Smith v. State

• Decision Date: 30 March 2006
• Docket Number: No. 2003-KA-00550-SCT.,2003-KA-00550-SCT.
• Citation: 925 So.2d 825
• Parties: Kimble Peter SMITH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

925 So.2d 825

Kimble Peter SMITH v. STATE of Mississippi.

No. 2003-KA-00550-SCT.

Supreme Court of Mississippi.

March 30, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas P. Welch, Jr., attorney for appellant.

Office of the Attorney General by Jose Benjamin Simo, attorneys for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

¶ 1. On May 23, 2002, Defendant-Appellant Kimble Peter Smith was indicted in Pike County, Mississippi on Count I of sexual battery under Miss.Code Ann. Section 97-3-95(1)(c) and Count II of touching and handling a child for lustful purposes under Miss.Code Ann. Section 97-5-23. On February 26, 2003, Smith was convicted on all charges by a jury in the Pike County Circuit Court and sentenced to thirty (30) years imprisonment on Count I and twenty (20) years imprisonment on Count II, to run consecutively. Thereafter, Smith filed a motion for a new trial or in the alternative a judgment non obstante veredicto, which was denied. Smith then filed a notice of appeal with this Court on March 11, 2003. On appeal, Smith argues the verdict was against the weight and sufficiency of the evidence; that the trial court erroneously failed to declare a mistrial; and that the trial court erred in its admission of expert witnesses.

FACTS

¶ 2. On December 21, 2001, Kimble Peter Smith, along with his two young daughters, arrived at the home of Joan and Karen Doe.¹ Joan was fifteen (15) years old at the time, while Karen was eleven (11) years old.² Joan and Karen's father was barbecuing, and Smith came and introduced himself as a friend of Joan and Karen's uncle. After Smith stated he was going to Wal-Mart, Joan and Karen's father gave them money and allowed them to accompany Smith and his two young daughters. Karen testified that, upon entering the car, Smith told her and Joan that "whatever goes on in this car stays in this car."

¶ 3. On the way to Wal-Mart, Smith stopped at a gas station, let Joan and Karen out, and drove away. Approximately thirty minutes later he returned without his young daughters, picked Joan and Karen up, and proceeded to Wal-Mart. Karen exited the vehicle upon arriving at the Wal-Mart parking lot, but Smith then quickly locked the doors and drove off with Joan.

¶ 4. At trial, Joan testified that Smith took her to a secluded gravel road and ordered her out of the vehicle. Joan testified that Smith then kissed her neck, fondled her breasts, and inserted his finger into her vagina. Smith then ordered Joan to get back into the vehicle and take off her clothes, but she refused. Following her refusal, Smith forced Joan to touch his penis, but after she began crying he stopped and drove her back to Wal-Mart.

¶ 5. At Wal-Mart, Smith gave Joan twenty (20) dollars, with which Joan bought a CD player, and shared the remainder with Karen who purchased a jogging suit. After leaving Wal-Mart, Smith stopped at a nearby mall so Joan could buy batteries for the CD player, leaving Karen alone in the vehicle with Smith. Karen testified that Smith then crawled into the back seat with her. He began describing a game of "hide-and-seek" where "you had to listen to [one person] and do whatever he say [to] do." Thereafter, Smith began touching her on the thigh, and Karen slapped his hand. Smith then warned Karen that if she slapped him again, "it was going to be worser." At that moment, however, Joan was walking toward the vehicle, and Smith returned to the driver seat. He then asked the girls if they would like to go play "hide-and-seek," but when they refused he took them home.

¶ 6. At trial, Joan, Karen, and their aunt all testified that following the date of the incident, Smith repeatedly drove through their neighborhood. Beth Doe, the aunt of Joan and Karen,³ testified that Smith drove through the neighborhood ten or fifteen times over the course of the day "almost every other day." On the way to school on January 2, 2002, Karen noticed Smith's vehicle following the vehicle occupied by Joan and Karen. Upon arrival at the school, Karen told her teacher, who then directed her to principal Alonzo Dillon. Karen told Dillon about being followed by Smith and the events of the day when she and Joan went with Smith to Wal-Mart. Dillon then notified the police. Subsequently, Officer Randy Perryman interviewed Joan and Karen and began an investigation.

