from the trial. The trial judge found the attorney’s motion to withdraw was not well taken. Mingo’s attorney again refused to continue his representation, and the trial judge called a recess and contacted the Mississippi Bar. After the court reconvened, Mingo’s attorney again alleged that his client and witnesses had been threatened. The trial judge offered to call the Highway Patrol to investigate the allegations. Min-go’s attorney again requested a mistrial or a continuance and a change of venue in the alternative. After the trial court refused the motion, the following exchange occurred:

BY THE COURT: Now, I propose to bring the jury out. Do you have the next witness that you wish to call?
BY MR. MILLER: No, your Honor, I do not.
Q. So you’re going to rest?
A. No, your Honor, I’m not.
Q. All right. You are telling me then outside of the presence of the jury that you will not proceed on this case?
A. I cannot help Mr. Mingo at this point, your Honor, and it is my professional responsibility to announce that to the court.
Q. Then it is my professional responsibility as the trial judge and the Circuit Judge in this district and to make sure that we have the orderly control of cases to have the sheriffs deputy stand, and I’m going to find that you are in direct criminal contempt and you will be taken to jail. I will recess this matter until nine o’clock tomorrow morning. If you wish to proceed at that time, I will bring you back in.

¶ 54. Defense counsel’s refusal to continue with trial clearly constituted an action tending to prevent the orderly administration of justice. The trial judge’s decision to hold counsel in direct criminal contempt, while serious, was within his discretion. Reviewing the record, we find no bias or impropriety by the trial judge in his rulings.

¶ 55. This claim is without merit.

(11) Sufficiency of the Evidence

¶ 56. Mingo claims that the trial court erred in denying a directed verdict because the evidence was insufficient to support a conviction. In considering whether the evidence is sufficient to sustain a conviction in the face of a motion for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that accused committed the act charged and that he did so under such circumstances that every element of the offense existed. Bush v. State, 895 So.2d 836, 843 (Miss.2005). This inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, 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. Id. If there is sufficient evidence to support a guilty verdict, the motion for a directed verdict must be overruled. May v. State, 460 So.2d 778, 781 (Miss.1984).

¶ 57. Mingo falls far short of his burden of showing that the character and weight of the evidence was such that no reasonable juror could have found Min-go guilty. The State proffered direct evidence in the form of the victim’s testimony and Mingo’s statement to police. Despite Mingo’s assertions to the contrary, such evidence is not circumstantial. Garrett v. State, 921 So.2d 288, 291-92 (Miss.2006). Mingo also alleges inconsistencies between the victim’s testimony and that of other witnesses. However, determinations of witness credibility are matters for a jury to decide. Hughes v. State, 724 So.2d 893, 896 (Miss.1998). Though no direct evidence was presented that Mingo touched the victim specifically to satisfy his lustful desires, this Court has held that such recognition may arise from the circumstances of the encounter itself. Ladnier v. State, 878 So.2d 926, 930 (Miss.2004) (citing Bradford v. State, 736 So.2d 464, 466 (Miss.Ct.App.1999)).

¶ 58. Taking all the evidence supporting the verdict as true, together with all reasonable inferences, it is clear that a reasonable juror could have found Mingo guilty.

¶ 59. This claim is without merit.

(12) Cruel and Unusual Punishment

¶ 60. Mingo argues that his three ten-year sentences, to be served consecutively, are disproportionate to the crime and violate the Eighth Amendment to the United States Constitution. Mingo was convicted under Miss.Code Ann. § 97-5-23 (2006), and the judge ordered that the sentences run consecutively under Miss. Code Ann. § 99-19-21 (2006).

¶ 61. As a general rule, “when sentences are within the limits of the statute, the imposition of such sentences is within the sound discretion of the trial court and this Court will not reverse them.... Likewise, we have held that providing punishment for crime is a function of the legislature, and, unless the punishment specified by statute constitutes cruel and unusual treatment, it will not be disturbed by the judiciary.” Presley v. State, 474 So.2d 612, 620 (Miss.1985). We review sentences in light of the factors articulated by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of “gross disproportionality.” Nichols v. State, 826 So.2d 1288, 1290 (Miss.2002). Generally, sentences that do not exceed the maximum term allowed by statute will not be considered grossly disproportionate and will not be disturbed on appeal. Fleming v. State, 604 So.2d 280, 302-03 (Miss.1992). Finally, this State recognizes that it is within the trial court’s discretion whether multiple sentences will run concurrently or consecutively Miss. Code Ann. § 99-19-21(1).

