Trest v. State
| Decision Date | 23 May 2023 |
| Docket Number | 2021-KA-00968-COA |
| Parties | HARRY LYNN TREST A/K/A HARRY TREST APPELLANT v. STATE OF MISSISSIPPI APPELLEE |
| Court | Mississippi Court of Appeals |
DATE OF JUDGMENT: 06/16/2021
HANCOCK COUNTY CIRCUIT COURT HON. CHRISTOPHER LOUIS SCHMIDT TRIAL JUDGE
ATTORNEY FOR APPELLANT:
SAMUEL CHRISTOPHER JOHNSON
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
WILLIAM CROSBY PARKER
BEFORE WILSON, P.J., GREENLEE AND McDONALD, JJ.
¶1. Harry Trest (Trest) was convicted of molesting two of his granddaughters. On appeal, Trest claims that the circuit court erred by (1) admitting evidence of prior bad acts under Mississippi Rule of Evidence 404(b) and failing to grant a mistrial, (2) admitting evidence under the tender-years exception to hearsay under Rule 803(25), and (3) ruling that the evidence was sufficient to convict him of sexual battery. Finding that the circuit court did not abuse its discretion and that the evidence was sufficient for Trest's convictions for sexual battery, we affirm his convictions and sentences.
¶2. The alleged victims in this case are minors K.B. and C.B.[1] K.B. and C.B. lived with their mother R.J. in Leesville, South Carolina. K.B. and C.B. were eight and nine years old, respectively, at the time of the incident and eleven and twelve years old at the time of the trial. From 2016 until 2018, the minor children spent the majority of their summers and at least one week of the winter with their maternal grandmother Mary Trest (Mary) and her husband Harry Trest at their home in Waveland, Mississippi. In January 2019, K.B. and C.B. disclosed to their mother R.J. that Trest had molested them while they were in Mississippi.
¶3. R.J. took the children to a hospital in South Carolina and contacted the police. A physical exam was conducted at the hospital, and both girls showed no signs of physical abuse. That same day, Mary left Mississippi and joined R.J. and the children in South Carolina. Soon after, K.B. and C.B. traveled to Mississippi to undergo a forensic interview conducted by Kaitlyn Jewell.
¶4. During the interview, K.B. stated that Trest would touch the inside and outside of her vagina. He would move his hands and fingers up and down while saying "ooh and ahh." Trest would expose his penis and ask K.B. to touch it. She stated she refused. Trest also showed her pictures on his phone of other people's penises, including one with a tattoo. She alleged the abuse started after she saw him walking naked out of his shower one afternoon.
¶5. C.B. stated that her abuse began from as early as she could remember. She alleged Trest would touch the inside and outside of her vagina while moving his fingers up and down. He would expose himself and his penis would get erect. He would ask her, "[D]oes that feel good?" while touching her. He asked C.B. to touch his penis, but she said she would not. He also showed her pictures on his phone of other people's penises. She stated that the abuse happened nearly every day she visited Trest.
¶6. Both girls stated that they would ask Trest to stop, but he would not. The abuse always happened when one girl was alone with Trest while the other girl and Mary were in another part of the house. Although the girls did not use the correct language when describing "private parts," they were able to describe a penis accurately in details that children of their age are unlikely to know. Jewell provided a diagram to the minor children, which allowed them to indicate which parts of their bodies Trest touched and which parts of his body he showed them. Both girls indicated using the diagram that Trest was touching their vaginas and showed them his penis.
¶7. Trest was indicted in Hancock County for four counts of sexual battery under Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014) and four counts of touching a child for lustful purposes under Mississippi Code Annotated section 97-5-23(1) (Supp. 2015).[2] The case proceeded to trial, where the State put on ten witnesses. On appeal, Trest challenges the admission of the testimonies of M.K.B., Kaitlyn Jewell, R.J., and the two minor children.[3]
¶8. M.K.B. is a natural granddaughter of Trest. She testified about different instances in the past when Trest would sexually abuse her. She alleged that when she was between the ages of five and ten, Trest touched the inside and outside of her vagina. He would expose his penis and ask her to touch it, often forcing her to do so. He "moan[ed] in [her] ear" and would ask her "if it felt good." She testified that Trest once exposed himself to her while coming out of the shower.
