Holloway v. State

Decision Date28 September 2000
Docket NumberNo. 1999-KA-01162-SCT.,1999-KA-01162-SCT.
Citation809 So.2d 598
PartiesRickey O'Neal HOLLOWAY v. STATE of Mississippi.
CourtMississippi Supreme Court

John A. Ferrell, Booneville, Attorneys for Appellant.

Office of the Attorney General by Deirdre Mccrory, Attorney for Appellee.

BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.

SMITH, J., for the Court:

¶ 1. Rickey O'Neal Holloway was convicted in the Circuit Court of Prentiss County, Mississippi, on one count of fondling and one count of sexual battery of a child under 14 years of age. He was sentenced to concurrent terms of imprisonment of five years and fifteen years, with five years suspended, respectively. Aggrieved, Holloway appeals to this Court raising four issues all of which we find to be without merit. We, therefore, affirm the trial court.

STATEMENT OF FACTS

¶ 2. On January 11, 1998, John and Jane Doe1 took their three children, Mary, Sally, and Joe, to dinner at the home of their long-time friends Rickey and Diane Holloway. After dinner, John and Jane Doe returned home with their children because John Doe was not feeling well. Rickey and Diane Holloway offered to take care of the children in the event John Doe should need to go to the emergency room. John Doe became increasingly ill, and John and Jane Doe took the three children back to the Holloways' house on their way to the hospital.

¶ 3. The three children watched television in the Holloways' living room and fell asleep there—Joe in the recliner, and Sally and Mary together on the couch with their heads at opposite ends. Rickey and Diane Holloway slept on the floor of the living room at the end of the couch. John and Jane Doe returned for the children after leaving the emergency room, but Rickey Holloway recommended that because the children were already asleep, they be allowed to spend the night. Leaving the three children with the Holloways, John and Jane Doe returned home. Rickey Holloway again fell asleep on the floor with Diane Holloway.

¶ 4. Mary, who was 12 years-old at the time of this incident, testified that about five o'clock in the morning, she was awakened by Rickey Holloway (hereinafter "Holloway") touching her breasts. She stated that when she awoke, her pants and panties were pulled down around her knees. She testified that she told Holloway to stop, but that he refused and moved his hand to her vagina. Mary testified that Holloway inserted one of his fingers into her vagina. She stated that he moved his finger in and out of her vagina and that he then inserted two fingers in her vagina. Mary testified that she attempted to wake Sally, who was also asleep on the couch, by pinching her, but that Sally did not wake up. Mary testified that she was afraid to scream for help and that no one else in the room awoke during the incident. Mary stated that she told Holloway she needed to go to the bathroom and that she remained there for about ten minutes. She testified that when she returned to the living room, Holloway said that he was sorry and that he did not know what he had done to her because he had been on a lot of medication. Mary testified that Holloway asked whether she was going to tell her parents about the incident. Mary testified, "I told him yes. If he wasn't, I was." Holloway testified that he had a drinking problem and had been drinking over the weekend. Holloway also testified that he had taken pain medication for a headache during the night of the alleged incident.

¶ 5. Holloway took the children home about six o'clock in the morning. Mary testified that when they arrived at the Does' residence, Holloway asked again whether she was going to tell her parents about the incident. Mary answered "yes" and went into the house and directly to her bedroom. Holloway entered the house as well. Jane Doe testified about the next moments as follows:

Well, the children came through the door first and then Rickey came in. And he was just all nervous and upset. And he said, I've done something terrible. And we were just shocked. He said—[John] asked him what did he do. He said, I'm sorry, you're going to hate my guts. And then he proceeded to go over by the heater. And he got in front of the heater and he got down on his hands and knees crying and begging and holding his head and saying, please, forgive me. I've touched that baby in places that I shouldn't have. And [John] asked who, and he said [Mary].

Jane's account was corroborated by John's testimony.