¶ 7. At trial, Principal Dillon testified that, "I don't know if they told me everything, but what they told me, I felt they were telling me the truth." Officer Perryman testified that during the entire investigation he never came across any information that conflicted with what the girls were telling him. Joan and Karen were also interviewed respectively by Keith Stovall and Bente' Hess of the Children's Advocacy Center, who were offered as expert witnesses in the field of forensic interviews in child sexual abuse cases. Stovall opined Joan's statements were "very consistent and credible with a victim of sexual abuse." Hess opined that Karen "was highly credible ... she didn't appear to be fabricating, and she was very consistent with her statement each time."

¶ 8. On February 26, 2003, Smith was convicted on all charges by a jury in the Pike County Circuit Court and sentenced to thirty (30) years on Count I of sexual battery under Miss.Code Ann. Section 97-3-95(1)(c) and twenty (20) years on Count II of touching and handling a child for lustful purposes under Miss.Code Ann. Section 97-5-23, to run consecutively. Thereafter, Smith filed a motion for a new trial or in the alternative a judgment non obstante veredicto, which was denied. Smith appeals.

ANALYSIS

¶ 9. Smith raises three issues on appeal. First, he argues the jury verdict was against the overwhelming weight and sufficiency of the evidence. Second, he asserts the trial court's failure to declare a mistrial for the improper viewing of a videotape was reversible error. Third, he contends the trial court's determination that Keith Stovall and Bente' Hess were expert witnesses in the field of forensic interviewing amounted to reversible error.

I. Whether the jury verdict was against the overwhelming weight and sufficiency of the evidence

1. Sufficiency of the Evidence

¶ 10. The standard of review for a post-trial motion, like a motion for judgment non obstante veredicto, is abuse of discretion. See Brown v. State, 907 So.2d 336, 339 (Miss.2005) (citing Howell v. State, 860 So.2d 704, 764 (Miss.2003)). The key inquiry is whether the evidence shows "`beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.'" Brown, 907 So.2d at 339 (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). In other words, the question to be answered, viewed in the light most favorable to the prosecution, is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Brown, 907 So.2d at 339 (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original)). Assuming arguendo that this Court may believe the evidence at trial failed to establish guilt beyond a reasonable doubt, this is, nevertheless an insufficient basis for reversal. See Brown, 907 So.2d at 339. As long as "`reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,' [then] the evidence will be deemed to have been sufficient." Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 11. Smith argues that only Joan and Karen could prove that he perpetrated any wrongs, and their testimony was inconsistent. Moreover, he asserts there was no physical evidence supporting their testimony.

¶ 12. In response, the State maintains that both Joan and Karen recounted the events in detail on numerous occasions, including at trial, and those details were uniformly consistent. Principal Dillon and Officer Perryman found the girls statements to be consistent and credible. The trial court found the information which Dillon and Perryman received from the girls, and upon which they based their testimony, was admissible under Miss. R. Ev. 803(25), the "tender years" exception to the hearsay rule. Miss. R. Ev. 803(25) states:

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....

Miss. R. Ev. 803(25). The trial court stated, "[t]here were no suggestive techniques used. There is nothing about the age or knowledge or the experience to indicate that they fabricated this ... there is sufficient indicia of reliability to qualify them for admission, the statements made to Officer Perryman and the statements made to [P]rincipal Dillon." The requirements of Miss. R. Ev. 803(25)(b)(1) were satisfied, as both girls testified at the trial.

¶ 13. Moreover, because they testified at trial, the statements of the girls are arguably not hearsay under Miss. R. Ev. 801(d)(1)(B) which provides:

A statement is not hearsay if: ... (1)... The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive....

Miss. R. Ev. 801(d)(1)(B).

¶ 14. Expert witnesses from the Southwest Mississippi Children's Advocacy Center also found the girls statements to be consistent and credible. Keith...