McCrory v. State


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Docket Number: 2009-KA-00290-COA
Linked Case(s): 2009-KA-00290-COA ; 2009-CT-00290-SCT

Court of Appeals: Opinion Link
Opinion Date: 05-11-2010
Opinion Author: Myers, P.J.
Holding: Affirmed

Additional Case Information: Topic: Sexual battery - Sufficiency of evidence - Proof of venue - In-court identification - Victims' credibility - Hearsay - Tender years exception - M.R.E. 803(25)
Judge(s) Concurring: King, C.J., Lee, P.J., Griffis, Barnes, Ishee, Roberts and Maxwell, JJ.
Non Participating Judge(s): Carlton, J.
Concurs in Result Only: Irving, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 10-27-2008
Appealed from: RANKIN COUNTY CIRCUIT COURT
Judge: William E. Chapman, III
Disposition: CONVICTED OF COUNT I, SEXUAL BATTERY, AND COUNT II, SEXUAL BATTERY, AND SENTENCED TO THIRTYFIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THIRTY YEARS TO SERVE AND FIVE YEARS OF POSTRELEASE SUPERVISION, FOR EACH COUNT WITH THE SENTENCES TO RUN CONCURRENTLY
District Attorney: Michael Guest
Case Number: 19115

Note: Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down.

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Tommy Junior McCrory




M. JUDITH BARNETT



 
  • Appellant #1 Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY, JR.  

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    Topic: Sexual battery - Sufficiency of evidence - Proof of venue - In-court identification - Victims' credibility - Hearsay - Tender years exception - M.R.E. 803(25)

    Summary of the Facts: Tommy McCrory was convicted on two counts of sexual battery. The trial court sentenced McCrory on each count to thirty-five years, with thirty years to serve and five years’ post-release supervision. McCrory appeals.

    Summary of Opinion Analysis: Issue 1: Sufficiency of evidence McCrory argues that the State failed to prove venue and, therefore, jurisdiction over the second count, pertaining to the sexual battery of one of the children. Where there is sufficient evidence to lead a reasonable trier of fact to conclude that part or all of the crime occurred in the county where the case is being tried, then evidence of venue is sufficient. McCrory argues that the child, who was nine years of age at the time of the trial, was never asked on direct examination where the assaults took place. The child testified that during the time McCrory abused him, he lived with his grandmother or with his mother and McCrory. Testimony from various witnesses at trial unanimously indicated that the grandmother’s home was located in Richland, and that during the relevant time period the child’s mother and McCrory lived first in an apartment and then in a house, both located in Pearl. Witnesses expressly testified during the trial that both Richland and Pearl are located in Rankin County. Thus, the testimony described above sufficient to establish venue in Rankin County by circumstantial evidence. Issue 2: In-court identification McCrory argues that one of the children failed to identify him in the courtroom on the day of trial, when asked to do so on direct examination. This issue procedurally barred because McCrory has failed to cite any relevant authority in support of this issue on appeal. In addition, McCrory was sufficiently identified as the individual who had assaulted the child. Issue 3: Victims’ credibility McCrory argues that the trial court erred in allowing an expert in forensic interviewing to testify regarding the credibility and veracity of the children. McCrory offered no contemporaneous objection so the issue is procedurally barred. In addition, the expert never testified as to the veracity of either of the victims’ statements. In fact, although he was asked by the State on direct examination whether he found each victim “credible,” he responded only by detailing certain observations that in his opinion “added credibility” to each boy’s account. Also, the jury was properly instructed that it alone was the final arbiter of credibility. Issue 4: Hearsay McCrory argues that the trial court erred in admitting hearsay testimony offered by the principal investigator in the case. McCrory made no contemporaneous objection at trial. In addition, any error in admitting this testimony was harmless. The substance of the statement – that the victims’ mother had told the children not to disclose the abuse because she feared the loss of McCrory’s income – was also established through the direct testimony of one of the children and through his father’s testimony as admissible hearsay. McCrory also argues that the trial court erred in admitting the hearsay testimony offered by the father and stepfather of the victims, under the tender years exception of M.R.E. 803(25). There is a rebuttable presumption that a child under the age of twelve is of tender years. Here, both victims were under the age of twelve when they made the statements. The trial court conducted a Rule 803(25) hearing on this issue and found that the time, content, and circumstances of the statements made by both of the victims provide substantial indicia of reliability. There is no basis to disturb the court’s finding.


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