Klauk v. State
| Docket Number: | 2004-KA-02434-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-24-2006 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Touching a child for lustful purposes - Tender years exception - M.R.E. 803(25) 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: 06-23-2004 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: CONVICTED ON THREE COUNTS OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE TO FIFTEEN YEARS IN THE CUSTODY OF MDOC WITH SENTENCE IN COUNT II TO RUN CONSECUTIVE TO SENTENCE IN COUNT I AND THE SENTENCE IN COUNT III TO RUN CONSECUTIVE TO COUNTS I AND II. District Attorney: JON MARK WEATHERS Case Number: 04-070-CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | Phillip Matthew Klauk |
JONATHAN MICHAEL FARRIS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY |
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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: | Touching a child for lustful purposes - Tender years exception - M.R.E. 803(25) |
| Summary of the Facts: | Phillip Klauk was found guilty of three counts of touching of a child for lustful purposes. He appeals. |
| Summary of Opinion Analysis: | Klauk’s attorney filed a brief on Klauk’s behalf complying with the mandate of Lindsey and indicating that he informed Klauk that he could identify no arguable issues, provided Klauk with a copy of the brief stating as such, and advised Klauk of his right to file a pro se brief on his own behalf. After a thorough review of the record, the Court finds that one issue does deserve discussion. The issue is, whether the trial court erred in admitting hearsay testimony under the tender years exception, pursuant to M.R.E. 803(25), without first finding, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide a substantial indicia of reliability. There is a rebuttable presumption that children under twelve years of age are within their tender years. The record is clear that at the time of the child’s statements she was under the age of twelve, so she was within the age limit of the presumption. Once this has been found, the trial court must establish the reliability of the child’s statements. The record indicates that two witnesses were allowed to testify, under the tender years exception, that the child told them Klauk had touched her on several occasions. What is lacking from the record is a determination by the trial judge that those statements provide a substantial indicia of reliability. Accordingly, the court erred in admitting this evidence without first making that determination. However, excluding the testimony of these witnesses, the jury was still left with more than sufficient evidence to find Klauk guilty beyond a reasonable doubt. The child testified that Klauk touched her between her legs, both on the outside and inside of her clothing, on two occasions in Prentiss and on three occasions in Petal, detailing the place and circumstances of the incidents. Also, the jury heard Klauk’s recorded confession. Thus, the error was harmless. |
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