Case v. State
| Decision Date | 06 October 2015 |
| Docket Number | No. 2013–KA–01587–COA.,2013–KA–01587–COA. |
| Citation | 187 So.3d 177 |
| Parties | Jason R. CASE a/k/a Jason Case a/k/a Jason Robert Case, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Office of State Public Defender by George Holmes, attorney for appellant.
Office of the Attorney General by Alicia Marie Ainsworth, attorney for appellee.
Before IRVING, P.J., MAXWELL and FAIR, JJ.
FAIR
, J., for the Court:
¶ 1. Jason Case appeals his conviction of two counts of fondling a child. He claims that (1) the tender-years hearsay exception was improperly applied; (2) that he was irreparably prejudiced by irrelevant character evidence; (3) his trial counsel was constitutionally ineffective; and (4) the trial court erred in allowing the State to refer to him as a "pedophile" during closing arguments. Finding no error, we affirm.
¶ 2. In September 2010, the Lincoln County Department of Human Services (DHS) certified Case as a foster parent. Case was the principal at Hazlehurst Middle School and lived alone.
¶ 3. In January 2011, Keyla O'Quinn, a DHS family protection specialist, received a report that a mother was using drugs at home in front of her two children-Brian,1 age thirteen, and Daniel, age nine.2 DHS immediately took the children into custody, and on that same day placed Brian and Daniel in foster care with Case.
¶ 4. Brian and Daniel remained in Case's custody from January 14, 2011, until June 16, 2011. During that time, the children had weekly visitation with DHS. At trial, O'Quinn testified that she additionally scheduled supervised visitation (family team meetings) with the children's parents and other family members. At one of the team meetings, O'Quinn was told of some inappropriate behavior occurring in Case's home. Both children said Case let them play with gasoline and fire, and Brian said he almost got burned. O'Quinn also learned that Case let the children sit in his lap and that he posted pictures of the children on Facebook. Case was not present for the team meetings. O'Quinn later informed Case that this type of behavior was unacceptable and that DHS policy prohibits posting pictures of children on the internet. Case never removed the pictures. O'Quinn also testified that she felt Case had a "really unusual and strange" relationship with Daniel. For example, Daniel "was always sitting up under ... Case's armpits...."
¶ 5. In June 2011, Brian and Daniel were placed with one of Daniel's relatives. O'Quinn testified that the children were happy to make the transition. Case, on the other hand, was upset about the new placement. He agreed to meet O'Quinn in the Cracker Barrel parking lot so that she could take the children to their new home.
¶ 6. Most of O'Quinn's remaining testimony was admitted under the tender-years hearsay exception.3 She stated that, while at Cracker Barrel, Brian said that he hoped she was not going to put any girls in Case's home. O'Quinn asked Brian to repeat himself, but he would not. She said that Brian made the statement while the children were moving their belongings out of Case's vehicle. O'Quinn did not follow up on his statement.
¶ 7. In January 2012, O'Quinn requested a "fact interview" with Brian after she received a separate report from another investigation. She explained that fact interviews are conducted when there are allegations of abuse. When Brian came into her office, she told him that she had concerns about other children that were placed in Case's home. O'Quinn then asked Brian if Case ever touched him in way that made him uncomfortable. At first, Brian made a funny expression and said he was ready to go. But after O'Quinn offered to end the interview, he chose to continue. Brian told O'Quinn that Case touched his penis twice. O'Quinn ended the interview and contacted the Children's Advocacy Center (CAC) for a forensic interview. Brian's statement during his interview at the CAC was consistent with the statement he gave to O'Quinn.
¶ 8. Brian testified that he did not like living with Case. He said that Case would give him and Daniel melatonin and Benadryl
at night to put them to sleep. After giving them the medications, Case would rock Daniel to sleep. Brian also said that Case would make him sleep in his underwear, even though he preferred to sleep in shorts and a shirt.
