Sexual battery of a minor and child fondling

Mississippi Reports

PENNY v. STATE, 2005-KA-01543-COA (Miss.App. 12-12-2006)
MURIEL PENNY APPELLANT v. STATE OF MISSISSIPPI APPELLEE.
No. 2005-KA-01543-COA. Court of Appeals of Mississippi.
December 12, 2006. Petition for Rehearing filed December
22, 2006.

TRIAL JUDGE: HON. ANDREW C. BAKER, DATE OF JUDGMENT:
7/25/2005

COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT

TRIAL COURT DISPOSITION: CONVICTION OF FONDLING AND
SENTENCE TO SERVE FIFTEEN YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE LAST NINE
YEARS SUSPENDED PENDING THE DEFENDANT’S FUTURE GOOD
BEHAVIOR.

DISPOSITION: AFFIRMED

ATTORNEY FOR APPELLANT: DAVID L. WALKER

ATTORNEY FOR APPELLEE:OFFICE OF THE ATTORNEY GENERAL BY:
JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: JOHN W. CHAMPION

BEFORE MYERS, P.J., SOUTHWICK AND GRIFFIS, JJ.

GRIFFIS, J., FOR THE COURT:

¶ 1. Muriel Penny appeals his conviction of child
fondling. He was sentenced to serve fifteen years, with
nine years suspended. On appeal, Penny argues that: (1) he
was denied his right of confrontation when the trial court
allowed a video statement given by the victim, (2) the
victim was not competent to testify, and (3) the trial court
erred in qualifying a State’s witness as an expert in
forensic examination. We find no error and affirm.

FACTS

¶ 2. Penny was indicted for two counts of sexual
battery of a six-year old minor, whom we refer to as
Jane.[fn1] The first count was based on an incident that
occurred between April and September 27, 2004. The second
count was based on an incident alleged to have occurred on
September 28, 2004.

¶ 3. Jane testified at trial. In addition, the trial
court allowed the jury to view a videotaped interview of
Jane, which included a statement of her allegations against
Penny. The videotape was a preplanned interview. Neither
Penny nor his counsel were given notice of the video. The
district attorney prepared the video to play in court in
lieu of Jane’s live testimony. In her direct examination,
the State did not have Jane recount her allegations. She
was only asked whether she saw the video and whether she
told the truth on it. During redirect, the State did have
Jane go into a description of her charges against Penny.
Penny was allowed to re-cross on this issue. The video was
allowed to be played before the jury, because Jane had
given a more detailed account in the video than she had in
court.

¶ 4. Jane’s friend, Sydatrius Futrell testified that
she saw Penny put his hand on Jane’s “private” over her
clothes.

¶ 5. The State called nurse Sally Discenza as an
expert witness. Discenza testified that there were signs of
penetration, but they were not recent and did not indicate
continuous abuse. Jane was examined September 29, 2004.
Discenza testified that the mother reported that Jane had
been sexually abused two years prior, by another
individual. Jane’s mother explained that all she meant by
this was that a little boy had pulled her daughter’s pants
down.

¶ 6. Dr. Tracy Barrett testified that Jane’s
injuries were consistent with her complaints, but were also
consistent with a straddle injury.

¶ 7. The jury found Penny guilty of the
lesser-included offense of child fondling based on Count I
and not guilty on Count II.

STANDARD OF REVIEW

¶ 8. The standard of review regarding the admission
or exclusion of evidence is abuse of discretion. Yoste v.
Wal-Mart Stores, Inc., 822 So.2d 935, 936 (¶ 7)
(Miss. 2002). Any error in the admission or exclusion of
evidence is not grounds for reversal unless the error
adversely affected asubstantial right of a party. Lynch v.
State, 877 So.2d 1254, 1281 (¶ 86) (Miss.
2004).Constitutional issues arereviewed de novo. Thoms v.
Thoms, 928 So.2d 852, 855 (¶ 9) (Miss. 2006).

ANALYSIS

I. Did the trial court err in admitting Jane’s videotaped
interview into evidence?

¶ 9. Penny first argues that the trial court denied
him his right to confrontation when it allowed Jane’s
videotaped statement into evidence. Penny also argues that
the admission violated the Mississippi Rules of Evidence.
The State argues that Penny was allowed to cross-examine
Jane on the stand, and the video was admissible under the
tender years hearsay exception.

