281 So.3d 851
Miss. Ct. App.2019Background
- In December 2012 eight-year-old "Amy" disclosed to her grandmother (Sue) that she had been molested while spending the night at her aunt Suzanne’s house; she described being kissed on the chest and touched in her vaginal area by a person with "big hands" who smelled like smoke.
- Sue contacted Amy’s parents and law enforcement; a forensic interviewer (Jaime Moore) later interviewed Amy, during which Amy identified Herbert (Suzanne’s husband) as the perpetrator and described the acts.
- At trial Amy testified consistently that Herbert came into the living room at night, lifted her shirt, kissed her chest, and touched her vaginal area; her brother was asleep on the couch and Suzanne was also present in the house.
- The circuit court admitted Amy’s out-of-court statements to Sue and Moore under the tender-years hearsay exception (M.R.E. 803(25)) after two pretrial hearings finding sufficient indicia of reliability.
- Herbert was convicted of fondling, sentenced to ten years (two suspended) plus probation and sex-offender registration; he appealed challenging admission of hearsay, denial of a new trial, and refusal of circumstantial-evidence/two-theory jury instructions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Herbert) | Held |
|---|---|---|---|
| Admissibility of child's out-of-court statements under tender-years hearsay exception | Statements reliable; child of tender years testified; admissible under M.R.E. 803(25) | Statements were unreliable, tainted by grandmother’s suggestion and therefore inadmissible hearsay | Affirmed — trial court did not abuse discretion; indicia of reliability satisfied |
| Timeliness/merits of motion for new trial | Motion untimely; even on merits verdict supported by victim’s testimony | Motion for new trial argued verdict against overwhelming weight of evidence | Affirmed — motion untimely under URCCCP 10.05; merits fail because victim’s credible testimony supported verdict |
| Refusal of circumstantial-evidence jury instruction | Direct testimony from victim identified defendant sufficiently; not a purely circumstantial case | Case was circumstantial; entitled to circumstantial-evidence and two-theory instructions | Affirmed — evidence (victim’s identification, only adult male present) justified refusal of those instructions |
| Corroboration requirement for M.R.E. 803(25) | Child testified at trial; statements corroborated by her trial testimony and consistency | Argued identification was supplied by grandmother and therefore uncorroborated | Affirmed — child’s in-court testimony and consistency provided required corroboration/credibility |
Key Cases Cited
- Sturkey v. State, 946 So. 2d 790 (Miss. Ct. App. 2006) (standard of review for evidentiary rulings)
- Webb v. State, 113 So. 3d 592 (Miss. Ct. App. 2012) (application of M.R.E. 803(25) tender-years exception)
- Little v. State, 72 So. 3d 557 (Miss. Ct. App. 2011) (child under twelve presumed of tender years)
- Powell v. State, 240 So. 3d 449 (Miss. Ct. App. 2017) (ten-day deadline for motion for new trial is mandatory)
- Kirk v. State, 160 So. 3d 685 (Miss. 2015) (standard for overturning verdict as contrary to overwhelming weight of the evidence)
- Evans v. State, 119 So. 3d 1084 (Miss. Ct. App. 2013) (refusal of circumstantial-evidence instruction where victim identified defendant)
- McInnis v. State, 61 So. 3d 872 (Miss. 2011) (definition and requirement for circumstantial-evidence instruction)
- Lindsey v. State, 212 So. 3d 44 (Miss. 2017) (victim’s uncontradicted testimony can support conviction)