Webb v. State

113 So. 3d 592, 2012 WL 6118919, 2012 Miss. App. LEXIS 818
CourtCourt of Appeals of Mississippi
DecidedDecember 11, 2012
DocketNo. 2011-KA-00405-COA
StatusPublished
Cited by14 cases

This text of 113 So. 3d 592 (Webb 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
Webb v. State, 113 So. 3d 592, 2012 WL 6118919, 2012 Miss. App. LEXIS 818 (Mich. Ct. App. 2012).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. Under Mississippi Rule of Evidence 803(25), the “tender-years exception” to the hearsay rule, a witness may testify about statements “made by a child of tender years describing any act of sexual contact performed with or on the child.” Before admitting this testimony, the trial judge must conduct a hearing outside the jury’s presence and make two findings— (1) the child was of tender years when she made the statement, and (2) the statement has substantial indicia of reliability.

¶ 2. At Jeffrey Webb’s trial, Webb’s victim testified that he sexually abused her from the time she was eleven until she was fourteen, ultimately raping her. Ten other witnesses, recounted what the victim had told them about Webb’s abusive acts. On appeal, Webb challenges the testimony of these ten witnesses, which was admitted under the tender-years exception, and claims his convictions of sexual battery, statutory rape, and gratification of lust must be reversed.

¶ B. While the trial judge made the required findings of the victim’s tender age and the reliability of her statements, he did so after hearing from only two of the hearsay witnesses — the eight other witnesses testified without first proffering their testimony in a hearing outside the jury’s presence. Though the appropriate method for evaluating such testimony required an on-the-record proffer of the additional witnesses’ testimony outside the jury’s presence before determining the statements they recounted were reliable, we find the failure to do so here, at most, harmless error. Even absent this testimony, there was strong evidence of Webb’s guilt, which heavily outweighed any prejudice created by not proffering the witnesses’ testimony on the record. We affirm.

Background

¶ 4. One morning at school choir practice, Pierre found fellow high-school freshman Hope crying.1 When Pierre asked her what was wrong, Hope revealed she had been raped by her mother’s boyfriend, Jeffrey Webb, the day before. Hope had previously confided in Pierre that Webb had been sexually abusing her but begged Pierre not to tell anyone. This time Pierre informed the school counselor, Heather Norton. Norton contacted the Department of Human Services (DHS) and Hope’s mother, Tashanda.

[596]*596¶ 5. A forensic interviewer with the Mississippi Child Advocacy Center (MCAC) interviewed Hope. Her taped interview revealed that, starting when Hope was eleven, Webb — who was the father of Hope’s three younger siblings and lived with Hope’s family — began sneaking into Hope’s room at night and rubbing, kissing, and licking her in inappropriate places. Wanting to protect her mother and siblings, Hope kept the sexual abuse from her family. However, she confided in her friend Amber soon after the abuse began. The abuse continued, and when she was thirteen, Hope mentioned it to two other friends, Morgan and Alaya. By the end of the investigation, Hope, who was then fourteen, had described Webb’s three years of sexual abuse to eleven people— including her doctor, a social worker, and the police officer investigating her allegations.

¶ 6. Webb was charged in a three-count indictment with sexual battery, statutory rape, and gratification of lust by fondling a child. And the State sought to offer testimony from the eleven people Hope had told about the sexual abuse. In a pretrial hearing, MCAC interviewer Rachel Daniels testified about Hope’s forensic interview. The interview, which was conducted when Hope was fourteen, concerned the sexual abuse and Hope’s reporting of Webb’s acts. A video of the interview was introduced at the hearing. Hope’s mother, Tashanda, also testified, as did Hope. The trial judge determined: (1) Hope was a child of tender years at the time she made statements about the abuse; and (2) the time, content, and circumstances of her statements provided substantial indicia of reliability. The trial judge found the testimony about Hope’s statements concerning the abuse admissible under Rule 803(25).

¶ 7. At the pretrial hearing, the judge remarked that the State intended to call other witnesses in addition to Tashanda and Daniels to testify about Hope’s disclosures. The judge assured Webb’s counsel he would have an opportunity, prior to these witnesses testifying before, the jury, to (1) conduct voir dire and (2) object based on hearsay. The first morning of trial, prior to jury selection, the judge again discussed with the State and Webb’s counsel how these additional witnesses would be handled. But after the jury was empaneled, apparently there was an off-the-record conference between the judge, the State, and Webb’s counsel. Based on that conference, the judge stated for the record, ‘We initially were going to have the proffer of testimony of various witnesses prior to the beginning of trial. And by agreement of counsel, we’re not going to do so.” (Emphasis added). The judge asked the State and Webb’s counsel, “And is that clear enough for the record for you?” But only the State responded, acknowledging Webb’s “continuing objection” to the hearsay witnesses.

¶ 8. Hope testified at trial. During her testimony, the video of her MCAC interview was introduced and played to the jury. In addition, the State called ten witnesses who recounted Hope’s disclosures about Webb’s sexual abuse.2

[597]*597¶ 9. The State also called Dr. Darden North, the gynecologist who treated Hope when she was fourteen. Dr. North testified Hope’s hymen had been torn, indicating sexual intercourse, and repeated Hope’s and Tashanda’s statements that Webb had forced intercourse with Hope. Additionally, Sergeant Jeff Myers of the JPD testified about Webb’s investigation, and DNA analyst Kathryn Moyse testified about the physical evidence. (Neither Sergeant Myers’s nor Moyse’s testimony is challenged on appeal.)

¶ 10. The jury found Webb guilty of sexual battery, statutory rape, and gratification of lust. The Hinds County Circuit Court sentenced Webb to consecutive sentences of thirty years, thirty years, and fifteen years, respectively. Webb timely appealed.

Discussion

¶ 11. All of Webb’s issues on appeal— (1) the allegedly inadmissible and cumulative hearsay, (2) the challenge to the weight of the evidence, and (3) the allegations of ineffective assistance of counsel— are based on the admission of the corroborative witnesses’ testimony. We acknowledge their testimony recounting what Hope told them about Webb’s sexual abuse (and, in Dr. North’s case, what Tashanda also told him), offered by, the State to prove Webb had in fact abused Hope, was undoubtedly hearsay. See M.R.E. 801(c) (defining “hearsay”). But the question is — was it admissible hearsay?

¶ 12. Hearsay is inadmissible unless the law provides an exception. M.R.E. 802; see M.R.E. 803 (exceptions that apply regardless of whether the declarant is available to testify); M.R.E. 804 (exceptions that apply only when declarant is “unavailable” to testify). In this case, two exceptions were employed — Rule 803(4)’s exception for “[sjtatements made for purposes of medical diagnosis or treatment” and Rule 803(25)’s exception for “statement[s] made by a child of tender years describing any act of sexual contact performed with or on the child by another[.]” M.R.E. 803(4) <& (25). Webb argues both exceptions were misapplied, entitling him to a new trial.

¶ 13. We review the admission of evidence for abuse of discretion. Palmer v. State, 986 So.2d 328, 331 (¶ 12) (Miss.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
113 So. 3d 592, 2012 WL 6118919, 2012 Miss. App. LEXIS 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-state-missctapp-2012.