¶ 62. The sentences imposed by the trial judge in the present case are within the limits set by statute, and the decision to have the sentences run consecutively was within the sound discretion of the judge. Because we find no abuse of discretion in the trial court’s decision, we will not disturb his ruling on appeal.

¶ 63. This claim is without merit.

CONCLUSION

¶ 64. For the reasons set forth above, we affirm the circuit court’s judgment.

¶ 65. COUNT I: CONVICTION OF FONDLING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE IS TO RUN CONSECUTIVELY WITH THE SENTENCES IMPOSED IN COUNTS II & III FOR A TOTAL OF THIRTY (30) YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOLLOWED BY FIVE (5) YEARS OF POST RELEASE SUPERVISION. COUNT II: CONVICTION OF FONDLING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE IS TO RUN CONSECUTIVELY WITH THE SENTENCES IMPOSED IN COUNTS I & III FOR A TOTAL OF THIRTY (30) YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOLLOWED BY FIVE (5) YEARS OF POST RELEASE SUPERVISION. COUNT III: CONVICTION OF FONDLING OF A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE IS TO RUN CONSECUTIVELY WITH THE SENTENCES IMPOSED IN COUNTS I & II FOR A TOTAL OF THIRTY (30) YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOLLOWED BY FIVE (5) YEARS OF POST RELEASE SUPERVISION.

SMITH, C.J., COBB, P.J., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., NOT PARTICIPATING.

      . Mingo raises fourteen issues on appeal, which we have consolidated into twelve.

      . Testimony relative to the contempt ruling covers approximately 63 pages of the record immediately preceding the trial judge’s finding of direct criminal contempt.

      . Miss.Code Ann. § 99-19-21(1): "When a person is sentenced to imprisonment on two (2) or more convictions, the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court, commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.”


source: Caselaw Access Project

author: DICKINSON, Justice, EASLEY, Justice, DIAZ, Justice,

license: Public Domain

text:
    Vessie Lynn LEE v. STATE of Mississippi.
    No. 2004-CT-00542-SCT.
    Supreme Court of Mississippi.
    Dec. 7, 2006.

      Matthew Warren Kitchens, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorneys for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. The Madison County Grand Jury indicted Vessie Lynn Lee for statutory rape (two counts), sexual battery (four counts), and gratification of lust (four counts) for engaging in sexual activities with a minor during a nine-month period which began when the child was twelve years old. The jury found Lee guilty, and we referred his appeal to the Court of Appeals, which affirmed the conviction. Although we agree with the Court of Appeals’ disposition of this case, we granted certiorari to clear up an apparent inconsistency in our precedent. The two issues presented for our review are whether an amendment to Lee’s indictment was proper, and whether the trial court erred in refusing to allow a defense witness to impeach a prosecution witness.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. The twelve-year-old female victim lived down the street from Lee in a subdivision in Madison, Mississippi. She knew the Lee family and routinely baby-sat for Lee’s small children. She testified that around August 2001, Lee began approaching her in a sexual manner. Lee’s advances were initially limited to forced touching, but they soon progressed to forced oral sex and, eventually, non-consensual sexual intercourse. The victim testified that after each encounter, Lee told her not to tell anyone what happened, warning her that no one would believe her and that he would kill himself if she said anything. These events occurred over a nine month period, concluding in February 2002, when the victim finally told her track coach about the sexual assaults. Her family informed the police, and Lee was arrested.

¶ 3. After a five-day trial, a jury found Lee guilty and convicted him on all counts. The trial court fixed Lee’s punishment at two life sentences, four thirty-year sentences, and three fifteen-year sentences. The Court of Appeals affirmed the convictions and sentences. Lee v. State, No.2004-KA-00542-COA, 944 So.2d 56, 2005 WL 3111989, 2005 Miss.App. LEXIS 918 (Miss.Ct.App. Nov.22, 2005). We thereafter granted Lee’s Petition for Certiorari Review.

DISCUSSION

I.

¶ 4. Lee argues the trial court erroneously allowed the State to amend the indictment on the morning of trial. Counts III through VI of the original indictment alleged four separate instances of sexual battery with a child in violation of subsection (l)(d) of Miss.Code Ann. Section 97-3-95. However, each of these counts included the phrase “without her consent,” an element of subsection (l)(a). Four days before trial, Lee filed a motion to quash counts III through VI of the indictment, claiming they tracked the language of both subsections (l)(a) and (l)(d), and thus did not provide him sufficient notice of the charged crime. The statute provides, in relevant part:

(1) A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;
(b) A mentally defective, mentally incapacitated or physically helpless person;
(c) A child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child; or
(d) A child under the age of fourteen (Ik) years of age, if the person is twenty-four (21f) or more months older than the child.

