Young v. State

106 So. 3d 811, 2011 WL 5027251, 2011 Miss. App. LEXIS 618
Court of Appeals of Mississippi·Decided October 11, 2011·No. No. 2010-CA-00629-COA·Published·Cited by 10 cases

Opinion

BARNES, J.,

for the Court:

¶ 1. Johnny R. Young Jr. was convicted, under Mississippi Code Annotated section 97 — 3—95(1)(d) (Rev.2006), of three counts of sexual battery of a minor and sentenced to three concurrent life sentences in the custody of the Mississippi Department of Corrections (MDOC). Young appeals his convictions, and finding no reversible error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2007, Young’s eight-year-old daughter, “Cindy,”1 confided to a family friend, Richard Dunsford, and her paternal step-grandmother that her father had sexually assaulted her on numerous occasions during the past several years. The Union County Sheriffs Office was contacted, and with the involvement of Child Protective Services, it began an investigation. Cindy was interviewed by Angie Floyd, a forensic-interview specialist with the Children’s Advocacy Center in Tupelo, Mississippi, on June 26, 2007. Cindy also was examined in Memphis, Tennessee, at the Sexual Assault Resource Center by a sexual-assault nurse examiner, Elizabeth Thomas. In her report, Thomas noted that the exam findings were “consistent with [a] history of blunt penetrating trauma of the oral, rectal, hymen, and/or vaginal orifice.”

113. In November 2007, Young was indicted on three counts of sexual battery of a minor. The indictment referenced incidences occurring between November 3, 2005, and November 3, 2006. A jury trial was held September 21-28, 2009, and Young was convicted on all three counts. The circuit court sentenced Young to three concurrent life sentences in the custody of the MDOC. Young filed a motion for a judgment notwithstanding the verdict (JNOV) and, in the alternative, a motion for a new trial, which the circuit court denied. Young timely filed an appeal, alleging that the circuit judge had erred in the admission or exclusion of certain evidence and that the evidence was insufficient to support the verdict.

I. Whether the circuit court erred in admitting into evidence numerous out-of-court statements made by Cindy to other individuals.

¶ 4. Young filed a motion in li-mine to exclude various out-of-court statements made by Cindy, arguing that the statements were hearsay, prior consistent statements, and violations of the Confrontation Clause.2 Young also made contemporaneous objections to the introduction of such evidence during the trial. Specifically objected to at trial were admission of the videotaped forensic interview conducted by Floyd, which was presented to the jury for viewing, and also the testimony of [815] Dunsford in whom Cindy had confided. Young argues on appeal that the admission of this evidence constituted error.

¶ 5. “The standard of review governing the admission or exclusion of evidence is abuse of discretion.” Catchings v. State, 39 So.3d 943, 950 (¶ 29) (Miss.Ct.App.2009) (citing Williams v. State, 991 So.2d 593, 597 (¶ 8) (Miss.2008)). A circuit court’s decision to admit or exclude evidence will only be reversed if it “result[s] in prejudice and harm or adversely affect[s] a substantial right of a party.” Id. at 951 (¶ 34) (quoting Hammons v. State, 918 So.2d 62, 65 (¶ 10) (Miss.2005)).

¶ 6. Since Cindy was under twelve years of age, the circuit court ruled that her statements fell under Mississippi Rule of Evidence 803(25), which is the tender-years hearsay exception. This rule provides:

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

In assessing whether such testimony is reliable, the comments to the rule list several factors to be considered. These factors are:

(1) whether there is an apparent motive on declarant’s part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant’s faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declar-ant’s age, knowledge, and experience make it unlikely that the declarant fabricated.

M.R.E. 803(25) cmt.

¶ 7. We find no abuse of discretion in the court’s admission of the forensic interview and the out-of-court statements made by Cindy to Dunsford. The videotaped forensic interview showed Cindy spontaneously drawing pictures of the sexual abuse that occurred. Floyd testified that she did not prompt Cindy to draw the pictures; in fact, Floyd was not even present in the room when Cindy did so. Therefore, we find that it falls under the tender-years exception. Furthermore, the circuit judge, in addressing the contemporaneous objection to Dunsford’s testimony, thoroughly addressed the factors to be considered in allowing such hearsay evidence and appropriately applied them, stating:

This is a statement under 803(25), and that the child being the declarant, there’s been no proof of any motive to lie on her part or anything disparagement of character. It’s a statement that was only heard by the witness so that actually favors not allowing — clearly, the statements were [made] spontaneously. The timing and the relationships are not particularly notable issues. It does not appear that there’s any possibility of faulty recollection by the witness — by the declarant. This is by the declarant. That’s an issue of her being a child. Certainly, the statements were made.
[816] There’s no doubt that favors admission. Credibility about the person testifying has not been called into question. Age and maturity of the declarant is an issue for the jury. Whether suggestive techniques were used, obviously, it was made spontaneous. There was no inquiry made.

We find no abuse of the circuit court’s discretion in admitting Cindy’s prior statements at trial.

II. Whether the circuit court erred in admitting into evidence prior bad acts of Young as they were prejudicial.

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Young v. State, 106 So. 3d 811, 2011 WL 5027251, 2011 Miss. App. LEXIS 618 (Mich. Ct. App. 2011).

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