Rogers v. State

• Decision Date: 16 August 2012
• Docket Number: No. 2010–KA–01191–SCT.,2010–KA–01191–SCT.
• Citation: 95 So.3d 623
• Parties: Allen ROGERS, Jr. a/k/a Allen Rogers a/k/a Allen Lynn Rogers, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

95 So.3d 623

Allen ROGERS, Jr. a/k/a Allen Rogers a/k/a Allen Lynn Rogers, Jr.

v.STATE of Mississippi.

No. 2010–KA–01191–SCT.

Supreme Court of Mississippi.

Aug. 16, 2012.

Edmund J. Phillips, Jr., Newton, attorney for appellant.

Office of the Attorney General by Deirdre McCrory, Scott Stuart, attorneys for appellee.

Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.

KITCHENS, Justice, for the Court:

¶ 1. Allen Rogers, Jr., was convicted by a jury of two counts of child sex abuse and was sentenced to a total of thirty-three years' imprisonment. In Count One, Rogers was convicted of sexual battery against eight-year-old Benjamin Hicks. In Count Two, Rogers was convicted of fondling William Hicks, Benjamin's eleven-year-old brother.¹ Rogers has appealed, arguing that the trial court erred by overruling his hearsay objection to statements made by Benjamin to a forensic psychologist. He also argues that the State failed to prove that Count Two occurred in Scott County, as alleged in the indictment. Finding error on both counts, we reverse Rogers's convictions and sentences and remand the case for a new trial.

Facts

¶ 2. On August 15, 2009, Benjamin and William were eating dinner with their mother, Christy Pope, and their stepfather, Michael Pope, when, according to Christy, William “made a comment about Benjamin.” Christy did not testify about the details of the conversation, other than “it didn't sound good,” and that the comment was “sexual in nature.” Christy testified that, after she and Michael had questioned the boys further, they took them to the Scott County Sheriff's Department, where the family was interviewed by Sergeant Scott Lingle.

¶ 3. After interviewing the family, Lingle referred the case to Investigator Willie Anderson, who conducted his own interview with the family on Monday, August 17, 2009. On Wednesday, August 19, 2009, the investigating officers referred the familyto the Wesley House, a Child Advocacy Center (CAC) in Meridian, Mississippi, where the children were interviewed, separately, by psychologist Olga Kahle.²

¶ 4. Kahle testified at trial about the substance of the boys' interviews. During Benjamin's interview, Benjamin told Kahle that Rogers had both anal and oral sex with him at an apartment in Sebastopol, Mississippi.³ According to Kahle, Benjamin said that Rogers “put his mouth on Benjamin's penis,” and that Rogers “put his wiener inside Benjamin's butt.” Benjamin told Kahle that this abuse occurred in the bathroom.

¶ 5. Benjamin also told Kahle about an incident in Rogers's bedroom involving Rogers and a man named James. Before Kahle could relate the details of this incident, Rogers's trial attorney made an objection, and the prosecutor told Kahle that she could “dispense with” the remainder of Benjamin's interview. Through Christy's trial testimony, the jury had learned that James was Rogers's brother, and that James also was charged with some unspecified sex crime involving the boys.

¶ 6. During William's interview, William told Kahle that he had witnessed oral sex between Rogers and Benjamin through a hole in the apartment's bathroom door. William also told Kahle that he had witnessed this abuse once, and that it had happened two years before the interview. William did not tell Kahle that he, William, had been sexually abused.

¶ 7. On August 25, 2009, six days after Kahle's interview with the boys, Rogers gave two statements to Lingle and Anderson at the Scott County Sheriff's Department. The first statement was written by Rogers in very rudimentary handwriting and contained numerous spelling and grammatical errors. Anderson's reading of the statement at trial was transcribed as follows:

I, Allen Rogers, Jr., sexually abused Benjamin and William Hicks once. I was drinking. Had a lot too much to start playing with the boys and slipped their pants down and put my penis around their hole. I never went and got Benjamin to put my penis in his mouth. Not William.

A copy of the statement, as handwritten by Rogers, with the alleged victims' names redacted, is attached to this opinion as Appendix A. Because this first statement was “hard to understand,” Lingle typed a second statement for Rogers's signature about an hour after Rogers had completed and signed the first. This second statement contained significantly more detail, including an admission that Rogers had engaged in oral sex with Benjamin:

I have asked Sgt. Lingle to write this statement for me. I have not been forced, promised, coerced anything. I am giving this statement on my own free will.

