McCRORY v. State of Miss., 2009-KA-00290-COA.
| Decision Date | 10 November 2010 |
| Docket Number | No. 2009-KA-00290-COA.,2009-KA-00290-COA. |
| Parties | Tommy Junior McCRORY, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
M. Judith Barnett, attorney for appellant.
Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
Before MYERS, P.J., ISHEE and ROBERTS, JJ.
MYERS, P.J., for the Court:
¶ 1. Tommy Junior McCrory was tried and convicted in the Circuit Court of Rankin County on two counts of sexual battery. The trial court sentenced McCrory on each count to thirty-five years in the custody of the Mississippi Department of Corrections, with thirty years to serve and five years' post-release supervision. The sentences were ordered to be served concurrently, and McCrory was required to register as a sex offender. Aggrieved by his convictions and sentences, McCrory appeals, arguing error in five issues. Because we find no reversible error, we affirm.
FACTS
¶ 2. On May 7, 2007, McCrory was indicted on two counts of sexual battery. The indictment alleged that between November 18, 2005, and January 8, 2007, McCrory had digitally penetrated his male stepchildren A.B. and B.B. 1 in violation of Mississippi Code Annotated section 97-3-95 (Rev.2006). At the time of the indictment, the children were eleven and eight years of age, respectively.
¶ 3. The allegations first came to light in November 2006, when A.B. visited with Robert Brown, his father. Brown testified that A.B.'s mother had asked him to speak with the child regarding problems at home and at school. Brown took A.B. to a Wendy's restaurant, where he expected to discuss A.B.'s continuing bowel incontinence. When Brown questioned A.B. about his “problems,” the child instead volunteered that he had been abused. A.B. stated that McCrory, who had recently married his mother, would “check his oil” by holding A.B. down and forcing a finger into his rectum. A.B. stated that McCrory had done this to him many times. A.B. also stated he had previously revealed the abuse to his mother and maternal grandmother, but his grandmother had dismissed it as a “joke,” and his mother had told him that she needed McCrory's income to pay the bills.
¶ 4. A.B. “begged” his father not to call the police, stating that he feared he would “get in trouble” and that his mother would be arrested. Nonetheless, Brown reported the alleged abuse to the Mississippi Department of Human Services that evening. After an emergency hearing in the Rankin County Youth Court, A.B. and B.B. were placed in Brown's custody. B.B., although born to Brown and his mother's marriage, was not Brown's natural child. Some time after being placed in Brown's custody, B.B. told Brown that he had also been molested by McCrory. B.B.'s description of the abuse was similar to that offered by A.B. Approximately five months before the trial, B.B. was placed in the custody of his maternal grandmother.
¶ 5. At trial, A.B., B.B., and Brown testified for the State. The State also called Detective James Thompson of the Pearl Police Department, who investigated the allegations and had interviewed McCrory. Brian Ervin, a forensic interviewer with the Children's Advocacy Center (CAC) in Brandon, Mississippi, and Katherine Kolar, a sexual assault nurse, also testified for the State.
¶ 6. The defense called several witness who testified that “checking the oil” referred to a joke and had no sexual connotation as McCrory used it. The children's mother and grandmother denied any prior knowledge of the allegations, and they also averred that McCrory had had no opportunity to abuse the children because the children lived primarily with their grandmother, rather than with McCrory and their mother.
¶ 7. After a three-day trial, the jury returned guilty verdicts on both counts.
DISCUSSION
[1] ¶ 8. In his first issue, McCrory argues that the State failed to prove venue and, therefore, jurisdiction over the second count, pertaining to the sexual battery of B.B.
¶ 9. Mississippi Code Annotated section 99-11-3(1) (Rev.2007) states in pertinent part:
The local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed. But, if on the trial the evidence makes it doubtful in which of several counties, including that in which the indictment or affidavit alleges the offense was committed, such doubt shall not avail to procure the acquittal of the defendant.
We have held:
“In criminal cases, venue is jurisdictional, must be proved, and may be raised for the first time on appeal.” Hensley v. State, 912 So.2d 1083, 1086 (¶ 12) (Miss.Ct.App.2005). The State bears the burden of proving venue beyond a reasonable doubt. Hill v. State, 797 So.2d 914, 916 (¶ 10) (Miss.2001). Venue may be proven by direct and circumstantial evidence. Hensley, 912 So.2d at 1086 (¶ 12). Where there is sufficient evidence to lead a reasonable trier of fact to conclude that part or all of the crime occurred in the county where the case is being tried, then evidence of venue is sufficient. Hill, 797 So.2d at 916 (¶ 12).
