Earnest v. State

805 So. 2d 599, 2002 WL 17070
CourtCourt of Appeals of Mississippi
DecidedJanuary 8, 2002
Docket2000-KA-00780-COA
StatusPublished
Cited by4 cases

This text of 805 So. 2d 599 (Earnest v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Earnest v. State, 805 So. 2d 599, 2002 WL 17070 (Mich. Ct. App. 2002).

Opinion

805 So.2d 599 (2002)

William Curt EARNEST, IV a/k/a Curt Earnest, Appellant
v.
STATE of Mississippi, Appellee.

No. 2000-KA-00780-COA.

Court of Appeals of Mississippi.

January 8, 2002.

*600 James D. Shannon, Laura Hogan Tedder, Elise Berry Munn, Hazlehurst, Kelley Mitchell Berry, Chrystal Springs, for Appellant:.

Office of the Attorney General by Glenn Watts, for Appellee.

Before SOUTHWICK, P.J., IRVING, and MYERS, JJ.

IRVING, J., for the Court.

¶ 1. William Earnest was convicted in the Circuit Court of Lincoln County of touching and handling a child for lustful purposes. Feeling aggrieved of the conviction, he perfected this appeal and has assigned eight issues for review which are (1) whether the trial court erred in admitting testimony of T.H., Dennis Hall, and Dr. Anne Henderson, (2) whether the trial court erred in admitting hearsay testimony of appellant's son K.C., (3) whether the trial court erred in admitting testimony regarding the truthfulness and credibility of the victim, (4) whether the trial court erred in admitting T.H.'s closed circuit television testimony, (5) whether the trial court erred in excluding testimony of a sex offender profile, (6) whether appellant's rights under the Mississippi and United States Constitutions were violated by the harsh sentence imposed in this cause, (7) whether the venire was tainted by the exclusion of Lincoln County School District employees, and (8) whether he was denied a fair trial. We find reversible error as to issues one, two and eight.

*601 FACTS

¶ 2. William Earnest is married with two children Kevin and Curtis. Kevin is the younger of the two boys and has a playmate, J.L. Kevin was around four or five years old at this time and J.L. was six years old. This case arose from an interaction between Earnest and J.L. on or about May 23, 1999. Because that interaction is the subject of litigation, some facts are disputed.

¶ 3. The undisputed facts follow. On or about May 22, 1999, J.L. arrived at Earnest's home with Earnest's son, Kevin. At that time, Earnest's wife was gone to pick up their older son. J.L. brought additional clothing in order to play on a "slip and slide" water game with Kevin. Earnest helped J.L. put his swimsuit on. Later, J.L. came into the house to use the bathroom. After J.L. used the bathroom, Earnest helped him wipe his "hiney." J.L. went back outside with Kevin and continued to play on the "slip and slide." J.L. went home later that day.

¶ 4. Around noon the following day, J.L.'s mother, P.L., informed Earnest's wife that J.L. had told P.L. and P.L.'s mother, L.L., that Earnest had touched him inappropriately the preceding day, as well as other times before. Later that same day, Earnest called J.L.'s mother to discuss the allegations. During the phone conversation, Earnest requested that J.L. not come back because he had been subjected to allegations like these before.[1]

¶ 5. The following week, J.L.'s mother took him to the Brookhaven Police Department where criminal charges were filed. While at the police department, J.L. met with Mary Magee, a licensed social worker, from the Department of Human Services. Ms. Magee referred him to Dr. Lisa Yazdani at the Child Advocacy Center.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. Issues one through four relate to the admission of testimony which Earnest claims was admitted in violation of various evidentiary rules; issue five addresses testimony which, according to Earnest, was improperly excluded under our evidentiary rules. Because of the interrelatedness of the questions raised by these issues, we will address them together in light of established law that the admissibility of evidence rests within the discretion of the trial court. Baine v. State, 606 So.2d 1076, 1078 (Miss.1992). A reversal of the trial court's decision on the admission of evidence will be appropriate only when an abuse of discretion results in prejudice to the accused; a substantial right of the accused must be affected. Parker v. State, 606 So.2d 1132, 1137-38 (Miss.1992).

1. Testimony of Taylor Hall, Dennis Hall, and Ann Henderson, Ph.D.

¶ 7. Earnest objected to the substance of Taylor Hall's testimony as well as the method utilized in the giving of her testimony. She was allowed to testify by closed circuit television. Objection also was made to the testimony of Dennis Hall, Taylor's father, and Ann Henderson, Ph. D., a counseling psychologist, who counseled Taylor. For the reasons that follow, we conclude that Taylor's testimony was improperly admitted. We also conclude that the testimony Taylor's father, Dennis, and her counselor, Dr. Henderson, should not have been admitted since their testimony stemmed from and was integrally *602 related to Taylor's. However, we need not discuss their testimony nor address the issues raised regarding their testimony since our holding regarding Taylor's testimony renders moot the objection to their testimony. It is sufficient to say that their testimony consisted of what Taylor told them about the incident.

¶ 8. Taylor, at the time of trial, was eight and one half years old; she was in the third grade. She testified that she lived five houses down the street from Earnest. She testified that one day in 1998, while she was riding with her daddy in his truck, she told him that Earnest had touched her on her private part. She stood up and, by pointing, demonstrated to the jury the part of her body that Earnest touched. She testified that the touching occurred in Earnest's house in the kitchen while Earnest's two sons, Kevin and Curtis, were in the living room playing a video game. Earnest's wife was not at home at the time. Taylor could not remember how long it was from the touching to the time she told her father, neither could she remember how many times Earnest touched her. She was asked if Earnest touched her just one time, and she shook her head negatively.

¶ 9. Earnest argues that the admission of Taylor's testimony violated Rules 404(b) and 403 of the Mississippi Rules of Evidence because the testimony concerned another crime or act for which he was not on trial. Earnest further argues that even if the testimony was admissible under one of the exceptions permitted by the rule, it still should have been strained out via the Rule 403 filter through which all Rule 404(b) evidence must pass. On the other hand, the State says that Taylor's, her father's and Dr. Henderson's testimony was properly admitted pursuant to M.R.E. 404(b) modus operandi and 803(3), (25).

¶ 10. The trial court, agreeing with the State, made the following ruling:

THE COURT: All right. Well, it will first be relevant under 401. There is similarity. The age of the child, happened at the same house, happened in the same room. The modus operandi is similar enough. There is no problem with the time because of the child's age. Are you submitting his testimony under 404(b) at this time and also under 803(25)?[2]
MR. RUSHING: Yes, Your Honor, under 404(b) as the modus operandi, plus, Your Honor, intent, because the statements made during the cross-examination have been to the effect that he has touched the child, but the defense's allegation is that it was not for lustful purposes. So it goes not only to the modus operandi, with the similarities of the two acts with the children, but also as to the intent of his touching these children.
THE COURT: Well—
MR. RUSHING: Lack of mistake.
THE COURT: Also motive.
MR.

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Cite This Page — Counsel Stack

Bluebook (online)
805 So. 2d 599, 2002 WL 17070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earnest-v-state-missctapp-2002.