Elkins v. State

918 So. 2d 828, 2005 WL 1744989
CourtCourt of Appeals of Mississippi
DecidedJuly 26, 2005
Docket2003-KA-02486-COA
StatusPublished
Cited by30 cases

This text of 918 So. 2d 828 (Elkins 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
Elkins v. State, 918 So. 2d 828, 2005 WL 1744989 (Mich. Ct. App. 2005).

Opinion

918 So.2d 828 (2005)

Gregory ELKINS a/k/a Gregory Glenn Elkins, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-02486-COA.

Court of Appeals of Mississippi.

July 26, 2005.
Rehearing Denied November 1, 2005.
Certiorari Denied January 12, 2006.

*830 J. Niles McNeel, Louisville, Cynthia A. Stewart, attorneys for appellant.

Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.

Before BRIDGES, P.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. Gregory Elkins was found guilty of fondling a child. The Circuit Court of Oktibbeha County sentenced Elkins to serve ten years in the custody of the Mississippi Department of Corrections and to five years of post-release supervision. Elkins appeals, arguing (1) that the trial court erroneously admitted the testimony of a social worker concerning her interview with Elkins's victim and (2) that the trial court erroneously denied Elkins's right to confront the witnesses against him by excluding impeachment evidence regarding the victim's motive to lie.

¶ 2. We find no error and, therefore, affirm Elkins's conviction and sentence.

FACTS

¶ 3. Elkins married T.B. in May 1996. T.B. had three children, the youngest of which, P.B., was seven years of age at the time of the marriage. Elkins and T.B. separated in July or August 1999, but continued to date until March 2001. In May 2002, P.B. told T.B. that Elkins had molested her on numerous occasions during the marriage.

¶ 4. Elkins was indicted for fondling a child and sexual battery. The trial occurred in October 2003. At the trial, P.B. testified that, beginning in 1996, Elkins performed oral sex on her on a regular basis. Primarily, this occurred when the two were alone in P.B.'s room at her bedtime. P.B. testified that the last time Elkins had touched her inappropriately was in May 1999, when she was ten years old. On that occasion, Elkins allowed P.B. to sit in his lap and steer his truck; P.B. said that Elkins placed his hand on her vagina on top of her bathing suit. Elkins withdrew his hand when P.B. threatened to disclose what he had been doing to her. Elkins told P.B. that no one would believe her if she told anyone what he had done.

¶ 5. Elkins's main defense theory was that T.B. had convinced P.B. to lie about the abuse as revenge for Elkins's having left T.B. for another woman. Elkins denied ever having performed oral sex on P.B. In a statement to police, he admitted *831 that he had touched P.B.'s crotch area inappropriately when she sat in his lap to steer the truck. At the trial, Elkins stated that this incident occurred in 1996, not in 1999. He explained that, while lifting P.B. into his lap to steer the truck, his hand slipped and he accidentally touched her bottom. The jury found Elkins guilty of fondling P.B. in May 1999 and acquitted Elkins of sexual battery. The court sentenced Elkins to ten years in the custody of the Mississippi Department of Corrections and five years on post-release supervision. Elkins appeals.

LAW AND ANALYSIS

I. WHETHER THE ADMISSION OF THE SOCIAL WORKER'S TESTIMONY DENIED ELKINS A FAIR TRIAL AND THE RIGHT TO CONFRONTATION.

¶ 6. On May 29, 2002, a social worker, Tomiko Mackey, conducted a "forensic interview" of P.B. concerning P.B.'s allegations of sexual abuse. On March 19, 2003, Elkins filed a motion in limine to prohibit Mackey from testifying about hearsay statements which P.B. made to Mackey at the interview. These statements, for the most part, paralleled P.B.'s trial testimony. The State sought to introduce the statements pursuant to the tender years exception to the hearsay rule. See M.R.E. 803(25). After a hearing, the trial court found that the tender years exception applied and denied Elkins's motion. At the trial, Mackey was accepted as an expert in forensic interviewing and child sexual abuse. Mackey testified extensively at the trial regarding her interview with P.B. On appeal, Elkins asserts several errors in the admission of Mackey's testimony.

A. Whether the trial court erroneously allowed Mackey to testify that P.B.'s demeanor, language and behavior were consistent with those of someone who has been sexually abused.

¶ 7. Mackey testified that a forensic interview is an investigative interview to determine if something has happened to a child and, if so, to elicit details from the child.[1] Mackey stated that, during her forensic interview with P.B., P.B.'s behavior and demeanor were consistent with those of children who have been sexually abused. Mackey also stated that, generally, children who have been coached to lie about abuse are unable to "keep a story straight." She said that P.B. related the same facts consistently and that she was able to clarify details. Elkins argues that this testimony was inadmissible because it amounted to an expert opinion that P.B. was telling the truth about the abuse.

¶ 8. Elkins did not object to this testimony. Elkins's motion in limine to exclude Mackey's testimony pertained only to P.B.'s hearsay statements, not to Mackey's expert opinions. Since Elkins failed to raise this issue in the trial court, it is barred from consideration on appeal. M.R.E. 103(a).

¶ 9. Notwithstanding the procedural bar, Elkins's argument is without merit. Mississippi Rule of Evidence 702 governs the admissibility of expert testimony. It is true that, in a child abuse case, a witness's opinion that the alleged victim was telling the truth is of dubious competency and, therefore, is inadmissible. Jones v. State, 606 So.2d 1051, 1057-58 (Miss.1992); Griffith *832 v. State, 584 So.2d 383 (Miss.1991). However, Mackey never opined that P.B. was truthful during the interview. Rather, she opined that P.B.'s behavior and demeanor were consistent with those of children who had been sexually abused, that children who have been coached to lie generally are unable to keep their stories straight, and that P.B. related the same facts consistently throughout the interview. While an expert may not opine that an alleged child sex abuse victim has been truthful, the scope of permissible expert testimony under Rule 702 includes an expert's opinion that the alleged victim's characteristics are consistent with those of children who have been sexually abused. U.S. v. Whitted, 11 F.3d 782, 785-86 (8th Cir.1993). Mackey's testimony was that P.B.'s behavior and story were consistent with those of child sex abuse victims. Therefore, the testimony of which Elkins complains was admissible. Id.

B. Whether there was error in allowing Mackey to testify as to what P.B. told her.

¶ 10. Elkins argues that the trial court erroneously denied his motion in limine to exclude Mackey's hearsay testimony about P.B.'s statements at the interview. Elkins claims that the ruling violated his right of confrontation and that the tender years exception did not apply to P.B.'s statements.

1. Confrontation clause violation.

¶ 11. Elkins argues that the trial court's admission of Mackey's hearsay testimony pursuant to the tender years exception violated his right to confront the witnesses against him under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford

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Bluebook (online)
918 So. 2d 828, 2005 WL 1744989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elkins-v-state-missctapp-2005.