¶ 9. Brian also testified that Case touched him inappropriately on two separate occasions. The first incident occurred one night while he and Case were watching a movie. Brian had fallen asleep on the love seat, and he woke up when he felt Case's hands in his pants. Brian stated that Case was on the love seat with him, lying behind him, and facing the same way as him. Case was "rubbing" and "jerking" Brian's penis. Brian acted like he was asleep so that Case would leave him alone. The second time, Brian was in his bed. Case came out of Daniel's bedroom and got in bed with Brian, waiting for him to fall asleep. Brian woke up when Case put his hand in his boxers. Brian testified that Case was moving and "jerking" his penis up and down. Brian slapped Case's hand away and waited for him to leave. Brian also testified that after the second incident, he started locking his bedroom door and wrapping his blanket tightly around him to keep Case from touching him.
¶ 10. Brian testified that he remembered what he told O'Quinn at Cracker Barrel, and also testified that he told O'Quinn about the two fondling incidents during the January 2012 interview. Brian said that he waited to tell her about the incidents because he was scared. Case did not testify.
¶ 11. Case argues that the trial court erred in applying the tender-years exception to O'Quinn's hearsay testimony. This Court employs "an abuse-of-discretion standard when reviewing claims that the trial judge erred by admitting hearsay." White v. State, 48 So.3d 454, 456 (¶ 9) (Miss.2010)
(internal citations omitted).
¶ 12. Mississippi Rule of Evidence 803(25)
, also known as the tender-years exception, 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.
¶ 13. On appeal, Case challenges the trial court's finding that Brian was of tender years when he made the statement and its finding that his statement had substantial indicia of reliability.
¶ 14. The Mississippi Supreme Court has held that "there is a rebuttable presumption that a child under the age of twelve is of tender years." Veasley v. State, 735 So.2d 432, 436 (¶ 16) (Miss.1999)
. The court elaborated, stating:
Where an alleged sexual abuse victim is twelve or older, there is no such presumption and the trial court must make a case-by-case determination as to whether the victim is of tender years. This determination should be made on the record and based on a factual finding as to the victim's mental and emotional age. If the court finds that the declarant is of tender years, then it must still rule on the Rule 803(25)(a) and (b)
factors before admitting the testimony.
Veasley, 735 So.2d at 437 (¶ 16)
.
¶ 15. Here, a tender-years hearing was held outside the presence of the jury. Brian was twelve or older when he reported Case's abuse to O'Quinn, so the trial judge had to first make an on-the-record determination, based on factual findings, that Brian's mental and emotional age was of tender years.
¶ 16. During the tender-years hearing, the judge heard O'Quinn's testimony regarding the statements Brian made at Cracker Barrel and in the January 2012 interview. The judge noted that Brian was thirteen at the time he made those statements to O'Quinn. Ultimately, the judge held that, based on O'Quinn's testimony, Brian was a child of tender years when he made those statements. When defense counsel requested a more detailed finding, the judge discussed the fact that Brian was taken from his mother's home at age thirteen and that he had since lived in at least four different foster homes. The judge elaborated, stating that "[Brian] certainly would not be anymore advanced than an ordinary thirteen-year-old would be and that, in fact, a child who had been subjected to that environment ... would probably be behind other children mentally and emotionally who had grown up in a stable two-parent family home...." We find the judge's ruling is supported by a sufficient on-the-record determination.
¶ 17. Next, to determine whether Brian's statements have substantial indicia of reliability, the trial judge must make an on-the-record finding, considering the twelve factors provided in Rule 803(25)
's official comment.4 However, each factor need not be discussed separately by the trial judge, so long as the record supports a "finding that the victim's statements bore indicia of reliability." Elkins v. State, 918 So.2d 828, 833 (¶ 18) (Miss.Ct.App.2005)
(citation omitted).
¶ 18. After finding Brian was a child of tender years, the judge continued his analysis and considered the twelve factors in an effort to determine whether Brian's statements bore substantial indicia of reliability. The judge made the following findings on the record: (1) Brian's statement to O'Quinn at Cracker Barrel that she should not place any girls with Case was "textbook spontaneous"; (2) Brian's "funny expression" at the interview in response to O'Quinn asking whether Case had ever inappropriately touched him was evidence of the spontaneity of his subsequent statement, despite the fact that the statement was given in response to a question; (3) there is no blood...
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