McBride v. State, 934 So.2d 1033, 1035 (¶ 10) (Miss.Ct.App.2006).
¶ 10. McCrory argues that B.B., who was nine years of age at the time of the trial, was never asked on direct examination where the assaults took place. 2 On cross-examination, the defense twice asked B.B. where the abuse had occurred, but B.B. stated that he could not remember. The State concedes that B.B. never explicitly stated that the acts occurred in Rankin County, but it argues that this fact was established through other evidence. We agree.
¶ 11. B.B. testified that during the time McCrory abused him, he lived with his grandmother or with his mother and McCrory. Testimony from various witnesses at trial unanimously indicated that the grandmother's home was located in Richland, Mississippi, and that during the relevant time period B.B.'s mother and McCrory lived first in an apartment and then in a house, both located in Pearl, Mississippi. Witnesses expressly testified during the trial that both Richland and Pearl are located in Rankin County.
¶ 12. B.B. stated that when the abuse began, he was living with his grandmother, but he would regularly visit with his mother and McCrory. The abuse during this time had occurred “most of the days,” and B.B.'s older half-brother, A.B., was present and witnessed the abuse on some occasions. In his testimony, A.B. was more specific, stating that he was abused “on a daily basis” “at the house or any place where [McCrory] was and I was too.” A.B. also testified that “[m]ost of the time [the abuse occurred] where they were living, at the apartments on Malbury Street.” 3
¶ 13. Although we acknowledge that B.B. did not expressly state where the abuse occurred, we find the testimony described above sufficient to establish venue in Rankin County by circumstantial evidence. This issue is without merit.
¶ 14. In his second issue on appeal, McCrory argues that his conviction as to Count II must be reversed because B.B. failed to identify him in the courtroom on the day of trial, when asked to do so on direct examination.
[2] ¶ 15. At the outset, we find this issue procedurally barred because McCrory has failed to cite any relevant authority in support of this issue on appeal. Turner v. State, 721 So.2d 642, 648 (¶ 20) (Miss.1998).
[3] ¶ 16. Notwithstanding the procedural bar, this issue is plainly without merit. B.B. testified that he had been abused by “Tommy,” who had been married to B.B.'s mother and was the father of B.B.'s two-year-old half-brother. McCrory's given name is, of course, Tommy, and other witnesses identified McCrory as the man who had married B.B.'s mother and as the father of B.B.'s young half-brother. Furthermore, we note that B.B. was eight years of age at the time of the trial and testified that he had not seen “Tommy” for more than a year. Another witness for the State noted that McCrory had altered his appearance prior to the trial by changing his “hair style.” McCrory was sufficiently identified as the individual who had assaulted B.B. This issue is without merit.
¶ 17. In his third issue on appeal, McCrory argues that the trial court erred in allowing Brian Ervin, offered by the State as an expert in forensic interviewing, to testify regarding the “credibility and veracity” of A.B. and B.B. Ervin had conducted forensic interviews of the children approximately two months after the allegations of abuse came to light.
[4] ¶ 18. We note that McCrory offered no contemporaneous objection on these grounds to any of the testimony he now asserts was erroneously allowed at trial. This issue is therefore procedurally barred on appeal. Watts v. State, 733 So.2d 214, 233 (¶ 53) (Miss.1999).
¶ 19. Notwithstanding the procedural bar, we find this issue is without merit. In Hobgood v. State, 926 So.2d 847, 853-54 (¶¶ 18-23) (Miss.2006), the supreme court distinguished between expert testimony regarding the “credibility” of children alleging sexual abuse and opinions regarding the “veracity” of such allegations. The former, although “of dubious competency,” may be admissible; the latter cannot. Id. At the heart of this issue is whether the witness “cross[es] the line and say[s] that [the victim] was telling the truth.” Id. at 854 (¶ 23).
[5] ¶ 20. In the instant case, Ervin never testified as to the veracity of either of the victims' statements. In fact, although he was asked by the State on direct examination whether he found each victim “credible,” Ervin responded only by detailing certain observations that in his opinion “added credibility” to each boy's account. After reviewing Ervin's testimony in its entirety, we find no error in the admission of his comments regarding the victims' credibility. Id. We note also...
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