Miss.Code Ann. § 97-3-95 (emphasis added).

¶ 5. The Court of Appeals properly held that the trial court did not commit error by allowing the State to amend the indictment and remove the phrase “without her consent.” However, this Court has followed two lines of analysis when addressing whether the removal of excess words in an indictment is proper.

¶ 6. Our precedent establishes that “sur-plusage” in an indictment may be removed without prejudice to the defendant. See, e.g., Mixon v. State, 921 So.2d 275, 279-80 (Miss.2005); Schloder v. State, 310 So.2d 721, 723-24 (Miss.1975); Sullivan v. Cook, 218 So.2d 879, 880-81 (Miss.1969). However, in Richmond v. State, 751 So.2d 1038, 1046 (Miss.1999), this Court held that the State was required to prove an unnecessary element alleged in the indictment. We find it appropriate to now clarify our holding in Richmond so that it is not misread as inconsistent with our precedent concerning motions to amend indictments to remove surplusage.

II.

¶ 7. Defendants in criminal cases have a constitutionally protected right to be informed of the nature and cause of charges brought against them. U.S. Const, amend. VI & XIV; Miss. Const, art. 3, § 26. See also Jones v. State, 856 So.2d 285, 289 (Miss.2003). This requires that an indictment describe with precision and certainty each element of the offense charged. Peterson v. State, 671 So.2d 647, 653 (Miss.1996) (citing Love v. State, 211 Miss. 606, 611, 52 So.2d 470, 472 (1951)).

¶ 8. Lee directs us to our language in Richmond, whereby we held that “the State handicapped itself through th[e] indictment by adding an unnecessary element of proof.” 751 So.2d at 1046. Thus, Lee argues, the State should be precluded from amending his indictment. Although this Court’s holding in Richmond seems, at first blush, inconsistent with other cases, cited infra, where we held that mere surplusage may be removed from an indictment by amendment, Lee’s case is easily distinguishable. We shall first address the holding in Richmond.

¶ 9. In Richmond, the defendant was charged with motor vehicle theft. Id. at 1042. The indictment included a dollar amount for the vehicle, which was not a necessary element under the statute. Id. This Court stated that “[hjaving specifically informed Richmond of the offense charged, as well as the detailed code section number, the State handicapped itself through this indictment by adding an unnecessary element of proof.” Id. at 1046. Lee interprets this language to mean that any indictment which includes an unnecessary element cannot be amended, and the State is required, as a matter of law, to prove the unnecessary element. However, Lee completely misreads the import of our holding in Richmond.

¶ 10. Richmond was clearly on notice of the charge against him. The indictment charged him with motor vehicle theft under Miss.Code Ann. Section 97-17-42, a crime which does not require proof of any specific value. Id. at 1042. Nevertheless, the indictment alleged that the vehicle taken by Richmond had a “total value of more than $250.00.” Id. Prior to trial, the State moved to amend the indictment by removing the language relating to the value of the automobile. Id. Richmond objected and moved to quash. Id. at 1042-43. Referring to the requested amendment as “substantive,” the trial court refused to allow the State to amend. Id. at 1046. The trial went forward, and the State presented proof that the value of the vehicle exceeded $250.00. Id. at 1049. Richmond was convicted of motor vehicle theft. Id. at 1050.

¶ 11. The trial court in Richmond would have committed no abuse of discretion had it found that the language related to value was mere surplusage and allowed the State to amend the indictment by removing the language. However, the trial court refused to allow the State to amend and required the State to prove not only the elements of motor vehicle theft, but also the additional element of value. Id. at 1046. During the discussion of jury instructions, the prosecutor succinctly summed up the State’s position:

Your honor will recall that before the trial started, the State made a motion to amend out of the indictment the allegation of value in excess of $250 as being surplusage under the Motor Vehicle Theft Statute.
* * *
... for this trial, the State made a motion to amend it out, to make it conform with the exact amount of proof. Defense objected to that amount and allowed it to remain in there. They said they wanted that additional burden in there. Your honor then stated that since the State had voluntarily put that additional element on itself, we should continue to have to bare it, and we did.
* * *
What I may have said we were trying is of no moment. The State is bound by the indictment, which was an allegation of motor vehicle theft with the additional element, the unnecessary additional element which we had to prove — and did— beyond a reasonable doubt of a value of more than $250. Any embarrassment or trouble at trial caused to the defendant was caused by the defendant’s prevailing on his opposition to our motion to amend. If this was a wound to the defendant, it was, your Honor, a self-inflicted wound.

