Derouen v. State

Decision Date20 November 2008
Docket NumberNo. 2007-KA-01005-SCT.,2007-KA-01005-SCT.
Citation994 So.2d 748
PartiesShannon Troy DEROUEN a/k/a Troy Derouen v. STATE of Mississippi.
CourtMississippi Supreme Court

Brenda Jackson Patterson, Glenn S. Swartzfager, Jackson, attorneys for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

EN BANC.

GRAVES, Justice, for the Court.

PART ONE

¶ 1. Shannon Troy Derouen was convicted in the Circuit Court of Jackson County of two counts of fondling. Derouen was sentenced to two, fifteen-year sentences to be served concurrently in the custody of the Mississippi Department of Corrections, with eight years to serve and the remainder on post-release supervision. Subsequently, Derouen filed this appeal. Because we find that the issues raised by Derouen are without merit, we affirm his conviction.

FACTS AND PROCEDURAL HISTORY

¶ 2. J.D., then eight years old, often visited in the home of her step-uncle, Shannon Troy Derouen, and his family. During one of these visits, J.D. spent the night and was lying on the couch in the living room watching television after everyone had gone to bed. Derouen went into the living room, got on the couch with J.D., then placed his hand on and rubbed J.D.'s vaginal area.

¶ 3. Several months later, J.D. was again spending the night at Derouen's house on the couch in the living room. Derouen again went into the living room and got under the covers on the couch with J.D. Derouen took J.D.'s hand and placed it on his penis and rubbed it. Derouen's nephew, Bronson Derouen, walked in and witnessed Derouen under the covers on the couch with J.D. J.D. then left the couch and went to the bathroom where Bronson heard her crying. When asked what was wrong, J.D. responded that she had a stomach ache.

¶ 4. Some months later during a presentation on inappropriate touching, J.D. told her fourth-grade teacher, Ann Ladnier, what had happened as set out above. Ladnier referred J.D. to the school counselor, who contacted the Mississippi Department of Human Services (MDHS). Alton Hebron, a social worker with MDHS, went to the school and interviewed J.D. Subsequently, Sarah Bishop Carothers, a forensic interviewer with South Mississippi Child Advocacy Center, interviewed J.D. J.D. related the same version of the events to her teacher, the school counselor, Hebron, and Carothers. Thereafter, Derouen was indicted on two counts of touching a child for lustful purposes by a person in a position of trust. He was convicted and sentenced to serve two concurrent fifteen-year sentences in the custody of the Mississippi Department of Corrections, with eight years to serve and the remainder on post-release supervision. Thereafter, Derouen filed this appeal, asserting that the trial court should not have admitted hearsay testimony under the tender-years doctrine and that the verdict was against the overwhelming weight and sufficiency of the evidence. Further, the State filed a cross-appeal asking this Court to overrule Mitchell v. State, 539 So.2d 1366 (Miss. 1989).

ANALYSIS
I. The trial court should not have admitted the hearsay testimony of the victim by the social worker and the forensic interviewer under the tender-years exception.

¶ 5. Derouen asserts that the testimony of Hebron and Carothers should not have been admitted prior to a factual determination that (1) the alleged victim was a child of tender years and (2) that the hearsay statements of the alleged victim provided substantial indicia of reliability. Moreover, Derouen asserts that the trial court failed to question J.D., the social worker, and the forensic interviewer and afterward make (1) a finding on the record that the child was of tender years and (2) a finding of substantial indicia of reliability of the testimony of the social worker and the forensic interviewer. The tender-years exception is governed by Rule 803(25) of the Mississippi Rules of Evidence (M.R.E.), which reads:

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 present 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).

¶ 6. This Court has held:

Today we hold that there is a rebuttable presumption that a child under the age of twelve is of tender years.... 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 v. State, 735 So.2d 432, 436-37 (Miss.1999).

