Rowlett v. State

791 So. 2d 319, 2001 WL 857212
CourtCourt of Appeals of Mississippi
DecidedJuly 31, 2001
Docket1999-KA-00879-COA
StatusPublished
Cited by6 cases

This text of 791 So. 2d 319 (Rowlett 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
Rowlett v. State, 791 So. 2d 319, 2001 WL 857212 (Mich. Ct. App. 2001).

Opinion

791 So.2d 319 (2001)

Anthony Ray ROWLETT, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-KA-00879-COA.

Court of Appeals of Mississippi.

July 31, 2001.

*320 Brian H. Neely, Tupelo, Attorney for Appellant.

Office of the Attorney General by Scott Stuart, Attorney for Appellee.

*321 Before McMILLIN, C.J., IRVING, and CHANDLER, JJ.

McMILLIN, C.J., for the Court:

¶ 1. Anthony Rowlett was tried before a jury in the Circuit Court of Calhoun County on one count of touching a child under the age of fourteen years for the purpose of gratifying his lust. The State presented evidence tending to prove that Rowlett had engaged in improper sexual contact with his stepdaughter on an occasion in mid-December 1996. Rowlett denied the incident and presented evidence indicating that he did not have access to the child during the time the crime was alleged to have occurred. The jury found Rowlett guilty. He now seeks to have the conviction and resulting judgment of sentence reversed on the grounds that (a) the trial court erroneously permitted damaging hearsay evidence to be admitted, (b) evidence of uncharged misconduct by the defendant was allowed before the jury, (c) the trial court erroneously permitted the child victim to testify without first determining her competence, (d) the court erroneously excluded competent exculpatory evidence indicating that someone other than Rowlett was the offender, (e) the State was allowed to present inadmissible and substantially prejudicial evidence in rebuttal after the defense rested, (f) medical records damaging to the defense were improperly admitted, (g) the trial court erred in refusing the defense's requested jury instruction regarding the alleged victim's testimony, (h) the trial court erred in denying a number of the defense's mistrial motions, (i) the court erred in denying the defendant's post-conviction motion for JNOV or new trial, and (j) the court committed reversible error in denying challenges for cause offered as to certain prospective jurors.

¶ 2. After giving due consideration to the issues raised in this appeal, we do not find that any of the errors complained of by Rowlett are of sufficient gravity to merit setting aside his conviction. Therefore, we affirm the judgment of the trial court.

I.

Hearsay Evidence

¶ 3. The trial court permitted two examining physicians, the child's preschool teacher, and her investigating social worker to relate to the jury certain statements made by the child victim naming Rowlett as the person who had sexually molested her. This testimony was received over the defense's objection that such statements constituted inadmissible hearsay.

¶ 4. The two physicians' testimony related information given to them by the alleged victim as a part of their diagnosis and treatment of the child. Such evidence is admissible as an exception to the hearsay rule under Mississippi Rule of Evidence 803(4). The scope of this exception has been specifically held to include the identification of the purported abuser under the theory that a part of the treatment of a sexually-abused child includes reasonable efforts to eliminate the abuser's access to the child. Hennington v. State, 702 So.2d 403 (¶ 49) (Miss.1997). We note, in fact, that certain of the hearsay statements made to Dr. Chidester would appear to be exculpatory to the defendant since the child identified another person as having engaged in improper sexual contact with her at some point. Nevertheless, such a circumstance does not affect the admissibility of the evidence. Rather, it only affects the probative value of any such evidence—a matter for the jury to resolve.

¶ 5. The testimony of the teacher and the social worker presents something of a problem. A specific exception to the *322 hearsay rule found at Mississippi Rule of Evidence 803(25) has been adopted to permit introduction of out-of-court statements by children of tender years concerning sexual contact under certain circumstances. M.R.E. 803(25). In order to be admissible, the statements must be first subjected to a hearing outside the jury's presence, and the court must affirmatively find that the time, content, and circumstances of the statement "provide substantial indicia of reliability" to override the normal concerns about the trustworthiness of unsworn out-of-court statements that are the foundation of the hearsay exclusion rule. M.R.E. 803(25). In the case before us, the trial was originally commenced before Honorable Henry Lackey; however, the first trial ended in a mistrial due to certain events deemed prejudicial to the defendant that have no relevance to the case in its present posture. After a mistrial had been declared, the trial court proceeded to conduct the necessary inquiry into the circumstances of the child's out-of-court statements in anticipation that the case would be retried in the near future. At the conclusion of the hearing, Judge Lackey indicated that he would give a written ruling on several matters, including the admissibility of the hearsay statements of the child victim.

¶ 6. No such ruling appears in the record. When the case was retried, it was tried before a different judge, Honorable Kenneth Coleman. Judge Coleman did not conduct any further inquiry into the circumstances of the child's various statements to her teacher and to the investigating social worker. Instead, he summarily overruled all hearsay objections to the testimony and allowed it to be put before the jury. It is clear, from certain comments made by Judge Coleman in the record, that he was under the impression that Judge Lackey had already ruled on the admissibility of these hearsay statements and had found them admissible under Rule 803(25). Judge Lackey may, in fact, have done so informally, but we are, of course, limited to considering matters that appear in the record.

¶ 7. We have reviewed the transcript of the hearing inquiring into the circumstances of the child's statements. This child—a child of very young age— appears to have made her statements identifying the defendant in a rather spontaneous manner shortly after the event, and there is no indication that either person who heard the child's remarks used suggestive techniques to draw out the child's statements or to direct her toward identifying a particular person. There was no evidence that the child harbored any particular resentment or ill-feeling toward the defendant that would motivate her to falsely accuse him. Her statements to her teacher and the investigating social worker were consistent. The two witnesses were not related to the child, and no attempt was made to attack the credibility of either of them on the question of whether the child actually made such statements. This Court is satisfied that a full and adequate inquiry was made by Judge Lackey into the various factors affecting the probative value of these extrajudicial statements by the child victim as dictated by the comment to Rule 803(25). There is every indication that the relevant facts, as developed in the inquiry, pointed toward the admissibility of the child's statements. Therefore, to the extent that there is an absence on the record of either of the trial judges involved in the case making an affirmative finding that the statements would be admissible as an exception under Rule 803(25) to the general hearsay exclusionary rule, we conclude that the error was harmless and that the admission of the testimony does not require reversal of the conviction.

*323 II.

Uncharged Misconduct

¶ 8.

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Cite This Page — Counsel Stack

Bluebook (online)
791 So. 2d 319, 2001 WL 857212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowlett-v-state-missctapp-2001.