Pierce v. State
| Docket Number: | 2007-KA-00124-COA Linked Case(s): 2007-KA-00124-COA ; 2007-CT-00124-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-05-2008 Opinion Author: GRIFFIS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery - Hearsay - Tender years exception - M.R.E. 803(25) - Present sense impression - M.R.E. 803(12) - Excited utterance - M.R.E. 803(2) - Medical diagnosis or treatment exception - M.R.E. 803(4) - Sufficiency of evidence Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Concur in Part, Concur in Result 1: IRVING, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-25-2007 Appealed from: PANOLA COUNTY CIRCUIT COURT Judge: Andrew C. Baker Disposition: CONVICTED OF SEXUAL BATTERY AND SENTENCED TO SERVE A TERM OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: John W. Champion Case Number: CR-2005-51-BP1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | STEVEN WAYNE PIERCE |
GLENN STURDIVANT SWARTZFAGER |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Sexual battery - Hearsay - Tender years exception - M.R.E. 803(25) - Present sense impression - M.R.E. 803(12) - Excited utterance - M.R.E. 803(2) - Medical diagnosis or treatment exception - M.R.E. 803(4) - Sufficiency of evidence |
| Summary of the Facts: | Steven Pierce was found guilty of sexual battery and was sentenced to twenty-five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Hearsay Pierce argues that he was prejudiced when the trial judge allowed two hearsay statements to be introduced at trial. He argues that both the testimony of the victim’s mother that the victim said Steven licked her bottom and the testimony of an expert witness in the field of pediatrics and child sexual abuse regarding the victim’s statement that someone named Steven had touched her bottom were hearsay statements. With regard to the mother’s testimony, the trial judge did not reference the tender years exception when Pierce’s hearsay objection was overruled. Instead, the trial judge allowed the statement to come into evidence based on the State’s incorrect assertion that there is a first report exception to the hearsay rule. Consequently, the trial judge did not conduct an M.R.E. 803(25) hearing and made no findings on the record regarding the reliability of the statement. Thus, the statement to the victim’s mother does not fall properly under the tender years exception to the hearsay rule. The victim’s statement was not a present sense impression under M.R.E. 803(12), because the victim did not make the statement while perceiving the sexual abuse or immediately thereafter. Her statement was made days, possibly weeks, after the incident. There is no evidence that the victim was in an excited state when she made the statement to her mother and therefore, it is not an exception to the hearsay rule as an excited utterance under M.R.E. 803(2). However, the error is harmless since the statement did not result in prejudice to Pierce. With regard to the expert’s testimony, the medical diagnosis or treatment exception under M.R.E. 803(4) applies when an alleged victim is referred to a physician to be evaluated for possible sexual abuse. It is clear from the expert’s testimony that the statements made by the victim during the examination were statements made for purposes of medical diagnosis and treatment; therefore, the statements were properly admitted into evidence. Issue 2: Sufficiency of evidence Pierce argues that the State failed to prove beyond a reasonable doubt that he inappropriately touched the victim. Despite the fact that there is no physical evidence of sexual penetration, there was sufficient evidence presented for the jury to conclude that sexual penetration, in the form of cunnilingus, occurred. The victim testified that Pierce touched her with his tongue and indicated that the touching occurred in her genital area. She also told the expert witness that he had licked her bottom. |
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