Pittman v. State

109 So. 3d 599, 2013 WL 599929, 2013 Miss. App. LEXIS 63
CourtCourt of Appeals of Mississippi
DecidedFebruary 19, 2013
DocketNo. 2011-KA-01458-COA
StatusPublished
Cited by1 cases

This text of 109 So. 3d 599 (Pittman 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
Pittman v. State, 109 So. 3d 599, 2013 WL 599929, 2013 Miss. App. LEXIS 63 (Mich. Ct. App. 2013).

Opinion

LEE, C.J.,

for the Court:

¶ 1. A Marion County Circuit Court jury convicted Derek Scott Pittman of statutory rape in violation of Mississippi Code Anno[601]*601tated section 97-3-65(l)(a) (Supp.2002). Pittman now appeals, arguing (1) the trial court erred by allowing hearsay statements during the testimony of Nurse Tan-ga Stuart; (2) the trial court erred by allowing hearsay statements during the testimony of Officer Adrien Fortenberry; and (8) the verdict is contrary to the sufficiency and weight of the evidence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 19, 2004, Rebecca1 entered her daughter’s bedroom and saw her husband, Derek Scott Pittman, having sexual intercourse with their daughter, Emma. Neither Pittman nor Emma saw Rebecca. She backed out of the room and returned to bed. The next morning Rebecca took Emma to the Wesley Medical Center, where Rebecca informed the nurse that she had witnessed her husband having intercourse with Emma. Emma, who was fourteen years old at the time, confirmed that she had been having vaginal intercourse with her father on frequent occasions over the past year.

¶ 3. Emma and Rebecca both spoke to Officer Fortenberry of the Marion County Sheriff’s Department. Emma signed an affidavit attesting to the statutory rape, and Rebecca gave a written statement about her eyewitness account. Some time later, Emma and Rebecca sought to drop the charges against Pittman. The district attorney went forward with the prosecution without the cooperation of Emma or Rebecca.

¶ 4. At trial, the State subpoenaed Emma to testify. When asked about being examined at the Wesley Medical Center, Emma repeatedly stated that she did not remember. She also said she did not remember meeting with Officer Fortenberry or giving him a statement. The assistant district attorney showed Emma her affidavit and asked if she remembered signing it. Emma stated that it looked like her handwriting and her signature, but she did not remember writing it or signing it. Although she responded to questions by stating that she did not remember or did not know, she never contradicted her previous statements that her father had raped her.

¶ 5. When Rebecca testified at trial, she contended that she had taken Emma to the hospital “[t]o see if she [had] been having any sexual intercourse....” Although she remembered speaking to Officer Fortenberry, she repeatedly said that despite attesting to seeing her husband having sexual intercourse with her daughter, she could not “say that [she] saw that.” When the assistant district attorney questioned her again about taking Emma to the hospital, Rebecca said, “I’ve already made those statements. I don’t recall.” Rebecca began to contradict her prior testimony. In an attempt to clarify, the assistant district attorney asked Rebecca if she had gone to work or if she went to the hospital. She stated she had gone to work and then to the hospital, and then declared, “I’m about done.”

¶ 6. Pittman did not testify, nor did he present any evidence. The jury found Pittman guilty of statutory rape. He was sentenced to fifteen years, with seven years to serve in the custody of the Mississippi Department of Corrections, and eight years to serve under the post-release provisions with a five-year supervision period. This appeal followed.

DISCUSSION

I. NURSE STUART’S TESTIMONY

¶ 7. This Court applies “an abuse-of-discretion standard when reviewing [602]*602claims that the trial judge erred by admitting hearsay.” White v. State, 48 So.3d 454, 456 (¶ 9) (Miss.2010) (citation omitted).

¶ 8. The State called Nurse Tanga Stuart, who examined Emma at the Wesley Medical Center, to testify. In anticipation of the State eliciting testimony regarding the statements Emma and Rebecca had made to Nurse Stuart, the defense objected to the statements as hearsay. The State argued that the statements were admissible because they fell under the medical-records exception of Mississippi Rule of Evidence 803(4). The trial court noted that the statements were admissible under several exceptions, including Mississippi Rules of Evidence 803(2) and 803(3); but it also noted that the statements were admissible because the statements spoke to the “medical condition as to their frame of mind.” When the State sought to have Emma’s medical chart from the examination admitted into evidence, Pittman’s counsel-again objected based on hearsay grounds. The court overruled the objection and admitted the records into evidence.

¶ 9. Pittman contends that the trial court committed reversible error by allowing the hearsay testimony and admitting the medical records into evidence. Pittman asserts that because the declarant of the information is unknown and the information cannot be completely attributed to Emma, the statements are inadmissible.

¶ 10. Rule 803(4) creates an exception to the hearsay rule for “[s]tatements made for the purpose of medical diagnosis or treatment and describing medical history....” Even though the language of the rule mandates that the declarant be the patient, the Mississippi Supreme Court has found that “Rule 803(4) casts its net wider than the patient-physician relationship.” Valmain v. State, 5 So.3d 1079, 1083 (¶ 14) (Miss.2009) (internal quotations omitted). Statements made for the purpose of a medical diagnosis are reliable because “the effectiveness of the treatment depends on the accuracy of the information provided to the doctor, which may be termed a ‘selfish treatment motivation.’” Id. at 1084 (¶ 16) (internal quotations omitted). This veracity does not change when the declarant is the parent of the patient because “parents have the same ‘selfish treatment motivation’ when providing information about their child to a physician for diagnosis or treatment as they would if providing information for their own diagnosis or treatment.” Id. at (¶ 17).

¶ 11. Therefore, whether Emma or her mother gave the statements contained within the medical report is not dispositive. Information obtained from either declarant for the purpose of receiving medical treatment is admissible.

¶ 12. Pittman also contends that the statements were not admissible because they were being used to prove fault. In order for a statement indicating fault to qualify under the exception of Rule 803(4), the statement must meet the two-part test set out in Jones v. State, 606 So.2d 1051 (Miss.1992). “First, the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment.” Id. at 1056. When the victim identifies someone in her household as her abuser, these statements are “reasonably pertinent to treatment and, consequently, reasonably relied upon by physicians in diagnosis and treatment.” Eakes v. State, 665 So.2d 852, 866 (Miss.1995).

¶ 13. Here, both Emma and Rebecca identified Pittman as the perpetrator. [603]*603Pittman is Emma’s biological father, who lived in the same home with her. Therefore, the statements are “reasonably pertinent to treatment” and “reasonably relied upon ... in diagnosis and treatment.” Id. This issue is without merit.

II. OFFICER FORTENBERRY’S TESTIMONY

¶ 14. Pittman asserts that the trial court erred by admitting hearsay testimony by Officer Fortenberry.

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