A. Right to confrontation

¶ 10. In all criminal prosecutions, the accused
shall enjoy the right to be confronted with the witnesses
against him. U.S. Const. amend VI; Miss. Const. art. 3,
¶ 26. This right applies to in-court testimony as
well as out-of-court statements. Crawford v. Washington, 541
U.S. 36, 50-51 (2004).

¶ 11. We do not find a violation of Penny’s right to
confrontation. Here, Jane testified, and Penny’s counsel
was allowed both cross-examination and
re-cross-examination. The concern was caused by the manner
in which the State offered Jane’s testimony. Indeed, the
State called Jane as a witness and asked her questions
about her background, her understanding of the concept of
telling the truth along with the consequences of not
telling the truth and whether she told the truth in the
interview with the social worker. The State then tendered
the witness. Defense counsel asked her a number of
background questions then asked for a conference in
chambers. Defense counsel then raised the point that there
would be a Crawford violation if the video was played after
his right to cross-examine Jane. The trial judge expressed
his concern with the sequence of the presentation of the
evidence. The court then stated, on the record, “I will
permit you [defense counsel] to recall the child after the
playing of the video.” Then, in the presence of the jury,
defense counsel asked Jane several more questions. The
State then was allowed redirect examination, where Jane
testified that Penny pulled down her panties and stuck his
“hand in” her “private part.” Defense counsel was then
allowed re-cross-examination. The State then called the
social worker and played the videotape during her
testimony. After the videotape was played, the record does
not indicate that Penny ever attempted to recall Jane.

¶ 12. The test for whether a defendant’s right of
confrontation has been violated by introduction of
out-of-court statements depends on whether the statements
are testimonial or non-testimonial. Id. at 68. Therefore,
we must first classify Jane’s video statement. “[A]
statement is testimonial when it is given to the police or
individuals working in connection with the police for the
purpose of prosecuting the accused.” Hobgood v. State, 926
So.2d 847, 852 (¶ 12) (Miss. 2006). Jane’s statement
was given on videotape to her social worker, on behalf of
and at the request of the assistant district attorney. The
sole purpose of the taped statement was to present it at
trial in lieu of live testimony. The purpose of playing it
after Jane’s in-court testimony was to allow her to give
more details on the videotape than she did while on the
stand. Jane’s video statement is testimonial.

¶ 13. Prior testimonial statements are not
admissible under the Sixth Amendment unless the witness is
(1) unavailable at trial and (2) the defendant had a prior
opportunity for cross-examination. Crawford, 541 U.S. at
68. “Where testimonial statements are at issue, the only
indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually
prescribes: confrontation.” Id. at 68-69. “Dispensing with
confrontation because testimony is obviously reliable is
akin to dispensing with jury trial because a defendant is
obviously guilty. This is not what the Sixth Amendment
prescribes.” Id. at 62.

¶ 14. This Court recently had the opportunity to
apply the Crawford rule to a factually similar case in
Elkins v. State, 918 So.2d 828 (Miss.Ct.App. 2005). Elkins
was indicted for one count of sexual battery and one count
of fondling against a minor. Id. at 830 (¶ 4). The
minor testified at trial that “Elkins performed oral sex on
her on a regular basis.” Id. Elkins denied the oral sex,
but admitted to accidentally touching her bottom. Id. at
830-31 (¶ 5). The jury acquitted him on sexual
battery but found him guilty of fondling. Id. at 831
(¶ 5). Elkins appealed and argued that the trial
court violated his right to confrontation when it allowed a
social worker to testify to the minor’s out-of-court
statements. Id. at 832 (¶ 10). This Court
distinguished Crawford:

Under Crawford, the confrontation clause is violated when
a hearsay declarant is available to testify at the trial,
but does not do so, and the defendant lacked an
opportunity to cross-examine the declarant on a prior
occasion. Unlike the scenario condemned in Crawford, in
the present case, P.B. testified at the trial and Elkins
cross-examined her. Therefore, his right to confront P.B.
was preserved. . . .

Id. at 832 (¶ 12) (citations omitted).

¶ 15. Like the minor victim in Elkins, Jane
testified in court and recounted her allegations. Penny
likewise cross-examined her at trial on this point and had
the opportunity to re-cross her after the video was played
for they jury. Elkins may be distinguished slightly. Indeed,
here the reason the prosecution offered the videotape as
evidence was because Jane gave more details on the
videotape than she did in her trial testimony. However, the
only added details were that Penny was in the bathroom
while she was watching”Dora the Explorer,” and the sexual
battery happened after Penny came out of the bathroom. At
trial, Jane gave an identical account of this incident but
left out the detail of watching television and said she
could not remember the detail of the bathroom.