Id. at 1044.

¶ 12. In Richmond, this Court was not presented (as we are today) with the question of whether an amendment to the indictment by removal of surplusage was appropriate. Thus, in the Richmond this Court had no need to address or discuss our precedent which analyzes the removal of surplusage and sets forth the test therefor. Accordingly, Richmond does not serve as precedent for the issue of whether a motion to amend an indictment should be granted or denied. Rather, Richmond remains authority in cases where the indictment includes surplusage which was not removed prior to trial.

¶ 13. The requested amendment in Richmond would easily have met the test for amendments to indictments espoused in Griffin v. State, 584 So.2d 1274, 1275-76 (Miss.1991) (discussed infra), and the trial court would have been fully justified in allowing the State to amend. However, because the Richmond trial court denied the State’s motion to amend the indictment, the issue in that case is different from the issue before us today. We must therefore analyze this case by evaluating whether the amendment to the indictment violated Lee’s constitutional right to a fair trial.

III.

¶ 14. In many instances, mere “surplus-age” may be stricken from an indictment without any prejudice to the defendant. For example, in Mixon, the defendant was charged with motor vehicle theft, but the indictment included the word “feloniously,” an element under the grand larceny statute. 921 So.2d at 279. This Court held removal of the felonious intent language was proper. Id. at 280. Similarly, in Schloder, the indictment charged that the defendant “did willfully, unlawfully and fe-loniously possess more than one ounce of marijuana with intent to sell .... ” 310 So.2d at 722 (emphasis in original). The defendant argued that “there is no such offense in the State of Mississippi as possessing marijuana with intent to sell.” Id. We pointed out that the relevant statute made it

unlawful for any person to knowingly or intentionally possess more than one ounce of marijuana and prescribe[d] as a penalty therefor a fine of $3,000 or imprisonment in the state penitentiary for not more than three years, or both. Therefore, the demurrer was properly overruled since the indictment charged appellant with the crime of possession of more than one ounce of marijuana. The words ‘with intent to sell’ were surplus-age. ...

Id. at 723-24.

¶ 15. Additionally, and more on point with the present case, the defendant in Simmons v. State, 109 Miss. 605, 614, 68 So. 913, 914 (1915), was indicted for statutory rape. This Court held that the language “without her consent” in the indictment was mere surplusage that could properly be removed without prejudicing the defendant. Id. at 915.

¶ 16. In analyzing the amendment to an indictment against the previously mentioned background of constitutional protection, we look first to our Uniform Rules of Circuit and County Court Practice. Rule 7.09 provides that “[a]ll indictments may be amended as to form but not as to the substance of the offense charged.” The rule further states that an “[a]mendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.” Moreover, where a defect of substance exists, the indictment must be corrected by the grand jury. Spann v. State, 771 So.2d 883, 898 (Miss.2000). Amendments to an indictment are permissible if they do not prejudice the defendant by (1) materially altering the essential facts of the offense or (2) materially altering a defense under the original indictment. Griffin, 584 So.2d at 1275-76. Thus, taken together, this authority sets forth the following test for analyzing an amendment to an indictment for the purpose of removing sur-plusage: (1) the removal of the surplus-age 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 surplusage 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. Applying each part of the test, it is clear that the trial court did not err in amending Lee’s indictment.

(1) The removal of the surplusage must not change the substance of the offense charged.

¶ 17. Lee was indicted under Section 97-3-95 of the Mississippi Code, which addresses the crime of sexual battery. Subsection (1) of that statute provides four separate and alternative acts, any one of which constitutes a violation of the statute. Lee was indicted and ultimately convicted under the fourth alternative, subsection (l)(d), which charged that Lee engaged in sexual penetration with “a child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.” The surplusage in the indictment was the inclusion of an additional alternative act which, if proven, would constitute a separate and additional violation of the same statute.

¶ 18. Specifically, the indictment, before it was amended, included the language, “without her consent.” The first alternative under the statute provides that a person is guilty of sexual battery by engaging in sexual penetration with “[ajnother person without his or her consent.” Miss. Code Ann. § 97-3-95(l)(a). Stated another way, the original indictment charged that Lee committed two separate acts of sexual battery, one under subsection 1(a) and one under subsection 1(d).

