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IN THE COURT OF APPEALS 01/28/97 OF THE STATE OF MISSISSIPPI
NO. 93-KA-01378 COA

EDDIE NICHOLSON APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JOSEPH H. LOPER, JR. COURT FROM WHICH APPEALED: WINSTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JAMES C. MAYO ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: PAT FLYNN DISTRICT ATTORNEY: DOUG EVANS; KEVIN HORAN NATURE OF THE CASE: CRIMINAL - SEXUAL BATTERY TRIAL COURT DISPOSITION: FOUND GUILTY AND SENTENCED TO TWENTY YEARS IN THE CUSTODY OF THE DEPARTMENT OF CORRECTIONS

MOTION FOR REHEARING FILED: November 3, 1997 BEFORE THOMAS, P.J., COLEMAN, AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT:

Eddie Nicholson was found guilty of sexual battery. He appeals, arguing that the court erred in allowing rebuttal testimony of an alleged sexual act with another person, and then not allowing surrebuttal; in permitting the indictment to be amended and not permitting a continuance as a result of the amendment; in failing to require the State to provide proper and timely discovery; and in allowing the state to present at trial statements made before the grand jury. It is also alleged that the verdict was against the overwhelming weight of the evidence. None of these issues have merit, and we affirm. FACTS Nicholson coached a girls' softball team in Louisville during the summer of 1993. An eleven-year-old girl, A.N., was a member of the team. A.N. testified that on the way back from a bus trip with the softball team on June 23, 1993, Nicholson made her sit on the seat with him. Nicholson ran his hand under the girl's shorts and put his finger in her vagina. Several days after the trip, A.N. told her mother about the abuse. Her mother filed a complaint against Nicholson. The grand jury indicted Nicholson, charging sexual penetration with a finger "on or about" June 21, 1993. On the day of the trial, the date in the indictment was amended to read June 23. Nicholson was tried and convicted of sexual battery and was sentenced to twenty years in the custody of the Mississippi Department of Corrections. DISCUSSION Nicholson alleges six points of error, as follows. 1. Rebuttal Testimony by Another Alleged Victim In response to his attorney's question, Nicholson denied that A.N.'s allegations were true. He then said "I've never done anything wrong to any child. I never have and I never will." On crossexamination by the State, he then specifically denied that he had ever touched Y.T., another member of the team. Q: When your attorney was asking you questions a while [ago], isn't it a fact that you made the statement that you had never done anything wrong to any child? A. Right. Q. Isn't it a fact that before one of the baseball practices while you were coaching the team that you carried [Y.T.] to the store, just the two of you, and during the time that you carried her to the store you fondled her and was feeling of her, specifically feeling of her breasts?

A. No, I did not. Q. Do you deny that that happened? A. I deny that happened. After this testimony was given, the state called Y.T. as a rebuttal witness. She testified that on a trip to a store before practice, that Nicholson touched her on her bottom and that she had to push his hand away five or six times and scooted away from him on the seat. Nicholson argues that allowing this testimony of other similar crimes was reversible error. Regardless of the admissibility of this line of evidence in the State's case-in-chief, Y.T. was called as a rebuttal witness to refute Nicholson's testimony that he had not done anything like this to any child, and specifically not to her. The caselaw cited by Nicholson does not deal with rebuttal, impeachment testimony. See, Elmore v. State, 510 So. 2d 127 (Miss. 1987) and Mitchell v. State, 539 So. 2d 1366 (Miss. 1989). The only case Nicholson relied upon in the trial court was Elmore, and it is a pre-Rules of Evidence case that does not address the applicable rules. The issue as Nicholson presented it was under Rule 404 (b). Proof of prior bad acts cannot be admitted when the effect is only to suggest that the defendant acted in the same way towards the victim of the crime charged. Nicholson's attorney did refer to "Rule 404 (2)" and argued that the State was not entitled to show a pattern of misconduct. Mississippi Rule of Evidence 404 allows certain exceptions to the general rule that evidence of other crimes or wrongs cannot be used. (a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same . . . . M.R.E. 404. Subsection (a) allows evidence of a person's character or trait of his character into evidence to rebut evidence of a pertinent trait put in issue by the accused. "Not all aspects of the accused's character are open to scrutiny under this exception. The prevailing view is that only pertinent traits -- those involved in the offense charged -- are provable." 1 MCCORMICK ON EVIDENCE,

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