¶ 16. To the extent that the video statement
duplicated Jane’s in court testimony, there was clearly no
denial of the right to confrontation. To the extent that
the video statement added new information, there was still
no denial of the right to confrontation, because Penny had
the opportunity for re-cross-examination after the
statement was entered.

B. Tender years hearsay exception

¶ 17. While a particular hearsay statement may not
violate the Confrontation Clause, it may offend state
hearsay rules. Crawford, 541 U.S. at 51. “Hearsay is not
admissible except as provided by law.” M.R.E. 802. One such
exception is known as the tender years exception:

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.

M.R.E. 803(25). There is a rebuttable presumption that
children under twelve are of tender years. Veasley v.
State, 735 So.2d 432, 436 (¶ 16) (Miss. 1999). The
indicia of reliability must be shown from the totality of
the circumstances that surround the making of the
statement. Garrison v. State, 726 So.2d 1144, 1148 (Miss.
1998). Corroborating evidence may not be used as indicia of
reliability. Idaho v. Wright, 497 U.S. 805, 823 (1990).
Some factors that the trial court should look at to
determine indicia of reliability are (1) whether the child
has an apparent motive to lie, (2) the child’s general
character, (3) whether more than one person heard the
statement, (4) whether the statements were made
spontaneously, (5) the timing of the declarations, (6) the
relationship between the child and the witness, (7) the
possibility of the child’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 child, (11) whether
suggestive techniques were used in eliciting the statement,
and (12) whether the child’s age, knowledge, and experience
make it unlikely that the child lied. M.R.E. 803(25) cmt.

¶ 18. Penny challenges the spontaneity and timing of
the statements. He says it was a preplanned interview,
taken months after the alleged crime. The trial court found
the statements were not the product of prompting or leading
questions. He noted that the prosecutor was not present
when the statements were made. The statements were made
from Jane to Melissa Essary, a counselor from Mississippi
Department of Human Resources. We hold the trial court did
not abuse its discretion. The taped statement is of an
interview between Jane and her counselor. Jane’s statements
were responses to Essary’s open-ended questions. There is
no evidence that Essary or anyone else suggested what
Jane’s responses should be. This issue has no merit.

C. Requirement that testimony be given under oath

¶ 19. Finally, Penny argues that the video statement
violates the requirement that testimony be given under
oath.

¶ 20. Rule of Evidence 603 requires that testimony
be given under oath; however, the video statement was not.
The video statement, with the two exceptions noted above,
was duplicative of Jane’s in-court testimony, which was
given under oath. Additionally, Jane swore under oath, in
court, that she had viewed the video and that she told the
truth in the video. Thus there is merit to Penny’s
contention that Jane’s testimony was not under oath.

¶ 21. Even had Jane not so testified, there would be
no Rule 603 problem. The introduction of Article VIII,
Hearsay, of the Mississippi Rules of Evidence explains the
relationship between this requirement and the law of
hearsay:

A witness'[s] testimony is evaluated on the basis of four
factors: perception, memory, narration, and sincerity. In
order that the testimony can be properly considered in the
light of these factors, the testimony should comply with
three conditions. The witness should testify (1) under
oath, (2) in the presence of the trier of fact, and (3) be
subjected to cross-examination. Past experience as well as
common sense indicate that some testimony which does not
conform to these three conditions may be more valuable
than testimony that does. The four factors may, in some
instances, be present in the absence of compliance with
the three aforementioned conditions. The solution that the
common law developed over a period of time was a general
rule against hearsay which permitted exceptions which
furnished guarantees of trustworthiness and reliability.

. . . . The concluding provisions of both Rule 803 and
804 (803(24) and 804(b)(5) respectively) allow for the use
of hearsay statements which do not fall within the
recognized exceptions, when the guarantees of
trustworthiness and necessity are present. These two
provisions are a recognition that the law is not stagnant;
they are designed to encourage the development of this
area of the law.