¶ 19. Lee was fully on notice of both claims. The fact that the trial court allowed the State to amend the indictment and remove one of the claims is no more prejudicial to Lee than if the two claims of violation had been charged under two separate counts in the indictment, with the trial court later dismissing one of the counts. By allowing the amendment to the indictment which removed the claim that Lee engaged in sexual relations with the victim “without her consent,” the State’s burden of proof as to the charge that Lee engaged in sexual penetration with a child under the age of fourteen, when Lee was twenty-four or more months older than the child, did not change. Likewise, Lee’s defense to this charge did not change. Thus, the amendment did not alter the substance of the offense charged, and the first prong of the test allowing the amendment is satisfied.

(2) The defendant must be afforded a fair opportunity to present a defense and must not be unfairly surprised.

¶ 20. There is no allegation, suggestion, or evidence in this case that Lee was not afforded the opportunity to defend the claim. Although Lee may validly assert he was surprised that the State moved to amend the indictment and remove the claim that his sexual relations with the child were without her consent, his surprise cannot be characterized as “unfair.” The net effect of the amendment was that Lee only had to defend one claim that he violated the statute, rather than two. Thus, the second prong of the test allowing the amendment is met.

(3) The removal of the surplusage must not materially alter the essential facts of the offense.

¶ 21. The essential facts of the offense, that is, that Lee engaged in sexual penetration with a child under the age of fourteen at a time when Lee was twenty-four or more months older than the child, were the same at the time of conviction as at the time of indictment. Thus, the third prong of the test allowing the amendment is satisfied.

(k) The removal of the surplusage must not alter a defense under the original indictment.

¶ 22. As previously discussed, Lee was originally indicted for violating the statute in two separate and distinct ways. The removal of the surplusage did not alter Lee’s defense to the claim which remained after the amendment. Thus, the fourth prong of the test allowing the amendment is met.

¶23. For the reasons stated, we find that the trial court did not abuse its discretion in allowing the amendment to remove the surplusage from the indictment.

IV.

¶ 24. Lee also argues that the trial court erred when it refused to allow a defense witness to impeach a prosecution witness. A careful review of the record reveals that the testimony Lee sought to impeach was a collateral matter, and the trial court was well within its discretion to refuse to allow Lee to call the impeachment witness.

¶ 25. One of the State’s witnesses, Connie Evans, testified concerning certain observations she made of Lee and the victim together. On cross-examination, Evans admitted that she distrusted men, that her daughter had been sexually molested, and that she had said as much to her family. She denied, however, also telling these things to her neighbor, who coincidentally happened to be Lee’s wife. Lee then offered his wife to testify that Evans did, in fact, tell her these things that she had admittedly told her family.

¶26. Lee did not offer his wife as an impeachment witness to contradict whether Evans distrusted men or whether her daughter had been molested. Instead, Lee’s attorney asked Evans whether she had told these things to Lee’s wife, and Evans said she had not. Lee’s attorney then sought to call Lee’s wife to show that Evans had, in fact, told her these things. Thus, the matter to be impeached was not the crucial testimony that Evans distrusted men or that her daughter had been molested. Instead, the matter to be impeached was whether Evans had stated these things to a neighbor. The story Evans allegedly told to the neighbor was consistent with her testimony at trial. It is also important to note that Evans admitted telling her family. She simply denied that she also told Lee’s wife. Thus, whether or not Evans actually spoke to Lee’s wife is a collateral issue to which impeachment evidence is not allowed.

Price v. Simpson, 205 So.2d 642, 643 (Miss.1968).

¶ 27. The trial court recoril reflects the following relevant portion of Evans’s testimony:

Defense: In that conversation — in a conversation with her after that date, did you tell her that you did not trust men?
Evans: No.
Defense: Never told her that?
Evans: No.
Prosecution: Was that did not trust “me”, Mr. Rainer or “men”?
Defense: Did not trust “men.”
Defense: Did you tell her in that same conversation that you didn’t trust men because your daughter had been sexually molested?
Evans: No.
Prosecution: Your Honor, objection to relevancy.
The Court: I’m going to let him ask those questions.
Evans: No.
Defense: You didn’t tell her that? You didn’t tell her that your ex-husband had molested your daughter?
Prosecution: Objection, Your Honor.
The Court: Counsel Approach.
(Bench Conference)
Defense: So you deny having made those statements to Mrs. Lee?
Evans: I would never discuss that with anyone but my family.
Defense: So you have discussed it with someone, though, haven’t you?
Evans: Never Mrs. Lee. Never anybody in my neighborhood.
Defense: But you have discussed it with other people?
Evans: My family.

