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IN THE SUPREME COURT OF MISSISSIPPI NO. 94-KA-01087-SCT THOMAS DWAYNE COMBS v. STATE OF MISSISSIPPI THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: 07/29/94 HON. HENRY LAFAYETTE LACKEY LAFAYETTE COUNTY CIRCUIT COURT THOMAS C. LEVIDIOTIS OFFICE OF THE ATTORNEY GENERAL BY: WAYNE SNUGGS LAWRENCE A. LITTLE CRIMINAL - FELONY AFFIRMED - 2/27/97

DISTRICT ATTORNEY NATURE OF THE CASE: DISPOSITION: MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE DAN LEE, C.J., BANKS AND MILLS, JJ. DAN LEE, CHIEF JUSTICE, FOR THE COURT:

Thomas Dwayne Combs was indicted in a multi-count indictment for sexual battery and capital rape of his two daughters, Jennifer and Christina, who at the time of the offenses were twelve and ten years of age respectively. Combs received a jury trial before the Honorable Henry Lackey in the Circuit Court of Lafayette County. After due deliberation, the jury returned a guilty verdict on each of the eight counts of sexual battery, but failed to return a verdict on the three counts of rape. Combs was sentenced to serve twenty (20) years in the custody of the Mississippi Department of Corrections for the four counts against Jennifer and twenty (20) years for the four counts against Christina. The sentences were to run consecutively for a total of forty (40) years. The trial court denied his post-trial motion for JNOV or a new trial. Displeased with his conviction for eight counts of sexual battery, Combs appeals and raises the following issues:

I. WHETHER THE TRIAL COURT ERRED WHEN IT OVERRULED THE APPELLANT'S PRETRIAL MOTION FOR SEVERANCE OF CHARGES WITH RESPECT TO THE ALLEGED VICTIMS, II. WHETHER THE TRIAL COURT ERRED WHEN IT OVERRULED THE APPELLANT'S PRETRIAL MOTION FOR PARTICULARS AS ALLEGED IN THE INDICTMENT, III. WHETHER THE TRIAL COURT ERRED WHEN IT OVERRULED THE APPELLANT'S MOTIONS FOR DIRECTED VERDICT AND PEREMPTORY INSTRUCTION OF NOT GUILTY MADE AT THE CLOSE OF THE STATE'S CASE, AND PROMPTLY RENEWED AT THE CLOSE OF THE APPELLANT'S CASE, IV. WHETHER THE TRIAL COURT ERRED WHEN IT OVERRULED THE APPELLANT'S TIMELY POST-TRIAL MOTION FOR ACQUITTAL NOTWITHSTANDING THE VERDICT OF JURY, OR, ALTERNATIVELY MOTION FOR NEW TRIAL, AND V. ALTERNATIVELY, WHETHER THE VARIOUS ERRORS OF THE TRIAL COURT TAKEN TOGETHER EFFECTIVELY SERVED TO DENY APPELLANT MINIMALLY ACCEPTABLE DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES CONSTITUTION, AMENDMENTS V, VI, XIV AND ARTICLE III, 14 OF THE MISSISSIPPI CONSTITUTION OF 1890. STATEMENT OF THE CASE The Appellant, Thomas Dwayne Combs, on or about March 18, 1993, was accused by his wife, Brenda Waite Combs, who herself claimed to be acting upon allegations of the couple's daughters, Jennifer and Christina Combs, then twelve and ten years old respectively, of various acts constituting capital rape and sexual battery upon the girls. Christina had given her mother a letter telling her of Combs' improper actions. The Lafayette County Department of Human Services, Lafayette County Sheriff's Office, as well as the District Attorney's Office soon became involved in the matter and Combs was arrested and questioned regarding these various alleged crimes. In December, 1993, a Lafayette County grand jury indicted Mr. Combs for three counts of capital rape allegedly committed upon Jennifer, the older daughter, and eight counts of sexual battery, four counts each, allegedly committed against both daughters, specifically charging two counts each of fellatio and digital penetration involving each of the girls. Comb's defense relied upon the absolute lack of physical evidence that rape or sexual battery had occurred, including the testimony of the children's pediatrician that the hymen and vaginal introitus of the older child were intact and normal in appearance for her age, and the theory that Brenda Combs had manufactured the charges, coaxed the children into complaining of the alleged conduct and testifying against Combs, in order to secure a divorce, and to obscure her theft of approximately ten thousand dollars cash from the couple's cabinet-building business. Following a jury trial in the Circuit Court of Lafayette County, in July, 1994, Combs was convicted

of the eight counts of sexual battery, as charged in the multi-count indictment, but the jury was unable to agree as to the charges of rape. After a pre-sentence investigation and sentencing hearing, the trial court sentenced Combs to serve forty years imprisonment. After the trial and sentencing, Combs filed a motion for Acquittal Notwithstanding Verdict of Jury, Or, Alternatively Motion For New Trial. The trial court overruled this post-trial motion, and Combs now appeals the aforementioned conviction. In addition to his appellant brief, filed February 3, 1995, Combs filed a supplemental brief on December 20, 1995, in which he raised the question of ineffective assistance of counsel. The appellee's brief was filed and, pursuant to Miss. Sup. Ct. R. 31(b), any reply brief would have been due in April of 1995. The State moved to strike the supplemental brief and this Court granted the motion on January 19, 1996. Combs' petition for rehearing on the motion to strike was denied on April 1, 1996. WHETHER THE TRIAL COURT ERRED WHEN IT OVERRULED THE APPELLANT'S PRETRIAL MOTION FOR SEVERANCE OF CHARGES WITH RESPECT TO THE ALLEGED VICTIMS. Before trial, the Appellant made a timely Motion for Severance of the counts pending against him in a multi-count indictment, with respect to the alleged victims and occurrences. Combs suggests that it was error for the trial court not to have had a hearing on the severance motion. In allowing multi-count indictments, this Court has stated that: Miss. Code Ann.

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