Larson v. State
| Docket Number: | 2005-KA-00852-COA Linked Case(s): 2005-KA-00852-COA ; 2005-CT-00852-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-07-2006 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery - Hearsay - Tender years exception - M.R.E. 803(25) - Other bad acts - M.R.E. 404(b) - Discovery - URCCC 9.04(A) - Weight of evidence - Appeal bond - M.R.A.P. 28(a)(3) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Chandler, Griffis, Barnes and Ishee, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 12-01-2004 Appealed from: George County Circuit Court Judge: Robert P. Krebs Disposition: CONVICTED OF SEXUAL BATTERY AND SENTENCED TO TWENTY YEARS IN THE CUSTODY OF THE MDOC, WITH FIVE YEARS SUSPENDED AND FIFTEEN YEARS TO SERVE. District Attorney: ANTHONY N. LAWRENCE, III Case Number: 2001-10,121(1) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Hiram Bernard Larson |
GEORGE S. SHADDOCK |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JACOB RAY |
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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) - Other bad acts - M.R.E. 404(b) - Discovery - URCCC 9.04(A) - Weight of evidence - Appeal bond - M.R.A.P. 28(a)(3) |
| Summary of the Facts: | Hiram Larson was convicted of sexual battery and sentenced to twenty years with five years suspended and fifteen years to serve. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Hearsay Larson argues that the court erred in allowing the State to present hearsay testimony from various witnesses as to what the victim told them about Larson touching her. He points to the time period between the incident on December 20, 2000, and the report of the incident on April 16, 2001. When a circuit court determines whether testimony will be admissible under M.R.E. 803(25), the tender years exception, the circuit court must assess first whether the child falls into the category of one who is of tender years. Here, the child was ten when she made the relevant statements. Accordingly, she was of tender years and her statements fall within the tender years exception. Next, the court must determine whether an out-of-court statement contains a substantial indicia of reliability. Here, the circuit court conducted a hearing to determine whether sufficient indicia of reliability were present. As for the approximate four-month delay in reporting, the court did not err when it declined to find that the delay overcame the otherwise sufficient indicia of reliability. Issue 2: Other bad acts Larson argues that the circuit court erred when it allowed testimony that Larson touched the victim inappropriately on occasions other than the one raised in the indictment. Under M.R.E. 404(b), prior sexual acts of an accused are admissible to show the defendant’s lustful disposition towards the victim and the probability of the defendant’s having committed the offense charged. As such, the circuit court did not err when it permitted two witnesses to testify that the victim told them that Larson touched her inappropriately prior to the incident. Although the testimony was unquestionably prejudicial, the prejudice did not outweigh the evidence’s probative value under M.R.E. 403. Issue 3: Discovery Larson argues that the State withheld discoverable material, i.e., that the physician who examined the victim was related to the victim’s stepmother. Larson cites no authority mandating discovery of familial relationships. In addition, nothing in URCCC 9.04(A)(1)-(6) grants Larson a right to discovery of familial relationships between an expert witness and a victim’s stepmother. Also, the State’s failure to provide the doctor’s relationship to the victim’s stepmother did not prejudice Larson. Issue 4: Weight of evidence The circuit court did not err when it overruled Larson’s motion for new trial. The victim testified that Larson touched her inappropriately and that he digitally penetrated her vagina. Through the course of her examination, the doctor found physical evidence that corroborated the victim’s version of events. The testimony of a single uncorroborated witness can sustain a conviction even though there may be more than one witness testifying to the contrary. Issue 5: Appeal bond Larson argues that the court erred in denying his request for an appeal bond. Larson claims that section 99-35-115(1), as applied by the circuit court, amounts to an ex post facto law. However, Larson did not advance that argument in his initial brief and the record does not indicate that Larson ever placed that theory before the circuit court. M.R.A.P. 28(a)(3) requires that an issue be presented first to the trial court before being considered by the appellate court. |
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