Pryer v. State

958 So. 2d 818, 2007 WL 659952
CourtCourt of Appeals of Mississippi
DecidedMarch 6, 2007
Docket2005-KA-02014-COA
StatusPublished
Cited by10 cases

This text of 958 So. 2d 818 (Pryer 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
Pryer v. State, 958 So. 2d 818, 2007 WL 659952 (Mich. Ct. App. 2007).

Opinion

958 So.2d 818 (2007)

Timothy PRYER a/k/a Tim a/k/a Timothy Gene Pryer, Appellant.
v.
STATE of Mississippi, Appellee.

No. 2005-KA-02014-COA.

Court of Appeals of Mississippi.

March 6, 2007.
Rehearing Denied June 26, 2007.

*819 Lori Nail Basham, attorney for appellant.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

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

MYERS, P.J., for the Court.

¶ 1. On October 6, 2005, in the Circuit Court of Itawamba County, Timothy Gene Pryer was convicted of sexual battery and sentenced to serve twenty years in the custody of the Mississippi Department of Corrections, with fifteen years to serve and five years suspended pending successful completion of five years post-release *820 supervision. Pryer was also fined $5,000, ordered to pay all court costs, and ordered to register with the State of Mississippi as a sex offender. Aggrieved by the judgment of the circuit court, Pryer appeals his conviction, raising the following issues:

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING M.R.E. 803(25) TESTIMONY?
II. WHETHER THE CIRCUIT COURT ERRED IN DENYING PRYER'S MOTION FOR DIRECTED VERDICT AND WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 2. Finding no error, we affirm the decision of the circuit court.

STATEMENT OF THE FACTS

¶ 3. On July 19, 2004, ten-year-old S.F. told her mother that her stepfather, Pryer, had sexually abused her. S.F.'s statement was in response to her mother's inquest as to whether her stepfather or anybody else had ever touched her inappropriately. S.F.'s mother testified at trial that she had no reason to suspect Pryer of sexual abuse, but periodically asked S.F. this question because she has repressed memories of sexual abuse during her own childhood. S.F.'s mother and Pryer were married at the time of the incidents, and S.F. and her two brothers lived in the home with their mother and Pryer. Pryer worked days as a self-employed construction worker and would stay home with his stepchildren while their mother worked nights at a nursing home in Tupelo, Mississippi. The alleged incidents took place over an uncertain period of time. S.F. originally told her mother that Pryer began touching her inappropriately prior to school letting out in May 2004, but at trial she testified that the incidents began just before Christmas 2003. However, S.F. consistently stated that the last incident occurred during the week prior to July 19, 2004.

¶ 4. S.F. testified that, when her mother was at work, Pryer would make her sit in his lap as he placed his hand down her pants and touched her inappropriately. The record and briefs detailed the specific facts about the abuse that we have no desire to repeat here. Suffice it to say that the State produced medical testimony consistent with S.F.'s testimony that she had been sexually abused. Among those testifying for the State were the victim, the victim's mother, a social worker with the Department of Human Services, Tawnya Lagley, who interviewed S.F. regarding the abuse, a criminal investigator with the Itawamba County Sheriff's Department, Leonard Prien, who investigated the case and sat in on S.F's interview with DHS, and Dr. William L. Marcy, the doctor that conducted the physical examination of S.F. shortly after the incidents were reported. On appeal, Pryer maintains that the circuit court admitted the testimony of the victim's mother, DHS Social Worker Langley, and Investigator Prien in error and that the State failed to prove sexual penetration, an essential element of the crime of sexual battery.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING M.R.E. 803(25) TESTIMONY?

STANDARD OF REVIEW

¶ 5. "The standard of review for either the admission or exclusion of evidence is abuse of discretion." Perry v. State, 904 So.2d 1122, 1124(¶ 7) (Miss.Ct. App.2004) (quoting Harrison v. McMillan, 828 So.2d 756, 765(¶ 27) (Miss.2002)). "This Court will not reverse an erroneous admission or exclusion of evidence unless *821 the error adversely affects a substantial right of a party." Perry, 904 So.2d at 1124(¶ 7) (citing Gibson v. Wright, 870 So.2d 1250, 1258(¶ 28) (Miss.Ct.App.2004)). Employing this standard, we examine the trial court's ruling for abuse of discretion and then inquire into the affect, if any, this ruling had on a substantial right of the party.

DISCUSSION

¶ 6. Pryer argues that the circuit court erred in admitting, under the "tender years exception" to the hearsay rule, embodied in Mississippi Rule of Evidence 803(25),[1] the victim's mother's, DHS Social Worker Langley's, and Investigator Prien's testimony as to what S.F. told them about the sexual abuse she experienced. Pryer maintains that the statements made by S.F. to her mother, DHS Social Worker Langley, and Investigator Prien, as well as S.F.'s own testimony at the Rule 803(25) hearing lacked spontaneity. Pryer contends that spontaneity is a requirement to the admissibility of Rule 803(25) testimony and cites a list of twelve factors, found in the comment to Rule 803(25)[2], that the court should apply in determining whether the circumstances under which the statements were made present sufficient indicia of reliability. Pryer also cites the testimony of Dr. Louis Masur, III, a clinical psychologist called on behalf of the defense, who stated that questions asked by social workers regarding sexual abuse unintentionally lead children to allege sexual abuse, and that the repeated questioning by the victim's mother coupled with the questions asked by Langley were "leading enough to implant a suggestion that the child had been sexually abused."

¶ 7. In addition to a lack of spontaneity, Pryer alleges that, inconsistences as to the time and place of the incidents of sexual battery, found in S.F.'s testimony during the 803(25) hearing, illustrate S.F.'s faulty recollection, and that remoteness of the declarant's faulty recollection is a factor for the court to consider under the comment to Rule 803(25). The testimony offered at the Rule 803(25) hearing indicated that S.F. originally told her mother that the incidents began in May of 2004, but she testified that the incidents began before Christmas 2003 at the trial. However, S.F. consistently stated that the last incident occurred during the week prior to July 19, 2004. Pryer further complains that S.F. testified at the Rule 803(25) hearing that the incidents always occurred on a recliner in the living room, but at trial, she included the bedroom as one of the places that the sexual abuse occurred.

*822 ¶ 8. The record shows that the circuit judge conducted the required Rule 803(25) hearing outside the presence of the jury. At the Rule 803(25) hearing, the circuit judge heard extensive testimony by witnesses for both the prosecution and the defense. In his ruling on the admissibility of the proffered Rule 803(25) testimony, he accepted the testimony of the victim, the victim's mother, DHS Social Worker Langley, and Investigator Prien, regarding the alleged sexual abuse, finding sufficient indicia of reliability. The circuit judge, in support of his ruling, made extensive findings as to the factors necessary to ascertain the veracity of the proffered Rule 803(25) testimony and encompassed the factors listed in the comment to the rule.

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Cite This Page — Counsel Stack

Bluebook (online)
958 So. 2d 818, 2007 WL 659952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pryer-v-state-missctapp-2007.