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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-KA-00171 COA DAVID GARDNER A/K/A "DINOSAUR" v. STATE OF MISSISSIPPI APPELLANT APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: DISTRICT ATTORNEY: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 01/30/96 HON. KENNETH LEVENE THOMAS COAHOMA COUNTY CIRCUIT COURT RICHARD B. LEWIS OFFICE OF THE ATTORNEY GENERAL BY: PAT S. FLYNN LAWRENCE Y. MELLEN CRIMINAL - FELONY RAPE: SENTENCED TO SERVE A SENTENCE OF LIFE IMPRISONMENT IN THE MDOC; SENTENCE TO RUN CONSECUTIVE TO ANY PREVIOUSLY IMPOSED; DEFENDANT SHALL NOT BE ELIGIBLE FOR PAROLE AFFIRMED - 11/18/97

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

12/9/97

BEFORE McMILLIN, P.J., HINKEBEIN, AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT: David Gardner was convicted of rape by the Coahoma County Circuit Court. Gardner challenges his conviction alleging that: (1) the trial court erred in overruling his motion to obtain a blood test in order to determine the source of the pregnancy and for possible impeachment evidence; (2) the State should not have been allowed to put on proof of prior instances of sexual contact between the victim

and Gardner not disclosed in discovery until the day of trial; (3) it was an abuse of the trial court's discretion to declare the eleven-year-old victim competent to testify at trial; and (4) the trial court erred in overruling Gardner's motion for directed verdict and subsequent motion for JNOV or alternatively for a new trial since the verdict is against the overwhelming weight of the evidence and not supported by sufficient credible evidence. Finding no error we affirm. FACTS Gardner frequently visited the home of the eleven-year-old victim, "L.P.," and her sister and mother. L.P. testified that she and Gardner engaged in sexual intercourse two or three times per week since she was in the fourth grade, a period of approximately one and one-half years. L.P. testified that each time the sexual intercourse took place in her bedroom while she and Gardner were supposed to be watching television. Most of the time, her mother was asleep in the living room. Both L.P. and her mother testified to substantially the same facts concerning Gardner's visit one afternoon in August 1995. The mother discovered Gardner pinning L.P. to the wall, touching her between her legs with his hands, his pants down below his knees. According to the testimony, the mother hit Gardner in the legs with a baseball bat and had L.P. call L.P.'s grandmother. Once the grandmother came over and spoke with Gardner, they ran him out of the house. At this point, the mother testified that she was under the impression that Gardner and L.P. had not yet engaged in sexual intercourse. In September, it was discovered that L.P. was pregnant. L.P. disclosed to her mother for the first time that she and Gardner had engaged in sexual intercourse. A couple of days later the mother filed charges against Gardner for the rape of L.P. Ms. Lampkin, an administrator at L.P.'s school, testified that Gardner had come to the school in early September, posing as L.P.'s uncle. L.P. testified that Gardner asked her if he could come back to her house to see her. When L.P. told him no, he asked her not to tell anyone about the sexual contact between them so that he would not get into trouble. Gardner testified on his own behalf. He denied ever having sexual intercourse with L.P. or ever touching her in a sexual manner. He denied that the incident in August alleged by L.P. and her mother ever occurred. Gardner stated that the mother had never raised a hand to him. He also denied posing as L.P.'s uncle at the school, but admitted he had told Ms. Lampkin that he was a friend of the family. Gardner testified that everyone was lying about the facts of the case except him. Prior to trial, Gardner filed a motion to obtain a blood test on L.P.'s baby in order to determine paternity. Since the blood test could only be done after the baby was born, a continuance would have been necessary. The trial court denied the motion, holding that the court would not order a blood test of an infant merely for impeachment purposes, nor would the court delay the trial for several months for that purpose. The morning of trial, Gardner was informed that L.P. would be testifying that she and Gardner had sexual intercourse two or three times per week since she was in the fourth grade. Gardner objected to the testimony because it had not been disclosed in discovery prior to the day of trial. The trial judge allowed Gardner to confer with counsel to discuss possible prejudice due to the recent disclosure. Gardner stated that he could produce as many as four witnesses to refute L.P.'s testimony that he was at her home two to three times per week over the past year and a half. The trial court ruled that such testimony would be allowed if presented, but it was not crucial to the matter because he was not

specifically charged with the prior acts. Additionally, the trial court noted that Gardner would have time to subpoena the witnesses since the case would not conclude until the following day. At the close of evidence, Gardner made a motion for directed verdict, the judge denied the motion, and the jury returned a verdict of guilty. Gardner renewed his motion for directed verdict or alternatively a new trial. The judge denied this motion as well and sentenced Gardner to serve life in prison pursuant to Miss. Code Ann.

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