¶ 7. The victim here, J.D., was under the age of twelve. Therefore, a presumption of tender years existed, and the trial court did not have to make such a determination. Moreover, while Derouen did raise an objection to the application of the tender-years exception to the testimony of the teacher Ann Ladnier, Derouen failed to raise any such objection as to either Hebron or Carothers. This Court has consistently held that the failure to make a contemporaneous objection constitutes waiver of an issue on appeal. See Walker v. State, 671 So.2d 581, 587 (Miss.1995). Therefore, this issue is procedurally barred. Further, the trial court did conduct a hearing outside the presence of the jury and made a finding of substantial indicia of reliability as to Ladnier. J.D.'s statements to Hebron and Carothers were consistent with her statements to Ladnier. For these reasons, we find that this issue is without merit.

II. The jury verdict was against the overwhelming weight and sufficiency of the evidence.

¶ 8. This Court has held that the standard of review for the denial of a motion for a judgment notwithstanding the verdict is determined by the sufficiency of the evidence. Withers v. State, 907 So.2d 342, 350-51 (Miss.2005). "This Court must review the trial court's finding regarding sufficiency of the evidence at the time the motion for JNOV was overruled." Id. (quoting Eakes v. State, 665 So.2d 852, 872 (Miss.1995)). The evidence is viewed in the light most favorable to the State and all credible evidence supporting the conviction is taken as true. Id. at 351. "Only where the evidence, as to at least one of the elements of the crime charged, is such that a reasonable and fair minded jury could only find the accused not guilty, will this Court reverse." Id.

¶ 9. Derouen asserts that it was merely J.D.'s word against his and that there was no physical or eyewitness evidence of fondling. This Court has found that "the testimony of a single uncorroborated witness is sufficient to sustain a conviction ... even though there may be more than one person testifying to the contrary...." Williams v. State, 512 So.2d 666, 670 (Miss.1987) (citations omitted). Further, this Court has held that: "[T]he unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence...." Torrey v. State, 891 So.2d 188, 192 (Miss. 2004) (quoting Collier v. State, 711 So.2d 458, 462 (Miss.1998)).

¶ 10. J.D.'s testimony was corroborated by her prior statements to Ladnier, Hebron, and Carothers. See Smith v. State, 925 So.2d 825, 831-32 (Miss.2006). Bronson Derouen witnessed Derouen under the covers on the couch with J.D. and then witnessed J.D. in the bathroom crying immediately thereafter. Moreover, there is typically no physical evidence of fondling. We find that the evidence is not such that a reasonable jury could only find Derouen not guilty. Therefore, this issue is without merit.

¶ 11. A motion for a new trial challenges the weight of the evidence and is reviewed by an abuse-of-discretion standard. Smith, 925 So.2d at 832. "In reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, this Court will disturb a verdict only `when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.'" Id. (quoting Bush v. State, 895 So.2d 836, 844 (Miss.2005)).

¶ 12. In this case, the testimony of J.D., Bronson Derouen, Ladnier, Carothers, Hebron, and the other witnesses provided a basis for the jury's determination of guilt. Accordingly, the verdict was not contrary to the overwhelming weight of the evidence. Therefore, this argument is without merit.

CONCLUSION

¶ 13. For the reasons stated herein, we affirm Derouen's judgment of conviction and sentence.

PART TWO

THE STATE'S CROSS-APPEAL

CARLSON, Justice, for the Court.

¶ 14. On cross-appeal, the State requests that we overrule Mitchell v. State, 539 So.2d 1366 (Miss.1989). The trial judge in today's case, in reliance upon Mitchell, refused to allow the State to call two witnesses during the trial to testify to prior incidents of Derouen's sexual abuse against other children. Believing that in Lambert v. State, 724 So.2d 392, 394 (Miss. 1998), this Court adequately informed the trial bench and bar "that there could be a case where similar evidence could be admissible," Justice Graves opines in his dissent that there was no need to overrule Mitchell. However, it is the opinion of a majority of this Court that now is the time (rather than later) to address this issue directly in order to give guidance to the trial bench and bar in criminal cases similar to the one before us today. This fact is...

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