Evans did not deny that her daughter had been molested or that she distrusted men. In fact, Evans was never even asked these questions during her cross-examination. Therefore, to allow the defense attorney to impeach Evans as to whether or not Evans told Mrs. Lee she “distrusted men” and “her daughter had been molested” is impermissible the issue is collateral.

¶ 28. Addressing collateral matters, this Court has established that a statement is collateral if it is not “one embodying a fact substantive in its nature and relevant to the issue made in the case.” Williams v. State, 73 Miss. 820, 824, 19 So. 826, 827 (1896). In other words, a matter is collateral when it is not directly relevant to the issues in the case. Whether Evans distrusted men due to her daughter’s molestation is relevant to show bias, but whether or not Evans conveyed that distrust to Lee’s wife has nothing whatsoever to do with her bias. Whether or not Evans told her neighbor she “distrusted men” and “her daughter had been molested” is not directly relevant to the issues in this case.

¶ 29. Because the testimony sought to be impeached was a collateral matter, the trial court correctly refused to allow Lee to call his wife to impeach Evans.

CONCLUSION

¶ 30. Because the amendment to the indictment merely allowed the removal of surplusage, and because the trial court was correct in refusing to allow Lee the opportunity to impeach the State’s witness on a collateral matter, we affirm the judgments of the Court of Appeals and the circuit court.

¶ 31. COUNTS I AND II: CONVICTIONS OF STATUTORY RAPE AND SENTENCES OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNTS I AND II SHALL RUN CONCURRENTLY. COUNTS III, IV, V AND VI: CONVICTIONS OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS ON EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL RUN CONCURRENTLY TO EACH OTHER BUT CONSECUTIVELY TO THE TERM OF LIFE IMPRISONMENT ORDERED IN COUNTS I AND II. COUNTS VII, IX AND X: CONVICTIONS OF GRATIFICATION OF LUST AND SENTENCE OF FIFTEEN (15) YEARS ON EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL RUN CONCURRENTLY TO EACH OTHER BUT CONSECUTIVELY TO THE TERM OF LIFE ORDERED IN COUNTS I AND II AND THE THIRTY (30) YEARS ORDERED IN COUNTS, III, IV, V AND VI.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ. DIAZ, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.

EASLEY, Justice,

Specially Concurring:

¶ 32. In my opinion, the majority correctly finds that the trial judge did not abuse his discretion in refusing to allow the impeachment testimony. However, I am compelled to write separately in order to provide my reasoning. In deciding whether reversible error resulted in this case, we must examine the trial court’s decision to exclude the testimony under an abuse of discretion standard of review. “The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused.” Johnston v. State, 567 So.2d 237, 238 (Miss.1990); see Byrom v. State, 863 So.2d 836, 878 (Miss.2003).

¶ 33. I find that the trial court did not abuse its discretion in denying the impeachment testimony as the proper foundation was not laid for Lee to call his wife, Beth, as an impeachment witness. Evans never denied that her daughter had been molested or that she distrusted men. In fact, Evans was never so questioned. However, Evans testified that she never discussed with Lee’s wife that her daughter had been molested by her ex-husband or that she did not trust men. She testified that she had told her family, and she would never discuss such with a neighbor.

¶ 34. Here, Lee was convicted on two counts of statutory rape, four counts of sexual battery, and three counts of gratification of lust for sexual activities he engaged in with a young girl. Clearly, the defense’s attempt to call Lee’s wife to the stand was to impeach Evans’s testimony by showing that she was biased against men as a result of her daughter being sexually molested, not whether the alleged conversation in question ever occurred between Evans and Lee’s wife. The defense did not question Evans regarding whether she was biased against men.

¶ 35. Also, Evans did not deny when questioned that she had discussed her daughter’s sexual molestation and her feelings toward men as a result of the molestation with family members. She only denied that she had such a conversation with Lee’s wife. As such, the defense fails to demonstrate a reason to justify calling Lee’s wife for impeachment purposes.

¶ 36. This Court in Whigham v. State, 611 So.2d 988 (Miss.1992), made it clear that a proper foundation must be established, stating:

If counsel for a party desires to impeach the testimony of a witness with some pretrial, out-of-court statement that is inconsistent with his trial testimony, it is only fair that the witness, while he is on the stand, be asked about it, and be given an opportunity to explain or deny it. Nor does this create any difficulty to counsel.
It is manifestly unfair, after the witness has been excused, to attempt to offer a pretrial inconsistent statement of the witness into evidence, and no trial court should be faulted for excluding such hearsay testimony in the absence of laying any foundation. In this case counsel surely knew prior to trial about the statements Stewart allegedly made to Phyllis. Yet he did not ask Stewart a single question about any of them.
There may be instances in which a pretrial inconsistent statement of a witness will not be known until after the witness has left the stand. In such an instance a trial judge in the interest of justice may permit the introduction of such statement, but only after making sure that the witness is available for recall and is given an opportunity to explain or deny the statement. Even here, however, it would be better procedure to permit the witness to be recalled for further examination and asked about the statement, and given an opportunity to explain or deny it, rather than introducing the statement and then recalling the witness.