¶ 22. “The two underlying reasons for any exception
to the hearsay rule are . . . necessity. . . and a
circumstantial guaranty of the trustworthiness of the
offered evidence — that is, there must be something
present which the law considers a substitute for the oath. .
. .” Hercules, Inc. v. Walters, 434 So.2d 723, 726 (Miss.
1983). Thus, hearsay exceptions allow for the admissibility
of certain statements, regardless of the fact that they
might otherwise violate Rule 603. We note that the tender
years exception is not a traditional hearsay exception.
Before the tender years exception was established, however,
children’s out-of-court statements regarding sexual abuse
were evaluated under the residual hearsay exceptions. See,
e.g., Quimby v. State, 604 So.2d 741, 746 (Miss. 1992);
Mitchell v. State, 539 So.2d 1366, 1370 (Miss. 1989). This
issue has no merit.

II. Was Jane competent to testify?

¶ 23. The next argument Penny raises is that the
trial court erred in declaring Jane competent to testify.
He asserts that she did not know what it meant to tell the
truth and did not understand the consequences of perjury.
He also argues that Jane did not exhibit the ability to
remember events. He does not challenge her ability to answer
questions intelligently. The State counters that the trial
court was correct.

¶ 24. The question of whether a witness is competent
to testify is left to the sound discretion of the trial
court. Barnes v. State, 906 So.2d 16, 20 (¶ 15)
(Miss.Ct.App. 2004). A child is competent to testify if the
court ascertains that the child possesses “the ability to
perceive and remember events, to understand and answer
questions intelligently and to comprehend and accept the
importance of truthfulness.” Mohr v. State, 584 So.2d 426,
431 (Miss. 1991). “The trial court is afforded great
deference in its determination that a child witness is
competent to testify.” Williams v. State, 859 So.2d 1046,
1049 (¶ 14) (Miss.Ct.App. 2003). In order to prevail,
Penny “must show that at the time the court made its
initial decision that it was apparent that the witness did
not meet the criteria for testifying, not that the
subsequent testimony was flawed or that the initial
determination was possibly erroneous.” Id.

¶ 25. The trial court conducted an in camera hearing
on Jane’s competency the day before she testified. The
trial court, prosecutor, and defense counsel examined Jane.

¶ 26. During the interview, Jane recounted what
grade she was in, who her teacher was last year, the fact
that her mother saw her last report card, the age of her
younger sister, and with whom she lives. She did not
remember what her grades were last year or any names except
for her own, her mother’s name, and both her grandfathers’
names. On this record, we hold that the trial court did not
abuse its discretion in finding Jane had the ability to
perceive and remember events.

¶ 27. Jane also exhibited the ability to comprehend
and accept the importance of truthfulness during the
interview. She said that telling a lie was telling
something that you made up. She said telling the truth was
telling what really happened. Jane told the court that
telling a lie was wrong, and telling the truth was right.
She said that punishment was the consequence of telling a
lie. She promised to tell the truth in the courtroom. She
said if she did not remember, she was supposed to say, “I
forgot.” The only evidence that she did not understand the
consequences of telling a lie was when the defense counsel
asked her, “What would happen to you if you didn’t tell the
truth?” She answered, “I forgot it.” Given her earlier
answers, the court found she understood and accepted the
importance of telling the truth. We agree.

¶ 28. The trial court did not abuse its discretion
in finding Jane competent to testify.

III. Was Discenza qualified to testify as an expert in
sexual assault examination?

¶ 29. Finally, Penny challenges whether Discenza was
competent to testify as an expert witness. Discenza’s
testimony was that Jane had been sexually penetrated. Her
opinion was based on the history given by Jane, her mother,
as well as Discenza’s physical examination of the child.
The jury found she had not been penetrated, because it
acquitted Penny of both counts of sexual battery. This was
no doubt the result of cross-examination in which Discenza
testified the child had a prior history of sexual abuse and
there were no recent or continuous signs of penetration.
The exam was conducted the day after the last alleged
occurrence.

¶ 30. Any error in the admission or exclusion of
evidence is not grounds for reversal unless the error
adversely affected a substantial right of a party. Lynch,
877 So.2d at 1281 (¶ 86). We need not decide whether
Discenza was qualified, because her testimony did not
adversely affect a substantial right. If anything, her
testimony helped Penny’s case.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF TATE
COUNTY OF CONVICTION OF FONDLING AND SENTENCE TO SERVE
FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, WITH THE LAST NINE YEARS SUSPENDED PENDING
THE DEFENDANT’S FUTURE GOOD BEHAVIOR IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, CHANDLER,
BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS
IN RESULT ONLY.

[fn1] To protect the identity of the victim and her family,
we use a fictitious name.