¶9. Trest filed a motion in limine to bar M.K.B.'s testimony. The State offered her testimony under Mississippi Rule of Evidence 404(b) for the purpose of showing motive, absence of mistake or lack of accident, and plan or mode of operation. After a hearing on the issue, the court ruled that the testimony was admissible under Rules 404(b) and 403. During her proffer, M.K.B. mentioned that the abuse happened to both her and her brothers. The court admonished M.K.B. to limit her testimony to herself only. At trial, M.K.B. initially testified that "[Trest] sexually abused us when we were kids." The circuit court stopped the proceedings and admonished her out of the presence of the jury. M.K.B. mistakenly used "us" once more during her testimony, but it was quickly corrected by the State. Trest moved for a mistrial, but the court ruled that the reference was fleeting and not so prejudicial as to warrant that remedy.
¶10. Prior to M.K.B.'s testimony, the circuit court asked Trest if he would like to provide a limiting instruction to the jury. Trest answered yes and submitted a proposed instruction marked D-27. At his request, the judge read D-27 to the jury:
Ladies and gentlemen, I need to instruct you that the acts testified about concerning [M.K.B.] are alleged acts relating to the charges for which the defendant is not presently on trial and are to be considered only for the limited purpose of showing proof of motive and/or of intent or absence of mistake or accident. You cannot and must not simply infer that the defendant acted in conformity with his previous acts and that he is, therefore, guilty of the charges for which he is presently on trial.
¶11. The court admitted both Jewell's and R.J.'s testimony under the tender-years exception to hearsay. MRE 803(25). Jewell testified to the out-of-court statements that K.B. and C.B. gave during their forensic interview, while R.J. testified about their first disclosure of the abuse. The circuit court heard arguments and ruled that the children's out-of-court statements bore substantial indicia of reliability. Specifically, the court found that the children had no motive to lie; they had good character; they made similar allegations to at least two people; they made a spontaneous disclosure; their statements were not elicited by Jewell or R.J. in a suggestive manner; the timing of the statements suggested reliability; the video of the forensic interview corroborated their statements; Jewell and R.J. were credible witnesses; and the children's age and maturity indicated reliability.
¶12. K.B. and C.B. both testified at trial. Their testimony was similar to their previous out-of-court statements, except both girls testified that Trest's hands remained outside their bodies. K.B. testified:
C.B. testified:
This aspect of their testimony was refuted by both Jewell and R.J.'s testimony, as well as the forensic-interview video where the girls stated that Trest had penetrated them.
¶13. The jury convicted Trest on four counts of sexual battery and four counts of touching a child for lustful purposes. The circuit court sentenced Trest to serve a total of forty-five years day-for-day in custody without eligibility for parole. Trest moved for a judgment notwithstanding the verdict or, alternatively, for a new trial, which was denied. He then appealed.
¶14. Trest claims that the circuit court abused its discretion by (1) allowing M.K.B.'s testimony at trial and (2) failing to strike her testimony or, alternatively, failing to declare a mistrial when M.K.B. testified about her siblings against the court's order.
¶15. We review a trial court's evidentiary rulings using an abuse-of-discretion standard. Cook v. State, 161 So.3d 1057, 1065 (¶21) (Miss. 2015). "This Court will not reverse a trial judge's decision on the admissibility of testimony offered at trial unless prejudice amounting to reversible error resulted from such a decision." Id. (quoting Bishop v. State, 982 So.2d 371, 375 (¶15) (Miss. 2008)).
(1) The circuit court did not abuse its discretion by admitting M.K.B.'s testimony under Rules 404(b)(2) and 403.
¶16. Rule 404(b)(1) prohibits admitting "evidence of a crime wrong, or other act . . . to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." MRE 404(b)(1). However, "this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." MRE 404(b)(2). "Evidence of a sexual offense, other than the one charged, which involves a victim other than the victim of...
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