Whigham, 611 So.2d at 994 (emphasis added).

¶ 37. Furthermore, the Court of Appeals correctly found that Evans’s testimony was not crucial to the defense, and the trial court’s refusal to allow impeachment of this witness was not reversible error. Lee v. State, 944 So.2d 56, 63-64, 2005 Miss.App. LEXIS 918, 15-16 (Miss.Ct. App.2005). The court stated:

While cross-examining Connie Evans, who lived across the street from Lee, defense counsel asked whether she had told Beth Lee, the defendant’s wife, that she did not trust men because Evans’ daughter had been molested by her ex-husband. Evans testified that she had not made such a statement to Beth and stated that she would never discuss anything like this with anyone except with her family. Later, while examining Beth Lee, the defense sought to elicit testimony that Evans had made a statement to Beth about Evans’ feelings toward men in general. The State objected and the trial court ruled that this was inadmissible hearsay. Lee now asserts that this ruling constitutes reversible error.
Evans’ testimony was not essential to the State’s case. She was not the complaining witness nor did she observe any criminal behavior on Lee’s part. Evans testified only that she saw Lee walk [the female victim] from the bus stop to his garage on several occasions. This was straightforward testimony. We fail to see how Evans’ attitude towards or preconceived notions about men would impact the credibility of this testimony. Whether Evans had given this information to Beth would have added little if anything to Lee’s position. Thus, the excluded testimony would be harmless, at best.
Because Evans’ testimony was not crucial, the refusal to allow insubstantial impeachment of this witness is not reversible error. None of the information the statement may have provided contradicted Evans’ testimony in any siynificant manner such that the interests of justice would demand this Court’s findiny an abuse of discretion. See Peyton v. State, 858 So.2d 156, 160 (Miss.Ct.App.2003). Moreover, it is inconceivable that a different result would have been reached had the testimony been allowed.

Lee, 944 So.2d 56, 62-64, 2005 Miss.App. LEXIS 918 at 14-16 (emphasis added). As such, I find that the impeachment testimony sought by the defense was not directly relevant in this case and merely amounted to surplusage information. Further, even assuming that there was any error by the trial court excluding the testimony, it amounted to harmless error and would not have affected the outcome reached by the jury in this case.

¶ 38. For the foregoing reasons, I conclude that the trial court did not err in refusing the impeachment testimony sought by the defense. Accordingly, I agree with the affirmance of the trial court’s judgment in its entirety.

WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ., JOIN THIS OPINION.

DIAZ, Justice,

Concurring in Part and Dissenting in Part:

¶ 39. Because I disagree with the majority’s limitation on Richmond, I concur in result only as to issue I. Furthermore, because a witness’s personal bias is not a collateral matter, I must respectfully dissent as to issue II.

I. The Majority Incorrectly Distinguishes Richmond.

¶ 40. The majority says that it distinguishes the Richmond case simply because the trial court denied the State’s motion to amend. The majority holds that if the trial court denies a party’s motion to amend an indictment, Richmond is applicable. If the trial court grants a party’s motion to amend, the majority’s newly-crafted four-part test is applicable. To make a distinction on such a matter provides an unnecessary complication of our doctrine of amending indictments and will no doubt lead to immense confusion at the trial level. Contrary to the majority’s assertion, the Richmond case has everything to do with “the issue of whether a motion to amend an indictment should be granted or denied.” If the majority wishes to so limit our precedent in Richmond, they should simply overrule the case rather than further confound the issue and burden our trial courts.

¶ 41. Additionally, the four-part test presented by the majority is redundant and overly complicated. The test is simple. Richmond correctly requires that the prosecution prove any extra substantive elements erroneously included in the indictment. 751 So.2d at 1046. To determine whether an element is one of substance or one of form, the trial judge should apply the test laid out in Griffin: whether the amendment will (1) materially alter the essential facts of the offense, or (2) materially alter a defense that the defendant had under the original indictment so as to prejudice the defendant’s case. 584 So.2d at 1275-76. This is all that should be asked of trial judges when determining whether an amendment to an indictment is proper.