We were living in the apartment above the Napa store in Sebastopol. The people living in the apartment at the time were, Me, Allen Rogers, Jr., Amanda Rogers, Adam Rogers, Christy Hicks, Michael Pope, Benjamin Hicks, and William Hicks. Michael was gone but everyone else was there. This happened in the room that Benjamin and William played in. It was at night and I had been drinking beer and was drunk. I was playing around with Benjamin. I was picking him up by his legs and his pants came down. I was playing around and put my penis toward his hole, it didn't go in. I put my penis in Benjamin's mouth. William was asleep in the same room but he woke up. Benjamin went and layed down with his mother and I started playing around with William. He was wearing underwear. I told him what I was doing and he said he wanted to try it. I put my penis near his hole but did not go in. I rubbed my penis on his crack. William said stop and I did. William went to his mother's room. I realized what I was doing. I sat in the room and cried. I went to sleep in that room and my wife woke me up later to go to bed. That night was the only time I ever done anything like this. After that I would not let myself be left alone with any kids.

Both statements were received in evidence through Anderson, over defense counsel's objection.⁴

¶ 8. On April 1, 2010, Rogers was indicted for two counts of child sex abuse. Count One charged Rogers with sexual battery against Benjamin, specifically, “causing [Benjamin] to engage in fellatio on [the defendant].” Miss.Code Ann. § 97–3–95(1)(d) (Rev.2006).⁵ Count Two charged Rogers with fondling William. Miss.Code Ann. § 97–5–23(1) (Rev.2006). The indictment alleged that both crimes occurred in July 2009, in Scott County, Mississippi.

¶ 9. Rogers was tried by jury on June 9, 2010. In addition to Rogers's two statements and Kahle's testimony, the State's main evidence included testimony from William, who was twelve years old at the time of trial. William testified that he had seen Rogers “sticking his private part in Benjamin's butt,” but he repeatedly denied witnessing any oral sex. According to William, the abuse occurred in the bathroom of an apartment in Sebastopol, Mississippi. William testified that he could see Rogers and Benjamin in the bathroom because the bathroom door was slightly ajar. William also said that the incident occurred during daylight hours, but he could not recall on what date.

¶ 10. When asked whether he had ever been abused by the defendant, William testified that Rogers “stuck his private part in my butt” while the two were in a chicken house. According to William, the chicken house was in Lena, a town William believed to be in Scott County. William could not recall when this abuse had occurred.When asked why he did not tell Kahle about his abuse during the CAC interview, William responded that he was “nervous,” because Kahle's interview “was the first time that I got asked questions like that.”

¶ 11. Rogers's wife and his mother testified in his defense. Both women testified that the boys were not living in the Sebastopol apartment during July 2009. This was consistent with Christy's testimony that they had lived in the apartment from November 2008 until February 2009. Rogers's mother and wife also testified that Rogers had received special education when he was in school and that he was semiliterate. According to his mother, Rogers was sexually abused when he was in preschool. She also testified that he was “easily open for suggestion,” and that “you tell him something or ask him something over and over, he will eventually just say whatever you want to hear so you will leave him alone.” Rogers elected not to testify in his defense.

¶ 12. The trial was completed in less than a day, and the jury found Rogers guilty on both counts: Count One for sexual battery of Benjamin and Count Two for fondling William. The trial judge sentenced Rogers to thirty years' imprisonment on Count One and three years' imprisonment on Count Two, with the sentences to run consecutively. Rogers appealed both convictions and challenges each on separate grounds.

Count One: Sexual Battery

¶ 13. Rogers argues that his conviction of Count One (sexual battery against Benjamin) must be reversed because the trial judge allowed Kahle, the psychologist, to testify about the substance of Benjamin's interview without first determining whether Benjamin's statements to Kahle were reliable. As an evidentiary matter, we review the trial judge's ruling for an abuse of discretion and will reverse if the admission of evidence resulted in prejudice to the accused. Price v. State, 898 So.2d 641, 653 (Miss.2005) (citing White v. State, 742 So.2d 1126, 1134 (Miss.1999)). Of course, “the trial court's discretion must be exercised within the scope of the Mississippi Rules of Evidence.” Id. (quoting White, 742 So.2d at 1134).

¶ 14. Rogers relies on Rule 803(25) of the Mississippi Rules of Evidence.⁶ Also known as the “tender years exception” to hearsay, Rule 803(25) 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)...