Byars v. State, 2001-KA-01312-COA.
| Decision Date | 28 January 2003 |
| Docket Number | No. 2001-KA-01312-COA.,2001-KA-01312-COA. |
| Citation | 835 So.2d 965 |
| Parties | James William BYARS, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Lisa D. Collums, Gulfport, attorney for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
Before KING, P.J., LEE, and IRVING, JJ.
LEE, J., for the Court.
PROCEDURAL HISTORY
¶ 1. James William Byars was indicted on three counts of sexual battery and three counts of touching of a child for lustful purposes. He was tried in July 2001 on only one count of sexual battery and two counts of touching of a child for lustful purposes, and a Harrison County Circuit Court jury found him guilty on all three counts. Byars was sentenced to serve twenty years without the possibility of parole for the sexual battery charge, fifteen years on one charge of touching of a child for lustful purposes, and fifteen years on the other charge of touching of a child for lustful purposes. The fifteen year sentences were to run concurrently with one another, but were to run consecutively to the sexual battery sentence, for a total sentence of thirty-five years in the custody of the Mississippi Department of Corrections.
¶ 2. Byars raises various issues with this appeal which can be summarized as the following: (1) the trial court erred in allowing testimony pursuant to the tender years hearsay exception; (2) the trial court erred in allowing testimony from social worker Kari Mallory and from Dr. Matherne; (3) the trial court erred in allowing Dr. Matherne to testify that the information provided to him was factual; and (4) the evidence was insufficient to support the verdict, and the weight of the evidence did not support the verdict. We review the issues presented and find no merit; thus, we affirm.
FACTS
¶ 3. In August or September 1998, R.R. moved into the Pass Christian apartment of her boyfriend, appellant William Byars. Approximately one month later, R.R.'s four children also moved into the two-bedroom apartment where they remained for approximately two more months. In November 1998, R.R. and her eleven-year-old daughter, A.R.,1 had a fight, and A.R. told her mom she disapproved of her mom's relationship with Byars. After this incident, R.R. told the children they were moving back to live with their grandmother where they had lived prior to moving to Byars's apartment. A.R. thereafter complained to her mom that Byars had sexually molested her on three different occasions, then repeated the allegations to her grandmother who notified authorities. Byars denied any of the alleged acts ever took place.
DISCUSSION OF THE ISSUES
I. DID THE TRIAL COURT ERR IN ALLOWING TESTIMONY PURSUANT TO THE TENDER YEARS EXCEPTION?
¶ 4. Byars filed a motion in limine at the start of the trial requesting that the court not permit the social worker nor the officers to testify since their knowledge of the alleged events was hearsay based on what A.R. had told them happened. At the pre-trial hearing on the motion, the district attorney explained extensively what would be the substance of the officers' and the social worker's testimony. Thereafter, the judge overruled the motion at that time, but added the caveat that upon A.R.'s testimony and the testimony of the officers and social worker, as inconsistencies arose or if sufficient questions of reliability arose Byars could renew his motion, and the testimony would be stricken and excluded.
¶ 5. Once the trial began, A.R. testified, then her mother, then the first officer took the stand. Before the officer was allowed to explain anything in detail, Byars again renewed his motion. At that point and before any "questionable" testimony was elicited from those persons who were the subject of the motion, the judge removed the jury and conducted a hearing. He orally made detailed findings concerning the victim's age, the approximate date of the assault, observances concerning the circumstances surrounding the assault, plus found the victim to be reliable, although not completely without motive to lie, which the judge noted concerned weight and not admissibility. Byars now claims that the trial court erred in overruling the motion without initially making findings of fact prior to the trial and in waiting until after the witnesses had testified to address questions concerning reliability of the testimony.
¶ 6. "Under this Court's standard of review, the admissibility of evidence rests within the trial court's discretion." Baine v. State, 606 So.2d 1076, 1078 (Miss. 1992). More specifically, rule 803(25) of the Mississippi Rules of Evidence applies and states the following:
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). Evidence is not admitted and then only afterwards tested for its veracity. Here, rather than have the witnesses offer proffers of what they would testify to before they actually were allowed to take the stand, the judge waited until the questionable witness was on the stand and then conducted the hearing to determine the reliability of such testimony, finding it was reliable. While we find that, pursuant to M.R.E. 803(25)(a) listed above, the judge should have made those findings at the initial pre-trial presentation of this motion which he subsequently made during the trial outside the jury's presence, we nonetheless find that no error or resulting prejudice has occurred in what may be considered his procedural mishap. In reading the record, we glean that the judge was well-aware that he was to conduct a hearing; he just simply expressed pre-trial that he thought he could reserve further judgment until such time as was necessary, which he found to be at the point Byars raised the motion again. The motion was renewed before any questionable evidence was presented to the jury; consequently, we find the judge's actions to be harmless error, if error at all.
¶ 7. Byars also claims that A.R.'s statements were inadmissible since the judge expressed his opinion that inconsistencies existed in the testimony and since A.R. had a possible motive to lie. However, reading the remainder of the judge's findings, we find the judge stated he was aware of his need to comply with M.R.E. 803(25) and to conduct a hearing, and to that end the judge noted the following concerning reliability of A.R.'s testimony: A.R. was eleven at the time of the assault and at the time she told Officer Pustay of the events; A.R. told her mother and grandmother of the assault within three or four days of the incidents; and A.R. was able to convey with specificity details of the assaults including where, when, who was present, and descriptive details of the actual acts and her attempts to elude Byars' advances. Having found no reversible error in the judge's manner of conducting the hearing, we apply the standard set forth in Rule 803(25) and find no abuse of discretion in his decision to permit A.R.'s testimony.
¶ 8. Byars also points out that the judge stated that portions of A.R.'s testimony had been corroborated by her mother. Byars claims this violated the rule from Eakes v. State, 665 So.2d 852, 856 (Miss.1995), which states, "The reliability of the statement must be judged independently of any corroborating evidence; otherwise, the confrontation clause may be violated." The supreme court addressed the issue of reliability:
While no mechanical test is available, factors which should be considered in judging reliability are: spontaneity and consistent repetition; mental state of declarant; use of terminology unexpected of a child of similar age; and lack of motive to fabricate. This list of factors is not exclusive. When the correct legal standard is employed by the trial court, this Court will reverse a finding of admissibility only when there has been an abuse of discretion.
Id. Byars argues that A.R.'s act of telling her mother what happened was a corroboration; however, we find A.R. was merely repeating the account to her mother, which was permissible. Thus, this point is without merit, as are the other arguments raised with this issue.
II. DID THE TRIAL COURT ERR IN ALLOWING THE TESTIMONIES OF KARI MALLORY AND DR. MATHERNE?
¶ 9. Byars argues the State improperly allowed social worker Kari Mallory to testify as to whether or not...
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