¶ 42. Finally, Richmond is distinguishable from this case, but for more pertinent reasons than the majority holds. In Richmond, it was possible to prove the value of the stolen item. In rape and sexual battery cases involving minors, it is legally impossible to prove that a child under 14 consented to the sexual acts. The defendant argues that by removing the phrase “without her consent,” the court denied him a complete defense. However, this defense was a legal nullity which he never had under the original indictment, as children under the age of 14 cannot consent to sexual acts. Even if the State had been forced to prove the consent element, all the law would require is proof that the victim was under 14. Because the amendment did not change the essential facts or alter Lee’s defense in any way, the amendment was permissible.

II. A Key Witness’s Personal Bias is Not a Collateral Matter.

¶ 43. Contrary to the majority’s assertion, Evans never admitted her distrust of men. At most, she stated that she talked about “it” with her family; “it” meaning her daughter’s molestation. Therefore, the only evidence of Evans’s bias was the statement she had made to Lee’s wife, and he should have been allowed to introduce her testimony.

¶ 44. The majority is correct that a witness may not be impeached on an immaterial or collateral matter, but “any evidence that is material and relevant, which has a bearing on the motives, bias, and interests of a witness and affects the credibility of that witness is admissible.” Miskelley v. State, 480 So.2d 1104, 1108 (Miss.1985). The majority, however, confounds a very basic application of Rule 613(b). As explained in a treatise on Mississippi Evidence:

If the witness under cross-examination denies having made a proper statement, his adversary may introduce extrinsic evidence to the contrary. For example, witness A, asked whether he ever made a prior statement, answers in the negative. If the cross-examiner then wishes to call witness B to the stand to introduce evidence to the contrary, that would be considered extrinsic evidence. If the witness admits making the inconsistent statement, the statement may not be introduced by the cross-examiner.

Victoria C. Ferreira, Mississippi Evidence 203 (4th ed.2001).

¶ 45. Consistent with this reading of the rule, this Court has reversed a criminal conviction under very similar circumstances. Tate v. State, 192 So.2d 923, 925 (Miss.1966). In Tate, we reversed a criminal conviction when the defendant was not allowed to impeach a prosecution witness with evidence of bias. The evidence of bias would have been statements the prosecution witness had made to a defense witness. Therefore, the matter was not luhether the witness made the statement, but the material issue of the witness’s bias.

Appellant also assigns as error the action of the trial court in sustaining an objection of the prosecution to certain testimony of one Tucker.
Witness Morris, who was the only eyewitness to the homicide, other than appellant, and who also had been wounded by appellant, had testified on cross-examination that he was a friend of appellant and had never cursed appellant “behind his back.” His version of the actual shooting was most damaging to appellant’s defense. Appellant offered Tucker for the purpose of showing bias and prejudice on the part of Morris and for the purpose of impeaching Morris’ credibility. The testimony of Tucker, developed in the absence of the jury, was to the effect that he had heard Morris refer to appellant in the most opprobrious terms and curse him when he (appellant) was not present. He also said that Morris had entertained bitter feelings against appellant. We think that this testimony should have been allowed, its weight and value to be determined by the jury.

Id.

¶ 46. Similarly, evidence of Evans’s bias or prejudice toward men was highly relevant in this case. The underlying reason for her possible bias was her ex-husband’s sexual molestation of her child, the exact same criminal behavior alleged to have been committed by Lee. Moreover, Evans was only one of three prosecution witnesses and the only one to corroborate J.R.G.’s testimony that the defendant met her at the school bus. Moreover, there was absolutely no medical or forensic evidence implicating Lee, and the prosecution failed to demonstrate with any level of certainty a time when Lee would have been alone with J.R.G. Because Evans’s testimony was offered as impeachment on the material matter of a key witness’s personal bias, it was reversible error for the trial judge to exclude Defendant’s wife’s testimony.

¶ 47. Therefore, I would reverse the judgments of the Court of Appeals and the trial court and remand this case for a new trial.

GRAVES, J„ JOINS THIS OPINION.

      . The trial court granted the State's Motion to Nolle Prosequi Count VIII of the indictment (one of the four counts of gratification of lust), finding it was a lesser included offense of Count V (one of the four counts of sexual battery).

      . These inconsistencies are discussed in a dissent in Cooley v. State, 803 So.2d 485, 490-91 (Miss.Ct.App.2001) (Southwick, P.J., dissenting).

      . The term "surplusage” is defined as “language that does not add meaning” and "[e]x-traneous matter in a pleading.” Black’s Law Dictionary 1172 (7th ed.2000).