Sharp v. State


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Docket Number: 2002-KA-00310-COA

Court of Appeals: Opinion Link
Opinion Date: 01-06-2004
Opinion Author: McMillin, C.J.
Holding: Affirmed

Additional Case Information: Topic: Sexual battery & Fondling - Sufficiency of evidence - Ineffective assistance of counsel - Child’s testimony - M.R.E. 803(25) - Prosecutorial misconduct
Judge(s) Concurring: King and Southwick, P.JJ., Bridges, Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 01-17-2001
Appealed from: Itawamba County Circuit Court
Judge: Frank Russell
Disposition: COUNT I - SEXUAL BATTERY: SENTENCED TO SERVE A TERM OF 30 YEARS IN THE CUSTODY OF THE MDOC. 10 YEARS SUSPENDED. COUNT II - FONDLING: SENTENCED TO SERVE A TERM OF 5 YEARS IN THE CUSTODY OF THE MDOC. SAID SENTENCE SHALL RUN CONCURRENTLY WITH THE SENTENCE IMPOSED IN COUNT I OF THIS CAUSE NUMBER.
District Attorney: John Richard Young
Case Number: CR00-034

  Party Name: Attorney Name:  
Appellant: Timothy R. Sharp




KELLY LEE MIMS



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: JEAN SMITH VAUGHAN  

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Topic: Sexual battery & Fondling - Sufficiency of evidence - Ineffective assistance of counsel - Child’s testimony - M.R.E. 803(25) - Prosecutorial misconduct

Summary of the Facts: Timothy Sharp was convicted of one count of sexual battery and one count of fondling. He appeals.

Summary of Opinion Analysis: Issue 1: Sufficiency of evidence Sharp argues that the evidence is insufficient, because there were discrepancies between the versions of events related by the child victim to the social worker and others, and the child's in-court testimony. The jury, having heard of the child’s prior statements, listened to her testimony in open court and collectively came to the conclusion that the child had truthfully related the events of the two encounters with Sharp that led to the charges in the indictment. Any discrepancies in the child’s prior statements were not so damaging to the child’s credibility as to compel the conclusion the jury abused its discretion in so finding. Issue 2: Ineffective assistance of counsel Sharp argues that he received ineffective assistance of counsel, because counsel failed to call another physician as a defense witness who had examined the child and who had reported that the child had denied to her that Sharp had made a sexual penetration of her vagina and failed to call the child’s mother for the purpose of showing certain additional inconsistent statements allegedly made by the child. An inquiry and analysis on this issue would necessarily require a full evidentiary inquiry that could only be accomplished through the vehicle of a post-conviction relief motion. Issue 3: Hearsay Sharp argues that the court erred in admitting evidence of the victim’s extra-judicial statements regarding the alleged crimes. However, the court had more than sufficient evidence before it, none of which was contradicted or even impeached during the hearing on the motion in limine, to conclude that the child’s statements were given under circumstances where they had sufficient indicia of reliability to overcome a hearsay objection and be admitted under M.R.E. 803(25). Issue 4: Prosecutorial misconduct Sharp argues that the prosecution knowingly presented perjured testimony. There is no evidence to support his assertion.


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