¶ 6. Jane Doe took Mary to the Prentiss County Sheriff's Department to report the incident to authorities. From there, she took Mary to the emergency room at Booneville, but because Mary would not allow a male doctor to examine her, Jane Doe took Mary to see Dr. Linda Chidester at Dr. Chidester's clinic. Dr. Chidester interviewed and examined Mary. The account of the incident given to Dr. Chidester by Mary corroborates that given by Mary in court, save Mary's description of the color of the shorts Holloway was wearing at the time of the incident.2

¶ 7. Dr. Chidester was accepted by the trial court as an expert in the field of family practice and in matters having to do with the sexual abuse of children. Dr. Chidester testified that Mary had two vaginal abrasions—one small and one large. Dr. Chidester stated that these finds were consistent with Mary's account of what occurred. On cross-examination, Dr. Chidester stated that there are other types of trauma, unrelated to sexual abuse, that could have resulted in the same physical findings, but that such would be inconsistent with the history given to her by Mary. She testified that the scrapes obviously occurred within the past twenty-four hours.

¶ 8. After returning home from the Does' residence on the morning of January 12, 1998, Holloway left his house again because he and Diane had an argument about his drinking. Later that day, Holloway went to the Magnolia Regional Health Center in Corinth, Mississippi, to get treatment for his alcohol problem. The Health Center refused to admit Holloway while he was drinking, so he returned on January 13, 1998, and was admitted at that time.

¶ 9. On the morning of January 14, 1998, Holloway was arrested at the Health Center and transported to the Prentiss County Justice Center. Having waived his rights, Holloway gave a statement, which was recorded on audio tape, to Officers Clayton Eugene Gilley and Lewis Tynes. Holloway stated to Officer Gilley that he had been drinking all weekend prior to the Does' visit on Sunday evening. He stated that after the Does returned home from the emergency room, he took some pain medication. He stated that he remembered getting up during the night and sitting on the couch between Sally and Mary. He stated that when he got up in the morning he felt as though he "had touched her with [his] hands," so he asked Mary whether he had touched her. He stated that Mary replied that he had and that he then apologized to Mary. Holloway stated to Officer Gilley that he told John and Jane:

I've done something that I shouldn't and I said "[John]," I said "apologies is not enough." I said, "If I did y'all go and have papers took out on me that way I can get some help or they'll help me, or something." And I had [John's] guitar and stuff was still at the house and I said, "I will bring your guitar back to you." I said, "[John], I'm sorry." I said, "but it shouldn't have happened." Like I said, I had done took so much beer and so much medicine and if I did touch her I didn't mean to, but if I did I don't realize it.

¶ 10. At trial, Holloway testified that he was under the influence of medication at the time he made the statement and that he did not remember his statements. Holloway testified that he was administered three 100 mg doses of librium at the Magnolia Regional Health Center, the last being the morning of his arrest.

¶ 11. At trial, Holloway denied having fondled or penetrated Mary. He stated that though he awoke twice during the night, he never sat down on the couch. He testified that when he was getting dressed the next morning, Mary entered the bedroom and told him he touched her during the night. He testified that he denied touching Mary but told her that, if she thought he had touched her, she needed to talk to her mother. Holloway testified that he told Jane and John that Mary had said he had touched her and that he told Mary that he had not touched her.

¶ 12. On April 14, 1998, an indictment was returned against Holloway by the Grand Jury of Prentiss County, Mississippi, charging Holloway in Count One with fondling and in Count Two with sexual battery of a child under the age of fourteen years. Holloway's motion to suppress his statement to authorities was denied by Circuit Court Judge Thomas J. Gardner III subsequent to a pre-trial hearing. A trial was held on June 28 and 29, 1999, and the jury returned verdicts of guilty on both charges. On July 1, 1999, Holloway was sentenced on the fondling charge to serve a term of five years, to run concurrently with the sentence on the charge of sexual battery, which was fifteen years with five years suspended. On July 2, 1999, Holloway timely filed a motion for judgment of acquittal notwithstanding the verdict, or in the alternative, for a new trial. The trial court denied the motion on July 2, 1999. Holloway timely filed his notice of appeal on July 8, 1999. Aggrieved by the judgment of the trial court, Holloway raises the following issues:

I. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE STATEMENT GIVEN BY HOLLOWAY.
II. THE VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-14.
IV. THE TRIAL COURT ERRED IN ALLOWING THE AUDIO TAPE RECORDING OF HOLLOWAY'S STATEMENT AND TRANSCRIPT TO BE TAKEN INTO THE JURY ROOM DURING DELIBERATIONS.

DISCUSSION

I. THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE STATEMENT GIVEN BY HOLLOWAY.

¶ 13. The standard of reviewing the...

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